ABDULLA HAZI GULAM, MUMBAI V. ITO 19(2)1, MUMBAI

CO 63/MUM/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 9096 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 18 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 20-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 10-06-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 02-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order; Search and seizure; Opportunity of being heard; Principle of natural justice; Fair market value
• Section: 37; 263; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUM BAI . . , , BEFORE SHRI B. R. MITTAL, JM AND SHRI SANJAY ARORA , AM ./ I.T.A. NO. 4813/MUM/2011 ( / ASSESSMENT YEAR: 2004-05) I.T.O. 19(2)(1), ROOM NO.312, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI-400 012 / VS. ABDULLA HAZI GULAM RASOOL 31, SAIFEE MANZIL, NEHRU ROAD, SANTACRUZ (E), MUMBAI-400 055 ! ./' ./PAN/GIR NO. ADKPA 2161 P ( !# /APPELLANT ) : ( $!# / RESPONDENT ) & $ . /CROSS OBJECTION NO. 63/MUM/2012 ( / ASSESSMENT YEAR: 2004-05) ABDULLA HAZI GULAM RASOOL 31, SAIFEE MANZIL, NEHRU ROAD, SANTACRUZ (E), MUMBAI-400 055 / VS. I.T.O. 19(2)(1), ROOM NO.312, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI-400 012 ! ./' ./PAN/GIR NO. ADKPA 2161 P ( $ / CROSS OBJECTOR ) : ( $!# / RESPONDENT ) % & ' / REVENUE BY : SHRI P. K. SINGH ()*+ & ' / ASSESSEE BY : SHRI ANANT N. PAI , (%- & . / DATE OF HEARING : 26.09.2013 /01 & . / DATE OF PRONOUNCEMENT : 20.11.2013 2 ITA NO. 4813/M/2011 & CO 63/M/2012 (A.Y.2004-05) ABDULLAH HAZI GULAM RASOOL 2 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE REVENUE AND CROSS OBJECTIO N BY THE ASSESSEE ARISING OUT OF THE ORDER BY THE COMMISSIONER OF INCOME TAX (APP EALS)-35, MUMBAI (CIT(A) FOR SHORT) DATED 13.04.2011, ALLOWING THE ASSESSEES AP PEAL CONTESTING THE RECTIFICATION OF ITS ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER) DATED 29.12.2006 FOR THE ASSESSMENT YEAR (A.Y.) 2004-05 U /S.154 OF THE ACT VIDE ORDER DATED 24.02.2009. 2. IT WOULD BE RELEVANT TO RECOUNT THE BACKGROUND F ACTS OF THE CASE. THE ASSESSE, AN INDIVIDUAL, FILED HIS RETURN FOR THE YEAR ON 19.08. 2004 AT RS.1,23,399/-, AND WHICH STOOD ASSESSED AT THE SAME AMOUNT. THE SAME INCLUDE LOSS UNDER THE HEAD CAPITAL GAINS (LONG TERM) IN RESPECT OF THE PROPERTY AT VASAI, MUMBAI A T RS.1,52,933/- (SOLD DURING THE YEAR FOR RS.20.10 LACS) AND A GAIN OF RS.5,17,102/- IN R ESPECT OF ANOTHER PROPERTY AT GHODBUNDER VILLAGE. AS THE ASSESSING OFFICER (A.O.) WAS OF THE PRIMA FACIE VIEW THAT