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TMI Blog2023 (1) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... he order passed u/s.263 dated 24.03.2022 is bad in law as well as in facts. 2. For that on the facts and in the circumstances of the case the proviso of section 263 of the IT Act 1961 does not attract in this case in as much as the assessing officer has made assessment u/s.143(3) after obtaining extensive details and making proper enquiry. The order passed u/s. 143(3) dated 10.12.2019 was not erroneous in so far as it is prejudicial to the interest of revenue. 3. For that on the facts and in the circumstances of the case the observations of the Ld. Pr. CIT-2 of the order u/s.263 of the IT Act 1961 stating that the assessing officer did not enquired regarding proviso of section 2(22)(e) and without making enquires and/or verification dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding 12.32% of its equity shares. Ld. PCIT also observed that Provisions of section 2(22)(e) of the Act relating to deemed dividend income are attracted in the given case since M/s. RDPL has accumulated profits at the opening of Financial Year under consideration. Based on this observation a show cause notice u/s. 263 of the Act issued to assessee and reply to the same was given on 23-02-2022. It was contended by the assessee that the loan transactions between the assessee and M/s. RDPL are not covered under the provisions of section 2(22)(e) of the Act as the loan was taken for commercial expediency and for the purpose of business. However, this submission of the assessee did not find any favour by the ld.PCIT. He held the order of the ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds placed before us and carefully gone through the judgment referred in the case of Pradip Kumar Malhotra (supra). Revisionary proceedings u/s. 263 of the Act have been challenged before us by the assessee stating is to be bad in law and liable to be quashed/cancelled since ld. PCIT erred in invoking the jurisdiction u/s. 263 of the Act. From perusal of the show cause notice, we notice that the only issue referred by the ld. PCIT is regarding the applicability of provisions of section 2(22)(e)( e ) of the Act on the 'loans and advances' of Rs. 4,66,69,103/- received from M/s. Rosedala Developers Pvt. Ltd ( in short 'RDPL') It is not in dispute that the assessee company holds 12.32% equity shares of M/s. RDPL and there is opening balance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92CA; or (iii) an order cancelling the order under section 92CA and directing a fresh order under the said section]. Explanation 1.-For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,- (a) an order passed on or before or after the 1st day of June, 1988] by the Assessing Officer 91[or the Transfer Pricing Officer, as the case may be,] shall include- (i) an order of assessment made by the Assistant Commissioner or Deputy Commissioner or the Income-tax Officer on the basis of the directions issued by the Joint Commissioner under section 144A; (ii) an order made by the Joint Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer 92[or the Transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner or Commissioner,- (a) the order is passed without making inquiries or verification which should have been made; (b) the order is passed allowing any relief without inquiring into the claim; (c) the order has not been made in accordance with any order, direction or instruction issued by the Board under section 119; or (d) the order has not been passed in accordance with any decision which is prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Court in the case of the assessee or any other person. 96[Explanation 3.-For the purposes of this section, "Transfer Pricing Officer" shall have the same meaning as assigned to it in the Explanation to section 92CA.] (2) No order shall be made under sub-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h necessary details. Therefore, it is a purely case of not conducting any enquiry. 11. As far as finding of the ld. PCIT in the impugned order is concerned, we notice that he had conducted sufficient enquiry, which is not controverted by the ld. Counsel for the assessee to the extent of the fact that assessee company holds 12.32% equity share of M/s. RDPL, loans and advances of Rs. 4,66,69,103/- has been received during the year and there is an opening balance of accumulated profits in the balance sheet of M/s. RDPL. Though the assessee company has taken a plea that alleged loan has been taken for commercial expediency during the year and are in the nature of business transaction and interest paid thereon. However, the exception which the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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