TMI Blog2021 (10) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... tituted by the view of the superior authority and the order passed cannot be branded as erroneous per se . Therefore, in the absence of any error in the assessment having regard to the allowability of section 54F, the enquiry directed by the PCIT are superfluous and without authority of law. Such action of the PCIT cannot be said to be within the realm of revisional jurisdiction under section 263 - Decided in favour of assessee. - ITA No. 26/RPR/2021 - - - Dated:- 29-9-2021 - Shri Pradip Kumar Kedia, Accountant Member And Shri N.K. Choudhry, Judicial Member For the Appellant : Shri R.B. Doshi, C.A For the Respondent : Shri P.K. Mishra, CIT D.R. ORDER PER PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER : The captioned appeal has been filed at the instance of the assessee against the revisional order of the Principal Commissioner of Income Tax (PCIT in short), Raipur dated 11.12.2018 passed under section 263 of the Income Tax Act, 1961 (the Act in short) whereby the assessment order passed by the Assessing Officer (A.O.) dated 11.12.2018 under section 143(3) of the Act concerning Assessment Year 2016- 17 was sought to be set aside for reframing the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The original assessment was set aside on the above point and the A.O. was directed to pass a fresh assessment in terms of directions in the revisional order. 6. Aggrieved by the aforesaid action of the PCIT, the assessee is in appeal before the Tribunal agitating supervisory jurisdiction usurped by the PCIT under section 263 of the Act. 7. When the matter was called for hearing before the Tribunal, the learned Counsel for the assessee raised several points to assail the action of the PCIT. To begin with, it was alleged that no notice under section 263 of the Act was received by the assessee. As regards show cause notice dated 10.03.2021, the notice has been purportedly sent on email id. rbdco011@yahoo.co.in which was not received on the said id. at any time and affidavit of the assessee has been filed in this regard. (2) A solitary notice dated 10.03.2021 was issued and despite non-service of notice, no further intimation was attempted to be made on the assessee while passing revisional order within two weeks i.e. on 26.03.2021. Thus, non-appearance of the assessee is wholly attributable to the failure on the part of the PCIT to afford reasonable opportunity. In this re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deduction under section 54F of the Act in the factual matrix pointed out to him. It was contended that there are long line of judicial precedence wherein it has been held that date of commencement of construction is irrelevant for the purpose of section 54/54F of the Act. Once construction has been completed after the transfer of the original assets within the stipulated period specified in section 54F, the assessee is entitled in law for deduction under section 54F of the Act. 11. The legal proposition is covered by :- - Pr. CIT vs. Akshay Sobti (2020) 423 ITR 321 (Del) - CIT vs. Bharti Mishra (2014) 265 CTR 374 - DCIT vs. Dr. Chalasani Mallikarjuna Rao (2016) 161 ITD 721 (Vskp.) - ACIT vs. Subhash Sevaram Bhavnani (2012) 23 taxmann.com 94 (Ahd.) - CIT vs. J.R. Subramanya Bhatt (1987) 165 ITR 571 - Hill Queen Investment (P) Ltd. vs. Pr. CIT (2021) 62 CCH 70 (Kol. Trib.) - Padam Kumar Jain vs. CIT (2020) 59 CCH 209 (Ranchi) - Magic Landcon LLP Anr. Vs. Pr. CIT (2020) 204 TTJ 785 (Del) - Karthik Financial Services Ltd. vs. CIT (2019) 55 CCH - ITO vs. K.C. Gopalan (2000) 162 CTR 566 (Ker.) - Yatin Prakash Telang vs. IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Revisional order is thus liable to be quashed on this score. 14. We now also advert to the vehement opposition on behalf of the assessee on the ground of non-issuance of notice and on total lack of opportunity while concluding the proceedings under section 263 of the Act. It has been demonstrated on facts that only show cause notice issued to the assessee was for attendance on 15.03.2021 calling the assessee at earlier point of time i.e. 11.15 A.M on the same date, whereas the notice itself was issued at 1.49 PM. We are constraint to observe that such casual approach of a very senior functionary of the Department does not augur well in the eyes of the public. As stated in the bar, no such notice was served at all on the email id. as claimed. No other notice was served. Palpably, it is a case of total lack of opportunity to the assessee to defend its case. A question would arise as to whether a failure to give a reasonable opportunity to the assessee of being heard was only a procedural irregularity in such gross circumstances and thus curable and did not render the order passed by the PCIT ab initio void and nonest in law per se ? 15. In the case of Tata Chemicals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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