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TMI Blog2019 (1) TMI 1457X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment framed which stood revised as per former CIT’s order. The PCIT clearly sought to exercises his revision jurisdiction on different issues which had nowhere been raised in first round revision order. Case file suggests that the first round regular assessment had been framed on 16.04.2012 in financial year ending on 31.03.2013 Sec. 263(2) of the Act prescribes limitation in such a case to be “after expiry of two years from the end of the financial year in which the order sought to be revised was passed.” The Revenue failed to dispute that the said clause states with a negative covenant. The limitation period of two years as per this statutory provision comes to be 31.03.2015 as outer limit i.e. much earlier than earlier to the PCIT’s second show cause notices on 10.08.2017. The same is held to be hit by statutory period of limitation therefore. - PCIT’s order under challenge directing afresh assessment in his order dated 31.10.2017 is not sustainable. - Decided in favour of assessee - ITA No.2464/Kol/2017 - - - Dated:- 23-1-2019 - Shri J.Sudhakar Reddy, Accountant Member and Shri S.S. Godara, Judicial Member For The Appellant : Shri Soumitra Choudhury, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,13,09,047/-. The assessee submitted monthly break up of expenditure of car insurance of Rs. business promotion expenses of ₹ 2,08,034/-, site expenses of ₹ 11,12,750/- only. No ledger copy of these expenses as well as the remaining expenses or party-wise details of these expenses were submitted. In the original assessment, the AO has not verified these expenses as per provision of Sec. 37(1) of the I.T. Act, 1961. 4. It is also found that a sum of R.78,52,021/- debited in the P L Account under the head Employee contribution to P.F. Pension . It is found that two amounts of ₹ 8,00,000/- each totaling ₹ 16,00,000/- had paid on 29.09.2010 towards pension fund but there is corresponding payment of employer and employee contribution to P.F. 4. The assessee filed her reply dated 16.10.2017 contesting the PCIT s above revision proposal on various legal and factual aspects. The PCIT s order under challenge on 31.10.2017 has directed the Assessing Officer to frame afresh assessment once more as follows:- 6. I have carefully considered the facts and circumstances of the case. The impugned assessment order u/s. 263/144 dated 30.06.2015 has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11,12,750/- Theft damages 5,67,000/- Tea Tiffin 2,03,532/- Telephone charges. 1,08,557/- Travelling conveyance 7,68,258/- Total 1,13,09,047/- For the above expenses, the assessee as per record, had submitted details of monthly break up of expenditure incurred under the head car maintenance expenses , car hire charges , car insurance , business promotion expenses , and site expenses . However no ledger account of these expenses or party-wise details of these expenses were submitted. Only few bills/vouchers of these expenses were collected and put on record. Similarly, the debit in the P L Account under the head Employees contribution to PF Pension amounting to ₹ 78,52,021/-, also becomes subject to examination as per sec 43B. All these expenses naturally will be required to be verified as to the correctness and genuineness. Thus, I am not able to appreciate the argument of the assessee that different grounds have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Officer. The Commissioner can regard the order as erroneous on the ground that in the circumstances of the case the Income-tax Officer should have made further inquiries before accepting the statements made by the assessee in his return. The reason is obvious. The position and function of the Income-tax Officer is very different from that of civil court. The statements made in the pleading proved by the minimum amount of evidence may be adopted by a civil court in the absence of any rebuttal. The civil court is neutral. It simply gives decision on the basis of the pleading and evidence which come before it. The Income-tax Officer is not only an adjudicator but also an investigator. He cannot remain passive in the face of a return which is apparently in order but calls for further inquiry. It is his duty to ascertain the truth of the facts stated in the return when the circumstances of the case are such as to provoke an inquiry. It is because it is incumbent on the Income-tax Officer to further investigate the facts stated in the return when circumstances would make such an inquiry prudent that the word erroneous in section 263 includes the failure to make such an enqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) The order has not been passed in accordance with any decision, prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Court in the case of the assessee or any other person. 12. Thus, having regard to the facts and circumstances of the case and in the light of the aforesaid decisions of Hon'ble Supreme Court and Hon'ble High Court and in accordance with the amendment made in Section 263 of the Act with effect from 01.06.2015, I hold that the impugned assessment order dated 30.06.2015 passed by the A.O. u/s.263/144 of the IT Act, 1961 is erroneous in so far as it is prejudicial to the interests of revenue . 14. Consequently, in exercise of the jurisdiction conferred by section 263 of the Act, the said order of assessment passed u/s.263/144 of the Income Tax Act, 1961 on 30.06.2015 for the A.Y.2013-14 is set aside. The Assessing Officer is directed to pass a fresh assessment order and recomputed the assessee's income as per provisions of the Income Tax Act 1961 by taking into account the facts and the legal position discussed above, and after affording a reasonable opportunity of being heard to the assessee. 5. We have give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovenant. The limitation period of two years as per this statutory provision comes to be 31.03.2015 as outer limit i.e. much earlier than earlier to the PCIT s second show cause notices on 10.08.2017. The same is held to be hit by statutory period of limitation therefore. 7. Learned CIT-DR vehemently contends at this stage that CIT s former revision directions (supra) had made it clear to the Assessing Officer. He may also examine any concomitant that arises in process and take necessary action . We find no merit in Revenue s instant argument as well. We notice that Collins English dictionary defines concomitant to be an expression used to describe s omething that happens of at the same time as another thing and is connected with it . We do not see such a connection or timely relation amongst the twin reasons each contained in the CIT s sec. 263 show cause notice on first round remand directions with the ones raised in latter round (supra). Hon'ble Bombay high court s decision in Abdulgafar A Nadiadwala vs. ACIT (2004) 267 ITR 488/137 Taxman 112 (Bom) holds that it is very much permissible to adopt ordinary discretionary meaning in absence of any statutory guidel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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