Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2021 (5) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (5) TMI 831 - AT - Income TaxRevision u/s 263 - requirement to issue show cause notice u/s 263 - denial of natural justice - contention of the assessee to the effect that ld PCIT can give direction to the assessing officer in respect of those issues which are part of his show cause notice under section 263 - HELD THAT:- PCIT can give direction to the assessing officer in respect of only those issues which were part of his show cause notice under section 263 of the Act and he cannot give direction to the assessing officer in respect of those issues which are not part of his show cause notice under section 263 of the Act. We do not agree with the contention of the ld Counsel to the effect that ld PCIT can give direction to the assessing officer in respect of those issues which are part of his show cause notice under section 263 - there is no requirement to issue notice under section 263 of the Act. The requirement under section 263 of the Act, is to give an opportunity of hearing only Thus there is no requirement to issue show cause notice under section 263 of the Act, the requirement is to give an opportunity of being heard. Also gone through the order ld PCIT passed by him under section 263 and noted that assessee has been given enough opportunity of being heard on the issues raised by ld PCIT. All notices issued by the ld PCIT covered all the issues raised by the ld PCIT under section 263 of the Act and AR of the assessee was aware about all these issues and in fact submitted reply to the ld PCIT during 263 proceedings in respect of these impugned issues. Hence, the contention of the ld Counsel for the assessee that these issues were not part of the show cause notice under section 263 of the Act, is not acceptable, in the light of the bare facts narrated above. The contention of the ld Counsel that Ld PCIT has issued notice only for “Loans” and not for “Advances”, is not tenable. We note that ld PCIT has found out specific mistakes in the assessment order framed by the assessing officer. The ld PCIT has used the terminology “advance received” which is nothing but “unsecured loans”, vide para 4(i) of PCIT order. Therefore, to use the different terminology to address an issue in the order, (which gives the same meaning), does not vitiate the order of ld. PCIT. Unlike the power of reopening an assessment under Section 147 of the Act, the power of revision under Section 263 is not contingent on the giving of a notice to show cause. In fact, Section 263 has been understood not to require any specific show cause notice to be served on the assessee. Rather, what is required under the said provision is an opportunity of hearing to the assessee. The two requirements are different; the first would comprehend a prior notice detailing the specific grounds on which revision of the assessment order is tentatively being proposed. Such a notice is not required. What is contemplated by Section 263, is an opportunity of hearing to be afforded to the assessee. Failure to give such an opportunity would render the revisional order legally fragile not on the ground of lack of jurisdiction but on the ground of violation of principles of natural justice. Since the order of the Assessing Officer has been held by us to be erroneous as well as prejudicial to the interest of the revenue, in the facts and circumstances narrated above, therefore, the exercising of revisional jurisdiction by the ld Principal CIT is ‘’vaild’’ in the eyes of law and, therefore, we are inclined to uphold the order of ld PCIT to invoke revisional jurisdiction u/s 263 - Decided against assessee.
|