2019 (11) TMI 1181 - AT - Income Tax

Condonation of delay - delay of 194 days in filing this appeal - HELD THAT:- AR of the assessee who represented before the Ld. Pr. CIT was not aware that the impugned order of Ld. Pr. CIT passed u/s 263 is appealable before this Tribunal. Later when the assessee consulted a senior Counsel, he advised him to file the appeal and then only the assessee realized that the assessee could have preferred an appeal before this Tribunal, thus, the delay happened and thereafter once the brief had been handed over to the Counsel he filed the appeal within 10 days. Due to the said reason delay of 194 days happened when assessee filed this appeal, which according to him is not intentional and pleads that delay be condoned. Since there is no quarrel in-respect of the facts which led to the delay we are of the opinion that the assessee should not be penalized for the ignorance of the AR as discussed.

Revision u/s 263 - Bogus purchases u/s 69C - AO adding the 2.25% GP in respect of the alleged bogus purchase - HELD THAT:- AO has made enquiries and the assessee has given details and furnished answers/replies which has been discussed CIT ought not to have taken a view that the AO’s order is erroneous for lack of enquiry. It has to be kept in mind that since enquiry was conducted by AO even if inadequate that would not by itself gives an occasion to the Pr. CIT to interdict and interfere by exercising his revisional jurisdiction merely because he is of the opinion that some more enquiries should have been conducted in the matter.

In a case where the PrCIT finds that the enquiry conducted by the AO is not in accordance with his subjective standards, then it is incumbent upon the ld. Pr CIT to himself conduct the investigation and thereafter record a clear finding in his order u/s. 263 that the view followed or acted upon by the AO in his assessment order was unsustainable in law and therefore the order of the AO was erroneous. We note that the Ld. Pr. CIT has not taken any such exercise as discussed. Thus, in the light of the enquiry conducted by the AO on the issue on which the Ld. Pr. CIT has found fault with, the Ld. Pr. CIT’s finding of fault cannot be sustained and, therefore, there was no basis to find fault with.

Pr. CIT erred in usurping the jurisdiction without satisfying the jurisdictional condition precedent as stipulated in sec. 263 and, therefore, we are inclined to quash the impugned order of the Ld. Pr. CIT. Appeals of the assessee are allowed.