TMI Blog2016 (4) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... in writing or at least discernible from the order of the learned CIT. But, even this explanation would be controlled by the primary section of 263(1) which demands the “making or causing to be made such enquiry as he deems necessary”, before he passes the order u/s 263. In the present case as the said enquiry has not been made by the Commissioner not has it been caused to be made by the learned CIT either before the intimation or after the intimation but more specifically its absence has been recorded by the learned Commissioner before passing his order u/s 263 of the Act, we are of the view that the order passed u/s 263 of the Act by the learned CIT is unsustainable - Decided in favour of assessee. - I.T.A.No.524/Jodh/2014 - - - Dated:- 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T has held in page 3 of his order in Para 8 since all these enquiries have not been carried out by the A O in the course of assessment proceedings and, therefore, at this stage, submissions made by the assessee in the course of the proceedings u/s 263 of the Act without verification by the A O cannot be accepted. Further, the learned CIT referred to various case laws and had set aside the assessment order passed u/s 143 (3) of the Act on 31-01-2013 on the said two issues and restored back to the file of the A O for examination/enquiry on the lines mentioned in the order. It was a submission that all enquiries had been done and no further enquiry was left to be done and the learned CIT has not pointed out any specific error which calls for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary, pass such order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. The provisions of Section 263(1) of the Act provide the following actions:- (1) Call for and examine the records of any proceedings under this Act. (2) If he considers that any order passed therein by the AO is erroneous in so far as it is prejudicial to the interest of the Revenue it requires a specific finding by him as to what is the error in the order passed by the AO which he deems to be erroneous in so far as it is prejudicial to the interest of the Revenue. (3) After this, he may give opportunity to the assessee of being heard. Here, it must be appreciated that there was no necessity that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry/inquiry is the foundation and it must be available to show how the order of the AO is erroneous and prejudicial to the interest of the Revenue. Further, when issues have been examined by the AO then the learned CIT cannot use his powers u/s 263 of the Act to reexamine the matter. This view is supported by the decision of the Hon'ble Bombay High Court in the case of Gabriel India Ltd. 203 ITR 108 (Bom). 6. In the present case, though the show-cause notice was issued to the assessee and though the assessee had filed multiple replies, nothing in the order shows nor has the Revenue been able to point out the further enquiry, the learned CIT has made or has caused to be made before he passes the order u/s 263 of the Act. In fact, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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