2015 (12) TMI 500 - AT - Income Tax

Rectification order u/s 154 - CIT X/Kol initiated proceedings u/s. 154 to rectify the order u/s. 264 passed by his predecessor in office CIT X - CIT X held that on the date of passing the Order u/s. 264 by the CIT X on 30,.12.2011, an appeal by the assessee was pending before the CIT(A) XVI - Held that - The assessee for the relief under section 264 of the Act before Ld. CIT was accepted and the same was adjudicated, granting the relief to the assessee, but the same relief was rejected by passing an order under section 154 on the ground that the assessee for the same case has also filed an appeal to the Ld.CIT(A). The Ld.CIT also found that the appeal before Ld.CIT(A) was pending not only at the time of filing the application but also at the time of order under section 264 of the Act. The provisions of section 264(4)(c) of the Act prohibits the Ld. CIT to pass the revision order if appeal is pending. However it was also observed in terms of CBDT Circular that an order cannot be subject of an appeal if appeal has not been disposed on merits. In the present case, appeal of assessee has never been disposed on merits rather the appeal was withdrawn by the assessee vide later dated 9th December 2011. However the Ld. CIT(A) passed the order of the appeal dismissal on dated 03-09-2012, and by that time the application filed for relief to the Ld. CIT under section 264 of the Act was adjudicated and consequently the impugned rectification order u/s.154 of the Act was passed. The fact however remains that the appeal of the Assessee has not been disposed on merits. In view of this, there was no bar to the CIT in exercising jurisdiction u/s.264 of the Act. The facts clearly show that the embargo imposed in Sec.264 of the Act that there should be no appeal pending before CIT(A) on the issues raised in the application u/s.264 of the Act is not applicable in the present case. We are therefore of the view that the order u/s.154 of the Act is liable to be cancelled and the same is hereby cancelled. - Decided in favour of assessee

Summary

Issues Involved:
1. Rectification order u/s 154 of the Income Tax Act passed by the Commissioner of Income Tax (Appeals).
2. Interpretation of the term "subject of an appeal" under section 264(4)(c) of the Act.
3. Validity of the rectification order u/s 154 in light of the appeal withdrawal by the assessee before the Commissioner (Appeals).

Issue 1: Rectification order u/s 154:
The appeal arose from the order of the Commissioner of Income Tax (Appeals)-XVI, Kolkata, concerning the assessment year 2005-06. The assessee, a partnership firm in the pesticides business, was initially assessed under section 143(3) for an amount of Rs. 6,10,300. Subsequently, the income was rectified to Rs. 6,23,420 under section 154. A notice under section 148 was issued, leading to an assessment under section 147 where an addition of Rs. 57,20,682 was made, increasing the total income to Rs. 63,44,100. The assessee filed for revision under section 264, which was initially allowed by the CIT but later found to be in contravention of section 264(4)(c) due to a pending appeal before the CIT(A)-XVI, Kolkata.

Issue 2: Interpretation of "subject of an appeal" under section 264(4)(c):
The key contention revolved around the interpretation of "subject of an appeal" as per section 264(4)(c) of the Act. The CBDT Circular No. 367 dated 26.7.1983 clarified that an order cannot be considered "subject of an appeal" if the appeal is disposed of without passing an order on merits. In this case, the assessee withdrew the appeal before the CIT(A)-XVI, Kolkata, and the appeal was dismissed for statistical purposes. The Ld. CIT passed the rectification order under section 154 based on the pending appeal, which was later found to be incorrect as the appeal had not been disposed of on merits. Therefore, the embargo imposed by section 264(4)(c) did not apply, and the rectification order was deemed liable to be canceled.

Issue 3: Validity of the rectification order in light of the appeal withdrawal:
The order further highlighted that the rectification order under section 154 was not valid as the appeal before the CIT(A) had been withdrawn by the assessee and was dismissed for statistical purposes. The Ld. CIT's decision to pass the rectification order based on the pending appeal was deemed incorrect. The judgment emphasized that since the appeal had not been disposed of on merits, the provisions of section 264(4)(c) did not apply, allowing the Ld. CIT to exercise jurisdiction under section 264. Consequently, the rectification order under section 154 was canceled, and the assessee's appeal was allowed for statistical purposes.

In conclusion, the judgment delved into the nuances of rectification orders under section 154, the interpretation of the term "subject of an appeal" under section 264(4)(c), and the validity of such orders in cases where appeals are withdrawn by the assessee. The decision provided clarity on the applicability of the provisions and emphasized the importance of appeals being disposed of on merits before deeming an order as the subject of an appeal.