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TMI Blog2022 (9) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue whether the purchase is bogus or not is also the subject matter of appeal before Ld. CIT(Appeals). It is well-settled law that once the proceedings are before CIT(Appeals) in respect of certain issues, then the same issue again cannot be re-agitated by taking recourse to proceedings under section 263 as held in VAM RESORTS HOTELS PVT. LTD. [ 2019 (8) TMI 1418 - ALLAHABAD HIGH COURT] and SMT. RENUKA PHILIP [ 2018 (12) TMI 129 - MADRAS HIGH COURT] where it is not held that when an appeal is pending before Commissioner (Appeals), exercise of jurisdiction under section 263 by Principal Commissioner would be barred. Thirdly, it is a well-settled law that every loss of revenue as a consequence of an order of Assessing Officer cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons stated by him in the show cause notice and in the order passed u/s 263 of the Act and hence the impugned order is bad in law. 2. The learned Principal Commissioner of Income-tax, Rajkot - 1, Rajkot erred in setting aside the assessment order framed u/s 143(3)of the Act by holding that the assessing officer has not conducted any inquiries/verification in respect of genuineness of the purchases and that there is incorrect application of law by the A.O. 3. The learned Principal Commissioner of Income-tax, Rajkot - 1, Rajkot failed to appreciate that the impugned issue was duly examined by the assessing officer by way of specific inquiry/notice and reply thereto, while finalizing assessment proceedings u/s 143(3) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as bogus purchases and made addition of ₹ 76,86,510/- disallowing 30% of the purchase of ₹ 2,53,99,953/- since no TCS was collected on the same. However, as per the Principal CIT, the entire purchase amounting to ₹ 2,53,99,953/- should have been treated as un-expenditure in the nature of unverifiable purchases and the total amount of ₹ 2,53,99,953/- should have been added to the income of the assessee as unexplained expenditure under section 69C of the Act, instead of 30% of the same i.e. ₹ 76,86,510/- u/s. 40(A)(ia) of the Act. Accordingly, the Principal CIT held that the order passed by the AO is erroneous and prejudicial to the interests of the revenue. While setting aside the order, Principal CIT made the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In support the assessee relied upon certain decision 7 judgments. The submission of the assessee has been carefully considered and it is noticed that as per the provisions of section 263 explanation-1, clause-C the revision can be made. Since the interpretation of the nature of transaction and the in-application of provisions would be relevant and therefore it cannot be said that the issue was same as decided by the AO. Thus pending appeal against the assessment order would not make any difference in the present revisionary proceedings. 5. The assessee is in appeal before us against the aforesaid order passed by Principal CIT u/s 263 of the Act. At the outset, the counsel for the assessee challenged initiation of proceedings under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings under section 263 of the Act, for the reason that on the issue of bogus purchases, the matter is pending before Ld. CIT(Appeals), where this issue is under consideration before him. Accordingly, it is settled proposition of law that when a certain issue is the subject matter of appeal before Ld. CIT(Appeals), then the same issue cannot be re-agitated in 263 proceedings by Principal CIT. He placed reliance on the case of CIT v. Vam Resorts and Hotels Private Limited 418 ITR 723 (Allahabad) and on the case of Smt. Renuka Philip v. ITO 409 ITR 567 (Madras) where it is not held that when an appeal is pending before Commissioner (Appeals), exercise of jurisdiction under section 263 by Principal Commissioner would be barred. Without prejudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not held that when an appeal is pending before Commissioner (Appeals), exercise of jurisdiction under section 263 by Principal Commissioner would be barred. Thirdly, it is a well-settled law that every loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to interests of Revenue. In the case of Gokuldas Exports [2012] 20 taxmann.com 491 (Karnataka) , the High Court held that if in given facts and circumstances of a case, two views are possible and one view has been adopted by Assessing Officer, then that view alone would not be sufficient to exercise powers under section 263 by Commissioner. Therefore, in the instant facts, if the AO after giving due application of mind on the issue before him ..... X X X X Extracts X X X X X X X X Extracts X X X X
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