TaxTMI 
TaxTMI 
2022 (11) TMI 134
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....vised without revising the approval of the Addl. CIT. 2. The Ld. PCIT has erred on facts and in law in holding that the order passed by AO is erroneous and prejudicial to the interest of revenue as per clause (a) of Explanation 2 to section 263 as there is non application of mind on part of the AO since he has not made necessary verification of facts/enquiries with reference to:- (i) difference between the stamp duty value of land purchased by the firm M/s Gupta Sons & M/s Agarwal Sons and actual sales consideration with reference to the assessee's share in these firms which is assessable u/s 56(2)(vii)(b) of the Act ignoring that this issue has been examined by the AO in detail in course of assessment proceedings (ii) variation of Rs.1,49,0001- between the return filed u/s 139(1) & 153 A ignoring that the difference is on account of claim of deduction u/s 80C of the Act on account of tuition fees of child duly reflected in the return filed u/s 153A of the Act. 3. The Ld. PCIT has erred on facts and in law in passing the order u/s 263 without rebutting the various contentions raised by the assessee. 3. Brief facts of the case are that the ....
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....ue of the land purchased by the firm Agarwal Sons is Rs.28,03,94,000/- and total sales consideration is Rs.1,00,00,000/-. Difference between stamp duty value and sale consideration is Rs.27,03,94,000/-. Shri Ashish Gupta has 1% share contribution in M/s Agarwal Sons. The 1% this value of Rs.27,03,94,000/- comes to Rs.27,03,940/-. The total of Rs. 45,93,718/- (1889778+2703940) is deemed income of the assessee as per provision of section 56(2)(vii)(b) of the Act. d) The assessment considering the addition u/s 56(2)(vii)(b) of the Act has already been passed by the assessing the officer in the cases of Shri Shashi Bala partner in the firm M/s Agarwal Sons and M/s Goel Sons, Manisha Gupta partner in the firm M/s Gupta Sons and M/s Agarwal sons in the cases of Yogesh Bindal, Sushil Garg, Dr. Anguri Gard & Narandra Kumar Mittal partner in the firm M/s Agarwal Sons. e) Further, on perusal of records difference of income amounting to Rs.1,49,000/- was also left out from assessment as mentioned in the show cause. 4. After the above observation, ld. Pr.CIT invoked the provisions of clause (a) of Explanation 2 to section 263 of the Act and held that there is lack....
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....Surat Bench in case of Nilkanth Stone Industries vs. PCIT (2021) 189 ITD 718; (vi) Hon'ble Karnataka High Court in case of CIT vs. International Society for Krishna Consciousness (2020) 272 taxman 534; (vii) Hon'ble Andhra Pradesh High Court in case of PCIT vs. Deccan Jewellers Pvt. Ltd. (2021) 206 DTR 257/283 taxman 578; and (viii) ITAT, Delhi Bench in case of Smt. Abha Bansal vs. PCIT (2021) 208 DTR 265. 7. Per contra, ld. DR for the Revenue relied upon the order of ld. Pr.CIT. 8. As regards ground no.1, ld. DR for the Revenue referred to the decision of the coordinate Bench of the ITAT in the case of Kapil Mehta in ITA No.533/Del/2021 order dated 11.01.2021. ITAT has rejected similar argument in this regard as under :- "6.11 On a plain reading of the section, we do not find that there is any fetters on the powers of PCIT or CIT for revising ' any order passed by the AO "except as provided in explanation 1(c)" of the section. 6.12 However, here the argument of the assessee is that powers granted to the PCIT and CIT u/s 263 becomes otiose if the authority below the rank of PCIT/ CIT i.e Joint Commissioner of Income tax, has approv....
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....urt. 6.15 Now we come to the decision of the Hon'ble Supreme Court in T.N. Civil Supplies Corpn. Ltd Vs Commissioner of Income-tax [2003] 260 ITR 82 (SC) wherein the Assessing Officer passed an order on the direction of the Inspecting Assistant Commissioner under Section 144B of the Act, which was subject to revision under Section 263 of the Act. The Hon'ble Supreme Court in that particular case has categorically held that the orders are to be revised are orders passed by the Income Tax Officer. Hon'ble Supreme Court further held that provisions of Section 263 did not exclude 'orders passed by the Assessing Officer on the direction of a superior authority either under Section 144A or Section 144B of the Act. The Hon'ble Supreme Court held that :- "2. The power to revise orders of the Income-tax Officer under section 263 of the Income-tax Act, 1961 was sought to be limited by the appellant-assessee by contending that the phrase "order passed by the Income-tax Officer" in section 263 excluded those orders passed by the Income-tax Officer pursuant to the directions of the Inspecting Assistant Commissioner under section 144B which was then included in the Act. ....
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....orrect an error, which is prejudicial to the interest of the Revenue in the order of the Assessing Officer, even if it is approved by the Joint Commissioner, who is also falling below the rank of the Pr. Commissioner. If the argument of the ld. AR is accepted then the supervisory authority of the Pr. Commissioner granted under the Act is hampered. 6.19 Therefore, on provisions of Section 263 of the Act give unfettered right to the Commissioner of Income Tax to revise any order passed by the Assessing Officer. Whatever was to be excluded by the law has already been provided under that Section and the only exception are the issues 'decided and considered' in the appellate orders. Therefore, the reasoning of the arguments advanced by the Ld. AR on this line also fails and we dismiss the same." 9. We find that the above proposition is duly applicable in the ground raised by the assessee in this regard wherein it is urged that the jurisdiction exercised by Pr.CIT is wrong inasmuch as that is without revising the approval of the Addl. CIT. As already held by the ITAT above, there are no such fetters to the powers of ld. Pr.CIT and more so for the officer who is below in rank ....