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2022 (1) TMI 347 - AT - Income TaxRevision u/s 263 by CIT - Addition u/s 68 - Applicability of section 115BBE for set off of claim - HELD THAT:- Undoubtedly the amended provisions of section 263 provide that the Ld.CIT is within his powers assume the jurisdiction, if the AO’s order is passed without making enquiries or verification, which should have been made. In this connection, it is clear that the said explanation will come to the aid of the Ld.CIT, if he can point out what enquiry was required, which has not been done by the AO. Here, we note that all the necessary enquiries have been done by the AO. Ld.CIT has himself made certain enquiries and the details were provided to him. It is not the case of Ld.CIT that any defect was noted in this connection. Hence, the direction given by the Ld.CIT in this case is simply to make further roving enquiries, which is totally unsustainable in law. The case laws referred above duly support this proposition. As noted that the alternate submission of the assessee that even if the AO reassess the income pursuant to direction under section 263 and as the amount involved is assessed under section 68, only effect will be that the income offered under business income would now be assessed under section 68 as income from other sources. It has been submitted that after set off of other losses the assessed income of the assessee would be the same as in the original assessment order. Hence, it is plea that when there is no change in income assessed the order of AO cannot be said to be prejudicial to the interest of revenue. The Ld.CIT has tried to respond to the submission by observing that as per section 115BBE income tax shall be collected at that of 60%, when the total income of the assessee includes such as the one here i.e under section 68 et cetera and that no deduction in respect of any expenditure or allowance or set off of loss shall be allowed to the assessee in computing as income referred here. Now, the assessment year under consideration is assessment year 2015-16, the CBDT circular referred by counsel of the assessee clearly provides that the amendment brought in by financial year 2016 in this regard is inserted with from 01.04.2017 and assessee is entitled to claim set off against income determined under section 115BBE of the Act till the AY 2016-17. Hence, even if the section referred by the Ld.CIT is invoked the assessee will still be eligible for the set off as referred above and the income would be the same as assessed by the AO in the original assessment. This proposition is neither rebutted by Ld.CIT nor by the revenue before us. It is a settled law that after the exercise of revisionary jurisdiction the income assessed remains the same, it cannot be said that the order of the AO is prejudicial to the interest of revenue. Hence, Ld.CIT’s jurisdiction will not be valid. Hence, invocation of section 263 jurisdiction by the Ld.CIT is also not sustainable on this count also. - Decided in favour of assessee.
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