TMI Blog2013 (12) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... llaiya, AM,JJ. For the Appellant : Shri Vijay Mehta For the Respondent : Shri Girija Dayal ORDER Per N. K. Billaiya, AM:- The assessee has preferred this appeal against the order of the Ld. CIT-4, Mumbai dt.15.3.2012 passed u/s. 263 of the Act pertaining to A.Y. 2007-08. 2. With this appeal, the assessee has challenged the correctness of the order of the CIT u/s. 263 on the ground that the assessment order passed by the Assessing Officer is neither erroneous nor prejudicial to the interest of the Revenue. 3. Briefly stated the facts of the case are that the assessment for the year under consideration was completed u/s. 143(3) of the Act on 24.12.2009 determining the total income at Rs. 17,13,72,510/-. The assessee was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med as rebate u/s. 88E. It was further explained that the provisions of Sec. 88E allows rebate to the income that is relatable to STT paid transaction after reducing the expenditure. Thereafter, the assessee explained the working of the income eligible for rebate u/s. 88E of the Act. 5.1. The assessee contended before the CIT that the assessment order is neither erroneous nor prejudicial to the interest of the Revenue inasmuch as the income has been computed at the correct amount. It was also pointed out that the impugned assessment order had been subject matter of the appeal before the Ld. CIT(A) and the ITAT and therefore the impugned assessment order is presently merged with the order of the Ld. CIT(A) even though the ground was withdr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate u/s. 88E, still the doctrine of merger applies to the case. Carrying further his proposition, the Ld. Counsel submitted that this is not a case where the AO has not made any enquiry. Therefore, the CIT erred in invoking provisions of Sec. 263 of the Act. It is the say of the Counsel that when AO has taken a possible view, the CIT cannot direct the AO to take a different view. 9. Per contra, the Ld. Departmental Representative supported the order of the CIT stating that allocation of expenditure at the rate of 40% cannot be a basis every year and CIT has rightly directed the AO to denovo the assessment as the assessment order was not only erroneous but prejudicial to the interest of the revenue. 11. We have heard the rival submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-requisite that the Commissioner must give reasons to justify the exercise of suo moto revisional powers by him to reopen a concluded assessment. In the present case, the order of the CIT is devoid of any plausible reason which would justify the order. The CIT has simply said that the apportionment requires more careful examination of the accounts of the assessee. It is not in dispute that the AO has allowed rebate after making proper enquiry which means that this is not a case of lack of enquiry. It is also not the case where it can be said that there was no application of mind before allowing the rebate in question. If there was any enquiry, even inadequate , that would not by itself give occasion to the Commissioner to pass order u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
