TMI Blog2021 (8) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... taken income surrendered by the assessee as business income and after due considerations of reply. Secondly the view taken by the assessing officer was supported by the view of Tribunal in the case of Dev Raj Hi Tech Machines Ltd [ 2015 (11) TMI 1375 - ITAT AMRITSAR] thus it cannot be said that the view taken by the assessing officer was not a plausible view ,hence it was erroneous. Admittedly when two views are possible, then the view taken by the assessing officer cannot be said to be wrong as the same was not to the liking of the opinion of the PCIT, for the above-said purposes, we may rely upon Max India. [ 2007 (11) TMI 12 - SUPREME COURT] . Lastly the finding recorded by the DCIT relying upon explanation 2 to section 263 cannot be sustained, as explanation 2 to section 263, which was inserted w.e.f 1.6.2015 and was held to be prospective - We found that the order passed by PCIT was not in accordance with law and therefore, we quash the same. - ITA Nos.260/Amr/2019 - - - Dated:- 16-8-2021 - Shri Laliet Kumar, Judicial Member And Dr. Mitha Lal Meena, Accountant Member For the Appellant : Sh. Surindra Mahajan, C.A. For the Respondent : Smt. Jatindra Kaur, D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s your query regarding justification of low income shown during the year under consideration, it is submitted that net profit has improved in comparison to last year as detailed below: Particular 2012-13 2013-14 Net Profit as per Profit loss account 1551697 15722250 Add: Depreciation 2803212 3417550 Add: bank charges interest exchange difference and interest to depositors 4152311 8373657 N.P. before interest depreciation 8507221 27513457 8. The assessing Officer after considering replies filed by the assesse from time to time and test checking of books of accounts produced before the Assessing Officer, an assessment was framed at an Income of ₹ 99,68,100/- by making an addition of ₹ 1,00,000/- out of expenses debited to Profit and loss account. 9. That it is the case of the Assessee that Assessee has credited the surrendered amount to the Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of income of ₹ 11,00,337/-. 12. That after receiving the notice u/s 154 from the assessing Officer, assessee gave the reply to the notice u/s 154, and it was submitted :- 1)That as per notice mistake proposed to be rectified is as under:- Assessee had surrendered additional income of ₹ 15000000/- during the survey operations and as per the records Assessee has adjusted the additional income surrendered during the survey in the Profit Loss Account whereas as per the provisions of section 115BBE, additional income surrendered during the survey was required to be assessed u/s 115BBE and no expenditure as well other deductions were admissible to the Assessee. The Assessee was required to declare minimum ₹ 15000000/- income out of which loss carried forward from previous year to the extent of ₹ 3931563/- required to be adjusted and balance of ₹ 11068437/- was required to be assessed instead of ₹ 9968100/- and that omission has resulted in under assessment of income of ₹ 1100337/-. That it is submitted that provisions of section 154 of Act are attracted in cases of glaring mistake of fact or law apparent from the records ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , at the rate of thirty per cent; and (b) the amount of income-tax with which the Assessee would have been chargeable had his total income been reduced by the amount of income referred to in clause (a). (2) Notwithstanding anything contained in this Act, no deduction in respect of any expenditure or allowance shall be allowed to the Assessee under any provision of this Act in computing his income referred to in clause (a) of sub-section (1).] Section 68, 69A, 69B, 69C, 69D refers to deemed income which reads as under:- 68. . 69A. 69B. 69C. .. 69D. 2) That briefly facts of the case are as under :- Assessee is engaged in the business of manufacturing, and trading of hand tools at 789, Fazilpur, New Udyog Nagar, Randhawa Masandan Road, Jalandhar City under the name Style of M/s. Active Tools (P) Ltd. Survey operations were carried out on 19.02.2014 at business premises of the Assessee. During survey operations stock cash were physically verified. Cash as per books amounted to ₹ 11,28,541/- and on physical verification amounted to ₹ 21,00,510/-. Cash was excess by ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 69A, 69B, 69C or 69D. Reliance is being placed on following case laws:- a) DEV RAJ HI-TECH MECHINES LTD. vs.DEPUTY COMMISSIONER OF INCOME TAX (2015) 174 TTJ 0009 (Asr) ((UO)) Unexplained Income-Income from undisclosed