TMI Blog2019 (11) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT(A). Therefore, respectfully following the judgement of the Hon'ble Madras High Court, we hold that Ld. Pr. CIT was not justified to invoke the jurisdiction u/s 263(1) of the Act when the similar issue was pending before Ld. CIT(A). Therefore, the impugned order is set aside and the ground raised qua this issue is allowed. Moreover, the revenue has not brought to our notice any other contrary binding precedents. However, it is made clear that the revenue would be at liberty to approach Ld. CIT(A) for expediting disposal of the appeal. The other objections of the assessee are on merit of addition made by the assessing officer. - ITA No.459/Ind/2018 - - - Dated:- 19-11-2019 - Shri Kul Bharat, Judicial Member And Shri Manish Borad, Accountant Member For the Appellant : S/Shri Anil Kamal Garg Arpit Gaur, CAs. For the Respondent : Shri S.S. Mantri, CIT-DR ORDER PER KUL BHARAT, J.M: This appeal by the assessee is directed against order of the Pr. CIT(Central), Bhopal dated 15.03.2018 pertaining to the assessment year 2012-13. The assessee has raised following grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.263 could not have been assumed. 4. That without prejudice to the above, the Ld.CIT grossly erred, both the facts and in law, in invoking the provisions of section 263 of the Income Tax Act, 9161 in the appellants case without having any material on record relevant to the assessment year under consideration showing any understatement of sales consideration by the appellant firm. 5. That, without prejudice to the above, the Ld. CIT grossly erred, both on facts and in law, in setting aside the assessment order passed by Assessing Officer under section 144 of the Income Tax Act, 1961 merely for conducting enquiries and investigation without first forming any objective opinion that the original assessment order passed by the AO was prejudicial to the interest of the Revenue. 6. That the appellant further craves leave to add, alter and/or amend any of the foregoing grounds of appeal as and when considered necessary. 2. At the outset, Ld. counsel for the assessee submitted that he does not wish to press ground numbers 1a 1b of the appeal. Hence, these grounds are dismissed as not pressed. 3. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at issue in question is related to undisclosed sales. He submitted that this issue has been examined by the Assessing Officer and made addition to the tune of ₹ 1,36,28,906/-. The assessee has challenged this before Ld. CIT(A) and appeal is pending for adjudication before the ld. CIT(A). He submitted that Ld. CIT(A) has co-terminus power with the Assessing Officer and he is empowered to make enhancement if the facts of the case suggests so. He submitted that undisputedly where the issue is under consideration of two different authorities of the same rank give rise to the multiplicity of litigation. Therefore, to avoid multiplicity of litigation and hardship to the parties, the courts have held that where an appeal is pending before the Ld. CIT(A) on the same issue, powers u/s 263 should be exercised. 7. In support of this proposition Ld. AR relied upon the judgment of Hon'ble Gujarat High Court rendered in the case of JMC Project (India) Ltd. vs. Pr. CIT (2016) 136 DTR 279 (Guj). He further relied upon the decision of Hon'ble Madras High Court rendered in the case of Smt. Renuka Philip vs. ITO 2018 (12) TMI 129 and also decision of the Coordinate Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure is required to be given for computing the unaccounted income. 9. In support of this contention Ld. counsel for the assesse has placed reliance on the decision of the Hon'ble Kerala High Court rendered in the case of CIT(central) Cochin vs. P.D. Abraham @ Appachan (2012) 252 CTR (Ker) 407. The reliance was also placed on the decision of the Coordinate Bench, I.T.A.T., Pune, rendered in the case of Ramanlal P. Chordiya vs. ACIT (2004) 87 TTJ 713 (Pune). 10. Ld. counsel for the assessee further reiterated the submissions as made in the written synopsis. 11. Ld. CIT-DR vehemently opposed the submissions and relied on the order of the authorities below and reiterated the submissions as made in the para-wise reply to the synopsis. It is contended that Ld. Pr. CIT has clearly established that how the assessment order passed by the AO was erroneous and prejudicial to the interest of revenue. The AO had adopted erroneous calculation for the purpose of computing unaccounted receipt in the hands of assessee firm which resulted in under assessment of ₹ 2.53 crores in the year under consideration. It is further contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tune of ₹ 2.53 crore in addition to the addition of ₹ 1.36 crore made by the AO. Ld. CIT-DR submitted that as per clause (c) of Explanation 1 to section 263(1), the powers of Pr. CIT shall extend to such matters as had not been considered and decided in such appeal. Hence, the arguments on this count cannot be considered and deserves to be rejected. In respect of the decision of the Hon'ble Gujarat High Court, Ld. CIT-DR submitted that the same has been on the different set of fact and would not be applicable on the facts of the present case. Similarly decision of the Coordinate Bench as relied by the assessee in the case of GAD Fashion vs. Pr. CIT(supra) would not help the assessee. Therefore, the Ld. CIT-DR submitted that there is no merit in the contention of the Ld. counsel for the assessee. 13. We have heard the rival submissions, perused the materials available on record and gone through the orders of the authorities below. The objection of the assessee against invoking the provisions of section 263 of the Act are three fold firstly similar issue was pending for adjudication before Ld. Pr. CIT. Therefore, Ld. Pr. CIT was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner under section 144A; (ii) an order made by the [Joint] Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred by the Board or by the [Principal Chief Commissioner or] Chief Commissioner or [Principal Director General or] Director General or [Principal Commissioner or] Commissioner authorised by the Board in this behalf under section 120; (b) record [shall include and shall be deemed always to have included] all records relating to any proceeding under this Act available at the time of examination by the [Principal Commissioner or] Commissioner; (c) Where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal [filed on or before or after the 1st day of June, 1988] the powers of the [Principal Commissioner or] Commissioner under the sub-section shall extend [and shall be deemed always to have extended] to such matters as had not been considered and decided in such appeal.] 15. From the above explanation, it is clear that Ld. Pr. CIT can invoke provisions of section 263 of the Act also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, when the addition made by the A.O. was the subject matter of appeal before the Ld. CIT(A) and this issue was pending before the Ld. CIT(A) then, the Pr. CIT has not powered to invoke the jurisdiction of u/s 263 of the Act on the same issue. In view of the above facts and circumstances of the case the issue which was the subject matter of appeal before the Ld. CIT(A) at the time of issuing the show cause notice then, the initiation of proceedings u/s 263 itself is not valid. Further, it is apparent and manifest from the record that the Ld. Pr. CIT issued the show cause notice on 29.3.2018 and passed the impugned order on 31.3.2018 as failing which the time limit available would have expired. Thus passing the revision order in such a haste without considering the relevant material as well as reply filed by the assessee is otherwise not sustainable in law. We find that the Pr. CIT while passing the impugned order has not even made any reference to the reply filed by the assessee thus such an order passed in violation of principle of natural justice is not sustainable and liable to quash. Accordingly, we set aside the impugned order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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