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2019 (12) TMI 743 - AT - Income TaxRevision u/s 263 - Administrative CIT had sought to revise this order passed u/s.154 on the ground that the assessee had violated the provisions of Section 79 due to change in shareholding pattern which fact has not been noticed or enquired by the ld. AO while granting benefit of set off of brought forward losses of earlier years - HELD THAT:- It could be safely concluded that assessee had duly brought to the notice of the ld. AO about the scheme of amalgamation, about the scheme being approved by the Hon’ble High Court, about the shareholding pattern post amalgamation etc as detailed hereinabove. These facts were duly considered by the AO both in the original assessment proceedings as well as in the proceedings u/s.154 of the Act. Hence, having considered those facts and the ld. AO have taking a view thereon, the logical conclusion that could be drawn is that the AO ad taken one of the possible views on the matter, which cannot be the subject matter of revisionary jurisdiction u/s. 263 of the Act by the ld. CIT. Hence, it could be safely concluded that the order of the ld. AO could not be construed as erroneous. Denial of set off of brought forward losses of earlier years against the income of the assessee for the year under consideration - HELD THAT:- The issue is directly settled in favour of the assessee in the case of CLP Power India (P) Ltd. vs. DCIT [2018 (4) TMI 1282 - ITAT AHMEDABAD] as find considerable merits in the plea on behalf of the assessee that section 79 has not application in the absence of change in beneficial voting power. This being so, we see no error in the order of the AO on this score. This apart, once these facts were brought to the notice of Pr.CIT, the Pr.CIT ought to have appreciated the case of the assessee objectively in perspective and could not shrink his sacrosanct obligations and resort to simply set aside a completed assessment on non-existent ground. Thus, the prerequisites of section 263 are not satisfied. CIT had directed the ld. AO to directly disallow the benefit of set off of losses of earlier years against the income of current year on the ground that assessee had not complied with provisions of Section 79 of the Act, ignoring the various arguments made by the assessee before him, which are part of the paper book and the materials available on record. Moreover, we find that the ld CIT should have made proper enquiries on the impugned issue before reaching to such conclusion in the light of materials available on record and decided case laws thereon, which he had failed to do so in the instant case. Once he directs the ld AO to make certain disallowance, the ld AO is bound by that and the assessee would not get any chance to adjudicate the issue on merits. In this factual background, we had to address the issue on merits also and adjudicate the issue hereinabove. We find that the ld. CIT had only tried to substitute his opinion on the facts and circumstances of the case in the opinion of the ld. AO. This is not permissible in the revisionary jurisdiction u/s.263 - Decided in favour of assessee.
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