THE FAIR MARKET VALUE OF THE SAID PROPERTY AS ON 01 .04.1981; THE SAID ASSET/S HAVING BEEN ACQUIRED BY THE ASSESSEE PRIOR TO THE SAID DATE, SO THAT THE SAID VALUE WOULD AT THE ASSESSEES OPTION SUBSTITUTE FOR ITS COST, WAS TAKE N BY THE ASSESSEE ON A HIGHER SIDE, HE MADE A REFERENCE U/S.55A OF THE ACT TO THE VALUATION OFFIC ER (VO) TO DETERMINE THE SAME, AS WELL AS THE FAIR MARKET VALUE (FMV) ON THE DATE OF THEIR TRANSFER (SALE), DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS VIDE HIS LETTE R DATED 22.08.2006. HOWEVER, AS NO REPORT FROM THE VALUATION OFFICER STOOD RECEIVED BY THE AO, HE BEING CONSTRAINED FOR WANT OF TIME TO COMPLETE THE ASSESSMENT, FRAMED THE ASSESSMENT ACCEPTING THE ASSESSEES RETURNED FIGURES, WHILE MENTIONING THE FACT OF THE REFERENCE U/S.55A FOR THE FMV OF THE SAID PROPERTY AS ON 01.04.1981 AND 30.09.2003 BY WA Y OF AN OFFICE NOTE (FORMING PART OF THE ASSESSMENT ORDER), CLEARLY STATING THAT THE EFF ECT OF THE SAME WOULD BE CONSIDERED AND ASSESSMENT AMENDED ACCORDINGLY ON ITS RECEIPT. THE SAME WAS ACCORDINGLY CARRIED OUT ON THE SUBSEQUENT RECEIPT OF THE VOS REPORT, AMENDING THE ASSESSMENT U/S. 154. RELIEF HAVING BEEN PROVIDED BY THE FIRST APPELLATE AUTHORI TY, THE REVENUE IS IN APPEAL. 3 ITA NO. 4813/M/2011 & CO 63/M/2012 (A.Y.2004-05) ABDULLAH HAZI GULAM RASOOL 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD, AND GIVEN OUR CAREFUL CONSIDERATION TO THE MATTER. IN OUR VIEW, T HE ASSESSEE MERITS BEING SUCCESSFUL QUA THE REVENUES APPEAL. WE ARE, HOWEVER, AFRAID THAT THIS IS NOT FOR ANY OF THE REASONS THAT FOUND FAVOUR WITH THE LD. CIT(A). THAT IS, OUR APPR OVAL OF HIS CONCLUSION IS FOR SEPARATE REASON/S. WE ARE, HOWEVER, OBLIGED TO AND SHALL DIS CUSS EACH OF THE THREE REASONS ON WHICH THE FIRST APPELLATE AUTHORITY FOUND THE A.O. S ACTION AS UNSUSTAINABLE IN LAW. 3.1 AS REGARDS THE FIRST ISSUE, WITHOUT DOUBT NOTIC E U/S. 154(3) IS MANDATORY. HOWEVER, IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, W HERE THE A.O. IS BOUND TO ACCEPT THE DVOS REPORT, IN THE FRAMING OF WHICH THE ASSESSEE HAS BEEN ADMITTEDLY ALLOWED DUE OPPORTUNITY TO STATE ITS CASE ON MERITS, IT CANNOT BE SAID TO BE A CASE OF GROSS BREACH OF A PRINCIPLE OF NATURAL JUSTICE, AUDI ALTERM , WARRANTING A QUASHING OF THE RECTIFICATION PROCEEDINGS. REFERENCE IN THIS REGARD MAY BE MADE T O SECTION 16A OF THE WEALTH TAX ACT, 1957, TO WHICH THE REFERENCE U/S.55A OF THE AC T IS SUBJECT, AS ALSO THE DECISION BY THE TRIBUNAL IN THE CASE OF SURESH C. MEHTA V. ITO [2013] 144 ITD 427 (MUM). THIS IS ALSO THE REVENUES CASE IN SUBSTANCE. THE ASSESSEE, AT T HE TIME OF THE REFERENCE TO THE DVO, AND SUBSEQUENTLY THROUGH OPPORTUNITY OF HEARING BEF ORE HIM, STANDS NOT ONLY APPRAISED OF THE REVENUES STAND/INTENTION, BUT ALSO EXTENDED DU E OPPORTUNITY OF BEING HEARD ON MERITS, WHICH IS PRECISELY THE IMPORT AND PURPORT O F THE SHOW CAUSE U/S. 154(3) WHEN THE A.O. SEEKS TO ENHANCE THE ASSESSMENT OR OTHERWISE S EEKS TO INCREASE THE LIABILITY OF ASSESSEE OVER THAT PREVIOUSLY ASSESSED. IT MAY BE A PPRECIATED THAT THE A.O., BEING A NON- TECHNICAL PERSON (REFER, INTER ALIA, SARASWATI INDUSTRIAL SYNDICATE LTD. VS. CIT [1999] 237 ITR 1 (SC)), HAS A LIMITED ROLE IN THE MATTER, I.E. , HAS LITTLE DISCRETION OR SCOPE OF JUDGMENT IN THE MATTER. IN FACT, IT WOULD BE RELEVA NT TO STATE THAT WHERE THE MATTER IS CARRIED IN APPEAL BY THE ASSESSEE, AN APPELLATE AUT HORITY, BEING THE FIRST AND THE SECOND APPELLATE AUTHORITIES, IS REQUIRED TO EXTEND DUE OP PORTUNITY OF HEARING TO BOTH THE ASSESSEE AND THE VO IN DECIDING THE MATTER, WITH THE ASSESSE BEING FURTHER ENTITLED TO BE REPRESENT THROUGH A REGISTERED VALUER. AGAIN, THE PROVISION O F SECTION 35 (I.E., THE RECTIFICATION OF MISTAKES) AND SECTION 37 (I.E., POWER TO TAKE EVIDE NCE ON OATH), ETC. OF THE WEALTH TAX 4 ITA NO. 4813/M/2011 & CO 63/M/2012 (A.Y.2004-05) ABDULLAH HAZI GULAM RASOOL ACT, WHICH ARE PARA MATERIA WITH SECTIONS 154 AND 131 OF THE ACT, ARE APPLICAB LE TO THE VO TO WHOM REFERENCE U/S.55A HAS BEEN MADE. THE ASS ESSEE HAS ALREADY BEEN ALLOWED OPPORTUNITY TO STATE ITS CASE ON MERITS BEFORE THE VO, WHO IS COMPETENT PERSON UNDER THE ACT TO DECIDE THE ISSUE UNDER REFERENCE, I.E., OF V ALUATION. UNDER THE CIRCUMSTANCES, THEREFORE, IN OUR VIEW, THERE HAS BEEN SUBSTANTIAL COMPLIANCE OF THE PROCEDURE FOR GRANT OF OPPORTUNITY TO THE ASSESSEE TO STATE HIS OBJECTIONS , AS CONTEMPLATED BY SECTION 154(3), NOTWITHSTANDING THE NON-ISSUE OF NOTICE THERE-UNDER . AS SUCH, IT CANNOT BE SAID THAT THE NON-ISSUE OF NO TICE U/S.154(3) HAS RESULTED IN A BREACH OF PRINCIPLE OF NATURAL JUSTICE, SO THAT THE ASSESSMENT AS AMENDED IS A NULLITY, BUT CAN ONLY BE SAID TO BE VITIATED ON THAT SCORE. TOWA RD THIS, WE MAY, BESIDES THE FOREGOING CLEAR PROVISION OF LAW AND THE ADMITTED FACTS, ALSO DRAW SUPPORT FROM THE DECISION IN THE CASE OF M. CHOCKALINGAM AND M. MEYYAPPAN VS. CIT, MADRAS (IN WRIT PETITION NOS. 501, 502, 514 AND 515 OF 1956 DATED 30.09.1958). THOUGH THE SAME STANDS REVERSED BY THE APEX COURT (IN CA NOS. 37 TO 40 OF 1962, REPORTED A