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TMI Blog2018 (11) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... en in the original assessment order dated 31.10.2003 for which limitation to pass an order has expired on 31.03.2010. Therefore, the impugned order dated 15.10.2010 is clearly barred by limitation and the order of the CIT(A) is not only correct on facts but also in law. - Decided against revenue - I.T.A. No.2513/DEL/2013 - - - Dated:- 7-9-2018 - Shri G.D. Agrawal, Hon ble President And Shri Amit Shukla, Judicial Member For the Appellant : Shri Vijay Verma, CIT-DR For the Respondent : Shri K.M. Gupta, Adv. Ms. Poonam Ahuja, CA ORDER PER AMIT SHUKLA, J.M.: The aforesaid appeal has been filed by the Revenue against the impugned order dated 06.02.2013, passed by Ld. CIT (Appeals), Bareilly u/s.154/251/143(3) for the Assessment Year 2003-04. In the grounds of appeal, the Revenue has challenged the action of the ld. CIT (A) holding that proceedings initiated u/s.154 is barred by limitation. The relevant ground raised reads as under: - 1. In the facts and circumstances of the case, Ld. CIT(A) has erred in allowing relief to the assessee by holding that the proceeding initiated u/s.154 has been barred by limitation whereas the AO has clearly held in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Events 1. 27/11/2003 Return filed at Book Profit of ₹ 35,95,27,137/- u/s.115JB. 2. 31.03.2006 Assessment completed at book profit of ₹ 37,55,50,511/-u/s.115JB. Income under normal provision was assessed at Nil after setting off brought forward unobserved depreciation of ₹ 35,93,46,010/-. 3. 26.07.2007 Application u/s. 154 was filed by the assessee vide application dated 26.07.2007. 4. 17.03.2008 Order u/s.154 was passed on the said application dated 26.07.2007 5. 25.06.2008 Appeal filed against order u/s.143(3) was decided 6. 12.08.2008 02.08.2010 Assessing Officer passed order giving effect of order of ld. CIT(A) u/s.251/143(3)/154 at Nil income. The book profit u/s.115JB remained same at ₹ 37,55,50,510/-. 7. 05.08.2010 Notice u/s.154 was issued against order dated 2.8.2010 which was in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to the file of the AO. The AO passed order u/s 251/143(3)/154 of the Act dated 12.08.2008 and 02.08.2010 giving effect to the appellate order supra. The assessing officer, thereafter, issued notice u/s 154 of the Act seeking to rectify the order dated 2.8.2010 on various grounds. The AO accordingly passed the order dated 15.10.2010 u/s 154 rectifying the book profit of the appellant at ₹ 64,09,00,500/-. The assessing officer issued notice u/s 154 for the year under appeal on 5.8.2010 to rectify the appeal effect in respect of the issues which were not raised by the appellant in appeal and not dealt with by the CIT (A). The rectification was in fact proposed to the original assessment order which was completed vide order dated 31.03.2006. The AR before the AO stated that proposed rectification is time barred and void-ab-initio as the original order was passed on 31.3.2006. The AO did not accept this plea of the assessee-appellant and passed the order u/s 154. In this back ground of the case and also the various judicial pronouncement cited by the appellant, it is clear that the issue before the Commissioner of Income-tax (Appeals) or order passed u/s 154 by the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed the appeal of the assessee after restoring some of the issues to the file of the Assessing Officer. The issue for which present rectification has been done by the Assessing Officer was neither the subject matter of appeal before the ld. CIT(A) nor there was any direction to the Assessing Officer to examine or to investigate the issue of deferred tax or withdrawal from revaluation reserve for book profit. In the order giving effect by the Assessing Officer vide order dated 02.08.2010, the book profit was computed at ₹ 37,55,50,511/-, i.e., the computation of book profit was not tinkered with from the original assessment order. The Assessing Officer vide notice issued u/s.154 dated 05.08.2010 is now seeking to rectify the appeal effect order in respect of the issues which was neither raised by the assessee nor has been dealt by the ld. CIT(A), and therefore, the learned Assessing Officer could not have tinkered with such an order dated 15.10.2010. Section 154(7) provides a time limit of four years which reads as under: Section 154(7)- Save as otherwise provided in section 155 or sub- section (4) of section 186, no amendment under this section shall be made after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order as the case may be can be either original order or amended order or rectified order depending upon the fact as to in which order Assessee is seeking rectification. To read it as if, once rectified order is passed, original order would disappear, would result in nullifying the effect of word including in the observations made by Supreme Court, while reading meaning of word order in Section 54 (7) of Act 1961. 28. In our case there may exist more than one orders. As is evident from the fact that Section 154 (7) used expression order sought to be amended meaning thereby for the purpose of attracting Section 154 (7), such order which is sought to be amended, would determine period of limitation. 29. In the present case, subsequent orders dated 31.12.2009 and 25.01.2011 were not in respect to assessment of other items but confined to limited issue of long term capital gain since that was the only aspect whereupon, Tribunal has remanded matter to A.A. Issue of set off etc. was not subject matter of consideration before A.A. when he passed orders dated 31.12.2009 and 25.01.2011. Assessee, in fact, wanted amendment in the original order dated 31. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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