TMI Blog2016 (2) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... f the documentary evidences qua the observations of the Commissioner show that there is no failure on the part of the A.O to examine the impugned transactions and, therefore, in our considered opinion, there is no error in the assessment order which can be said to be pre-judicial to the interest of revenue. The AO has taken a view which may be different from the view of the Ld. Commissioner and assuming that the view taken by the AO is a loss to the Revenue but the Hon'ble Supreme Court in Malabar Industrial Co. Ltd. (2000 (2) TMI 10 - SUPREME Court ) has held that " every loss of revenue as a consequence of an order of the AO cannot be treated as prejudicial to the interest of the Revenue," for e.g. when an Income Tax Officer adopted on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of ₹ 1, 49,45,664/- and then debits of interest, brokerage, TDS and commission totaling to ₹ 7,37,493/- and accepted the capital gain of ₹ 3,16,843/-, without making any inquiry to verify the allowability of the claim of assessee. According to the Commissioner, the assessee s claim on account of capital gains has been accepted without proper enquiry resulting into underassessment of capital gains. The ld. CIT(A) concluded in his show cause notice by observing that the order dated 18.07.2012 passed by the ITO Ward-4(3), Ahmedabad is erroneous in so far as it is pre-judicial to the interest of revenue. In support of the same, the ld. Commissioner drew support from the decision of the Hon ble Supreme Court in the case of Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o:- A bare reading of section. 263 of the Income-tax Act, 1961, makes it clear that the prerequisite for the exercise of jurisdiction by the Commissioner suo motu under ii, is that the order of the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent-if the order of the Income-tax Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous hut is prejudicial to the Revenue- recourse cannot be had to section 263(1) of the Act. The provision cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 10. Thus, it can be seen that specific queries were replied specifically. 11. Again on 09.07.2012, the assessee furnished breakup of investment and copy of fresh computation. We also find that the copies of breakup of ₹ 1,49,45,664/- furnished during the course of the assessment proceedings are exhibited at Page Nos. 70 71 of the paper book. The details of payment of brokerage commission and interest are exhibited at Page Nos. 72 73 of the paper book. The computation of short term capital gain is exhibited at Page No. 75 of the paper book and all these documents were filed during the course of the assessment proceedings which have been examined by the A.O before completing the assessment. 12. A perusal of the afore-st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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