2021 (1) TMI 1313 - ITAT MUMBAI

Revision u/s 263 - as per CIT inadequate inquiries were made by AO on payments made to players on winnings from lotteries/crossword puzzles and taxes to be withheld thereon - As argued inadequate inquiries were made by the learned AO on payments made to players on winnings from lotteries/crossword puzzles and taxes to be withheld thereon - HELD THAT:- It has been settled by the judgment of Hon'ble Supreme Court in the case of Amitabh Bachhan [2016 (5) TMI 493 - SUPREME COURT] that such an action is permissible to the Commissioner provided sufficient opportunity is given to the assessee.

From the records available before us and the order of learned Commissioner, it is not discernable whether proper opportunity in this regard was given to the assessee. Now, the issue is whether this is fatal to the order of revision ? Another concomitant issue is when the learned Commissioner has not given the opportunity to the assessee and has consequently not examined the 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 authority to correct the errors in the orders of the authorities below and/or remit the matter for reconsideration unless prohibited by law. In this regard, we note that there is no provision in law prohibiting us to remit the matter back to the learned Commissioner on the facts and circumstances of the case.

In our considered opinion, the above submission of the assessee’s counsel is not sustainable. We do not find that the aforesaid decision of Hon'ble Supreme Court, by any stretch of imagination, proposes that matters cannot be remanded by the ITAT to the level of Commissioner of income tax. Hence, this limb of argument of the learned counsel of the assessee is rejected.

Thus we set aside this order passed under Section 263 to the file of the learned Commissione to decide the issue afresh giving the assessee proper opportunity of being heard. Appeal by the assessee stands allowed for statistical purposes.