Shri Ram Lal, JODHPUR V. CIT, JAIPUR

ITA 216/JODH/2014

• Counselvise Citation: 21623314 RSA 2014
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 07-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Assessee Lawyers: DEEPAK ARORA
• Keywords: Reopening of assessment; Principle of natural justice; Period of limitation; Assessment record; Time period of passing order
• Section: 143(3); 153A; 147; 263; 132; 12; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH: J ODHPUR ( BEFORE SHRI H ARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER ) I.T.A. NO. 216 / JODH /201 4 ASSTT. YEAR - 20 0 5 - 0 6 SHRI RAM LAL V S CIT, CENTRAL, S/O SHRI MOHAN LAL SUT HAR JAIPUR. 51, RAM NAGAR, SALAWAS ROAD, JODHPUR. PAN NO. AWQPS2433K (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMIT KOTHARI, AND SHRI DEEPAK ARORA. DEPARTMENT BY : SHRI O.P. MEENA - CIT - D.R. DATE OF HEARING : 0 6 /0 8 /201 4 DATE OF PRONOUNCEMENT : 14 /0 8 /2014 O R D E R P E R HARI OM MARATHA, J.M. : THIS APPEAL OF THE ASSESSEE, FOR A.Y. 2005 - 06, IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (ADMINISTRATION) (CENTRAL), JAIPUR, DATED 26.02.2014. 2 2. BRIE FLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE SHRI RAM L AL SUTHAR BELONGS TO SHRI MOHAN LAL JANGID SUB - GROUP AND IS ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF PLOTS AS A REALTOR. AFTER PURCHASING SIZEABLE CHUNKS OF LAND HE DEVELOPS AND DIVID ES THEM INTO SALEABLE SIZES OF PLOTS BEFORE SELLING TO T HE PROSPECTIVE BUYERS. IN THIS PROCESS HE ALSO EARN ED COMMISSION INCOME. A SEARCH OPERATION U/S 132 OF THE INCOME TAX ACT, 1961, THE ACT FOR SHORT, WAS CARRIED OUT AT THE RESIDENTIAL WELL AS BUSINES S PREMISES OF THE ASSESSEE AND HIS FAMILY MEMBERS ON 15/12/2009 AND 16/12/2009. DURING THIS SEARCH VARIOUS INCRIMINATING EVIDENCE WERE FOUND AND SEIZED. THE ASSESSEE HAD ALREADY FILED HIS RETURN OF INCOME U/S 139(1) OF THE ACT FOR A.Y. 2005 - 06, ON 25.05.2 006, DECLARING TOTAL INCOME OF RS. 97,750/ - AND RS. 44,420/ - AS AGRICULTURAL INCOME . 2.1 CONSEQUENT UPON THIS SEARCH A NOTICE U/S 153A OF THE ACT WAS ISSUED TO THE ASSESSEE ON 14.10.2010. IN RESPONSE TO THIS NOTICE, THE ASSESSEE SUBMITTED HIS ROI ON 15.04 .2011 DECLARING SAME INCOME I.E., RS. 97,750? - AND ALSO DISCLOSED AGRICULTURAL INCOME FOR RATE PURPOSES OF RS. 44,420/ - . 3 2.2 WITH A VIEW TO FOLLOW A MANDATORY REQUIREMENT, A DRAFT ASSESSMENT ORDER WAS PREPARED AND SENT U/S 153D OF THE ACT FOR THE APPROVA L OF THE JCIT . IN THAT DRAFT ORDER THE A.O DETERMINED INCOME AT RS. 2,03,57,200/ - , WHERE INCOME WAS DETERMINED AT RS. 2,03,57,200/ - PROPOSING THE FOLLOWING ADDITIONS THEREIN : - S.NO DETAILS OF HEAD AMOUNT 1 RETURNED INCOME 97,750/ - 2 ADDITION ON ACCO UNT OF SURRENDER OF INCOME MADE (PARA NO.7) 76,82,000/ - 3 ADDITION ON ACCOUNT OF RAM NAGAR SCHEME . 