T M. CHOCKALINGAM AND M. MEYYAPPAN VS. CIT [1963] 48 ITR 34 (SC)), THE SAME WAS ONLY ON THE B ASIS OF A CLEAR OPINION OF DISCRETION BEING IN FACT AVAILABLE WITH THE A.O. IN THE MATTER, I.E., FOR CHARGE OF PENAL INTEREST U/S.18A(8) R/W.S 18A(6) OF THE INCOM E TAX ACT, 1922, AS AGAINST THE CONTRARY VIEW BY HONBLE MADRAS HIGH COURT, IN WHOS E VIEW NO SUCH DISCRETION WAS AVAILABLE WITH THE ASSESSING AUTHORITY, AND WHICH F ORMED THE BASIS OF THE DECISION BY THE SAID COURT. IN VIEW OF THE HONBLE APEX COURT, THE A.O. CLEARLY HAD A DISCRETION (I.E., FOR REDUCTION OF WAIVER OF THE SAID PENAL INTEREST) UND ER SUB-RULE (5) OF RULE 48 OF THE INCOME TAX RULES, 1922. THUS, THE RIGHT OF THE ASSESSEE IN OBTAINING THE DECISION OF THE A.O. HAD BEEN LOST BY THE NON-ISSUE OF NOTICE AND, THUS, NOT AFFORDING OPPORTUNITY OF HEARING AS REQUIRED U/S.35 OF THE 1922 ACT (CORRESPONDING TO S ECTION 154 OF THE ACT). AS SUCH, THOUGH BY ITS SAID DECISION, THE APEX COURT ANNULLE D THE AMENDED ASSESSMENT, THE BASIS OF THE SAME WAS ONLY THE AVAILABILITY OF THE DISCRETIO N WITH THE A.O. AND, THUS, A VESTED RIGHT WITH THE ASSESSEE, WHICH WAS THUS LOST, OVERRULING THE DECISION TO THE CONTRARY IN THE CASE OF LATA MANGESHKAR VS. UNION OF INDIA [1959] 36 ITR 527 (BOM), HOLDING OF NO SUCH DISCRETION BEING AVAILABLE WITH THE A.O. THE VERY F ACT THAT THE APEX COURT WENT TO SUCH 5 ITA NO. 4813/M/2011 & CO 63/M/2012 (A.Y.2004-05) ABDULLAH HAZI GULAM RASOOL GREAT LENGTH IN DISCUSSING THE NATURE OF THE RIGHT AVAILABLE WITH THE A.O. AND, CORRESPONDINGLY, WITH THE ASSESSE, VALIDATES THE AR GUMENT IN PRINCIPAL, I.E., BUT FOR THE SAID RIGHT BEING AVAILABLE WITH THE A.O., THERE WAS NO SERIOUS PREJUDICE CAUSED TO THE ASSESSEE. THIS, IT WOULD BE APPRECIATED, ALSO FORME D THE BASIS OF THE DECISION BY THE HONBLE MADRAS HIGH COURT IN M. CHOCKALINGAM AND M. MEYYAPPAN (SUPRA). THE ISSUE OF NOTICE U/S. 154(3) CANNOT BE CONSTRUED AS AN EMPTY FORMALITY AND MUST LEAD TO AN INJUSTICE AND PREJUDICE, IN THE ABSENCE OF WHICH, THE CLAIM O F BREACH OF PRINCIPLE OF NATURAL JUSTICE IS RENDERED AS WITHOUT MEANING AND CONTENT. NO DOUBT, THE NON-ISSUE OF NOTICE U/S. 154(3) BY TH E A.O. UNDER THE CIRCUMSTANCES IS RELEVANT FOR PROCEDURE. THE SAME IS, HOWEVER, NO T A JURISIDICTIONAL NOTICE, AND IS THEREFORE CURABLE; IT BEING AGAIN TRITE THAT WHERE A DEFECT OR IRREGULARITY INFORMS AN ASSESSMENT, THE SAME IS TO BE RESTORED BACK TO THE STAGE WHERE THE SAID IRREGULARITY HAD OCCURRED (REF: GUDUTHUR BROTHERS V. ITO [1960] 40 ITR 298 (SC)). THE ASSESSING