TMI Blog2021 (1) TMI 1313X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee s response, should the Tribunal fill-in the gap and give a finding that the Assessing Officer has duly examined the issue on the basis of document said to have been filed before Assessing Officer. When the CIT has not examined the issue, the Tribunal should not jump ahead and examine the issue merely on the basis of document said to have been filed before the Assessing Officer without any indication as to whether the Assessing Officer has verified the correctness of the averments. That merely keeping the document on record, without carrying out necessary investigation which are per se required to verify correctness of the averment would lead to an error, in the sense that he has failed to carry out the requisite inquiry which can be rectified in revision. Accordingly, we are of the opinion that this order of Commissioner is liable to be set aside to his file for fresh consideration as directed to examine the issue afresh after giving the assessee proper opportunity of being heard. In giving the above said direction we draw support from the decision of Kapurchand Shrimal [ 1981 (8) TMI 2 - SUPREME COURT] for the proposition that it is the duty of the appellate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii. On the facts and circumstances of the case and in law, the learned Pr. CIT has legally and factually erred placing reliance on the decision Hon'ble Supreme Court of India in the case of Amitabh Bachchan (69 Taxmann.com 170) without considering that the facts in the case therein and case of the Appellant is factually different. In the aforementioned case, the learned AO had granted the Assessee an opportunity of being heard as required by the provisions of the Act, whereas in the instant case, the Appellant was not granted with any opportunity of being heard or argue before the Pr. CIT during the course of revision proceedings. iv. On the facts and circumstances of the case and in law, the learned Pr. CIT has legally erred in assuming jurisdiction under section 263 of the Act to re-examine the issue and grossly failed to appreciate that it is not permissible to initiate the proceedings under section 263 of the Act on mere fact that in view of Pr. CIT inquiries and verifications which should have been made before allowing the claim of Appellant were not made. v. On the facts and circumstances of the case and in law, the learned Pr. CIT has legally erred in stating that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and circumstances of the case and in law, the learned Pr. CIT has legally erred in directing the learned AO to examine whether any payments were made toward Online Promotional Expenses and applicability of provisions of Chapter XVII B of the Act, without himself examining the matter and recording reasons thereof to conclude that order passed by the learned AO is erroneous and prejudicial to the interest of revenue. iii. On the facts and circumstances of the case and in law, the learned Pr. CIT has legally erred in directing the learned AO to examine whether any payments were made toward Online Promotional Expenses and the applicability of provisions of Chapter XVII B of the Act without appreciating the fact that there were inquiries made on the matter during the course of assessment proceedings and the Pr. CIT has not recorded any finding to conclude that the order/inquiry to that effect made is erroneous. 3. The brief facts of the case are that in the order passed under Section 263 of the Act, learned Commissioner noted that the assessee company had made the payment of Rs.10,46,35,355/- to Facebook Ireland Ltd. on which TDS was not deducted. Therefore, he was of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee to contest facts on basis of which he had exercised revisional jurisdiction. Thereafter, he concluded as under :- 8.1 It is therefore, to be examined whether the assessment made by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue. Explanation 2 below sub-section (1) of the Section 263 states that : For the purposes of this section, it is hereby declared that an order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue, if, in the opinion of the Principal Commissioner 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. In view of the above, the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of mandatory requirement, hence the order of Commissioner deserves to be quashed. 6. Furthermore, learned senior counsel submitted that the issue has been a subject matter of Assessing Officer s examination. He referred to various pages of the paper book submitted for the proposition that the issue was explained in detail before the Assessing Officer. Learned senior counsel further referred to the concluding portion of the order of Commissioner and observed that the order is completely erroneous and non-sustainable. He submitted that the learned Commissioner has not pointed any error on the part of Assessing Officer or the revenue loss to the Department. The learned senior counsel further relied upon several case laws in support of his propositions. 