1,20,38,693/ - 4 ADDITION ON ACCOUNT OF UNEXPLAINED HOUSE HOLD EXPENSES 1,62,000/ - 5 ADDITION ON ACCOUNT OF UNEXPLAINED ADVANCES 4,94,420/ - 6 ADDITION ON ACCOUNT OF AGRICULTURE INCOME TREATED AS INCOME FROM OTHER SOURCES 44,420/ - TOTAL INCOME 2,03,57,203/ - WHEREAS CORRECT AMOUNT SHOULD HAVE BEEN 2,05,19,283 DIFFERENCE OF RS. 1,62,080 THE JCIT GAVE HIS REQUISITE APPROVAL ON 29.12.2011. THE REAFTER, THE ASSESSMENT ORDER WAS PASSED IN THIS CASE, U/S 153A/143(3)/153B, ON 30.12.2011 BY THE ACIT, CENTRAL CIRCLE - 2, JODHPUR, DETERMINING THE ASSESSEES TOTAL INCOME AT RS. 4,24,93,130/ - , AS AGAINST SUBMITTED FOR APPROVAL AS ABOVE. AGAINST THIS ORDER T HE ASSES SEE FILED APPEAL BEFORE 4 LD. CIT(A). DURING THE PENDENCY OF THIS APPEAL, THE CIT(ADMINISTRATION) CALLED FOR THE RECORDS OF THIS ASSESSMENT ORDER AND PROPOSED TO REV ISE THE SAME U/S 263 OF THE ACT. A SHOW - CAUSE NOTICE U/S 263 OF THE ACT WAS ISSUED ON 12.02.2 0 0 3 AND THEREAFTER, AGAIN ON 10.02.2014. THE ASSESSEE REPLIED THE SHOW - CAUSE NOTICE DATED 10.02.2014. AS PER PARA - 7 OF LD. CITS ORDER REPLIES DATED 20.02.2013 AND 21.02.2013 WERE FILED BEFORE HIM . IN THIS REPLY IT WAS ASSERTED THAT THERE BEING NO VALID AS SESSMENT ORDER PASSED IN THIS ASSESSEES CASE AN INVALID ORDER WHICH IS NON - EST IN THE EYES OF LAW, CANNOT BE REVISED U/S 263 OF THE ACT. I N ESSENCE , THE CONTENTIONS OF THE ASSESSEE ARE THREE - FOLD (1) THERE BEING NO VALID ASSESSMENT ORDER IN EXISTENCE, TH E ASSUMPTION OF JURISDICTION U/S 263 IS ALSO INVALID, (2) THAT U/S 263 ASSESSED INCOME CANNOT BE REDUCED AS IT WOULD AMOUNT TO CAUSING PREJUDICE TO THE REVENUE AND IT IS NOT THE INTENTION OF THE LEGISLATURE THAT U/S 263 THE PROPOSED AMENDMENT IN THE ASSES SED INCOME WOULD REDUCE THE ASSESSED INCOME AND THERE WOULD BE A PRODUCE CAUSED TO THE REVENUE BY THE ORDER OF THE COMMISSIONER AND (3) THAT UNDER THE GUISE OF ASSUMPTION OF JURISDICTION U/S 263, THE LD. CIT CANNOT ORDER FRAMING OF ASSESSMENT ORDER WHERE N O VALID ORDER WAS PASSED U/S 153A OF THE ACT AS IT WOULD AMOUNT TO ENLARGE THE LIMITATION PRESCRIBED TO FRAME IT. HOWEVER, AFTER OBSERVING, INTER ALIA, IN PARA 6 OF HIS ORDER, THE LD. COMMISSIONER 5 HAS FOUND THAT THIS ORDER IS NOT ONLY ERRONEOUS BUT ALSO P REJUDICIAL TO THE INTEREST OF THE REVENUE. CONSEQUENTLY, HE HAS SET ASIDE THE ASSESSMENT ORDER AND HAS DIRECTED THE A.O. PASS A FRESH ASSESSMENT ORDER. T HAT IS WHY T HE ASSESSEE HAS PREFERRED THIS APPEAL BY RAISING THE FOLLOWING GROUNDS : - 1. THE ORDER PASSED BY THE ID. CIT - CENTRAL, JAIPUR U/S 263 IS BAD IN LAW AND BAD ON FACTS AND WITHOUT PROPER JURISDICTION. 