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TMI Blog2019 (7) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessment order was erroneous and prejudicial to the interest of the Revenue. In short, on the facts and materials on record, the Appellate Tribunal recorded a finding that the PCIT was not correct and justified in issuing notice u/s 263 and also was not justified in passing the order revising the assessment order. No error not to speak of any error of law could be said to have been committed by the Tribunal in passing the impugned order. In our opinion, none of the two questions formulated in the memorandum of the Tax Appeal could be termed as substantial questions of law. The matter is more on facts. We would not like to disturb the findings recorded by the Appellate Tribunal. The Appellate Tribunal is the last fact finding authority. Having regard to the scope of appeal under Section 260-A of the Act, we would not like to disturb the findings of fact arrived at by the Appellate Tribunal. - R/TAX APPEAL NO. 164 of 2019 - - - Dated:- 24-6-2019 - MR J. B. PARDIWALA AND MR A. C. RAO, JJ. For The Appellant (s) : MRS KALPANAK RAVAL (1046) For The Opponent (s) : None ORAL ORDER ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (a) of the Explanation 2 of Section 263 of the Act is applicable and the Assessing Officer had passed the assessment order without making inquiries / verification of the survey report forwarded by the DDIT(Inv), which ought to have been made in this case. The CIT(A) ultimately, took the view that the assessment order for Assessment Year 2013-14 passed under Section 143(3) of the Act dated 28.10.2016 by the Assessing Officer was erroneous in so far as it was prejudicial to the interest of the Revenue. The CIT(A) in exercise of its power under Section 263 of the Act set aside the assessment order with a direction to frame the assessment de-novo. 5. The assessee being dissatisfied with the order passed by the CIT(A) preferred an appeal before the Appellate Tribunal. The Tribunal took the view that the CIT(A) while holding that the assessment order was erroneous in exercise of its power under Section 263 of the Act, ought to have indicated that the conclusion or findings recorded by the Assessing Officer were either not based on correct facts or the order had been passed in breach of the provisions of the Act or revision made thereunder. The Tribunal took the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the ld. CIT(A)-DR could not controvert the position that the SEBI by order dated 20.09.2017 has revoked the interim orders dated 19.12.2014 and 09.11.2015 which were confirmed subsequent interim order dated 12.10.2015, 18.03.2016 26.08.2016 therefore, SEBI order also supports that there is no adverse order by the SEBI against Redford Global Ltd., which has been exonerated in absence of any adverse findings and material, wherein the assessee made investment and earned exempt income u/s. 10(38) of the Act therefrom. This fact also supports the original assessment order, wherein the AO allowed claim of the assessee u/s. 10(38) of the Act. 31. Further, from the order of Hon ble High Court of Delhi in the case of PCIT vs. Mera Baba Reality Associates Pvt. Ltd., (supra) as relied by the ld. AR, wherein it was held that where the AO had a fullfledged opportunity to undertake a detailed inquiry, and having not done so on account of paucity of time, there could not be any inference that the inadequate enquiry led to AO to arrive at incorrect facts. It was also held that where the AO issued notice and assessee furnished complete details sought and the details furnished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the assessment cannot be held as sustainable, valid and justified. At the cost of reputation, we may point out that the ld. PCIT before holding an order to be erroneous, should have conducted necessary enquiries or verification in order to show that the finding given by the AO is erroneous. The ld. PCIT should have shown that the view taken by the AO is unsustainable in law. In the instant case, the ld. PCIT has failed to do so and has simply expresses the view that the AO should have conducted inquiry in a particular manner as desired by him and thus, the action of the ld. PCIT is not in accordance with the mandate of the provisions of s. 263 of the Act. In the resent case, the ld. PCIT has taken support of the newly inserted Explanation 2(a) to s. 263 of the Act, which is effective from 01.04.2015 and there is a doubt as to whether said explanation would be applicable to AY 2014-2015 pertaining to FY 2013-14, but said explanation cannot be said to have overridden the law interpreted by Hon ble Delhi High Court in the case of PCIT vs. Delhi Airport Metro Express Pvt. Ltd. and Sunbeam Auto (supra). If, that be the case then the ld. PCIT would be able to find fault with each and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the act r/w Explanation 2 thereto. 37. Therefore, on the basis of foregoing discussion, we reach to a logical conclusion that the ld. PCIT was not correct and justified in issuing notice u/s. 263 of the Act and passing impugned order revising the assessment order dated 28.10.2016 passed under scrutiny assessment u/s. 143(3) of the Act hence, the same are quashed. Accordingly, the grounds of the assessee are allowed. 7. Having heard the learned counsel appearing for the Revenue and having gone through the materials on record, we are of the view that no error not to speak of any error of law could be said to have been committed by the Tribunal in passing the impugned order. In our opinion, none of the two questions formulated in the memorandum of the Tax Appeal could be termed as substantial questions of law. The matter is more on facts. We would not like to disturb the findings recorded by the Appellate Tribunal. The Appellate Tribunal is the last fact finding authority. Having regard to the scope of appeal under Section 260-A of the Act, we would not like to disturb the findings of fact arrived at by the Appellate Tribunal. 8. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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