Whether commissioner has power to revise u/s 263 an issue which is subject matter of an appeal?
Respected Members
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[2024] 113 ITR (Trib) 188 (ITAT[Kol])
[BEFORE THE INCOME-TAX APPELLATE TRIBUNAL — KOLKATA "C" BENCH]
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RAJESH KUMAR JALAN
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PRINCIPAL COMMISSIONER OF INCOME-TAX
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RAJPAL YADAV (Vice President) (KZ) and DR. MANISH BORAD (Accountant Member)
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June 12, 2024.
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1. Assessee, a small trader declaring income less than Rs. 5 Lakhs under presumptive scheme of taxation.
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2. On information from commercial tax department that seven bank accounts opened by assessee in name of five proprietary concerns, assessment re-opened.
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3. Assessee contending he had not opened any bank accounts and that it might have been done by some unknown persons using his identity. Assessee also filed FIR.
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4. Reassessment made bringing money credited to accounts in question in sum of Rs. 112 crores as unaccounted sales of assessee and estimating profit at 8%.
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5. Assessee appealing and appeals pending before CIT(A).
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6. Revision by commissioner taking view that sums ought to be treated as unexplained cash credit of assessee and A.O. erred in treating it as gross turnover.
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7. ITAT held that revision not permissible because matter pending before CIT(A).
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8. Commissioner passing order without application of mind and merely reproducing proposal sent by additional commissioner.
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9. Commissioner did not determine whether accounts belong to assessee or did not depute local inspector to investigate how a poor man returning income of Rs. 4.33 lakhs and 5.01 lakhs, all of a sudden was assumed as owner of more than Rs. 112 crores.
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10. Assessee plead that accounts do not belong to him but non of the agencies had culminated the inquiry into a positive finding.
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11. Nobody had recorded a specific finding that this plea of the assessee was false.
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12. The commissioner ought to have issued notice to the police authorities as well as to the commercial tax investigating authorities for submission of their report.
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13. Commissioner ought to have first determined whether these accounts belonged to the assessee and only thereafter taxability of the amount available in those accounts would have fallen upon the assessee.
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14. Tribunal quashed 263 proceedings.