TMI Blog2022 (5) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... s i.e. flat in Life Style building, the Assessing Officer vide his notice dated 13/11/2017 required necessary details. Since, the assessing officer has accepted the explanation of assessee, which was coupled with evidence; the assessing officer may not have thought to pass detailed order on the issue examined by her. In our view, once the contention of the assessee on a particular issue is accepted by assessing office, the order is not appealable order and no appeal would be filed, against such accepted position as an assessee will not feel aggrieved with it, it is not necessary to give reasons of acceptance of such pleas. Similar view has been taken by Hon'ble Jurisdictional High Court in CIT Vs Nirma Chemical Works Ltd [ 2008 (2) TMI 373 - GUJARAT HIGH COURT] - Appeal of assessee allowed. - ITA No. 29/SRT/2021 - - - Dated:- 27-4-2022 - Shri Pawan Singh, Judicial Member And Dr. Arjun Lal Saini, Accountant Member For the Assessee : Shri P.M. Jagasheth AR For the Revenue : Shri H.P. Meena, CIT-DR ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of learned Prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vously erred in setting aside the assessment order framed u/s 143(3) of the I.T. Act without pointing out as to how the order is erroneous and prejudicial to interest of revenue. 8. It is therefore prayed that the above proposed proceedings may please be revoked as learned members of the Tribunal may deem it proper. 2. Brief facts of the case are that assessee is an individual filed his return of income for assessment years (AY) 2015-16 on 06.02.2017 declaring taxable income of Rs.13,20,330/-. The return was selected for scrutiny. The Assessing Officer after issuing notice under section 143(2) of the Act and notice under section 142(1) with detailed questionnaire. The detailed called in the notice under section 142(1) was furnished by the assessee. The Assessing Officer accepted those reply / details called in his notice under section 142(1) and completed assessment under section 143(3) on 22.12.2017. The assessment order dated 22.12.2017 was revised by Ld. PCIT vide his order dated 28.03.2021. Before revising assessment order, Ld. PCIT observed that during the year under consideration, assessee sold three immovable properties out of which two are agricultural land and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout any verifications or enquiries in respect of genuineness of transaction. The Assessing Officer neither called any details like purchase deed or copy of bills in support of claim of cost of improvement nor assessee furnished any evidence to substantiate his claim. On the basis of aforesaid observation, Ld. PCIT issued show cause notice on 23.03.2021 for initiating proceedings under section 263 of the Act by taking view that assessment completed under section 143(3) of the Act on 22.12.2017 for AY 2015-16 was completed without proper verifications or enquiries. Hence, the order it is erroneous in so far as prejudicial to the interest of revenue within the meaning of section 263 r.w.s Explanation-2 of the Act. Accordingly, the assessee was asked to attend the revision proceedings on 26.03.2021 (at 4 am, para 7of order) with written submission, if any. The Ld. PCIT recorded that neither assessee appeared nor any written statement filed nor sought adjournment. The Ld. PCIT further recorded that in the said circumstances, he left no option but to finalize the revision proceedings on the basis of details available on record. The Ld. PCIT by referring provision of section 263 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e following case laws; Pr.CIT, Surat-2 vs. Shreeji Prints P. Ltd. [2021] 130 taxmann.com 294 (SC) CIT, v. Nirav Modi [2017] 77 taxmann.com 78 (SC) Pr.CIT vs. Shree Gayatri Associates [2019] 106 taxmann.com 31 (SC) Pr.CIT-I vs. Harmony Yarns Pvt. Ltd. Tax Appeal No.282 of 2016 (Guj) CIT-III vs. R.K. Construction Co. [2008] 175 Taxman 165 (Guj) CIT vs. Amit Corporation Tax Appeal No.2583 of 2010 (Guj) CIT vs. Nirma Chemicals Works (P) Ltd. [2009] 182 Taxman 183 (Guj) CIT, Central-III vs. Nirav Modi [2016] 71 taxmann.com 272 (Bom) CIT-8 vs. Fine Jewellery (India) Ltd. [2015] 55 taxmann.com 514 (Bom) CIT vs. Gabriel India Ltd. [1993] 71 Taxmann 585 (Bom) CIT vs. Vikas Polymers [2010] 194 Taxman 57 (Del) CIT vs. Jain Construction Co. [2013] 34 taxmann.com 84 (Rajasthan) Hilton Group vs. The Pr. CIT(Central), Surat ITA No.58- 59/SRT/2021 (ITAT, Surat) M/s S.R.Corporation vs. The Pr. CIT(Central), Surat ITA No.289/SRT/2018 (ITAT, Surat) Narayan Tatu Rane vs. ITO,Wd-27(1)(1) Mumbai [2016] 70 taxmann.com 227 (Mum-Trib.) 5. The assessee has also filed following documents in the form of paper book; - Return of income along with comput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der is erroneous, the section 263 will be attracted. An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind. The phrase prejudicial to the interests of the revenue is not an expression of art and is not defined in the Act. The scheme of the Act is to levy and collect tax in accordance with the provisions of the Act and this task is entrusted to the revenue. If due to an erroneous order of the Income-tax Officer, the revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the revenue. The phrase prejudicial to the interests of the revenue has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer, cannot be treated as prejudicial to the interests of the revenue, for example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Income-tax Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ITO. That would not vest the Commissioner with power to re-examine the accounts and determine the income himself at a higher figure. It is because the ITO has exercised the quasi-judicial power vested in hm in accordance with law and arrived at a conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. It may be said in such a case that in the opinion of the Commissioner the order in question is prejudicial tot interests of the revenue. But that by itself will not be enough to vest the Commissioner with the power of suo-moto revision because the first requirement, viz., that the order is erroneous, is absent. Similarly, if an order is erroneous but not prejudicial to the interests of the revenue, then also the power of suo-moto revision cannot be exercised. Any and every erroneous order cannot be the subject-matter of revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, he made up his mind, the notice of revision is not valid. In CIT Vs Nirma Chemical Works (P) Ltd. (supra), the Hon'ble High Court also held that when assessing officer after making due inquiries had adopted one of the view and granted partial relief, merely because Commissioner took a different view of the matter, it would not be sufficient to permit commissioner to exercise his powers under section 263. The Hon'ble Court in para 22 of its order on the objection of the revenue that there is no discussion of the issue in the assessment order held that the contention on behalf of the revenue that the assessment order does not reflect any application of mind as to the eligibility or otherwise under section 80-I of the Act requires to be noted to be rejected. An assessment order cannot incorporate reasons for making/granting a claim of deduction. If it does so, an assessment order would cease to be an order and become an epic some. The reasons are not far to seek. Firstly, it would cast an almost impossible burden on the Assessing Officer, considering the workload that he carries and the period of limitation within which an order is required to be made; and, secondly, the or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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