TaxTMI 
TaxTMI 
2017 (10) TMI 630
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....ome Tax, Circle -1 (3)(1), Mumbai ("the Assessing Officer") dated 24.03.2015 on the alleged ground that the said assessment order was erroneous and prejudicial to the interest of the revenue. 2. On the facts and circumstances of the case and in law, the learned PC IT erred in holding that the order of AO is erroneous and prejudicial to the interest of the revenue without pointing out how the same is so erroneous and prejudicial and therefore the said order is illegal, bad in law and void. 3. On the facts and circumstances of the case and in law, the learned PC IT erred in invoking the provisions of section 263 of the Act by holding that the Assessing Officer accepted all the claims of the Appellant without further enquires of the matters referred in the directions issued under section 144A of the Act. The Appellant submits that the Assessing Officer had conducted proper and adequate inquires and therefore the order of the Assessing Officer is neither erroneous nor prejudicial to the interest of the revenue and therefore the order of learned PCIT under section 263 of the Act may be cancelled. WITHOUT PREJUDICE TO GROUND NO. I: GROUND NO. ....
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.... without examining nexus with business and applicability of Instruction No. 03 of 2010 dated 23.03.2010 and provisions of section 43(5) of the Act The Appellant submits that, in the facts and in the circumstances of the case, the order of the Assessing Officer is neither erroneous nor prejudicial to the interest of the Revenue as the market to market losses is allowable as per the decision of Hon'ble Supreme Court in the case of CIT Vs. Woodward Governor India (P.) Ltd. (2009) (312 ITR 254) (SC) WITHOUT PREJUDICE TO GROUND NO. I: VI: PURCHASE OF EQUITY SHARE. CAPITAL OF RELIANCE INFRASTRUCTURE FINANCE PVT. LTD. ((RIFPL)): 8. On the facts and circumstances of the case and in law, the learned PCIT erred in setting aside the assessment order passed under section 143(3) of the Act by the Assessing Officer on the alleged ground that the Assessing Officer ought to have verified the purchase of entire equity share capital of Reliance Infrastructure Finance Private Limited at par for Rs. 5.25 Cr. from Emerging Money Mall Ltd. The Appellant submits that, in the facts and in the circumstances of the case, the order of the Assessing Officer is ....
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.... of the case, the directions of PCIT in his order are beyond the show cause notice issued by him and therefore the order directing the Assessing Officer to consider any other issue in the course of fresh assessment is illegal, bad in law and void." 3. The issue raised in ground no.1 of the appeal is against the wrong exercising the revisionary jurisdiction u/s 263 of the Income Tax Act, 1961 by the PCIT, whereas the issues raised in grounds no.2 to 9 are without prejudice to the grounds of appeal no.1 challenging assumption of jurisdiction on merits u/s 263 of the Act. 4. We shall first deal with the issue raised against the assumption of jurisdiction exercising revisionary powers u/s 263 of the Act by the Ld. Pr. CIT by issuing the notice u/s 263 of the Act dated 13.7.2015 proposing to set aside the assessment order dated 24.03.2015 passed by the Dy. Commissioner of Income Tax for the reasons that the assessment was framed in undue haste, without application of mind and without carrying out meaningful and proper inquiries by the AO on various issues raised under section 263 of the Act. 5. Facts in brief are that the assessee is in the business of marketing, distribution o....
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....d allowances were erroneous and prejudicial to the interest of the Revenue and thus he justified the assumption of revisionary jurisdiction u/s 263 of the Act by issuing notice listing therein the various points on which the assessment was proposed to be set aside. The said show cause notice was replied by the assessee vide letter dated 29.7.2015 requesting the Pr. CIT to give a copy of direction issued u/s 144A dated 10.3.2015 by the Addl. CIT range 1(3), Mumbai. It was also pointed out that the Addl. CIT had never issued directions to the assessee and thus no opportunity was provided by the Addl. CIT to the assessee. 7. Thereafter, the assessee filed detailed reply dated 28.2.2017 raising various objections both legal and on merit against invoking the jurisdiction by the Pr,IT u/s 263 of the Act by filing necessary and comprehensive details on each and every point raised in the notice u/s 263 of the Act. The Pr. CIT supplied a copy of direction issued u/s 144A of the Act on 29.3.2017 by Add. CIT by observing that the said direction were general in nature and were covered under explanation to section144A of the Act and as such there was no requirement to give any opportunity to....
