9911796707
TMI Blog2024 (1) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... neet Rai, learned senior standing counsel says that, as a matter of fact, there is no delay. 2.1. In this behalf, he has drawn our attention to the order dated 16.05.2023 passed by this Court in ITA 278/2023. This order discloses that on 16.05.2023, Mr. Rai had sought leave to withdraw the appeal and the accompanying applications, with liberty to file a fresh appeal. Accordingly, the writ petition and pending applications were dismissed as withdrawn, with liberty as prayed for. 3. Mr. Rai points out that ITA 278/2023 was withdrawn as, inadvertently, the fact that a miscellaneous application (MA) had been filed with the Tribunal for recall of order dated 10.11.2021 had not been disclosed. 4. It is therefore, Mr. Rai's contention that if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot in dispute that after scrutiny was carried out, limited to the issues raised by the AO, the assessment order dated 29.12.2016 was passed, whereby the income declared by the respondent/assessee in its return, as indicated above, was accepted. 11.4. After nearly two years and three months, the respondent/assessee's return was questioned by Principal Commissioner of Income Tax [in short, "PCIT"]. Accordingly, a show-cause notice dated 22.02.2019 under Section 263(1) of the Income Tax Act, 1961 [in short „the Act'] was served on the respondent/assessee. 11.5. This was followed by the PCIT passing an order dated 31.03.2019 under Section 263 of the Act. At the heart of this order is the PCIT's view was that the AO had failed to enquire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.10. As indicated above, the burden of the PCIT's order was that the AO had failed to examine the applicability of Section 56(2)(viib) of the Act, read with Rule 11UA of the Income Tax Rules, 1962 [in short, "Rules"]. It is in these circumstances that PCIT, upon applying the provisions of Section 56(2)(viib) of the Act and Rule 11UA of the Rules, concluded that Rs. 3,42,50,714/- was required to be taxed as per the provisions of Section 56 of the Act under the head "income from the other sources". 12. The moot question that arose for consideration before the Tribunal, albeit in appeal, was whether the AO had carried out an enquiry with regard to the shares issued at a premium to Experience and Sankalp. The Tribunal, as it appears, examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s explanation concerning the applicability of the provisions of Section 56(2)(viib) of the Act. (v) The valuation of the aforementioned immovable property was pegged at Rs. 17.5 Crores by the registered valuer, which was the justification for the high premium received qua the shares allotted to Experience and Sankalp. 13. Given this position, the Tribunal concluded that the PCIT's view that the AO had not made an enquiry about the shares issued to Experience and Sankalp at high premium, was flawed. 14. Thus, after applying the test that power under Section 263 can only be exercised if the order of the AO is both erroneous and prejudicial to the interest of the revenue, the Tribunal concluded that the order passed by the PCIT was unsus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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