RAVISHANKAR,MUMBAI vs. CIT-12, MUMBAI

Instant appeal by the assessee is directed against the order dated 30th October 2014, passed under section 264 of the Income Tax Act, 1961 (for short "the Act") by the learned Commissioner of Income Tax, Mumbai, for the assessment year 2009–10. Grounds raised by the assessee are as follows:–

“1. On the facts and in the circumstances of the case and iii law the Commissioner of Income Tax - 12, Mumbai through the learned AO Ward 12(1)(1) erred in disallowing the following expenses without 2 Shri Ravishankar discussing a word on the non-allowability of the same and yet considering it to be personal and not incurred in the course of business.

2. The Ld. CIT-12, Mumbai erred in considering the unabsorbed loss of preceding years available for set-oil as not being adjustable in the impugned AY only because the appellant has through oversight forgotten to claim the same in the original return, though claim for the same was made in the revised return tiled.

3. The appellant craves leave to add, alter, modify, and/or delete all or any of the grounds of appeal at any time before of d miring the course of hearing oft lie appeal.”

3 Shri Ravishankar submitted by the assessee that the Assessing Officer failed to set–off carry forward loss of the preceding year. After considering the submissions of the assessee and on the basis of facts and materials placed before him, the Commissioner being prima–facie satisfied with the fact that assessee has committed mistake in the return of income by offering the same income twice restored back the matter to the file of the Assessing Officer to examine the facts and compute the income of the assessee accordingly after verifying the evidence brought on record. As far as set–off of carry forward of loss is concerned, the Commissioner rejected assessee’s claim. In pursuance to the order of the Commissioner, the Assessing Officer passed the impugned order giving effect to the directions of the Commissioner as per which the total income was revised / re–computed of ` 4,47,833.

4 Shri Ravishankar 5. We have considered the submissions of the parties and perused the material available on record. Undisputedly, against the order passed by the Assessing Officer, rejecting the application under section 154 of the Act, the assessee has opted to avail remedy under section 264 and thereby has given up his right of appeal under section 246A. On a reading of the provisions contained under section 264, and more specifically, sub–section (4) of that provision makes it clear that only in a case where the assessee has waived his right of appeal and no appeal is pending either before the first appellate authority or the Tribunal, the Commissioner can revise the order by invoking his power under section 264. In the present case, admittedly, the assessee has waived his right of appeal and approached the Commissioner under section 264 and it is also a fact on record that when this revision application was filed before the Commissioner there was no appeal by the assessee either before the Commissioner or before the Tribunal. That being the case, Commissioner entertained the application filed by the assessee an d in exercise of power conferred under section 264, passed an order giving certain direction to the Assessing Officer. In pursuance to such direction of the Commissioner, the Assessing Officer has passed the impugned order. On a careful reading of provisions of section 253, it is very much clear that an order passed under section 264 is not appealable before the Tribunal. That being the case, we fail to understand how an order passed by the Assessing Officer giving

5 Shri Ravishankar 0effect to the direction of the Commissioner under section 264, can be appealed before the Tribunal. Thus, the order under challenge in the present appeal not being an appealable order under section 253, the impugned appeal of the assessee is not maintainable, hence, deserves to be dismissed.