9911796707
TMI Blog2015 (5) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax dated 29th March, 2012. The said Commissioner exercised power under section 263 of the Income Tax Act, 1961 and the correctness of that exercise was put in issue by the Assessee before the Tribunal. 3. Mr. Mohanty appearing for the Revenue, after inviting our attention to section 263 of the Income Tax Act, 1961 and particularly Explanation( c) to subsection (1) of the said section, submitted that clause (c) of the said Explanation to subsection (1) will not be attracted, as the Commissioner sought to revise the order of the Assessing Officer on matters which had not been considered and decided in the Appeal against the order of the Assessing Officer. In other words, though the order of the Assessing Officer was challenged in Appeal b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be revised by the Commissioner under section 263 of the Income Tax Act, 1961. That was plainly and clearly impermissible given the above doctrine. Thirdly, the Commissioner did not put the Assessee to notice on certain aspects which he took into consideration, inasmuch as he directed by the order passed on 29th March, 2012 that the Assessing Officer must inquire into an issue as to whether the Assessee had sold its share of theatrical rights in the film "Darna Zaroori Hai" to M/s. RGV Enterprises for 25 lacs as is claimed by it. The Assessing Officer must give specific finding whether this claim is acceptable or not. Mr. Mistri submits that the Tribunal also set aside the order of the revisional authority because the show cause notice purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akes specific reference to the Assesse's production of films in the year under consideration, namely, assessment year 200607 and one of the film "Darna Zaroori Hai". The Assessee claimed to have incurred expenses of Rs. 6,99,73,052/- for production of this film. During the course of assessment proceedings, the Assessee furnished, before the Assessing Officer, details of its income from operations, vide letter dated 7th September, 2009. As per these details, the Assessee claimed that it has earned income of Rs. 11,25,00,000/- from this film. Later on, however, the Assessee claimed before the Assessing Officer that this was not income from the production of the film, but this was a sum received as share application money from various pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum debited to the P&L account and to the extent of Rs. 24,84,34,124/-. He disallowed the balance of Rs. 2,34,91,380/-. 8. The revisional authority was aware of the fact that against such an order of the Assessing Officer, the Assessee has preferred an Appeal to the Commissioner of Income Tax (Appeals). Ground No. 1 of that Appeal was whether on the facts and circumstances and in law, the Assessing Officer erred in addition of alleged suppressed business profit aggregating to Rs. 11 crores as per the order dated 31st December, 2009 (para 9.2). The first appellate authority, in dealing with this ground, in its order dated 12th October, 2011, concluded that after that consideration of the submissions of the Assessee, in the backdrop of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/was deleted. 10. We find that despite this position emerging from the record and being undisputed, the order under section 263 of the Income Tax Act makes detailed reference to the show cause notice. The show cause notice as also this order passed under section 263 make detailed reference to the claims of the Assessee and which were part of the Appeal before the Commissioner and dealt with by him in his order dated 12th October, 2011. The order of the Commissioner under section 263 dated 29th March, 2012, from paras 8 onwards, makes extensive reference to these aspects. In the circumstances, what further emerges is that not only did the revisional authority purport to revise the Assessing Officer's order, but he purported to deal wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first appellate authority and which was given effect to by the Assessing Officer. All these would denote that something which was very much part and parcel of the appellate authority's order and dealt with extensively therein is now sought to be revised and revisited. Firstly, if the income of the Assessee from the film is Rs. 11,25,00,000/, then, whether the explanation of the Assessee that it is not so deserves to be considered or not by the Assessing Officer is grievance No. 1/ground No. 1 before the first appellate authority. Secondly, if that is taken to be the income of the Assessee and without admitting it to be so the cost of production of the film needs to be deducted by applying Rule 9A of the Income Tax Rules. Thus, that i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
