TMI Blog2021 (11) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... ecide the matter a fresh as per law after providing reasonable opportunity to the assessee. Whether assessment order has been made subject matter of Vivad Se Vishwas Scheme, the ld. Pr.CIT cannot exercise jurisdiction u/s 263 ? - PCIT is also directed to examine the contentions so raised on behalf of the assessee in terms of exercise of jurisdiction u/s 263 in context of declaration of the assessee having been accepted under the direct taxes Vivad Se Vishwas Scheme Act, 2020 prior to the issuance of the show-cause notice u/s 263 - since the ld PCIT himself is the appropriate authority who has issued Form 3 dated 23.02.2021 in the instant case and the fact that the said contentions have been advanced for the first time before us, it is relevant to afford an equal opportunity to the ld PCIT to examine such contentions raised on behalf of the assessee challenging his exercise of jurisdiction u/s 263 of the Act. Therefore, the contentions so advanced by both the parties are left open to be examined by the ld PCIT as per law and have not been adjudicated upon by us. - ITA No. 51/JP/2021 - - - Dated:- 28-10-2021 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erves to be held bad in law and be quashed. 2. At the outset, it is noted that there has been a delay in filing the present appeal by 30 days. It was submitted that the impugned order was passed by the ld. PCIT on 31.03.2021 and the same was received by the assessee on 31.03.2021 and ordinarily, the appeal should have been filed before the Tribunal on or before 30.05.2021. However, the same was filed on 30.06.2021. It was submitted that the delay so happened in filing the present appeal was on account of the 2nd outburst of COVID-19 Pandemic and consequent lockdown announced by the State Government. It was accordingly submitted that due to lockdown, the assessee was prevented from filing the present appeal and the delay so happened was not deliberate. In support, the reliance was also placed on the decision of Hon ble Supreme Court dated 27.04.2021 wherein the period of limitation in filing of appeal, irrespective of the limitation prescribed under the general law or special laws whether condonable or not shall stand extended with effect from 14th March, 2021 till further orders. It was accordingly submitted that the delay so happened in filing the present appeal was beyond th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow-cause, the assessment order was set aside and to be redone denovo in the light of the observation made in the impugned order passed u/s 263 after affording reasonable to the opportunity to the assessee. Against the said order, the assessee is in appeal before us. 7. In Ground No. 1, the assessee has challenged the exercise of jurisdiction by the ld. Pr. CIT u/s 263 of the Act. In this regard, it has been submitted by the ld A/R that the assessee has already filed an application under Vivad Se Vishwas Scheme on 30.01.2021 which was accepted by the Department and Form 3 was issued on 23.02.2021 by the ld. Pr. CIT, Jaipur-2. Thereafter, Form 4 dated 13.03.2021 was filed by the assessee and finally Form 5 dated 15.04.2021 was issued by the ld. Pr. CIT, Jaipur-2. It was accordingly submitted that prior to the issue of the show cause notice u/s 263 dated 26.03.2021, Form 3 has already been issued by the ld. Pr. PCIT dated 23.02.2021 and accordingly where the assessment order has already been made subject matter of the Vivad Se Vishwas Scheme where the declaration filed by the assessee has been accepted by the ld PCIT, the revision of the said assessment order by virtue of exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the ld. A/R reiterated his earlier contentions that once the assessment order has been made subject matter of Vivad Se Vishwas Scheme, the ld. Pr.CIT cannot exercise jurisdiction u/s 263 of the Act and at most, where the law permits, the AO could have exercised jurisdiction u/s 147 of the Act and which has not happened in the present case. 10. In Ground No. 2, the assessee has challenged the passing of the impugned order u/s 263 by the Pr. PCIT without providing adequate opportunity of being heard. It was submitted by the ld A/R that the first notice u/s 263 was issued only on 26.03.2021 fixing the date of hearing for 29th of March, 2021 and thereafter, proceedings were concluded on 31.03.2021 and the order was passed on the same date. It was submitted that 27th March and 28th March, being Saturday and Sunday, the assessee effectively got just one day to response which is not sufficient by any standards to respond to the show cause notice and therefore there is denial of adequate opportunity of being heard to the assessee and the principle of natural justice has been clearly violated in the instant case and on this ground as well, the impugned order passed by the ld PCIT be s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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