TaxTMI 
TaxTMI 
2022 (5) TMI 935
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....t assessee as; "1. On the facts and circumstance of the case and in law the Pr. Commissioner of Income Tax (Pr. CIT) erred in passing order u/s 263 on pointes on which A.O. had taken a view after verification of full details asked for and submitted during limited scrutiny assessment u/s 143(3) of the Act. 2. The order u/s 263 is not justifiable as the same is passed on pointes verified by A.O. during the assessment proceedings and a view is taken by him after verification of details asked for and accordingly submitted during assessment u/s 143(3). 3. The Pr. CIT erred in not appreciating that both the twin conditions, order being erroneous and order being prejudicial to the interest of revenue should be fulfilled for action u/s 263 as held by SC in the case of Malabar Industrial Co V CIT 243 ITR 83 and CIT V Max India 295 ITR 282. 4. The Pr. CIT erred holding that A.O. has not examined loans and interest payments and loans and advances given are not verified by A.O. when the full details in respect of the same asked for and submitted were verified by A.O. 5. The Pr. CIT erred in not appreciating that the assessee lend money without interest out of sale of developed plots ....
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....equently invoking the provisions of section 263(1) of the Act, prefiguring the absence of proper inquiries and verification as regards to Interest expense, cash deposit and capital account transaction held the order as erroneous and prejudicial to the interest of revenue and set-aside the same with a direction to decide the issues on merits giving opportunity of being heard to the assessee. 4.3 Pending such direction before the Ld. AO, the appellant assessee opposed the revisionary action of Ld. PCIT before this Tribunal for evenhandedness on the grounds assailed at foregoing para 3. 5. After hearing to the rival contention of both the parties to the appeal; perused material placed on record and duly considered the facts of the case in the light of settled legal position and the case law relied upon by the appellant assessee as well the respondent revenue. 6. It is evidently discernible form the records are that; 6.1 The assessee filed his return of u/s 139 on 30/09/2015 and by service of statutory notice dt 25/07/2016 u/s 143(2) of the Act the assessee's return was selected for limited scrutiny exclusively to inquire and verify three issues viz; (1) Interest expenses (2) Cash ....
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....oceedings were completed. On a specific query by the bench on non-appearance vis-à-vis non submission before the revisionary authority, the Ld. AO opted for silence, however adverting the legal compilation contended that, the Ld. PCIT passed the 263 order without authority and on the issues which were duly examined by the Ld. AO during the course of original assessment. Au contraire, the learned representative of revenue [for short "DR"], supported the order of Ld. PCIT stating that, each issue of limited scrutiny comprising of multiple items of remained unexamined and unverified by the Ld. AO in the absence of inquiries and hence the order of necessarily be termed as erroneous and prejudicial to the interest of the revenue. The Ld. DR arguendo further contended that, the revisionary action directing to decide the issues on merits would in no case cause prejudicial to the interest of the assessee if, necessary and acceptable evidence are produced in support of claims made, hence prayed before bench for dismissal of appeal. 8. Albeit, there are as many as ten grounds are raised before us, whereas the ground number eight is withdrawn as not pressed. The bone of contention in ....
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....-satisfaction of twin condition laid in section 263 of the Act, and in relation hereto a plain reading of this provision makes it clear that, the precondition to exercise revisionary jurisdiction by the PCIT/CIT suo moto under it is that, the order of AO must be erroneous insofar as it is prejudicial to the interests of the revenue is concern. Consequently, the provision mandates the satisfaction of existence of twofold conditions before invocation and these explicitly are; (i) the order of the assessing officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the revenue. If any one of two is absent or unsatisfied, that is where the order of the assessing officer is erroneous but is not prejudicial to the revenue or where order is not erroneous but is prejudicial to the revenue, then the recourse to Section 263(1) of the Act fails. Albeit the foresaid twin satisfaction drawn from the assessment records may trigger the revisionary jurisdiction, yet such shall not automatically empower the revisionary tax authorities to conclude the revision proceedings without obeying additional dual riders such as; (i) making or causing to be made such enquiry as n....
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.... Techspan India Pvt Ltd" reported at 404 ITR 10; "12. Before interfering with the proposed re-opening of the assessment on the ground that the same is based only on a change in opinion, the court ought to verify whether the assessment earlier made has either expressly or by necessary implication expressed an opinion on a matter which is the basis of the alleged escapement of income that was taxable. If the assessment order is non-speaking, cryptic or perfunctory in nature, it may be difficult to attribute to the assessing officer any opinion on the questions that are raised in the proposed re-assessment proceedings. Every attempt to bring to tax, income that has escaped assessment, cannot be absorbed by judicial intervention on an assumed change of opinion even in cases where the order of assessment does not address itself to a given aspect sought to be examined in the re-assessment proceedings." (Emphasis supplied) 9.1 We have perused the income tax return of the assessee filed for both the AY 2014-2015 and 2015-16, and to state that, both were un-accompanied by statement of income hence the verification of claim as to eligibility of set-off losses, claim of capital gain, int....