TMI Blog2016 (3) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... cording, non-recording, under recording of entries etc. are all inter-related and the Assessing Officer as well as CIT (Appeals) have already applied their mind to the same, how can the wrong recording or under recording can be considered an issue independent of non-recording, we do not understand. Otherwise also, as we have held elsewhere in this order, there are other mechanisms under the Act to correct these kind of anomalies, if any. - Decided in favour of assessee. - ITA No.422 /Chd/2015 - - - Dated:- 15-3-2016 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER, AND MS. RANO JAIN, ACCOUNTANT MEMBER For The Appellant : Shri Sudhir Sehgal For The Respondent : Shri Sushil Kumar, CIT DR ORDER PER RANO JAIN, A.M. : This appeal filed by the assessee is directed against the order of learned Commissioner of Income Tax (Central), Ludhiana dated 16.03.2015, passed under section 263 of the Income Tax Act, 1961 (in short the Act ). 2. Briefly, the facts of the case are that the assessee filed return declaring income of ₹ 59,55,040/- as on 9.8.2012. The assessment was completed under section 153A as on 25.3.2013 making assessment at an income of ₹ 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x details) Rs.2,51,99,926/- Total tax : ₹ 2,76,814/- Ann. II (Page 3) 3. Details of date-wise unaccounted purchase Rs.21,83,083/- Ann. Ill 4. Thekdar (Debit Amount not entered in assessment order). Rs.28,19,608/- Ann. IV 5. Details of purchase Birdi - Delux (not entered in assessment order) Rs.14,00,480/- Ann. V 6. Details of entries of Lime stone (Debit amount not entered in assessment order) Rs.66,081/- Ann. VI 4. It is also relevant to state here that while allowing set off of profits on unaccounted sales recorded in this ledger from the peak investment of ₹ 1,25,54,7827-, A.O. has considered the profit element even on the sales made after the date on which the peak investment has been considered by the A.O. which in my considered opinion is not proper. In other words, profit element on the sales m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. 4. After considering these submissions of the assessee, the learned Commissioner of Income Tax held that the contention of the assessee that these entries have been recorded in the books of account, have been checked by the Assessing Officer is not evident. Further, he held that there are admittedly certain arithmetical errors in noting down of figures and also working out of peak. Further, the learned Commissioner of Income Tax held that on the basis of a table reproduced in his order at page 5, that these amounts are not recorded in the books of the assessee and the assessee s contention that these are covered in the surrender made by it cannot be accepted. With regard to assessee s submission that Assessing Officer s order having merged with the order of the CIT (Appeals), the jurisdiction under section 263 of the Act is not proper, the learned Commissioner of Income Tax brushed aside the same and held that the issue is not of addition to be made on account of transaction already noted in the assessment order, the issue is non recording or wrong recording of certain transactions. Further, he also observed that the Assessing Officer s considering profit element even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii). Similarly, as regards certain entries in the seized document communicated as per Annexure-lll were partly recorded in the books of accounts, which were verified by the Assessing Officer and for which, the evidence was also furnished to the Worthy Pr.CiT (C) and for the others, it was a typographical error and which did not effect the amount of addition as made by the Assessing Officer. iv). As regards the entries as confronted by the Worthy Pr.CIT(C) by way of item No. iv, v, vii though, they had not been recorded in the books of account, but are duly covered in the offer of ₹ 50 lacs as made,while filling the return of income and which aspect has been examined by the Assessing Officer. v). That the finding of the Worthy Pr.CIT (C) that certain figures, which had been taken incorrectly while working out the addition would make the assessment erroneous and prejudicial to the interest of revenue is not correct finding, since even if, the assessment is erroneous but not prejudicial to the interest of revenue would not given the power to the Worthy Pr.CIT (C) to assume the jurisdiction u/s 263. 4. That the finding of the Worthy Pr.CIT (C) that entrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Commissioner of Income Tax has jurisdiction to rectify the same. 8. We have heard the learned representatives of both the parties, perused the findings of the authorities below and considered the material available on record. On perusal of the Paper Book filed by the assessee, that of the Assessing Officer s order as well as the submission of learned counsel for the assessee, there is no doubt to the fact that the same issue which the learned Commissioner of Income Tax is raking up in proceedings under section 263 of the Act, which was there before the Assessing Officer during the assessment proceedings. There is a diary containing certain transactions which as per the Assessing Officer were not recorded in the books of accounts, while the contention of the assessee is that these are recorded in the books of account. The Assessing Officer analyzed all the transactions after hearing the assessee, applied his mind on the same and arrived at a certain conclusion, while making additions. In fact, this was the sole issue before the Assessing Officer during the assessment proceedings. Therefore, certainly it is not a case of no inquiry. The Assessing Officer has made specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this context, we also observe that if all these corrections are done, whether the tax imposable on the assessee will increase or decrease, this fact also remains under the clouds. In such circumstances, how can the learned Commissioner of Income Tax infer that these mistakes lead to the order being prejudicial to the interest of the Revenue, it may result into being prejudicial to the interest of assessee also. Therefore, we see that the learned Commissioner of Income Tax s act of assuming jurisdiction under section 263 of the Act is not as per law. 9. The other aspect raised by the assessee is that the order of the Assessing Officer having merged with the order of the CIT (Appeals), the learned Commissioner of Income Tax does not have jurisdiction to revise the same under section 263 of the Act. There is no dispute to the fact that the proceedings under section 263 of the Act have been initiated after the order of the CIT (Appeals), where partial relief was given to the assessee and at present both the assessee as well as Department are in appeal before the I.T.A.T. It is a trite law by now that the issues which are adjudicated by the CIT (Appeals), the order of the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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