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TMI Blog2023 (4) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... T is not empowered to invoke revisionary proceedings u/s. 263 of the Act, merely because he is not agree with the view taken by the AO thus, the assessment cannot be treated as erroneous and prejudicial to the interest of revenue unless he establishes that view taken by the AO is unsustainable in law. Therefore impugned revisionary notice, revisionary order u/s. 263 of the Act is hereby quashed being bad in law. - ITA No.732/Del/2021 - - - Dated:- 11-4-2023 - Shri Chandra Mohan Garg, Judicial Member And Shri B.R.R. Kumar, Accountant Member For the Assessee : Shri Neeraj Mangla, CA For the Revenue : Shri P. Praveen Sidharth, CIT DR ORDER PER CHANDRA MOHAN GARG, J.M. This appeal filed by the assessee is directed against the order dated 28.03.2021 of the Ld. PCIT(1), New Delhi relating to Assessment Year 2010-11. 2. First of all, we have heard arguments of learned representatives of both the sides on ground no. 7 which read as follows:- 7. That on the facts and circumstances of the case, the Learned Pr. Commissioner of Income Tax, Delhi-1, New Delhi, has erred, both on facts and in law in directing the Assessing Officer to reframe the assessment, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time limit for issuance of notice u/s. 263 of the Act must be reckoned from the date intimation u/s. 143(1) of the Act i.e. 11.02.2011 and the time limit for reopening of assessment has to be reckoned from the said date. The learned counsel has placed reliance on following judgments and orders:- 1. CIT, Chennai Vs. Alagendran Finance Limited [2007] 162 Taxman 465 (SC) 2. Ashoka Buildcon Limited Vs. Asst. Commissioner of Income tax Circle 2, Nashik [2010] 191 Taxman 29 (Bombay) 3. Indira Industries Vs. Pr. Commissioner of Income tax, Chennai - 8 [2018] 95 taxmann.com 292 (Madras) 4. Century Textiles Industries Ltd Vs. DCIT [2012] 20 taxmann.com 231 (Mumbai) 5. CIT Vs. Lark Chemicals Ltd [20151 55 taxmann.com 446 (Bom.) 6. Commissioner of Income tax Vs. ICICI Bank Ltd. [2012] 19 taxmann.com 142 (Bombay) 7. Skyline Builders Vs. Commissioner of Income tax, Cochin [2019] 105 taxmann.com 207 (Kerala) 8. L.G. Electronics India (P) Ltd. Vs. Pr. CIT [2017] 79 taxmann.com 418 (Allahabad) 9. Louis Berger Group Inc. Vs. Asst. Director of Income tax (International Taxation), Hyderabad [2014] 51 taxmann.com 121 (Hyderabad - Trib.) 6. Drawing our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived from DCIT, CC-2(2) Mumbai challenging the genuineness of transaction of share capital received by the assessee company from two entities i.e. Advanced Technology Ltd. and Yantra Natural Resources Ltd. The AO accepted the surrendered made by the AO and the taxed the entire amount of Rs. 95 lakhs u/s. 68 of the Act, and the assessee paid due taxes etc thereon. (iii) thereafter the learned PCIT Delhi issued notice u/s. 263 of the Act, on 09.02.2021 and passed impugned revisionary order u/s. 263 of the Act on 28.03.2021. (iv) based on above factual position it is the legal contention of the assessee that when the AO picket up only two entities while initiating reassessment proceedings and made addition u/s. 68 of the Act in the hands of the assessee and assessee had paid all due taxes etc thereon then such order cannot be alleged as erroneous and prejudicial to the interest of revenue entitling the Ld. PCIT to invoke revisionary proceedings u/s. 263 of the Act. It is the bottom line contention of the learned counsel of the assessee that when a notice u/s. 263 of the Act raises new issues, which were not subject matter of reassessment proceedings, then two year period cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-tax exercising its revisional jurisdiction reopened the order of assessment only in relation to lease equalization fund which being not the subject of the reassessment proceedings, the period of limitation provided for under sub-section (2) of section 263 of the Act would begin to run from the date of the order of assessment and not from the order of reassessment. The revisional jurisdiction having, thus, been invoked by the Commissioner of Income-tax beyond the period of limitation, it was wholly without jurisdiction rendering the entire proceeding a nullity. 12. In view of above preposition of Hon ble Supreme Court when we analyse the factual position of present case then we find that when the processed of return was completed u/s. 143(1) of the Act on 11.02.2011 and subsequently the AO initiated reassessment proceedings calling the assessee to established genuineness of transaction with two entities, which was concluded by making addition u/s. 68 of the Act in the hands of assessee on 31.12.2017 and no issue was left un-adjudicated or adjudicated in favour of the assessee then the said reassessment order cannot be revised u/s. 263 of the Act by alleging the same as err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Income Tax, Delhi-1, New Delhi, has not appreciated that the Assessing Officer has examined the issue and completed the assessment and thus the assessment order passed by Assessing Officer is not erroneous and prejudicial to the interest of revenue within the meaning of section 263 of the Income Tax. 13. Apropos these grounds the learned counsel submitted that the reassessment proceedings u/s 147 of the Act were initiated based on information challenging the genuineness of receipts from two entities and in respect of both the entities the AO made addition u/s. 68 of the Act. However the learned PCIT in para 6.7 of impugned revisionary order held that the AO was not satisfied with the creditworthiness of all shareholders as well as vide order sheet entry dated 18.12.2017 asked the assessee company to furnish current date confirmation of all investor. The learned counsel submitted that the assessee during the reassessment proceedings duly furnished all necessary evidences to discharge onus cast upon the assessee as per requirement of section 68 of the Act, which is available at page 20 to 332 of the assessee paper book and summary of evidences furnished by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntities for which the AO has made addition of entire amount of Rs. 95 lakhs in the reassessment order. So far as other entities are concerned the learned PCIT without any examination of voluminous documentary evidences filed by the assessee before the AO during reassessment proceedings which was again filed before the learned PCIT was sufficient to discharge onus lay on the shoulders of assessee as per requirement of section 68 of the Act, and in such a situation the reassessment order cannot be alleged as erroneous and prejudicial to the interest of revenue in a particularly when the Assessing Officer after taking into consideration entire documentary evidences submitted by the assessee pertaining to all investors has taken a view and allowed taxing the two entities u/s. 68 of the Act. Therefore revisionary order deserve to be set aside on both the accounts that is on account of barred by limitation on account of sufficient and adequate enquiry by the AO and plausible view taken by the AO. The learned counsel also pleaded that the investments were made during FY 2009-10 and the learned PCIT initiated revisionary proceedings by issuing notice on 09.02.2021 and in such a situation i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the assessee found himself satisfied regarding other entities except two entities for which he made a addition in the hands of assessee u/s. 68 of the Act, which were also subject matter of initiation of reassessment proceedings. Therefore when the Assessing Officer has taken a plausible and sustainable view then the view taken by the AO cannot be alleged as erroneous and prejudicial to the interest of revenue. In the case of CIT vs. Kelvinator of India Ltd. the Hon ble jurisdictional High Court of Delhi held that when Assessing Officer has adopted one courses permissible in law, where two views are possible and the AO has taken one view with which the learned PCIT does not agree, it cannot be treated as erroneous order prejudicial to the interest of revenue unless view taken by the AO is unsustainable in law. The similar view has been reiterated by Hon ble jurisdictional High Court in its subsequent judgment in the case of CIT vs. DLF Ltd. (supra). 17. In view of foregoing discussion we are compelled to hold that when the Assessing Officer enlarging the scope of reassessment proceedings from two entities to all entities and after considering and verifying the documentary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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