TMI Blog2005 (8) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... undation for holding that the assessment order is erroneous and prejudicial to interest in any matter merely on the specious ground that the Assessing Officer was required to make an enquiry, cannot be held to satisfy the test of necessary condition existing for invoking jurisdiction under section 263 of the Income-tax Act. The finding of the Tribunal that the Income-tax Officer had passed the assessment order after relevant enquiries and considering the aspects of the matter required by the Commissioner of Income-tax to be considered by him is a finding of fact and on the basis of which, the jurisdiction assumed by the Commissioner of Income-tax being non-existent must be held to be not sustainable. On the finding reached by the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons totalling Rs. 4,22,115, as per Schedule B to the audit report, genuineness of outstanding liability amounting to Rs. 14,16,348 in the names of various persons as per Schedule C and also after examining whether there is any acceptance or repayment of loan or deposit of Rs. 20,000 or more otherwise than by cheque/bank draft and then redetermine the income chargeable to tax. The order of the Commissioner of Income-tax, dated March 27, 1998, was set aside by the Tribunal by its judgment under appeal dated August 7, 1998. A perusal of the order passed by the Commissioner of Income-tax shows that he has not exercised his jurisdiction on finding or apprehending that the assessment was erroneous in the above aspects as such. On the contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, 1995, the Assessing Officer required the assessee to produce documents or material in relation to 10 different items, which included the details of capital contributed by partners, details of purchases made in excess of Rs. 20,000 with evidence, confirmation of unsecured loans, amongst other matters, which the Assessing Officer desired to enquire into. The assessee has produced the desired information by November 15, 1995. Thereafter, the case was adjourned to November 22, 1995 and December 1, 1995. On December 5, 1995, the Assessing Officer studied the sundry creditors, unsecured loans and desired to furnish affidavits of unsecured loans and details of interest paid and the case was adjourned to January 19, 1996. On January 19, 1996, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by him was erroneous. The High Court has also found that the assessment order was passed without application of mind. The High Court rightly held that the exercise of jurisdiction by the Commissioner of Income-tax under section 263(1) was justified. From the record of the proceedings, in the present case, no presumption can be drawn that the Assessing Officer had not applied his mind to the various aspects of the matter. In such circumstances, without even prima facie laying the foundation for holding that the assessment order is erroneous and prejudicial to interest in any matter merely on the specious ground that the Assessing Officer was required to make an enquiry, cannot be held to satisfy the test of necessary condition ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
