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TMI Blog2022 (9) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... who himself has settled the dispute by issuing Form No. 5 in favour of the assessee thus in that eventuality, the same Pr.CIT is not expected to again invoke provisions of Section 263 of the Act in the given facts and circumstances of the case. Thus, we quash the proceedings initiated U/s 263 of the Act. Appeal of the assessee is allowed. - ITA No. 194/NAG/2017 - - - Dated:- 28-6-2022 - SHRI SANDEEP GOSAIN, JM AND SHRI ARUN KHODPIA, AM Assessee by: Shri Mahavir Atal (CA) Revenue by : Shri Piyush Kolhe (CIT-DR) ORDER PER: SANDEEP GOSAIN, J.M. This appeal has been filed by the assessee against the order of the ld. Pr.CIT-1, Nagpur dated 08/03/2017 passed U/s 263 of the Income Tax Act, 1961 (in short, the Act) for the A.Y. 2009-10 wherein following grounds have been raised by the assessee: 1. On the facts and circumstances of the case, ld. PCIT erred in assuming jurisdiction U/s 263 and thereby setting aside order passed by Assessing Officer 2. Assessee craves leave to add and alter any other ground that may be taken at the time of hearing. 2. The brief facts of the case are that the assessee is a civil contractor. Return of income w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Principal Commissioner of Income Tax that the entire expenditure should be disallowed is one of the possible view. However, it is settled jurisprudence that the Section 263 cannot be invoked on e basis of Change of opinion. We find support from the below mentioned-Judgments of the Bombay High Court. CIT Vs Nirav Modi 390 ITR 292 (Bom)(HC) Grasim Industries Vs CIT 321 ITR 92 (Bom)(HC). 4. We also with to draw support from the Judgment of the Hon'ble Mumbai Tribunal in the case of M/s Vaghasiya Exports Vs PCIT (2020). Enclosed on page 37 to 43 of the paper book. In this case the learned PCIT, invoked 263 revision proceedings to set aside the assessment order passed by the Assessing Officer by making an addition of gross profit on the Hawala purchase. The learned PCIT insisted on the complete disallowance. The Mumbai Tribunal squashed the revision order and held that it is a case of change of opinion by relying on the judgments of Grasim Industries Ltd Vs CIT (Bom)(HC) and CIT Vs Nirav Modi (Bom)(HC). The relevant operational paragraph of the said judgment is Para 7 and it can be found on Page No 34 to 36 of the paper book. 5. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to Rs. 53,40,098/- only bills were issued and no material was dispatched to the assessee. However, the A.O. went on to finalize the assessment order by making G.P. addition @ 11.9% of the total turnover and added an amount of Rs. 6,35,470/- to the income of the assessee. Thus, according to the ld. Pr.CIT, the assessment was finalized without carrying out any enquiries and no efforts were made to verify the purchases and hence, according to the ld. Pr.CIT, the assessment was found to be erroneous and prejudicial to the interests of the Revenue. Whereas on the contrary, the ld. AR has taken a specific ground that the additions had already been made in this case in respect of G.P. @ 11.9% and the assessee had already gone in appeal before the First Appellate Authority and the assessee had also opted for the Direct Tax Dispute Resolution Scheme, 2016 (in short, DTDRS) and have filed a petition which is pending for finalization and in this respect, it was also submitted by the assessee that there are certain judicial pronouncements which support assessee s contention that an assessment order should not be set aside u/s 263 of the Act in respect of issues which are covered under an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of change of opinion and in this regard, we found support from the decisions of the Hon ble Bombay High Court in the case of CIT Vs Nirav Modi 390 ITR 292 (Bom) and Grasim Industries vs CIT 321 ITR 92 (Bom). We also draw strength from the decision of the Coordinate Bench of Mumbai Tribunal in the case of M/s Vaghasiya Exports Vs PCIT and according to the said decision of the Coordinate Bench of the Tribunal it was held that in this case, the ld. PCIT invoked 263 revision proceedings to set aside the assessment order passed by the A.O. by making an addition of gross profit on the Hawala purchase. The ld. PCIT insisted on the complete disallowance. The Mumbai Tribunal squashed the revision order and held that it is a case of change of opinion by relying on the judgments of Grasim Industries Ltd. Vs CIT (Bom) and CIT Vs Nirav Modi (Bom). We also draw strength from the decision of the Coordinate Bench of Jaipur ITAT in the case of Ram Das Maheshwari Vs PCIT in ITA No. 421/JP/2018 order dated 14/06/2018 wherein the Coordinate Bench has held that in this case, the appeal was filed against the penalty levied U/s 271AAB. A penalty of 10% was levied by the A.O. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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