TMI Blog2005 (10) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, right in holding that, in the absence of any error and any prejudice to the interests of the Revenue having been shown by the Commissioner of Income-tax, he could not have assumed jurisdiction under section 263. In fact, the Commissioner of Income-tax has failed to point out any provision by which he could in exercise of powers under section 263 of the Act change the previous year. - - - - - Dated:- 20-10-2005 - Judge(s) : D. A. MEHTA., MS. H. N. DEVANI. JUDGMENT The judgment of the court was delivered by D.A. Mehta J.- The Income-tax Appellate Tribunal, Ahmedabad Bench "B", has referred the following question under section 256(1) of the Income-tax Act, 1961 ("the Act"), at the instance of the Commissioner of Income-tax: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-86 and, therefore, the assessment order dated January 4, 1988 for the assessment year 1985-86 was erroneous and prejudicial to the interests of the Revenue. He, therefore, set aside the assessment for the assessment year 1985-86 with a direction to pass a fresh assessment order so as to assess the income of a period of eighteen months from July 1, 1983, to December 31, 1984. The assessee carried the matter in appeal before the Tribunal. Vide order dated November 17, 1993, the Tribunal held that the order of the Commissioner under section 263 of the Act was not legally tenable and accordingly, it cancelled the said order. For this purpose, the Tribunal placed reliance on the provisions of section 3, with special reference to subsection ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar source of income or in respect of a business or profession newly set up, an assessee has once exercised the option under clause (b) or sub-clause (ii) of clause (d) or sub-clause (i) of clause (e) of sub-section (1) or has once been assessed, then, he shall not, in respect of that source, or, as the case may be, business or profession, be entitled to vary the meaning of the expression 'previous year' as then applicable to him, except with the consent of the Income-tax Officer and upon such conditions as the Income-tax Officer may think fit to impose." Sub-section (4) provides that, in the case of an assessee, who has once exercised the option, either under clause (b) or other clauses of sub-section (1) or has once been assessed in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly. The Commissioner of Income-tax has not brought any material on record to show as to what error had been committed by the Assessing Officer; and even if it is assumed that there was an error, as to how such error was prejudicial to the interests of the Revenue. In fact, none of the twin conditions are shown to have been, satisfied by the Commissioner of Income-tax while passing the impugned order under section 263 of the Act. The Tribunal was, therefore, right in holding that, in the absence of any error and any prejudice to the interests of the Revenue having been shown by the Commissioner of Income-tax, he could not have assumed jurisdiction under section 263 of the Act. In fact, the Commissioner of Income-tax has failed to point ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
