{"id":19405,"date":"2023-03-30T12:30:45","date_gmt":"2023-03-30T07:00:45","guid":{"rendered":"https:\/\/gstguntur.com\/?p=19405"},"modified":"2023-03-30T12:32:21","modified_gmt":"2023-03-30T07:02:21","slug":"appeals-and-revisions-ca-final-dt-question-bank","status":"publish","type":"post","link":"https:\/\/gstguntur.com\/appeals-and-revisions-ca-final-dt-question-bank\/","title":{"rendered":"Appeals and Revisions \u2013 CA Final DT Question Bank"},"content":{"rendered":"

Appeals and Revisions \u2013 CA Final DT Question Bank<\/a> is designed strictly as per the latest syllabus and exam pattern.<\/p>\n

Appeals and Revisions \u2013 CA Final DT Question Bank<\/h2>\n

Question 1.
\nDoes the Income-tax Appellate Tribunal have the following powers?
\n(i) Power to allow the assessee to urge any ground of appeal which was not raised by him before the CIT(A);
\n(ii) Power to review its own order. [CA Final May 2010] [4 Marks]
\nAnswer:
\nPowers of ITAT in respect of the situations given are as under:
\n(i) Supreme Court in the case of National Thermal Power Co. Ltd. held that the tribunal is confined only to issues arising out of the appeal before CIT (A) is too narrow a view to take of the powers of the Tribunal. It has the power to allow the assessee to urge any ground not raised before the CIT(A). ITAT can entertain new questions raised before it for the first time so long as the relevant facts are on record in respect of the same.<\/p>\n

In view of the above said judgment, ITAT can allow the assessee to urge any ground of appeal which was not raised by him before the CIT(A).<\/p>\n

(ii) Bombay High Court in the case of Earnest Exports Ltd; held that ITAT cannot review its order passed u\/s 254(1). Sec. 254(2) is not a carte blanche for the tribunal to change its own view by substituting a view which it believes should have been taken in the first instance. The High Court observed that power u\/s 254(2) is limited to rectification of mistake apparent from record and thus, the tribunal must restrict itself within those parameters.<\/p>\n

In view of the above judgment, Appellate Tribunal review its own order.<\/p>\n

\"Appeals<\/p>\n

Question 2.
\nIf an assessee fails to make a claim for any deduction m the return of income, he loses his opportunity for claiming such deduction at the assessment stage or subsequent stage. Do you agree with the proposition? [CA Final Nov. 2011] [4 Marks]
\nAnswer:
\nWhere the assessee fails to claim deduction in the return of income, he may claim such deduction through following ways:
\n(i) By filing a revised return within the time limit, the assessee can claim deduction which was not claimed at the time of filing original return of income.<\/p>\n

(ii) In the case of Jute Corporation of India Ltd., the Supreme Court held that a claim for deduction can be admitted by the CIT(A) even if no claim for such deduction was made in the ROI or at the time of assessment proceedings, if the CIT(A) is satisfied that such a ground could not have been raised at the time of filing of return or at the time of making of the assessment order and such ground became available because of change in law or change in circumstances. So, the assessee may claim deduction before the CIT(A) by raising the additional ground.<\/p>\n

(iii) In the case of National Thermal Power Co. Ltd., the Supreme Court held that the ITAT can entertain new questions raised before it for the first time so long as the relevant facts are on record in respect of the same. So, the claim of deduction can be allowed ITAT even if such an issue was not raised before the lower authorities.<\/p>\n

(iv) The assessee may also claim such deduction u\/s 264 before the CIT, if the same has not been allowed by the A.O.<\/p>\n

Therefore, the proposition that any deduction not claimed in the return of income, cannot be claimed at the assessment stage or subsequent stage is not fully true.<\/p>\n

\"Appeals<\/p>\n

Question 3.
\n\u201cSVS Propcon\u201d did not make a claim of 20 lakhs in the return of income filed for A.Y. 2021-22 which was disallowed in the previous assessment year under section 43B. However, the said claim was also not considered by the Assessing Officer during assessment proceedings on the ground that no revised return was filed. Can the assessee now make such claim before the appellate authority? [CA Final Nov. 2013] [4 Marks]
\nAnswer:
\nYes, the assessee is entitled to raise additional claims before the appellate authorities.<\/p>\n

The Supreme Court in the case of National Thermal Power Co. Ltd., held that the ITAT can entertain new questions raised before it for the first time so long as the relevant facts are on record in respect of the same.<\/p>\n