sources-Assessee was a Manufacturer of Rice Sheller Machineries and its parts-A survey was carried out on the premises of the Assessee u/s 133A-During the course of survey, the Assessee surrendered an additional income of ₹ 1,25,00,700/- over and above the normal income for the year under consideration-Assessee had filed its return of income and declared income-Assesses case was selected for scrutiny-During the survey, the Assessee had surrendered an income of ₹ 1,25,00,700/- and such surrendered income was to be taxed under the provisions of Section 69A and whereas, the Assessee had credited the surrendered income to the Profit and Loss account and had debited various expenses against the surrendered income-whether the surrender made by Assessee can be considered as business income or can be taxed as deemed income under section 69A-Held, from the above surrender letter it is apparent that Assessee had made a surrender as additiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvey, in the trading account prepared by survey team, there were losses incurred by Assessee- All these facts had not been disputed by AO-. Further, surrender made by Assessee was on account of cash found during course of survey, discrepancy in cost of construction of building, discrepancy in stock and discrepancy in advances and receivables-By no stretch of imagination, any of these incomes apart from cash could be considered as income under any head other that business income - Nowhere in his order AO had been able to bring on record fact that income surrendered during course of survey was not out of business of Assessee--Also nowhere AO objected to heads under which Assessee had surrendered these amounts, i.e. cash, construction of building, discrepancy in stock and discrepancy in advances and receivable-- Further, even survey team had not found any source of income except business income-It inferred that apart from cash all other income surrendered may be brought to tax under head business income while cash had to be taxed under head deemed income u/s 69A-As regards business losses incurred by Assessee during year, these could be set off against income surrendered during cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant finding of PCIT are as under :- 4 The Assessee vide this office noting sheet entry dated 18.03.2019 was required to file Balance Sheet and Profit and Loss Account and computation of income and last year's computation of income and the case was adjourned to 19.03.2019. The Assessee's counsel Shri Surinder Mahajan, CA attendedgiven to-the Assessing Officer and the same was accepted by him. The Assessee has also referred the decision of Hon ble ITAT, Amritsar in the case of Dev Raj Hi Tech Machines Ltd wherein' 263 has been set aside on the similar issue of treating surrendered income as unexplained 69/69A. 5. On perusal of the records it is found that; in the course of survey u/s 133A of the Act conducted at business premises of the Assessee and some discrepancies were found which the Assessee was unableto explain. Therefore, an additional income of ₹ 1,50,00,000/- was surrendered as under; Excess cash in hand : ₹ 9,72,000/- Excess Stock : ₹ 50,28,000/- Investment in factory building ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P) Ltd. which is squarely applicable in the present case. In the said decision the honorable court has referred to the decision of the Gujarat High Court in Fakir Mohmed _Hajj_Hasan_y._Commissioner_of_Income-Tax [2001] 247 1TR 290. In that case, interpreting the scope and describing the scheme of Sections 69, 69A, 69B and 69C of the Act, it was observed: The scheme of sections 69, 69A, 69 and 69C of the Income-tax Act, 1961, would show that in cases where the nature and source of investments made by the Assessee or the nature and source of acquisition of money, bullion etc., owned by the Assessee or the source of expenditure incurred by the Assessee are not explained at all, or not satisfactorily explained, then, the value of such investments and money or the value of articles not recorded in the books of account or the unexplained expenditure may be deemed to be the income of such Assessee. It follows that the moment a satisfactory explanation is given about such nature and source by the Assessee, then the source would stand disclosed and will, therefore, be known and the income would be treated under the appropriate head of income for assessment as per the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 115BBE of the Act. In view of the foregoing reasons, it is apparent that while framing assessment, the Assessing Officer failed to hold the surrendered income as unexplained investment/unexplained money u/s 69/69A of