National Neurosciences Centre, Kolkata V. I.T.O (Exemption) - I,kolkata, Kolkata

ITA 1128/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4531 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 02-06-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 08-05-2013
• Court: TRIBUNAL
• Department Lawyers: DEBASISH LAHIRI
• Assessee Lawyers: S K TULSIYAN
• Keywords: Period of limitation; Right to appeal; Revised return
• Section: 143(3); 12A; 263; 11

Judgement Text

1 ITA NO.1128/KOL/2013-NATIONAL NEUROSCIENCES CENTRE, CALCUTTA-A.Y.2008-09 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B KOL KATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI M.B ALAGANESH, AM ] ITA NO.1128/KOL/2013 ASSESSMENT YEAR : 2008-09 NATIONAL NEUROSCIENCES CENTRE, -VERSUS- I.T.O.(EX EMPTION)-1, KOLKATA KOLKATA (PAN:AAATN 2980 N) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI S.K.TULSIYAN, ADVOCATE FOR THE RESPONDENT: SHRI DEBASISH LAHIRI, JCIT, SR. DR DATE OF HEARING : 02.06.2016. DATE OF PRONOUNCEMENT : 08.07.2016. ORDER PER N.V.VASUDEVAN, JM: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 21.03.2013 OF CIT(A) JALPAIGURI, RELATING TO AY 2008-09. 2. THE ASSESSEE IS A REGISTERED SOCIETY. THE ASSE SSEE WAS GRANTED REGISTRATION U/S 12A OF THE INCOME TAX ACT, 1961 (ACT) AND WAS THERE FORE ENTITLED TO CLAIM EXEMPTION U/S.11 OF THE ACT SUBJECT TO FULFILMENT OF OTHER CO NDITIONS LAID DOWN IN SEC.11 OF THE ACT. FOR A.Y.2008-09 THE ASSESSEE FILED RETURN OF INCOME THE ASSESSEE FILED RETURN OF INCOME SHOWING NIL INCOME ON 29.09.2008. THE RETUR N WAS FILED ON 29.9.2008 I.E., WITHIN THE DUE DATE CONTEMPLATED U/S.139(1) OF THE ACT. THE ASSESSEE FILED REVISED RETURN OF INCOME ON 27.03.2009 SHOWING NIL INCOME. AN ORDER OF ASSESSMENT U/S 143(3) OF THE ACT WAS PASSED DATED 29.12.2010 IN WH ICH THE AO DENIED EXEMPTION U/S 11 OF THE ACT TO THE ASSESSEE ON THE GROUND THAT TH ERE WAS VIOLATION BY THE ASSESSEE OF THE PROVISION OF SECTION 13(1)(C ) AND SECTION 13(2 )(G) OF THE ACT. THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS.65,09,6 20/-. 3. AGGRIEVED BY THE ORDER OF AO THE ASSESSEE PR EFERRED APPEAL BEFORE CIT(A). THERE IS NO DISPUTE THAT IN THE NORMAL COURSE APPEA L HAD TO BE FILED AND HAD TO BE DECIDED BY CIT(A)-XIV, KOLKATA. ON 5 TH SEPTEMBER, 2012, THE ASSESSEE FILED A 2 ITA NO.1128/KOL/2013-NATIONAL NEUROSCIENCES CENTRE, CALCUTTA-A.Y.2008-09 LETTERE DATED 2.9.2012 BEFORE THE CIT(A)-XIV, KOLKA TA THAT IT INTENDS TO FILE AN APPLICATION U/S 264 AGAINST THE ORDER OF ASSESSMENT BEFORE DIRECTOR OF INCOME TAX (EXEMPTION), KOLKATA AND THEREFORE THE ASSESSEE WAN TS TO WITHDRAW