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....and iii) Tara Devi Agrawal V CIT (1973)88 ITR 323 (SC) Ultimately, the ld. Pr. CIT has held that the assessment made by the AO is erroneous and prejudicial to the interest of the revenue on all the accounts for the reasons that the deductions were allowed without making necessary inquires. As per Pr. CIT, the AO collected the details from the assessee in respect of the points raised in the directions issued u/s 144A of the Act but has not bothered to scrutinize the same in a logical and proper manner. 8. The ld,R vehemently submitted that the Pr. CIT has completely erred in assuming revisionary jurisdiction u/s 263 of the Act and consequently setting aside the already completed assessment u/s 143(3) of the Act as framed after considering all the issues/allowances. The ld. AR stated that the AO called for explanations/clarifications/justification on various items of claim including the ones raised by the Pr. CIT in the revisionary proceedings from the assessee and only after considering the same the assessment was framed u/s 143(3) of the Act. The ld. AR submitted that the AO had issued notices on 26.8.2013, 6.8.2014 and 11.12.2014 which were complied with by the asse....
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....ere based factually incorrect facts, information and presumptions. The ld. AR further argued that the Pr. CIT has not specified as to how the AO committed error by allowing deductions on various issues for which the assessment was set aside. The ld. AR argued that in order to invoke the provisions of section 263, the Pr. CIT has to point out that the said assessment is erroneous and prejudicial to the interest of the revenue as there has to be concurrent satisfaction of these twin conditions which is a settled law as on date otherwise the jurisdiction u/s 263 of the Act would be bad and void ab-initio. The ld counsel for the assessee also argued that it is not necessary for the AO to discuss or elaborate on each of the issues examined during the course of scrutiny proceedings and it is enough if the AO has sought clarification/details/reply from the assesseeand assessee has duly complied with the same by filing the information called for unless the issues accepted by the AO are factually incorrect or not in accordance with the law or settled legal position. The ld. AR in defense of his arguments placed reliance on the decision of the Hon‟ble jurisdictional High Court in the c....
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....of the Tribunal in the case of Vardhman Industries V/s DCIT reported in 181 TTJ (Chd) 17 in which the Tribunal held that if there is an error in the order, the CIT should give categorical findings after making inquiries and investigations himself. When the Pr. CIT himself has not conducted any complete inquiry and has not given any findings as to the merits of the case then invoking the jurisdiction u/s 263 of the Act would be bad in law. Finally, the ld,R submitted that in view of the facts and circumstances of the case, and position of law, the order passed by the PCIT u/s 263 is without any lawful authority and jurisdiction under the provisions of the Act and should be quashed on the ground of invalid assumption of jurisdiction u/s 263 of the Act without fulfilling the necessary pre-conditions. 9. Even on merits, the ld. AR submitted that the allowances/deductions as claimed by the assessee and allowed by the AO as mentioned in para no 7 supra were admissible under the Act and none of them was erroneous or not in accordance with the law. The ld counsel touched upon the merit of each of the points raised by the Pr. CIT as under:- (a) As regards the revision and reduct....
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....refore the penalty proceedings were not exigible. The ld. AR also relied on the following decisions : i) DIT(IT) V/s Asia Attractive Dividend stock-fund -35 taxmann,om 265 ii) CIT V/s Ask Enterprises 230 ITR 48 (Bom); ii) CIT V/s Somany Evergreen Knits Ltd 352 ITR 592 (Bom); iii) CIT V/s Brahmaputra Consortium Ltd 348 ITR 339 (Del). Further the ld,R argued that non initiation of penalty proceedings us/ 271(1) (c) of the Act by the AO cannot be a subject matter of the revisionary proceedings as has been held in the case of N Jamnadas and Co in ITA No.2930/Mum/2012 dated 27.1.2017. Therefore the revisionary proceedings u/s 263 of the Act initiated by the ld. PCIT was wrong and against the provisions of Income Tax Act. As the question of levy of penalty u/s 271(1)(c) of the Act is a debatable issue which is to be decided by the AO on the basis of nature of additions made in the assessment order depending on the facts of the case whether the same amounted to concealment of income or furnishing inaccurate particulars of income. Thus, there is no tailor made formula to levy of penalty u/s 271(1)( c ) of the Act. The ld. AR referred to the case of Addl.....
