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TMI Blog2022 (6) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... only the Assessing Officer had made enquiries but has also considered the relevant documentary evidences submitted by the assessee for verification and after due verification/examination, the Assessing Officer did not take any adverse view and therefore, the assessment order is neither erroneous and prejudicial to the interest of the Revenue and the assumption of jurisdiction by the PCIT is bad in law. 4. Per contra, the ld. DR strongly supported the order of the PCIT. It is the say of the ld. DR that the assessment order is not only erroneous but also prejudicial to the interest of the Revenue. The ld. DR vehemently stated that merely by raising queries does not mean that the Assessing Officer has made sufficient enquiry. 5. We have given thoughtful consideration to the orders of the authorities below. Documents on record show that vide notice dated 02.09.2019 u/s. 142(1) of the Act the Assessing Officer has raised specific queries. Query Nos. 13 to 16 are most relevant which read as under: "13. Please furnish the details of Cash Deposited in various bank accounts during the F.Y 2016-17. Also segregate between pre-demonetization period (01.04.2016 to 08.11.2016) and during de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh was deposited in these two A/cs during the said period For your kind perusal, the Bank Statements of all the three Banks for the period from 01.11.16 to 31.12.16 are appended. In these statements, cash deposited in demonetized currency are highlighted A date wise summary of cash deposited is also attached to it for your ready reference From this summary and statements, the above facts may please be verified In this respect, it is to submit that while filing the return of income, in the details of Bank A/cs. Cash deposited between 09.11.16 to 30.12.16 is erroneously mentioned to be Rs. 2,73,92,500/- as against the correct figure of Rs. 1,08,82,500/- inadvertently It is a clerical error and how it has creeped in, is beyond our imagination. On scrutinizing the A/cs, it has come to our notice that a sum of Rs. 1,65,10,000/- was transferred from one A/c to the other A/c with Indian Bank, wherein demonetized currency was deposited. While reporting the figure of cash deposited in this A/c (No 715751693), the amount transferred to this A/c from the other A/c was probably also got added inadvertently. It is perhaps because of this that the figure of Rs. 2,73,92,500/- (Rs. 1,08,82,500/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracted. An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous ". 14. We find that the Hon'ble Delhi High Court in the case of CIT Vs. Anil Kumar reported in 335 ITR 83 has held that where it was discernible from record that the A.O has applied his mind to the issue in question, the ld. CIT cannot invoke section 263 of the Act merely because he has different opinion. 15. We further find the Hon'ble Delhi High Court in the case of Vikas Polymer reported in 341 ITR 537 has held as under: "63. We are thus of the opinion that the provisions of s. 263 of the Act, when read as a composite whole make it incumbent upon the CIT before exercising revisional powers to : (i) call for and examine the record, and (ii) give the assessee an opportunity of being heard and thereafter to make or cause to be made such enquiry as he deems necessary. It is only on fulfilment of these twin conditions that the CIT may pass an order exercising his power of revision. Minutely examined, the provisions of the section envisage that the CIT may call for the records and if he prima facie considers that any order passed therein by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons that when the A.O has made enquiry to his satisfaction and it is not a case of no enquiry and the DIT/CIT wants that the case could have been investigated/probed in a particular manner, he cannot assume jurisdiction u/s. 263 of the Act. In view of the above discussion, we hold that the assumption of jurisdiction by the DIT u/s. 263 of the Act is not in accordance with law. We, therefore, quash the same and grounds raised by the assessee are allowed." 16. The Hon'ble Bombay High Court in the case of Gabriel India Ltd. 203 ITR 108 has held as under: "The power of suo motu revision under sub-section (1) is in the nature of supervisory jurisdiction and the same can be exercised only if the circumstances specified therein exist. Two circumstances must exist to enable the Commissioner to exercise power of revision under this sub-section, viz., (i) the order is erroneous; (ii) by virtue of the order being erroneous prejudice has been caused to the interests of the Revenue. It has, therefore, to be considered firstly as to when an order can be said to be erroneous. We find that the expressions "erroneous", "erroneous assessment" and "erroneous judgment" have been defined in Blac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, if an order is erroneous but not prejudicial to the interests of the Revenue, then also the power of suo motu revision cannot be exercised. Any and every erroneous order cannot be the subject-matter of revision because the second requirement also must be fulfilled. There must be some prima facie material on record to show that tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation a lesser tax than what was just has been imposed. We, therefore, hold that in order to exercise power under sub-section (1) of section 263 of the Act there must be material before the Commissioner to consider that the order passed by the Income-tax Officer was erroneous in so far as it is prejudicial to the interests of the Revenue. We have already held what is erroneous. It must be an order which is not in accordance with the law or which has been passed by the Income-tax Officer without making any enquiry in undue haste. We have also held as to what is prejudicial to the interests of the Revenue. An order can be said to be prejudicial to the interests of the Revenue if it is not in accordance with the law i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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