ITS APPEAL BEFORE CIT(A)-XIV, KOLKATA. NO ORDER WHATSOEVER WAS PASSED ON THE REQUEST OF THE ASSESSEE FOR WITHDRAWAL OF THE APPEAL. THERE WAS A HEARING BEFORE CIT(A) ON 16.11.2012. ON THIS DATE THE ASSESSEE FILED A LETTER BEFORE CIT(A) PRAYING FOR WITHDRAWAL OF THE APPEAL ON THE GROUND THAT THE ASSESSEE HAD SUBMITTED A PET ITION U/S 264 OF THE ACT TO THE DIRECTOR OF INCOME TAX (EXEMPTION), KOLKATA. THE AS SESSEE ALSO POINTED OUT THAT THE DIRECTOR OF INCOME TAX (EXEMPTION) HAD ALSO PASSED AN ORDER DATED 28.11.2011ON THE PETITION FILED BY THE ASSESSEE U/S 264 OF THE ACT A ND ENCLOSED A COPY OF THE SAID ORDER ALONG WITH THE LETTER PRAYING FOR WITHDRAWAL OF THE APPEAL. 4. IT APPEARS THAT FOR ADMINISTRATIVE REASONS THE APPEAL FILED BY THE ASSESSEE WAS TAKEN UP FOR CONSIDERATION BY CIT(A)-JALPAIGURI AND A NOTICE FIXING THE DATE OF HEARING ON 10.01.2013 WAS RECEIVED BY THE ASSESSEE. THE ASS ESSEE IN RESPONSE TO THE AFORESAID NOTICE FILED A LETTER DATED 10.01.2013 BEFORE CIT(A )-JALPAIGURI POINTING OUT THAT IT HAD ALREADY INFORMED THAT IT NO LONGER WANTS TO PURSUE THE APPEAL AND THE SAME WAS BEING WITHDRAWN. THE ASSESSEE ALSO INFORMED ABOUT PASSING OF THE ORDER U/S 264 OF THE ACT BY D.I.T.(E), KOLKATA. 5. THE CIT(A) WAS HOWEVER OF THE VIEW THAT THER E WAS NO POWER UNDER THE ACT UNDER WHICH AN ASSESSEE CAN WITHDRAW AN APPEAL FILE D BEFORE CIT(A). ACCORDING TO CIT(A) HE HAD POWERS TO ENHANCE THE ASSESSED INCOME IN AN APPEAL BY THE ASSESSEE AGAINST AN ORDER OF ASSESSMENT AND IF THE ASSESSEE IS ALLOWED TO WITHDRAW ITS APPEAL THEN SUCH POWER TO WITHDRAW THE APPEAL WILL BE MISU SED BY THE ASSESSEE THE MOMENT HE REALISES THAT THE CIT(A) IS LIKELY TO ENHANCE HI S INCOME. THE CIT(A) WAS THEREFORE OF THE VIEW THAT THE AN ASSESSEE HAVING FLED AN APP EAL CANNOT WITHDRAW THE APPEAL FILED BEFORE CIT(A). HE WAS OF THE VIEW THAT THERE WAS N O PROVISION UNDER THE ACT FOR WITHDRAWAL OF THE APPEAL FILED BEFORE CIT(A). IN C OMING TO THE ABOVE CONCLUSION, THE CIT(A) PLACED RELIANCE ON THE DECISION OF THE HONB LE SUPREME COURT IN THE CASE OF CIT(CENTRAL), CALCUTTA VS RAI BAHADUR HARDUTROY MOT ILAL CHAMARIA 66 ITR 443 (SC) . THIS WAS A CASE WHERE THE HONBLE SUPREME COURT DEA LT WITH THE POWERS OF 3 ITA NO.1128/KOL/2013-NATIONAL NEUROSCIENCES CENTRE, CALCUTTA-A.Y.2008-09 ENHANCEMENT OF THE FIRST APPELLATE AUTHORITY IN AN APPEAL AGAINST THE ORDER OF ASSESSMENT. IN THIS JUDGMENT THE HONBLE SUPREME CO URT HAD HELD THAT THE POWER OF ENHANCEMENT OF THE FIRST APPELLATE AUTHORITY IS CON FINED TO THE SUBJECT MATTER OF THE APPEAL OR SOURCE OF INCOME SOUGHT TO BE TAXED BY TH E AO. IN RESPECT OF ALL OTHER MATTERS THE