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TMI Blog2021 (3) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... coordinate bench in dismissing the cross objection of the assessee suffers from a mistake apparent from record. Hence the cross objection of the assessee is recalled, registry is directed to fix the same for hearing in due course. - M. A. No. 414/Del/2019. [ in C. O. No. 192/Del/2007 ] [ in ITANo. 2595/Del/2002 ] - - - Dated:- 22-3-2021 - SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI , ACCOUNTANT MEMBER Assessee by : Shri Ajay Vohra, Sr. Adv.; Shri Gaurav Jain, Adv.; Ms. Manisha Sharma, Adv. Revenue by : Shri M. Barnwal, Sr. DR ORDER PER PRASHANT MAHARISHI , A. M. 1. This Miscellaneous Application is filed by the assessee in ITA number 2595/Del/2002 and Cross Objection Number 192/Del/2007 for assessment year 1998-99 decided by the coordinate bench as per order dated 13/11/2018. According to that order the cross objection filed by the assessee in CO number 192/Del/2007 was dismissed. 2. Miscellaneous application filed by the assessee shows that while deciding the above appeal and cross objections, the coordinate bench at paragraph number 20 27, after condoning the delay in filing the cross objection, dismissed the cross objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn Home Care Products Ltd. [2018] 100 taxmann.com 282 (Delhi - Trib.)/[2019] 174 ITD 209 (Delhi - Trib.) The coordinate bench has decided the cross objection filed by the assessee as Under:- 20. We have carefully considered the rival contentions. According to the provisions of section 253 (1) any assessee aggrieved by the orders of the specified authorities may file an appeal before the tribunal. Therefore, there has to be an order by which the assessee is aggrieved with and therefore such grievance of the assessee gives the right to the assessee to file an appeal before the tribunal. Right of filing of the appeal is also granted to the learned assessing officer through the office of the principal Commissioner or Commissioner of income tax under section 253 ( 2) of the act. But only condition is that they must have an objection to any order passed by the specified authority. Therefore, it is necessary that the order must be passed by the specified authority and the learned assessing officer must have objection against that order then only the appeal can be filed by the learned assessing officer. According to the provisions of section 253 (2) of The act, the principal Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d CIT. Similarly, the provisions of section 264 of the income-tax act provides that if any which is prejudicial to the assessee can be revised by CIT. Therefore for such eventuality as it is raised before the us the relevant provisions are the provisions of section 264 of the income-tax act and not in appeal before the co-ordinate bench. Undoubtedly, such application under section 264 of the income-tax act can be made belatedly with that request for condonation of delay. But certainly, same cannot be agitated by the assessee before us in cross objection. 22. Even otherwise if the argument of the learned authorised representative is accepted it will make the provisions of section 263, 264 of the incometax act redundant if the assessment is subject matter of appeal. Clearly the provisions of section 263 and 264 prohibits the issues that are already pending in appeal. 23. The learned that authorised representative has relied upon the decision of the honourable Delhi High Court in case of Bharat General Reinsurance Co. Ltd. (supra). We have carefully considered that decision. The fact of the case was that that assessee included the income in the return for the assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situation where the Revenue has challenged the order of the Deputy Commissioner (Appeals) on the merits regarding the quantum of the tax liability, but the assessee in cross-objections can challenge the order of the Deputy Commissioner not only on the quantum of tax amount but on other points also. On a point of law there is no difference between an appeal and a cross-objection. The only difference if at all there is any is that an appeal can be preferred within 60 days from the date of receipt of the order whereas a cross-objection can be filed within a period of 30 days of the date of service of the appeal by the opposite party. On careful reading of the above decision it is apparent that the contention of the revenue in that appeal was that that the assessee in filing cross objections should have taken only the issues which have been raised by the revenue in its appeal in the cross objection of the assessee. Further in that particular case the assessee in cross objection raise the applicability of the registration of the firm holding when either one of the entities which was the subject matter of dispute before the assessing officer. Therefore, the assessment in that particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore , assessee cannot agitate the taxability of non-compete fees for the 1st time before the tribunal as in no part of the order of Commissioner of appeals has considered and decided the issue of taxability of non compete fees. 7. The issue here is that an order has been passed by the coordinate bench wherein, a fresh claim is raised by the assessee before the coordinate bench, which was neither a matter of dispute before the assessing officer or not even before the learned CIT Appeal, but the assessee raised a cross objection in appeal filed by the revenue raising a fresh claim. To put it simply, assessee asked for an exclusion of any income already shown in the return of income, offered to tax by the assessee, not disputed before the assessing officer, not agitated before the learned CIT A, as nothing decided against the assessee, but in an appeal filed by the revenue, raised a cross objection, stating that the income which has already been offered for taxation in the return of income filed by the assessee, is a capital receipt and not liable for taxation. This was rejected by the tribunal in the above order as per reasons given above. 8. In the miscellaneous ap ..... 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