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TMI Blog2012 (11) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... er of jurisdiction discussed above. In case such illegal order passed by the Assessing Officer being erroneous and prejudicial to revenue, is not set aside, it will amount to perpetuation of error. - Once order of ACIT in question is not quashed, the order passed by successor Assessing Officer will go infructuous. It will enhance the mischief. - Decided in favor of revenue. - ITA.No.1433/PN/2009 - - - Dated:- 27-7-2012 - Shri Shailendra Kumar Yadav and Shri R.K.Panda, JJ. Appellant by : Shri M.K.Kulkarni Respondent by : Shri Mukesh Verma ORDER PER SHAILENDRA KUMAR YADAV, JM: The above two appeals filed by the respective assessees are directed against the respective orders of CIT-III, Pune dated 24-11-2009 u/s.263 of Income Tax Act (hereinafter called the Act ) relating to A.Y. 2007-08. Since common issues are involved in both these cases belonging to the same group, therefore, these were heard together and are being disposed of by this common order for the sake of convenience. ITA No. 1433/PN/2009 (A.Y. 2007-08 ) : 2. The assessee has filed this appeal against the order of CIT u/s.263 on the following main grounds : 1. On the facts and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the assessment record, noticed that Assessing Officer has not examined various aspects which required to be examined for proper determination of income. Therefore, a notice u/s.263 of the Act was issued to the assessee. The operative portion of the notice is as under: "Assessment order in this case has been passed u/s. 143(3) of the I.T. Act by ACIT, Satara Circle, Satara on 07/09/2009 whereas the jurisdiction in this case stood transferred to the Add!. CIT, Satara Range, Satara, w.e.f. 04/09/2009. In view of this, it is clear that the order passed by the ACIT, Satara Circle, Satara for the assessment year under consideration on 07/09/2009 is without jurisdiction and therefore, non-est. 2. Without prejudice to what is stated above; the order passed by the learned Assessing Officer referred to above suffers from various errors which, prima facie, are within the purview of assumption of jurisdiction u/ s. 263 of the Income Tax Act, 1961. These errors are enumerated as under :- i) Confirmation in respect of creditors/debtors: As per the Tax Auditors report, creditors' and debtors' balance are subject to confirmation/reconciliation. However, during the course of assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parently not done." 4. In response to the notice, the assessee submitted written submissions dated 24.11.2009. Regarding the issue relating to lack of jurisdiction on the date of passing the order, assessee s objections are contained in para 5 of his reply which is reproduced as under: a) The Assessing Officer vide his letter dated 4-11-2009 informed to the assessee that the jurisdiction of the case was assigned to Add!. CIT, Satara Range by an order u/s.120 r.w.s. 127(1) dated 4-9-2009. b) The Assessing Officer says the said order of the assignment was received by his office on 7-9-2009.; However, order passed u/s.143(3) dated 7-9-2009 was already entered in the D C register. c) It is also stated in the said letter that he was directed to serve the order on the assessee vide communication dated 3-11-2009 and to intimate that the jurisdiction over the case has been already been transferred on 4-9-2009 and therefore, order passed on 7-9-2009 has been passed without jurisdiction. d) The assessment order was therefore, served on 7-11-2009 along with order dated 4-11-2009. e) The moot question than arises for consideration as to why the assessment order was passed on 7-9-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er deduction of TDS. It has been accepted in the early years." From the reply given by the assessee it is clear that the Assessing Officer has not examined the aspects which require to be examined and which warranted enquiry on the aspects delineated in point (ii) of para 2 of the show cause notice dated 12-11-2009 which has been reproduced hereinbefore. iii) As regards the aspect mentioned at (iii) of para 2 of the show cause notice, a perusal of record shows that this aspect was not examined by the Assessing Officer. Similar is the case relating to taxability of cash of Rs.46,04,191 for the purpose of wealth tax. 6. In view of above, the CIT held that aforesaid aspect which prima facie warranted enquiry on the facts of the case for determination of correct income was also not enquired into by the Assessing Officer, which has rendered the order erroneous as well as prejudicial to the interest of Revenue within the meaning of section 263 of the Act. Accordingly, the same was set aside. The CIT also observed that the order u/s.263 is passed as a matter of abundant precaution because the assessment order was passed on 07.09.2009 which was heard by him on 04.09.2009 is non-est b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Hon'ble Delhi High Court in the case of CIT vs. DLF Power Ltd. (2010) 31(1) ITCL 312, observed that CIT has no power to review the assessment order u/s.263 when the order is not in existence. The ratio of DLF Power Ltd. (supra) does not help the assessee because in said case order under revision stood rectified, so there was no occasion of revision of same. Next reliance of Ld. Authorised Representative is on decision of Hon'ble Calcutta High Court in P.P.Dinawalla vs. CIT (1994) 78 Taxman 421, wherein it was observed that revision of the order u/s.263 pre-supposes the existence of an order. There cannot be any revision of a non-existing order. The ratio of this case is also not applicable to the facts of assessee because there is no issue on the point that CIT cannot reuse the assessment order for charging of interest u/s.215 of the Act as levy of interest u/s.215 was not part of assessment order. In case before us there is nothing beyond the assessment order. Subject matter of impugned assessment order and order under revision before us is same, where in P.P.Dinawalla s case (supra) the CIT tried to extend his jurisdiction u/s.263 for levy of interest u/s.215 of the Act whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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