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2022 (5) TMI 542 - ITAT KOLKATARevision u/s 263 - PCIT setting aside the assessment order framed u/s 143(3) - prerequisite to exercise of jurisdiction u/s 263 of the Act by Commissioner - AO has failed to examine the documents(profit and loss account) SKAPL-1 which showed the business loss as on 31.03.2015 and another profit and loss account which showed profit - HELD THAT:- We have perused the notices issued by the AO u/s 142(1) and replies/written submissions filed before the AO in response thereto and observe that issues as proposed by the ld PCIT in the orders passed u/s 263 of the Act were examined and enquired and only then the assessment was framed. The notice issued u/s 142(1) of the Act, questionnaire and reply with evidences are part of the assessment records and were also filed before the tribunal in the paper books as discussed above. We note that the assessee has produced the audited books of accounts before the AO and duly explained as to how the issues raised by the ld PCIT were not warranted in view of the explanation given by the assessee In our considered view, since the AO has examined all the issues raised by the PCIT in the revisionary order during assessment proceedings and only thereafter framed the assessments u/s 143(3) of the Act, the jurisdiction u/s 263 of the Act is not maintainable as the AO has taken a possible view or taken one of the two possible views to which the PCIT does not agree or is of the opinion that the AO has taken one view whereas according to PCIT the second view should have been taken by the AO. It is settled law that in order to invoke the jurisdiction u/s 263 of the Act by the PCIT, the twin conditions i.e. the order has to be erroneous and prejudicial to the interest of the revenue, have to be satisfied. In case one of the condition is satisfied out of the two, even then the PCIT cannot invoke the jurisdiction u/s 263 of the Act to revise the assessment. Similarly the powers of revision u/s 263 of the Act cannot be exercised arbitrarily in order to make roving enquiries and initiate fresh enquiries . In our considered view , the jurisdiction u/s 263 can be exercised to revise the assessment where no enquiry at all has been conducted by the AO which is a case of lack of enquiry but not in a case where the AO has conducted an enquiry which in the opinion of PCIT is inadequate /insufficient without showing as to how the order framed by the AO after appreciating the evidences filed by the assessee is contrary to facts or not in accordance with law - Appeal of assessee allowed
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