TMI Blog2017 (2) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... en made to reduce the income by booking fictitious loss. The Commissioner of Income-tax could not have recorded any definite finding in respect of a matter which he intended to refer to the Assessing Officer for further investigation. After recording a final opinion that the loss was in fact fictitious there would be no point in remanding the matter to the Assessing Officer. There can be no doubt that merely on the basis of presumption or surmise or suspicion, an order under section 263 cannot be passed. The learned Tribunal failed to appreciate that in this case the inference drawn by the Commissioner of Income-tax was not based either on presumptions or surmises or suspicion. It is true that the assessee has no hand nor has any say wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely ignoring the facts that the Assessing Officer, in original assessment order dated May 11, 2009 passed under section 143(3) of the Act, erroneously allowed the loss of ₹ 3,17,02,725 from purchase and sale of cotton knitted fabric without making any enquiry whatsoever, though the assessee was not in the said business of purchase and sale of cotton knitted fabric in earlier year, which is prejudicial to the interests of the Revenue and its purported findings in this behalf are arbitrary, unreasonable and perverse ? 2. The assessee filed the return showing a total income of ₹ 5,44,480. The assessee had shown loss of a sum of ₹ 3,17,02,725 allegedly incurred in purchase and sale of cotton knitted fabric. The aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the record ; and (e) Such details were not also called for. 4. These facts have neither been disputed before us by the learned counsel appearing for the assessee nor were these facts contested before the learned Tribunal. There is a finding recorded by the Commissioner of Income-tax that the assessment was also made hurriedly as is apparent from the records . This finding of the Commissioner of Income-tax has not been commented upon or reversed by the learned Tribunal. The learned Tribunal proceeded to set aside the order passed by the Commissioner of Income-tax for the following reasons : (a) All that is being said is that the assessee 'very likely' has tried to reduce its income by booking fictitious loss and that non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade to reduce the income by booking fictitious loss. The Commissioner of Income-tax could not have recorded any definite finding in respect of a matter which he intended to refer to the Assessing Officer for further investigation. After recording a final opinion that the loss was in fact fictitious there would be no point in remanding the matter to the Assessing Officer. There can be no doubt that merely on the basis of presumption or surmise or suspicion, an order under section 263 cannot be passed. The learned Tribunal failed to appreciate that in this case the inference drawn by the Commissioner of Income-tax was not based either on presumptions or surmises or suspicion. 6. The learned Tribunal was also wrong in proceeding on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Collector of Customs v. Biswanath Mukherjee reported in [1974] CLJ 251, wherein the following views were taken : It is, however, equally well-settled that even in a writ petition under article 226, the court is entitled to interfere with the finding of the Tribunal on any question of fact which the Tribunal is competent to decide, if the court is satisfied that the finding of the Tribunal is perverse and the finding of the Tribunal is considered to be perverse, if- (a) The Tribunal has come to the finding on no evidence ; (b) The Tribunal has based the finding on materials not admissible and has excluded relevant materials. (c) The Tribunal has not applied its mind to all the relevant materials and has not considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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