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TMI Blog2013 (10) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the order passed by the tribunal or the order under Section 263 of the Income Tax Act, 1961 ('Act' for short) passed by the Commissioner for assessment year 2006-07. Figure of dividend income mentioned in the grounds of appeal is also incorrect and not Rs.28,20,145/- but Rs.24,12,482/-. We do not know from where and how the Revenue has calculated that the tax effect as Rs.1,55,93,845/-. 2A. Apart from the above defects, we feel that the appeal on merits is liable to be dismissed in view of the decision of this Court in CIT Vs. Sunbeam Auto Ltd. [2010] 189 Taxman 436 (Del) as it is a case where inquiries were made by the Assessing Officer and thereafter the assessee had written a letter and offered Rs.94,47,712/- as a disallowance unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrender of the assessee, the ratio of the decision in Sunbeam Auto Ltd. (supra) is applicable. Assessment order does not become erroneous because the Assessing Officer after verification accepts the claim/disallowance. It will be erroneous if the Commissioner holds that the finding recorded by the Assessing Officer is incorrect or contrary to law. Without a firm finding, the Commissioner cannot set aside the assessment for fresh determination. The said decision was followed and explained in Income-tax Officer v DG Housing Projects Ltd. (2012) 343 ITR 329 (Del.) wherein it has been held as under:- "Thus, in cases of wrong opinion or finding on the merits, the Commissioner of Income-tax has to come to the conclusion and himself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In such matters, to remand the matter/issue to the Assessing Officer would imply and mean the Commissioner of Income-tax has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question. This distinction must be kept in mind by the Commissioner of Income tax while exercising jurisdiction under section 263 of the Act and in the absence of the finding that the order is erroneous and prejudicial to the interests of the Revenue, exercise of jurisdiction under the said section is not sustainable. In most cases of alleged ''inadequate investigation'', it will be difficult to hold that the order of the Assessing Officer, who had conducted enquiries and had acted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer is erroneous." 4. Learned counsel for the appellant-Revenue has relied upon the order dated 19th December, 2011 passed in ITA 1074/2011 in the case of the respondent. In the said case there were two issues. Dividend income of Rs.28,20,145/- was exempt from tax but no disallowance had been made under Section 14A. In the present case, we notice that disallowance has been made under Section 14A and the question was whether a higher disallowance of more than Rs.94 lakhs would have been made and the Commissioner has not given or formed any opinion on whether or not the said disallowance was satisfactory or not. Commissioner was not sure and certain, though the Assessing Officer had applied his mind and accepted the offer m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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