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TMI Blog2015 (2) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... he CIT on merits but has challenged the revision order only on technical/legal grounds. Therefore, when the claim, which was allowed by the Assessing Officer with out any examination and adjudication, but are not allowable, then the question of taking a possible view does not arise in the case in hand. In a case where the Assessing Officer allowed a claim without examining the records but there is possibility of taking a view in favour of the assessee, then it may be said that the Assessing Officer has taken a possible view. But when the claim of the assessee is not allowable and there is no possibility of two views, then allowing the claim by the Assessing Officer without examining and application of mind would definitely render the assessment order erroneous so far as prejudicial to the interest of revenue and Commissioner has the power to exercise the jurisdictional u/s 263. - Decided against assessee. Review application - Held that:- The Tribunal has taken a view after considering the various precedents as well as facts and circumstances of the case in particular. Therefore, it may be at the most an error of judgment but cannot be an apparent error from record which can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration of the decision of Hon'ble Jurisdictional High Court or Hon'ble Supreme Court is a mistake apparent from record and is rectifiable under section 254(2) of the Act. Thus, the ld. AR has submitted that in view of the latest decision of the Hon'ble Jurisdictional High Court in case of M/s. Lark Chemicals Ltd. supra, there is a mistake apparent in the impugned order of the Tribunal and the same should be rectified. 3. On the other hand the ld. DR has submitted that the order of the Tribunal is not based on only one point whether intimation under section 143(1) can be subject to revision under section 263 or not but the Tribunal has given a finding by relying upon the judgment of Hon'ble Supreme Court in the case of ACIT vs. Rajesh Jhaveri Stock Brokers Pvt. Ltd. (291 ITR 500). He has further submitted that the Tribunal has also followed the Full Bench decision of Hon ble Kerala High Court in the case of CIT vs. Best Wood Industries Saw Mill (331 ITR 63)(Ker.) as well as the Special Bench decision of the Tribunal in the case of Simbhaoli Industries Pvt. Ltd. vs. DCIT (251 ITR 35 (AT) (Del.)(SB) . He has further contended that jurisdiction of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.1 Sub.sec. 2 of sec. 263 prescribe the limitation for invoking the powers and jurisdictions by the CIT. It is manifest from the provisions of sec. 263 that the CIT can exercise revision power against the order passed by the Assessing Officer, if the two conditions as erroneous and prejudicial to the interest of revenue are satisfied. The limitation provided under sub.sec. 2 of sec. 263 for exercising the jurisdiction under sub.sec.(1) of sec. 263 reckoned from the end of the financial year in which the order was passed by the Assessing Officer. Thus, for invoking the powers and jurisdictional u/s 263 there should be an order passed by the Assessing Officer. 7.2 Now, the question arises whether the return of income processed u/s 143(1) and intimation u/s 143(1)(a) amounts to an order passed by the Assessing Officer or not and whether it is subjected to revision u/s 263. The Hon ble Supreme Court in the case of Assistant Commissioner of Income-tax v. Rajesh Jhaveri Stock Brokers P. Ltd. has held as under: One thing further to be noticed is that intimation under section 143(1)(a) is given without prejudice to the provisions of section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 264 between October 1, 1991, and May 31, 1999. It is to be noted that the expressions intimation and assessment order have been used at different places. The contextual difference between the two expressions has to be understood in the context the expressions are used. Assessment is used as meaning sometimes the computation of income , sometimes the determination of the amount of tax payable and sometimes the whole procedure laid down in the Act for imposing liability upon the tax payer . In the scheme of things, as noted above, the intimation under section 143(1)(a) cannot be treated to be an order of assessment. 