2016 (6) TMI 458 - AT - Income Tax

Revision u/s 263 - period of limitation for revision order - CIT(A) held that the assessee is not eligible for deduction to an amount in respect of gain of foreign currency loan, which was included and claimed as deduction u/s. 80IA before the AO by observing as it is not a profit and gain from industrial undertaking or enterprises engaged in infrastructure development u/s. 80IA of the Act - Held that - The order passed u/s. 263 of the Act by the CIT was admittedly issued only on 01-05-13 diapatched by post only on 08-05-13 and served on assessee later and it was in his custody till 01-05-2013 and was issued only on 01-05-13. In other words it was the order was issued only after 01-05- 2013 after the expiry of the period of limitation. As held by the Hon ble High Court in the case of Government Wood Works 1987 (1) TMI 451 - KERALA HIGH COURT to make the order complete and effective it should be issued so as to be beyond the control of the authority concerned. Therefore, the ratio of the Hon ble Kerala High Court in the case of Government Wood Works supra is applicable to the facts of the present case. Respectfully following the same, we hold that the impugned order passed u/s. 263 of the Act by the CIT is barred by limitation - Decided in favour of assessee

Summary

Issues Involved:
1. Limitation of the order under Section 263.
2. Substantiation of findings by the CIT.
3. Consideration of submissions and queries during proceedings under Section 263.
4. Disallowance of foreign currency gain under Section 80IA.
5. Initiation of proceedings under Section 263 without the order being erroneous or prejudicial to the revenue.

Issue-wise Detailed Analysis:

1. Limitation of the Order under Section 263:
The primary issue was whether the order passed by the CIT under Section 263 was barred by limitation. The assessee argued that although the order was dated 28-03-2013, it was dispatched and served only on 01-05-2013, thus making it ineffective until the latter date. The CIT contended that the order was within the time limit as it was made on 28-03-2013. The Tribunal referred to the Kerala High Court decision in Government Wood Works Vs. State of Kerala, which held that an order is not complete and effective until it is communicated to the affected party. Since the order was dispatched and served after the expiry of the limitation period, the Tribunal concluded that the order was barred by limitation. Consequently, the ground raised by the assessee on this issue was allowed.

2. Substantiation of Findings by the CIT:
The assessee contended that the CIT failed to substantiate his findings either in the notice under Section 263 or in the corresponding order. The Tribunal did not delve into this issue in detail, as the decision on the limitation issue rendered further adjudication unnecessary.

3. Consideration of Submissions and Queries During Proceedings under Section 263:
The assessee argued that the CIT did not address all the submissions and queries raised during the proceedings under Section 263. Again, the Tribunal did not provide a detailed analysis on this matter due to the resolution of the primary issue of limitation.

4. Disallowance of Foreign Currency Gain under Section 80IA:
The CIT disallowed the foreign currency gain of ?1,76,44,053 under Section 80IA, arguing that it was not a profit derived from industrial undertakings or enterprises engaged in infrastructure development. The Tribunal did not address the merits of this disallowance due to the decision on the limitation issue.

5. Initiation of Proceedings under Section 263:
The assessee claimed that the initiation of proceedings under Section 263 was unwarranted as the original assessment order was neither erroneous nor prejudicial to the interest of the revenue. The Tribunal did not explore this issue further because the limitation issue was decisive.

Conclusion:
The Tribunal allowed the appeal of the assessee primarily on the ground that the order under Section 263 was barred by limitation, as it was not dispatched and served within the prescribed period. Consequently, other grounds raised by the assessee were dismissed as they required no further adjudication. The appeal was thus allowed, and the order was pronounced in the open court on 10-06-2016.