2014 (6) TMI 7 - AT - Income Tax

Power of the CIT for revision u/s 263 Period of limitation u/s 153A - Validity of order of recalculation of deduction u/s 80IB and 80HHC of the Act whereas the issue of deduction u/s 80HHC was the subject matter of proceedings upto the stage of the Hon ble High Court, that of deduction u/s 80IB was contested upto before the Tribunal. The issue is as to whether in such a circumstance, it was within the ambit of the powers of the Id. ClT to invoke the provisions of Section 263 of the Act to revise the assessment order in respect of the issue of deduction u/s 80HHC and 80IB. Held that - Following Saw Pipes Ltd. vs. Addl. CIT 2005 (4) TMI 264 - ITAT DELHI-D - as a result of the search conducted, no incriminating material was found and so, the issues of deduction u/s 80HHC and 80lB of the Act could not have been the subject matter of assessment u/s 153A of the Act the order relates back to the assessment order dated 30.11.04, passed u/s 143 (3), and neither of the issues at hand are the subject matter of assessment in the order passed u/s 153A - once the issue of deductions u/s 80HHC and 80lB of the Act could not be the subject matter of assessment u/s 153A, obviously, the order passed u/s 153A is not revisable by invoking the provisions of Section 263. Deduction u/s 80HHC and deduction u/s 801B, have been the subject matter of appeal, as above. That being so, the assessment order dated 30.11.04, passed u/s 143 (3) of the Act, cannot, by any stretch of imagination, be said to have become irrelevant or shall abate Relying upon CIT vs. Smt. Shaila Aggarwal 2011 (11) TMI 213 - ALLAHABAD HIGH COURT - Section 153A does not have the effect of abatement of an appeal pending against the regular assessment the proceedings have already terminated are not allowable for abatement unless the statute expressly provides for it. The limitation period for passing the order u/s 263 would start running from the date of the passing of the original assessment order, i.e., 30.11.04 - That being so, the limitation expired on 31.03.07, whereas the notice u/s 263 itself was issued on 24.01.12 Decided in favour of Assessee.

Summary

Issues Involved:
1. Jurisdiction and limitation of CIT's power under Section 263.
2. Validity of assessment order under Section 153A.
3. Deduction calculations under Sections 80IB and 80HHC of the Income Tax Act.
4. Principles of natural justice and adequate opportunity of hearing.

Issue-wise Detailed Analysis:

1. Jurisdiction and Limitation of CIT's Power under Section 263:
The assessee argued that the order passed by the CIT under Section 263 was barred by limitation, illegal, without jurisdiction, and contrary to law and facts. The CIT invoked Section 263, claiming the assessment order dated 29.12.2009 was erroneous and prejudicial to the interests of the revenue, directing the AO to recalculate deductions under Sections 80IB and 80HHC. The assessee contended that the limitation period for passing the order under Section 263 had expired on 31.03.2007, and thus the CIT could not have assumed jurisdiction. The Tribunal agreed with the assessee, noting that the limitation period started from the original assessment order dated 30.11.2004, making the notice issued on 24.01.2012 time-barred.

2. Validity of Assessment Order under Section 153A:
The Tribunal examined whether the issues of deductions under Sections 80HHC and 80IB could be the subject matter of assessment under Section 153A. It was noted that no incriminating material was found during the search, and thus these issues could not have been raised in the assessment under Section 153A. The Tribunal held that the assessment order under Section 153A dated 29.12.2009 was not revisable under Section 263, as it related back to the original assessment order dated 30.11.2004.

3. Deduction Calculations under Sections 80IB and 80HHC:
The CIT found that the assessee had claimed deductions under Sections 80IB and 80HHC simultaneously, which was against the provisions of the Act. The CIT directed the AO to recalculate the deductions, stating that deduction under Section 80IB should be claimed first, followed by Section 80HHC. The Tribunal, however, noted that the issue of deductions under Sections 80HHC and 80IB had already been the subject matter of appeal up to the High Court, and thus the CIT could not invoke Section 263 to revise the assessment order on these issues.

4. Principles of Natural Justice and Adequate Opportunity of Hearing:
The assessee argued that the CIT passed the impugned order without granting adequate opportunity of hearing and without considering the principles of natural justice. The Tribunal found merit in this contention, noting that the CIT had not provided sufficient opportunity for the assessee to present its case. The Tribunal emphasized the importance of adhering to the principles of natural justice in passing orders under Section 263.

Conclusion:
The Tribunal allowed the appeals filed by the assessee, holding that the CIT's order under Section 263 was barred by limitation, without jurisdiction, and contrary to law and facts. The Tribunal also noted that the issues of deductions under Sections 80HHC and 80IB could not be the subject matter of assessment under Section 153A, and thus the order under Section 153A was not revisable under Section 263. The Tribunal emphasized the need for adequate opportunity of hearing and adherence to the principles of natural justice in passing orders.