TMI Blog2011 (11) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... RI A.L. GEHLOT, JJ. Appearances by : Shri J.C. Ranpura for the Appellant. Shri Yogesh Pande for the Respondent. ORDER 1. This appeal by the assessee is directed against the order of the CIT-II, Rajkot dated 13-02-2008 passed u/s 263 of the I.T. Act for the assessment year 2003-04. 2. The following effective grounds are raised in the appeal: "(1) The learned Commissioner of Income tax has erred in law and in facts by adding Rs. 495000.00 being gross agricultural income as concealed income, as I have already shown the Income in my Return of Income and there is nothing new the Income Tax Officer has found out. I had filed revision petition u/s 264, after three hearing, the learned Commissioner of Income-tax advised me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from salary, commission, share of profit, etc. aggregating to Rs. 1,53,012. The assessing officer completed the assessment u/s 143(3) on 23-03-2006. In the original assessment the assessing officer held that no genuine agricultural activity was carried out by the assessee during the year. Therefore, the agricultural income disclosed by the assessee was taken as income from undisclosed sources. The Commissioner of Income-tax, on scrutiny of return found that in the original assessment assessing officer ought to have assessed agricultural income as undisclosed income at Rs. 4,95,000 instead of Rs. 4,05,000. The Commissioner was of the view that the assessee has disclosed gross agricultural income of Rs. 4,95,000 and after claiming expenses o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is hereby declared that, for the purposes of this sub-section,- (a) an order passed on or before or after the 1st day of June, 1988 by the Assessing Officer shall include (i) an order of assessment made by the Assistant Commissioner or Deputy Commissioner or the Income-tax Officer on the basis of the directions issued by the Joint Commissioner under section 144A; (ii) an order made by the Joint Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief Commissioner or Director General or Commissioner authorised by the Board in this behalf under section 120; (b) "record" shall include and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner only if, on examination of the records of any proceedings under this Act, he considers that any order passed therein by the Income-tax Officer is " erroneous in so far as it is prejudicial to the interests of the Revenue". It is not an arbitrary or unchartered power. It can be exercised only on fulfillment of the requirements laid down in sub-section (1). The consideration of the Commissioner as to whether an order is erroneous in so far as it is prejudicial to the interests of the Revenue, must be based on materials on the record of the proceedings called for by him. If there are no materials on record on the basis of which it can be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elaborately. This section does not visualise a case of substitution of the judgment of the Commissioner for that of the Income-tax Officer, who passed the order, unless the decision is held to be erroneous. Cases may be visualised where the Income-tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some changes. The Commissioner, on perusal of the records, may be of the different opinion than the opinion of the Income-tax Officer. That would not vest the Commissioner with power to re-examine the accounts and express different opinion. It is because the Income-tax Officer has exercised ..... X X X X Extracts X X X X X X X X Extracts X X X X
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