2. THERE WAS NO VALID ORDER PASSED BY THE ID. A.O., THEREFORE IT CANNOT BE SAID THAT ANY ORDER WAS ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE. 3. TH E PERIOD OF LIMITATION CANNOT BE EXTENDED BY GIVING FURTHER TIME TO THE ID. A.O. TO MAKE A VALID ORDER, WHEN NO VALID ORDER WAS MADE BEFORE THE EXPIRY OF LIMITATION PERIOD. 4. THE ID. CIT HAD ALSO OBSERVED THAT THE ORDER WHICH WAS COMMUNICATED TO THE APPELLA NT WAS DIFFERENT ORDER, AND WAS NOT IN THE CASE OF THE APPELLANT, WHICH CLEARLY INDICATE THAT NO VALID ORDER WAS MADE, THEREFORE NO VALID JURISDICTION CAN BE ASSUMED. 5. THE POWERS VESTED U/S 263 TO CORRECT THE LAPSES COMMITTED BY THE ID. A.O. 6 6. THE DRAFT OR DER IN THE FILE OF THE ASSESSMENT RECORDS CANNOT PARTAKE THE CHARACTER OF AN ORDER, AND NO PROCEEDINGS ON THE BASIS OF SUCH ORDER CAN BE INITIATED. 7. AN ORDER CAN BE SAID TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE ONLY WHEN THERE IS AN EXIST ENCE OF ANY VALID ORDER IN THE EYE OF LAW. 8. AN ORDER WHICH WAS SERVED UPON THE APPELLANT WAS NEITHER THE ORDER PASSED, NOR WAS THE ORDER APPROVED U/S 153D, THEREFORE IS CONTRARY TO THE PROVISIONS OF LAW AND NON EST ORDER IN THE EYE OF LAW. 9. THE ID. CIT CEN TRAL HAD OBSERVED THAT THE ORDER MADE AT RS.4,24,93,130/ - WAS NOT CORRECT AND AS PER THE DRAFT ORDER THE INCOME WAS ONLY RS.2,05,19,283/ - WHICH ALSO INDICATES THAT THE ORDER CANNOT BE SAID TO BE PREJUDICIAL TO THE INTEREST OF REVENUE, AND THE TWIN CONDITIO NS ARE ALSO NOT SATISFIED. 10. THE ID. A.O. DURING THE COURSE OF PROCEEDINGS MAY MAKE MANY DRAFT ORDER, BUT THE FINAL ORDER WHICH IS PASSED ONLY THAT ORDER CAN PARTAKE THE CHARACTER OF AN ORDER, AND ALL EARLIER DRAFT ORDER OR COMMUNICATIONS BETWEEN THE OFFICE RS OF THE DEPARTMENT CANNOT PARTAKE THE CHARACTER OF ORDER, WHICH CAN BE SUBJECTED TO JURISDICTION U/S 263. 7 11. THE EXTENSION OF TIME GRANTED BY THE CIT, CENTRAL JAIPUR GIVEN TO THE ID. A.O. TO MAKE A CORRECT ORDER IS JUST TO OVERCOME THE LIMITATION OF TIME P ROVIDED U/S 153B TO MAKE A VALID ORDER U/S 153A. 12. THE ID. CIT, CENTRAL HAD ERRED IN OBSERVING THAT THE INCOME OF THE APPELLANT AS PER DRAFT ORDER DESERVES TO BE COMPUTED AT RS.2,05,19,283/ - WITHOUT EXAMINING THE VARIOUS ITEMS ON MERITS. NO FINDING HAD BEEN GIVEN ON THE VARIOUS ISSUES FOR WHICH ADDITIONS HAD BEEN PROPOSED. NO REASON HAD BEEN PROVIDED FOR INCLUSION OF SUCH INCOME IN THE HANDS OF THE APPELLANT. THE DIRECTIONS SO GIVEN WITHOUT EXAMINING THE ISSUES ON MERITS AND WITHOUT GIVING ANY OPPORTUNITY TO THE APPELLANT ON SUCH ISSUES IS INVALID AND SUCH ORDER IS BAD IN LAW AND ON FACTS AND IS ALSO CONTRARY TO ALL PRINCIPLES OF NATURAL JUSTICE. 