TMI Blog2023 (5) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... so, the case of the assessee would be covered under Clause (c) of Sec.263(1) which puts a bar on initiation of revision u/s 263 when an appeal is pending before Ld. CIT(A). As relying on Smt. Renuka Philip case [ 2018 (12) TMI 129 - MADRAS HIGH COURT ] and similar ratio has been laid down in CIT vs. VAM Resorts and Hotels Pvt. Ltd. [ 2019 (8) TMI 1418 - ALLAHABAD HIGH COURT ] we would hold that the revision u/s 263 was bad-in-law and the same is therefore, liable to the quashed. Decided in favour of assessee. - ITA No.350/Chny/2022 - - - Dated:- 21-4-2023 - Hon ble Shri V. Durga Rao, Judicial Member And Hon ble Shri Manoj Kumar Aggarwal, AM For the Appellant : Shri S. Sridhar (Advocate-Erode) Ld. AR For the Respondent : S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quashed, for the order passed u/s.263 was to rectify the errors of the Assessing Officer, as mentioned in para 6 of the order and in para 2.2 of the notice dt. 07/03/2022, which is not possible under the said section. 6) The PCIT misconstrued the provisions of Explanation 2(a) to sec. 263 of the Act, wherein it is stated that the order is passed without making inquiries or verification which is contrary to the findings of the Assessing Officer, where he had stated in his order dt.30/12/2019 that the submissions of the assessee is considered which makes the revision order illegal. 7) The order of the PCIT is liable to be cancelled, for the order of the Assessing Officer was neither prima facie erroneous nor prejudicial to the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it money received. Finally, the income was assessed at Rs.336.77 Lacs which was subjected to assessee s further appeal before first appellate authority. 3.2 Subsequently upon perusal of cash records, Ld. Pr. CIT invoked revisionary jurisdiction u/s 263 and put the assessee to show-cause notice on 07-03-2022. It was alleged that unaccounted stock found in the survey was to be taxed u/s 69B r.w.s. 115BBE of the Act and the same was erroneously assessed u/s 28. Further, entire disallowance should have been made u/s 40A(3) as against 10% estimated by Ld. AO. Therefore, there was shortfall in the disallowance. 3.3 The assessee assailed the proposed revision, inter-alia, on the ground that the assessee was in further appeal on impugned issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. 5. The Hon ble Madras High Court in the case of Smt. Renuka Philip vs. ITO (409 ITR 567) held as under: - 22. The above explanation makes it clear that when the appeal is pending before the Commissioner, the exercise of jurisdiction under Section 263 of the Act is barred. The Commissioner in the order dated 14.03.2012 states that the appeal pertains to the claim made by the assessee under Section 54 of the Act and it has got nothing to do with the order passed by the Assessing Officer under Section 54F of the Act. The said finding rendered by the Commissioner is wholly unsustainable, since the assessee went on appeal against the re-assessment order dated 31.12.2009 stating that his claim for deduction under Section 54 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment order is to be held as erroneous, it cannot be stated to be prejudicial to the interest of Revenue as every erroneous order cannot be subject matter of Revision under Section 263 of the Act. Further more, if the order passed by the Commissioner under Section 263 of the Act as confirmed by the Tribunal is allowed to stand, then the very purpose of the remand order against the original re-assessment proceedings would become a fait accompli. 25. Thus, for the above reasons we are fully satisfied that the assumption of jurisdiction by the Commissioner under Section 263 of the Act was wholly without jurisdiction as the twin tests have not been satisfied and consequently, the order dated 14.03.2012 as confirmed by the Tribunal by ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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