AUTHORITY HAS AN INHERENT JURISDICTION, SUBJECT OF COURSE TO THE TIME LIMITATION PROVIDED BY LAW IN ITS RESPECT, TO RECTIFY MISTAKES INASMUCH AS NO COURT OR AUTHORITY CAN BY ITS ACTION OR NON-ACTION CAUSE PREJUDICE TO ANY PARTY BEFORE I T (ALSO REFER: HONDA SIEL POWER PRODUCTS LTD. V. CIT [2007] 295 ITR 466 (SC)). THE APEX COURT IN MALABAR INDUSTRIAL CO. LTD. V. CIT [2000] 243 ITR 83 (SC) HAS LAID DOWN A FOUR-WAY TEST TOWARD AN ORDER BEING ERR ONEOUS. SUCCINCTLY PUT, THESE ARE: INCORRECT ASSUMPTION OF FACTS; INCORRECT APPLICATIO N OF LAW; WITHOUT APPLYING THE PRINCIPLES OF NATURAL JUSTICE; AND WITHOUT APPLICAT ION OF MIND. IT IS THE THIRD CATEGORY, WHICH ARISES IN THE INSTANT CASE, AND WITH WHICH WE ARE THEREFORE CONCERNED WITH. TO THE EXTENT, THEREFORE, THE ASSESSEE HAS BEEN DENIED OPP ORTUNITY TO PRESENT ITS CASE ON ACCOUNT OF NON-ISSUE OF NOTICE U/S. 154(3), THE RECTIFICATI ON ORDER COULD BE ERRONEOUS, BUT NOT NULL AND VOID. THE MATTER, IF THE REVENUE WERE TO SUCCEE D, WOULD REQUIRE A TRAVEL BACK TO THE FILE OF THE AO TO ALLOW THE ASSESSEE OPPORTUNITY TO STATE HIS CASE BEFORE HIM, EVEN AS THE AO HAS NO DISCRETION AND THE ASSESSEE HAS BEEN ALLO WED DUE OPPORTUNITY BY THE VO, INASMUCH AS THE SAID NOTICE IS MANDATORY IN CHARACT ER. WHY, THE TRIBUNAL ROUTINELY SETS ASIDES ASSESSMENTS BACK TO THE FILE OF THE ASSESSIN G OR THE FIRST APPELLATE AUTHORITY ON 6 ITA NO. 4813/M/2011 & CO 63/M/2012 (A.Y.2004-05) ABDULLAH HAZI GULAM RASOOL FINDING AN ABSENCE OR LACK OF PROPER OPPORTUNITY HA VING BEEN GRANTED TO THE ASSESSEE IN THE MATTER. 3.2 THE SECOND GROUND ASSUMED BY THE LD. CIT(A) IS WITH RESPECT TO THE VALUERS REPORT BEING NOT AVAILABLE AT THE TIME OF FRAMING T HE ASSESSMENT, SO THAT IT CANNOT FORM PART OF THE RECORD. IN THIS REGARD, IN OUR VIEW, TH E RECORD WOULD BE THAT AVAILABLE WITH THE A.O. AT THE TIME OF INITIATION OF THE RECTIFICA TION PROCEEDINGS, AND NOT MERELY THE RECORD AVAILABLE AT THE TIME OF PASSING THE ORIGINA L ORDER, AS HELD IN CIT VS. M. R. M. PLANTATIONS PVT. LTD. [1989] 240 ITR 660 (MAD). AS EXPLAINED BY THE HONB LE COURT, THE OBJECT OF THE PROVISION OF RECTIFICATION WOULD BE I LL-SERVED IF THE AUTHORITIES ARE COMPELLED TO PRESERVE SUCH MISTAKES IN THE ORDER BY ASKING TH EM TO WEAR BLINKERS AND NOT LOOK INTO UNIMPEACHABLE MATERIAL, WHICH IN THAT CASE WAS THE RECTIFICATION ORDER OF ASSESSMENT FOR A PRECEDING YEAR, IN LIGHT OF WHICH THE MISTAKE/S IN THE ORDER SOUGHT TO BE RECTIFIED WAS APPARENT. REFERENCE IN THIS CONTEXT MAY ALSO BE MAD E TO THE BOARD CIRCULAR NO. 689 DATED 24.09.1994 (REPORTED AT [1994] 209 ITR (ST.) 75) PE RMITTING THE A.O. TO ADMIT SUBSEQUENT MATERIAL BROUGHT ON RECORD AND TO RECTIFY THE ASSES SMENT CONSISTENT WITH SUCH EVIDENCE, EXCEPT WHERE STATUTORY EVIDENCE REQUIRED TO BE SUBM ITTED HAD NOT BEEN SUBMITTED. 