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TMI Blog2024 (7) TMI 1419X X X X Extracts X X X X X X X X Extracts X X X X ..... es, we have gone through the record carefully. The impugned order of ld. Pr. CIT is a very brief order, therefore, we deem it appropriate to take note of the complete order, which reads as under:- "ORDER U/S 263 OF THE INCOME TAX ACT, 1961 The assessee filed his return of income for A. Y. 201516 on 13.11.2015 declaring total income of Rs. 2,76,02,310/-. The case was selected for Limited Scrutiny through CASS to verify:- (a) Contract receipts/Fees mismatch, (b) Sales turnover mismatch, (c) Sundry Creditors, (d) Change in annual lettable value of house property and (e) Tax credit mismatch.. An order of assessment under section 143(3) was made on 22.12.2017 on total income of Rs. 2,92,86,079/-. II. From perusal of the case records for A. Y. 2015-16, it is found that during A. Y. 2015-16 you have shown rental income of Rs. 2,51,92,196/- and claimed a deduction u/s 24 @30% of Rs. 75,57,015/-. On perusal of lease/rent agreement dated 28.04.2012 submitted by you it clear that you have derived such income in F.Yr. 2012-13 and F.Yr. 2013-14 relevant to A. Y. 2013-14 and 2014-15 and the same was shown under the head "Business and Profession". However, in A. Yr. 2015-16 the same income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records/evidences and make written submission, if any, in regard to issues discussed above." IV In response to the notice dated 14.03.2019 for compliance on 03.04.2019, neither the assessee nor his Authorized Representative attended the office to put forth his written submission in this regard during the course of hearing. As such, he was given another opportunity for compliance on 12.09.2019 vide notice dated 28.08.2019, but no compliance was made on fixed dates. Again, on change of incumbent, assessee was given final and last opportunity of being heard for compliance on 09.01.2020 vide notice dated 02.01.2020. It was also intimated by the said notice that if no compliance on the said date is made, it will be presumed that assessee has nothing to say in this matter and order shall be passed on the merit of the case. V. From perusal of the case records for A. Y. 2015-16, it is found that during A. Y. 2015-16 your have shown rental income of Rs. 2,51,92,196/- and claimed a deduction u/s 24 @30% of Rs. 75,57,015/-. On perusal of lease/rent agreement dated 28.04.2012 submitted by you it clear that you have derived such income in F.Yr. 2012-13 and F.Yr. 2013-14 relevant to A. Y. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roneous in so far as it is prejudicial to the interest of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. [Explanation.- For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,- (a) an order passed on or before or after the 1st day of June, 1988 by the Assessing Officer shall include- (i) an order of assessment made by the Assistant Commissioner or Deputy Commissioner or the Income Tax Officer on the basis of the directions issued by the Joint Commissioner under section 144A; (ii) an order made by the Joint Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief Commissioner or Director General or Commissioner authorized by the Board in this behalf under section 120; (b) "record shall include and shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of his belief that action u/s 263 is required on a particular order of the Assessing Officer. At this stage the opportunity to the assessee would be given. The learned Commissioner has to conduct an inquiry as he may deem fit. After hearing the assessee, he will pass the order. This is the 4th compartment of this section. The learned Commissioner may annul the order of the Assessing Officer. He may enhance the assessed income by modifying the order. He may set aside the order and direct the Assessing Officer to pass a fresh order. 7. A perusal of sub-clause (c) of the above would contemplate that if any order, which is subject matter for revision under section 263 is challenged in appeal, then, on the items which are subject matter of appeal, no power under section 263 could be exercised by the ld. Commissioner. We may elaborate further, for example- an assessment order was passed, it contains five issues, which were challenged before the ld. CIT(A), but ld. Assessing Officer failed to look into few issues, which may arise from the record, then inspite of the assessment order being challenged before the ld. CIT(A), the ld. Commissioner would have jurisdiction on such items, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the assessee has given detailed explanation by a letter in writing and the AO allows the claim on being satisfied with the explanation of the assessee, the decision of the AO cannot be held to be erroneous simply because in his order he does not make an elaborate discussion in that regard. 9. In the light of above, we have examined the record carefully. In the paper book, the assessee has placed on record copy of the returns for A.Y. 2015-16 to 2017-18. He thereafter placed on record rent agreements with Bharti Airtel Limited dated 09.05.2011, 18.05.2022 and Form No. 26AS for A.Y. 2015-16. The assessee at Serial No. 6 & 7 has placed on record copy of the judgment of the Hon'ble Calcutta High Court in the case of Shambhu Investment (P) Limited -vs.- Commissioner of Income Tax [2001] 116 Taxman 795 (Calcutta), which was further upheld by the Hon'ble Supreme Court. 10. We have gone through all these details carefully. The accounting policy has been changed by the assessee from A.Y. 2015-16. The assessee has not placed on record any scrutiny assessment for A.Ys. 2016-17 & 2017-18. He has only placed on record the copy of the returns. There is a major shift in recognition of his i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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