TMI Blog2012 (11) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... l nature. He simply asked the ITO to re-examine the matter that, in our opinion, is not permissible. Further inquiry and/or fresh determination can be directed by the Commissioner only after coming to the conclusion that the earlier finding of the ITO was erroneous and prejudicial to the interests of the revenue. Without doing so, he does not get the power to set aside the assessment. The revision has been done on an altogether different ground of deeming fiction u/s. 68 which was not even touched upon by the Commissioner at notice stage - Impugned revision order is set aside - The assessee gets the relief accordingly - In the result the appeal filed by the assessee is allowed. - I.T.A.No.1417/Kol./2011 - - - Dated:- 31-7-2012 - Shri P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sundry creditors. The accounting method was explained as follows : - As requested by you, we are making the following submissions to clarify the accounting entries and the manner of recording transactions in the books of accounts. Your assessee maintains books of accounts on the Mercantile System of Accounting, which is a mandatory requirement for keeping books of accounts under the provisions of the Companies Act and also in line with the Accounting Standards issued by the Institute of Chartered Accountants of India, read with section 211(3C) of the Companies Act, 1956. In the instant case, your assessee is engaged in the business of purchase and sale of paintings and other articles. When a painting is purchased, the following acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ury 93,000/ - 73,000/ - 20,000/- 4. Paresh Maity 1,26,70,000/- 26,00,000/ - 1,00,70,000/ - The submissions in respect to the purchase and closing balances in respect to the transactions with Ganesh Pyne, Mustak K. Choudhury and Paresh Maity have been looked into with books of accounts and they were found to be correct. In respect to the transactions with M.F. Husian it was submitted that the reflection of having paid cheque of Rs.1.3 cr. to him in the details and accounts submitted to the AO was a mistake as no payment was actually made it him. It was submitted that since no payment was made to Husian, the amount of Rs. 1.3 cr. payable to him was shown as a Sundry Creditor. It was accordingly submitted that there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchase from Husain, it was strangely sold to NKIDPL on 04-04-2007. Husain signed the instrument of purchase (sales for him) on 05-01-2008. It is therefore very strange that the purchase pr ice of Charulata was allegedly not paid to Husain despite the fact that the sales amount was received months earlier. It is also strange that no at tempt was made by the assessee to pay Husain the amount thereafter, i f indeed the amount had not been paid to him as stated by the assessee. As Husain is no more, the correctness of the statement made by the asses see cannot be confirmed. However, as Husain had signed the purchase debit note, there is reasonable ground to believe that he had received payment for the painting he had sold through other source ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered factual matrix of the case as also the applicable legal posit ion. 7. We find that , as held by Hon ble Bombay High Court in the case of CIT vs. - Gabriel India Ltd. (203 ITR 108), unless commission comes to a categorical finding that the stand of the Assessing Officer is erroneous, he can not remit the matter back to the file of the Assessing Officer for fresh adjudication. A reference may be made to the following observations by the Hon ble Bombay High Court in the case of CIT Vs Gabriel India Limited (203 ITR 108), wherein Their Lordships, inter alia, observed as follows :- . . in the instant case, the Commissioner himself, even after initiating proceedings for revision and hearing the assessee, could not say that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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