HONBLE SUPREME COURT HELD THAT THE FIR ST APPELLATE AUTHORITY HAD NO JURISDICTION TO MAKE ENHANCEMENT. IN THIS JUDGMENT THE HONBLE SUPREME COURT REFERRED TO THE SCHEME OF THE ACT UNDER WHICH ONLY AN ASSESSEE HAS A RIGHT OF APPEAL AGAINST THE ORDER OF ASSESSMENT AND THAT IS THE REA SON THAT WIDE POWERS ARE CONFERRED ON THE FIRST APPELLATE AUTHORITY INCLUDING POWERS O F ENHANCEMENT. THE HONBLE SUPREME COURT INCIDENTALLY MADE A REFERENCE TO THE POWER OF WITHDRAWAL OF AN APPEAL AND REFERRED TO THE DECISION OF LAHORE HIGH COURT I N THE CASE OF CIT VS NAWAB SHAH NAWAZ KHAN 6 ITR 370(SC) WHEREIN IT WAS HELD THAT T HE TAX PAYER CANNOT BE ALLOWED TO WITHDRAW AN APPEAL FILED AGAINST AN ORDER OF AS SESSMENT. THE CIT(A) AFTER MAKING A REFERENCE TO THE ABOVE DECISIONS, THEREAFTER OBSE RVED THAT AS PER THE PROVISION OF SECTION 264(4)(C) OF THE ACT, AN APPLICATION U/S 26 4 OF THE ACT WAS NOT MAINTAINABLE AS AN APPEAL AGAINST THE ORDER OF ASSESSMENT WAS PE NDING WHEN THE APPLICATION U/S.264 OF THE ACT WAS MADE BY THE ASSESSEE BEFORE THE DIT( E). THEREAFTER THE CIT(A) FURTHER OBSERVED THAT EXCEPT FILING A REQUEST FOR W ITHDRAWAL OF THE APPEAL THE ASSESSEE DID NOT MAKE ANY WRITTEN OR ORAL ARGUMENTS AGAINST THE ORDER OF AO. CIT(A) THEREFORE WAS OF THE VIEW THAT ORDER OF THE AO HAS TO BE UPHE LD. ACCORDINGLY CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE AND CONFIRMED THE ORDER OF ASSESSMENT PASSED BY AO. 6. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. THE FOLLOWING ARE THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE :- 1. THAT SINCE THE ASSESSEE'S APPEAL WAS FILED BEFO RE THE LD. CIT (A) XIV KOL AS DIRECTED BY THE LD. A.O. IN THE DEMAND NOTICE U/S. 156, THE LD. CIT(A) JALPAIGURI HAD NO JURISDICTION TO DECIDE THE SAID APPEAL AND CONSE QUENTLY THE APPELLATE ORDER PASSED BY HIM IS LIABLE TO BE SET ASIDE AND ANNULLED. 2. THAT THE LD. CIT (A) HAS ERRED IN HOLDING THAT T HE ASSESSEE FILED ITS RETURN FOR ASSTT. YEAR 2008-09 ON 27.03.2009 AND AS PER THE PROVISION OF SEC. 139( 4A) SUCH LATE FILING AUTOMATICALLY RESULTED IN DENIAL OF EXEMPTIONS U/S 11 OF THE 1. T.ACT. 3. THAT ON A CORRECT INTERPRETATION OF SEC. 264 (4) (A) AND 264 (4)( C) OF THE 1. T.ACT, THE LD. CIT(A) ERRED IN HOLDING THAT THE ASSESSEE'S PET ITION U/S 264 WAS NOT MAINTAINABLE. 4 ITA NO.1128/KOL/2013-NATIONAL NEUROSCIENCES CENTRE, CALCUTTA-A.Y.2008-09 4. THAT THE LD. CIT (A) ERRED IN DISMISSING THE ASS ESSEE'S APPEAL SUMMARILY INSTEAD OF DECIDING ITS GROUNDS OF APPEAL ON MERIT IN CONTRAVE NTION OF THE PROVISIONS OF SEC. 250(6) OF THE 1.T.ACT. