2022 (11) TMI 1177 - HC - Income Tax

Revision u/s 263 - PCIT may have information from the assessment file or through other sources - correctness of the exercise of power under section 263 - contention advanced before us by the revenue is that the assessee could not establish the genuineness of the transactions to prove that it had not indulged in any dubious share transactions meant to account for undisclosed income under the garb of long term capital against (LTCG) to claim exemption under Section 10 (38) - HELD THAT - In the cases on hand there is nothing on record to show that such an exercise was done by the PCIT. Tribunal after noting several decisions on the subject rendered by the Coordinate Benches of the Tribunal had allowed the assessee s appeal and set aside the order passed by the PCIT under Section 263 - Tribunal has proceeded to examine the merits of the matter and granted relief. It is the submission that so far as the merit of the cases are concerned similar issue was tested by this Court in the case of Principal Commissioner of Income Tax Vs. Swati Bajaj 2022 (6) TMI 670 - CALCUTTA HIGH COURT Though such may be the issue, as pointed out earlier the learned Tribunal had granted relief to the assessee on two grounds the first of which being that the exercise of power under Section 263 of the Act was not in accordance with law. As could be seen from the substantial questions of law suggested by the revenue, the revenue has not raised any question on the said finding of the Tribunal which goes to show that the revenue had reconciled with the reasoning given by the learned Tribunal in that record. Therefore, a piecemeal challenge to the order passed by the learned Tribunal on one of the grounds on which relief was granted to the assessee is not maintainable. In more or less identical circumstances in the case of Principal Commissioner of Income Tax, Durgapur Vs. M/s. Sinforte Pvt. Ltd. 2022 (1) TMI 1297 - CALCUTTA HIGH COURT the court had dismissed the appeal filed by the revenue on the ground that the PCIT in order to exercise jurisdiction under section 263 of the Act exercised jurisdiction at the instance of the assessing officer which is against the provisions of the law. This decision supports the case of the respondent assessee. Hence, for the above reasons, we are of the view that the order passed by the learned tribunal on the first ground, namely with regard to the correctness of the exercise of power under section 263 of the Act has to be affirmed and, accordingly, the appeal filed by the revenue is dismissed.

Summary

Issues:
1. Condonation of delay in filing the appeal.
2. Challenging orders passed by the Income Tax Appellate Tribunal under Section 260A of the Income Tax Act, 1961.
3. Substantial questions of law raised by the revenue regarding the genuineness of transactions, exemption claims, and application of section 68.

Condonation of Delay:
The court allowed the application for condonation of delay in filing the appeal after finding sufficient cause shown in the affidavit filed in support of the petition.

Challenging Tribunal Orders:
The appeals were filed by the revenue under Section 260A of the Income Tax Act, challenging orders passed by the Income Tax Appellate Tribunal in various assessment years. The court disposed of all appeals together as the issues were identical. The revenue raised substantial questions of law regarding the genuineness of transactions, exemption claims, and the application of section 68.

Genuineness of Transactions:
The revenue contended that the assessee failed to establish the genuineness of transactions to claim exemption under Section 10(38) of the Act. The Tribunal had granted relief to the assessee on the grounds related to the exercise of jurisdiction by the Principal Commissioner of Income Tax under Section 263. The court found that the PCIT did not fulfill the necessary conditions before exercising power under Section 263. As the revenue did not challenge this finding, the court dismissed the appeal.

Application of Section 263:
The court referred to a similar case where the appeal was dismissed because the PCIT exercised jurisdiction at the instance of the assessing officer, which was against the law. This decision supported the respondent assessee's case. The court affirmed the Tribunal's order regarding the correctness of the exercise of power under Section 263, dismissed the appeal filed by the revenue, and did not address the substantial questions of law raised by the revenue.

Conclusion:
The court affirmed the Tribunal's decision on the exercise of power under Section 263, dismissed the revenue's appeal, and left the reasons for the decision open. The judgment provides clarity on the importance of fulfilling conditions before exercising power under Section 263 and highlights the significance of challenging decisions comprehensively.