Question 4.
\nExamine the correctness of the following statements in the context of the provisions of the Income-tax Act, 1961. High Court has an inherent power under the Income-tax Act, 1961, to review an earlier order passed on merits.\u00a0 \u00a0[CA Final Nov. 2014] [2 Marks]
\nAnswer:
\nSupreme Court in the case of Meghalaya Steels Ltd. observed that there is nothing in article 226 of the Constitution to preclude a High Court from exercising the power of review which is inherent in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Therefore, where the High Court commits any error in his order, which violates the law of natural justice, it can review its order.<\/p>\n

However, as a general rule, no authority can review its order. The High Court cannot review its earlier order if there is no error in the same. The order of High Court can be reviewed by Supreme Court if an appeal is filed to Supreme Court against the order of High Court.<\/p>\n

\"Appeals<\/p>\n

Question 5.
\nArihant Ltd. filed an appeal to the Commissioner (Appeals) against the order of assessment made by the Assessing Officer. The appeal was allowed by the Commissioner (Appeals). The assessee later found that he was entitled to deduction of \u20b9 30,000 as bad debt u\/s 36(1)(vii), which the had forgotten to claim and the related amount was also not allowed by the Assessing Officer in the course of assessment. Further, the issue of deduction was not raised by the assessee in appeal before the Commissioner (Appeals) and hence it was also not considered by him in the said appeal. Subsequently, Arihant Ltd. applied to Commissioner for revision u\/s 264, to allow such deduction. Examine the power of the Commissioner to grant relief to the assessee u\/s 264, in such a case. [CA Final Nov. 2014] [4 Marks]
\nAnswer:
\nAs per Sec. 264, the Commissioner shall not revise an order which has been made the subject of an appeal to the Commissioner (Appeals). Therefore, the concept of Total Merger shall apply.<\/p>\n

Also, the Supreme Court in the case of Hindustan Aeronautics Ltd. held that CIT has no power to revise any order u\/s 264, if the order has been made subject to an appeal to the Appellate Tribunal, even if the relief claimed in the revision is different from the relief claimed in the appeal and irrespective of the fact whether the appeal is by the assessee or by the Department.<\/p>\n

In view of this, the Commissioner cannot exercise his powers u\/s 264 to revise the order of assessment and allow the deduction claimed by Arihant Ltd. in his application.<\/p>\n

\"Appeals<\/p>\n

Question 6.
\nCan Commissioner (Appeals) refuse to admit an appeal even though such appeal is filed within time? [CA Final Nov. 2015] [3 Marks]
\nAnswer:
\nAs per section 249(4), the CIT(A) can refuse to admit an appeal, even though such appeal is filed within the stipulated time, where at the time of filing of the appeal:
\n(a) In a case where a ROI has been filed by the assessee, the assessee has not paid the tax due on the income returned by him; or
\n(b) In a case where no ROI has been filed by the assessee, the assessee has not paid an amount equal to the amount of advance tax which was payable by him.<\/p>\n

However, in case (b), the assessee\/appellant can apply to the CIT(A) for exemption from the requirement of prepayment of advance tax. The CIT(A) may, for any good and sufficient reason to be recorded in writing, exempt him from the said requirement.<\/p>\n

Question 7.
\nDiscuss the correctness or otherwise of the following statements with reference to the provisions of the income-tax Act, 1961:
\n(i) An appeal before Income-tax Appellate Tribunal cannot be decided in the event of difference of opinion between the Judicial Member g and the Accountant Member on a particular ground.
\n(ii) A High Court does not have an inherent power to review an earlier order passed by it on merits. [CA Final Nov. 2015, May 2013, Nov. 2012, Nov. 2011] [3 Marks]
\nAnswer:
\n(i) The statement is incorrect. As per Sec. 255, in the event of difference in opinion between the members of the Bench of the Tribunal, the matter shall be decided on the basis of the opinion of the majority of the members. in case the members are equally divided, they shall state the point or points of difference to the President of ITAT and the case shall be referred by the President of the Tribunal for hearing on such point by one or more of the other members of the Tribunal. Such point or points shall be decided according to the opinion of majority of the members of the Tribunal who heard the case, including those who had first heard it.<\/p>\n

(ii) Supreme Court in case of Meghalaya Steels Ltd. (SC) observed that there is nothing in article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Therefore, where the High Court commits any error in his order, which violates the law of natural justice, it can review its order.<\/p>\n

However, as a general rule, no authority can review its order. The High Court cannot review its earlier order if there is no error in the same.<\/p>\n

