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M/s O.P. Enterprises Versus Commissioner of Income Tax, Central Circle-2, Mumbai

2016 (5) TMI 963 - ITAT MUMBAI

Revision u/s 263 - Held that:- In the assessment order, merely, it has been mentioned that the details/explanation called for have been examined and placed on record and further that the receipt on account of sale of wind power, sale of flats from projects and stock of unsold projects. Next issue discussed in the assessment order is with respect to disallowance of depreciation on motor car and no discussion has been made with respect to section 36(1)(iii) along with explanation 8 to section 43(1 .....

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in the light of applicability of section 68 of the Act. Taking fresh loan by the assessee was not even contradicted by the assessee. In view of this factual matrix, we agree with the finding of the ld. Commissioner that the assessment order is erroneous as well as prejudicial to the interest of Revenue. The Assessing Officer neither conducted proper enquiries nor applied his mind on the issues, thus, the order is erroneous and prejudicial to the interest of the Revenue - Decided against assesse .....

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ent advanced by Shri Naresh Kumar, ld. counsel for the assessee, is identical to the ground raised by contending that assessment was completed u/s 143(3) of the Act on 28/01/2014, considering the arguments of the assessee, therefore, invoking the revisional jurisdiction is not justified. It was contended that assessment was framed after due application of mind by the Assessing Officer, therefore, the assessment order is neither erroneous nor prejudicial to the interest of the Revenue. It was ple .....

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r is not legally valid. Reliance was placed upon the decision from Hon ble Guwahati High Court in 290 ITR 395 (Gaut.). Plea was also raised that it may be a case of inadequate enquiry but not that no enquiry was made. 2.1. On the other hand, Shri M. Dayasagar, ld. DR, strongly defended the impugned order by contending that the ld. Commissioner justifiably invoked revisional jurisdiction u/s 263 of the Act, more specifically, when the Assessing Officer failed to examine the issues under hand for .....

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val submissions and perused the material available on record. We have also perused the assessment order, which is a subject matter of revisional jurisdiction u/s 263 and the impugned order passed by the ld. Commissioner. Admittedly, an incorrect assumption of fact or an incorrect application of law would satisfy the requirement of order being erroneous u/s. 263. The phrase prejudicial to the interest of the Revenue u/s. 263, has to be read in conjunction with the expression erroneous order by th .....

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sional jurisdiction u/s. 263 the assessment order must contain grievous error which is subversive of the administration of Revenue. Further, exact error must be disclosed by the Commissioner as was held in CIT vs. G.K. Kabra (211 ITR 336)(AP). Section 263 of the Act enables the Commissioner to have a look at the orders or proceedings of the lower authority to effect correction, if so needed, particularly, if the order is erroneous and prejudicial to the interest of the Revenue. The object of the .....

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) 341 ITR 166 (Del.), iv. CIT vs Triveni Engineering Works Ltd. (2011) 336 ITR 366 (Del.), v. R.A. Himmatsinghka & Company vs CIT (2012) 340 ITR 253 (Pat.) vi. CIT vs Rajeev Agnihotri (2011) 332 ITR 608 (P & H), vii. CIT vs DLF Ltd. (2013) 350 ITR 555 (Del.), viii. CIT vs Gabreal India Ltd. (1993) 203 ITR 108, 114 (Bom.), ix. Malabar Industrial Company Ltd. vs CIT (2000) 243 ITR 83 (SC), x. Nabha Investments Pvt. ltd. vs UOI (2000) 246 ITR 41 (Del.), xi. Bismillah Trading Company Ltd. vs .....

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n record and further that the receipt on account of sale of wind power, sale of flats from projects and stock of unsold projects. Next issue discussed in the assessment order is with respect to disallowance of depreciation on motor car and no discussion has been made with respect to section 36(1)(iii) along with explanation 8 to section 43(1), while allowing the interest on borrowing. Likewise, no discussion has been made with respect to investment of ₹ 5.31 crores in UTI mutual funds, whe .....

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matrix, we agree with the finding of the ld. Commissioner that the assessment order is erroneous as well as prejudicial to the interest of Revenue. The Assessing Officer neither conducted proper enquiries nor applied his mind on the issues, thus, the order is erroneous and prejudicial to the interest of the Revenue. Now come to the impugned order, which clearly indicates that even in the impugned order, the issues were set aside to the file of the Assessing Officer to decide afresh and to make .....

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