2021 (2) TMI 732

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..... rned CIT gave the assessee proper opportunity of being heard and passed afresh order. This order was duly upheld by the ITAT discussing all the facets of the merits. Now again the assessee is filing miscellaneous application contending that assessee has not been given proper opportunity by the learned CIT in as much as final order u/s. 263 is on a different ground than that was mentioned in the notice u/s. 263. Hence there is violation of principles of natural justice. We note that notice u/s. 263 is not something which the learned CIT issues in the second round of proceedings before him. Hence, in our considered opinion the assessee is seeking review of the order already passed after duly considering all the facts. This is not permissib .....

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..... In the second round learned CIT noted in his order that due notice has been given to the assessee and assessee's counsel has been duly heard. Thereafter learned CIT passed the order under section 263 of the IT Act. 4. Against this order the assessee appealed before the ITAT. ITAT elaborately dealt with the issues. It also found that learned CIT has given the assessee opportunity. ITAT also found merit in the observation of the learned CIT which were with respect to the merits of the assessee's case. Thereafter ITAT upheld the order of the learned CIT. In his order learned CIT had directed as under:- It is therefore held that the assessee is not entitled for its claim of deduction u/s. 80IB of the Act. The assessment order u/ .....

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..... g the issue back to the file of AO for making enquiry with regard to fulfilment of condition under section 80IB. 9. Now we note that assessee has filed an MA against the ITAT order arising that ITAT has not considered the issue raised. Proper opportunity to the assessee has not been given by the learned CIT while passing the order under section 263 of the lT Act. 10. We find that by filing this miscellaneous application as above the assessee is misusing the process of filing miscellaneous application. In the first round of appeal before the ITAT, on assessee's plea that assessee has not been provided proper opportunity and there has been violation of principle of natural justice the ITAT had already remanded the matter to the lear .....

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