आयकर अपील(cid:10)य अ(cid:11)धकरण, कोलकाता पीठ “बी’’, कोलकाता

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH: KOLKATA (cid:1)ी राजेश कुमार, लेखा सट(cid:17)य एवं (cid:1)ी संजय शमा(cid:22) (cid:23)या(cid:24)यक सद(cid:17)य के सम(cid:26)

[Before Shri Rajesh Kumar, Accountant Member & Shri Sonjoy Sarma, Judicial Member]

I.T.A. No. 432/Kol/202`

Assessment Year: 2013-14

ORDER / आदेश Per Rajesh Kumar, AM:

This is an appeal preferred by the assessee against the order of the Ld.

Principal Commissioner of Income -2, Kolkata (hereinafter referred to as the Ld. PCIT”] dated 31.03.2021 passed u/s 263 of the Income Tax Act, 1961 (hereinafter referred to as the Act) for the AY 2013-14.

2. At the outset we note that there is a delay of 143 days in filing the appeal however the ld. Counsel for the assessee Mr. Ketan Kr. Ved pointed out that this delay was during COVID period and therefore covered by the decision of Hon’ble Supreme Court in the case of Mst. Katiji & Ors. reported in (1987) 2 SCC 107 (SC).

3. At the time of hearing, the Ld. Counsel for the assessee pressed only ground nos. 1,2& 6 while ground nos. 3,4 & 5 were not pressed accordingly ground nos. 3,4 & 5 are dismissed as not pressed.

4. Issue raised in ground no. 1 is against the invalid exercise of jurisdiction by PCIT u/s 263 of the Act thereby consequent order framed u/s 263 of the Act dated

31.03.2021 was also invalid.

5. Facts in brief are that the assessee filed return of income on 30.11.2013 declaring loss of Rs. 104,74,85,143/- and the assessment u/s 143(3) was framed on 13.11.2017 assessing total loss at Rs. 22,49,89,667/- thereafter the assessment record was called for by the PCIT and he observed that while framing the assessment that AO has not examined the issue as mentioned in Para 2(i) to (v) and accordingly issued notice u/s 263 of the Act dated 19.1.2021 which was replied by the assessee vide written submissions dated 27.03.2021 explaining each and every point and submitting that the order passed by the AO is not erroneous and prejudice to the interest of the revenue. However the ld. PCIT after taking into consideration the reply of the assessee revised the assessment vide order dated 13.11.2017 passed u/s 263 of the Act directing the AO to frame and pass the fresh assessment order after taking into account the issues as mentioned in para 2(i) to (v) after affording a reasonable opportunity of hearing to the assessee.

6. In the set aside proceedings, the AO accepted the contentions of the assessee in respect of the issues proposed in para 2(ii) to (iv) and did not make any addition and only two issues were added namely i) service tax written off Rs. 1,82,00,000/- and provisions of warranties Rs. 9,14,900/-. Therefore these are only issues which are under challenge before us in order to test the validity of revisionary jurisdiction of the ld. PCIT.

7. The Ld. A.R vehemently submitted before us that the revisionary jurisdiction u/s 263 of the Act was invalidly exercised by the AO to set aside the assessment which was invalidly framed in accordance with the provisions of Act after taking into account the reply and submissions of the assessee along with evidences filed and therefore the order passed by the AO was neither erroneous nor prejudicial to the interest of the revenue. So far as the issue mentioned in para 2 (i) is concerned which relates to service tax written off amounting to Rs. 1,82,00,000/-, the Ld. A.R submitted that the said write off is allowable deduction and there can be no question of the findings of the AO being replaced by the view of the Ld. PCIT as view taken by the AO is a plausible view on the subject in the light of the various decisions on the subject. The Ld. A.R submitted that the AO vide notice dated 30.06.2016 issued u/s 142(1) of the Act has specifically called for the details of miscell