TMI Blog2023 (2) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... credit - It is to be appreciated that this aspect has been considered by the ld. Assessing Officer before allowing the credit. There is no apparent error in the order of the ld. Assessing Officer on this point. Therefore, we are of the view that ld. Commissioner has erred in invoking jurisdiction under section 263 of the Income Tax Act. Assessee appeal allowed. - I.T.A. No. 198/KOL/2022 - - - Dated:- 13-1-2023 - Shri Rajpal Yadav , Vice - President ( KZ ) And Shri Girish Agrawal , Accountant Member Shri Binod Jain , A. R. , appeared on behalf of the assessee None, appeared on behalf of the Revenue ORDER Per Rajpal Yadav , Vice - President ( KZ ) : - The assessee is in appeal before the Tribunal against the order of ld. Principal Commissioner of Income Tax, Asansol dated 01.03.2022 passe d under section 263 of the Income Tax Act, 1961 in A.Y. 2017-18. 2. The asse ssee has raised seven grounds of appeal. However, her main grievance is that ld. Principal CIT has erred in taking action under section 263 of the Income Tax Act by ignoring clause (c) of sub-section (i) of section 263. The pleadings in other grounds of appeal are peripheral arguments in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PCIT contended that against the assessment order on all the issues, the assessee is in appeal before the ld. CIT(Appeals). The appeal was filed long back and he drew our attention to pages no. 83 to 85 of the paper book, where copy of Form No. 35 is available. The assessee has challenged the very addition of Rs.1.02 crores made out of sundry debtors. This issue is subjudice before the ld. 1s t Appellate Authority and, therefore, ld. CIT is precluded to take action under section 263 in view of the clause (c) of section 263 subclause (1). 7. With regard to the second issue relating to TCS credit, the ld. Counse l for the assessee contended that ld. Assessing Officer has examined this aspect and after verification of the accounts has allowed the TCS credit. 8. Md. Ghayas Uddin, ld. CIT(DR) has argued this appeal on behalf of the Revenue on 03.08.2022. The Bench after conclusion of the hearing reserved the order. Somehow the order could not be dictated within 90 days because the Vice-President remained on official tour to Mumbai, Hyderabad and Tirupati Camp, because he is holding additional charge of Hyderabad and Telengana, therefore, order could not be passed within 90 days an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1988, the powers of the Commissioner under this sub-section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal. (2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, National Tax Tribunal, the High Court or the Supreme Court. Explanation.- In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded. 11. A bare perusal of the sub section-1 would reveal that powers of revision granted by section 263 to the learned Commissioner have four compartments. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts or an incorrect application of law will suffice the requirement of order being erroneous. (iv) If the order is passed without application of mind, such order will fall under the category of erroneous order. (v) Every loss of revenue cannot be treated as prejudicial to the interests of the Revenue and if the AO has adopted one of the courses permissible under law or where two views are possible and the AO has taken one view with which the CIT does not agree. If cannot be treated as an erroneous order, unless the view taken by the AO is unsustainable under law. (vi) If while making the assessment, the AO examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determine the income, the CIT, while exercising his power under s 263 is not permitted to substitute his estimate of income in place of the income estimated by the AO. (vii) The AO exercises quasi-judicial power vested in his and if he exercises such power in accordance with law and arrive at a conclusion, such conclusion cannot be termed to be erroneous simply because the CIT does not fee stratified with the conclusion. (viii) The CIT, before exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inquiry, even inadequate, that would not by itself, give occasion to the Commissioner to pass orders under section 263 of the Act, merely because he has different opinion in the matter. It is only in cases of lack of inquiry , that such a course of action would be open . 13. In the case of Gee Vee Enterprise vs. Commissioner of Income Tax reported in 99 ITR page 375, the Hon ble court has expounded the approach of ld. Assessing Officer while passing assessment order. The observation of the Hon ble court on pages 386 of journal read as under:- it is not necessary for the Commissioner to make further inquiries before cancelling the assessment order of the Income-tax Officer. The Commissioner can regard the order as erroneous on the ground that in the circumstances of the case the Income-tax Officer should have made further inquiries before accepting the statements made by the assessee in his return. The reason is obvious. The position and function of the Income-tax Officer is very diffident from that of a civil court. The statement made in a pleading proved by the minimum amount of evidence may be adopted by a civil court in the absence of any rebuttal. The civil co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rongly stated that the claim of TCS credit of Rs.20,46,801/- is incorrect against purchase of Rs.69,64,677/-. The Purchase of the by the assessee under her PAN was Rs. 20,85,68,595/- reported in 26As at Rs.20,46,79,657/~ {Rs 69 64 677 + Rs.19,77,14,980/-). The purchases of Rs.38,88,938/- of the year was reported by the suppliers in the next financial year. The detailed working is given in page 27 of the paper book. (10) To better understanding, we briny the facts of the case as narrated to the AO The assessee is a state excise licence holder in the region of Durgapur to sell the SMFL and Beer The assessee entered into a joint venture arrangement with Essbee intech Pvt Ltd to sell the beers of United Breweries Ltd in the region on the strength of her state excise licence and permissions. This arrangement was exclusive to her IMFL business conducted as sole proprietary concern. The Purchases are made under her PAN and TCs was deduced by the suppliers as per action 205C. The Purchases under the joint venture arrangement were recorded and computed to derive the income offered to tax. The assessee earned Rs.12,00,000 form such arrangement and the same was considered in the computa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
