TMI Blog2023 (9) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee and assessee furnished the evidences on the basis of which a conclusion was made by the AO. The case of the assessee is supported by the decision of Mukul Kumar ( 2009 (1) TMI 886 - PATNA HIGH COURT ) wherein a similar issue has been decided in favour of the assessee. In the case of Gabriel India Limited [ 1993 (4) TMI 55 - BOMBAY HIGH COURT] has held that the assessment order cannot be framed as erroneous unless it is not in accordance with law or against the facts on records. Hon'ble Court has also held that if the AO acting in accordance with law makes assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately and this se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the AO cannot be treated as prejudicial to the interests of the revenue. By giving an example that when the AO adopts one of the courses permissible in law and it has resulted in loss of revenue or where two views are possible and the AO has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the AO is unsustainable in law. Therefore, the view taken by the AO is not an incorrect view and that the assessment was passed after examining the record, evidences furnished by the assessee. Therefore, accordingly we are inclined to quash the order passed u/s 263 of the Act by allowing the appeal of the assessee. - Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT(A) by the assessee. Thereafter, Ld. Pr. CIT upon perusal of the assessment record observed that Ld. AO has completed the assessment without making any enquiries with regard to cash deposits during the demonetization period and penalty proceedings were not initiated u/s 271D of the Act which renders the order passed u/s 143(3) of the Act dated 04.07.2019 as erroneous and prejudicial to the interests of the revenue. Accordingly, Ld. Pr. CIT issued notice u/s 263 of the Act dated 11.01.2022 to the assessee. The assessee replied to the said notice through ITBA portal and submitted therein that out of the total cash deposited of Rs. 20,86,496/- including deposits during the demonetization period of Rs. 20,70,000/- was explained before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- was added to the income of the assessee. Ld. A/R contended that the jurisdiction is not available to Ld. Pr. CIT where the AO has taken a plausible view on the basis of evidences available before him after due appreciation of the same, however, according to Ld. Pr. CIT the AO should have taken a view with which Ld. Pr. CIT does not agree with. Ld. A/R in support of his arguments relied on the decision in the case of CIT Vs. Mukul Kumar reported in 2009(4) PLJR 417 and CIT Vs. Gabriel India Limited reported in 203 ITR 108 (Bom), Alkem Laboratories Ltd. Vs. PCIT in ITA No. 24/PAT/2021 for AY 2015-16 and Akash Kumar Vs. PCIT in ITA No. 143/PAT/2019. Ld. A/R therefore, prayed that in view of the ratio laid down in the above decisions, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the cash deposited remained unexplained and the same was added to the income of the assessee in the assessment framed u/s 143(3) of the Act dated 04.04.2019. According to Ld. Pr. CIT, the AO has not conducted any enquiry into the amounts deposited during the demonetization period and also no penalty proceeding u/s 271D of the Act was initiated and consequently, he revised the assessment framed by Ld. AO. We observe from the facts of the case and from the rival contentions that the issue was examined during the course of assessment proceedings by the AO and on the basis of the evidences furnished by the assessee a plausible view was taken which appears to be not contrary to the facts on record and therefore, the opinion of Ld. Pr. CIT t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not vest the Commissioner with the power to re-examine the accounts and determine the income himself at a higher figure as it is because the AO has exercised the quasi-judicial power vested in him in accordance with law and arrive at a conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. Similarly, in the case of Malabar Industries Vs. CIT reported in 243 ITR 83 (SC) the Hon'ble Court has held that the provisions of Section 263 of the Act cannot be invoked to correct each and every type of mistake or error committed by the AO and it is only when an order is erroneous that the Section will be attracted. Hon'ble Court further held that an in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
