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2022 (4) TMI 100 - AT - Income TaxRevision u/s 263 - Pr. CIT was of the view that AO had wrongly initiated penalty proceedings u/s 271(1)(c) as the same in the case of a search initiated u/s.132 of the Act i.e, on or after 1st day of July, 2012 but before 15.12.2016 was governed by Section 271AAB - Whether or not the Pr. CIT remaining well within the realm of his jurisdiction u/s 263 of the Act has directed the Assessing Officer to initiate penalty proceedings under the correct section and, re-assess the income of the assessee on the basis of a speaking order.? - HELD THAT:- We are unable to concur with the direction of the Pr. CIT as regards initiation of penalty proceedings u/s. 271AAB of the Act in the case of the assessee before us i.e, in a case where cash had been requisitioned u/s.132A however, even otherwise, we are of the considered view that such a direction given by him in exercise of his revisionary jurisdiction u/s 263 of the Act is not sustainable in the eyes of law. In our considered view as section 271AAB of the Act makes a specific reference to the term “may”, thus, it vests a discretion with the Assessing Officer as to whether or not the assessee is to be visited with penalty under the said statutory provision. Backed by the aforesaid position of law, we are of the considered view that the Pr. CIT could not have in exercise of his revisionary jurisdiction u/s 263 of the Act stepped in to control or, in fact steer such discretion of the Assessing Officer. Our aforesaid view that where the CIT finds that the Assessing Officer had not initiated penalty proceedings in the assessment order, then, he cannot in exercise of his revisionary jurisdiction u/s 263. Not only the Pr. CIT had on the basis of a misconceived reading of the position of law directed the Assessing Officer to initiate penalty proceedings in the case of the assessee u/s 271AAB of the Act, but he had also exceeded his jurisdiction while issuing such directions. We, thus,not being able to persuade ourselves to subscribe to the aforesaid view taken by the Pr. CIT set-aside the order passed by him u/s 263 of the Act, dated 10.12.2020 and restore the order passed by the Assessing Officer u/s 153A r.w.s.143(3) - Decided in favour of assessee.
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