\"Appeals<\/p>\n

Question 8.
\nMr. Shyam had e-filed his income-tax return for A.Y. 2021-22 within the due date declaring a total income of \u20b9 9,50,000. Such total income, inter alia, includes dividend from Indian companies of \u20b9 50,000 and long term capital gains on sale of shares of \u20b9 2,00,000. However, Mr. Shyam correctly disclosed both such incomes in the schedule of exempt income. Consequently, the said return got processed u\/s 143(1) denying both the above exemptions and intimation was served on Mr. Shyam raising a demand of tax. After receipt of said intimation, assessee filed a revised return but time limit of filing revised return u\/s 139(5) had lapsed and such revised return was held invalid. Assessee filed for rectification u\/s 154 which was also rejected by A.O. Decide the correctness of action of the A.O. [CA Final May 2016] [4 Marks]
\nAnswer:
\nThe facts of the case are similar to the facts in Sanchit Software and Solutions Pvt. Ltd. y. CIT (2012), wherein the Bombay High Court observed that the entire object of administration of tax is to secure the revenue for the development of the country and not to charge the assessee more tax than which is due and payable by the assessee.<\/p>\n

An error was initially committed by the assessee while e-filing his return. Incomes which were exempt ought not to have been shown as part of his total income. However, the assessee had shown the impugned amounts as exempt, in the schedule of exempt income. While processing such return under section 143(1)(a), the system could not have detected This error and hence was processed, accepting the income returned by the assessee. The Assessing Officer, however, cannot take advantage of a mistake committed by the assessee.<\/p>\n

In the case on hand, since there is an error on the face of the intimation u\/s 143(1), the rectification hied u\/s 154, obviously within the stipulated time limit, cannot be rejected by the A.O. Hence, the action of the A.O. is not correct.<\/p>\n

\"Appeals<\/p>\n

Question 9.
\nD, an individual, filed his return of income for the A.Y. 2021-22 erroneously offering for taxation, interest received from notified Relief Bonds exempt u\/s 10(15), in the said return. The A.O. completed the assessment u\/s 143(3) on 20.12.2021 accepting the income returned by D. D had furnished complete particulars relating to the interest Income in the return of income. D approaches you for advice regarding the steps to be taken to secure exemption of the income. Advice D about the various remedies available under the Income-tax Act, 1961 for the redressal of his grievance. [CA Final May 2017] [3 Marks]
\nAnswer:
\nD can file an appeal under section 246A, against the order of assessment, to the Commissioner (Appeals). The law is well settled that an appeal can be filed by an assessee even against inclusion in assessment, of such income erroneously included by him in the return of income. Reliance is 1 placed on the decision of the Delhi High Court in CIT v. Bharat General Reinsurance Co. Ltd. (1971).<\/p>\n

If an assessee makes a mistake in submitting a return of income and submits to be assessed on a particular income before the assessing authority, he is not estopped or precluded by law from preferring an appeal and showing to the appellate authority that the income is, in fact, either wholly or partly, not exigible to tax. If such a contention is taken, it is the duty of the appellate authority to examine the matter and determine the proper tax [ leviable. There is no question of invoking the doctrine of estoppel in such a case [Narsepalli Oil Mills v. State of Mysore (1973)(Mvs.)]<\/p>\n

In the alternative, D can file a revision petition under section 264 with the Principal Chief Commissioner or Chief Commissioner or Principal Com-missioner or Commissioner of Income-tax seeking exemption of interest from Relief Bonds, not claimed in the return of income and not allowed in the order of assessment.<\/p>\n

The other course of action D could take is to file an application under section 154 with the Assessing Officer, seeking rectification of the order of assessment made. The consistent judicial view is that exemption not claimed by the assessee and not allowed by the Assessing Officer, though the material relating thereto was in the return of income, constitutes a mistake apparent from the record within the meaning of section 154.<\/p>\n

\"Appeals<\/p>\n

Question 10.
\nMrs. Santosh filed her return of income for the A. Y. 2021-22 declaring total income of \u20b9 3.15 Lakhs. The return was processed u\/s 143(1) and later, the case was selected for scrutiny and statutory notice u\/s 143(2) was issued. The A.O, after being satisfied with the replies given for the Inquires, completed the assessment by accepting the declared income. Subsequently, the Commissioner invoked revisionary jurisdiction u\/s 263, holding that the A.O. had not made enquiry properly.<\/p>\n

Is Invoking of revisionary jurisdiction u\/s 263 justified? [CA Final May 2017] [4 Marks]
\nAnswer:
\nIssue involved: The issue under consideration is that whether mere non-mention or non-discussion of enquiry made by the A.O. in the assessment order justifies invoking of revisionary jurisdiction u\/s 263 by the Commissioner.<\/p>\n

