IN INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA no.7034/Mum./2014 (Assessment Year : 2009 10) Shri Ravishankar 11, Ismail Mansion 2nd Floor, 94/96/98 Perin . Appellant Nariman Street, Fort Mumbai 400 001 PAN AADPR6101N v/s Assessing Officer Income Tax Department . Respondent Mumbai Assessee by : Shri Ravishankar Revenue by : Shri A.S. Srivastava Date of Hearing 05.08.2016 Date of Order 23.09.2016 ORDER PER SAKTIJIT DEY, J.M. Instant appeal by assessee is directed against order dated 30th October 2014, passed under section 264 of Income Tax Act, 1961 (for short "the Act") by learned Commissioner of Income Tax, Mumbai, for assessment year 2009 10. Grounds raised by assessee are as follows: 1. On facts and in circumstances of case and iii law Commissioner of Income Tax - 12, Mumbai through learned AO Ward 12(1)(1) erred in disallowing following expenses without 2 Shri Ravishankar discussing word on non-allowability of same and yet considering it to be personal and not incurred in course of business. 2. Ld. CIT-12, Mumbai erred in considering unabsorbed loss of preceding years available for set-oil as not being adjustable in impugned AY only because appellant has through oversight forgotten to claim same in original return, though claim for same was made in revised return tiled. 3. appellant craves leave to add, alter, modify, and/or delete all or any of grounds of appeal at any time before of d miring course of hearing oft lie appeal. 2. Brief facts are, assessee is individual. For assessment year under consideration, assessee filed its return of income on 26th August 2009, declaring total income of ` 3,96,730. return of income filed by assessee was processed under section 143(1) of Income Tax Act, 1961 (for short "the Act") and after making certain adjustments income was determined at ` 9,03,920. Challenging adjustment made while processing return of income under section 143(1), assessee filed application for rectification under section 154. However, rectification application filed was rejected by Assessing Officer on ground that there is no prima facie error in computation under section 143(1). Against order passed under section 154, assessee filed revision application under section 264 before Commissioner. In said application, it was submitted by assessee that Assessing Officer has wrongly assessed income under head Business at ` 5,75,206 as against ` 68,318 declared by assessee. It was further 3 Shri Ravishankar submitted by assessee that Assessing Officer failed to set off carry forward loss of preceding year. After considering submissions of assessee and on basis of facts and materials placed before him, Commissioner being prima facie satisfied with fact that assessee has committed mistake in return of income by offering same income twice restored back matter to file of Assessing Officer to examine facts and compute income of assessee accordingly after verifying evidence brought on record. As far as set off of carry forward of loss is concerned, Commissioner rejected assessee s claim. In pursuance to order of Commissioner, Assessing Officer passed impugned order giving effect to directions of Commissioner as per which total income was revised / re computed of ` 4,47,833. 3. Grievance of assessee before us is, Assessing Officer while giving effect to directions of Commissioner, has not properly examined facts, hence, revised total income determined by him is not correct. 4. Learned Departmental Representative on other hand submitted that appeal filed by assessee is not maintainable as order giving effect to by Income Tax Officer is arising out of proceeding under section 264 of Act which is not appealable before Tribunal. 4 Shri Ravishankar 5. We have considered submissions of parties and perused material available on record. Undisputedly, against order passed by Assessing Officer, rejecting application under section 154 of Act, assessee has opted to avail remedy under section 264 and thereby has given up his right of appeal under section 246A. On reading of provisions contained under section 264, and more specifically, sub section (4) of that provision makes it clear that only in case where assessee has waived his right of appeal and no appeal is pending either before first appellate authority or Tribunal, Commissioner can revise order by invoking his power under section 264. In present case, admittedly, assessee has waived his right of appeal and approached Commissioner under section 264 and it is also fact on record that when this revision application was filed before Commissioner there was no appeal by assessee either before Commissioner or before Tribunal. That being case, Commissioner entertained application filed by assessee d in exercise of power conferred under section 264, passed order giving certain direction to Assessing Officer. In pursuance to such direction of Commissioner, Assessing Officer has passed impugned order. On careful reading of provisions of section 253, it is very much clear that order passed under section 264 is not appealable before Tribunal. That being case, we fail to understand how order passed by Assessing Officer giving 5 Shri Ravishankar effect to direction of Commissioner under section 264, can be appealed before Tribunal. Thus, order under challenge in present appeal not being appealable order under section 253, impugned appeal of assessee is not maintainable, hence, deserves to be dismissed. 6. As we have dismissed appeal of assessee in limine, we decline to go into merits of other grounds raised in this appeal. 7. In result, assessees appeal is dismissed. Order pronounced in open Court on 23.09.2016 Sd/- Sd/- N.K. PRADHAN SAKTIJIT DEY ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 23.09.2016 Copy of order forwarded to: (1) Assessee; (2) Revenue; (3) CIT(A); (4) CIT, Mumbai City concerned; (5) DR, ITAT, Mumbai; (6) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary (Dy./Asstt. Registrar) ITAT, Mumbai Ravishankar v. Assessing Officer, Income-tax Department, Mumbai