7.3 It is clear from the decision of the Hon ble Supreme Court that an intimation/acknowledgement u/s 143(1) cannot be treated to be an order of assessment. Thus, the return processed u/s 143(1) is not an order as stipulated u/s 263. The assessee has relied upon the decision of the Hon ble Jurisdictional High Court in the case of Anderson Marine Sons P Ltd (supra) on this issue. It is to be noted that the decision of the Hon ble jurisdictional High Court is much prior to the decision of the Hon ble Supreme Court in the case of Rajesh Jhave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intimation/assessment order issued under section 143(1) of the IT Act on which the Assessing Officer has not applied his mind at all and return was processed as it is accepting the returned income. The Hon'ble Jurisdictional High Court in the case of Vikrant Crimpers (supra) held that the order under section 143(1) of the IT Act (summary assessment) cannot be revised under section 263 of the IT Act. Therefore, the decisions relied upon by the learned Counsel for the assessee are clearly distinguishable and cannot be applied to the facts of the present case. The decisions of the Hon'ble Bombay High Court and the Hon'ble Madras High Court cited by the learned Counsel for the assessee in the case of Anderson Marine Sons (P.) Ltd. (supra) and in the case of Chidambaram Construction Co. (supra) cannot be given preference as against the decision of the Hon'ble Jurisdictional Gujarat High Court in the case of Vikrant Crimpers (supra). Since, the learned Commissioner of Income-tax passed the impugned order under section 263 of the IT Act against the regular assessment order passed under section 143(3)/147 of the IT Act dated 28-12-2007, therefore, the impugned order i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer with out any examination and adjudication, but are not allowable, then the question of taking a possible view does not arise in the case in hand. 10.1 In a case where the Assessing Officer allowed a claim without examining the records but there is possibility of taking a view in favour of the assessee, then it may be said that the Assessing Officer has taken a possible view. But when the claim of the assessee is not allowable and there is no possibility of two views, then allowing the claim by the Assessing Officer without examining and application of mind would definitely render the assessment order erroneous so far as prejudicial to the interest of revenue and Commissioner has the power to exercise the jurisdictional u/s 263. 11 The Full Bench of the Hon ble Kerala High Court in the case of Best Wood Industries Saw Mills (supra) has held as under: What is clear from the above provision is that once assessment is reopened for bringing to tax any income that escaped assessment in terms of sections 148 to 153, then the Assessing Officer has to assess or reassess such income and also any other income chargeable to tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was relevant material on which a reasonable person could have formed the requisite belief. Whether material would conclusively prove escapement of income is not the concern at that stage. This is so because the formation of the belief is within the realm of the subjective satisfaction of the Assessing Officer. The proposition laid down by the Supreme Court clearly goes to establish that the Assessing Officer is not confined to the grounds or reasons stated by him to reopen the assessment and he can make assessment after detailed enquiry. So much so, once the assessment is reopened for any valid reason recorded under section 148(2), then the entire assessment is open for the Assessing Officer to bring to tax any item of escaped income which comes to his notice in the course of such reassessment. We therefore overrule the decision of this court in Travancore Cements Ltd. v. Asst. CIT (2008) 219 CTR (Ker) 359; [2006] 4 KLT 344; and allow the appeals by reversing the orders of the Tribunal and that of the first appellate authority and remand the matter to the first appellate authority to consider the appeals on the merits, that is with regard to the additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the issues which are subject matter of revision order, then the reassessment is certainly erroneous due lack of application of mind so far as prejudicial to the interest of revenue. Hence, limitation as stipulated under sub sec. (2) of sec. 263 would be counted from the reassessment order passed u/s 143(3) r.w.s 147being the first regular assessment. 4.1 As it is clear from the impugned order of the Tribunal that the issue involved in the appeal of the assessee was decided in a detailed and reasoned order and after discussing various judgment of Hon'ble Supreme Court as well as various High Courts. In para 7.3 of the impugned order the Tribunal has specifically discussed the judgment of Hon'ble Jurisdictional High Court in case of Anderson Marine Sons P. Ltd. (supra). The Tribunal has taken a view after considering the various precedents as well as facts and circumstances of the case in particular. Therefore, it may be at the most an error of judgment but cannot be an apparent error from record which can be rectified under section 254(2). 4.2 The jurisdiction of the Tribunal under section 254(2) is very limited and circumscribed. It is settled proposition of law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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