TMI Blog2013 (12) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... non-application of mind because the learned CIT himself has directed the AO without pointing out any error prejudicial to the interests of the Revenue either to the assessee or to the AO – Decided in favour of assessee. - - - - - Dated:- 14-9-2012 - Order The order of the Bench was delivered by K. K. Gupta (Accountant Member).-This appeal is filed by the assessee against the order of the learned Commissioner of Income-tax assuming jurisdiction under section 263 of the Income-tax Act, 1961 for the assessment year 2007-08. The brief facts as have been brought on record are that the assessee, an individual conducting business of retail outlet of AC sheets, cement and M.S. rods, filed return of income of Rs. 3,32,520. The assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return, i.e., June 27, 2007 as required under law. Further, it was submitted that the assessment order under section 147 was subject matter of appeal before the Commissioner of Income-tax (Appeals) and the same has been disposed of vide order dated August 17, 2011 before the date of order under section 263. Therefore, the doctrine of merger will apply and no proceeding under section 263 will lie. Learned counsel for the assessee before us contended that the order passed by the learned Commissioner of Income-tax is against the principles of natural justice as no reasonable opportunity for compliance to the notice was given, only one date was fixed, which is alleged to be not complied. For this proposition he relied on the decision of the ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or mistake the assessment order cannot be set aside relying on the decision in the case of Addl. CIT v. J. K. D'costa [1982] 133 ITR 7 (Delhi). He further submitted that the failure of the Income-tax Officer to deal with a claim at the assessee in the assessment order may be an error but not an erroneous order by itself and not enough to give jurisdiction to the Commissioner of Income-tax under section 263, relying on the decision in the case of J. P. Srivastava and Sons (Kanpur) Ltd. v. CIT, U.P. [1978] 111 ITR 326 (All). He argued that the order of the learned Commissioner of Income-tax, Cuttack, under section 263 of the Income-tax Act, 1961 is illegal, unjustified and against the facts on record and therefore is liable to be quashed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Commissioner of Income-tax did not mention all objections as mentioned in his order when all relevant records had been produced before the Assessing Officer. In view of the above, learned counsel for the assessee submitted that the impugned order of the learned Commissioner of Income-tax may be quashed. The learned Departmental representative submitted that as the facts have been enumerated by learned counsel for the assessee itself as mentioned above, she fully supported the order of the learned Commissioner of Income-tax passed under section 263 as errors prejudicial to the interests of the Revenue have been pointed out by the learned Commissioner of Income-tax which require consideration by the Assessing Officer. We have he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due date of furnishing of return are whether it could be disallowed under the provisions of section 43B. We are unable to satisfy ourselves to the proposition of the learned Commissioner of Income-tax in his order in so far as he has not pointed out any error prejudicial to the interests of the Revenue for him to assume jurisdiction under section 263. Learned counsel for the assessee has rightly pointed out that the defect for assumption of jurisdiction in so far as all the materials were available to the Assessing Officer which in the audited financial statements were verified and the doubts in the mind of the learned Commissioner of Income-tax to issue show-cause notice after the issue having been deliberated upon by the learned Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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