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.... u/s.139(5) of the Act. The appellant submits that the action of the assessee to increase the income (reduce the loss) and the same cannot be said to be prejudicial to the interest of revenue. In normal course whether the appellant would have submitted the revised computation beyond the due date of filing the revised return or not, if the income is to be increased (loss is to be reduced) the Assessing Officer is not bound by whether the time limit for filing revised return is expired or not. The appellant submits that the action of the Assessing Officer is not erroneous as there cannot be double allowance of the same expenditure in two different years and also that the same is not prejudicial to the interest of revenue as the loss is decreased (income is increased). The appellant submits that the action of the CIT in this regard is incorrect as no prejudice is caused to the revenue. (c) In respect of Profit on sale of assets - Rs. 5.17,82,414 he ld. AR submitted that the revised computation of income filed on 20.3.2015, the appellant had reduced profit on sale of fixed assets credited to profit and loss account under the head "miscellaneous receipts" as not liable to....
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....tures for an amount of Rs. 11, 19,472 on which there was loss of Rs. 8,30,491. The appellant had disallowed the loss on sale of assets of Rs. 8,30,491 in the original and revised returns of income as well as in the revised computation of income but inadvertently omitted to reduce the profit of Rs. 5,17,82,414 from the computation of income. The appellant therefore in the revised computation of income has corrected the said mistake. CIT has not controverted the evidence and details produced in this regard. The appellant submits that Assessing Officer has followed the provisions of law as regards computation of depreciation under block of assets theory. The Assessing Officer has applied provisions of section 50 of the Act. Therefore the order of the Assessing Officer is not erroneous in law. The appellant further submits that the observation of the CIT is that how can the computers etc. can generate profit. The appellant submits that the assets have been sold to third party who is unrelated party and the assets sold were by way of servers and load balancers and not computers. The same were in good condition and accordingly the sale price was realized. The appellant submits that sale ....
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....he Assessing Officer in accepting the revised computation in which the reduction of Rs. 5,17,82,414 was made by the appellant was clearly not in accordance with the decision of Supreme Court in case of Goetz India Ltd. 284 ITR 323. The appellant had made three adjustments in the revised computation of income filed in course of assessment proceedings, two of them reducing the loss and one increasing the loss. The same are summarized as under:- Item Amount (Rs.) Impact on Total Incentive claimed but was already allowed in A,.2011-12 and therefore offered for addition (-) 34,86,253 Loss reduced Withdrawal of depreciation on account of mistake in opening WOV and crediting the sale proceeds against the WOV of block of assets (-) 7,86,27,128 Loss reduced Profit on sale of fixed assets (+) 5,17,82,414 Loss increased Final impact (-) 2,68,44,714 Loss reduced The ld. AR submitted that from the above it can be seen that the impact of above three adjustments taken together was reduction in loss (increase in income) and thus the Assessing Officer while accepting the revised computation has not assessed the loss at a figure which is higher than th....
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..... The appellant replied to the said query vide letter dated 19.3.2015 filed on 20.3.2015 (Page 72 to 75 of the Paperbook). The appellant pointed out that the hedging cost included mark to market loss of Rs. 17,00,287 in respect of gold forward contracts which expired on 5.4.2012 i,. outstanding as on balance sheet date. It was further pointed out that the said contracts were finally settled on 5.4.2012 when the actual loss realized was Rs. 49,325. The appellant also pointed out to various decisions as per which the said loss was allowable as business loss as not being notional. The decision replied upon included the decision of Supreme Court in case of Woodword Governor India Pvt. Ltd. 312 ITR 254. The ld. AR submitted that the CIT in order u/s.263 has observed that the Assessing Officer has allowed the appellant's claim of hedging and transportation cost of Rs. 76.89 crs. without examining whether mark to market loss were included in the hedging cost. As stated earlier, the Assessing Officer has made specific inquiry in this regard vide notice dated 11.3.2015 and the necessary details were submitted by the appellant vide letter dated 19.3.2015 and accepted. The ld. AR submitte....
