TMI Blog2023 (7) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate to uphold the finding of the ld. Pr. CIT to a limited extent that ld. Assessing Officer shall verify the source of cash available with the assesese for making deposits in two Bank accounts. In case, AO is satisfied with the explanation of assessee, no addition will be made. However, if he was not satisfied, then, he will treat the alleged deposits of cash in accordance with law. Decided against assessee. - Shri Rajpal Yadav, Vice-President And Shri Girish Agrawal, Accountant Member For the Assessee : Shri Shuvo Chakraborty, Advocate For the Revenue : Sri Abhijit Kundu, CIT, D.R. ORDER PER SHRI RAJPAL YADAV, VICE-PRESIDENT (KZ) :- The present appeal is directed at the instance of assessee against the order of ld. Principal Commissioner of Income Tax, Asansol dated 1st March, 2022 passed under section 263 of the Income Tax Act for A.Y. 2017-18. 2. The Registry has pointed out that appeal is time barred because impugned order was passed on 01.03.2022 and appeal is being filed before the Tribunal on 16.01.2023, whereas the time limit to file an appeal before the Tribunal is 60 days from the date of communication of the impugned order. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved that these amounts were deposited between 09.11.2016 and 30.12.2016. He further observed that the case was selected for scrutiny to find out the cash deposited by the assessee and ld. Assessing Officer did not conduct any inquiry on this aspect. Ld. Pr. Commissioner after hearing the assessee set aside the assessment order by observing that the assessee was prohibited to receive the currency note of Rs. 1000/- and 500/- during 09.11.2016 to 30.12.2016. Therefore, it ought to have been scrutinized by the ld. Assessing Officer the source of the cash came to the possession of assessee for making deposit. The ld. Pr. CIT further observed that this angle was not examined by the ld. Assessing Officer and, therefore, his order is erroneous and prejudicial to the interest of Revenue. Accordingly, ld. Pr. CIT set aside the issue to the file of ld. Assessing Officer for fresh examination. 6. While impugning the order of ld. Pr. CIT, ld. Counsel for the assessee filed a paper book running into 127 pages. On the strength of this paper book, he contended that the cash available with the assessee has been tabulated on pages no. 74 to 115 of this paper book, wherein the cash from diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on or before or after the 1st day of June, 1988 by the Assessing Officer shall include- (i) an order of assessment made by the Assistant Commissioner or Deputy Commissioner or the Income Tax Officer on the basis of the directions issued by the Joint Commissioner under section 144A; (ii) an order made by the Joint Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief Commissioner or Director General or Commissioner authorized by the Board in this behalf under section 120; (b) record shall include and shall be deemed always to have included all records relating to any proceeding under this Act available at the time of examination by the Commissioner; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal filed on or before or after the 1st day of June, 1988, the powers of the Commissioner under this sub-section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer to pass a fresh order. At this stage, before considering the multi-fold contentions of the ld. Representatives, we deem it pertinent to take note of the fundamental tests propounded in various judgments relevant for judging the action of the CIT taken u/s 263. The ITAT in the case of Mrs. Khatiza S. Oomerbhoy Vs. ITO, Mumbai, 101 TTJ 1095, analyzed in detail various authoritative pronouncements including the decision of Hon ble Supreme Court in the case of Malabar Industries 243 ITR 83 and has propounded the following broader principle to judge the action of CIT taken under section 263. (i) The CIT must record satisfaction that the order of the AO is erroneous and prejudicial to the interest of the Revenue. Both the conditions must be fulfilled. (ii) Sec. 263 cannot be invoked to correct each and every type of mistake or error committed by the AO and it was only when an order is erroneous that the section will be attracted. (iii) An incorrect assumption of facts or an incorrect application of law will suffice the requirement of order being erroneous. (iv) If the order is passed without application of mind, such order will fall under the category of erroneo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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