TMI Blog2012 (4) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... s noticed by the Commissioner in the order of the AO and thus it could not be held that such an order was beyond the revisional jurisdiction of the Commissioner - allow appeal, set aside the impugned order passed by the learned Single Judge and dismiss the writ petition filed by the respondent assessee. - Writ Appeal No.309 of 2008. - - - Dated:- 13-2-2012 - MR. A. K. GOEL, MR. JUSTICE C. R. SARMA, JJ. For Appellant : Mr. Sanjoy Sarma, SC, IT Deptt. JUDGMENT AND ORDER (Oral) (A. K. Goel, CJ.) 1. This appeal has been preferred by the Revenue against order of learned Single Judge quashing notice issued under Section 263 of the Income Tax Act, 1961 (the Act), followed by order dated 28.03.2000 on the ground that the error sought to be corrected by exercise of the suo motu revisional jurisdiction was not an error of jurisdiction and that the Commissioner had no jurisdiction to interfere with the order of assessment in the facts and circumstances of the present case. 2. The assessee was assessed to income tax in respect of the assessment year 1995-96 and in the course of the said assessment, assessee s claim in respect of deductions on account of payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the assessment order passed u/s 143(3) for the assessment year 1995-96 erroneous in so far as it is prejudicial to the interest of the revenue. 3. It is clear from the above that the payment of bonus had been allowed as a deduction for the assessment year 1994-95 and the same could not be again claimed for the year 1995-96. The assessee could not show that on facts the error noticed by the Commissioner was not there. However, instead of filing an appeal against the order of the Commissioner, the assessee approached this Court under Article 226 of the Constitution alleging that there was no justification for invoking jurisdiction under Section 263 of the Act as the said jurisdiction could be exercised only if there was a jurisdictional error as held by a Division Bench of this Court in Rajendra Singh vs. State of Tripura, (1990) 79 STC 10 and other similar judgments. It was further submitted that the said power could not be exercised to interfere when power could be exercised for rectification under Section 154 or re-assessment under Section 147 of the Act. It was also submitted that the said power was not intended to be exercised to substitute the opinion of the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order passed beyond jurisdiction or wholly contrary to jurisdiction. 30. From what have been discussed above, it becomes abundantly clear that a revisional authority cannot entrench upon the powers, which are expressly reserved by the Act in favour of the other authorities. The Act, nowhere, authorizes the revisional authority to intrude into the inquiries properly made by the assessing authority and to reopen an already completed assessment. 32. From the facts as discussed above, it is clear that in the case at hand, the Commissioner has initiated the suo moto revisional proceeding, under Section 263, entirely based on the objection raised by the internal audit authority. There is nothing either in the impugned notice, dated 24.01.2000, or in the impugned order, dated 28.03.2000, to show that the Commissioner has applied his independent mind and has come to the conclusion that the assessment made needs to be revised. Moreover, the suo moto revisional jurisdiction cannot be invoked, under Section 263, for the purpose of making roving enquiry by directing an authority, as has been done in the present case, to, again, verify an issue, which was verified by the Assessing Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner of Income Tax to invoke powers under Section 263 of the Act. 6. We have heard Mr. Sanjoy Sarma, learned Standing Counsel for the Revenue. None appears for the assessee though the service is complete as noticed in order dated 25.11.2010. 7. Learned counsel for the Revenue challenged the view taken by learned Single Judge by submitting that there was clear and patent error in the order of the Assessing Officer in not taking into account the fact that the assessee had already availed of the same deduction in the earlier assessment year which was not disputed by the assessee. In these circumstances, the order of the Assessing Officer could certainly be held to be erroneous. The expression erroneous did not include mere error of jurisdiction but also covered a case of wrong assumption of facts or incorrect application of law or absence of application of mind. He submits that law laid down in Rajendra Singh (supra) has been explained in a recent Full Bench judgment of this Court dated 08.02.2012 in ITA 2 of 2008 (Commissioner of Income Tax, Guwahati vs. Jawahar Bhattacharjee). He also submitted that mere fact that the error could be rectified or resort could be take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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