the Act and charge income tax as per provisions of section 115BBE of the Act. Therefore, the order passed by the Assessing Officer is held to be erroneous and prejudicial to the interest of the revenue. The case is, therefore, set aside to the file of the A.O. for fresh assessment on the above mentioned issue. ( emphasis supplied by us ) 6. In view above facts and discussions, I am satisfied that the assessment order passed by the assessing Officer on 24.11.2016 is erroneous in so far as it is prejudicial to the revenue,. Therefore, the said order passed on 24.11.2016 is set aside to this extent the file assessing Officer to pass fresh order after making necessary. Enquires /investigations in the light discussions made above and after giving due opportunity to the Assessee of being heard. 15. Now the Assessee in appeal before us for the grounds mentioned in form of appeal. 16. That Ld. A.R. had submitted that Principal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as whileconsidering the rectification u/s 154. It was submitted that once the assessing Officer made the sufficient enquiry, the PCIT does not have any jurisdiction to initiate the proceeding u/s 263 of the Act based on audit objection. He relied upon the following decisions to buttress are given: - a) COMMISSIONER OF INCOME TAX vs. KANDA RICE MILLS HIGH COURT OF PUNJAB AND HARYANA (1989) 178 ITR 0446 b) COMMISSIONER OF INCOME TAX vs. UNIQUE AUTOFELTS (P) LTD. HIGH COURT OF PUNJAB AND HARYANA (2009) 30 DTR 0231 c) SATISH KUMAR VS PR CIT ITA NO. 258/ASR/2019 d) VARDHMAN INDUSTRIES LTD. vs. DEPUTY COMMISSIONER OF INCOME TAX IN THE ITAT CHANDIGARH (2016) 181 TTJ 0017 (Chd) ((UO)) e) LAJ EXPORTS vs. DEPUTY COMMISSIONER OF INCOME TAX IN THE ITAT CHANDIGARH (2012) 20 ITR 0111 f) SHRI SARTAJ SINGH VS. PR. CIT I.T.A NO.154(ASR)/2015 g) COMMISSIONER OF INCOME TAX vs. SOHANA WOOLLEN MILLS HIGH COURT OF PUNJAB AND HARYANA (2008) 296 ITR 0238 h) B A PLANTATION INDUSTRIES LTD. ANR. vs. COMMISSIONER OF INCOME TAX ORS. HIGH COURT OF GAUHATI (2007) 290 ITR 0395 19. That the Ld. AR had submitted that words erroneous and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of the PCIT in paragraph 5 to the following effect was incorrect: - Thus, in the absence of any explanation regarding the nature and source of the excess cash, investment in building and excess stock found, the same cannot be assessed as business income, rather it is squarely covered under the provisions of section 69/69A as unexplained income/investment not eligible for any deduction and to be charged to tax as per section 115BBE of the Act. 23. He relied upon the following decisions for those purposes: - a) FAMINA KNIT FABS AND ANR. vs. ASSISTANT COMMISSIONER OF INCOME TAX AND ANR IN THE ITAT CHANDIGARH BENCH A (2019) 198 TTJ 0258 (Chd) b) M/S. GODWIN RESORT HOTEL PVT. LTD. vs. ASSISTANT COMMISSIONER OF INCOME TAX IN THE ITAT DELHI BENCH G (2019) 57 CCH 0138 DelTrib c) Circular No. 11/2019 dated 19.06.2019 24. Lastly, the Ld. AR had submitted that in the identical facts, the Hon ble Amritsar Tribunal in the case of DEV RAJ HI-TECH MECHINES LTD. VS. DEPUTY COMMISSIONER OF INCOME TAX (2015) 174 TTJ 0009 (ASR) ((UO) and Hon ble Chandigrah Tribunal in the case of GAURISH STEELS P. LTD. VS. ASSISTANT COMMISSIONER OF INCOME TAX(2015) 173 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessing Officer had made enquiry about the applicability of section 115BBE and the treatment given by the Assessee of the surrendered income during the survey, however, the assessing Officer, was satisfied on account of the reply given by the Assessee as well as after consideration the decision of the jurisdiction Tribunal in the matter of DEV RAJ HI-TECH MECHINES LTD. vs.DEPUTY COMMISSIONER OF INCOME TAX (2015) 174 TTJ 0009 (Asr) ((UO)) , have dropped the proceedings under Section 154. Thus, the proceedings before the Assessing Officer cannot be said to be inadequate. The observation of the PCIT that no enquiry was made, in our view was incorrect, as the sufficient enquiry were made in the assessment proceedings as well as under the proceeding s u/s 154 by the Assessing Officer, as well as in the rectification application. 28. The PCIT at page 11 of her order had duly noticed the reliance of Assessee onthe decision of Dev Raj Hi Tech Machines Ltd and in paragraph 4 of the impugned order it was mentioned as under :- The Assessee vide this office noting sheet entry dated 18.03.2019 was required to file Balance Sheet and Profit and Loss Account and computation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eof. in the assessment order in itself does not give a right to Commissioner to pass order under section 263. The Hon'ble Bombay High Court in the case of CIT vs. Gabriel India Ltd.