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TMI Blog2025 (1) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... eal before the Ld.CIT(Appeals). Ld. Counsel for the assessee inviting our attention to sub-clause (c) of Explanation 1 to section 263 of the Act submits that the Ld. PCIT is precluded to go into the issues which were already subject matter of appeal before the Ld.CIT(Appeals). Ld. Counsel further inviting our attention to Form No.35 filed by the assessee before the Ld.CIT(Appeals), submitted that the issue of addition in respect of unpaid TDS on the payment made to ECL Finance Ltd. was already subject matter of appeal before the Ld. CIT(Appeals). Therefore, the proposal of the Ld. CIT to disallow 30% of the payment itself holding that the assessment order is erroneous and prejudicial to the interest of Revenue is beyond the scope and powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer and the Ld.CIT(A) can do what Assessing Officer could do and can also direct the Assessing Officer to do what he has failed to do so. 5. We observe that the Hon'ble Madras High Court in the case of Smt. Renuka Philip Vs. ITO (104 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, sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of exercise of jurisdiction under Section 263 of the Act, the twin tests are to be satisfied and even assuming, the reassessment 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. Furthermore, 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 jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X
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