TMI Blog2022 (12) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... cted for de-nova proceeding by pressing into service the applicability of explanation 5A to section 271(1) which ostensibly is impermissible under a law following the ration laid in down in CIT Vs Gabriel India Ltd. [ 1993 (4) TMI 55 - BOMBAY HIGH COURT] As it is a well settled law that, an inquiry and/or fresh determination can be directed by the revisionary authority only after coming to the conclusion that the finding of the AO is erroneous and prejudicial to the interests of the Revenue on the basis of evidential material and without doing so, the authority turns toothless to disturb the completed proceedings, hence for the reason in our considered opinion, the conclusion drawn by the Ld. PCIT is untenable in law, ergo finding no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings initiated under section 271(1)(c) of the Act, in view of the provisions of section 271(1)(c) of the Act, notwithstanding the aforesaid Explanation 5A to section 271(1) of the Act. 3. The ld. Pr. CIT erred in not appreciating the fact that the AO had dropped the penalty under section 271(1)(c) of the Act, for the AY 2008-09 vide his order dt. 29.4.2016 after taking into consideration the relevant factual and legal position as explained by the appellant, vide his letter dt. 22.2.2016. 4. The ld. Pr. CIT grossly erred in totally ignoring the submission of the appellant, in regard to the scope of an Explanation appended to section of the Act, particularly the legal position that the same is subordinate to the main prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order as; The penalty proceedings initiated in case of Sh Kumar P Gera are hereby dropped. , which tended 263 revisionary action on the appellant. 4.3 The Ld. PCIT vouching the action of his tax authority below [for short TAB ], invoked the revisionary jurisdiction u/s 263 contenting the order dropping penalty as erroneous and prejudicial to the interest of revenue for a solitary reason of ignoring the applicability of explanation 5A to section 271(1) of the Act. Since the appellant s submissions during the course of revisionary proceedings did not inspire any confidence, consequently the Ld. PCIT by setting aside the order dropping penalty directed the Ld. AO for denova adjudication of penal proceedings in the light of appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained therein has entreated the Ld. AO for dropping-off the 271(1)(c) penalty proceedings in support of judgement of Hon ble Karnataka High Court in the case of CIT Vs Manjunatha Cotton Ginning Factory reported at 359 ITR 565 and considering the same extenso, the Ld. AO pulled the plug by an order. However, the Ld. PCIT carried away by a single tag lined order without due verification of record placed before him and framed an adverse opinion on the same facts circumstances pulling into service the applicability of explanation 5A to section 271(1) without first demonstrating fulfilment of twin conditions pre-requisite for assumption of revisionary jurisdiction. 8. In this context it is apt to quote that, Hon ble Bombay High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s initiated u/s 271(1)(c) of the Act, whereas in a revisionary proceedings Ld. PCIT yet again conducted an inquiry into the claim of the appellant based on the like material and sitting on the same fence displaced with the views of Ld. AO and directed for de-nova proceeding by pressing into service the applicability of explanation 5A to section 271(1) which ostensibly is impermissible under a law following the ration laid in down by Hon ble Jurisdictional High Court in CIT Vs Gabriel India Ltd. (supra). As it is a well settled law that, an inquiry and/or fresh determination can be directed by the revisionary authority only after coming to the conclusion that the finding of the Ld. AO is erroneous and prejudicial to the interests of the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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