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TMI Blog2016 (11) TMI 1657X X X X Extracts X X X X X X X X Extracts X X X X ..... position of law, may be made to the decision in the case of CIT v. Shri Arbuda Mills Ltd. [1996 (1) TMI 11 - SUPREME COURT ] being in fact clarified, in a similar fact situation, in the case of Herdillia Chemicals Ltd. ( 1995 (12) TMI 411 - BOMBAY HIGH COURT ) , so that the matter can only be said to be no longer res integra , being squarely covered by both, the clear position of law as well as said binding decisions. This is precisely the reason for our stating, at the outset, of the assessee as having no case. The assessee s appeal having been upheld by us as not maintainable, the question of adjudicating its grounds assailing the assessment on merits does not arise. Order u/s.263 filed only on 03.09.2015 which is time barred by 458 days - In our clear view, even as expressed during hearing, the assessee had clearly, and presumably, only on the basis of a legal opinion, taken a conscious decision not appeal against the revision order, passed with reference to and relying on several decisions, including by the Apex Court. No reasonable, much less sufficient, cause has been advanced for condonation of delay We have already expressed that the impugned order stands pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal, holding it as not maintainable as the AO had only given effect to the directions to him by the ld. CIT, relying on the decision by the jurisdictional High Court in Herdillia Chemicals Ltd. v. CIT [1997] 90 Taxman 314 (Bom), reproducing the relevant part thereof (per para 2.9 of his order). The operative/relevant part of his reads as under: 2.10 The aforesaid decision of the Hon ble Jurisdictional High Court is on all fours with the facts of the present appeal. The operative part of the order under section 263 of the Act passed by the Administrative Commissioner in this case, is explicit and ex-facie free from any ambiguity. It states is no uncertain terms that the assessment made is set aside with a clear direction to the Assessing Officer to complete the assessment afresh by taxing interest income of ₹ 1,92,21,567/- (13910069/- + 5311498/-) earned by its units entitled for deduction u/s. 80IC, under the head Income from other sources . There isn t an iota of doubt that a definite finding was recorded in the aforesaid revision order on the issue at hand. There was absolutely no discretion with the Assessing Officer to consider the impugned interest income i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other sources . The directions are plain, clear and unambiguous, leaving no scope for any discretion with the A.O. It is not a case of a total set aside of assessment, but to a limited extent, so that it has to be modified to the stated extent only. The AO in the revised assessment is to interfere with the assessment only to the stated extent and, further, in doing so is only giving effect to the said directions by the ld. CIT. Clause (c) of Explanation 1 to section 263(1) is, again, specific, excluding parallel exercise of jurisdiction by the Administrative and the Appellant Commissioner. Once, therefore, the ld. CIT has, in exercise of his power of revision, held the interest income as assessable under section 56, the matter cannot be re-agitated before or revisited by the Appellant Commissioner, whose view is thus in accordance with the clear mandate of law. Reference in this context, explaining the clear position of law, may be made to the decision in the case of CIT v . Shri Arbuda Mills Ltd. [1996] 231 ITR 50 (SC), being in fact clarified, in a similar fact situation, in the case of Herdillia Chemicals Ltd. (supra), so that the matter can only be said to be no longer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessee to have preferred an appeal, which it does only after the passing of the order by the first appellate authority on 28.08.2015. The very fact that the assessee states of entertaining a bona fide belief of being able to re-agitate matters in assessment and, where unsuccessful, in appeal, itself implies of that being its only grievance. For why else would the assessee, represented by one of the most reputed firm of CAs in India, not file an appeal? Assuming these grounds itself betrays the assessee s case. This, we may though clarify, is independent and apart from our having found no reason for any different interpretation and, thus, no basis for a bonafide belief . In our clear view, even as expressed during hearing, the assessee had clearly, and presumably, only on the basis of a legal opinion, taken a conscious decision not appeal against the revision order, passed with reference to and relying on several decisions, including by the Apex Court. No reasonable, much less sufficient, cause has been advanced for condonation of delay. Reliance for the purpose, even as our decision is based on clear findings of fact, is placed on the decision in the case of State o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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