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.... decision of Supreme Court and various High Courts and Tribunals. The Assessing Officer has taken a possible view and the proceedings u/s.263 cannot be invoked. For the above proposition, the appellant relies upon the following decisions:- i. CIT v Max India Ltd. [2007] 295 ITR 282 (SC) ii. CIT v Fine Jewellery (India) Ltd. [2015] 372 ITR 303 (Bom) iii. CIT v Honda Siel Power Products Ltd. [2011] 333 ITR 547 (Del) 12. The ld,R therefore submits that the order of the Assessing Officer allowing the mark to market loss is not erroneous. (e) Purchase of equity share capital of Reliance Infrastructure Finance Pvt. Ltd. (RIFPL) 13. The ld. AR submits that during the year the appellant had purchased 52,50,000 equity shares of Reliance Infrastructure Finance Pvt. Ltd. for an amount of Rs. 5,25,00,000. The said investment is reflected in the Investment Schedule in the balance sheet (Page No.19 of the Paperbook). CIT in his notice u/s.263 has stated that the appellant has purchased the above shares on 4.7.2011 from Emerging Money Mall Ltd. (EMML) which had purchased the same from Reliance Capital Ltd. CIT further states that EMML has held the s....
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....inquiry as to what division has been de merged and whether the remainder assets ensure the payment of the liability towards preference shares or whether the demerger was in the interest of the company or was a tax avoidance major. The appellant submits that the assessment order for AY. 2011-12 in which the demerger took place was also a subject matter of revision proceedings and the CIT had passed the order u/s.263 on 28.3.2016 setting aside the assessment order. In the said order CIT had made observations about the demerger of infrastructure division. The said order was subject matter of appeal before Tribunal. Tribunal vide their order dated 23.12.2016 (Page Nos. 329 to 360 of the Paperbook) has quashed the order u/s.263 as not being erroneous or prejudicial to the interest of the revenue. The appellant submits that the deduction claimed u/s.35DD is in respect of demerger which was carried out in AY.2011-12. The expenditure incurred on demerger are allowed as deduction in five years. During the year under consideration the appellant had paid certain additional expenses on the demerger carried out in AY.2011-12. Thus the claim for expenditure during the year was 1/5th of the expen....
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....ion in A Y.2011-12. The appellant submits that the amount of Rs. 34,86,253 was added back in the revised computation of income submitted in course of assessment proceedings. The amount of Rs. 1,40,72,956 was paid in the subsequent year and therefore the question of Rs. 34,86,253 being included in Rs. 1,40,72,956 does not arise. The appellant submits that just as the amount of Rs. 1,40,72,956 pertaining to this year was paid in the next year, the amount of Rs. 34,86,253 pertaining to last year was paid during the year and formed part of employee cost. The same was claimed in A,. 2011-12 and was therefore disallowed in A,. 2012-13. The ld. AT submits that the ld,IT in his notice in para 12 (page 120 of the Paperbook) further observes that Assessing Officer accepted the income shown in the revised computation without application of mind and without bothering whether this power of accepting revision after time given in section 139(5) of the Act was over, was within his jurisdiction or not. It is not known as to whether CIT is referring to incentive payment or whether he is referring to computation of revised computation as a whole. Assuming that he is referring to incentive payment, th....
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....order of the CIT for directing the Assessing Officer to consider any other matter without pointing out what is the error and how the order is erroneous and prejudicial to the revenue, the said direction cannot be sustained." 18. The ld. DR on the other had opposed the contentions and submissions of the ld,R by submitting that the revisionary jurisdiction u/s 163 of the Act was rightly exercised by the ld. PCIT as the AO has passed the order without making proper and requisite inquiries on the various issues as has been set out in the notice issued u/s 263 of the Act on which the assessment framed u/s 143(3) of the Act was proposed to be set aside. The ld DR submitted that even the directions issued by the Addl. CIT were not looked into and considered before framing the assessment. The ld DR contended that even after filing the revised return of income by the assessee, a revised computation was filed making several claims which has the effect of increasing/decreasing the loss returned by the assessee. The ld DR submitted that the AO accepted all those claims despite the fact that the AO did not have any authority under the Act to entertain any such claims in the assessment procee....
