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TMI Blog2022 (9) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... icals Ltd.. The contention that no incriminating material was found as result of search and seizure action is not based on any material or evidence. An assessment order passed after obtaining the approval with the Joint/ACIT is also an assessment order, which is very much amenable to the jurisdiction u/s 263 - It is not the case of the appellant that AO had examined the issue of exemption of capital gains from purchase and sale of penny stock script of M/s. S.V. Electricals Ltd. as to the genuineness of claim. It is settled position of law that when the AO was expected to make an enquiry of a particular item of income of the claim for allowance of expenditure and if he does not make any enquiry as expected that would have certainly ground t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e I.T. Act 1961. The impugned revisional order passed by the learned Pr.CIT is patently illegal., void ab initio, bad in law, arbitrary, perverse, without jurisdiction and being devoid of merits the same may please be deleted. 2. Since the learned Pr.CIT has failed to revise the directions given by the learned J.C.I.T. Nashik to the learned Assessing Officer in the matter of framing the impugned assessment order u/s 143[3] r.w.s.l53A of the I. T. Act 1961, the learned Pr.CIT miserably lacked the revisional jurisdiction u/s 263 of the I. T. Act 1961. In the circumstances the impugned order passed by the learned Pr.CIT may please be annulled for want of jurisdiction. 3. Since the learned Assessing Officer has framed the impugned assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was search and seizure action was conducted u/s 132 of the Income Tax Act, 1961 ('the Act') in the business premises of R.C. Bafna group of cases and the appellant, wherein certain incriminating material was stated to have been found. Subsequently, the Assessing Officer had issued a notice u/s 153A on 18.02.2015. In response to which, the appellant filed a return of income on 30.10.2015 declaring same income as shown in the regular return of income. The Assistant Commissioner of Income Tax, Central Circle-2, Nashik ('the Assessing Officer') completed the assessment u/s 143(3) r.w.s. 153A of the Act vide order dated 30.11.2016 accepting the returned income. 4. Subsequently, the ld. PCIT, on examination of the assessment record, found that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Non-examination of this issue, render the assessment order erroneous and prejudicial to the interests of the Revenue. Accordingly, the ld. PCIT set-aside the assessment order to the Assessing Officer for fresh assessment in accordance with law. 5. Being aggrieved, the appellant is in appeal before us in the present appeal. 6. The ld. AR challenges the validity of the order of revision passed u/s 263 on the ground that : (i) The ld. PCIT cannot exercise the power of revision in respect of order passed by the Assessing Officer after taking approval of the Joint/Additional Commissioner of Income Tax. (ii) In the absence of any incriminating material suggesting that the appellant made a claim for exemption of bogus capital gains in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the material on record. The Parliament had conferred the power of revision on the Commissioner of Income Tax u/s 263 of the Act in case the assessment order passed is erroneous and prejudicial to the interests of revenue. In order to invoke the power of revision, the above two conditions are required to be satisfied cumulatively. References in this regard can be made to the decision of the Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. vs. CIT, 243 ITR 83 (SC) and in the case of CIT vs. Max India Ltd., 295 ITR 282 (SC). The error in the assessment order should be one that it is not debatable or plausible view. In a case where the Assessing Officer examined the claim took one of the plausible views, the assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of purchase and sale of penny stock script of M/s. S.V. Electricals Ltd. in the light of the information received by him from the Investigation Wing of the Department, even if the information is received subsequent to original assessment order. It is evident from the statement recorded by the Assessing Officer on 22.04.2019 about the share transactions undertaken by the assessee. It is settled position of law that the failure on the part of the Assessing Officer to enquire into the claim of exemption, render the assessment order erroneous and prejudicial to the interests of the Revenue. In these circumstances, we are of the considered opinion that the ld. PCIT has rightly exercised the power of revision u/s 263 and, accordingly, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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