TMI Blog2024 (1) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... 53C. Since the larger issues including legal issues are already pending before first appellate authority, the order passed by Ld. AO, in our considered opinion, could not be subjected to revision u/s 263. The assessee s case, in such a situation, would be covered under Clause (c) of Explanation-1 to Sec. 263 which puts a bar on initiation of revision u/s 263 when an appeal is pending before Ld. CIT(A). Even otherwise also, the powers of Ld. CIT(A) are co-terminus with those of the AO and he can do what AO could do and can also direct the later to do what the later has failed to do so. As decided in the case of Smt. Renuka Philip vs. ITO [ 2018 (12) TMI 129 - MADRAS HIGH COURT] when larger issue was pending before CIT(A), the revisionary authority could not exercise jurisdiction u/s 263 . thus we would hold that the impugned revision u/s 263 was bad-in-law and the same is therefore, liable to the quashed. Also see VAM Resorts and Hotels Pvt. Ltd. [ 2019 (8) TMI 1418 - ALLAHABAD HIGH COURT] Assessee appeal allowed. - Hon ble Shri V. Durga Rao, JM And Hon ble Shri Manoj Kumar Aggarwal, AM For the Appellant : Shri T.S. Lakshmi Venkatraman (FCA)- Ld.AR For the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessment Proceedings 3.1 The facts in brief are that the assessee being resident corporate assessee is stated to be engaged in manufacturing of Indian Made Foreign Liquor. The assessee filed its return of income for AY 2017-18 admitting total income of Rs. 16.75 crores which was scrutinized u/s 143(3) on 16.12.2019. However, during the course of search proceedings in the office premises of Devi Bottles group of companies others on 06.08.2019, certain incriminating material was found containing details of transaction of that group with the assessee. The same led to initiation of proceedings u/s 153C against the assessee and notice u/s 153C was issued to the assessee on 26.07.2021. The assessee filed return of income on 28.09.2021 on the basis of which impugned assessment was framed. 3.2 It also transpired that on the date of issue of notice u/s 153C, reassessment proceedings u/s 147 was pending against the assessee for this year. The assessment framed u/s 143(3) was already reopened and notice u/s 148 was issued to the assessee on 30.03.2021 to make disallowance u/s 40(a)(ia). 3.3 In the present proceedings, Ld. AO, considering the submissions of the assessee, made d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment was opened and the same make the order erroneous and prejudicial to the interest of the revenue. Accordingly, the assessment order dated 30.09.2021 was set aside to the file of Ld. AO with a direction to disallow both these items. Aggrieved as aforesaid, the assessee is in further appeal before us. Our findings and Adjudication 5. From the stated facts, it emerges that original assessment was completed in assessee s case u/s 143(3) on 16.12.2019. However, the case was reopened on the allegation of escapement of income and notice u/s 148 was issued on 30.03.2021. In the meanwhile, proceedings u/s 153C were issued against the assessee consequent to search action on certain group on 06.08.2019 and accordingly, the assessee s case was centralized and notice u/s 153C was issued to the assessee on 26.07.2021. Finally, an assessment was framed on 30.09.2021 making disallowance u/s 40(a)(ia). The assessee challenged this assessment on legal grounds as well as on merits before first appellate authority which is stated to be pending on the date of proposed revision. 6. Upon perusal of Form 35, grounds of appeal as well as additional grounds of appeal as filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Therefore, the larger issue was pending before the Commissioner of Appeals, and in such circumstances, the Commissioner could not exercise power under Section 263 of the Act on account of the statutory bar. Therefore, on this ground also, the assumption of jurisdiction under Section 263 of the Act was wholly erroneous. 24. As noticed above, the Assessing Officer while completing the re-assessment proceedings has assigned certain reasons for coming to a conclusion that the assessee is entitled for deduction under Section 54F and not under Section 54 of the Act. This reason assigned by the Assessing Officer has been found by us to show due application of mind. As observed, we cannot expect an Assessing Officer to write a judgment. In such circumstances, the view taken by the Commissioner in his order under Section 263 of the Act has to be termed as a change of opinion, or in other words, the Assessing Officer adopted one of the two views possible and in such circumstances, it cannot be stated that the order is prejudicial to the interest of the Revenue as well as erroneous. For the purpose of exercise of jurisdiction under Section 263 of the Act, the twin tests are to be satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