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....e the tax as per DTAA and the order by the assessing is not only erroneous but also prejudicial to the interest of the revenue. The ld AR also submitted that the decision of Infosys Technologies Ltd (Supra) has been considered in the case of Elder IT Solutions (P) Ltd Vs CIT 2015 37 ITR(T) 443 Mumbai and was distinguished. The ld,R also submitted that in the case of Shree Manjunathesware Packing products and Camphor Works (supra), the issue was with regard to the cost of construction of Rs. 20,28,498/- which was referred to DVO by the AO who did not submit the report before the expiry of time limit for completion of assessment and the AO passed the order accepting the tax offered by the assessee. In the said the said case the commissioner exercised the revisionary jurisdiction u/s 263 of the Act on the ground that DVO report was not before the AO at the time of passing the assessment order and the records have to be seen at the time of examination of records which was upheld by the ITAT and also by the High Court. Further the Supreme Court held that it was open to commissioner to take into consideration all the records available at the time of examination by him and thus to conside....
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.... income in the revised computation, the claim of Hedging and Transportation Cost of Rs. 76.89 crores, purchases of equity shares of M/s Reliance Infrastructures Finance Private Limited after borrowing funds and claiming the interest as expenditure, deduction of demerger expenses u/s 35DD of the Act and lastly the claim of deduction for excess payment of incentive over provisions amounting to Rs. 1,40,72,956. The Pr,IT has exercised the revisionary powers u/s 263 of the Act despite the fact that all these issues were examined by the AO in the assessment proceedings and framed the assessment accordingly evidently after being satisfied. During the course of revisionary proceedings, the PCIT accepted the revised claim of depreciation of the assessee to the tune of Rs. 80,25,256/- as against the claim of Rs. 8,66,55,484/- claimed in the original return of income and addition on account of incentives of Rs. 34,86,256/- relating to A,. 2011-12 despite the facts that the time limit for filing the original and revised return of income has elapsed and the said claim was made by the assessee in the course of original assessment proceedings by way of revised computation of income in contrast a....
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....assessee vide written submissions dated 19.3.2015 filed on 20.3.2015 placed in the paper book at pages 72 to 76. Thus, we find that the issues as raised by the Addl,IT in the direction issued u/s 144A of the Act stand replied before the AO vide written submissions dated 19.3.2015. The Addl. CIT issued direction u/s 144A of the Act only in respect of four items viz; (1) revision of claim of depreciation from Rs..8,66,55,484/- to Rs. 80,25,256/-; (2) mark to mark loss of hedging cost; (3) Referral fees of Rs. 918.71 lacs; and (4) Provision for doubtful debts of Rs. 16,22,45,358/- Whereas the ld. Pr. CIT set aside the assessment order by giving directions to decide the seven issues namely; (a) Claim of depreciation of Rs. 8,66,55,484/- - as per IT Act as against Rs. 18,17,815/- under Company's Act. (b) Deduction of Rs. 34,86,256/- on account of incentive paid in F,.2011-12, offered for taxation in revised computation for A,.2012-13. (c) Profit on sale of assets Rs. 5,17,82,414/- reduced from Computation of Total Income (d) Claim of Hedging and Transportation Cost of Rs. 76.89 crores. (e) Purchase o....
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....direction to the AO on the points on which he himself was not aware of at the time of exercising the jurisdiction u/s 263 of the Act and thus directing the AO to make roving inquiries. In our opinion it is not permissible for the Pr,IT to disturb a concluded assessment on the ground that the AO has not dealt with or discussed in the assessment order the issues examined by him during the assessment proceedings. It is enough if the AO has elicited information/explanations from the assessee and the assessee has filed the same before the AO so long as there is no incorrect appreciation of facts or the assessment is not contrary to or not in accordance with law. The Hon‟ble Jurisdictional High Court in the case of Gabriel India Ltd (supra) has held that the assessment cannot be said to be erroneous and prejudicial simply because the assessment order did not make elaborate discussion on certain points and the court held that the Commissioner cannot initiate proceedings with a view to starting fishing and roving enquiries in matters which are already concluded. The Hon‟ble High Court also held that: "14. We, therefore, hold that in order to exercise power under sub-se....
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....nsideration or opinion the whole machinery of re-examination and reconsideration of an order of assessment, which has already been concluded and controversy which has been set at rest, is set again in motion. It is an important decision and the same cannot be based on the whims or caprice of the revising authority. There must be materials available from the records called for by the Commissioner. 15. We may now examine the facts of the present case in the light of the powers of the Commissioner set out above. The Income-tax Officer in this case had made enquiries in regard to the nature of the expenditure incurred by the assessee. The assessee had given detailed explanation in that regard by a letter in writing. All these are part of the record of the case. Evidently, the claim was allowed by the Income-tax Officer on being satisfied with the explanation of the assessee. Such decision of the Income-tax Officer cannot be held to be "erroneous" simply because in his order he did not make an elaborate discussion in that regard. Moreover, in the instant case, the Commissioner himself, even after initiating proceedings for revision and hearing the assessee, could not say that t....