13. THE LIMITATION OF TIME FOR MAKING A VALID ORDER BEING ALREADY EXPIRED, NO FURTHER TIME COULD HAVE BEEN GIVEN BY DI RECTING THE AO TO MAKE A CORRECT ASSESSMENT. THE DIRECTIONS SO GIVEN BY ORDER U/S 263 ARE APPARENTLY BEYOND THE SCOPE AND POWERS U/S 263. 2.3 WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE ENTIRE RECORD. BOTH THE PARTIES HAVE REPEATED THE IR ARGUMENTS FOR AND AGAINST THE ORDER IN QUESTION. IT IS TRITE THAT AN ORDER CAN BE REVISED ONLY AND ONLY IF TWIN CONDITIONS OF ERROR IN THE ORDER AND PREJUDICE 8 CAUSED TO THE REVENUE CO - EXIST. T HE SUBJECT OF REVISION UNDER SECTION 263 HAS BEEN VAST LY EXAMINED AND ANALYZED BY VARIOUS COURTS INCLUDING THAT OF HONBLE APEX COURT. THE REVISIONAL POWER CONFERRED ON THE CIT VIDE SECTION 263 IS OF VIDE AMPLITUDE. IT ENABLES THE CIT TO CALL FOR AND EXAMINE THE RECORDS OF ANY PROCEEDING UNDER THE ACT. IT EMPOWERS THE CIT TO MAKE OR CAUSE TO BE MADE SUCH AN ENQUIRY AS HE DEEMS NECESSARY IN ORDER TO FIND OUT IF ANY ORDER PASSED BY ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE ONLY LIMITATION ON HIS POWERS IS THAT HE MUST HAVE SOME MATERIAL(S) WHICH WOULD ENABLE HIM TO FORM A PRIMA FACIE OPINION THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. ONCE HE COMES TO THE ABOVE CONCLUSION O N THE BASIS OF THE MATERIAL THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND ALSO PREJUDICIAL TO THE INTERESTS OF THE REVENUE, THE CIT IS EMPOWERED TO PASS AN ORDER AS THE CIRCUMSTANCES OF THE CASE MAY WARRANT. HE MAY PASS AN ORDER ENHANCING THE ASSESSMENT OR HE MAY MODIFY THE ASSESSMENT. HE IS ALSO EMPOWERED TO CANCEL THE ASSESSMENT AND DIRECT TO FRAME A FRESH ASSESSMENT. HE IS EMPOWERED TO TAKE RECOURSE TO ANY OF THE THREE COURSES INDICATED IN SECTION 263. SO, IT IS CLEAR THAT THE CIT DOES N OT HAVE UNFETTERED AND UNCHEQU E R E D DISCRETION TO REVISE AN ORDER. THE 9 CIT IS REQUIRED TO EXERCISE REVISIONAL POWER WITHIN THE BOUNDS OF THE LAW AND HAS TO SATISFY THE NEED OF FAIRNESS IN ADMINISTRATIVE ACTION AND FAIR PLAY WITH DUE RESPECT TO THE PRINCIPL E OF AUDI ALTERAM PARTEM AS ENVISAGED IN THE CONSTITUTION OF INDIA AS WELL AS IN SECTION 263. AN ORDER CAN BE TREATED AS ERRONEOUS IF IT WAS PASSED IN UTTER IGNORANCE OR IN VIOLATION OF ANY LAW; OR PASSED WITHOUT TAKING INTO CONSIDERATION ALL THE RELEV ANT FACTS OR BY TAKING INTO CONSIDERATION IRRELEVANT FACTS. THE PREJUDICE THAT IS CONTEMPLATED UNDER SECTION 263 IS THE PREJUDICE TO THE INCOME TAX ADMINISTRATION AS A WHOLE. THE REVISION HAS TO BE DONE FOR THE PURPOSE OF SETTING RIGHT DISTORTIONS AND PREJUDICES CAUSED TO THE REVENUE IN THE ABOVE CONTEXT. THE FUNDAMENTAL PRINCIPLES WHICH EMERGE FROM THE SEVERAL CASES REGARDING THE POWERS OF THE CIT UNDER SECTION 263 MAY BE SUMMARIZED BELOW: (I) THE CIT MUST RECORD SATI SFACTION THAT THE ORDER OF THE A SSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. BOTH THE CONDITIONS MUST BE FULFILLED. (II) SECTION 263 CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE ASSESSING OFFICER AND IT IS ONL Y WHEN AN ORDER IS ERRONEOUS, THAT THE SECTION WILL BE ATTRACTED. 