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2022 (9) TMI 1389 - AT - Income TaxRevision u/s 263 by CIT - unexplained cash u/s 69A - As per CIT, AO has added only 50% unexplained amount and there is no provisions to part addition at 50% u/s 69A and thus has referred the assessment order as erroneous and prejudicial to the interest of the revenue - HELD THAT - We note that the said assessment order as framed originally u/s 143(3) dated 04.12.2019 has been challenged by the assessee before the First Appellate Authority and appeal is pending for adjudication. In the light of these facts, we are unable to understand as to how the jurisdiction of the Ld. PCIT u/s 263 of the Act is maintainable on this issue. The provisions of clause (c) of Explanation (1) to Section 263 provides that when the appeal is pending before the Commissioner of Income Tax(Appeals) on some issue, the exercise of jurisdiction u/s 263 of the Act on the said issue is not available to the ld PCIT. In the present case CIT (A) is seized of the issue and therefore jurisdiction u/s 263 of the Act has been invalidly exercised by the Ld. PCIT. The case of the assessee finds support from the several decisions of various High Courts namely Smt. Renuka Philip 2018 (12) TMI 129 - MADRAS HIGH COURT , decision of Hon ble Allahabad High Court in the case of CIT vs. Vam Resorts and Hotels Pvt. Ltd. 2019 (8) TMI 1418 - ALLAHABAD HIGH COURT - In both the above decisions as held that when the appeal is pending before the Commissioner(appeals), the exercise of jurisdiction u/s 263 of the Act is not available to the PCIT. Accordingly, we are inclined to quash the order passed u/s 263 of the Act. Appeal of the assessee is allowed.
Issues:
Jurisdiction of Principal Commissioner of Income Tax under section 263 of the Income Tax Act - Validity of setting aside assessment pending before Commissioner of Income Tax (Appeals). Analysis: The appeal before the Appellate Tribunal pertains to the jurisdiction of the Principal Commissioner of Income Tax (PCIT) under section 263 of the Income Tax Act. The issue raised by the assessee challenges the assumption of jurisdiction by the PCIT to set aside an assessment that is also pending before the Commissioner of Income Tax (Appeals). The facts reveal that the assessment was initially framed under section 143(3) of the Act after limited scrutiny regarding cash deposits during the demonetization period. The AO made an addition of unexplained cash under section 69A of the Act. Subsequently, the PCIT found the assessment order erroneous and prejudicial to the revenue, directing a fresh assessment. However, the Tribunal noted that the issue was already pending before the Commissioner of Income Tax (Appeals) and, as per Explanation (1) to Section 263, the PCIT's jurisdiction is not maintainable when an appeal is pending before the CIT (A). Citing precedents from High Courts, the Tribunal held that the PCIT's exercise of jurisdiction under section 263 was invalid in this case, leading to the quashing of the PCIT's order. The Tribunal's analysis focused on the interpretation of the provisions of the Income Tax Act regarding the jurisdiction of the PCIT under section 263. It emphasized that when an issue is already pending before the Commissioner of Income Tax (Appeals), the PCIT cannot exercise jurisdiction under section 263. The Tribunal referred to relevant legal precedents, such as the decision in Smt. Renuka Philip vs. ITO and CIT vs. Vam Resorts and Hotels Pvt. Ltd., where High Courts held that the PCIT's jurisdiction is not available when an appeal is pending before the CIT (A). By applying these legal principles, the Tribunal concluded that the PCIT's order under section 263 was to be quashed, and the appeal of the assessee was allowed. In conclusion, the Tribunal's detailed analysis revolved around the interpretation of statutory provisions and legal precedents governing the jurisdiction of the PCIT under section 263 of the Income Tax Act. By considering the pendency of the issue before the Commissioner of Income Tax (Appeals) and the relevant legal principles, the Tribunal found that the PCIT's exercise of jurisdiction in this case was invalid. As a result, the Tribunal quashed the PCIT's order and allowed the appeal of the assessee.
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