TMI Blog2022 (5) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidences filed by the assessee is contrary to facts or not in accordance with law. The case of the assessee finds supports on all these propositions from several decisions by the Apex Courts and other juridical forums as cited before us during the course of hearing namely Malabar Industrial Co. [ 1991 (10) TMI 26 - KERALA HIGH COURT] , CIT vs. Max India Ltd. [ 2007 (11) TMI 12 - SUPREME COURT] , CIT vs. Gabriel India Ltd [ 1993 (4) TMI 55 - BOMBAY HIGH COURT] . Thus we hold that the revisionary jurisdiction has not been validly exercised by the ld PCIT. Accordingly we quash the revisionary proceedings initiated u/s 263 of the Act and the consequent order passed u/s 263 of the Act. The appeal of the assessee is allowed. - I.T.A. No. 546/Kol/2020 - - - Dated:- 13-5-2022 - Shri Rajesh Kumar, Accountant Member And Shri Sonjoy Sarma, Judicial Member For the Appellant : Shri Miraj D Shah, A.R. For the Respondent : Shri Amitava Bhattacharya, CITDR. ORDER Per Shri Rajesh Kumar , AM : This is an appeal preferred by the assessee against the order of the Principal Commissioner of Income Tax -5, Kolkata [hereinafter referred to as PCIT ] dated 13.03.2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount received of Rs. 86,70,000/- by the assessee from sale of shares. The assessee also submitted that it has not received any share capital/premium of Rs. 86,70,000/- by filing the copies of balance sheet which testified that there was no increase any share capital or share premium from 31.03.2010 however reply of the assessee did not favour with the ld PCIT and ld PCIT revised the assessment vide order dated 13.03.2016 passed u/s 263 of the Act. Now the assessee has assailed the revisionary proceedings as well as order passed by the ld. PCIT in appeal before us. 4. The ld. Counsel for the assessee vehemently argued before us that the jurisdiction u/s 263 of the Act has wrongly been assumed and exercised by the ld. PCIT setting aside the assessment framed u/s 143(3) read with Section 147 of the Act dated 18.12.2017 for the reason that AO has failed to examined the identity, creditworthiness and genuineness of the transactions of share capital /share premium of Rs. 86,70,000/-. The Ld. Counsel while taking us through the reasons recorded u/s 148(2) of the Act for reopening the assessment u/s 147 of the Act specifically pointed out that the provisions of Section 147 was invoke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions, namely assessment being erroneous as well as prejudicial to the interest of revenue, have to be satisfied otherwise recourse cannot be had to the provisions of section 263 of the Act to set aside the assessment by relying on the decision of Malabar Industrial Co vs. CIT 198 ITR 611(SC). The Ld. Counsel further argued the ld PCIT can not exercise the jurisdiction u/s 263 of the Act where the AO has taken one of the two courses permissible under the law which has resulted in loss of revenue or where two views are possible and the AO has taken one possible view as in that scenario also the assessment cannot be treated as erroneous in so far as prejudicial to the interest of revenue. The AR argued that unless the view taken by the AO is not sustainable in law or not in accordance with law or contrary to the facts , the jurisdiction u/s 263 of the Act can not be resorted to. In defense of this arguments, the ld A.R relied on the decision of CIT vs. Maxx India Ltd. 295 ITR 282 (SC). The ld. Counsel also argued that where the AO has conducted the proper enquiries by calling upon the assessee to explain the particular point and the assessee has duly responded the same and furni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary to do is that whatever items are proposed to be examined by the PCIT has been confronted to the assessee in the proceedings u/s 263 of the Act even though any of the items did not find any mention in the show cause notice. The PCIT further submitted that mostly calling for the reply of the assessee on certain issues and filing the same in the assessment folder cannot be construed that the issue has been examined by the AO. Therefore, the PCIT has rightly exercised the jurisdiction u/s 263 of the Act and in order to defend his argument the Ld. D.R relied on the decision of Hon ble Apex Court in the case of CIT vs. Amitabh Bachchan reported in (2016) 69 taxmann.com 170 (SC). 6. We have heard rival contentions and perused the material on record. Undisputedly facts are that the PCIT has invoked jurisdiction u/s 263 of the Act to set aside the assessment framed u/s 143(3) read with Section 147 of the Act dated 18.12.2017 on the ground that AO has failed to examine the identity, creditworthiness and genuineness of the transactions related to share premium amounting to Rs. 86,70,000/- received by the assessee and thus the assessment so framed is rendered erroneous as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as prejudicial to the interest of the revenue. It is settled law that in order to invoke the jurisdiction u/s 263 of the Act by the PCIT, the twin conditions i.e. the order has to be erroneous and prejudicial to the interest of the revenue, have to be satisfied. In case one of the two conditions is satisfied out of the two, even then the PCIT cannot invoke the jurisdiction u/s 263 of the Act to revise the assessment. It is also a settled law that the jurisdiction is not available to PCIT u/s 263 of the Act to revise the assessment on the issues merely because no reference or discussion has been made in the assessment order especially when the AO has called for details/explanations from the assessee on all the issues as proposed by PCIT in the order passed u/s 263 and assessee has responded the same by filing written submissions with details/evidences which are part of the assessment records. In other words, the revisionary jurisdiction is not available to the PCIT merely on the ground that AO sought reply from the assessee during assessment proceedings which furnished by the assessee with evidences and are available in the assessment records however it did not find an elaborate dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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