3.3 THE THIRD ASPECT ON WHICH THE LD. CIT(A) HAS RE LIED IN THE SETTING ASIDE THE RECTIFICATION IS THE ABSENCE OF A PROVISION OR CLAU SE IN S.155 OF THE ACT. SECTION 155 IS AN ENABLING PROVISION WHEREBY THE A.O. MAY AMEND AN AS SESSMENT ON THE BASIS OF A SUBSEQUENT DEVELOPMENT. THE LAW PER SECTION 155 SEE KS TO PROVIDE A GROUND FOR AMENDMENTS, WHICH ARE NOT MISTAKES PER SE , BUT ARE NECESSARILY REQUIRED TO BE CARRIED OUT TO BRING THE ASSESSMENT IN CONFORMITY WITH THE LAW AND THE RECORD IN VIEW OF THE SUBSEQUENT EVENTS OR DEVELOPMENTS, VIZ. THE REMUNER ATION ALLOWABLE TO THE PARTNERS FOLLOWING A CHANGE IN THE ASSESSMENT OF THE FIRM, B EING ALLOWABLE ONLY WITH REFERENCE THERETO; CHANGE IN THE SHARE OF THE PARTNERS CONSEQ UENT TO A CHANGE IN THE ASSESSMENT OF THE FIRM (FOR YEARS PRIOR TO A.Y. 1992-93); NON-SAT ISFACTION OF A CONDITION/S OF SECTIONS 32A, 33, 33A, ETC. PRESCRIBING CONDITIONS EXTENDING TO YEARS SUBSEQUENT TO THE ASSESSMENT 7 ITA NO. 4813/M/2011 & CO 63/M/2012 (A.Y.2004-05) ABDULLAH HAZI GULAM RASOOL YEAR UNDER REFERENCE, ET. AL. WE ARE UNABLE TO SEE AS TO HOW THE ABSENCE OF COMPLETION OF PROCEDURE, A PART OF THE VERIFICATION PROCESS, AVAI LABLE TO THE A.O. IN MAKING THE ASSESSMENT, COULD CONCEIVABLY BE REGARDED AS A SUBS EQUENT DEVELOPMENT TO BE INCLUDED U/S.155, EMPOWERING OR ENABLING THE A.O. TO PASS AN AMENDED ORDER. WE ARE, AS SUCH, NOT IMPRESSED WITH THE ARGUMENT MADE WITH REFERENCE TO SECTION 155 OF THE ACT. 3.4 CONTINUING FURTHER, HOWEVER, THE ARGUMENT QUA SEC. 155, ON BEING EXTENDED, ITSELF PROVIDES THE BASIS FOR OUSTING THE AOS ACTION. THE AO HAD CALLED FOR THE VALUERS REPORT AS A PART OF THE VERIFICATION PROCEDURE. HOW COULD THUS THERE BE ANY SCOPE FOR INFERRING MISTAKE IN THE ASSESSMENT, WHICH CANNOT PREDICATE O N THE REPORT ? FURTHER, THE SAID REPORT MAY BIND THE ASSESSING AUTHORITY BUT NOT BIND THE A SSESSEE, WHO MAY WELL DISPUTE THE SAME. THE MATTER BECOMES DEBATABLE, SO THAT THE DI FFERENCE AGAIN CANNOT BE CONSTRUED AS A MISTAKE, WHICH COULD BE RECTIFIED U/S. 154. WE COULD CONSIDER A CASE WHERE THE AO MAKES OUT A CLEAR CASE OF THE ASSESSEE HAVING UNDER -STATED OR OVER-STATED A PARTICULAR VALUE, HAVING A DIRECT BEARING ON THE QUANTUM OF IN COME CHARGEABLE TO TAX. EVEN