9911796707
TMI Blog2021 (12) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to have dropped the proceedings and if he found any other issues/error on the part of the AO while framing the assessment order, then he ought to have given opportunity to the assessee and confronted it to the assessee and thereafter he could have made fresh endeavour to exercise revisional jurisdiction, which is not the case before us. Therefore the impugned order of Ld. PCIT dated 08.03.2021 is bad for want of jurisdiction and therefore stands quashed - Appeal of an assessee is allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... actually valid, he should have dropped the issue on which he found the AO's order to be erroneous; and as stated before, according to him, the Ld. PCIT could have freshly initiated revisional proceeding provided he found any new fault and that too only after confronting the assessee as envisaged in Section 263 of the Act and in the present case admittedly this exercise has not been carried out by the Ld. PCIT before passing the impugned order. So according to Ld. A.R. the impugned order is bad in law for want of jurisdiction on the ratio of decisions though in the context of reopening u/s. 147 of the Act as held by the Hon'ble Bombay High Court in the case of CIT vs. Jet Airways (I) Ltd. in 331 ITR 236 and the Hon'ble Delhi High Court in the case of Ranbaxy Laboratories Ltd. vs. CIT (336 ITR 136) and the Hon'ble jurisdictional Calcutta High Court in the case of CIT vs. M/s. Infinity Infotech Parks Ltd. in ITAT No. 60 of 2014 GA No. 1736 of 2014. 4. In order to appreciate the contention of Ld. AR, we may look at the brief facts of the case as noted by the AO in the assessment order, The AO noted that the assessee has filed the return of income for AY 2016-17 disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o far as it is prejudicial to the interests of the revenue. 4. In the light of the above, it is clear that the AO has, while passing the order u/s. 143(3) of the Act, failed to make proper and the required enquiry/verification under clause (a) of Explanation 2 to section 263 of the I.T. Act, 1961 in respect of the above issues. As such. the assessment order u/s. 143(3) of the I.T. Act, 1961 dated 12/12/2018 is erroneous and prejudicial to the/interests of Revenue." [Emphasis given by us] 5. According to Ld. A.R., a perusal of the SCN (supra) would clearly show that the only issue that has been brought to the notice of the assessee is about the erroneous carry forward of loss and nothing else. For buttressing this contention the Ld. A.R drew our attention to the impugned revisional order of the Ld. PCIT dated 08.03.2021 and took us through the content of the same and from which we note that the Ld. PCIT acknowledges to have issued SCN dated 20.01.2021 [Refer page 123-124 of PB] and in pursuance to the same, the assessee had filed letter/objection dated 27.1.2021 wherein it had requested Ld. PCIT to drop the proceedings since the AO had ignored while framing the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for carry forward of loss and determined the assessee's income at 'Nil'. So resultantly the assessee had not claimed the loss to be carried forwarded. To verify this fact, we directed the Ld. CITDR to find out from the AO and therefore appeal was fixed after few days and when the matter was finally heard on 2nd December, 2021, the AO was also present during the proceedings and the Ld. CITDR Shri Devi Saran Singh confirmed that the assessee had not carried forward the losses of ₹ 2,32,88,87,118/- which fact is also evident from a perusal of the return of income filed for subsequent AY 2017-18 wherein the assessee has shown income of ₹ 1,31,82,639/- and has not carried forwarded any loss for AY 2016-17; and thus we find that the assessee's contention before Ld. PCIT that it has not carried forward the loss of ₹ 232 crores was correct and the Ld. PCIT has also reproduced the assessee's averment to that effect at para 4 of the impugned order. Further on a perusal of the impugned order reveals that there was no whisper of the Ld. PCIT to have confronted the assessee with any other issues which he found fault/error with the AO's action while fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunity to assessee to explain/controvert/rebut/clarify/explain the new issue and after hearing the assessee on the new issue and if he finds the AO erred on the new issue, then he could have proceeded and passed the order. Otherwise, he cannot. Because, it will be bad for want of jurisdiction. However, in the present case, even though the jurisdictional fact (claim of loss carried forward) was absent, still the Ld. PCIT went ahead with the revisional proceedings without dropping it and passed the impugned order dated 08.03.2021 wherein he had set aside the order of the AO dated 12.12.2018 and directed for fresh assessment, without confronting the assessee on any fact which according to him was the new jurisdictional fact which was erroneous insofar as prejudicial to the revenue. So therefore as per the ratio laid by the Hon'ble Bombay High Court in the case of Jet Airways India Pvt. Ltd. (supra) and the Hon'ble Delhi High Court in the case of Ranbaxy Laboratories Ltd. (supra) which ratios were concurred by the Hon'ble jurisdictional Calcutta High Court in the case of M/s. Infinity Infotech Parks Ltd. (supra) though in the context of reopening u/s. 147 of the Act wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
