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TMI Blog2023 (7) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice issued U/s 263 is invalid. The order passed by the ld. PCIT is void and liable to be quashed. Decided in favour of assessee. - I.T.A. No. 72/Asr/2022 - - - Dated:- 22-6-2023 - DR. M. L. MEENA , ACCOUNTANT MEMBER And SH. ANIKESH BANERJEE , JUDICIAL MEMBER For the Appellant : J. K. Gupta , Adv. For the Respondents : S. R. Kaushik , CIT. DR ORDER Per : Anikesh Banerjee , JM The instant appeal of the assessee was filed against the order of the ld. Pr. Commissioner of Income Tax-1,Amritsar,[in brevity 'the PCIT'] order passed u/s 263 of the Income Tax Act 1961, [in brevity 'the Act'] for A.Y. 2011-12. 2. The appeal was filed with delay of 334 days. The ld. AR placed that the delay which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned the record of the assessment proceedings and thereafter should have given a finding that the assessment order as erroneous or prejudicial to the interest of Revenue. So, the revision order is liable to be quashed. 4. That on the facts and in the circumstances of the case and in law, the learned Pr.CIT, Amritsar erred in delegating his powers to ITO, Ward, Gurdaspur for initiating the 263 proceedings through notice Dated 02.03.2021 as he has neither territorial nor pecuniary jurisdiction over the assessee. So the revision order is without jurisdiction and is liable to be quashed. 5. That on the facts and in the circumstances of the case and in law, the learned Pr.CIT erred in treating a brief order passed without detail by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee to whom she is found entitled at the time of hearing of appeal. 4. Brief fact of the case is that the assessment was completed u/s 143(3) r.w.s. 147 of the Act. The ld. PCIT issued notice u/s 263 by calling the assessment order erroneous and prejudicial to the interest of revenue. On the ground that the ld. AO had not taken proper verification of cash deposit amount of Rs. 18,17,000/-. As the source of cash was incidental and related to sale of land, the taxability of capital gain. So, the issue was needed to be investigated. The assessee has claimed exemption u/s 54 amounting to Rs. 22,84,849/-. The grievance of the ld. PCIT that the ld. AO had not raised any query to verify the genuineness of the exemption claimed nor verif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicated in the statute itself and when parliament has specifically appointed an authority to discharge a function, it cannot be readily presumed that it had intended that its delegate should be free to empower another person to act in his place. The Court cited with approval the case of Barium Chemicals Ltd. v. Company Law Board AIR 1967 SC 295 and quoted the following paragraph: Bearing in mind that the maxim delegatus non protest delegare sets out what is merely a rule of construction, sub-delegation can be sustained if permitted by express provision or by necessary implication. 13. In the instant case, nothing has been shown to us whereby the Assistant Commissioner was empowered to act in place of the Commissioner under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (D) is answered in negative i.e. in favour of the respondent/assessee and against the Revenue. (Emphasis supplied) 5.2. The ld AR further argued and respectfully relied on High Court of Madhya Pradesh, Commissioner of Income-tax v. Sattamdas Mohandas Sidhi [1998] 96 TAXMAN 263 (MP). The relevant paragraph is extracted as below:- Notice by way of telegram cannot be said to be substituted for a notice by a post. Section 282 contemplates by two modes either by post or by way of summons issued by the Court under the Civil Procedure Code. This view has been taken by this Court in the case of Umashankar Mishra (supra) and in that case, even an order of penalty was set aside as it was found that the notices were not sent as required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ari Devi Saraogi v. CIT [1968] 67 ITR 84 . Similar view has been taken by the Orissa High Court in the matter of sales tax in the case of Rawani Dal Flour Mills v. CST [1992] 86 STC 409 and under Orissa sales tax Act, the Commissioner issued notice exercising his revisional jurisdiction without giving reasons in notice. Their Lordships held that the notice should contain the reasons so as to give an opportunity to assessee and in absence of that, notice is bad. Hence, we are of the opinion that the view taken by the Tribunal is quite right and we, accordingly, answer both the aforesaid questions against the revenue and favour of the assessee. This reference is, accordingly, answered. 6. The ld. DR vehemently argued and relied on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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