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2019 (11) TMI 1031 - ITAT KOLKATARevision u/s 263 - Taxability of foreign assignment allowance received - HELD THAT:- Finding recorded by the AO, cannot be termed as a case of no-enquiry at all in respect of foreign assignment allowance of the assessee. Therefore, CIT’s view that the action of the AO in allowing the amount of ₹ 42,97,092/- as exempt from taxation is in violation of the provision of sec. 5(2) without any enquiry, is factually incorrect. This issue was considered by the AO and after enquiry he has taken a view to allow the claim of the assessee that this foreign assignment allowance is not taxable in India. We therefore hold that the AO’s view cannot be held to be erroneous for want of enquiry. When confronted with the reasons set out in the SCN, the assessee had led before the ld. CIT sufficient documentary evidence which proved that the SCN had proceeded on assumption of incorrect facts and wrong interpretation of applicable legal provisions. It was also established before the ld. CIT that before completion of assessment, the AO had indeed made enquiries into the foreign assignment allowance and after being satisfied about its non-taxability, the order u/s 143(3) was passed. On receipt of these objections, though the CIT did not agree with the submissions, we find that ultimately the reasons on which the CIT proceeded to pass the order did not contain any substantive legal or factual material by which he was able to prove that the said explanations suffered from any infirmity. Instead we note that the CIT ultimately merely set aside the assessment order directing AO to pass the order afresh in accordance with law which in our opinion was nothing but giving the AO second innings without establishing that the AO's order was erroneous as well as prejudicial to the interests of the Revenue Not only did the AO enquire into the issue of taxability of foreign assignment allowance received by the assessee but had consciously applied his mind to the facts made available before him and adopted the permissible view in law. We are of the considered view that the assessment order is not the result of non-enquiry or non-application of mind or assumption of wrong facts. While passing the assessment order the AO had followed the permissible view in law which cannot be said to be 'unsustainable in law'. Jurisdictional facts for usurping the jurisdiction u/s 263, being absent, we hold that the action of CIT was without jurisdiction and all subsequent actions are 'null' in the eyes of law. We therefore quash the order impugned before us. Since all the appeals itself has been decided, therefore, the stay applications become infructuous and stands dismissed.
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