TMI Blog2012 (12) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... ategorical finding is given about what is wrong in the order, the matter cannot be set aside to file of the Assessing Officer for fresh examination. - Decided in favor of assessee. - IT Appeal No. 570 (Kol.) of 2012 - - - Dated:- 19-10-2012 - PRAMOD KUMAR AND MAHAVIR SINGH, JJ. Anup Sinha for the Appellant. S.C. Baberia for the Respondent. ORDER Pramod Kumar, Accountant Member - By way of this appeal, the assessee-appellant has challenged correctness of learned Commissioner's order dated 6th March, 2012, passed under section 263 r.w.s. 143(3) of the Income Tax Act, 1961, for the assessment year 2007-08 on the following grounds :- 1. That on the facts and in the circumstances of the case and in law, the Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment order passed by the AO under the provisions of section 143(3) of the Act without stating any reason as to why the order passed by the AO is erroneous as well as prejudicial to the interest of revenue. 5. That on the facts and in the circumstances of the case and in law, the Ld. CIT has erred in passing the order under the provisions of section 263 of the Act for the assessment year 2007-08, thereby setting aside the order passed by the AO under the provisions of section 143(3) of the Act on the alleged ground that the said order was erroneous as well as prejudicial to the interest of revenue when the order passed by the AO was neither erroneous nor prejudicial to the interest of revenue. 6. That on the facts and in the circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equested to appear before me either personally or through an authorized representative in this regard on 21.02.2012 at 2:00 p.m. Sd/- [UJJWAL KUMAR] Commissioner of Income Tax, Kol-II, Kolkata". 3. It appears that the assessee attended to the proceedings on the said date and demanded to know the reasons on the basis of which assessment order for assessment year 2007-08 was considered erroneous and prejudicial to the interest of the revenue. As to what transpired at the said hearing, it may be useful to refer to the following extracts from written submissions filed by the assessee duly acknowledged by the learned Commissioner as also by the learned Assessing Officer :- "We write with reference to notice no. CIT-IIfKol/u/s263/C-12/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the reply to the office of the Assessing Officer as the proposal for revision has been recommended from the office of the Assessing Officer. During the course of the discussion, the Assessing Officer had stated that a suitable reply was given to the query raised by the revenue audit party and he had requested the revenue audit department to drop the query raised by them. Since, the revenue audit party was not convinced by the reply given, the proposal for revision was sent to CIT's office". 4. It is in this backdrop that the learned Commissioner has passed the impugned revision order, which is reproduced below :- "From the accounts of the company it was noticed that the assessee sold two buildings at a total of Rs.9,35,00,000/-. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and hears the assessee on the same, it is not open to him to exercise his revision powers under section 263 of the Act. Undoubtedly, in the impugned revision order, learned Commissioner does mention about a few points, ostensibly borrowed from revenue audit objections, on the basis of which revision proceedings were initiated, but it was not even the Commissioner's case that he had any opinion of his own, beyond this borrowed opinion, to even consider the assessment order as erroneous and prejudicial to the interest of the revenue. Clearly, therefore, the conditions precedent, under section 263 were not satisfied, for initiating revision proceedings were not satisfied. We have also noticed that in the operative portion of his order, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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