10 (III) AN INCORRECT ASSUMPTION OF FACTS OR AN INCORRECT APPLICATION OF LAW WILL SUFFICE FOR THE REQUIREMENT OR ORDER BEING ERRONEOUS. (IV) IF THE ORDER IS PASSED WITHOUT APPLICATION OF MIND, SUCH ORDER WILL FALL UNDER THE CATEGORY OF ERRONEOUS ORDER. (V) EVERY LOSS OF REVENUE CANNOT BE TREATED AS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND IF THE ASSESSING OFFICER HAS ADOPTED ONE OF THE COURSES PERMISSIBLE UNDER LAW OR WHERE TWO VIEWS ARE POSSIBLE AND THE ASSESSING OFFICER HAS TAKEN ONE VIEW UNDER WITH WHICH THE CIT DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER, UNLESS THE VIEW TAKEN BY THE ASSESSING OFFICER IS UNSUSTAINABLE UNDER THE LAW. (VI) IF WHILE MAKING THE ASSESSMENT, THE ASSESSING OFFICER EXAMINES THE ACCOUNTS, MAKES ENQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINES THE INCOME, THE CIT, WHILE EXERCISING HIS POWER UNDER SECTION 263, IS NOT PERMITTED TO SUBSTITUTE HIS E STIMATE OF INCOME IN PLACE OF THE INCOME ESTIMATED BY THE ASSESSING OFFICER. 11 (VII) THE ASSESSING OFFICER EXERCISE QUASI - JUDICIAL POWER VESTED IN HIM AND IF HE EXERCISE SUCH POWER IN ACCORDANCE WITH LAW AND ARRIVES AS A CONCLUSION, SUCH CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS SIMPLY BECAUSE THE CIT DOES NOT FEEL SATISFIED WITH THE CONCLUSION. (VIII) THE CIT, BEFORE EXERCISING HIS JURISDICTION UNDER SECTION 263, MUST HAVE MATERIAL ON RECORD TO ARRIVE AT A SATISFACTION. (IX) IF THE ASSESSING OFFICER HAS M ADE ENQUIRIES DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON THE RELEVANT ISSUES AND THE ASSESSEE HAS GIVEN DETAILED EXPLANATION BE A LETTER IN WRITING AND THE ASSESSING OFFICER ALLOWED THE CLAIM ON BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE, THE DECISION OF THE ASSESSING OFFICER CANNOT BE HELD TO BE ERRONEOUS SIMPLY BECAUSE IN HIS ORDER HE DOES NOT MAKE AN ELABORATE DISCUSSION IN THAT REGARD. 3. NOW, IT BECOMES EVIDENT THAT U/S 263 , ANY ORDER CAN BE REVISED. THE DELINEATE MEANING OF THE PHRA SE ANY ORDER IS T HIS POWER IS NOT LIMITED QUA ORDER OF ASSESSMENT ONLY. REVISION IS NOT LIKE RE - OPENING OF ASSESSMENT. SECTION 263 DOES NOT VISUALIZE A CASE OF SUBSTITUTION OF JUDGMENT OF C OMMISSIONER FOR THAT OF THE ASSESSING OFFICER, UNLESS THE DECISIO N IS HELD TO BE ERRONEOUS. THE PROCEEDINGS 12 UNDER SECTION 263 ARE TO BE HELD AS DURING THE PENDENCY OF AN APPEAL BEFORE CIT(A), EVEN THOUGH THE ISSUES IN REVISION ARE DIFFERENT FROM THOSE IN APPEAL IT WAS SO HELD BY THE HONBLE DELHI HIGH COURT IN THE CASE AERENS