9911796707
TMI Blog2018 (6) TMI 1464X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 cannot be a ground to hold that A.O’s order on 29.06.2016 is erroneous in the light of the Explanation in section 35(1)(ii). Therefore, in any case the assumption of revisional jurisdiction of the ld. Pr. CIT itself does not satisfy condition precedent to invoke the jurisdiction u/s 263 - decided in favour of assessee. - ITA No. 1813/Kol/2017 - - - Dated:- 27-6-2018 - Shri A. T. Varkey, JM And Shri A.L.Saini, AM For the Appellant Shri A. K. Tibrewal, FCA For the Respondent Shri P.K. Srihari, CIT ORDER Per Shri A. T. Varkey, JM This is an appeal preferred by the Assessee, an individual against the order of the Principal Commissioner of Income Tax-15, Kolkata dated 07.06.2017 passed u/s 263 of the Income Tax Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ote of the submissions of the ld. AR of the assessee, the Pr. CIT was pleased to cancel the assessment order, since according to him the A.O has passed an order which is erroneous and prejudicial to the interest of Revenue by allowing weighted deduction @175% of donation to M/s. SHGPH u/s 35(1)(ii) of the Act and directed the Assessing Officer to frame fresh assessment. Aggrieved, the assessee is before us. 3. We have heard both the parties and perused the records. We note that M/s. SHGPH was recognized vide Gazette Notification dated 28.01.2010 issued by the Central Board of Direct Taxes (CBDT in short), Ministry of Finance, Department of Revenue, Govt. of India u/s 35(1)(ii) of the Act. We note that M/s. SHGPH was also recognized as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer must be erroneous and so far as prejudicial to the interest of the Revenue. In the following circumstances, the order of the AO can be held to be erroneous order, that is (i) if the Assessing Officer s order was passed on incorrect assumption of fact; or (ii) incorrect application of law; or (iii)Assessing Officer s order is in violation of the principle of natural justice; or (iv) if the order is passed by the Assessing Officer without application of mind; (v) if the AO has not investigated the issue before him; then the order passed by the Assessing Officer can be termed as erroneous order. Coming next to the second limb, which is required to be examined as to whether the actions of the AO can be termed as prejudicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the prescribed authority. During the assessment proceedings, the Assessing Officer has examined this fact and has clearly made a finding of fact that M/s. SHGPH is an approved undertaking u/s 35(1)(ii) of the Act after perusal of Gazette of India . In such a scenario, the action of the A.O cannot be held to be erroneous because the claim made by the assessee was valid. It has to be kept in mind that when the donation was given by assessee to M/s. SHGPH, the undertaking was enjoying approval as per law. The subsequent cancellation of the approval u/s 35(1)(ii) by Central Govt. cannot in any way undermine the claim of the assessee for the donation given by him because Parliament in its wisdom has envisaged such an eventuality and inserted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. Pr. CIT itself does not satisfy condition precedent to invoke the jurisdiction u/s 263 of the Act fails. The subsequent developments i.e. CBDT Notification rescinding the recognition for M/s. SHGPH on 15.09.2016 cannot be a ground to hold that A.O s order on 29.06.2016 is erroneous in the light of the Explanation in section 35(1)(ii) of the Act (supra). Therefore, in any case the assumption of revisional jurisdiction of the ld. Pr. CIT itself does not satisfy condition precedent to invoke the jurisdiction u/s 263 of the Act and, therefore, the order impugned is quarum-non judice and, therefore, the order is null in the eyes of law and so we are inclined to cancel the impugned order of ld. Pr. CIT. 6. In the result, the appeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