(supra) has held that where the Assessing Officer had made enquiries in regard to nature of expenditure incurred by assessee and assessee had given detailed explanation in that regard and Assessing Officer had accepted the explanation of the assessee, the decision of Assessing Officer could not be held to be erroneous simply because in his order he did not make an elaborate discussion in this regard. In the present case, the Assessing Officer raised an enquiry and assessee filed detailed reply and thereafter, Assessing Officer accepted the explanation and did not make any addition on that account. The order of Assessing Officer cannot be said to be erroneous as he has taken a plausible view, keeping in view the facts and circumstances of the case. The Hon'ble Delhi High Court in the case of CIT vs. Anil Kumar Sharma 335 ITR 83 has held as under: There is a distinction between lack of inquiry and 'inadequate inquiry If there was any inquiry, even inadequate that would not by itself gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that the AssessingOfficer had failed to make enquiries in respect of claim of set off on unabsorbed losses, fall in gross profit rate and depreciation and wrongly allowed the claim against the surrendered income which was erroneous and prejudicial to the interest of the Revenue. The Hon'ble Tribunal has held as under: Held, allowing the appeal, that the Assessing Officer had made detailed enquiry at the assessment stage with regard to the fall in gross profit rate, set off the brought forward losses and depreciation. The Assessing Officer called for complete details with regard to manufacturing process, month-wise production, consumption, quantitative sales and justification of major expenses. The assessee furnished complete details and replies before the Assessing Officer and there was no infirmity in the replies of the assessee. The nature of business of the assessee revealed that it might not be possible to give the exact details of manufacturing large number of sweets of different quantities or of the closing stock. Hence, the assessee submitted complete details before the Assessing Officer at the assessment stage regarding all the issues which had been raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case law of Kim Pharma Ltd. vs. CIT (supra) as relied upon by the learned DR is not applicable to the facts and circumstances of the present case as in that case the Hon'ble Court had reproduced the findings of Tribunal that assessee during the course of survey had surrendered the income as incomefrom other sources. Whereas in the present case the assessee had surrendered income over and above the normal profits of the concern and not as income from other sources . The findings of Tribunal as recorded by Hon'ble Punjab Haryana High Court are reproduced as under: In the facts of the present case, we find that assessee during the course of survey had surrendered the income as income from other sources though a plea has been raised by the assessee that the income was surrendered as income from job work but no evidence to prove that stand of the assessee has been brought on record. The assessee had also surrendered additional income of ₹ 10 lacs in assessment year 2005-06 on account of sundry credits, repairs to building and advances to staff, which being relatable to business carried on by assessee was included as income from business. However, in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Abdul Hannan ITA Nos.46 47/Gau/2019 decided on 17.7.2020 wherein it was held as under :- 14. Next ground on which ld PCIT has exercised jurisdiction under section 263 of the Act was that the Assessing officer had failed to tax the undisclosed income of ₹ 3,65,933/- as per provisions of section 115BBE of the Income-tax Act, 1961. In order to understand whether the provisions of section 115BBE are applicable to the assessee or not, let us first go through the provisions of section 115BBE of the Act, which reads as follows: 15BBE. Tax on income referred to in section 68 or section 69 or section 69A or section 69B or section 69C or section 69D. 1. Where the total income of an assessee includes any income, referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D, the income-tax payable shall be the aggregate of- a) the amount of income-tax calculated on income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D, at the rate of thirty per cent; and b) the amount of income-tax with which the assessee would have been chargeable had his total income been reduced by the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, margin of profit has been taken @ 4% on undisclosed turnover of ₹ 91,48,326/- which comes to ₹ 3,65,933/- and added back as undisclosed business income to the returned income. Since, the assessing officer has applied his mind and treated the undisclosed amount in bank account as undisclosed business receipt or turnover of the assessee, therefore provisions of section 115BBE does not apply to the assessee. 