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2013 (12) TMI 20 - ITAT AHMEDABADValidity of order u/s 263 – Held that:- Following CIT vs. M/s.Excel Industries Ltd. [2013 (10) TMI 324 - SUPREME COURT] - Parties are not permitted to begin fresh litigation because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the court of the legal result either of the construction of the documents or the weight of certain circumstances. The ld.CIT has not stated as to how the stand taken by the Revenue for earlier years was not correct and the AO taking a consistent view and order so passed was erroneous –The ld.CIT has not exercised his jurisdiction u/s. 263 in accordance with the settled principle of law - He has failed to consider the submissions of the assessee on both the aspects and has merely based its order on the basis that the AO has not made any enquiry - Following ITO vs. D.G. Housing Projects Ltd [2012 (3) TMI 227 - DELHI HIGH COURT] - "a distinction must be drawn in the cases where the AO did not conduct an enquiry; as lack of enquiry by itself renders the order being erroneous and prejudicial to the interest of the Revenue and cases where the Assessing Officer conducts enquiry but finding recorded is erroneous and which is also prejudicial to the interest of the Revenue” - In the second set of cases, CIT cannot direct the Assessing Officer to conduct further enquiry to verify and find out whether the order passed is erroneous or not - The assessee has been consistently claiming the income earned by way of interest as business income, the AO has made enquiry by way of questionnaire and assessee has given reply thereof - The AO has applied his mind under the facts and circumstances – Decided in favour of assessee.
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