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TMI Blog2022 (3) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... d. PCIT u/s 263 of the Act and also the consequent order passed u/s 263 of the Act on the ground that revisionary jurisdiction as well as the consequent order is invalid and nullity as necessary conditions envisaged in section 263 of the Act have not been satisfied before invoking the revisionary jurisdiction. The fact in brief are that the assessee filed a return of income on 28.09.2015 declaring total income of Rs. 69,040/- which was processed u/s 143(1) of the Act. Thereafter, the case of the assessee was selected for scrutiny through CASS and assessment was framed vide order dated 05.09.2017 passed u/s 143(3) of the Act assessing the income at Rs. 69,040/- after taking into account the various contentions/replies of the assessee filed d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the said immovable property and offered the income under the head 'income from House Property', which means the interest bearing loan taken by the assessee was infused into immovable property purchased by the assessee. Yet the assessee claimed interest payment made to loan creditor under the head of income from business which is not allowable. However, the officer allowed the interest on loan in violation to section 36(1)(iii) of the I.T. Act. 4. In the previous year, the assessee had taken loan of Rs. 50 lakhs & 30 lakhs from two companies viz. Lily Vintrade (P) Ltd. and Mountview Dealmark (P) Ltd. But no verification was made". 4. In reply to the show notice, the assessee filed written submissions alongwith details/evidences expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the set aside proceedings. The Ld. AR, therefore, submitted that the order of Ld. PCIT has become academic in respect pf the remaining three issues as no addition has been made by the AO in the assessment framed in th4e set aside proceedings and, therefore, are not being pressed. 6. The ld AR vehemently submitted before the bench that during the original assessment proceeding the AO called for the details and explanation of the assessee in respect of loss on sale of penny stocks and justification of setting off the same against the house property income which were duly furnished before the AO by referring to the notices issued u/s 142(1) dated 9.3.2017 and 2.08.2017. The ld AR stated that in the first notice on page no 2 vide para 9 the AP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1161/Kol/2019. 4. M/s. Sinhotia Metals & Minerals Pvt. Ltd. vs PCIT, Durgapur vide ITA No. 889/Kol/2017. 5. M/s. Patron Ninimay Pvt. Ltd. vs ITO, Ward-10(4), Kolkata vide ITA No. 1614/Kol/2019. 6. M/s. Ganapati Tradewings Pvt. Ltd. vs ITO, Ward-1(4), Kolkata vide ITA No. 2651/Kol/2019. 7. M/s. Khetawat Properties Ltd. vs PCIT, Kolkata vide ITA No. 578/Kol/2019. 8. M/s. Kaushalya Dealers Pvt. Ltd." 7. The Ld. AR therefore, submitted that in view of the various decisions of the coordinate benches wherein it has been held that invoking jurisdiction u/s 263 in case the AO has taken a plausible view after taking into consideration the reply/evidences furnished by the assessee. The Ld. AR submitted that it is not a case of lack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same at this stage as the PCIT has only directed the AO to examine the issues denovo. 9. After hearing both the parties and perusing the material available on record, we note that the revisionary jurisdiction was exercised by the Ld. PCIT u/s 263 of the Act in order to revise the assessment on four issues. In the set aside proceedings, the AO has made rejected the loss on sale of penny whereas the other three issues proposed by the PCIT were accepted and no addition were made. Therefore, we find merit in the contentions of the Ld. AR that the order of PCIT becomes academic to the extent of these three issues on which no additions were made by the AO assessment framed u/s 263 r.w.s. 143(3) of the Act. Accordingly we are not adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Jurisdictional High Court has held that where all the requisite evidences are on records and same were duly examined by the AO, then the order of the AO was not erroneous and prejudicial to the interest of the revenue after following the decision of Hon'ble Bombay High Court in the case of CIT vs Gabriel India Ltd. 203 ITR 108(Bom) the operative part whereof is as under: 15. We may now examine the facts of the present case in the light of the powers of the Commissioner set out above. The Income-tax Officer in this case had made enquiries in regard to the nature of the expenditure incurred by the assessee. The assessee had given detailed explanation in that regard by a letter in writing. All these are part of the record of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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