TMI Blog2020 (2) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... e. - R/TAX APPEAL NO. 828 of 2019 - - - Dated:- 3-2-2020 - MR. J.B. PARDIWALA and MR. BHARGAV D. KARIA JJ. Appearance: Mrs. Kalpanak Raval(1046) for the Appellant(s) No. 1 for the Opponent(s) No. 1 ORAL ORDER (PER : MR. BHARGAV D. KARIA) 1. This Tax Appeal is filed at the instance of the Revenue under Section 260 A of the Income Tax Act, 1961 [for short, the Act, 1961 ] and is directed against the order dated 31st May 2019 passed by the Income Tax Appellate Tribunal, Surat Bench, Surat in ITA No.406/SRT/2018 for the assessment year 2013 14. 2. The Revenue has proposed the following questions as substantial questions of law: (a) Whether on the facts and in the circumstances of the case and in law, the Hon ble ITAT is correct in holding that the PCIT was not empowered and entitled to revise assessment order u/s. 263 of the Act r/w Explanation 2 thereto by ignoring that the order passed by the AO is erroneous in so far as it is prejudicial to the interest of revenue in as much as the Assessing Officer has passed the assessment order without making inquires / verification in the light of the unsecured loans of ₹ 2.49 Crores received fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aper Book shows the AO vide item no.(iii) has asked the information regarding details of unsecured loan outstanding as on 31.03.2013 and the loans were squared up amounts in the format prescribed therein. In compliance to thereof, the assessee has furnished complete details of the unsecured loans outstanding / squared up vide para 3 of his letter dated 02.11.2015 placed as Annexure -2 at page 4 of paper book. The assessee has also furnished details consisting of copy of ledger account, copy of acknowledgment of income filed for A.Y. 2012 13 and 2013 14 and copy of bank statement reflecting the payment received was paid during the financial year 2012 13 relevant to assessment year 2013 14 which are placed at paper book, page 9 to 49 in respect of GTPL as well as PAFPL. This indicate that the assessee has furnished account confirmation of the depositor, acknowledgment of income of the parties, audited balanced sheet and profit and loss account of the parties and bank pass book and bank statement of the parties. During the course of assessee proceedings, form these facts it is clear that the assessee has not only proved the from these facts it is clear that the assessee has not only p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar that the Assessing Officer has passed the assessment order after making enquiries for verification which ought to have been made in this case. However, we find that the Pr. CIT has not mentioned in the show -cause notice issued under section 263 that he is going to invoke the Explanation 2 to 263 hence, invocation of Explanation in the order without confronting the assessee is not appropriate and sustainable in law in support of this contention, the ld. Counsel has placed reliance on the following decision: CIT v/s Amir Corporation 81 CCH 0069 (Guj.), CIT Mehrotra Brothem 270 ITR 0157 (MP,CIT v/s. Ganpet Ram Bishnoi 296 ITR 0292 (Raj.), Cadila healthcare Ltd. Vs. Cl 7, Ahmedabadh- 1 [ITA no. 1096/Ahd/2013 910/Ahd/2014], Sri Sa Contractors Vs. ITO [ITO no. 109Nizag/2002] and Pyare lal Jaiswal Vs. CIT, Vamnesi [(201 4) 41 texmann.com 27 (AII Trib.)]. It was contended by the Learned Counsel that Clause (a) (b) of Explanation 2 of Section 263 are not applicable as the Assessing Officer has made enquiry and verification which should have been made. Further, in the show cause notice, the Explanation -2 of section 263 was not invoked by the PCIT and it was referred i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - tax Act, before amendment by the Act, provided that if the Principal Commissioner or Commissioner considers that any order passed by the Assessing Officer is erroneous in so far as it /s prejudicial to the interests of the Revenue, he may, after giving the assessee an opportunity of being heard and after making an enquiry pass an order modifying the assessment made by the Assessing Officer or cancelling the assessment and directing fresh assessment. 53.2 The interpretation of expression erroneous in so far as it /3 prejudicial to the interests of the revenue has been a contentious one. In order to provide clarity on the issue, section 263 of the Income -tax Act has been amended to provide that an order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue, if, in the opinion of the Principal Commissioner or Commissioner. (a) the order is passed without making inquiries or verification which, should have been made; (b) the order is passed allowing any relief without inquiring into the claim; (c) the order has not been made in accordance with any order, direction or instruction issued by the Board under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from GTPL and PAFPL, which is also plausible view. Therefore, we find that twin conditions were not satisfied for invoking the jurisdiction under section 263 of the Act. The case laws relied by the ld. CIT(D.R.) are distinguishable on facts and in law hence, by the ld. Counsel as well and we concur the same hence not applicable to present facts of the case. Therefore, in absence of the same, the ld. CIT ought to have not exercised his jurisdiction under section 263 of the Act. Therefore, we cancel the impugned order under section 263 of the Act, allowing all grounds of appeal of the Assessee. 5. The Tribunal has found that in the order passed by the PCIT, Explanation 2 of Section 263 of the Act, 1961 is made applicable. The Tribunal observed that the PCIT has not mentioned in the show cause notice to invoke the Explanation 2 of Section 263 of the Act 1961. Therefore, by invocation of Explanation in the order without confronting the assessee and giving an opportunity of being heard to the assessee is not appropriate and sustainable in law. 6. Thus, the Tribunal has considered in detail the aspect of revisional power to be exercised by the PCIT in the facts of the case and h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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