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2021 (2) TMI 67 - ITAT DELHIRevision u/s 263 - As per CIT no proper enquiry was conducted by the AO in the case of the assessee for A.Y. 2005-06 and the AO has not considered the application of provisions u/s 68 or 69C of the IT Act for making of undisclosed income arising out of unexplained expenditure due to foreign visits - HELD THAT:- Evidences, examined and analysed by the Assessing Officer during the course of assessment proceedings, further supported by thorough investigations/enquiries made by the Assessing Officer during the assessment proceedings, we are of the considered view that there remains nothing for the PCIT to assume jurisdiction u/s 263 to say that the assessment order is not only erroneous but prejudicial to the interest of the revenue. Since the facts of the instant case are identical to the facts of the case already decided by the Tribunal in the case of the spouse of the assessee, namely, Mrs. Shumana Sen, therefore, respectfully following the decision of the Tribunal in the case of the spouse of the assessee Mrs. Shumana Sen [2019 (11) TMI 1175 - ITAT DELHI] we hold that the PCIT has wrongly assumed jurisdiction u/s 263 of the Act on these issues. Allegation of not conducting any enquiry regarding ESOP - We find the year under consideration is A.Y. 2005-06 and there was no provision in the Act to treat the ESOPs as perquisites in the hands of the assessee. The amendment in Section 17(2)(vi) of the Act was w.e.f. 01.04.2010 and prior to such amendment ESOPs were treated as capital receipts in the hands of the recipient and were taxable only after the sale of the shares. We find merit in the argument of assessee that the observation of the PCIT that the AO did not conduct any enquiry regarding tax on receipt arising out of ESOPs received from employer is not in accordance with law. Therefore, the PCIT, in our opinion, is not justified in assuming jurisdiction u/s 263 on the issue of non-examination of taxability of receipts of ESOPs from the employer. In the instant case, the AO after examining the facts on record and after conducting all possible enquiries had passed the order by making certain additions. Therefore, merely because the ld. PCIT does not agree with the order of the AO cannot make the order erroneous as long as the same was passed after all possible enquiries and due verification of facts on record. It is not a case of lack of enquiry or lack of investigation so as to invoke the provisions of section 263 of the IT Act, 1961. PCIT himself has not conducted any enquiry so as to give a definite finding that the order passed by the AO is erroneous. Even otherwise also when two views are possible and the AO has adopted one possible view, the order of the AO cannot be said to be erroneous so as to assume the jurisdiction u/s 263 since the twin conditions cannot be fulfilled. PCIT was not justified in assuming jurisdiction u/s 263 - Decided in favour of assessee.
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