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TMI Blog2008 (9) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... 997-98 as income from undisclosed sources. As a result of order under s. 263, the AO passed consequential order on 31st Dec., 2007, which was served on the appellant on 9th Jan., 2008. The appellant approached the present counsel for filing an appeal against that assessment order. When the counsel enquired as to whether an appeal was filed against order under s. 263, he was informed by the appellant that no such appeal has been filed. The present counsel, therefore, advised the appellant to file an appeal against order under s. 263. Thus, there has been a reasonable and sufficient cause in not filing the appeal before the Tribunal in time. 2.2 However, the request for condonation of delay was opposed by the learned Departmental Representative. The learned Departmental Representative relied on the order of Tribunal, Chennai (Third Member) Bench in the case of Jt. CIT vs. Tractors Farm Equipments Ltd. (2006) 105 TTJ (Chennai)(TM) 705: (2007) 104 ITD 149(Chennai)(TM). In that case, it has been held that delay can be condoned if it is proved beyond shade of doubt that the appellant was diligent and was not guilty of negligence whatsoever. The learned Departmental Representative su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings). Such an order, in the circumstances of the case, meant that the ITO had accepted the return and assessed the income as nil. In the instant case, proceedings under s. 148 were initiated and these were terminated by the AO by submitting that proceedings are dropped. The learned Authorised Representative has relied on the decision of Chennai Bench in the case of Dewas Silk Mills vs. CIT (supra). In that case, proceedings were dropped after making enquiries. It was held that order under s. 263 is a valid order. On merits, the Tribunal held that order under s. 263 is not valid as the AO has dropped the proceedings after making proper enquiries. 3.4 In the case of J.K. D'Costa (supra), the Hon'ble Delhi High Court was considering as to whether the assessment order in which penalties were not initiated can be revised under s. 263 of the IT Act. That decision is of no help in the present case. Accordingly, it is held that Director of IT (Exemptions) is authorized to revise an order vide which the AO dropped the proceedings. 4. The second grievance of the appellant is that the order of the AO was neither erroneous nor prejudicial to the interest of the Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... federation of all the legal entities of ISKCON in India), which was to be assessed as an AOP at Mumbai) by the Department of IT at Mumbai. Hence, we were under a bona fide belief that our returns are being compiled and filed at Mumbai through ISKCON India. But we have realized that our financial information has been treated by ISKCON Mumbai without our knowledge, as a branch of ISKCON Mumbai and not as a person 'ISKCON' society registered at Bangalore, who is a part of AOP 'ISKCON India' to the tax authorities at Mumbai. However, we are regularly filing our returns at the Registrar of Societies at Bangalore in accordance with the provisions of the Karnataka Societies Registration Act, as an independent society registered under their jurisdiction. Since we always believed that ISKCON Mumbai was acting as a nodal center to file the returns of AOP 'ISKCON India' which included ISKCON Bangalore and ISKCON Mumbai as member constituents along with other ISKCON centers in India, we did not file separate returns under your office. No sooner we realized that our returns are not being recognized by ITO at Mumbai as a separate entity, we discontinued sending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT (Exemptions) has considered the order erroneous and prejudicial to the interest of Revenue on the point that the AO has not made any enquiry regarding opening balance. Assessment for the asst. yr. 1997-98 has been reopened vide reasons recorded on 17th March, 2004. As per the provisions of the Act applicable during financial year 2003-04, the AO could have reopened the assessment for the asst. yr. 1997-98 and subsequent years only. He could not have reopened the assessment for the asst. yr. 1996-97. When the AO is required to make assessment under s. 147 or otherwise, then the AO is supposed to compute the income for that assessment year and to ascertain the tax payable thereon. The AO for the obvious reasons was not legally entitled to reopen the assessment for the asst. yr. 1996-97. Hence, no purpose would have been served for obtaining the details for the asst. yr. 1996-97. The AO applied the mind on the basis of the facts and found that no income has escaped for the asst. yr. 1997-98. The view taken by the AO is one of the possible views and therefore, action under s. 263 cannot be upheld keeping in view the decision of the apex Court in the case of Malabar Industrial Co. L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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