Provisions Applicable: As per Explanation 2 to Sec. 263(1), where the Commissioner is of the opinion that the order passed by the A.O. is with-out making enquiries and verification which should have been made, then such order shall be deemed to be erroneous insofar as it is prejudicial to the interests of the revenue and in such a case, Commissioner can invoke revisionary jurisdiction u\/s 263.<\/p>\n

Analysis: The facts of the case are similar to the facts in CIT v. Krishna Capbox (P) Ltd. (2015), where the Allahabad High Court observed that in a case where all the necessary enquiries were made, mere non-discussion or non-mention in the assessment order cannot lead to the assumption that the A.O. did not apply his mind or that he had not made any enquiry on the subject for the Commissioner to invoke revisionary jurisdiction u\/s 263. Where the assessee has satisfactorily responded to the queries raised during the assessment proceedings, the mere fact that it is not dealt with in the assessment order would not lead to a conclusion that proper enquiry was not made.<\/p>\n

Conclusion: In this case, if it is assumed that the necessary enquiries were made by the A.O., but the CommissionerHias invoked revisionary jurisdiction u\/s 263 merely due to non-discussion of non-mention of the same in the assessment order, then, as per Allahabad High Court Ruling, where necessary enquiries were made by the A.O. and satisfactorily replies were given by Mrs. Santosh, the action of the Commissioner in invoking revisionary jurisdiction u\/s 263 on the ground that the A.O. had not made enquiry properly is not justified.<\/p>\n

\"Appeals<\/p>\n

Question 11.
\nMr. T prefers appeal with CIT(A) after receiving assessment order u\/s 143(3). After filing his appeal, he realizes that certain Important issues were not raised in the statement of facts and grounds of appeal submitted. The appellant wants to produce additional evidences before the CIT(A). State the circumstances where the appellant, shall be entitled to produce additional evidence I.e. documentary, before the CIT(A) other than the evidence produced during the proceedings before the A.O. [CA Final Nov. 2017, Nov.2008] [4 Marks]
\nAnswer:
\nAs per Rule 46A, the assessee shall not be entitled to produce additional evidence before the CIT(A) except in the following circumstances:<\/p>\n

(a) where the A.O. has refused to admit the evidence which ought to have been admitted; or
\n(b) where appellant was prevented by sufficient cause from producing the evidence which was called upon by the A.O.; or
\n(c) where the appellant was prevented by sufficient cause from producing before the A.O. any evidence which is relevant to any ground of appeal; or
\n(d) where A.O. made the impugned order without giving sufficient opportunity to the appellant.<\/p>\n

However, the CIT(A) must record in writing the reasons for admission of additional evidence.<\/p>\n

The CIT(A) shall not admit any additional evidence produced unless the Assessing Officer has been given a reasonable opportunity:<\/p>\n

    \n
  1. to examine the evidence or document or to cross examine the witness produced by the appellant, or<\/li>\n
  2. to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the appellant.<\/li>\n<\/ol>\n

    \"Appeals<\/p>\n

    Question 12.
    \nThe Assessing Officer has made two additions in the assessment of Rohit & Co. (sole proprietorship firm):<\/p>\n

      \n
    1. Disallowance u\/s 43B of 10 lakhs<\/li>\n
    2. Unexplained cash credits of \u20b9 80 lakhs<\/li>\n<\/ol>\n

      The firm filed an appeal before CIT(A) with respect to the second addition only. The CIT(A) confirmed the addition. Further, the assessee has filed an appeal to the Appellate Tribunal w.r.t. addition of unexplained cash credit against the order of CIT(A). The Appellate Tribunal has also confirmed the addition. He then preferred the revision petition before PCIT u\/s 264 for disallowance u\/s 43B. The petition has been rejected on the ground that the assessment was subject matter of an Appellate Tribunal. Is the petition maintainable? [CA Final May 2018 (Old Syllabus), Nov. 2002, Nov. 2001] [4 Marks]
      \nAnswer:
      \nAs per Sec. 264, any order, other than an order to which section 263 applies passed by an authority subordinate to the PCCIT or CCIT or PCIT or CIT, can be revised by the PCCIT or CCIT or PCIT or CIT either on an application by the assessee or on his own motion.<\/p>\n

      However, the order passed by an authority subordinate to the PCCIT or CCIT or PCIT or CIT cannot be revised which is a subject matter of an appeal, or against which an appeal lies before the CIT (A) or the ITAT, but no such appeal has been actually made though the period for filing such appeal has not expired or the assessee has not waived his right of appeal. Therefore, u\/s 264, the concept of total merger shall apply.<\/p>\n

