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TMI Blog2022 (7) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... ad excluded the period from 15.03.2020 to 28.02.2022 in computing the period of limitation for any suit, appeal, application or proceedings. Further, as per the judgment of the Hon'ble Apex Court, notwithstanding the actual balance period of limitation, all persons shall have a limitation period of 90 days from 01.03.2022. Further, the Hon'ble Supreme Court held that in the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that larger period shall apply. In this case, the appeal has been filed before the ITAT on 03.06.2020 (i.e. well within the period of limitation contemplated by the Hon'ble Apex Court). Therefore, in view of the above judgment of the Hon'ble Apex Court, there is no delay in filing this appeal and we proceed to dispose of the same on merits. 3. Though several grounds are raised, the issues argued by the learned AR are two folds, namely - (i) PCIT's order passed u/s 263 of the I.T.Act is bad in law; and (ii) the provisions of section 69A was not attracted, hence, section 115BBE of the I.T.Act has no application. 4. The brief facts of the case are as follows: The assessee an individual, is engaged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order accordingly and also invoke penal provisions u/s 271AAC." 7. Aggrieved, the assessee has filed the present appeal before the Tribunal. The assessee has filed a paper book enclosing therein copies of notice issued u/s 263 of the I.T.Act, the objections filed, the sworn statement recorded from the assessee and his son, sworn statement recorded by the police party, the case laws relied on, etc. The learned AR reiterated the submissions made before the PCIT. 8. The learned Departmental Representative supported the order of the PCIT. 9. We have heard rival submissions and perused the material on record. Admittedly, the assessee is earning income from business of wholesale trading of copra and copra products. The goods are sold in different States and the same is reflected in the trading account of the assessee. The assessee's son while collecting the sale proceeds in the State of Maharashtra was stopped by the Election Authorities and a sum of Rs.21,71,050 was seized. In a deposition u/s 131(1)(d) of the I.T.Act, it was stated on oath that the cash seized pertains to the sale proceeds of the business of his father (the assessee). The assessee was also required to appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticular case is not fit for levy of penalty then the Assessing Officer has power not to initiate penalty proceedings because legislature has used the expression `may' in penal provision which shows that the Assessing Officer has discretionary power to initiate the penalty proceedings. * In other words, in any such situation of not initiating penalty proceedings the Assessing Officer adopted one of the legal possible view. Whenever one of the legal possible view is adopted by the Assessing Officer then such assessment order cannot be called erroneous and prejudicial to the interest of the revenue. * In instant case, the Assessing Officer may be satisfied that since the assessee has surrendered the amount and has offered the surrendered amount by paying tax therefore this is not a fit case for levy of penalty and accordingly he may not be initiated penalty proceedings. Therefore such order cannot be called erroneous and prejudicial to the interest of the revenue (para 11) * In view of the above, it is held that the assessment order passed by the Assessing Officer was not erroneous and prejudicial to the interest of the revenue and accordingly impugned revisionary order is quash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving effect to the order passed u/s 263 of the I.T.Act, which reads as follows:- "The assessee Sri.B.N.Prasanna Kumar is engaged in the business of wholesale trading of Copra and Copra Kowt under the name and style M/s.Veetrag Traders at Mahaveer road, Bellur Nagamangala Taluk, Manyda District. In the instant case, the AO completed the assessment by bringing to tax unaccounted cash of Rs.21,71,050/-. The AO passed assessment order u/s 143(3) r.w.s. 153A on 27.12.2018 by raising a demand of Rs.NIL. However, the addition made should have been brought ot tax u/s 69A at 60% under the provision of section 115BBE of the I.T.Act. Further, same was taxed at 30%. Since, there was mistake in calculation of tax, the case was referred to Pr.Commissioner of Income Tax, Mysore for passing order u/s 263." (Emphasis supplied) 9.5 On identical facts, the Pune Bench of the Tribunal in the case of Alfa Laval Lund AB v. CIT in ITA No.1287/Pun/2017 (order dated 02.11.2021), had held that when revisionary proceedings have been triggered by the A.O. by sending a proposal to the PCIT and then the latter passing the order u/s 263 of the I.T.Act, there is jurisdictional deficit resulting into vitiatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 263 is calling for and examining the record of any proceedings under the Act by the CIT leading him to consider the assessment order erroneous etc. A communication from the AO is not `the record of any proceedings under this Act'. To put it simply, the consideration that the assessment order is erroneous and prejudicial to the interests of the revenue should flow from and be the consequence of his examination of the record of proceedings. If such a consideration is not preceded by the examination of record of the proceedings under the Act, the condition for revision does not get magnetized. 5. It is trite that a power which vests exclusively in one authority, cannot be invoked or cause to be invoked by another, either directly or indirectly. Section 263 of the Act confers power on the CIT to revise an assessment order, subject to certain conditions. Instantly, we are confronted with a situation in which the revision was initiated on the basis of the AO sending a proposal to the CIT and not on the CIT suo motu calling for and examining the record of the assessment proceedings and thereafter considering the assessment order erroneous and prejudicial to the interests of the revenu ..... 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