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TMI Blog2015 (7) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... or the assessment year, a survey operation u/s. 133A had been conducted on 22-12-2009 and the case was selected for scrutiny. In the scrutiny assessment completed, Assessing Officer (AO) disallowed various amounts thereby determined the total income at Rs. 11,63,000/-. This order of AO is subject matter of appeal before the Ld. CIT. In the mean time, Ld. CIT had an occasion to examine the assessment records. He noticed that assessee has claimed a TDS amount of Rs. 23,297/- and the corresponding income of Rs. 2,32,964/- was not offered to tax. He also noticed that assessee claimed depreciation of Rs. 5,492/- and the proof of using the assets for the purpose of business was not examined by the AO. He also noticed that, assessee has admitted p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed the interest income of Rs. 2,81,210/- separately either in the Income Tax Return or in the profit and loss account filed during the course of scrutiny proceedings. In fact, in a separate note on income, the assessee has clearly stated that in the activity of cheque discounting received commission of Rs. 12,01,742/- in the financial year 2009-10 and the same was shown as income in the profit & loss account. It shows that these details have not been called for in order to examine by the AO at the time of scrutiny proceedings and completed the assessment without examining whether the assessee has disclosed interest income or not. 6.1 The next issue is in respect of personal drawings. In the course of revision proceedings, the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Book placed on record and the replies submitted to CIT stated that assessee has shown gross commission income of Rs. 12,01,742/- which included the impugned interest income. It was submitted that as against the above commission, assessee claimed various expenditure of salaries and interest paid. AO in the scrutiny assessment disallowed the salaries and also an amount of Rs. 6,41,462/- u/s. 40(a)(ia). It was further submitted that the TDS claim was made in the return of income and the same is also figuring in the departmental data base and the AO has given credit as per 26AS. He also referred to the detailed submissions made before CIT, particularly to page 20 of the Paper Book, wherein it was submitted that assessee had commission amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounting year itself and also on the basis of the survey, the case was selected for scrutiny. The TDS made on behalf of assessee was itself reflected in 26AS of the department and the same amount was given credit. In view of this, the Ld. CIT's presumption that this amount of income covered by TDS was not offered to tax and assessee's concealed income cannot be accepted. With reference to the depreciation claimed of Rs. 5,698/- it was the contention that assessee purchased a scooter and the same was being used in the business. In the event the asset is not figuring in assessee's Balance sheet or accounts schedules, one can doubt the claim of depreciation. Assessee is doing small business of bill discounting and use of scooter by assessee in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue - recourse cannot be had to Sec.263 (1) of the Act. b) Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law. c) To invoke suo motu revisional powers to reopen a concluded assessment under Sec.263, the Commissioner must give reasons; that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be seen; that if there was an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Sec.263 merely because he has a different opinion in the matter; that it is only in cases of lack of inquiry that such a course of action would be open; that an assessment order made by the Income Tax Officer cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately; there must be some prima facie material on record to show that the tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a lesser tax than what was just, has been i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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