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT (A) ERRED M DISMISSING THE APPEAL AND CONFIRMING THE ASSTT. ORD ER PASSED BY THE LD. A.O. 6. THAT SINCE AS ON 21.03.2013 WHEN THE LD. CIT(A) PASSED THE APPELLATE ORDER HE WAS AWARE OF THE FACT THAT AN ORDER U/S 264 OF THE LT.A CT HAS ALREADY BEEN PASSED IN CONSEQUENCE OF WHICH THE ASSTT. ORDER OF THE A.O. H AS ALREADY BEEN MERGED WITH THE ORDER U/S 264, THE LD. CIT (A) WAS NOT JUSTIFIED IN CONFIRMING THE LD. A.O.'S NON EXISTENT ASSESSMENT ORDER. 7. THAT, THE APPELLANT CRAVES LEAVE TO ALTER, AMEND , RESCIND AND SUBSTITUTE ANY OF THE ABOVE- MENTIONED GROUNDS AND ADD ANY FURTHER GROUND S BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 7. THE ASSESSEE HAS ALSO PRAYED FOR PERMISSION T O RAISE THE FOLLOWING ADDITIONAL GROUNDS OF APPEAL. ADDITIONAL GROUND : 1. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN NOT PERMITTING THE ASSESSEE TO WITHDRAW ITS APPEAL FILE D BEFORE HIM. THE ADDITIONAL GROUND BEING A LEGAL GROUND SINCE TH E SAME ARISES OUT OF THE ORDER OF CIT(A) THE SAME IS ADMITTED FOR ADJUDICATION. 8. WE HAVE HEARD THE SUBMISSIONS OF THE LD. COUN SEL FOR THE ASSESSEE AND LD. DR. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ONC E AN ORDER OF AO HAS BEEN THE SUBJECT MATTER OF REVISION BY CIT U/S 264 OF THE AC T THEN THE APPEAL AGAINST THE SAID ORDER BEFORE CIT(A) WAS INCOMPETENT. IN THIS REGAR D, OUR ATTENTION WAS DRAWN TO THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS EURASIA PUBLISHING HOUSE (P)LTD 232 ITR 381 (DELHI) WHEREIN IT WAS HEL D THAT WHERE AN APPEAL IS PREFERRED AND THE APPELLATE COURT DISPOSES OF THE A PPEAL AFTER A CONTESTED HEARING, THE ORDER OR DECREE OF THE ORIGINAL COURT MERGES INTO T HE APPELLATE ORDER OR DECREE. FOR ALL PRACTICAL PURPOSES, THEREAFTER, IT IS THE APPELLATE ORDER OR DECREE WHICH EXISTS AND HAS TO BE SEEN AS EFFECTIVE AND BINDING BETWEEN THE PARTIE S INCLUDING THE PURPOSES OF EXECUTION, LIMITATION AND RES JUDICATA. SECTION 264 WHICH CONFERS REVISIONAL JURISDICTION ON THE COMMISSIONER OVER THE ORDERS PA SSED BY AN AUTHORITY SUBORDINATE TO HIM IS WIDE IN ITS TERMS. THE FUNCTION DISCHARGE D BY THE COMMISSIONER IS JUDICIAL IN 5 ITA NO.1128/KOL/2013-NATIONAL NEUROSCIENCES CENTRE, CALCUTTA-A.Y.2008-09 NATURE. THEREFORE, THE ASSESSING OFFICERS ORDER FO RMING THE SUBJECT-MATTER OF REVISION WOULD MERGE INTO THE REVISIONAL ORDER OF THE COMMIS SIONER TO THE EXTENT OF THE CONTROVERSIES OR ISSUES FORMING THE SUBJECT-MATTER OF REVISION AND DECIDED THEREBY EXPRESSLY OR BY NECESSARY IMPLICATION. IN A CASE WH ERE THE ASSESSEE HAD FILED APPEALS BEFORE THE AAC, THE REVISIONS BEFORE THE COMMISSION ER WERE PENDING THE ORDERS OF THE ASSESSING