TMI Blog2018 (7) TMI 2110X X X X Extracts X X X X X X X X Extracts X X X X ..... cting to make addition in the hands of the assessee is uncalled for. No material has been placed by the Revenue to demonstrate that the view taken by the AO while passing the order u/s 143(3) r.w.s. 147 was unsustainable in law. In the present case, Ld.CIT was not justified in invoking the provisions of Sec.263 - set aside the order of Ld.CIT, whereby he has set aside the assessment order passed by the AO u/s 143(3) r.w.s. 147 - Thus, the grounds of the assessee are allowed. - ITA No.1684/PUN/2015 - - - Dated:- 20-7-2018 - MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM For the Assessee : Shri Pramod Shingte. For the Revenue : Shri S.B. Prasad, CIT. ORDER PER ANIL CHATURVEDI, AM : 1. This appeal filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dt.10.02.2014 and the total income was determined at ₹ 14,06,870/-. Thereafter, Ld.CIT called for the assessment records of the assessee. On examination of the assessment records, he was of the view that during the course of assessment proceedings, AO had failed to take full cognizance of the incriminating material relating to the assessee impounded from the premises of Vijay Construction, Nashik. He was of the view that in the absence of the necessary inquiries called for in the circumstances of the case, the assessment order passed by the AO was erroneous and prejudicial to the interest of Revenue. Accordingly, a show cause notice was issued to the assessee u/s 263 of the Act on 22.01.2015 and the assessee was asked to show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file the appeal. Thus, due to incorrect advice, assessee was under the bonafide belief that there was no need to file the appeal and therefore delay occurred in filing the present appeal. The assessee has therefore urged that in the interests of justice the delay be condoned and the appeal be admitted. On the issue of condonation of delay, the Ld.D.R. objected to the condonation petition and submitted that assessee has not placed any material on record to substantiate about the incorrect advice and therefore he submitted that the prayer of the assessee to condone the delay be rejected. 4. On the issue of condonation of delay, we have heard the rival submissions and perused the material on record. After considering the reasons stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Constructions, entries of alleged advances of ₹ 1.05 crore had remained to be added in assessee s hand and thus income to the extent of ₹ 18,51,784/- had escaped from assessment. During the course of hearing it was explained that documents seized contained two parts, on one part there were entries recorded under the name of assessee involving advance of ₹ 1.05 crore and on the other part there were some interest like entries. AO had reopened the case only for the part of the paper wherein the interest like entries were reported and since he was already satisfied with the entry of ₹ 1.05 crores (which were on the first part of the paper), no reopening was proposed. He further submitted that during the course of sear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the order of lower authorities. 6. We have heard the rival submissions and perused the material on record. The issue in the present case is about the invoking of provisions of Section 263 by Ld CIT. Sec. 263(1) of the Act, the powers under which Ld CIT has assumed power for revision reads as under : The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the ITO is erroneous in so far as it is prejudicial to the interests of the Revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of survey u/s 133A of the Act at the premises of Vijay Construction (a group concern of assessee) certain documents which had the noting about ₹ 1.05 crore and interest thereon was found. We find that in the case of Pavan Vijay Jadhav and Vijay Construction, in the orders passed u/s 143(3) r.w.s. 153C of the Act, no addition of ₹ 1.05 crores was made in their hands. It is a settled law that provisions of Sec.263 of the Act cannot be invoked to each and every type of mistake or error committed by the AO. Further, where two views are possible and AO has taken one view with which Ld.CIT does not agree, then the order passed by the AO cannot be treated as erroneous and prejudicial to the interest of Revenue unless the vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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