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TMI Blog2017 (5) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... The return was processed u/s 143(1) of the Act on 03.09.2007 accepting the returned income. Thereafter an order of assessment was passed u/s 144 of the Act determining the total income of the assessee at Rs. 4,66,46,815/-. Two additions were made to the total income of the assessee viz. an addition of Rs. 4,00,000/- which was claimed as commission expenses in determining the business income of the assessee was disallowed for non deduction of tax at source on the payment of commission and another addition of Rs. 4,54,88,000/- was made on account of unexplained cash credit u/s 68 of the Act namely money received on issue of share capital. 3. Against the aforesaid order of assessment the assessee filed an appeal before CIT(A). The CIT(A) vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issues require reconsideration and for that he requested for setting aside to the file of Assessing Officer, so that proper enquiries can be made and proper representation can be made. On the other hand, the Ld. CIT DR Shri T. K. Dutta has not objected to the setting aside of both the issues to the file of Assessing Officer and he conceded the position that assessment was framed u/s. 144 of the Act and even CIT(A) has relied on some wrong conclusion. 4. In the interest of natural justice and fair play, as both issues were adjudicated by lower authorities without providing opportunity of being heard to the assessee as is evident from the orders, we set aside these issues to the file of Assessing Officer to re-adjudicate afresh. In respect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 63 of the Act the assessee pointed out that the original order of assessment u/s 144 of the Act was passed by the AO on 31.12.2008 and in that order the expenses which are set out by CIT in the show cause notice u/s 263 of the Act were accepted and allowed as deduction. The show cause notice u/s 263 of the Act seeks to revise the order dated 31.12.2008 though in the show cause notice a reference has been made to the order dated 14.03.2013 passed by the AO giving effect to the directions of the Tribunal u/s 254 r.w.s.143(3) of the Act. The assessee pointed out that in the order passed u/s 144 of the Act dated 31.12.2008 only two additions were made namely disallowance of commission and addition on account of unexplained cash credit namely re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013 and the provisions of Sec 263(3) the case of the assessee is covered. In respect of the second argument of the assessee regarding the issue having been adjudicated by the Hon'ble ITAT, it may be mentioned that the Hon'ble Tribunal has merely set aside the order of the AO and it has not decided the issues on merits. Hence, the entire case and all the issues were open before the AO and while passing the assessment order after set aside by the Hon'ble ITAT, he has failed to look into the aspect of TDS in respect of payment of freight, loading & unloading charges and clearing and forwarding charges. This makes the order of the AO dtd 14.03.2013 prejudicial to the interest of revenue as well as erroneous. The AO has not examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch as it sought to revise the original order of assessment in the garb of revising the order of reassessment passed u/s 148 of the Act. The Hon'ble Supreme Court held as follows :- "25. We, therefore, are clearly of the opinion that keeping in view the facts and circumstances of this case and, in particular, having regard to the fact that the Commissioner of Income-tax exercising his revisional jurisdiction reopened the order of assessment only in relation to lease equalisation fund which being not the subject of the reassessment proceedings, the period of limitation provided for under sub-section (2) of section 263 of the Act would begin to run from the date of the order of assessment and not from the order of reassessment. The revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges. These items of expenditure was never the subject matter of disallowance in the original order of assessment and was therefore not the subject matter of the dispute before the Tribunal as well as in the proceedings before the AO pursuant to the order dated 10.01.2012. In the garb of revising the order of AO dated 14.03.2013passed u/s 254 r.w.s.143(3) of the Act, the CT was virtually seeking to revise the order dated 31.12.2008 passed by the AO u/s 144 of the Act which is the original assessment order. The period of limitation for an action u/s 263 of the Act in so far as order dated 31.12.2008 would end on 31.03.2011. The impugned order has been passed by CIT on 25.03.2015 which is clearly barred by time in so far the issue sought t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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