OFFICER WOULD NOT MERGE INTO THE ORDE R OF THE COMMISSIONER. HOWEVER, BY THE TIME THE AAC CAME TO DECIDE THE APPEAL, IF T HE REVISION HAD STOOD DECIDED BY THE COMMISSIONER, THEN THE ASSESSMENT ORDERS OF THE ASSESSING OFFICER UNDER REVISION WOULD MERGE INTO THE ORDER OF THE COMMISSIONER AND, CONSEQUENTLY, LOOSE ITS IDENTITY. THE SAME ISSUE WHICH WAS AGITATED IN APPEAL BEFORE THE AAC WHICH STOOD DECIDED BY THE COMMISSIONER, THE AAC COULD NOT DECIDE THE APPE AL RE-ADJUDICATING UPON THE SAME ISSUE AND TAKING A DIFFERENT VIEW. THE PENDENC Y OF THE REVISION BEFORE THE COMMISSIONER WOULD NOT SUSPEND OR RENDER IN EFFECTI VE THE ORDER UNDER REVISION BUT WITH THE DECISION OF THE COMMISSIONER IN REVISION, THE ORDER OF THE ITO WOULD CEASE TO EXIST HAVING MERGED INTO THE REVISIONAL ORDER OF TH E COMMISSIONER. 9. OUR ATTENTION WAS ALSO DRAWN TO THE FACT THAT U /S 264(4)(C) OF THE ACT REVISION APPLICATION U/S 264 OF THE ACT IS NOT MAINTAINABLE ONLY WHERE THE ORDER HAS BEEN MADE SUBJECT OF APPEAL TO THE CIT. IT WAS POINTED OUT TH AT THE CBDT IN CIRCULAR NO.367 DATED 26.07.1983 HAS CLARIFIED THE MEANING OF THE W ORD SUBJECT OF AN APPEAL AS FOLLOWS :- AN ORDER CANNOT BE SAID TO HAVE BEEN MADE SUBJECT OF AN APPEAL IF THE APPEAL HAS BEEN DISPOSED OF BY THE CIT(A) OR THE ITAT WITHOUT PASSING AN ORDER U/S 251(1) OR 254(1) ON MERITS. 10. IT WAS THEREFORE SUBMITTED BY HIM UNTIL AND UNLESS THE APPEAL HAS BEEN DISPOSED OF BY CIT(A) ON MERIT, THE CIT CAN ENTERTAIN AND D ISPOSE OF THE PETITION U/S 264 OF THE ACT. WITH REGARD TO THE DECISION OF THE HONBLE SU PREME COURT IN THE CASE OF RAI BAHADUR HARDUTROY MOTILAL CHAMARIA (SUPRA), WHICH W AS REFERRED TO THE IMPUGNED THE ORDER OF THE CIT(A), THE LD. COUNSEL SUBMITTED THAT THE AFORESAID DECISION WAS RENDERED ONLY ON THE PREMISE THAT THERE WAS A POSSI BILITY OF ENHANCING ASSESSEES INCOME IN AN APPEAL BY THE ASSESSEE AGAINST THE ORD ER OF ASSESSMENT. IT WAS SUBMITTED 6 ITA NO.1128/KOL/2013-NATIONAL NEUROSCIENCES CENTRE, CALCUTTA-A.Y.2008-09 BY THE LD. COUNSEL THAT IN THE PRESENT CASE THE CIT (A) HAD NOT EXERCISED ANY POWER OF ENHANCEMENT. SUBMISSIONS WERE MADE ON THE OTHER GRO UNDS OF APPEAL ALSO. THE LD. DR PLACED RELIANCE ON THE ORDER OF CIT(A). 11. WE HAVE GIVEN A VERY CAREFUL CONSIDERATION T O THE RIVAL SUBMISSIONS. SEC.264 OF THE ACT READS THUS: 264. (1) IN THE CASE OF ANY ORDER OTHER THAN AN ORDER TO WHICH SECTION 263 APPLIES PASSED BY AN AUTHORITY SUBORDINATE TO HIM, THE COMM ISSIONER MAY, EITHER OF HIS OWN MOTION OR ON AN APPLICATION BY THE ASSESSEE FOR REV ISION, CALL FOR THE RECORD OF ANY PROCEEDING UNDER THIS ACT IN WHICH ANY SUCH ORDER H AS