TMI Blog2011 (10) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... , JJ. B. Suresh for the Appellant. Dr. I. Vijayakumar for the Respondent. ORDER Hari Om Maratha, Judicial Member This appeal of the assessee, for assessment year 2006-07, is directed against the order of the ld. CIT, Chennai VI, dated 23.3.2011 passed u/s 263 of the Act. 2. Briefly stated, the facts of the case are that as per the AIR information received by the Department, it was found that the assessee had sold a property in the year under reference for a total consideration of Rs. 34 lakhs. Enquiries made by the Assessing Officer revealed that the property had been purchased and sold in assessee's name, thus the income arising from such transaction is required to be taxed in assessee's hands. As per the ld. CIT, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT has accepted that the Assessing Officer has verily examined this issue, yet he has concluded that the Assessing Officer did not enquire into the existence of AOP. While setting aside the assessment order on this issue, he has further opined that the Assessing Officer needs to examine the source of investments made allegedly by different members of alleged AOP, in this property. Aggrieved, the assessee has raised the following grounds: "1.1 The order u/s 263 of the IT Act, 1961 of the Commissioner of Income-tax, Chennai VI passed without jurisdiction, is erroneous, contrary to law and facts of the case, and is against the principles of equity and natural justice and hence liable to be set aside at the threshold itself. 1.2 The Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "since the material was there on record and the said material was considered by the ITO and a particular view was taken, the mere fact that a different view can be taken should not be the basis for an action u/s 263 of the Act and it cannot be held to be justified." Also Paul Mathews Sons 263 ITR 101 (Ker.) - Girdharilal 258 ITR 231 (Raj.) Mangilal Didwania 286 ITR 126 (Raj.) . 2.2 The Hon'ble CIT ought not to have refrained from applying his mind on the decision in Malabar Industrial Co. Ltd. v. CIT 243 ITR 83 though brought to his notice vis-a-vis the copy of an appellate order in ITA No.729/Mds/2008 dated 2.1.2009 of the D Bench of the Hon ITAT, Chennai which was also supplied for record purposes in which this decision was applied wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire evidences available on record. It is trite that an order can be revised only and only if twin conditions of 'error in the order' and 'prejudice caused to the Revenue' co-exist. 7. The subject of 'revision under section 263' has been vastly examined and analyzed by various Courts including that of Hon'ble Apex Court. The revisional power conferred on the CIT vide section 263 is of vide amplitude. It enables the CIT to call for and examine the records of any proceeding under the Act. It empowers the CIT to make or cause to be made such an enquiry as he deems necessary in order to find out if any order passed by Assessing Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. The only limitation on hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f setting right distortions and prejudices caused to the Revenue in the above context. The fundamental principles which emerge from the several cases regarding the powers of the CIT under section 263 may be summarized below: (i) The CIT must record satisfaction that the order of the Assessing Officer is erroneous and prejudicial to the interests of the revenue. Both the conditions must be fulfilled. (ii) Section 263 cannot be invoked to correct each and every type of mistake or error committed by the Assessing Officer and it is only when an order is erroneous, that the section will be attracted. (iii) An incorrect assumption of facts or an incorrect application of law will suffice for the requirement or order being erroneous. (iv) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r allowed the claim on being satisfied with the explanation of the assessee, the decision of the Assessing Officer cannot be held to be erroneous simply because in his order he does not make an elaborate discussion in that regard. 8. Reverting to the facts of this case, it was found for certain that the Assessing Officer has examined all the aspects of this issue and u/s 263 of the Act, an order can be revised if and only if the twin conditions stated above co-exist in a given case. In this case, the Assessing Officer has examined the issue from all angles, therefore, the order cannot be said to be erroneous on account of non-application of mind, and hence, one of the twin conditions precedent to revise an order is missing. Resultantly, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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