TaxTMI 
TaxTMI 
2024 (6) TMI 318
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....r. CIT in exercising of his revision jurisdiction u/s 263 of the Act, observed from the record that the assessee had shown short term capital gain on shares of Rs. 40,94,308/- whereas from the schedule CG of ITR, it was seen that the assessee computed the said short term capital gain (STCG) as (-) Rs. 1,36,35,922/-. The LD Pr. CIT observed that the assessee was required to pay tax on STCG of Rs. 40,94,308/- and that the carry forward of short term capital loss of Rs. 1,36,35,922/- was not allowable since the same was not claimed by the assessee in its ITR. The ld. Pr. CIT show- caused the assessee, in this respect, and asked the assessee to furnish the various details as mentioned in the impugned order. The assessee submitted its reply before the LD Pr. CIT on 04.01.2023, wherein, the assessee cited a factual error in the show cause notice of the LD Pr. CIT by stating that the LD Pr. CIT has only considered the short-term capital gain reported under 'Note 12: Other Income' of the Audited Financial Statement but has completely ignored the Short-Term Capital Loss of Rs 76,37,68,695/- reported under 'Note 16: Other Expenses' of the Audited Financial Statements. The ass....
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....the assessee filed the return of income for the A.Y. 2018-19 and the assessment order was passed on 22.02.2021 wherein the returned income of Rs. 1,09,24,210/- was accepted as assessed income. From the inspection of the records, it was observed that the assessee had shown short term capital gain on shares of Rs. 40,94,30/- whereas from the Schedule-CG of the Income-tax Return, it was seen that the assessee had computed net short term capital gain on shares as (-) Rs. 1,36,35,922/-. Further, a carry forward loss of Rs. 1,36,35,922/- was allowed which was not claimed by the assessee. It was also seen that the assessee had claimed long term capital gain of Rs. 95,51,48,622/- which was claimed as exempt income u/s. 10(38) of the IT Act, and had also shown Dividend Income of Rs. 74,60,38,466/- which was claimed as exempt u/s. 94(7) of the IT Act and short term capital loss of Rs. 76,37,68,696/-. All these issues were not examined by the Assessing Officer during the course of the assessment proceedings. In view of this, various notices were issued to the assessee vide this office's letter dated 19.12.2022, 02.01.2023, 09.01.2023 and 03.02.2023. The assessee had filed necessary detail....
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....y in the details furnished by the assessee, has simply noted that the Assessing Officer has not made the requisite enquiries. A perusal of the impugned revision order of the ld. Pr. CIT would reveal that the ld. Pr. CIT himself had made adequate enquiries and sought details and documents from the assessee which were duly replied to and furnished by the assessee. Under the circumstances, the ld. Pr. CIT was supposed to go through the said details and should have pointed out as to which of the fact or explanation needs what further enquiries. At this stage, it will be relevant to reproduce the relevant provisions of section 263 of the Act as under: "Section 263(1) of the Income- Tax Act reads as under: (1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein 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 or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or mod....
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....roceeded to make an enquiry regarding the genuineness of the claim of the assessee, he was supposed to make a prima-facie opinion which may not be a concluding opinion to hold that the order of the AO in his view was erroneous so far as it was prejudicial to the interest of Revenue. The opinion of the Commissioner that the AO had not made proper enquiries or verifications should be based on his objective satisfaction and not a subjective satisfaction from the assessment order. Merely because, the assessment order in question is not a detailed order that itself, does not mean that the AO had not made enquiries in this respect. Admittedly, the AO asked the assessee to furnish the necessary details from time to time which were duly furnished by the assessee and after considering the same the AO passed the assessment order. 7. It is pertinent to mention here that a deeming fiction has been created in section 263 of the Act by the amendment made by Finance Act, 2015 w.e.f. 01.06.15, wherein, it has been mentioned that where the Commissioner is of the opinion that the AO had passed the order without making enquiries or a claim has been allowed without enquiring into the claim or that th....
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.... concluded as follows:- "56. To sum up, we find from the above said facts that the Second AO has conducted enquiry as directed by the First Ld. Pr. CIT on the specific subject matter i.e. share capital and premium collected by the assessee-company. Therefore, the finding of Second Pr. CIT that the Second AO has not conducted enquiry is incorrect and is flowing from suspicion only. And as discussed, the allegation/fault pointed out by the Second Ld. Pr. CIT that the Second AO failed to collect total facts also cannot be accepted for the simple reason that Ld. Pr. CIT has not spelt out in the impugned order what he meant by total facts or in the alternative when the assessee has discharged its onus, as required by the law in force in this AY 2012-13, then the Ld. Pr. CIT ought to have called for which ever additional documents/materials or issued summons or issued notices and collected those facts which according to Second Ld. Pr. CIT, the AO omitted to collect and then demonstrated that those actions/documents which he collected in that process gave result to a different finding of fact which will turn upside down the claim of the assessee and thus able to show that the actions/om....
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.... capital & premium collected by assessee company. Resultantly the second Ld. Pr.CIT, again cannot rake-up the same subject matter without the second Ld. Pr.CIT in the second revisional order spells out where the error happened to second AO as an investigator or adjudicator, which exercise the Second Ld. Pr.CIT has not done, so the second Ld. Pr. CIT cannot be permitted to again ask the AO to start the investigation in the way he thinks it proper on the very same subject on which merger has taken place by virtue of the order of First Ld. Pr. CIT. And if this practice is allowed, then there will be no end to the assessment proceedings meaning no finality to assessment proceedings and that is exactly why the Parliament in its wisdom has brought in safe-guards, restrictions & conditions precedent to be satisfied strictly before assumption of revisional jurisdiction. Be that as it may be, as discussed above, we find that the Second Ld. Pr. CIT without satisfying the condition precedent u/s 263 of the Act has invoked the revisional jurisdiction (second time), so all his actions are ab initio void." 9. Further, the Coordinate Mumbai Bench of the Tribunal in the case of Narayan Tatu Rane....