BEEN PASSED AND MAY MAKE SUCH INQUIRY OR CAUSE SUCH INQUIRY TO BE MADE AND, SUBJECT TO THE PROVISIONS OF THIS ACT, MAY PASS SUCH ORDER THEREON, NOT BEING AN ORDE R PREJUDICIAL TO THE ASSESSEE, AS HE THINKS FIT. (2) THE COMMISSIONER SHALL NOT OF HIS OWN MOTION RE VISE ANY ORDER UNDER THIS SECTION IF THE ORDER HAS BEEN MADE MORE THAN ONE YEAR PREVI OUSLY. (3) IN THE CASE OF AN APPLICATION FOR REVISION UNDE R THIS SECTION BY THE ASSESSEE, THE APPLICATION MUST BE MADE WITHIN ONE YEAR FROM THE D ATE ON WHICH THE ORDER IN QUESTION WAS COMMUNICATED TO HIM OR THE DATE ON WHI CH HE OTHERWISE CAME TO KNOW OF IT, WHICHEVER IS EARLIER : PROVIDED THAT THE COMMISSIONER MAY, IF HE IS SATISFIED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM MAKING THE APPLI CATION WITHIN THAT PERIOD, ADMIT AN APPLICATION MADE AFTER THE EXPIRY OF THAT PERIOD . (4) THE COMMISSIONER SHALL NOT REVISE ANY ORDER UND ER THIS SECTION IN THE FOLLOWING CASES ( A ) WHERE AN APPEAL AGAINST THE ORDER LIES TO THE DE PUTY COMMISSIONER (APPEALS) OR TO THE COMMISSIONER (APPEALS) OR TO TH E APPELLATE TRIBUNAL BUT HAS NOT BEEN MADE AND THE TIME WITHIN WHICH SUC H APPEAL MAY BE MADE HAS NOT EXPIRED, OR, IN THE CASE OF AN APPEAL TO TH E COMMISSIONER (APPEALS) OR TO THE APPELLATE TRIBUNAL, THE ASSESSEE HAS NOT WAIVED HIS RIGHT OF APPEAL; OR ( B ) WHERE THE ORDER IS PENDING ON AN APPEAL BEFORE T HE DEPUTY COMMISSIONER (APPEALS)]; OR ( C ) WHERE THE ORDER HAS BEEN MADE THE SUBJECT OF AN APPEAL TO THE COMMISSIONER (APPEALS) OR TO THE APPELLATE TRIBUNAL . (5) EVERY APPLICATION BY AN ASSESSEE FOR REVISION U NDER THIS SECTION SHALL BE ACCOMPANIED BY A FEE OF FIVE HUNDRED RUPEES. (6) ON EVERY APPLICATION BY AN ASSESSEE FOR REVISIO N UNDER THIS SUB-SECTION, MADE ON OR AFTER THE 1ST DAY OF OCTOBER, 1998, AN ORDER SHA LL BE PASSED WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH SUCH APPLICA TION IS MADE BY THE ASSESSEE FOR REVISION. 7 ITA NO.1128/KOL/2013-NATIONAL NEUROSCIENCES CENTRE, CALCUTTA-A.Y.2008-09 EXPLANATION .IN COMPUTING THE PERIOD OF LIMITATION FOR THE PUR POSES OF THIS SUB- SECTION, THE TIME TAKEN IN GIVING AN OPPORTUNITY TO THE ASSESSEE TO BE RE-HEARD UNDER THE PROVISO TO SECTION 129 AND ANY PERIOD DURING WH ICH ANY PROCEEDING UNDER THIS SECTION IS STAYED BY AN ORDER OR INJUNCTION OF ANY COURT SHALL BE EXCLUDED. (7) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTI ON (6), AN ORDER IN REVISION UNDER SUB-SECTION (6) MAY BE PASSED AT ANY TIME IN CONSEQ UENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER OF THE A PPELLATE TRIBUNAL, NATIONAL TAX TRIBUNAL,] THE HIGH COURT OR THE SUPREME COURT. EXPLANATION 1. AN ORDER BY THE COMMISSIONER DECLINING TO INTERFER E SHALL, FOR THE PURPOSES OF THIS SECTION, BE DEEMED NOT TO BE AN OR DER PREJUDICIAL TO THE ASSESSEE. EXPLANATION 2. FOR THE PURPOSES OF THIS SECTION, THE DEPUTY COMMI SSIONER (APPEALS) SHALL BE DEEMED TO BE AN AUTHORITY SUBORDINATE TO T HE COMMISSIONER. 