TMI Blog2010 (6) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal filed by the assessee and is directed against the order dated 30th March 2009 passed by the learned Commissioner under section 263 of the Income Tax Act, 1961. Grievances raised by the assessee are as follows: 1. On the facts and in the circumstances of the case and in law, the learned CIT(A) has legally erred in assuming jurisdiction u/s 263 of the Act and the order passed by him is bad in law, illegal, void and without jurisdiction. 2. Without prejudice to ground (1) above, and on the facts and in the circumstances of the case and in law, the learned CIT(A) has legally erred in setting aside the order passed u/s 143(3) by the A.O. without considering the submissions and details filed by the appellant. 3. Without prejudice to ground (1) and (2) above, and on the facts and in the circumstances of the case and in law, the learned CIT(A) has legally erred in holding that the ACIT has not applied his mind in verifying the claim of deduction u/s 10A of the Act made by the appellant. 4. Without prejudice to grounds (1) and (2) above and on the facts and in the circumstances of the case and in law, the learned CIT(A) has legally erred in rejecting appellant s contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m . The deduction of Rs 1,42,06,867 was thus allowed after some minor adjustment in the quantum. 3. The matter, however, did not rest there. On 6th March,2009, learned Commissioner issued a notice under section 263, in respect of the above assessment, pointing out to the assessee that it is seen that you have not made any deduction on account of expenditure incurred in foreign exchange in connection with the new undertaking even though there was an expenditure on travel amounting to Rs 63,29,556, expenses on professional fees amounting to Rs 44,69,236 and expenses on other matters amounting to Rs 21,99,838. The assessee was required to produce details of export related expenses incurred by the assessee, or received in convertible foreign exchange, in respect of freight, travel, professional fees, telecommunication charges, insurance attributable to the delivery of the articles or things or computer software outside India, expenses, if any, incurred in foreign exchange in providing technical services outside India, onsite development of software outside India, and other matters. The assessee was also called upon to show cause as to why adjustment in export turnover should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what is termed as reimbursement is nothing but part of sale proceeds which is liable to be included in total turnover. Learned Commissioner summed up the above analysis by observing as follows: In view of the above discussions, the assessment being erroneous and prejudicial to the interest of the revenue, is set aside to the extent of expenses incurred in foreign exchange and attributable to units for which Section 10A claim is made, with directions to verify the nature of such expenses and to correlate such expenses with various units and then rework the export turnover and total turnover for computing deduction under section 10A. The Assessing Officer shall afford reasonable opportunity of being heard to the assessee before passing the fresh order. 5. The assessee is aggrieved of the order so passed by the learned Commissioner, and is in appeal before us. 6. We have heard the rival contentions, perused the material on record and duly considered factual matrix of the case as also the applicable legal position. 7. We have noted that the justification for assumption of jurisdiction under section 263 has been that the Assessing Officer did not apply his mind to ascertain the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt order for the asst. yr. 1952-53 in his order. Profit from speculation was shown as Rs. 3,085 and interest Rs. 600, and Rs. 500 was added for want of books of account and evidence. No evidence whatsoever was produced in respect of the moneylending business done and interest income shown to have been received by the assessee. No names were given as to the parties to whom the loans were advanced, with amounts and rate of interest and as to when the interest income was received. 10. In both the judicial precedents relied upon by the learned Commissioner, facts and circumstances did warrant further inquiry but the Assessing Officer did not conduct the same. There can be no quarrel with the proposition that when an Assessing Officer remains passive on the facts which call for further enquiry, such an inertia on the part of the Assessing Officer does vitiate the assessment order and renders it erroneous and prejudicial to the interests of the revenue, but then it does not mean that the Assessing Officer s not putting everything stated in the income test return to the rigorous tests of investigation, no matter how desirable it must be from the point of view of a circumspect revenue o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous unless it is not in accordance with the law". As held by the Hon ble Punjab Haryana High Court, in the case of CIT vs. R.K. Metal Works (1978) 112 ITR 445 (P H), the CIT must give reasons and basis for his conclusion that the order sought to be revised is erroneous. There is no finding whatsoever as to how is it erroneous in law. As for the learned Departmental Representative s suggestion that no harm is caused to the assessee because the matter is only being restored to the file for fresh adjudication in accordance with the law, we can do no better than to quote from Hon ble Bombay High Court s observation, in this very case, to the effect that, "Such action (of exercising revision powers) will be against the well-accepted policy of law that there must be a point of finality in all legal proceedings, stale issues should not be re-activated beyond a particular stage and the lapse of time must induce, repose in, and set at rest judicial and quasi judicial controversies as it must in other spheres of activity". The power of revision, therefore, cannot be made in a routine and mechanical manner. In any event, we have noted that a coordinate bench of the Tribunal, in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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