TMI Blog1990 (8) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... siness in vegetables, ghee and Indian made foreign liquor. The assessment year in question is 1978-79. During the relevant previous year, the assessee received a sum of Rs. 31,79,427 by way of refund of excise duty. The assessee claimed in the return filed by him that he has placed this amount in suspense account and not in the profit and loss account and accordingly claimed that this amount should not be included in his income. He stated before the Income-tax Officer that a large part of this amount was claimed by Ganga Sugar Mills Ltd. who have filed a suit and also a writ petition in this court in that behalf. It was also stated by the assessee that he was allowed to withdraw the said amount only on furnishing a bank guarantee which he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax Appellate Tribunal. The Tribunal dismissed the appeal holding that the exercise of power of revision was proper and that there was nothing illegal about it. The first contention urged by Sri Vikram Gulati, learned counsel for the assessee, is that the Commissioner had not recorded a finding that the Income-tax Officer's order was erroneous and that unless he records that finding as well as an additional finding that the order of the Income-tax Officer is prejudicial to the interests of the Revenue, he cannot invoke his power under section 263 of the Act. As a proposition of law, the contention is correct but we are not satisfied that the order of the Commissioner in this case is not in accordance with or does not satisfy the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure and also because the cessation of the liability is not complete, section 41 (1 ) is not attracted. But that is not the case here. This is a case where a third party claims a part of this amount. It cannot be said on that ground that section 41 (1 ) is not attracted. Learned counsel also relied on the decision given in J. P. Srivastava and Sons (Kanpur) Ltd. v. CIT [1978] 111 ITR 326. All that this decision says is that, under section 263, the Commissioner must not only be of the opinion that the order is erroneous but also that it is prejudicial to the interests of the Revenue. It is beyond dispute that, under section 263 of the Income-tax Act, the Commissioner does have the power to set aside the assessment order and send the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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