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TMI Blog2021 (12) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... ds of disallowances and proceeded to dismiss the appeal preferred by the Revenue on merits. It was thus clear from the aforesaid sequence of events that the order passed by the Commissioner of Income Tax (Appeals) dated 31/01/2007 merged in the order passed by the Tribunal on 29/10/2007 and attained finality. Thus as the order of the Commissioner Income Tax (Appeals) having merged with the order of the Tribunal, there was no scope for the Commissioner of Income Tax to initiate proceedings under Section 263 - As on merger of the order passed by the Commissioner with that passed by the Tribunal, the jurisdiction under Section 263 (1)(c) of the said Act could not have been invoked is settled in view of judgment of this Court in Slum Rehabilitation Authority[ 2019 (4) TMI 64 - BOMBAY HIGH COURT] - Decided in favour of assessee. - INCOME TAX APPEAL NO.37 OF 2009 AND INCOME TAX APPEAL NO.39 OF 2009 - - - Dated:- 6-12-2021 - A. S. CHANDURKAR AND G. A. SANAP, JJ. Shri S. N. Bhattad, Advocate for Appellant. Shri K. P. Dewani, Advocate for respondent. Common Judgment : (Per A. S. Chandurkar, J.) These appeals under Section 260A of the Income Tax Act, 1961 (for shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e being aggrieved by the aforesaid order passed under Section 263 of the said Act preferred appeal before the Income Tax Appellate Tribunal. This appeal along with various other appeals filed by another assessee were heard and decided together on 06/03/2009. It was held that the Commissioner of Income Tax was not justified in invoking his revisional jurisdiction under Section 263 of the said Act with regard to disallowance under Section 80-IB of the said Act. Consequently the penalty levied under Section 271(1)(c) of the said Act was also cancelled. Being aggrieved the Revenue has preferred ITL No.37/2009 challenging the order passed by the Tribunal in IT(SS)A No.13/Nag/2008 for the Assessment Year 2005-06 and ITL No.39/2009 challenging the order passed by the Tribunal in ITA No.380/ Nag/2008 for the same Assessment Year 2005-06. 5. Shri S. N. Bhattad, learned counsel for the Revenue invited attention to the order passed under Section 263 of the said Act and sought to justify the conclusion recorded by the Commissioner that the assessee was not eligible for any incentive under Section 80-IB of the said Act. Such benefit was admissible only to a newly established Small Scale Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on) vs. Slum Rehabilitation Authority (2019) 412 ITR 0521 (Bom), CIT vs. Nirma Chemicals Works (P) Ltd. (2009) 309 ITR 0067 (Guj), CIT vs. Mehana District Co-operative Milk Producers Union Ltd. (2003) 263 ITR 0645 (Guj), Pr. CIT and Anr. vs. H. Nagaraja (2018) 406 ITR 0242 (Karn), CIT vs. Shashi Theatre (P) Ltd. (2001) 248 ITR 0126 (Guj), DCIT vs. Varma Industrial Ltd. (2001) 250 ITR 0472 (Karn), Pr. CIT And Anr. Govt. of India, Ministry of Finance, Dibrugarh and Anr. vs. Oil India Ltd. (2019) 307 CTR 0403 (Gauhati), CIT vs. Shri Arbuda Mills Ltd. (1998) 231 ITR 0050 (SC) and Commissioner of Income Tax vs. Reliance Petroproducts (P) Ltd. AIR 2010 SC 1881. Consequently, it was submitted that if the jurisdiction invoked by the Commissioner under Section 263(1)(c) of the said Act was found to be bad then there would be no question of initiating any penalty proceedings under Section 271(1)(c) of the said Act. He therefore submitted that both the appeals were liable to be dismissed. 7. We have heard the learned counsel for the parties and we have given due consideration to their respective submissions. For answering the substantial question of law as framed, it would be necessary t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance with law and was hence granted. This appellate order was challenged by the Revenue before the Tribunal. In the judgment dated 29/10/2007 the Tribunal subsequently considered the aforesaid two heads of disallowances and proceeded to dismiss the appeal preferred by the Revenue on merits. It was thus clear from the aforesaid sequence of events that the order passed by the Commissioner of Income Tax (Appeals) dated 31/01/2007 merged in the order passed by the Tribunal on 29/10/2007 and attained finality. In other words, the order of the Commissioner Income Tax (Appeals) having merged with the order of the Tribunal, there was no scope for the Commissioner of Income Tax to initiate proceedings under Section 263 of the said Act. The legal position that on merger of the order passed by the Commissioner with that passed by the Tribunal, the jurisdiction under Section 263 (1)(c) of the said Act could not have been invoked is settled in view of judgment of this Court in Slum Rehabilitation Authority (supra) wherein the judgment of the Gujarat High Court in Nirma Chemicals Works (P) Ltd. (supra) was followed. The reliance placed by the learned counsel for the Revenue on the decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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