INFRASTRUCTURE & TECHNOLOGY LTD. VS CIT (2004) 271 ITR 15 (DELHI). THE LUCKNOW BENCH OF THE ITAT HAS TAKEN A VIEW THAT THE ORDER OF THE A.O. IS VOID, THEN THE ORDER PASSED BY CIT U/S 263 OF THE ACT IS WITHOUT JURISDICTION. REFER - INDER KUMAR BACHANI (HUF) VS ITO (2006) 101 TTJ 450 (LUCKNOW). WHEN THE ASSESSMENT ORDER FOR A.Y. 1987 - 88 WAS COMPLETED U/S 143(1)(A) AND NOTICE UNDER SECTION 14392) HAD NOT BEEN ISSUED AND TIME FOR COMPLETING ASSESSMENT UNDER SECTION 143(3) HAD EXPIRED THE COMMISSIONER CO ULD NOT DIRECT ASSESSMENT ORDER SECTION 143(3) BY IS REVISION ORDER UNDER SECTION 263. V. NARAYANAN VS DCIT (2011) 127 ITD 133 (CHENNAI) (T.M.) 4 . AFTER CONSIDERING THE DETAILED FACTS OF THIS CASE WHICH ARE VERY PIQUANT IN NATURE, IT IS NOTED THAT IN FAC T, NO ORDER HAS BEEN PASSED IN THIS ASSESSEES CASE. WHATEVER ORDER HAS BEEN PASSED PERTAINS TO ASSESSEES FATHER. THE LIMIT FOR PASSING ASSESSMENT ORDER HAS ALREADY EXPIRED. THE ASSESSEE HAS FILED ROI FOR A.Y. 2005 - 06 AND WHATEVER INCOME HAS BEEN RETUR NED IN THAT ROI IS TO BE TREATED AS INCOME ASSESSED BY THE A.O. THE ORDER WHICH THE COMMISSIONER HAS SOUGHT TO 13 REVISE IS, IN FACT, NOT AN ORDER AT ALL IN THE EYES OF U/S 263 IN VIEW OF THE DETAILED EXPLANATION INCORPORATED IN THE FORMER PART OF THIS ORDER . IT IS LEGAL CERTAINTY THAT ONLY AN ORDER WHICH IS VALID AND NOT VOID CAN BE REVISED. WHEN THE ORDER SOUGHT TO BE REVISED IS NOT A VALID ORDER AT ALL, THE JURISDICTION OF THE LD. CIT GETS EXCLUDED AND HE HAS GOT NO REASON TO REVISE THE SAME. THE LD. CI T HAS OBSERVED THAT NO ORDER HAS BEEN PASSED IN THE CASE OF THIS ASSESSEE WHILE PASSING HIS REVISIONAL ORDER. APART FROM NOT MAKING AN ORDER IN THIS ASSESSEES CASE, REQUISITE CONDITIONS OF SECTION 153D OF THE ACT WHICH REQUIRES APPROVAL OF THE DRAFT ORDE R HAS NOT BEEN OBTAINED. WHEN NO ORDER HAS BEEN PASSED, THEN HOW IT CAN BE TREATED AS ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF THE REVENUE . IN FACT, THE PROCESSING OF THE RETURN FILED BY THE ASSESSEE DONE U/S 143(1) OF THE ACT MADE ON THE ORIGINAL RET URN SUBMITTED BY THE ASSESSEE FOR THIS YEAR IS ONLY COMMENTS ORDER AND NO ERROR HAS BEEN POINTED OUT IN THAT ORDER AS THAT ORDER IS NOT THE SUBJECT MATTER OF REVISION . THE REVISIONAL ORDER DOES NOT SPEAK ABOUT ANY INCOME HAVING REMAINED TO BE CONSIDERED I N TERMS OF SECTION 263 OF THE ACT AND THUS THE ASSUMPTION OF JURISDICTION BY THE LD. CIT IS FAULTY. THE PERUSAL OF THE SHOW CAUSE NOTICE INDICATES THAT THE ORIGINAL ORDER WAS PASSED IN WHICH THE INCOME WAS ASSESSED AT RS. 4,24,93,130/ - AND THE SAME IS SOU GHT TO BE REVISED AT LOWER INCOME OF 14 RS. 2,03,57,203/ - AND IF THAT BE SO , IT WILL CAUSE PREJUDICE TO THE INTEREST OF THE REVENUE NOT B Y THE ORDER OF THE