TMI Blog2017 (11) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not the Department’s case that no information regarding the various issues as enumerated by the Ld. Pr. CIT was called for by the AO. That relevant details and documents were furnished by the assessee during the assessment proceedings is evident from the documents on record. Hence, no inference can be drawn that the AO has not examined the issues although he has not expressed it in as many terms as may be considered appropriate by his superior authority and even if the same is found to be inadequate the same cannot be a ground for revision. As in the case of Infosys Technologies Vs. JCIT (Asst) [2005 (6) TMI 211 - ITAT BANGALORE-B] the Bangalore Bench of the ITAT held that where the A.O has examined and considered and issue, though not mentioned in the assessment order, it cannot be said that the order passed was erroneous. Thus revision order dismissed - Decided in favour of assessee. - ITA No.:- 1068/Del /2017 - - - Dated:- 16-11-2017 - SHRI B.P. JAIN, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER For The Assessee : Shri Anil Jain, Advocate For The Department : Smt. Aparna Karan, CIT(DR) ORDER PER SUDHANSHU SRIVASTAVA, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentative submitted that as far as the objection of the Ld. PR.CIT regarding verification and confirmation of sundry debtors and creditors was concerned, the A.O. had raised the query regarding the same in notice issued u/s 142 (1) of the Act along with the questionnaire and query No. 6 of the said questionnaire contained the query. It was submitted that the assessee has duly responded to the query and the relevant copies of the various sundry creditors and debtors filed before the A.O. and the copies of the same were now placed in the paper book. Our attention was drawn to the relevant pages in the paper book. It was submitted that, thus, it was not a case where no inquiry has been made by the A.O. in this regard. 3.1 On the second objection of the Ld. Pr. CIT regarding low rate of net profit, it was submitted that the A.O. has raised the query on this issue on the order sheet itself during the course of scrutiny proceedings. A copy of the order sheet was placed before us to substantiate the submission. The Ld. AR also submitted that this query was duly replied to vide submission of the assessee before the A.O. on 10.11.2014 and our attention was drawn to a copy of the same n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer makes detailed discussion on those issues in the assessment order. On the facts of the case before us, it is evident from the records that the Assessing Officer had required the assessee to furnish details covered under the three heads in terms of notice issued u/s 142(1) of the Act. The assessee had furnished these details and the same are on record. These details are also the subject matter of notice issued u/s 263 by the Ld. Pr. CIT and, therefore, it is evident that on all the issues involved in the order of the Ld. Pr. CIT, the Assessing Officer had made some kind of inquiry to which the assessee had duly responded. Therefore, the view of the Ld. Pr. CIT that inquiry has not been made by the Assessing Officer is not correct and it is not the case of lack of inquiry as has been alleged by the Ld. Pr. CIT. 5.1 In the case of CIT vs. Sunbeam Auto Ltd. reported in 332 ITR 167 (Delhi), the Hon ble Delhi High Court has held as under:- We have considered the rival submissions of the counsel on the other side and have gone through the records. The first issue that arises for our consideration is about the exercise of power by the Commissioner of Income-tax under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him will be illegal and without jurisdiction. The Commissioner cannot initiate proceedings with a view to starting fishing and roving enquiries in matters or orders which are already concluded. Such action will be against the wellaccepted policy of law that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity (See Parashuram Pottery Works Co. Ltd. v. ITO [1977] 106 ITR 1 (SC) at page 10) . . . From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an Income-tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately. This section does not visualise a case of substitution of the judgment of the Commissioner for that of the Incometax Officer, who passed the order unless the decision is held to be erroneous. Cases may be visua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llery (India) Ltd. reported in 372 ITR 303 (Bombay) has held that if an inquiry is raised during the assessment proceedings and responded to by the assessee, the mere fact that it has not dealt with it in the assessment order would not lead to a conclusion that no mind had been applied to it. 5.4 The Hon ble Bombay High Court in Gabriel India Ltd. reported in 203 ITR 108 (Bombay) has held that the power of suo moto revision cannot be exercised by the Commissioner if, only based on the examination of records, he considers that any order passed by the Assessing Officer is erroneous in so far as it is prejudicial to the interest of the revenue. The Hon ble High Court held that power u/s 263 is not an arbitrary or unchartered power and can be exercised only on the fulfilment of the requirement laid down in section 263(1) of the Act. The Hon ble Bombay High Court further held that the conclusion of the Commissioner must be based on material on record and proceedings called for by him and if there are no materials on record on the basis of which it could be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidering all facts and information cannot be revised. Where the assessee had furnished the requisite information and the Assessing Officer had completed the assessment after considering the facts but the commissioner revised the assessment order on the ground that the Assessing Officer had not made proper enquiries, the Tribunal was held to be justified in reversing the order of the commissioner and restoring that of the assessing officer. Commissioner cannot re-examine accounts and substitute his judgment for that of the Assessing Officer. An order cannot be termed as erroneous unless it is not in accordance with law. If assessing officer makes assessment in accordance with law, the same cannot be branded as erroneous by the commissioner simply because, according to him, the order should have been written more elaborately. This section does not visualize a case of substitution of the judgment of the commissioner for that of the Assessing Officer unless the decision is held to be erroneous. Cases may be visualized where the Assessing Officer examines the accounts, makes enquires, applies his mind to the facts and circumstances of the case and determines the income either by making ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