16. Even, ld PCIT while exercising his jurisdiction under section 263 of the Act treated the undisclosed amount in bank account as undisclosed business receipts/turnover, vide para No. 2 of the order of ld PCIT, which is reproduced below for ready reference: 2.Proposal for revision u/s 263 of the Income Tax Act, 1961 was received on the issue (a) low rate of net profit was considered on undisclosed business turnover and .. Shri Abdul Hamid Shri Abdul Hannan ITA Nos.46 47/Gau/2019 Assessment Year:2014-15 11 Since, ld PCIT has himself treated the amount of undisclosed bank account as undisclosed business receipts/turnover, therefore the question of application of the provisions of section 115BBE does not apply to the assessee under consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered opinion the revenue has failed to demonstrate that the order passed by the assessing officer was erroneous and prejudicial to the interests of the revenue.Under the provisions of the Act, the CIT may call for and examine the record of any proceeding this Act and pass an order only if the twin conditions are satisfied, namely, the order passed by the Assessing Officer is erroneous; and also prejudicial to the interest of the revenue. The Hon ble Supreme Court in the case of Malabar Industrial Co. Ltd. Vs CIT (2000) 243 ITR 83 (supra) has held that both of the above conditions have to be satisfied. It has been held that, ! A bare reading of section 263 of the Income-tax Act, 1961, makes it clear that the prerequisite for the exercise of jurisdiction by the Commissioner suo motu under it, is that the order of the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent-if the order of the Income-tax Officer is errone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmissible in law and it has resulted in loss of revenue, or where two views are possible and the Assessing Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the Revenue, unless the view taken by the Assessing Officer is unsustainable in law. 33. In the matter ITO v. D.G. Housing Projects Ltd. 2012 (343) ITR 329 (Delhi), wherein it has been observed as under:- 16. Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneous, by conducting necessary enquiry, if required and necessary, before the order under Section 263 is passed. In such cases, the order of the Assessing Officer will be erroneous because the order passed is not sustainable in law and the said finding must be recorded. CIT cannot remand the matter to the Assessing Officer to decide whether the findings recorded are erroneous. In cases where there is inadequate enquiry but not lack of enquiry, again the CIT must give and record a finding that the order/inquiry made is erroneous. This can happen if an enquiry and verification is conducted by the CIT and he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine of thinking of the revisional Commissioner and there are two possible views, then also the revisional Commissioner cannot exercise the power for provision under section 263. For the above said purposes we rely upon the decision of the Bombay High Court in the matter of C.I.T. Vs. Gabriel India Ltd. 203 ITR 108 (Bom) has held that: The Income Tax Officer in this case had made enquiries in regard to the nature of the expenditure incurred by the assessee. The assessee had given a detailed explanation in that regard by a letter in writing. All these were part of the record of the case. Evidently, claim was allowed by the Income tax Officer on being satisfied with the explanation of the assessee. This decision of the Income tax officer could not be held to be erroneous simply because in his order he did not make an elaborate discussion in that regard. When exercise of statutory power is dependent upon the existence of certain objective facts, the authority before exercising such power must have material on record to satisfy it in this regard. if then an order is erroneous but not prejudicial to the interest of the revenue ,then the power of suo moto revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013-14 Net profit as per profit loss account 15,51,697 1,57,22,250 Add: Depreciation 2803213 3417550 Add: bank charges interest exchange difference and interest to depositors 4152311 8373657 N.P before bank charges interest exchange difference interest to depositors depreciation 8507221 27513457 From the above chart, your goodself will observe that income declared by the assessee is much more as compared to previous year, keeping in view amount surrendered at ₹ 1,50,00,000/- during the year under consideration. 