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TMI Blog2022 (10) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... oking the jurisdiction under Section 263 of the Act especially when the entire books of accounts and documents were produced by the Assessee before the Assessing Officer. However, in the instant case the Assessee was directed to produce 3rd time the same books of accounts. In addition, interestingly the PCIT while passing the order under Section 263 for the 2nd time has quashed and set aside 1st Assessment Order passed under Section 153(A)/143(3) of the Act dated 28.12.2016, though the same was already cancelled by the first round of 263 which is not permissible in the eye of law and the second assessment order which was passed after the first round of 263 was never cancelled and is still in existence. Tribunal has taken notes of each and every feature of the case, both on facts and on law, especially the point of law that there cannot be any proceeding under Section 263 for change of opinion by subsequent officer Admittedly in the instant case the entire documents were produced in the original assessment proceeding as well as in the subsequent assessment proceeding which was conducted after the first 263 order as such again in the second round of 263, the direction made by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was passed by PCIT again cancelling the non existent 1st Assessment Order with a direction to the Assessing Officer (AO) to pass a fresh order however the 2nd Assessment order dated 31.12.2018 was never cancelled and as such it remained as a valid assessment order. On 28.12.2019 an Email was sent by the respondent Assessee to the A.O objecting to pass of fresh assessment order on the ground that aforesaid second assessment order dated 31.12.2018 has not been cancelled and therefore for one assessment year there can not be two parallel assessment order and requested to drop the assessment proceeding but instead of dropping, the A.O passed 3rd Assessment Order under Section 263 r.w.s 143(3) of the Act. On 30.12.2019 as the 3rd assessment proceeding was not dropped by the Assessing Officer, the respondent Assessee filed an appeal before ITAT against the order dated 28.03.2019 passed under Section 263 of the Act for the 2nd time On 08.07.2020 , learned ITAT quashed the aforesaid 2nd order under Section 263 dated 28.03.2019 and allowed the appeal of the respondent, which is impugned in the instant Appeal. 3. Ms. Amrita Sinha, learned counsel appearing for the revenue submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that the order passed by the learned ITAT does not require any interference, inasmuch as, the PCIT has initiated proceedings u/s 263 of the Act for the second time and quashed the order of assessment proceeding which was already quashed earlier. In other words, though the first Assessment Order dated 28.12.2016 was already cancelled by the first round of 263 proceedings, but the second order under Section 263 was passed by the PCIT again cancelling the non existent first Assessment Order with a direction to pass a fresh order. However, the second Assessment Order dated 31.12.2018 was never cancelled which was passed in pursuance to the 1st order of remand passed u/s 263 of the Act and as such it remained as a valid Assessment Order. Since the 3rd assessment proceeding was not dropped by the Assessing Officer on the plea raised by the Assessee, the respondent filed the appeal before the ITAT against the order passed under Section 263 dated 28.3.2019 and the learned ITAT has rightly quashed the second order passed by PCIT under Section 263 of the Act dated 28.3.2019. As such since there is inherent mistake in the order passed by the PCIT under Section 263 of the Act. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Tribunal has considered each and every aspects of the matter while allowing the appeal filed by the Assessee and held that in A ssessee s case the loss and damage expenses of Rs.4 Crores has been examined by the Assessing Officer in the Original Assessment Order dated 28.12.2016, and the said expenditure has also been examined by the Assessing Officer in the second Assessment Order passed by the A.O under Section 143(3) read with Section 2 63 of the Act which was framed in pursuance to the direction given by the PCIT Therefore, the said loss and damage expenses of Rs.4 Crores have been examined by the A.O twice. Again, in the Section 263 order, the PCIT has directed the A.O to examine the s aid loss and damage expenses of Rs.4 Crores this means the A.O would examine 3rd time the said loss and damage expenses of Rs.4 Crores. Likewise, the sales incentive expenses of Rs. 9,45,96,300/ has been examined by the A.O in the first Assessment Order and again he examined the same and pass a fresh assessment order pursuant to the order passed by the PCIT in first round of 263, as such again in the second round of 263 the direction made by the PCIT is erroneous. The learned Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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