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....cordance with law and how it has caused prejudice to the revenue. During the course of assessment proceedings, the AO called for the various details from the assessee and the AO, after considering all the details as furnished and supplied by the assessee in reply, framed the assessment u/s 143(3) of the Act. In the such scenario the said order cannot be termed as erroneous and prejudicial to the interest of the revenue. In the case of Development Credit Bank Ltd (supra), the Hon‟ble Jurisdictional High Court has held as under : "7. A reading of the order passed by the Commissioner of Income-tax would show that the principal objection which the Revisional Authority expressed against the order of the Assessing Officer was an alleged failure of the Assessing Officer to examine; firstly whether the capital gain of Rs. 1.26 crores has been earned by the assessee on transactions relating to investments 'held to maturity', and secondly whether the depreciation of Rs. 622.39 lakhs was claimed on investments which were held as stock-in-trade. Now from the material on record before the Court it is evident that the assessee, in response to a specific query of the Assess....
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....ion of Rs. 622.39 lakhs constitute the basis of the view of the Revisional Authority and the others follow in consequence. Once we come to the conclusion that the Revisional Authority was not justified in exercising the jurisdiction under section 263 with reference to the aforesaid issues [(i) and (ii) in the directions of the Commissioner of Income-tax noted earlier], the other issues are consequential to the enquiry which was directed in respect of the first and second issues. This has not been disputed. 8. In these circumstances, for the reasons which we have set out herein above, we are of the view that the Tribunal was justified in coming to the conclusion that recourse to the powers under section 263 was not warranted in the facts and circumstances of the case. The question of law which has been formulated shall stand answered in the aforesaid terms. The appeal shall, accordingly, stand dismissed. There shall be no order as to costs". 24. We also find that in the present case, the AO has made the inquiry from the assessee during the course of assessment proceedings, which were duly replied by the assessee by filing the necessary details and the Commissioner has no....
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.... his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the revenue - Rampyari Devi Saraogi v. CIT [1968] 67 ITR 84 (SC) and in Smt. Tara Devi Aggarwal v. CIT [1973] 88 ITR 323 (SC)". 25. Further the issue of amendment in the section 263 by the Finance Act, 2015, whether retrospective or not, has been considered in the decision of the Mumbai Bench of the Tribunal in the case of Narayan Tatu Rane V/s Income-tax Officer, Ward 27(1)(1), Mumbai reported in (2016) 70 taxmann,om 227 (Mum), wherein the Tribunal has held as under : "19. The law interpreted by the High Courts makes it clear that the Ld Pr. CIT, before holding an order to be erroneous, should have conducted necessary enquiries or verification in order to show that the finding given by the assessing officer is erroneous, the Ld Pr. CIT should have shown that the view taken by the AO is unsustainable in law. In the instant case, the Ld Pr. CIT has failed to do so and has simply expressed the view that the assessing officer should have conducted enquiry in a particular manner as desired by him. Such a course of action of the Ld Pr. ....
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....not. It does not authorise or give unfettered powers to the Ld Pr. CIT to revise each and every order, if in his opinion, the same has been passed without making enquiries or verification which should have been made. In our view, it is the responsibility of the Ld Pr. CIT to show that the enquiries or verification conducted by the AO was not in accordance with the enquries or verification that would have been carried out by a prudent officer. Hence, in our view, the question as to whether the amendment brought in by way of Explanation 2(a) shall have retrospective or prospective application shall not be relevant" 26. In view of the foregoing discussions, we note that the AO has passed the assessment order after obtaining and calling for details/clarifications of all the seven issues raised by the Pr CIT in the revisionary proceedings and thereafter framed the assessment whereas the ld Pr,IT has not specified in his order as to how the order of the AO is erroneous so as to prejudicial to the interest of the revenue. The Pr. CIT has even made roving direction that the AO may examine any other issue which may come to his notice in the set aside proceedings. Thus evidently it is not....