A.O BUT BY THE ORDER OF THE LD. CIT WHICH IS NOT PERMISSIBLE U/S 263 OF THE ACT. THE LD. CIT CAN REVIS E ANY ERRONEOUS ORDER IF ANY PREJUDICE HAS BEEN CAUSED TO THE INTEREST OF THE REVENUE U/S 263 OF THE ACT BUT HE CANNOT CORRECT THE ACT OF MAK ING THE DEPARTMENT SUFFER BY DIRECTING THE A.O TO ASSESS INCOME AT A LESSER AMOUNT , RATHER R EDUCTION IN THE ASSESSE D INCOME WILL BENEFIT THE ASSESSEE . T HE CATCH IN THIS CASE SEEMS TO BE THAT TAKING RECOURSE TO THE REVISIONAL POWERS THE TIME PERMITTED FOR COMPLETION OF ASSESSMENT IS BEING ENLARGED. T HE LD. A.R HAS RELIED ON VARIOUS JUDGMENTS WHICH ARE FOUND TO BE DIREC TLY APPLICABLE TO THE FACTS OF THE GIVEN CASE. 5. THE LD. A.R HAS RELIED ON THE FOLLOWING DECISIONS: 5.1 IN 230 ITR 495 IN THE CASE OF CIT V. MRS. RATANBAI N.K. DUBASH (SUPRA), THE HON'BLE BOMBAY HIGH COURT HAS ANNULLED THE ASSESSMENT ON THE GROUND OF LI MITATION AND HELD AS UNDER: AN ASSESSMENT SHOULD, THEREFORE, BE ANNULLED WHERE THE ASSESSMENT PROCEEDING IS A NULLITY, IN THE SENSE THAT THE AO HAD NO JURISDICTION TO TAKE THE PROCEEDING AND/OR TO MAKE A FINAL ORDER OF ASSESSMENT HIMSELF. ONCE THE ASSESSM ENT IS ANNULLED, THE ORDER OF ASSESSMENT WILL CEASE TO EXIST. THE ITO WILL BE AT THE STAGE WHERE THE ILLEGALITY SUPERVENED, 15 WHICH RESULTED IN THE ANNULMENT OF THE ASSESSMENT. IT WOULD BE OPEN TO THE ITO TO TAKE UP THE MATTER FROM THE POINT AT WHICH THE ILL EGALITY SUPERVENED AND TO PASS A FRESH ORDER EVEN IN THE CASE OF ANNULMENT OF THE ASSESSMENT, IF IT CAN BE MADE ACCORDING TO THE PROVISIONS OF LAW AND IF THE TIME - LIMIT FOR TAKING FURTHER PROCEEDINGS IN THE MATTER AND MAKING THE ASSESSMENT, IF ANY, IS STIL L AVAILABLE. IN THE INSTANT CASE, THERE IS A TIME - LIMIT FOR MAKING AN ASSESSMENT. AN EXTENDED TIME - LIMIT HAS BEEN PROVIDED FOR MAKING FRESH ASSESSMENT IN CASES WHERE THE ORIGINAL ASSESSMENT HAS BEEN SET ASIDE BY THE APPELLATE AUTHORITY UNDER SECTION 251 OF THE ACT. NO EXTENDED LIMITATION IS, HOWEVER, AVAILABLE UNDER SECTION 251 FOR MAKING FRESH ASSESSMENT IN A CASE WHERE THE ORIGINAL ASSESSMENT IS ANNULLED. IF THE ORIGINAL TIME - LIMIT IS STILL AVAILABLE, THE ITO MAY PROCEED FROM THE STAGE AT WHICH THE ILLEGA LITY WHICH RESULTED IN THE ANNULMENT OF THE ASSESSMENT SUPERVENED AND TO MAKE THE ASSESSMENT AFRESH. 5.2 IN 194 CTR 84 [RAJ] IN THE CASE OF CIT VS. RAMESH CHAND SONI IT HAS BEEN HELD AS UNDER: APPLYING THE AFORESAID PROVISION AS ON DATE THE BLOCK ASSESSM ENT WAS MADE I.E. 8.3.2001, THE ARITHMETIC OF PERIOD OF LIMITATION ON THE AFORESAID ANVIL IS CLEAR AND UNDISPUTED THAT BEREFT OF THE CONTROVERSY ABOUT THE VALIDITY OF ORDER UNDER SECTION 142 (2A) OR THE EXTENSION OF PERIOD FOR FURNISHING THE REPORT UNDER S ECTION 142(2A), BY EXCLUDING FULL PERIOD 