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TMI Blog2015 (10) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... ted December 19, 2013. The order dated December 17, 2011 which was sought to be rectified, did not exist. The assessee in response to the notice under section 263 had brought this matter to the notice of the Commissioner of Income-tax but the Commissioner of Income-tax without considering the submissions, passed order under section 263 for initiating proceedings de novo which is not legally valid and is not based upon the facts of the present case. Commissioner of Income-tax had no jurisdiction to pass order under section 263 against the order dated December 17, 2011 which already stood merged with the order under section 154 dated December 19, 2013. - Decided in favour of assessee. - I.T.A.No. 1136/Del/2014 and I.T.A. No.1136 /Del/2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17, 2011 was already merged with the rectified order dated December 19, 2013 therefore, the Commissioner of Income-tax could not have issued notice under section 263 of the Act for rectifying order dated December 17, 2011. He further submitted that though notice under section 263 only talked about the omission of applying the provisions of section 50C but the Commissioner of Income-tax set aside the entire assessment order and directed the Assessing Officer to complete the assessment of the assessee de novo and in this respect, our attention was invited to paper book page 10 where a copy of concluding paragraph of the Commissioner of Income-tax order was placed. The learned authorised representative submitted that in view of the direction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011, which on the date of issue of notice, did not exist as it had already got merged with the rectification order passed on December 19, 2013. 5. We have heard rival parties and have gone through the material placed on record. The stay application was originally fixed for hearing on May 9, 2014 and it was felt by the Bench that instead of considering stay against proceedings for fresh assessment, the appeal filed by the assessee against order under section 263 can be disposed of. Therefore the appeal was preponed for hearing and on May 16, 2014, the appeal of the assessee was heard on merits. We find that assessment in this case was originally completed under section 143(3) on December 17, 2011 and the order was rectified under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Assessing Officer and not the one already passed and rectified, i.e., original assessment order dated March 13, 1987. Once, the original order stands rectified, then it loses its identity at least to the extent it stands rectified. In such circumstances, the Commissioner of Income-tax should have invoked his suo motu powers under section 263 against the subsequent rectified order dated March 14, 1989, if he was of the view that the same is erroneous and prejudicial to the interests of Revenue. Therefore, Tribunal made no mistake in coming to a conclusion that the order of Commissioner of Income-tax passed under section 263 which had the effect of setting aside of the assessment order dated March 13, 1987, is without jurisdiction. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... block assessment order was passed on February 28, 2002 this was taken in appeal by the assessee and after the Commissioner Income-tax (Appeals) had partially allowed the appeal, the Assessing Officer giving effect to the appellate order, passed his order dated March 28, 2003, without levying any surcharge. But this order, according to us, did not survive because the Assessing Officer subsequently passed the order dated June 30, 2003, under section 154. It is clear that there cannot be two assessment orders in respect of the same assessee for the same assessment period. When the Commissioner issued the notice under section 263, he sought to revise the order dated March 28, 2003 which had already been superseded by the order dated June 30, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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