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TMI Blog2024 (11) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs that the PCIT has ignored the facts of the case on record as well as the legal proposition to the effect that the finding of non-inquiry vis-a-vis the documents, statements recorded during the course of survey, is not based on any hard facts but the facts on record clearly reveals that the AO had conducted due inquiry on the issue of disclosure made by the respondent assessee and considering the statement of the assessee during the survey making voluntary surrender of professional unaccounted receipts, the same was taxed as such as business income, is in accordance with law. Tribunal has therefore rightly held that only because no inquiry was conducted by the Assessing Officer on record of the survey before him, cannot be the basis for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Income Tax Appellate Tribunal, Rajkot (for short the Tribunal) in ITA No. 29/Rjt/2022 for the assessment year 2017-18, proposing the following substantial questions of law. (A) Whether on the facts of the case as well as in law, the Appellate Tribunal was justified in quashing the order under Section 263 of the Income Tax Act of Ld. PCIT when Explanation 2 of Section 263 of the Act was expressly invoked to deem the assessment order erroneous in so far as it was prejudicial to the interest of revenue? (B) Whether on the facts of the case as well as law, the Appellate Tribunal was justified in quashing the order under Section 263 of the Income Tax Act of Ld. PCIT despite the fact that the assessing officer has failed to tax the unaccoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been taxed at the rate of 60% plus surcharge at the rate of 25% of such tax under Section 115 BBE of the Act, in absence of any valid explanation of the source of undisclosed income offered by the respondent- assessee and the order was passed on 25.01.2022 under Section 263 of the Act. 7. Being aggrieved, the Assessee preferred the appeal before the Tribunal challenging the order passed by the Principal CIT under Section 263 of the Act. 8. The Tribunal after considering the submissions made by the Assessee, by the impugned order dated 30.11.2023 allowed the appeal of the assessee quashing and setting aside the order under Section 263 of the Act by observing as under :- 14. It is clearly evident from the above that the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd considering the statement of the assessee during survey making voluntary surrender of professional unaccounted receipts, his acceptance of the surrender as business income is in accordance with law. The Ld.PCIT has merely stated no inquiry conducted by the AO on the records of survey before him, but not pointed out how and on what basis he arrived at this finding. Merely stating that the AO has not examined the records/documents pertaining to the survey cannot be basis for finding the assessment order erroneous. The documents pertaining to the survey form part of the record which was there before the Ld.PCIT also and was required to be examined by him for finding error in the assessment order. He was duty bound to go through these record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not explained and as such, the same ought to have been taxed under Sections 68 69 A of the Act. 10. It was therefore submitted that the Principal CIT has rightly passed the order under Section 263 of the Act, in view of the fact that the Assessing Officer has taken a wrong decision without considering the material available on record, without making any inquiry into the matter of disclosure of Rs. 15,00,000/- by the respondent -assessee. 11. It was therefore submitted that the Tribunal has committed an error while reversing the order passed by the Principal CIT under Section 263 of the Act, contrary to the facts available on record, inasmuch as per explanation (2) Section 263 of the Act, the Principal Commissioner of Income Tax is justifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge of opinion on his part, when the Assessing Officer while during the course of regular assessment has made inquiry regarding the issue which is the subject matter of the revision. 14. In the facts of the case, though the Principal CIT would have arrived at a valid finding of error on the basis of his own examination of record including the documents and statement recorded of the assessee during the survey action undertaken under Section 133A of the Act, but there is nothing on record to point out that how the documents pertaining to survey could not have lead to a reasonable belief as entertained by the Assessing Officer that the income surrender pertained to the professional receipt which is one of the plausible view on the matter. 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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