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TMI Blog2016 (7) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... use the period of limitation for filing an application for revision u/s.264 of the Act in terms of Sec.264(3) is one year from the date on which the order sought to be revised was communicated to the Assessee. The order of assessment in the present case was passed on 29.12.2010. The period of limitation would therefore end by 29.12.2010. In the given circumstances, the CIT(A) could not have question the maintainability of the application of the Assessee before the DIT(E) u/s.264 of the Act. The effect of the order dated 28.11.2011 is that the order of the AO dated 29.12.2010, ceased to exist and got merged with the order of the DIT(E) passed u/s.264 of the Act. On the date when CIT(A) came to decide the appeals the orders of assessee has already been revised by CIT u/s 264 of the Act and thereby the appeal before CIT(A) were rendered incompetent. In the given facts and circumstances the CIT(A) ought not to have exercised his appellate jurisdiction on the appeal filed by the assessee. As we have already observed that when CIT(A) cannot question the jurisdiction of CIT u/s 264 of the Act on the ground that there was violation of the provision of section 264(4)(c) of the Act. We ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) on 16.11.2012. On this date the assessee filed a letter before CIT(A) praying for withdrawal of the appeal on the ground that the assessee had submitted a petition u/s 264 of the Act to the Director of Income Tax (Exemption), Kolkata. The assessee also pointed out that the Director of Income Tax (Exemption) had also passed an order dated 28.11.2011on the petition filed by the assessee u/s 264 of the Act and enclosed a copy of the said order along with the letter praying for withdrawal of the appeal. 4. It appears that for administrative reasons the appeal filed by the assessee was taken up for consideration by CIT(A)-Jalpaiguri and a notice fixing the date of hearing on 10.01.2013 was received by the assessee. The assessee in response to the aforesaid notice filed a letter dated 10.01.2013 before CIT(A)-Jalpaiguri pointing out that it had already informed that it no longer wants to pursue the appeal and the same was being withdrawn. The assessee also informed about passing of the order u/s 264 of the Act by D.I.T.(E), Kolkata. 5. The CIT(A) was however of the view that there was no power under the Act under which an assessee can withdraw an appeal filed before CIT(A). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) therefore was of the view that order of the AO has to be upheld. Accordingly CIT(A) dismissed the appeal of the assessee and confirmed the order of assessment passed by AO. 6. Aggrieved by the order of CIT(A) the assessee has preferred the present appeal before the Tribunal. The following are the grounds of appeal raised by the Assessee :- 1. That since the Assessee s Appeal was filed before the Ld. CIT (A) XIV Kol as directed by the Ld. A.O. in the Demand Notice u/s.156, the Ld. CIT(A) Jalpaiguri had no jurisdiction to decide the said appeal and consequently the Appellate order passed by him is liable to be set aside and annulled. 2. That the Ld. CIT (A) has erred in holding that the Assessee filed its Return for Asstt. Year 2008-09 on 27.03.2009 and as per the provision of Sec. 139( 4A) such late filing automatically resulted in denial of exemptions U/S 11 of the 1. T.Act. 3. That on a correct interpretation of Sec. 264 (4) (a) and 264 (4)( c) of the 1. T.Act, the Ld. CIT(A) erred in holding that the Assessee s petition u/s 264 was not maintainable. 4. That the Ld. CIT (A) erred in dismissing the Assessee s Appeal summarily instead of deciding its ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision would merge into the revisional order of the Commissioner to the extent of the controversies or issues forming the subject-matter of revision and decided thereby expressly or by necessary implication. In a case where the assessee had filed appeals before the AAC, the revisions before the Commissioner were pending the orders of the Assessing Officer would not merge into the order of the Commissioner. However, by the time the AAC came to decide the appeal, if the revision had stood decided by the Commissioner, then the assessment orders of the Assessing Officer under revision would merge into the order of the Commissioner and, consequently, loose its identity. The same issue which was agitated in appeal before the AAC which stood decided by the Commissioner, the AAC could not decide the appeal re-adjudicating upon the same issue and taking a different view. The pendency of the revision before the Commissioner would not suspend or render in effective the order under revision but with the decision of the Commissioner in revision, the order of the ITO would cease to exist having merged into the revisional order of the Commissioner. 9. Our attention was also drawn to the fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee was prevented by sufficient cause from making the application within that period, admit an application made after the expiry of that period. (4) The Commissioner shall not revise any order under this section in the following cases- (a) where an appeal against the order lies to the Deputy Commissioner (Appeals) or to the Commissioner (Appeals) or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired, or, in the case of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal, the assessee has not waived his right of appeal; or (b) where the order is pending on an appeal before the Deputy Commissioner (Appeals)]; or (c) where the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal. (5) Every application by an assessee for revision under this section shall be accompanied by a fee of five hundred rupees. (6) On every application by an assessee for revision under this sub-section, made on or after the 1st day of October, 1998, an order shall be passed within one year from the end of the financial year in which such application is made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility of an application made by the assessee u/s 264 of the Act. The admitted position in this case is that against the order of assessment the assessee had filed an appeal before CIT(A). As early as 02.09.2011, the assessee sought to withdraw the appeal before CIT(A) by filing a letter in the office of the CIT(A)-XIV, Kolkata. On 06.09.2011 the assessee filed a petition u/s 264 of the Act against the order of assessment dated 29.12.2010. The CIT considered the petition u/s 264 of the Act and passed an order dated 28.11.2011. At the time of hearing before CIT(A), Jalpaiguri on 10.01.2013 the assessee again brought to the notice of the CIT(A) of the facts with regard to the petition u/s 264 of the Act and the order passed by CIT u/s 264 of the Act. The CIT was also informed that pursuant to the order u/s 264 of the Act the AO has also passed an order giving effect dated 29.12.2011. The CIT(A)-XIV, Kolkata, if he had desired to exercise his powers of enhancement ought to have informed the Assessee that he wishes to exercise powers of enhancement and therefore the request for withdrawal of the appeal would not be acceded to. This is because the period of limitation for filing an appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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