      Also, the Supreme Court in the case of Hindustan Aeronautics Ltd. held that CIT has no power to revise any order u\/s 264, if the order has been made subject to an appeal to the Appellate Tribunal, even if the relief claimed in the revision is different from the relief claimed in the appeal and irrespective of the fact whether the appeal is by the assessee or by the Department.<\/p>\n

      In this case, Rohit & Co. has filed an appeal before the CIT(A) with respect to addition made of unexplained cash credits of \u20b9 80 lakhs by the A.O. However, CIT(A) confirmed the addition and therefore, the firm further filed an appeal to Appellate Tribunal. The Appellate Tribunal also confirmed the addition. The firm then preferred the revision petition before PCIT u\/s 264 for disallowance u\/s 43B but the petition has been rejected on the ground that the assessment was the subject matter of appeal to the Appellate Tribunal.<\/p>\n

      Since, the order in respect of which the petition is filed has been the subject matter of appeal before the Appellate Tribunal, it cannot be revised u\/s 264. Therefore, the petition filed by the Rohit & Co. is not maintainable.<\/p>\n

      \"Appeals<\/p>\n

      Question 13.
      \nAUM Enterprises, a partnership firm filed its return of income for the A.Y. 2018-19 on 30-07-2020. The assessment u\/s 143(3) was completed on 15th June, 2020 and the A.O. made two additions to the income of assessee namely,<\/p>\n

        \n
      1. Addition of \u20b9 8 Lakhs for unexplained cash credit u\/s 68 and<\/li>\n
      2. Addition of \u20b9 3 Lakhs u\/s 40(a)(ia) due to ‘non-furnishing of the evidence of TDS payment.<\/li>\n<\/ol>\n

        The assessee being aggrieved contested the addition of \u20b9 8 Lakhs u\/s 68 and appeal to the CIT(A). The appeal was decided on 5th January, 2021 against the assessee.<\/p>\n

        Now, the assessee seeks your advice as to whether it should apply for revision to CIT u\/s 264 or for rectification u\/s 154 to the A.O. as regards disallowance u\/s 40(a)(ia). Advise? [CA Final May 2018 (New Syllabus), May 2010] [4 Marks]
        \nAnswer:
        \nAs per Sec. 264, any order, other than an order to which section 263 applies, passed by an authority subordinate to the PCCIT or CCIT or PCIT or CIT, can be revised by the PCCIT or CCIT or PCIT or CIT either on an application by the assessce or on his own motion.<\/p>\n

        However, the order passed by an authority subordinate to the PCCIT or CCIT or PCIT or CIT cannot be revised which is a subject matter of an appeal, or against which an appeal lies before the CIT(A) or the ITAT, but no such appeal has been actually made though the period for Filing such appeal has not expired or the assessee has not waived his right of appeal. Therefore, u\/s 264, the concept of total merger shall apply.<\/p>\n

        In this case, AUM Enterprises has filed an appeal before the CIT(A) in respect of addition made of \u20b9 8 lakhs u\/s 68 by the A.O. However, the CIT(A) has passed an order against the assessee. Since, the order has been the subject matter of appeal, the assessee cannot make a revision petition u\/s 264 in respect of disallowance u\/s 40(a)(ia).<\/p>\n

        As per Sec. 154, with a view to rectify any mistake apparent from record, an income-tax authority may amend any order passed by it. Also, Sec. 154 provides that where any matter has been considered and decided in any proceedings by way of appeal or revision, then rectification can be made of any matter except the matters which have been considered and decided in appeal\/revision. Therefore, u\/s 154, Doctrine of Partial Merger will be applicable.<\/p>\n

        Therefore, it is possible for the AUM Enterprises to make an application for rectification in respect of disallowance u\/s 40(a)(ia) u\/s 154, since the time limit of 4 years has also not expired.<\/p>\n

        \"Appeals<\/p>\n

        Question 14.
        \nAssessment of Bhajan Ltd. was completed u\/s 143(3) with an addition of \u20b9 15 lakhs to the returned income. The assessee-company preferred appeal before the Commissioner (Appeals) which is pending now. In this backdrop, answer the following:<\/p>\n

        (i) Based on fresh information that there was escapement of income for the same assessment year, can the A.O. initiate reassessment proceedings when the appeal is pending before Commissioner (Appeals)?
        \n(ii) Can the Assessing Officer pass an order u\/s 154 for rectification of mistake in respect of issues not being subject matter of appeal?
        \n(iii) Can the assessee-company seek revision u\/s 264 in respect of matters other than those preferred in appeal?
        \n(iv) Can the CIT make a revision u\/s 263 both in respect of matters covered in appeal and other matters? [CA Final Nov. 2018 (Old Syllabus), May 2015] [5 Marks]
        \nAnswer:
        \n(i) As per the third provison section 147, the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. The doctrine of partial merger would apply in case of Sec. 147.<\/p>\n