IN SUCH A CASE, WE WOULD BE INCLINED TO THINK THAT IT IS IN CUMBENT ON HIM TO MAKE A REASONABLE ESTIMATE OF THE SAME IN ASSESSING THE INCOME. THIS IS ALSO FOR THE REASON THAT THERE IS ANOTHER ASPECT TO THE MATTER; THE TIME LIMIT, TO WH ICH THE ASSESSMENT IS SUBJECT, AND WHICH CANNOT BE BREACHED EITHER DIRECTLY OR INDIRECTLY. T HE ASSESSMENT AS MADE IN THE INSTANT CASE WOULD TANTAMOUNT TO IT BEING MADE SUBJECT TO T HE RESULT OF THE REFERENCE AS MADE DURING THE COURSE OF ASSESSMENT TO THE VALUATION OF FICER, AND THEREBY EXCEEDING THE TIME LIMITATION PRESCRIBED BY LAW, AND WHICH CANNOT BE. A SUBSEQUENT REPORT AT A VARIANCE MAY, IN THE FACTS AND CIRCUMSTANCES OF A CASE, EXHI BIT THE ASSESSMENT AS FRAMED TO BE ERRONEOUS AND PREJUDICIAL EITHER TO THE REVENUE OR THE ASSESSEE, VALIDATING ACTION U/S. 263 OR, AS THE CASE MAY BE, SEC. 264, BUT WOULD NOT BY ITSELF MAKE THE ORDER MISTAKEN, SO AS TO BE LIABLE FOR RECTIFICATION U/S. 154. THE REVENU ES ACTION IS MISCONCEIVED IN LAW AND, THUS, CANNOT BE SUSTAINED. WE DECIDE ACCORDINGLY. 4. COMING TO THE ASSESSEES CO, THE SAME IS IN PART SUPPORTIVE (OF THE IMPUGNED ORDER) AND IN PART ASSAILS THE REFERENCE U/S. 55A O F THE ACT BY THE AO, CLAIMING THE SAME 8 ITA NO. 4813/M/2011 & CO 63/M/2012 (A.Y.2004-05) ABDULLAH HAZI GULAM RASOOL TO BE NOT IN SATISFACTION OF THE MANDATORY CONDITIO NS OF THE SAID SECTION. TO THE EXTENT IT IS SUPPORTIVE, NO SEPARATE ADJUDICATION IS REQUIRED, S O THAT THE SAME IS LIABLE TO BE DISMISSED AS INFRUCTUOUS. TO THE EXTENT THE SAME CONTESTS THE INVOCATION OF SEC. 55A ON MERITS, THE ASSESSEES ACTION IS EQUALLY BARRED BY THE SCOPE OF S. 154, WHICH IS LIMITED TO MISTAKES APPARENT FROM RECORD, PRECLUDING DEBATABLE ISSUES. THE SAID REFERENCE COULD BE VALIDLY CHALLENGED BY THE ASSESSEE BY FOLLOWING THE APPELLA TE PROCEDURE. HOWEVER, HAVING ACCEPTED THE ASSESSMENT AS FRAMED, IT IS NOT OPEN T O THE ASSESSEE TO FIND FAULT WITH THE SAME ON THIS SCORE U/S. 154 OF THE ACT. THE ASSESSE ES ACTION, ACCORDINGLY, FAILS. 5. IN THE RESULT, BOTH THE APPEAL BY THE REVENUE AN D THE CROSS OBJECTION BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON NOVEMBER 20, 2013 SD/- SD/- (B. R. MITTAL) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER , - MUMBAI; 3( DATED : 20.11.2013 %.(../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $!# / THE RESPONDENT 3. , 4 ( ) / THE CIT(A) 4. , 4 / CIT CONCERNED 5. 7%89 $ (:) , . :)1 , , - / DR, ITAT, MUMBAI 6. 9;* <- / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , , - / ITAT, MUMBAI