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TMI Blog2023 (4) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... earing on behalf of the assessee submits that the assessee filed its return of income for AY 2017-18 on 05/11/2017, declaring total income of Rs.14,00,430/-. The case of the assessee was selected for scrutiny under CASS. The Assessing Officer (AO) completed the assessment by making addition of Rs.3,34,648/- on account of notional rent vide order dated 23/12/2019 u/s 143(3) of the Act. Thereafter, the PCIT issued show-cause notice u/s 263 of the Act on 04/02/2022. The same is at page no. 342 of the Paper Book. The learned Authorised Representative (AR) submitted that a bare perusal of the show-cause notice would reveal that the PCIT has invoked revisional jurisdiction on a proposal from the AO. The PCIT has not made his independent examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced reliance on the decision of Hon'ble Apex Court in the case of CIT vs. Nirav Modi 244 taxmann.com 194. 4. To substantiate that the AO had made enquiries in respect of unsecured loans, the learned AR referred to the reply of assesse at page no. 171 of the Paper Book in response to notice u/s 142(1) of the Act. The learned AR further pointed that the said reply was uploaded on the official website of Income Tax Department on 19/12/2019. The acknowledgement is at page no. 176 and 177 of the Paper Book. The learned AR further referred to the reply of the assesse dated 19/12/2019 at page no. 180 to 185 of the Paper Book. Wherein, assessee had given details of the parties from whom unsecured loans are taken. The learned AR further referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extract of the notice is reproduced herein below: "2. The Assessing Officer vide letter no. ACIT 28(3) u/s 263/TRL/2019-20 dated 13.02.2020, had submitted a Proposal for Revision u/s 263 of the Order passed u/s 143(3) dated 23.12.2019, on the following grounds." Further, the CIT(A) in para 4 of the notice has recoded that, "the AO has stated that he could not properly apply his mind to the submissions of the assessee". "The Assessing Officer also further stated that due to oversight he did not add the above said unapproved loan credits.....". ".......the Assessing Office has requested for cancellation of the order passed u/s 143 (3) and to revise the said order u/s 263...." The above reasons in show cause notice suggest that the primary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, can't 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, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and liable to be quashed. 10. The assesse has referred to the queries raised by the AO in notice u/s 142(1) of the Act. The assessee has also drawn our attention to the acknowledgment of the replies uploaded during assessment proceedings. From perusal of the aforesaid replies it emanates that the assesse has time and again given details of the loan creditors. The documents on record clearly shows that the AO has examined the issue during scrutiny assessment proceedings. Merely for the reason that the AO has not given any finding in the assessment order would not mean that the issue was not examined by the AO in scrutiny assessment. The Hon'ble Bombay High Court in the case of CIT vs. Gabriel India Ltd. 203 ITR 108 has held that where th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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