        Therefore, even when an appeal is pending before Commissioner (Appeals), the Assessing Officer can initiate reassessment proceedings : in respect of escaped income, provided such income is not the subject matter of the appeal before the Commissioner (Appeals) i.e., such escaped income does not form part of the additions of \u20b9 15 lakhs to the returned income, which is the subject matter of appeal.<\/p>\n

        (ii) As per section 154(1 A), the Assessing Officer can pass an order under 154(1) to rectify a mistake apparent from the record, provided the rectification is in relation to a matter, other than the matter which has been considered and decided in any proceedings by way of appeal or revision. The doctrine of partial merger is applicable for section 154 also. Since in the given case the rectification of a mistake is in respect of issues not being subject matter of appeal, the A. O. can pass order u\/s 154.<\/p>\n

        (iii) As per section 264(4), the Commissioner shall not revise any order under section 264, where such order has been made the subject matter of an appeal. And the concept of total merger would apply in the case of section 264. Therefore, the assessee company cannot seek revision u\/s 264 even though the revision petition is in respect of matters other than those preferred in appeal.<\/p>\n

        (iv) As per section 263, the Commissioner has the power to revise an order prejudicial to revenue. But orders which are subject matter of an appeal cannot be revised. However, the matters, which have not been considered and decided in such appeal, can be revised. Thus, Doctrine of Partial Merger would apply in case of Section 263.<\/p>\n

        Thus, the Commissioner cannot make a revision u\/s 263 in respect of matters covered in appeal. However, he can make revision u\/s 263 in respect of other matters ie. matters which are not the subject matter of appeal.<\/p>\n

        \"Appeals<\/p>\n

        Question 15.
        \nAshoke\u2019s assessment was made u\/s 143(3) for A.Y. 2018-19. Being aggrieved with certain additions, he preferred an appeal to the CIT(A), which is pending at present and not being adjudicated.<\/p>\n

        In the above situation, give your opinion on the following Issues in the context for provisions contained under the Income-tax Act, 1961:
        \n(i) There is new information that certain Encorne for the same assessment year had escaped assessment. Is It possible for the Assessing Officer to issue notice under section 148?
        \n(ii) Certain mistake In respect of issue which is not subject matter of appeal is noticed by the A.O. Can he pass an order u\/s 154 for rectifying the mistake?
        \n(iii) If Ashoke files petition for revision u\/s 264 for a matter not being subject matter of appeal, will such petition be maintainable? [CA Final Nov. 2018 (Old Syllabus)] [5 Marks]
        \nAnswer:
        \n(i) As per Sec. 147, the A.O. may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal or revision, which is chargeable to tax and has escaped assessment. Therefore, when an appeal is pending before the CIT(A), the A.O. can issue notice u\/s 148 in respect of income chargeable to tax which has escaped assessment, if such income is not the subject matter of appeal before CIT(A).<\/p>\n

        (ii) As per Sec. 154, where any matter had been considered and decided in any proceedings by way of appeal, then rectification can be made of any matter excepts the matters which have been considered and decided in appeal i.e. Doctrine of Partial Merger will be applicable u\/s 154. In this case, since the mistake is in respect of a matter which is not the subject matter of appeal, the A.O. can pass an order u\/s 154 for rectifying the mistake, provided the same is a mistake apparent on the record.<\/p>\n

        (iii) As per Sec. 264, the Commissioner shall not revise any order u\/s 264, where such order has been made the subject of an appeal to the CIT(A). Therefore, the Commissioner cannot revise an order u\/s 264 which is pending before the CIT(A), even if the revision pertains to a matter, other than the matter covered in the appeal. Accordingly, in the present case, petition filed by Mr. Ashok for revision under section 264 is not maintainable.<\/p>\n

