9911796707
TMI Blog2019 (12) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under section 263 of the Income Tax Act, 1961 to issue the Notice under section 263 of the Act without personally examining the assessment records but on the basis of suggestions by the Assessing Officer who completed the assessment under section 143(3) of the Act on 27th November, 2017. 3. That the impugned order dated 18.03.2019 passed by Ld. Principal Commissioner of Income Tax in pursuance to the aforesaid Notice issued under section 263 of the Act is without jurisdiction, against the law and facts of this case and is therefore liable to be quashed. 4. That the assessment order dated 27th November, 2017 passed by the Income Tax Officer, Ward - 45(3), Kolkata under section 143(3) of the Income Tax Act, 1961 was neither erroneous nor prejudicial to the interest of Revenue within the meaning of section 263 of the Act and therefore Ld. Principal Commissioner of Income Tax-1, Kolkata erred in assuming jurisdiction under section 263 of the Act setting aside the aforesaid order dated 27th November, 2017 passed under section 143(3) of the Act. 5. That, on the facts and in the circumstances of the case, the impugned order passed by the Ld. Principal Commissioner of Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e explanation given by me along with all annexures thereto is being enclosed with this submission for your ready reference. After going through my explanations as well as all the documents and evidences furnished by me, the assessing officer had formed an opinion on the said issue and was pleased to pass the aforesaid assessment order. In these circumstances it cannot be said that the assessing officer failed and / or did not examine the said issue as well as the issues at SI. No. I to VI of the show cause notice issued by you. We submit that when there was an enquiry by the AO, the Commissioner could not exercise jurisdiction under section 263 of the Act. We refer to the judgment of the jurisdictional High Court in the case of CIT vs. JL Morrison (India) Ltd. (2014) 366 ITR 593 (Cal).The Hon'ble High Court in the aforesaid case held that where the Assessing Officer issued notice under section 142(1) calling for information on the subject, it cannot he said that the order was passed without application of mind.Without prejudice I do hereby submit that the issues, referred to by you at clauses I to VI of your show cause letter dated 10.09.2018, were also examined by the assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he copy of notice issued under section 142(1) of the Act as well the reply dated 30.08.2017 is enclosed for your ready reference. I also submit that these were examined by the AO with reference to the cash book and the bank book submitted with the AO in the course of assessment proceedings. I once againrely on the judgment of the Hon'ble jurisdictional High Court in the case of the J. L Morrison (supra) and submit that it would be improper to say that the issues were not examined by the Assessing Officer. 5. I nowrefer to clause IV of your show cause letter dated 10.09,2018 wherein you had raised an issue of preliminary expenses. This issue was also examined by the AO during the course of assessment proceedings. I refer to the letter dated 20.11.2017 whereby I had submitted complete details of preliminary expenses ofRs. 1,40,349 incurred in the FY 2013-14, It was explained that 1/5lh of the same has been claimed in each of the five Assessment Years commencing from the AY 2014-15. Thus, this issue was also examined by the AO before passing the assessment order under section 143(3) of the Act. 6. The last issue with regard to the alleged interest on income tax refund of Rs. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expression 'personal effects' as held by the Supreme Court in the case of H, M. Maharaja Nana Hemant Singji vs, CIT 1976 CTR (SC) 188: (1976) 103 ITR 61 (SC). c) No enquiry was made to show that the assessee was a person of such high status that the alleged silver utensils in question were held by him for domestic use. d) Nothing was shown to the effect that the alleged silver utensils when sold had suffered loss of weight which is a normal incident if the utensils are intimately, normally, commonly or ordinarily used for household purposes. On the facts of this case, the Hon'ble Jurisdictional High Court held that....."but in the present case before us, the ITO appears to have made enquiry from the assessee as can be seen from his letter dt. 29th December. 1980 which is a page 23 of the Paper Book placed us to which the assessee sent a reply, which is at page 21, The Court held that the orderunder sec, 263 is unsustainable in law......... Therefore the said assessment order dated 27.11.2017 passed by the Assessing Officer under section 143(3) of the Act cannot he held to be erroneous in law and prejudicial to the interest of revenuewithin the meaning of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows: "A proposal for revision of the Assessment Order u/s. 263 has been received from Assessing Officer i.e., ITO. Wd-45(3) Kolkata. On perusal of assessment order and the assessment records it is seenthat in course of assessment proceedings, the following statutory additionsand disallowanceswere not examined properly-......" First of all, let us examine whether ld PCIT has independently applied his mind to exercise his jurisdiction under section 263 of the Act. It is abundantly clear from para No.2 of the ld PCIT`s order that ld PCIT exercised his jurisdiction under section 263of the Act based on the proposal received from Assessing Officer for revision of the Assessment Order. It means, the ld PCIT is using the mind of the assessing officer to revise the order of AO under section 263 of the Act, which according to us is not the scheme of section 263 of the Act. The ld PCIT ought to apply his own mind to examine whether order passed by the assessing officer is erroneous and prejudicial to the interest of revenue. That is, ld PCIT should examine the assessment records and assessment order made by AO to find out the error in the assessment order, as the power under section 263 is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
