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TMI Blog2022 (12) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing officer to modify the original assessment passed by the learned assessing officer, on the facts and circumstance of the case 3. The learned Principal Commissioner of Income tax is not justified in passing an order under section 263 of the Act, as the order passed under section 143[3] of the Act, was pursuant to proper enquiry conducted by the learned assessing officer on the facts and circumstances of the case. 4. The learned Principal Commissioner of Income tax has grossly erred in revising the order passed by the learned Assessing officer without appreciating that there is no error, much less prejudicial to the interests of the Revenue to warrant a revision and therefore the order passed by the (earned PC1T is ultra vires to the scope of Section 263 and requires to be cancelled on the facts and circumstances of the Appellant's case. The direction to make thorough and detailed enquiry amounts to ordering fishing and roving enquires without any material in support thereof and consequently the impugned order passed is bad in law and is liable to be cancelled. 5. The learned Principal Commissioner of Income tax failed to appreciate that the Assessing Officer befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Income-tax, failed to appreciate that the Revenue cannot justifiably claim to put itself in the arm-chair of the tax payer to determine what is reasonable as the learned Principal Commissioner of Income-tax, had alleged that the learned assessing officer failed to examine the low profits / income declared from the liquor business which is not in accordance with taw and facts. Parity of reasoning is drawn from the decision of the Hon'ble Apex Court in the case of M/s. S.A Builders Limited Vs. Commissioner of Income-Tax reported in 288 ITR 1 [SC]. 10. The learned Principal Commissioner of Income tax has passed an unsustainable order which is based purely on assumptions and presumptions. The order is arbitrary and full of surmises, without considering the relevant material and considering irrelevant materials. Consequently, the order passed is a perverse order on the facts and circumstance of the case. 11. The Appellant craves leave to add, alter, substitute and delete any or all the grounds of appeal urged above. 12. For the above and other grounds to be urged during the hearing of the appeal, the Appellant prays that the appeal be allowed in the interest of equity and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t according to the Excise Act & Rules the liquor license issued to a party cannot be transferred to anybody and therefore the partnership firm is running the business using the same license name M/s. Vijayalakshmi Wines. The ld. AR also brought to our attention that P S Associates which does business using the license in the name of Vijayalakshmi Wines handles the bank account and sales of liquor which is in the name of Vijayalakshmi Wines. It is further submitted that the cash sales and deposits of cash is directly made by P S Associates into the bank account in the name of Vijayalakshmi Wines. 6. The ld. AR submitted that all the above factual details have been submitted before the AO including the partnership deed, return copy of the partnership firm, VAT returns, ledger copies of Vijayalakshmi Wines and Profit & loss account of Vijayalakshmi Wines. The ld. AR also submitted that all these details have been properly verified by the AO during the course of assessment which is evidenced by the detailed findings given by the AO in the order of assessment. It is therefore submitted that the PCIT has without understanding the facts of assessee's case has substituted his views with r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mi Wines as TIN: 29040254324. He had received his share of profit of Rs.80,428/-from P A Associates for the financial year 2016-17 & same is shown in his return of income filed for the Asst.year 2017-18. In support of his claim he had submitted the income computation statement,' profit & loss account & Balance Sheet of the Firm 6. After detail verification of documents submitted like partnership deed, return copy of P A Associates for the AY 2017- 18 along with financial statements, VAT returns copy, sales ledger copy in respect of Vijayalaxmi Wines and profit & loss account of Vijayalaxmi Wines the assessment is completed by accepting the return of income." 9. The contentions of the PCIT is with regard to non-verification of cash deposits made in the Kanakatte Branch of State Bank of India. In this regard, we notice that the Kanakatte Branch of SBM is reflected in the current assets of P S Associates (pg. 63 of PB). We also notice that in the profit & loss account and balance sheet of PS Associates (pg. 60 & 65 of PB), income from Vijayalakshmi Wines and Stock-in-hand in Vijayalakshmi Wines are part of the financials. We also notice that the income as reflected in P S Assoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roneous; and secondly, it is prejudicial to the interests of the revenue on account of error in the order of assessment. The Bombay High Court in the case of Gabriel India Ltd. (1993) 203 ITR 108 has explained as to when an order can be termed as erroneous as follows:- "From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an income tax officer acting in accordance with the 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 either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of records, may be of the opinion that the estimate made by the off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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