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2022 (9) TMI 1389 - AT - Income TaxRevision u/s 263 by CIT - unexplained cash u/s 69A - As per CIT, AO has added only 50% unexplained amount and there is no provisions to part addition at 50% u/s 69A and thus has referred the assessment order as erroneous and prejudicial to the interest of the revenue - HELD THAT:- We note that the said assessment order as framed originally u/s 143(3) dated 04.12.2019 has been challenged by the assessee before the First Appellate Authority and appeal is pending for adjudication. In the light of these facts, we are unable to understand as to how the jurisdiction of the Ld. PCIT u/s 263 of the Act is maintainable on this issue. The provisions of clause (c) of Explanation (1) to Section 263 provides that when the appeal is pending before the Commissioner of Income Tax(Appeals) on some issue, the exercise of jurisdiction u/s 263 of the Act on the said issue is not available to the ld PCIT. In the present case CIT (A) is seized of the issue and therefore jurisdiction u/s 263 of the Act has been invalidly exercised by the Ld. PCIT. The case of the assessee finds support from the several decisions of various High Courts namely Smt. Renuka Philip[2018 (12) TMI 129 - MADRAS HIGH COURT], decision of Hon’ble Allahabad High Court in the case of CIT vs. Vam Resorts and Hotels Pvt. Ltd. [2019 (8) TMI 1418 - ALLAHABAD HIGH COURT] - In both the above decisions as held that when the appeal is pending before the Commissioner(appeals), the exercise of jurisdiction u/s 263 of the Act is not available to the PCIT. Accordingly, we are inclined to quash the order passed u/s 263 of the Act. Appeal of the assessee is allowed.
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