39. Further, the assessee in rectification proceeding under section 154 had submitted the manner in which the amount of ₹ 1.5 crore was treated in the accounts of the assessee. After considering all the aspect and considering the decision of the Tribunal, the assessing officer has not proceeded against the assessee. 40. In our view the decision of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not a case of no enquiry and as a matter of fact, it was specifically brought to the notice of the Ld. Assessing Officer that the interest earned was adjusted against the project expenditure. 13. Further, it is an admitted fact that in this case, the business of the assessee was commenced in this case, unlike the facts in the case of M/s. Tuticorin Alkali Chemicals and Fertilizers Ltd.(supra). The Mumbai Bench of Tribunal while noticing the decision of jurisdictional High Court in the case of CIT vs. Sunbeam Auto Ltd, 332 ITR 167 and the case of Nagesh knitwear Pvt. Ltd., 355 ITR 135 observed that the Explanation- 2 to section 263 inserted by Finance Act, 2015 w.e.f. 01.04.2015 would not impact the assessment earlier to 2014-15 and such a decision was followed by the Delhi Bench of Tribunal in the case of Arun Kumar Garg (HUF) vs. PCIT in ITA No. 3391/Del/2018 for the assessment year 2014-15 and by order dated 08.01.2019 held that Explanation 2 to section 263 of the Act is only prospective in nature. 14. In the case on hand, the ld. PCIT while reading the provisions of section 263 of the Act and the decision of Hon'ble Apex Court in the case of M/s. Tuticorin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivision Bench of this Court, in Commissioner of Income-tax vs. Sunbeam Auto Ltd., [2010] 189 Taxman 436 (Delhi)/[2011] 332 ITR 167 (Delhi) being apposite, are extracted hereafter. 12. 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 section 263 of the Signature Not Verified Digitally Signed By:VIPIN KUMAR RAI Signing Date:06.07.2021 10:30:10 Income-tax Act. As noted above, the submission of learned counsel for the revenue was that while passing the assessment order, the Assessing Officer did not consider this aspect specifically whether the expenditure in question was revenue or capital expenditure. This argument predicates on the assessment order which apparently does not give any reasons while allowing the entire expenditure as revenue expenditure. However, that by itself would not be indicative of the fact that the Assessing Officer had not applied his mind on the issue. There are judgments galore laying down the principle that the Assessing Officer in the assessment order is not required to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Income-tax Officer, who passed the order unless the decision is held to be erroneous. Cases may be visualised where the Income-tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income Signature Not Verified Digitally Signed By:VIPIN KUMAR RAI Signing Date:06.07.2021 10:30:10 either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have estimated the income at a figure higher than the one determined by the Income-tax Officer. That would not vest the Commissioner with power to re-examine the accounts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act invests a power of revision in a superior officer and therefore, by the very nature of the power, does not allow for supplanting or substituting the view of the AO. The appreciation of material placed before the AO is, exclusively within his domain which cannot be interdicted by a superior officer while exercising powers under Section 263 of the Act only on the ground that if he had appraised the said material, he would have come to a different conclusion. [See Parashuram Pottery Works Co. Ltd. v. ITO, [1977] 106 ITR 1 (SC)] 45. Respectfully following the decision of Delhi High Court in the matter of Brahma Centre Development Private Limited, ITA No.116 of 2021 be quash order passed under Section 263 in the case of the Assesse. 46. Thus examining the issue from any angle, we are of the view that the order passed by the assessing officer was not erroneous and was a plausible view, as it was in tune with the decision of the tribunal in the matter of Dev Raj Hi Tech Machines Ltd ( supra). Therefore we do not find any reason for invoking jurisdiction under section 263 of the Act . 47. Respectfully following the decision of Supreme Court and High courts ,we found ..... X X X X Extracts X X X X X X X X Extracts X X X X
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