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2023 (3) TMI 989 - HC - Income TaxRevision u/s 263 by CIT - setting off of derivative loss against business income - Tribunal has allowed the appeal filed by the assessee solely on the ground that certain records were placed before Tribunal which were examined by the Tribunal and in the opinion of the Tribunal that those documents clearly show that the issue was discussed by the AO and he was satisfied with the reply given by the assessee - HELD THAT:- Tribunal has come to the conclusion that there is no justification on the part of the PCIT to exercise his revisional jurisdiction u/s 263 of the Act. On perusal of the order passed by the PCIT it is seen that the assessee did not appear before the PCIT though they were granted opportunity of personal hearing on two occasions. Thus, the record which was examined by the learned Tribunal was not placed before the PCIT for consideration so as to take a decision on merits. We find that the Tribunal has not given a specific finding as to how there is no bar under the Income Tax Act for setting off of derivative loss against business income in the facts and circumstances of the case. Therefore, we are of the view that the matter has to be freshly decided by the PCIT and, therefore, we are inclined to remand the matter back to the PCIT for fresh consideration. Appeal filed by the revenue is allowed and the order passed by the Tribunal as well as the PCIT are set aside and the matter is remanded to the PCIT for fresh consideration, who shall take note of the documents. The assessee is directed to appear before the PCIT on the dates to be fixed for personal hearing and place the paper book which was placed before the learned Tribunal and after considering all the documents and hearing the assessee, a fresh decision shall be taken in accordance with law.
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