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Income Tax Appellate Tribunal, MUMBAI BENCHES “G”, MUMBAI
Before: SHRI B.R. BASKARAN (AM) & SHRI RAM LAL NEGI (JM)
This appeal has been filed by the assessee against order dated 29.03.2017 passed by the Ld. Principal Commissioner of Income Tax - 3, Mumbai (for short ‘ the Commissioner’) under Section 263 of the Income Tax Act, 1961 (for short ‘the Act’), for the assessment year 2012-13, whereby the Commissioner has set-aside the assessment order dated 31.03.2015 passed u/s 143 (3) of the Act.
The assessee has preferred the present appeal against the order of the Commissioner by raising the following effective ground of appeal:
“Ground No.1. On the facts and in the circumstances of the case and in law the Ld. Pr. CIT-3, Mumbai, erred in giving his findings of revising the assessment made u/s. 143(3) of the Act dated 31.03.2015 considering that as on the date of revision the said assessment order did not exist having merged with the order passed by the First Appellate Authority, namely the CIT(A)-8, Mumbai. Therefore in terms of the doctrine of merger what is sought to be revised was the merged order u/s. 143(3) r.w.s.251 of the Act.
Ground No.2 On the facts and in the circumstances of the case and in law, the Ld. Pr. CIT- 3, Mumbai, grossly erred by initiating revisionary action u/s. 263 of the Income Tax Act, 1961 of the order u/s. 143(3) of the Act read with Section 251 of the Act considering that the order sought to be revised was neither erroneous nor prejudicial to the interest of revenue and therefore ingredients required for the revision did not exist therein. Consequently, the order passed u/s. 263 of the Act by the Pr. CIT -3 is void ab-initio. The action of the Ld. Pr. CIT is wholly unreasonable, uncalled for and bad in law.
Ground No.3.
In doing so, the Ld. Pr. CIT-3, Mumbai, has grossly erred in revising the assessment order having already been adjudicated upon by the First Appellate Authority, namely the CIT(A)-8, Mumbai, thereby contravening the provisions laid in clause (c) of Explanation 1 to Sub Section (1) of the Section.
Ground No.4.
On the facts and in the circumstances of the case and in law the Pr. CIT-3 grossly erred in directing the A.O. not to allow the benefit of set off of business loss against the income by way of unexplained cash credit under Section 68 of the Act ignoring that such an income under the Section did not exist in the order before him that was sought to be revised.
Ground No.5 In giving such a direction, the Pr. CIT-3 Mumbai, erred in acting in contravention to clause (b) of Explanation 1 to sub Section (1) of the Section going beyond the "record" what was available before him for examination at the time of revision, Ground No.6 In doing so, the Pr. CIT-3, Mumbai, further erred in directing the A.O. to deny the benefit of set off relying upon the decision of a non-jurisdictional Court in the case of Fakir Mohammed Haji Hassan Vs. CIT 247 ITR 290 (Guj). The Pr. CIT -3 erred on facts and in law ignoring; (i) the said decision of the non-jurisdictional Court has been repeatedly not followed subsequently in a series of judgments in the cases of CIT Vs Shilpa Dying & Printing Mills Pvt. Ltd 219 Taxman 279 (Guj), Krishna Textiles Vs CIT 387 ITR 114 (Guj), CIT Vs. Chensing Ventures 291 ITR 258 (Mad), M/s K.R. Automobiles Vs ACIT Baroda 153 ITD 240 (Ahd), etc.
(ii) an order cannot be revised based on the decision of non- jurisdictional High Court considering that it does not satisfy the condition laid down in clause (c) of Explanation 1 of Sub section (1) of Section 263 of the Act.”
At the outset, the Ld. counsel for the assessee submitted that the assessee does not want to pursue its appeal, therefore, the assessee may be permitted to withdraw the appeal.
The Ld. Departmental Representative did not raise any objection against the assessee’s request to withdraw its appeal. Hence, we permit the assessee to withdraw its appeal and dismiss the present appeal as withdrawn.
In the result, appeal filed by the assessee for assessment year 2012-13 is dismissed as withdrawn.