TMI Blog2015 (2) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... in pursuant to order of CIT u/s 263 of the Act. Coming the factual matrix in the present case, from careful perusal of the impugned order we clearly observe that the CIT has stressed on the mismatch and discrepancy in the form No.10CCB and Form No. 3CD. Replying to the notice u/s 263 of the Act the assessee submitted auditors report pertaining to 2008-09 and asstt. year 2009-10 which make it clear that the discrepancy and mismatch arose due to typographical and clerical mistake as the assessee company claimed u/s chapter VI-A amounting to ₹ 14,17,940/- in asstt. year 2008-09 and this figure remained unchanged in the text auditor report and report for the asstt. year 2009-10 which is clear form annexure 5 and annexure 6 of the appeal CIT rejected our above explanation threshold without assigning any reason and the CIT wrongly hold that the assessment order was erroneous and prejudicial to the interest of revenue. We further hold that CIT was grossly erred and not justified in remitting the matter to the file of the AO for fresh consideration and adjudication as this is out of ambit of powers of CIT u/s 263 of the Act. Respectfully following the decision of Hon’ble Jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carefully perused relevant material placed on record. Ld. Counsel of the assessee submitted that the AO allowed deduction u/s 80IC of the Act and for the first time in AY 2006-07 and subsequently in AY 2007-08 and 2008-09, the same deduction was also allowed to the assessee. Ld. Counsel has drawn our attention towards assessment order dated 02.12.2011 and submitted that the assessment year under consideration in this appeal was the fourth assessment year in continuation wherein the AO noticed that the assessee has claimed deduction for the first time in AY 2006-07 and the AO followed the same stand of the revenue which was followed by his predecessor during earlier three consecutive orders pertaining to asstt. year 2006-07, 2007-08 and 2008-09. 5. Ld. Counsel for the assessee drawn our attention towards impugned order and submitted that the CIT has merely noted that there was a mismatch in the figure of deduction as claimed in form No. 10CCB (which was claimed in the return of income) and form No. 3CD and held that the AO had not applied his mind about this discrepancy and nor it is the case of the assessee that the alleged revised report was submitted before the AO during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at ₹ 14,17,940/- just a clerical mistake as the same amount was claimed in asstt. year 2008-09 and this figure remained unchanged in the text audit report of asstt. year 2009-10. The assessee also submitted copies of the audit report for asstt. year 2008-09 as well as copies of the auditor report dated 12.12.2009 for asstt. year 2008-09. From the asstt. order we observe that the assessment was completed on 21.2.2011 and we also observe that the explanation in clarification submitted by the assessee pertaining to the discrepancy and mismatch as alleged by the CIT in the impugned order is tenable and acceptable. Hence we reach to a conclusion that the CIT ignored the explanation of the assessee in the reply vide dated 12.11.2013 and rejected the same without any justified and cogent reasons. 8. At this juncture we find appropriate to respectfully follow the decision of Hon ble Jurisdictional High Court of Delhi in the case of ITO vs. DG Housing Projects Ltd. (supra) wherein it was held that the matter cannot be remitted to the file of the AI for fresh decision by the CIT without recording a finding that the order of the AO is erroneous and prejudicial to the interest of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nquiry. The order of the Assessing Officer may be or may not be wrong, CIT cannot direct reconsideration on this ground but only when the order is erroneous. An order of remit cannot be passed by the CIT to ask the Assessing Officer to decide whether the order was erroneous. This is not permissible. An order is not erroneous, unless the CIT hold and records reasons why it is erroneous. An order will not become erroneous because on remit, the Assessing Officer may decide that the order is erroneous. Therefore CIT must after recording reasons hold that the order is erroneous. The jurisdictional precondition stipulated is that the CIT must come to the conclusion that the order is erroneous and is unsustainable in law. We may notice that the material which the CIT can rely includes not only the record as it stands at the time when the order in question was passed by the Assessing Officer but also the record as it stands as the time of examination by the CIT [see CIT vs. Shree Manjunathesware Packing Products, 231 ITR 53 (SC)]. Nothing bars/prohibits the CIT from collecting and relying upon new/additional material/evidence to show and state that the order of the Assessing Officer is er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 263 of the Act the assessee submitted auditors report pertaining to 2008-09 and asstt. year 2009-10 which make it clear that the discrepancy and mismatch arose due to typographical and clerical mistake as the assessee company claimed u/s chapter VI-A amounting to ₹ 14,17,940/- in asstt. year 2008-09 and this figure remained unchanged in the text auditor report and report for the asstt. year 2009-10 which is clear form annexure 5 and annexure 6 of the appeal folder pages 32 to 45 and CIT rejected our above explanation threshold without assigning any reason and the CIT wrongly hold that the assessment order was erroneous and prejudicial to the interest of revenue. We further hold that CIT was grossly erred and not justified in remitting the matter to the file of the AO for fresh consideration and adjudication as this is out of ambit of powers of CIT u/s 263 of the Act. 11. Respectfully following the decision of Hon ble Jurisdictional High Court of Delhi in the case of ITO vs. DG Housing Project Ltd. (supra) we reach to the conclusion that the order passed u/s 263 of the Act is bad on facts and in law therefore the same deserve to be quashed and we quash the same. 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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