TMI Blog2008 (3) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... ought not to have withdrawn the set off granted for unabsorbed depreciation of Rs. 2,00,987 against business income. 3. The brief facts of the case are that the original assessment for the year under consideration was completed under section 143(3) read with section 147 on 10-2-2003. On perusal of record the CIT noticed that during the previous year relevant to 2000-01, the assessee had two units - one unit was eligible for deduction under section 80-IA and the other unit was not eligible for deduction under section 80-IA. The assessee computed its total income as under:- Rs. Rs. Business and Profession 80,88,094 Less: Deduction under Chapter V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if the income of two units are computed separately the total income would work out as under : Units 80-IA Unit Other Unit Total Total Income as determined by the Assessing Officer before set-off of unabsorbed depreciation 81,85,394 (admitted by you- 78,87,107 + net disallowance- 2,98,287) 2,00,987 83,86,381 Less: Unabsorbed depreciation 65,19,760 - 65,19,760 Gross Total Income 16,65,634 2,00,987 18,66,621 Deduction under section 80-IA 16,65,634 - 16,65,634 Deduction under section 80G - 5,009 5,009 Total Income Nil 1,95,978 1,95,978 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records. The issue under consideration is pertaining to section 263 of the IT Act. For the purpose of ready reference same is reproduced as below : "263(1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considered that any order passed therein by the Assessing Officer is erroneous insofar 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 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 modifying the assessment, or cancel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is erroneous. The expressions "erroneous", "erroneous assessment" and "erroneous judgment" have been defined in Black s Law Dictionary . According to the definition "erroneous" means "involving error; deviating from law", "erroneous assessment" refers to an assessment that deviates from the law and is, therefore, invalid. "Erroneous judgment" means "one rendered according to course and practice of Court, but contrary to law, upon mistaken view of law, or upon erroneous application of legal principals". From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is in accordance with law. In an Income-tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of suo moto revision because the first requirement, viz., that the order is erroneous is absent. Similarly if an order is erroneous but not prejudicial to the interest of the Revenue, then also the power of suo motu revision cannot be exercised. Any and every erroneous order cannot be the subiecr-matter of revision because the second requirement also be fulfilled. There must be some prima facie material on record to show that tax which was lawfully exigible has not been imposed and that by the application of the relevant statute on an incorrect or incomplete interpretation a lesser tax that what was just has been imposed. 10. In the light of the above discussion if we consider the facts of the case under consideration we find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 80-IA which was separately worked out. The CIT was of the view that unabsorbed depreciation set off is to be allowed only against profit of Unit eligible for deduction under section 80-IA. The CIT was having different view on the same facts than the view taken by the Assessing Officer. We also notice that on same set of facts, adjustment of unabsorbed depreciation, the Revenue has taken 2 types of proceedings firstly under section 147 and secondly under section 263. When in first stage the Revenue was of the view that there was escapement of assessment under section 147 subsequently on same set of facts the Revenue says that the order passed by the Assessing Officer is erroneous. The CIT may be of a different possible opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
