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Income Tax Appellate Tribunal, JAIPUR BENCHES,”B” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA. No. 356/JPR/2023
Per contra, the ld. DR relied upon the order of the Ld. PCIT and 6.
contended with the similar argument as recorded in the order of ld. PCIT.
We have heard the parties and perused the material placed on record. The bench noted from the order of ld. PCIT that the ld. PCIT has only noted that invocation of initiation of penalty proceedings was instead of section 271AAC of the Act initiated u/s 270A of the Act and therefore, he invoked the provisions of section 263 merely to initiate the penalty proceedings u/s 271AAC of the Act instead of 270A initiated by the ld. AO.
7.1 The ld. AR of the assessee relied upon the various judgment challenging the action of ld. PCIT and the same are as under :-
• Harish Jain vs PCIT (2023) 102 ITR (Trib.) 84 • Commissioner of Income-tax vs. Keshrimal Parasmal (1986) 157 ITR 484 • Rekha Shekhawat vs. Pr. CIT (2022) 99 ITR (Trib.) 69 7.2 Out of the above judgment so cited, we find that we have binding precedent of the jurisdictional High Court on the similar set of facts wherein the Hon’ble High Court in the case of Commissioner of Income- tax vs. Keshrimal Parasmal (1986) 157 ITR 484 hold a view that “Revision: Commissioner in revision in assessment order whether cam direct initiation of penalty proceedings: 2-3-1984: Their Lordships P. N. BHAGWATI and A. N. SEN JJ dismissed, as not being a fit case in which the question arising in the special leave petition should be decided, a special leave petition by the Depart. ment against the judgment dated 27-4-1981 of the Delhi High Court in I.T.R. No. 82 of 1974, reported in [1982] 133 ITR 7, whereby the High Court, on a reference, held that the Commissioner in a suo motu revision under s. 263 of the I.T. Act,
1961, of an assessment proceeding, was not entitled to set aside the assessment order on the ground that there was no mention of initiation of penalty proceedings in the assessment order, and to direct the ITO to make fresh assessment and to initiate penalty proceed- ings: CIT v. J. K. Da Costa: S.L.P. (Civil) Nos. 11391-11392 of 1981." Thus, the position boils down to this that the view taken in J. K. D'Costa's case [1982] 133 ITR 7 has been confirmed by the Supreme Court and according to this case, the Commissioner of Income-tax is not enti tled to set aside the assessment order passed by the Income-tax Officer on the ground that there was no mention of initiation of penalty proceedings in the assessment order and the Commissioner of Income-tax in the proceed- ings under section 263 of the Act cannot direct the Income-tax Officer to make fresh assessment to initiate penalty proceedings. As the position stands concluded and settled by the Supreme Court, the question which is now sought to be referred by the Commissioner of Income-tax cannot be said to be a substantial question of law arising out of the Tribunal's order. It is only a question of academic nature.” Respectfully following the ratio of the decision as cited hereinabove and in the absence of any contrary decision having similar stature not cited before us. We hold that the order of the PCIT is beyond the jurisdictional as per provisions of section 263 of the Act and therefore, the same is quashed.
In the result, the appeal of the assessee is allowed.
Order pronounced in the open Court on 03/05/2024.