The Calcutta High Court held that period of limitation to be reckoned from the date of the Revision order passed by the AO.
The short question involved in the instant appeal is whether the Commissioner of Income Tax could have exercised his power under Section 263 of the Act and set aside the order passed by the Assessing Officer on 8th December, 2011 under the guise of revising the assessment order dated 29th November 2012.
The MAT Credit as per the provisions of section 115JAA was actually allowed by the Assessing Officer originally in the assessment completed under section 143(3) read with section 263 passed on 08.12.2011 and in the appeal filed by the assessee against the said order, the limited issue involved was whether the MAT Credit allowed by the Assessing Officer should include the amount of surcharge and education cess as well. When the CIT (Appeals)decided the said issue in favour of the assessee vide his appellate order dated 19.12.2012 the order dated 29.11.2012 was passed by the Assessing Officer under section 143(3) read with section 263 and 251 giving effect to the appellate order of the CIT dated 19.10.2012 and accordingly the MAT Credit originally allowed by him vide order dated 08.12.2011 passed under section 143(3) read with section 263 on 08.12.2011 was only increased by him by the amount of surcharge and education cess.
The error, if any, in allowing the MAT Credit as alleged by the CIT in his impugned order passed under section 263 thus was there in the order passed by the Assessing Officer under section 143(3) read with section 263 on 08.12.2011 whereby the MAT Credit was originally allowed and not in the order dated 29.11.2012 passed by the Assessing Officer under section 143(3) read with section 263 and 251 whereby the MAT Credit already allowed was only increased by the Assessing Officer by the amount of surcharge and education cess while giving effect to the appellate order of the CIT (Appeals).
The division bench of Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya found that the Tribunal took note of the decision of the Hon’ble Supreme Court in CIT vs. Alagendran Finance Limited [211 CTR (SC) 69] and held that the order passed by the Commissioner of Income Tax under Section 263(2) is hopelessly barred by limitation. The Tribunal rightly held that the period of limitation for the assessment year 2007-08 has to be reckoned from the date of the order passed by the Assessing Officer under Section 143(3)read with Section 263 i.e. 8th December, 2011 and not from the date of the order passed by the Assessing Officer under Section 143(3) read with Section 263 and 251 dated 29th November, 2012. Thus, the Tribunal rightly allowed the appeal filed by the assessee.
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