        \"Appeals<\/p>\n

        Question 16.
        \nThe assessment of Foundation Bank Ltd. for A.Y. 2017-18 was made u\/s 143(3) on 30th November, 2018 allowIng deduction u\/s 36(1)(vii) and deduction In respect of foreign exchange rate difference as claimed In the ROI. Subsequently, two notices of reassessment were issued u\/s 148 and an order of reassessment was passed u\/s 147 on 31st December, 2020 which did not deal with the above deductions. Later the Principal Commissioner after examining the records of assessment, Initiated revisionary proceeding u\/s 263 on 31st May 2021 for disallowing deduction u\/s 36(1)(vii) and deduction In respect of foreign exchange rate difference. The bank claims that the order passed by the Principal Commissioner u\/s 263 is barred by limitation. Is the claim made by Foundation Bank tenable in law? [CA Final Nov 2018 (New Syllabus), Nov. 2015] [5 Marks]
        \nAnswer:
        \nAs per Sec. 263, the CIT cannot revise the order of the A.O. u\/s 263 after the expiry of 2 years from the end of the financial year in which the order sought to be revised was passed.<\/p>\n

        The issue under consideration is whether the period of limitation for an order passed u\/s 263 has to be reckoned from the original order passed by the A.O. u\/s 143(3) or from the order of reassessment passed u\/s 147, where the subject matter of revision is different from the subject matter of reassessment u\/s 147.<\/p>\n

        The facts of the case are similar to the facts in CIT v. ICICI Bank Ltd. (2012), where the Bombay High Court held that where the subject matter of revision was different from the subject matter of reassessment u\/s 147, The period of limitation for an order passed u\/s 263 shall be reckoned from the original order passed by the A.O. u\/s 143(3) and not from the order of reassessment u\/s 147.<\/p>\n

        In this case, the assessment of Foundation Bank Ltd. for A.Y. 2017-18 was made u\/s 143(3) on 30.11.2018 allowing deduction u\/s 36(1)(vii) and deduction of foreign exchange rate difference as claimed in the ROI. Thereafter, reassessment notice was issued to the assessee and reassessment order was 4 passed u\/s 147 on 31.12.2020. Later the PCIT initiated the revisionary proceedings u\/s 263 on 31.05.2021 for disallowing the deduction u\/s 36(1)(vii) and deduction in respect of foreign exchange rate difference. These issues z were not the subject matter of reassessment proceedings made u\/s 147.<\/p>\n

        Applying the rationale of the Bombay High Court ruling in this case, the period of limitation for passing an order u\/s 263 shall be reckoned from the original order was passed by the A.O. u\/s 143(3) and not from the date of reassessment order passed u\/s 147. Since, the original assessment order was made on 30.11.2018, the revision order u\/s 263 should have been passed by 31.03.2021. But, here, in this case, the revisionary proceedings were initiated on 31.05.2021 and hence, the same is barred by limitation.<\/p>\n

        Accordingly, the claim of the bank that the order passed by the PCIT u\/s 263 is barred by limitation is correct.<\/p>\n

        \"Appeals<\/p>\n

        Question 17.
        \nBeing aggrieved by the order of the ITAT, Delhi, an assessee filed an appeal with Honourable High Court of Delhi with a delay of 439 days in filing the appeal. While filing the appeal, the assessee made an application for condonation of delay also citing the reasons that the delay is on account of \u201cpursuing an alternate remedy by way of filing an application before ITAT u\/s 254(2) for rectification of mistake apparent from the records.\u201d Does the contention of the assessee Is maintainable? [CA Final Nov. 2019 (Old Syllabus)1 [4 Marks]
        \nAnswer:
        \nThe issue under consideration is whether delay in filing appeal u\/s 260A can be condoned where the stated reason delay is the pursuance of an alternate remedy by way of fling an application before the ITAT u\/s 254(2) for rectification of mistake apparent on record.<\/p>\n

        The facts of the case are similar to the facts in Spinacom India (P.) Ltd. v. CIT (2018), where the Supreme Court rejected the condonation of delay and refused to accept the submission that the application before the ITAT u\/s 254(2) was an alternate remedy to filing of the application u\/s 260A. Sec. 254(2) is an application for rectifying a ‘mistake apparent from the record\u2019 which is much narrower in scope than Sec. 260A.<\/p>\n

        The time period for filing an appeal u\/s 260A does not get suspended on account of the pendency of an application before the ITAT u\/s 254(2). Since, no satisfactory reason has been provided by the Appellant for the extraordinary delay of 439 days in filing the appeal, the Supreme Court dismissed the application for condonation of delay.<\/p>\n

        Accordingly, by applying the above rationale, the contention of the assessee to condone the delay of 439 days in filing the appeal on the ground of pursuing an alternate remedy of filing an appeal before ITAT u\/s 254(2) for rectification of mistake apparent from records is not maintainable.<\/p>\n

        \"Appeals<\/p>\n

        Question 18.
        \nThe assessment of Saxena Ltd. was completed u\/s 143(3) with an addition of income of \u20b9 23.50 lakhs to the returned income. The assessee company preferred an appeal before the Commissioner of Appeals which is pending now.<\/p>\n

