TMI Blog2020 (7) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... y rebutted on behalf of the assessee. In view of the domestic transaction with AE not falling in the sweep of Section 92BA of the Act at the threshold, any alleged inaction attributable to the AO in this regard would not vitiate assessment order as erroneous nor did it cause any prejudice to the interest of the Revenue. The ingredients of Section 263 of the Act are thus clearly not fulfilled. Hence, revisional order passed u/s 263 of the Act seeking to set aside the assessment order passed under s.263 - Decided in favour of assessee. - I.T.A. No. 881/Ahd/2019 - - - Dated:- 29-6-2020 - Shri Pradip Kumar Kedia, Accountant Member And Smt. Madhumita Roy, Judicial Member For the Appellant : Shri Mahesh Chhajed, A.R. For the Respondent : Shri Virendra Ojha, CIT. D.R. ORDER PER PRADIP KUMAR KEDIA - AM: The captioned appeal has been filed at the instance of the Assessee against the order of the Pr. Commissioner of Income Tax, Ahmedabad-5 ( Pr.CIT in short), dated 26.03.2019 arising in the assessment order dated 20.06.2016 passed by the Assessing Officer (AO) under s. 143(3) of the Income Tax Act, 1961 (the Act) concerning AY 2014-15. 2. In the captioned ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly had to be referred to TPO. However, this was not done even though the same was mandatory as per said instruction. The A. O. has not considered the reason for scrutiny selection as per CASS and failed to conduct necessary enquiry. 3. 0 From the discussion above, i t may be seen that the assessment order passed u/ s. 143 ( 3) of the Income Tax Act, 1961 on 20/ 06/ 2016 for the A. Y. 2014- 15 is erroneous in so far as prejudicial to the interest of the Revenue. You are therefore requested to show cause as to why action u/ s. 263 of the Income Tax Act, 1961 should not be initiated for modifying or even cancelling the said assessment order. In case you have any objection to the action proposed, you are requested to appear before me either personally or through your Authorised Representative on 17.12. 2018 at 4.00 pm at my office situated at the above address, alongwith a written reply to this notice. 3.2 The learned AR for the assessee thereafter referred to para 4 of the revisional order and submitted that the Pr.CIT proceeded on a wrong footing while setting aside the assessment order completed under s.143(3) of the Act by the AO. It was firstly pointed out that F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be attributed to the AO for non-indulgence in inquiry with reference to Section 92BA of the Act which was prima facie inapplicable. 3.5 On a further query raised by the Bench, the learned AR for the assessee further pointed out that remaining transaction of ₹ 18,000/- odd towards rental expenditure also do not fall within the ambit of Section 92BA of the Act in view of threshold of ₹ 5 Crore prescribed for Section 92BA of the Act to come into play at the relevant time. 3.6 The learned AR further raised a legal ground that clause 92BA(i) of the Act has been subsequently omitted by the Finance Act, 2017 w.e.f. 01.04.2017 from the statute. It was thus submitted that owing to such omission of clause (i) to Section 92BA of the Act, the resultant effect would impliedly be that it had never been considered as law existing in the statute since its inception. Reliance was placed on the decision of the Hon ble High Court in the case of PCIT vs. Taxport Overseas (P.) Ltd. [2020] 114 taxmann.com 568 (Karnataka) for this proposition. It was argued that clause (i) to Section 92BA of the Act was repealed and obliterated from the statute book completely without any saving cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isional Commissioner concerned to call for and examine the records of another proceeding under the Act and if he considers that any order passed therein by the AO is erroneous in so far as it is prejudicial to the interest of the Revenue, then he may (after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary), pass such order thereon as the circumstances of the case justify, including the order enhancing or modifying the assessment or cancelling the assessment and directing afresh assessment. Thus, the revisionary powers conferred on the PCIT/CIT under s.263 of the Act are of very wide amplitude with a view to address the revenue risks which are objectively justifiable. 5.2 Before we proceed to dwell upon the legality of action of the Revisional Commissioner, it will be expedient to reproduce Section 92BA of the Act as existing in the statute at the relevant time of assessment which seeks to define the meaning of SDT : 92BA . For the purposes of this section and sections 92, 92C, 92 D and 92E, specified domestic transaction' in case of an assessee means any of the following transactions, not bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any manner at the first instance. The Pr.CIT was seized with the relevant facts and could have easily satisfied himself of such prima facie assertions. A lack of enquiry in a particular manner or as per certain procedures prescribed would possibly vitiate the assessment order only when it is found that the relevant provisions were applicable to the assessee and not otherwise. The allegations made by the Pr.CIT in the instant case have been successfully rebutted on behalf of the assessee. In view of the domestic transaction with AE not falling in the sweep of Section 92BA of the Act at the threshold, any alleged inaction attributable to the AO in this regard would not vitiate assessment order as erroneous nor did it cause any prejudice to the interest of the Revenue. The ingredients of Section 263 of the Act are thus clearly not fulfilled. Hence, revisional order passed under s.263 of the Act seeking to set aside the assessment order passed under s.263 of the Act requires to be quashed. 5.4 Having arrived at the conclusion on merits for lack of jurisdiction of the Revisional Commissioner under s.263 of the Act, we are not inclined to dwell upon a legal ground questioning existe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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