7. Per contra, learned Departmental Representative submitted that only the case records can prove whether the assessee s plea of lack of opportunity on the issue is sustainable or not. He wondered whether various documents which assessee is claiming to have submitted before the Assessing Officer were subject matter of any inquiry by the Assessing Officer. He submitted that the amount involved is huge and it was not reflected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) State of U.P. v. Sudhir Kumar Singh (Civil Appeal No. 3498 of 2020) The learned senior counsel further referred to following case laws :- i) Ambuja Cement Limited v. CIT (ITA No. 3563/Mum/2016); ii) Damodar Valley Corporation v. DCIT (160 ITD 78) (Kol Trib.); iii) Smt. Shardaben B. Patel v. PCIT (180 ITD 328) (Ahm. Trib.); and, iv) H.M. Mehta v. ACIT (387 ITR 561) (Bom.) 9. On the merits of the issue of payments towards winning from lottery or crossword puzzles, it has been submitted that learned Commissioner has proceeded on a factually incorrect premise that the Assessing Officer has failed to make necessary inquiries. It has been submitted that the assessee submitted the copy of form 3CD of the Tax Audit report with the Assessing Officer where details pertaining to tax deduction at source as per the provisions of Chapter XVII-B were furnished. The details pertaining to tax deduction at source under Section 194B on winning from lottery or crossword puzzles was stated in the table along with the details of amount of payment and tax deduction at source. It is further submitted that Assessing Officer has raised pointed queries and examined the issue and accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing case laws have been referred :- i) Malabar Industries Co. Ltd. v. CIT (2000) 243 ITR 83 (SC); ii) CIT v. Max India (2007) 295 ITR 282 (SC); iii) CIT v. Reliance Communication Ltd., 396 ITR 217 (Bom); and, iv) Spectra Shares Scrips (P.) Ltd. v. CIT, 354 ITR 35 (AP) Lastly, it has been submitted that insertion of Explanation 2 by the Finance Act 2015 has not diluted the basic requirement of the section which still needs to be satisfied before invoking the revision jurisdiction. In this regard, following case laws have been relied :- i) Anil L. Todarwal v. PCIT (ITA No. 3498/Mum/2017) (2018) (Mum); ii) Narayan Tatu Rane v. Income Tax Officer (70 taxman 227) (2016) (Mum); and, iii) Torrent Pharmaceuticals Ltd. (173 ITD 130) (Ahm. Trib.) 12. We have carefully considered the detailed submissions and perused the records. The first challenge before us is that the learned Commissioner had started the revision proceedings on a different ground and has finally passed a revision order on a different ground for which no opportunity was given to the assessee. 13. It has been settled by the judgment of Hon'ble Supreme Court in the case of Amitabh Bachhan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the Commissioner to dispose of the case afresh. On appeal, the Supreme Court held that the order of the Tribunal was proper. It is thus clear that in a case, when the order of the Commissioner under Section 263(1) of the Act is set aside by the Tribunal on the ground that there was no adequate opportunity to the assessee, the Tribunal has jurisdiction to remand the case to the Commissioner for deciding the case afresh in accordance with law. 4. Learned counsel for the assessee contended that in the instant case, in view of the fact that there was a flagrant violation of the principles of natural justice, the Tribunal did not deem it proper to remand the case to the Commissioner for fresh disposal. This contention is not founded on facts. The decision of the Tribunal flows from the finding of the Tribunal that the order of the Commissioner was void ab initio. That is the only reason given by the Tribunal for not remanding the case to the Commissioner. As the finding of the Tribunal about the jurisdiction of the Commissioner was not justified, it must be held that the Tribunal was not justified in refusing to direct the Commissioner to pass an order under Section 263(1) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. The contentions and issues raised by the assessee will be dealt with by the CIT. He shall also examine whether the issue in question was raised before the Assessing Officer and considered and verified or the course adopted is permissible. If this is correct, then his jurisdiction will be ascribed and limited to the extent of deciding whether the finding is erroneous i.e. contrary to law etc. In the facts of the case, there will be no order as to costs. Appeal is disposed of. 15. In the background of aforesaid discussion and precedents, including that from the Hon'ble Supreme Court, we find that the plea of the learned counsel of the assessee that the revision order deserves to be quashed for lack of opportunity to the assessee is not sustainable. Furthermore, it is also arising out of the ratio of the aforesaid precedents that when the CIT has not examined the issue, the Tribunal should not jump ahead and examine the issue merely on the basis of document said to have been filed before the Assessing Officer without any indication as to whether the Assessing Officer has verified the correctness of the averments. That merely keeping the document on record, without carryi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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