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TMI Blog2023 (11) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore on this count alone, the jurisdiction u/s 263 exercised by the PCIT cannot be justified. In the present case, we observe from the order passed by the PCIT that he has stated that the order passed by AO appears to be prima facie to be erroneous which is again is not correct and not as per the provision of Act. In our opinion, the PCIT has to record a clear cut finding after carrying out enquiry into the issue and record a finding as to how the order is erroneous and prejudicial to the interest of the revenue as has been decided in the case of ITO vs. DG Housing (India) Pvt. Ltd [ 2012 (3) TMI 227 - DELHI HIGH COURT] . We also note that the AO has examined these issues and has taken a plausible view on the issue. In case where the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee was selected for scrutiny and assessment was framed u/s 143(3) of the Act vide order dated 20.12.2018 assessing total loss of Rs. 54,56,223/-. The said assessment was rectified u/s 154 of the Act on 19.02.2019 with the said loss of Rs. 54,56,223/- allowing the same loss as business loss to be carried forward to be set off in the subsequent years. Thereafter the Ld. PCIT upon perusal of the assessment records observed that as per explanation 2 Section 28 where speculative transaction is carried on by an assessee are of such a nature as to constitute a business, the business shall be deemed distinct and separate from any other business in terms of Sub-section (1) of Section 73 in respect of speculative business carried on by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and accordingly Clause (c ) of Explanation 2 to Section 263(1) was attracted. 4. The Ld. A.R vehemently submitted before us that the order passed by the AO is neither erroneous nor prejudicial to the interest of the revenue. During the course of assessment proceedings all the issues as proposed by the PCIT in the revisionary order were examined by the AO after calling for details from the assessee and only thereafter plausible view was taken which was correct view as per law. The ld AR therefore pleaded that accordingly the order passed by the AO is neither erroneous nor prejudicial to the interest of the revenue. The Ld. A.R submitted that where the PCIT is of the view that assessment framed by the AO is erroneous and prejudicial to the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not constitute profits and gains of a speculative business. The Ld. A.R also referred to the decision of the Co-ordinate Bench in the case of DCIT vs. M/s Unisys Software And Holding Industries Limited in ITA NO. 57/Kol/2019 for AY 2014-15 wherein it was held as under: 13. We have heard the arguments of both the sides and also perused the relevant material available on record. As regards the issue relating to the claim of the assessee regarding the loss in commodity transactions amounting to Rs. 45,82,560/- being the normal business loss, it is observed that the same is squarely covered in favour of the assessee by the decision of the Hon'ble Calcutta High Court in the case of Asian Financial Services Limited (supra), wherein it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the order passed by AO appears to be prima facie to be erroneous which is again is not correct and not as per the provision of Act. In our opinion, the PCIT has to record a clear cut finding after carrying out enquiry into the issue and record a finding as to how the order is erroneous and prejudicial to the interest of the revenue as has been decided in the case of ITO vs. D.G Housing (India) Pvt. Ltd. (supra). We also note that the AO has examined these issues and has taken a plausible view on the issue. In case where the view taken by the AO is according to the PCIT is not correct view and AO should have taken an another view. In our opinion when the AO has taken a plausible view then the PCIT cannot be invoked u/s 263 of the Act to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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