12. AS ON 28.11.2011 WHEN THE DIT(E) PASSED THE OR DER U/S.264 OF THE ACT, THE ORDER OF ASSESSMENT THAT WAS SOUGHT TO BE REVISED U/S.264 OF THE ACT WAS SUBJECT OF AN APPEAL TO THE CIT(A). IT IS NO DOUBT TRUE THAT THE DIT(E) COULD NOT HAVE PROCEEDED TO PASS AN ORDER U/S.264 OF THE ACT AS ON THE DATE ON WHICH HE PASSED THE ORDER. EVEN THE CBDT CIRCULAR NO.367 DATED 26.07.1983 HAS CLARIFIED THE MEANING OF THE WORD SUBJECT OF AN APPEAL BY CONCLUDING THAT A N ORDER CANNOT BE SAID TO HAVE BEEN MADE SUBJECT OF AN APPEAL IF THE APPEAL HAS BEEN DISPO SED OF BY THE CIT(A) OR THE ITAT WITHOUT PASSING AN ORDER U/S 251(1) OR 254(1) ON MERITS. TH EREFORE DISPOSAL OF APPEAL BY CIT(A), OTHERWISE THAN BY PASSING AN ORDER U/S.251(1) OF TH E ACT ON MERIT WAS A REQUIREMENT TO TAKE THE BENEFIT OF THE CIRCULAR. ADMITTEDLY THE NO ORD ER DISPOSING THE APPEAL EITHER BY PASSING AN ORDER U/S.251(1) OF THE ACT OR OTHERWISE WAS PASSED BY THE CIT(A) AS ON THE DATE ON WHICH THE DIT(E) PASSED THE ORDER U/S.264 OF THE ACT. BE THAT AS IT MAY, THE QUESTION IS WHETHER THE CIT(A) CAN QUESTION THE VALIDITY OF ORDER PASSED U/ S.264 OF THE ACT AND IGNORE THE SAME ON THE GROUND THAT THE DIT(E) COULD NOT HAVE PASSED TH E ORDER ON 28.11.2011 U/S.264 OF THE ACT, AS THE ORDER OF ASSESSMENT THAT WAS SOUGHT TO BE RE VISED WAS SUBJECT TO AN APPEAL BEFORE THE CIT(A). IN OUR VIEW IT WAS NOT PROPER FOR THE CIT(A) TO HAV E GONE INTO THE MAINTAINABILITY OF AN APPLICATION MADE BY THE ASSE SSEE U/S 264 OF THE ACT. THE ADMITTED POSITION IN THIS CASE IS THAT AGAINST THE ORDER OF ASSESSMENT THE ASSESSEE HAD FILED AN APPEAL BEFORE CIT(A). AS EARLY AS 02.09.2 011, THE ASSESSEE SOUGHT TO WITHDRAW THE APPEAL BEFORE CIT(A) BY FILING A LETTE R IN THE OFFICE OF THE CIT(A)-XIV, KOLKATA. ON 06.09.2011 THE ASSESSEE FILED A PETITI ON U/S 264 OF THE ACT AGAINST THE ORDER OF ASSESSMENT DATED 29.12.2010. THE CIT CONSI DERED THE PETITION U/S 264 OF THE 8 ITA NO.1128/KOL/2013-NATIONAL NEUROSCIENCES CENTRE, CALCUTTA-A.Y.2008-09 ACT AND PASSED AN ORDER DATED 28.11.2011. AT THE TI ME OF HEARING BEFORE CIT(A), JALPAIGURI ON 10.01.2013 THE ASSESSEE AGAIN BROUGHT TO THE NOTICE OF THE CIT(A) OF THE FACTS WITH REGARD TO THE PETITION U/S 264 OF THE AC T AND THE ORDER PASSED BY CIT U/S 264 OF THE ACT. THE CIT WAS ALSO INFORMED THAT PURSUANT TO THE ORDER U/S 264 OF THE ACT THE AO HAS ALSO PASSED AN ORDER GIVING EFFECT DATED 29. 