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TMI Blog2016 (5) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. Thus, it means that an amount of ₹ 17,50,008/- was already considered for addition in regular assessment year 1999-2000 consequent to the order passed u/s.263 of the Act. Being so, the same amount cannot be considered in the block assessment which amounts to double addition. Accordingly, this addition is deleted. - Decided in favour of assessee - IT(SS)A No. 7/Mds/2013 - - - Dated:- 6-4-2016 - SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER For The Appellant : Shri Philip George For The Respondent : Shri Pathlavath Peerya, CIT ORDER PER CHANDRA POOJARI, ACCOUNTANT MEMBER This appeal by the assessee is directed against the order of the Commissioner of Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t considered the film loss as claimed by the assessee. 2.CIT(A) has summarily rejected the assesse's film loss claim stating, There is no merit in the ground as the assessing officer computed the undisclosed income on the net asset basis . 3.ITAT order for the AY1998-99 has given its verdict only on the issue of the same income being taxed twice but it did not say anything about the film loss. 4.Though the assessee states that the film loss was not considered during Block Assessment proceeding by the then Assessing Officer, there is no any evidence to highlight that the assesse film loss was rejected by then Assessing Officer. 5.It is a new issue raised by the assesse in the set aside proceeding. Since it is a n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer is emphatically stated in these decisions. In the case of Kanpur Coal Syndicate [1964] 53 ITR 225 (SC), the apex court dealt with sections 3, 31(3)(b), (4), 33(4) of the Indian Income-tax Act, 1922, which is similar to section 251(1)(a) of the Income-tax Act, 1961. The apex court in that case observed that the Appellate Assistant Commissioner has plenary powers in disposing of an appeal. The scope of his power is coterminous with that of the Income-tax Officer. He can do what the Income-tax Officer can do and also direct him to do what he has failed to do. In the case of Jute Corporation of India Ltd. [1991] 187 ITR 688 the apex court held that the Income-tax Act did not place any restriction or limitation on the exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r ought to have given an opportunity to place the materials as required under the Rules and ought to have adjudicated the issue without rejecting the same on the premise that it has not been taken before. The action of the appellate authority, in rejecting the ground as not being taken before the lower authority, is nothing but negation of the power that vests with him and also against the well-recognized principles of law. The order of the appellate authority has been affirmed by the Tribunal. Hence, we are of the view that the assessee has to succeed on that ground. There is a line of decisions to show that the power of the Appellate Assistant Commissioner/Commissioner (Appeals) is coterminous with that of the Assessing Officer and they a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of this, the CIT(Appeals) dismissed the ground of appeal of the assessee. Against this, the assessee is in appeal before us. 12. We have heard both the parties and perused the material on record. The amount of ₹ 17,50,008/- is already taxed in the asst. year 1999-2000 vide assessment order dated 22.3.2005 passed u/s.143(3) read with sec.263 of the Act. This order of the assessment was subject matter before the CIT(Appeals). The CIT(Appeals) vide order dated 31.12.2012 observed that the assessment order giving effect to the order of the CIT u/s. 263 cannot be appealed against before him and he dismissed the appeal of the assessee. Thus, it means that an amount of ₹ 17,50,008/- was already considered for addition in r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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