The assessee sought revision of its assessment, finalized u/s.143(3) on
03.12.2008, accepting the returned income of Rs.35,19,179/-, u/s.264 of the Act
on the ground that the deduction u/s.80-IB, to which it was entitled, had not
been allowed per the impugned assessment. The deduction, for which it was
otherwise eligible since the first year of operating a cold storage, i.e., A.Y.
1998-99, could not be claimed up to the immediately preceding year on account
of continued losses. The assessee returning profit for the first time for the
current year, forgot to prefer the claim u/s.80-IB, and hence its petition
u/s.264. The ld. CIT, as a competent authority, rejected the same on the ground
that the said claim had not been made either per the return of income for the
year or even during the assessment proceedings, so that the application for
revision u/s.264, as made, is misconceived and not maintainable. Reliance was
also placed by him on the decision in the case of Goetze (India) Ltd. vs. CIT
[2006] 284 ITR 323 (SC). On appeal by the assessee to the Tribunal:
We have heard the party before us, and perused the material on record. Without doubt, the impugned order is not a speaking order, i.e., not dilating on the scope of the revision u/s.264, on the maintainability or otherwise in law of the petition under which the fate of the assessee’s appeal would lie. The assessee, on the other hand, has cited several decisions by the higher courts of law, including by the apex court, qua the scope of provision u/s.264, viz. Dwarka Nath vs. ITO [1965] 57 ITR 349 (SC); Ramdev Exports vs. CIT [2001] 251 ITR 873 (Guj); Parekh Brothers vs. CIT [1984] 150 ITR 105 (Ker); and M. Chettyappan & Ors. v. CIT [1977] 110 ITR 684 (Mad). Under the circumstances, we only consider it fit and proper to restore the matter back to the file of the ld. CIT to adjudicate the assessee-appellant’s application afresh in accordance with the law per a speaking order and after allowing a reasonable opportunity of hearing to it.
Gausia Cold Storage Pvt. Ltd vs. ACIT (ITAT Mumbai)
We have heard the party before us, and perused the material on record. Without doubt, the impugned order is not a speaking order, i.e., not dilating on the scope of the revision u/s.264, on the maintainability or otherwise in law of the petition under which the fate of the assessee’s appeal would lie. The assessee, on the other hand, has cited several decisions by the higher courts of law, including by the apex court, qua the scope of provision u/s.264, viz. Dwarka Nath vs. ITO [1965] 57 ITR 349 (SC); Ramdev Exports vs. CIT [2001] 251 ITR 873 (Guj); Parekh Brothers vs. CIT [1984] 150 ITR 105 (Ker); and M. Chettyappan & Ors. v. CIT [1977] 110 ITR 684 (Mad). Under the circumstances, we only consider it fit and proper to restore the matter back to the file of the ld. CIT to adjudicate the assessee-appellant’s application afresh in accordance with the law per a speaking order and after allowing a reasonable opportunity of hearing to it.
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