9911796707
TMI Blog2019 (1) TMI 1407X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted by the Coordinate Bench where it states that the contention regarding the past history and rule of consistency doesn’t help the case of the assessee. In light of above discussions, we are of the considered view that the contention of the ld AR where accepted will amount to a review of the order passed by the Co-ordinate Bench and will fall outside the jurisdiction of the Tribunal u/s section 254(2) of the Act. - M.A. No. 118/JP/2018 (Arising out of ITA No. 330/JP/2016) - - - Dated:- 22-1-2019 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : Shri Mahendra Gargieya (Adv.) For the Revenue : Shri J. C. Kulhari (JCIT) ORDER PER: VIKRAM SINGH YADAV, A.M. The present miscellaneous application has been filed by the assessee against the order of the Co-ordinate Bench in ITA No. 330/JP/2016 dated 05/02/2018. 2. It was submitted by the ld. AR that the Tribunal has dealt with the contention of the assessee as regards the past settled history at page 15 para 12 and has stated that we do not find anything on record to suggest that the issue has been examined in the past from the perspective of section 40A(9). Hence, the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here cannot be any action u/s 263 where the AO has taken a possible view, were relevant but has not at all been referred and /dealt with by the Tribunal while passing the subject order. It was accordingly submitted that the above mistake is apparent from record which call for suitable modification u/s 254(2) of the Act. 5. The ld DR is heard who has submitted that there is no mistake in the order of the Tribunal while confirming the action of the ld CIT u/s 263 of the Act which call for any rectification u/s 254(2) of the Act and hence, the present misc. application should be dismissed. 6. We have heard the rival contentions and perused the material available on record. The ld AR has basically contended that the AO has taken a possible view in the light of the settled past history where the matter was examined and a view formed by the Assessing officer which cannot be termed as erroneous by the ld CIT while invoking her jurisdiction u/s 263 of the Act and the Tribunal while passing the impunged order has not appreciated the same in right perspective and therefore, the matter calls for rectification u/s 254(2) of the Act. In this regard, we refer to the relevant findings of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to accede to the contention of the ld AR regarding change in opinion. 11. It is a case where we find that there is no due and proper application of mind by the AO. The AO having reproduced the entries of general and education reserve as appearing in the profit/loss appropriation account, should have applied his mind to determine firstly, whether the entries in the profit/loss appropriation account, which are below-the-line entries in the accounting parlance, are allowable at first place in the hands of the assessee and secondly, what is the nature and purpose of these reserve and how the same are allowable and under what provisions of the Act. The contention of the ld AR that these are allowable alternatively under section 40A(9) or under 37(1) or the same are divergent of income by overriding title are precisely the matters which the AO should have ordinarily examined in the regular course of assessment proceedings which the AO has failed in the instant case. The same would have been possible had the AO examined the matter at first place which the AO has failed in the instant case. It is clearly a case of non-examination and non-application of mind by the AO and the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d issue was examined in the context of section 40A(9) in the past and now, there is a change in the view, we agree that unless there is change in law or materially different facts, the view adopted in the past should not normally be disturbed. However, in the instant case, we donot find anything on record to suggest that the issue has been examined in the past from the perspective of section 40A(9). Hence, the above said contention of the ld AR regarding rule of consistency cannot be accepted. 14. Regarding the contention of the ld AR that the action under section 263 is not permissible merely on audit objection, we refer to the provisions of section 263 which provides that the ld Pr CIT may call for and examine the record of any proceedings under this Act. The term record has been defined as to include and shall be deemed always to have included all records relating to any proceedings under this Act available at the time of examination by the Pr CIT. In the instant case, it is not disputed that the revenue audit memo is part of the records. The Pr CIT has examined the assessment records as well as revenue audit memo available on record and after examining the same and prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2). However, where there is nothing on record that attention of the Bench was drawn to the written submissions during the course of hearing and where the Tribunal has considered the verbal contentions so advanced by the ld AR, in our view, there is no interference which is called for in terms of section 254(2) of the Act. In the instant case, the attention of the Co-ordinate Bench was drawn to the decision passed by the AO u/s 143(3) for AY 2006-07 and in the said order, there is no discussion regarding the issues which have come up for consideration before the Co-ordinate Bench being the subject matter of impunged order u/s 263, we donot think there is any mistake which has been committed by the Coordinate Bench where it states that the contention regarding the past history and rule of consistency doesn t help the case of the assessee. 8. In light of above discussions, we are of the considered view that the contention of the ld AR where accepted will amount to a review of the order passed by the Co-ordinate Bench and will fall outside the jurisdiction of the Tribunal u/s section 254(2) of the Act. In the result, the Miscellaneous Application filed by the assessee is dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
