TMI Blog2016 (1) TMI 1306X X X X Extracts X X X X X X X X Extracts X X X X ..... RWA, VICE PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER For The Appellant : Shri Subhash Aggarwal For The Respondent : Shri Manoj Mishra, 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-I, Ludhiana dated 24.3.2014 for assessment year 2009-10. 2. The facts of the case are that assessment under section 143(3) of the Income Tax Act, 1961 (in short the Act ) was completed by the Assessing Officer, dated 21.12.2011 at an income of ₹ 1,07,20,293/-. Later on, the learned Commissioner of Income Tax I, Ludhiana calls for assessment records and examined the same. A show cause notice under section 263 of the Act was issued to the assessee as on 22.1.2014. The sum and substance of the said notice was that the learned Commissioner of Income Tax noted that a survey under section 133A of the Act was conducted at the business premises of the assessee as on 26.9.2008 and the assessee surrendered an amount of ₹ 80,50,000/- on account of excess claim. IN its return of income, the assessee has claimed deduction under section 80IB of the Act amounting to ₹ 39, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I are against the facts and bad in law. 2. That the Learned CIT has failed to point out how the order passed by the JCIT is erroneous in as much as prejudicial to the interest of the revenue when the same has been passed after due application of mind. 3. That the Learned CIT has placed reliance on judgments which are irrelevant for deciding the issue in proceedings u/s 263 of Income Tax Act. 4. That the claim u/s 80IB was allowed by the Learned AO on the basis of the material and facts on the record by due application of mind and there was no justification for CIT to set aside the assessment u/s 263 of the Income Tax Act. 5. That in any case the order of the CIT passed u/s 263 is against the law and facts and deserves to be quashed. 6. That the Appellant craves leave for permission to add, amend or alter any ground of appeal at the time of hearing. 6. Before us, the learned counsel for the assessee, first took us to various pages of the Paper Book filed by the assessee. Page 3 is the questionnaire issued by the Assessing Officer dated 19.1.2011 during the assessment proceedings, whereby at point No.3, a copy of report in support of claim of any e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee company on account of excess stock of knitted cloth manufactured and processed by the assessee found at the time of survey, therefore, the deduction under section 80IB of the Act was rightly allowed to the assessee. These papers were shown to us to emphasize that the Assessing Officer even after the assessment was completed, was quite sure of the fact that the surrender was on account of excess stock relating to business only. In view of all this, it was submitted that this is neither a case of no enquiry nor a case of divergent views. In view of the fact that the surrender was made on account of excess stock found during the course of survey, there cannot be a different opinion as to the allowability of deduction under section 80IB of the Act, on the same. Reliance was placed on the order of the I.T.A.T., Chandigarh Bench in the case of Miss Mridula Vs. ACIT in ITA No.305/Chd/2007, dated 31.3.2006, whereby in the similar circumstances deduction under section 80IB of the Act is allowed on the income surrendered during the course of assessment. 8. The learned D.R., while relying on the order of the learned Commissioner of Income Tax, submitted that the findings of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. As regards Commissioner of Income Tax s jurisdiction under section 263 of the Act, it is a trite law by now that for revision under section 263 of the Act, the assessment order has to be erroneous as well as prejudicial to the interest of the Revenue. Both the conditions are to be satisfied simultaneously. For an order to be erroneous, there may be two situations, one where no enquiry at all has been conducted by the Assessing Officer and the other whereby as per the Commissioner of Income Tax s yardsticks inadequate enquiries were conducted by the Assessing Officer. In the first situation, where no enquiry is conducted by the Assessing Officer on a significant issue, the order may be considered erroneous and if it leads to loss of revenue to the Department, the Commissioner of Income Tax may get jurisdiction to revise the same under section 263 of the Act. In the other situation, where no proper enquiry is conducted by the Assessing Officer and the Assessing Officer has taken a view permissible under the law, the Commissioner of Income Tax cannot sit over the judgment of the Assessing Officer as to the extent of enquiries to be conducted and order cannot be said to be erro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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