        In view of the above said facts, please answer the following questions with reference to the latest provisions applicable to A.Y. 2021-22.
        \n(1) Can the Commissioner make a revision u\/s 263 both in respect of matters covered in appeal and other matters?
        \n(2) Can the assessee company seek revision u\/s 264 in respect of matters other than those preferred in appeal? [CA Final Nov. 2019 (Old Syllabus)] [4 Marks]
        \nAnswer:
        \n(1) As per section 263, the Commissioner has the power to revise an order which is prejudicial to revenue. But orders which arc subject matter of an appeal cannot be revised. However, the matter\u2019s, which have not been considered and decided in such appeal, can be revised. Thus, Doctrine of Partial Merger would apply in case of Section 263 and the Commissioner cannot make a revision u\/s 263 in respect of matters covered in appeal. However, he can make revision u\/s 263 for other matters i.e. matters which arc not the subject matter of appeal.<\/p>\n

        (2) As per section 264(4), the Commissioner shall not revise any order u\/s 264, where such order has been made the subject matter of an appeal and the concept of total merger would apply in the case of section 264. Therefore, the assessee-company cannot seek revision u\/s 264 even though the revision petition is in respect of matters other than those preferred in appeal.<\/p>\n

        \"Appeals<\/p>\n

        Question 19.
        \nAn assessee, who is aggrieved by all or any of the following orders, is desirous to know the available remedial measures and the time limit against each, under the Income-tax Act, 1961: Advise him suitably.
        \n(i) Passed under section 143(3) by Assessing Officer,
        \n(ii) Passed under section 263 by the Commissioner of Income-tax,
        \n(iii) Passed under section 272A by the Director General, and
        \n(iv) Passed under section 254 by the Income Tax Appellate Tribunal. [CA Final Nov. 2019 (New Syllabus), May 2014] [8 Marks]
        \nAnswer:
        \n(i) An assessee, aggrieved by the order passed under section 143(3), can file an appeal o the CIT(A) under section 246A(1) within 30 days of the date of service of the notice of demand.<\/p>\n

        Alternatively, the assessee can file a revision petition before Principal CCIT\/CCIT or Principal CIT\/CIT u\/s 264 within a period of one year from the date on which the order was communicated to him or the date on which he otherwise carne to know about it, whichever is earlier.<\/p>\n

        (ii) An assessee, aggrieved by the order passed under section 263 by the CIT, can hie an appeal to ITAT u\/s 253(1) within 60 days of the date on which the order sought to be appealed against is communicated to the assessee.<\/p>\n

        \"Appeals<\/p>\n

        (iii) An assessee, aggrieved by the order passed u\/s 272A by the Director General, can hie an appeal to the ITAT u\/s 253(1) within 60 days of the date on which the order sought to be appealed against is communicated to the assessee.<\/p>\n

        (iv) An assessee, aggrieved by the order passed u\/s 254 by the ITAT, can hie an appeal to the High Court u\/s 260A within 120 days from the date of receipt of order of ITAT. However, appeal can be hied to the High Court only where the case involves a substantial question of law.<\/p>\n","protected":false},"excerpt":{"rendered":"

        Appeals and Revisions \u2013 CA Final DT Question Bank is designed strictly as per the latest syllabus and exam pattern. Appeals and Revisions \u2013 CA Final DT Question Bank Question 1. Does the Income-tax Appellate Tribunal have the following powers? (i) Power to allow the assessee to urge any ground of appeal which was not …<\/p>\n

        Appeals and Revisions \u2013 CA Final DT Question Bank<\/span> Read More »<\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"spay_email":"","footnotes":""},"categories":[169],"tags":[],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/gstguntur.com\/wp-json\/wp\/v2\/posts\/19405"}],"collection":[{"href":"https:\/\/gstguntur.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/gstguntur.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/gstguntur.com\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/gstguntur.com\/wp-json\/wp\/v2\/comments?post=19405"}],"version-history":[{"count":2,"href":"https:\/\/gstguntur.com\/wp-json\/wp\/v2\/posts\/19405\/revisions"}],"predecessor-version":[{"id":19410,"href":"https:\/\/gstguntur.com\/wp-json\/wp\/v2\/posts\/19405\/revisions\/19410"}],"wp:attachment":[{"href":"https:\/\/gstguntur.com\/wp-json\/wp\/v2\/media?parent=19405"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/gstguntur.com\/wp-json\/wp\/v2\/categories?post=19405"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/gstguntur.com\/wp-json\/wp\/v2\/tags?post=19405"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}