12.2011. THE CIT(A)-XIV, KOLKATA, IF HE HAD DESIRED TO EXERCISE HIS POWERS O F ENHANCEMENT OUGHT TO HAVE INFORMED THE ASSESSEE THAT HE WISHES TO EXERCISE PO WERS OF ENHANCEMENT AND THEREFORE THE REQUEST FOR WITHDRAWAL OF THE APPEAL WOULD NOT BE ACCEDED TO. THIS IS BECAUSE THE PERIOD OF LIMITATION FOR FILING AN APPL ICATION FOR REVISION U/S.264 OF THE ACT IN TERMS OF SEC.264(3) IS ONE YEAR FROM THE DATE ON WHICH THE ORDER SOUGHT TO BE REVISED WAS COMMUNICATED TO THE ASSESSEE. THE ORDE R OF ASSESSMENT IN THE PRESENT CASE WAS PASSED ON 29.12.2010. THE PERIOD OF LIMIT ATION WOULD THEREFORE END BY 29.12.2010. IN THE GIVEN CIRCUMSTANCES, THE CIT(A) COULD NOT HAVE QUESTION THE MAINTAINABILITY OF THE APPLICATION OF THE ASSESSEE BEFORE THE DIT(E) U/S.264 OF THE ACT. 13. THE EFFECT OF THE ORDER DATED 28.11.2011 IS TH AT THE ORDER OF THE AO DATED 29.12.2010, CEASED TO EXIST AND GOT MERGED WITH THE ORDER OF THE DIT(E) PASSED U/S.264 OF THE ACT. ON THE DATE WHEN CIT(A) CAME TO DECIDE THE APPEALS THE ORDERS OF ASSESSEE HAS ALREADY BEEN REVISED BY CIT U/S 264 OF THE ACT AND THEREBY THE APPEAL BEFORE CIT(A) WERE RENDERED INCOMPETENT. IN THE GIV EN FACTS AND CIRCUMSTANCES THE CIT(A) OUGHT NOT TO HAVE EXERCISED HIS APPELLATE JU RISDICTION ON THE APPEAL FILED BY THE ASSESSEE. AS WE HAVE ALREADY OBSERVED THAT WHEN CIT (A) CANNOT QUESTION THE JURISDICTION OF CIT U/S 264 OF THE ACT ON THE GROUN D THAT THERE WAS VIOLATION OF THE PROVISION OF SECTION 264(4)(C) OF THE ACT. WE ARE O F THE VIEW THAT IN THE LIGHT OF THE ABOVE CONCLUSIONS THE QUESTION WHETHER THE ASSESSEE CAN WITHDRAW AN APPEAL FILED BEFORE CIT(A), BECOMES ACADEMIC, SINCE THE APPEAL B EFORE CIT(A) ITSELF WAS INCOMPETENT. WE, THEREFORE HOLD THAT THE ORDER PASS ED BY CIT(A) HAS TO BE CANCELLED AS INCOMPETENT AND SUPERFLUOUS, IN VIEW OF THE ORDE R OF CIT U/S 264 OF THE ACT. IN VIEW OF THE ABOVE CONCLUSIONS THE OTHER CONTENTIONS PUT FORTH BEFORE US ARE NOT TAKEN INTO CONSIDERATION. 9 ITA NO.1128/KOL/2013-NATIONAL NEUROSCIENCES CENTRE, CALCUTTA-A.Y.2008-09 14. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE COURT ON 08.07.2016. SD/- SD/- [M.BALAGANESH ] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 08.07.2016. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.NATIONAL NEUROSCIENCES CENTRE, CALCUTTA, PEERLESS HOSPITAL CAMPUS, 2 ND FLOOR, 360, PANCHASAYAR, KOLKATA-700094. 2.I.T.O., (EXEMPTION)-1, KOLKATA. 3. CIT(A)-JALPAIGURI 4. D.I.T. (EXEMPTION), KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, ASST. REGISTRAR, ITAT, KOLKATA BENCHES