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TMI Blog2024 (12) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 263 of the Act 2. That on the facts and in the circumstance of the case, PCIT erred in assuming jurisdiction u/s 263 of the Act as all objection made by PCIT in her order has duly questioned by the Ld. AO during assessment proceedings and replies of these questions submitted during the assessment proceedings. Merely change of opinion could not be a valid ground to passes the order u/s 263. 3. That on the facts and in the circumstances of the case, PCIT erred in assuming jurisdiction u/s 263 of the Act since the assessment order dated 18.12.2018 had already been the subject matter of an appeal before CIT (Appeals) -37 New Delhi and the same had already been decided by the Ld. CIT (A)-37 on dated 16- 09-2020 by deleting the additions made by the Ld. AO. 4. That on the facts and in the circumstances of the case, the impugned order passed by PCIT on 28.03.2021 is void and illegal as it flouts the Principles of Natural Justice statutorily embedded in Section 263 of the Act. 5. That the appellant craves liberty to add, alter, vary or amend any ground of appeal." 2.1 In nutshell, we are tasked to decide that whether the order of the PCIT passed under section 263 of the Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccounts which ID 52109897 and 16253754 held by the assessee, the same were not obtained and examined by the AO." Thereafter, the Ld. PCIT provided reasonable opportunities of being heard as detailed in Para 3 to 5 of the impugned order. However, the appellant/assessee never responded. Therefore, the Ld. PCIT having no alternative except to conclude the proceedings before it getting barred by limitation passed the impugned order and held as under: "7. The facts and circumstances of the case have been carefully examined. The assessment order and facts emerging there from were also given careful consideration in this regard. On such examination of the records of the case, it emerges that during the F.Y. 2010-11 the assessee has deposited cash amounting of Rs. 5.75 lakhs in his bank account and there were other credits of Rs. 16.73 lakhs (other than salary) in the bank account of the assessee out of which an addition of Rs. 1.11 lakhs being cash credit was made by the AO. It was further observed that there were commodity transactions with two demat accounts with ID 52109897 and 16253754 which were not neither disclosed by the assessee nor was examined by the Assessing Officer during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per-Book did not demonstrate that whether the issues raised by the Ld. PCIT were examined/investigated/inquired by the AO during the reopened assessment proceedings. The notices issued under section 142(1) detailed in the assessment order did not reveal that the demat account and credits in the bank accounts were properly examined/investigated/inquired. Further, she contended that it was not a case of change of opinion as the issues flagged by the Ld. PCIT were not properly examined/investigated/inquired at confronted to the appellant/assessee, which got evident from the assessment order passed in consequence to the impugned order wherein the assessment was completed at income of Rs. 29,05,154/- vide order dated 31.3.2022 passed under section 144 r.w.s. 263 of the Act. She, therefore, requested for dismissal of appeal. 6. We have heard both the parties and have perused the material available on the record. We also perused the above referred case laws. The relevant part of the section 263 of the Act is extracted hereunder: - "Explanation 2-For the purposes of this section, it is hereby declared that an order passed by the Assessing Officer shall be deemed to be erroneous in so fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the assessing officer is erroneous in so far as it is prejudicial to the interests of the Revenue, he may, after giving the assessee an opportunity of being heard and after making an enquiry pass an order modifying the assessment made by the assessing officer or cancelling the assessment and directing fresh assessment. The interpretation of expression "erroneous in so far as it is prejudicial to the interests of the revenue" has been a contentious one. In order to provide clarity on the issue it is proposed to provide that an order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue, if, in the opinion of the Principal Commissioner or Commissioner,- (a) the order is passed without making inquiries or verification which, should have been made; ......." 9. A plain reading of the above amendment implies that the said Explanation has been added for clarifying the scope of the words 'erroneous so far as prejudicial to the interest of the revenue.' While clarifying the position, four different situations have been contemplated so as to call an order to be 'erroneous so far as prejudicial to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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