180N DAYS RESULTS IN EXPIRY OF THE PERIOD OF LIMITATION ON 27TH FEB., 2001. THE COMMENCEMENT OF THE LIMITATION TAKES PLACE FROM THE END 16 OF THE MONTH IN WHICH LAST OF THE AUTHORISATION FOR SEARCH WAS EXECUTED WHICH W E HAVE NOTICED WAS EXECUTED ON RECORDING OF THE LAST PANCHNAMA ON 28TH AUGUST, 1998. THE LIMITATION PERIOD, THEREFORE, FOR COMPLETION OF ASSESSMENT FOR THE BLOCK PERIOD 1988 - 98 COMMENCED ON 1ST OF SEPT., 1998 AND THE TWO YEARS WOULD EXPIRE ON 31ST AUGUST, 2000. THE PERIOD WHICH IS SOUGHT TO BE EXCLUDED BY THE REVENUE UNDER CLAUSE 2 OF EXPLANATION 1 TO THE MAXIMUM LIMIT OF 180 DAYS IF ADDED AFTER 31ST AUGUST 2000, THE PERIOD EXPIRES ON 27TH FEB., 2001. THE ASSESSMENT WAS STILL BARRED BY LIMITATION BY 9 DAYS. THEREFORE, UNLESS THE BENEFIT OF PROVISO INSERTED VIDE FINANCE ACT, 2002 W.E.F. 1.6.2002 CAN BE EXTENDED TO THE REVENUE, THE LIMITATION HAD CLEARLY AND UNQUESTIONABLY EXPIRED FOR COMPLETING THE ASSESSMENT FOR BLOCK PERIOD IN QUESTION WHEN THE ORDER WAS MA DE. THIS IS ALSO NOT A MATTER OF CONTENTION. 5.3 IN 229 ITR 72 1 [MDS] IN THE CASE OF CIT VS. SURESH GOKULDAS, THE HONBLE MADRAS HIGH COURT HAS HELD AS UNDER: THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 154 WOULD BE DEEMED TO BE NON EST IN THE EYE OF LAW. IF, THERE WAS NO ORDER PASSED UNDER SECTION 154, THEN, NO APPEAL WOULD LIE AGAINST SUCH AN ORDER. CONSEQUENTLY, NO REFERENCE WOULD ALSO ARISE OUT OF THE ORDER PASSED BY THE 17 TRIBUNAL, TOUCHING UPON THE QUESTION OF THE ALLEGED ORDER PASSED UN DER SECTION 154. 5.4 IN THE CASE OF INDER KUMAR BACHANI (HUF) V. ITO, 99 ITD 621 (LUCKNOW) ON IDENTICAL SET OF FACTS, THE ITAT HELD THAT REOPENING OF ASSESSMENT U/S 147 WAS INVALID. 6. THEREFORE, THE CUMULATIVE EFFECT OF ALL THESE JUDGMENTS IS THAT THE ORDER IN QUESTION WHICH IS SOUGHT TO BE REVISED IS NON - EST IN THE EYES OF LAW AND IS NOT AT ALL AN ORDER SINCE U/S 263 OF THE ACT, ANY ORDER CAN BE REVISED AND NOTHING ELSE, BECAUSE THERE IS NO ORDER WHICH HAS BEEN SOUGHT TO BE REVISED THEN THE ASSUMPTION OF JURISDICTION BY THE LD. CIT(A) U/S 263 OF THE ACT IS INVALID AND THEREFORE, THE ORDER PASSED IS ALSO INVALID. ACCORDINGLY, WE SET ASIDE THE REVIS ION AL ORDER PASSED BY THE LD. CIT. HOWEVER, WE OBSERVE THAT THE INCOME RETURNED BY THE ASSESSEE FOR THIS YEAR HAS TO BE ACCEPTED. ACCORDINGLY WE ALLOW THIS APPEAL OF THE ASSESSEE. 18 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO. 216/JU/2014 STANDS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 14 TH AUGUST , 2014. SD/ - SD/ - (N.K.SAINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 14 TH AUGUST , 2014 VL/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT BY ORDER 4. THE CIT(A) 5. THE D R SENIOR PRIVATE SECRETARY ITAT, JODHPUR