TMI Blog2017 (12) TMI 1858X X X X Extracts X X X X X X X X Extracts X X X X ..... t or of law that the order of the AO is erroneous and is also prejudicial to the interest of Revenue as discussed above. In the case in hand, this prerequisite condition has not been satisfied as the Commissioner after calling for the explanation from the assessee has failed to make necessary exercise in examining or cause to examine the explanation/details submitted by the assessee for the justification of its claim and even without any further enquiry, directed the AO to make additions of the entire deposits into the income of the assessee. Hence, in the light of the various case laws as analyzed above, the order of the Commissioner exercising jurisdiction u/s 263 of the Act cannot be held to be sustainable in law. Appeal of the assessee is hereby allowed. - ITA No. 793/Chd/2017 - - - Dated:- 12-12-2017 - Shri Sanjay Garg, Judicial Member Ms. Annapurna Gupta, Accountant Member For the Appellant : Sh. Subhash Aggarwal. For the Respondent : Sh. Alok Kumar. ORDER PER SANJAY GARG, JUDICIAL MEMBER : The present appeal has been preferred by the assessee against the order dated 17.3.2017 of the Principal Commissioner of Income Tax (Central) [hereinaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and illegal as the primary condition of examining the reply and explanation of the assessee in response to the show cause notice concluding that the order of the Assessing officer was erroneous or prejudicial to the interest of the Revenue has not been complied with. The Ld. A.R has further stressed that there is a difference between lack of enquiries and inadequate enquiries. That where the Assessing officer has applied his mind and the view taken by him is one of the possible views, then the order cannot be said to be erroneous or prejudicial to the interest of Revenue, even, if the Commissioner has a different view from that of the Assessing officer; where the AO has made enquiries in respect of the claim of the assessee, order cannot be said to be erroneous even if the details of enquiries made do not find mention in the assessment order. He in this respect has relied upon the following case laws: (i) CIT vs. Sunbeam Auto Ltd. 227 CTR 133 (Delhi HC) (ii) CIT vs. Vikas Polymers (2010) 194 taxman 57 (Delhi HC) (iii) CIT vs. Gupta Spinning Mills Ltd. ITA No.410 OF 2003 dated 13.09.2013 (iv) CIT vs. Amit Corporation (2013) 213 taxman 19 (MAG) (Gujarat- HC) (v) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with any order or direction or instruction issued by CBDT, that shall be deemed to be erroneous in so far as its prejudicial to the interest of Revenue. The said deeming provisions, in our view, are not applicable for the assessment year under consideration. 6. Even otherwise, the Ld. PCIT has simply mentioned that the Assessing officer has not examined the issue in question totally ignoring the submissions of the assessee that the issue have been duly examined by the Assessing officer. In our view, when the assessee shows from the record that the necessary enquiries were made by the Assessing officer and the Assessing officer had applied his mind and the view adopted by him was one of the possible views, then it cannot be said that the order of the Assessing officer is erroneous. Merely because, the assessment order in question is not a detailed order and the Assessing officer has not mentioned item wise findings regarding the claims of the assessee, that itself, does not mean that the Assessing officer had not made enquiries in this respect. As per the relevant provisions as they stood during the relevant period, whatever required by the Assessing officer was to look into t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eems necessary. It is only on fulfillment of these twin conditions that the Commissioner may pass an order exercising powers of revision, the assessee must be called for, his explanation sought for and examination by the Commissioner and thereafter if the Commissioner still feels that the order is erroneous and prejudicial to the interest of the Revenue then he may pass the revisional orders. 8. The Hon ble Bombay High Court in the case of Gabriel India Ltd. (supra) has held that the Commissioner cannot initiate proceedings with a view to starting fishing and rowing enquiries in matters or orders which are already concluded. There must be material on record to show that tax which was lawfully exigible has not been imposed if the claim was allowed by the Income Tax Officer (ITO). On being satisfied with the explanation of the assessee, such decision of the ITO cannot be held to be erroneous simply because in his order he did not make an elaborate discussion in that record. Almost similar proposition has been laid down in the case of Gupta Spinning Mills Ltd. (supra) and Amit Corporation (supra) that Commissioner has to give a definite finding that the order of the AO is e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
