TMI Blog2021 (7) TMI 1185X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue. CIT gets jurisdiction to invoke revisional jurisdiction u/s.263 of the Act and thus the legal issue raised by the assessee is dismissed. The other issues raised in the other grounds need factual enquiry and verification, so we are not examining the merits of those grounds. So, those grounds of the assessee preferred against the merits of all the issues raised by the Ld. PCIT stand dismissed. Therefore, we do not find any infirmity in the order passed by the Ld. Pr. CIT and the impugned order of the Ld. Pr. CIT is upheld - before parting we direct the A.O. that while he gives effect to the Ld. PCIT's order, he has to take into consideration the rule of consistency raised by the assessee and decide the issue in accordance to law - contentions of the assessee on each issues should be considered by the A.O. while deciding all issues and the issues settled by this Tribunal cannot be disturbed without there being any change in fact or law and in accordance to principles of consistency and in accordance to law. - Decided against assessee. - I.T.A. No. 365/Kol/2020 - - - Dated:- 22-7-2021 - P. M. Jagtap , Vice President And A. T. Varkey , Member ( J ) For the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g condition precedent as prescribed in section 263 of the Act i.e. without finding on the issues pointed out by the Ld. PCIT that AO's order on those issues are erroneous as well as prejudicial to the interest of the revenue. For adjudicating this legal issue, we need to look into the show cause notice (SCN) given by the Ld. Pr. CIT which is placed at page 7 of the paper book, relevant portion of which reads as under: Your return of income for the A.Y. 2015-16 was selected for Limited scope of scrutiny through CASS and assessment under section 143(3) of the I.T. Act, 1961 was completed on 06.12.2017 at an assessed income of ₹ 2,37,08,680/-. As per computation of income it is seen that the assessee has claimed Maintenance Compensation of ₹ 4,07,404/- along with Standard Deduction @ 30% u/s. 24 of the Act towards his income from House Property located at Ashoka Towers, Towers-D, Mumbai-400013. The said deduction towards Maintenance Compensation has resulted in double deduction as standard deduction is only allowed for the above purpose and there is no separate provision for claim of deduction on account of maintenance. This has led an underassessment of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from pages 16 to 18 of the paper book wherein the assessee had filed the computation of total income before the A.O. and on a perusal of the same, it is evident that the income from house property is clearly given and the assessee's claim of 30% standard deduction is evident from it (refer page 17 of paper book). Therefore, he contended that this issue has been taken note by the A.O. which fact is clear from the assessment order's page one (1) itself wherein the A.O. has acknowledged that the Ld. A.R. of the assessee had appeared on different dates before him and filed different documents/evidence to explain the return. Moreover, according to the Ld. A.R., this issue is permeating from earlier years and has come up before this Tribunal in assessee's own case for A.Y. 2004-05 in ITA No. 1187/Kol/2007 order dated 30.04.2008 wherein according to him, the Tribunal has allowed the issue in favour of the assessee and drew our attention to page No. 64 of the paper book wherein the Tribunal has dealt with the issue as under: We have carefully considered the issue in view of the material placed on record, the case laws cited by the learned counsel for the assessee and riva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... versely affect any right of the assessee nor was any civil right of the assessee prejudiced. He was as such under no obligation in law to give reasons. 89. The fact, that all requisite papers were summoned and thereafter the matter was heard from time to time coupled with the fact that the view taken by him is not shown by the revenue to be erroneous and was also considered both by the Tribunal as also by us to be a possible view, strengthens the presumption under clause (e) of section 114 of the Evidence Act. A prima facie evidence, on the basis of the aforesaid presumption, is thus converted into a conclusive proof of the fact the order was passed by the assessing officer after due application of mind. 6. He also drew our attention to page 26 para 70 of the above order, wherein the Hon'ble High court taking note of the decision of the Apex court in the case of Malabar Industrial Co. Ltd. Vs. CIT 243 ITR 83 (SC) held that if the A.O. has taken a possible view, it cannot be said that the view taken by him is erroneous nor the order of the Assessing officer in that case can be set aside in revision. Thereafter the Hon'ble High court observed that it has to be show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and verification. And the A.O. could not have allowed the deduction without enquiry. According to him, non-enquiry triggers the deeming provision declared therein which makes the order of A.O. as per law erroneous as well as prejudicial to the Revenue. In such a case, the Ld. PCIT is bound by law to treat the assessment order framed by A.O. on issues which has not been enquired by the A.O. as erroneous as well as prejudicial to the Revenue. So the condition precedent required to assume jurisdiction to exercise interdict in the action of A.O. u/s. 263 of the Act stands satisfied on all the faults pointed out by the Ld. Pr. CIT, since the action of the A.O. needs to be deemed to be erroneous as well as prejudicial to the interest of the revenue because he has not bothered to enquire about these faults and, therefore, he does not want us to interfere in the order of the Ld. Pr. CIT. 10. We have heard rival submissions and gone through the facts and circumstances of the case. Before we advert to the facts and law involved in this lis before us, let us revise the law governing the issue before us. The assessee has challenged in the first place, the very usurpation of jurisdiction b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re possible and the Assessing Officer has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the revenue unless the view taken by the Assessing Officer is unsustainable in law . 11. When we examine this case on the judicial precedent cited (supra) we note that the Ld. Pr. CIT has invoked his jurisdiction since the A.O. has not enquired into the three faults pointed out by him in his show cause notice. Even though the Ld. A.R. tried to convince us that by filing the computation of income pursuant to his notice u/s. 142(1) of the Act wherein the income from house property is evident at page 17 and claim of standard deduction is also visible, so it can be assumed that the A.O. has enquired into this issue of allowability of ₹ 4,07,404/- (Maintenance Compensation) along with standard deduction of 30% u/s. 24 of the Act. However we cannot accept the contention of the Ld. A.R. that merely by filing of computation of income, the claim of standard deduction in respect of house property has been enquired into by the A.O. because we note that there is no query in this respect or even in respect of the house pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n act of an A.O. to be deemed it to be erroneous as well as prejudicial to the interest of the revenue in case, if A.O. does not enquire, the action of the Ld. Pr. CIT cannot be found to be erroneous. Be that as it may be, even if we don't look at the deeming provision of law, still it has to be kept in mind that A.O. while making an assessment of the income of an assessee has the dual role of an investigator as well as that of an adjudicator. So, if he fails to discharge any of this duty then it vitiates the assessment order. So, if an A.O. fails to investigate on an issue then it is a failure/omission on the part of his as an investigator, consequently his omission to enquire on an issue regarding assessment of assessee is erroneous as well as prejudicial to the Revenue. Here in this case, if the assessee had on query of A.O. (which fact could have been discerned from a perusal of the notice/order sheet entries of AO) and pursuant to the same, if the assessee had replied by pointing out to A.O. that the issues are permeating from earlier years and the issue has been settled by higher Appellate Forums and it has been accepted by the department, then there being no change in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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