TaxTMI 
TaxTMI 
2014 (2) TMI 1242
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....al has allowed the appeal filed by the assessee and has set aside the order passed by the Commissioner of Income Tax-II, Jodhpur ['the CIT'] on 24th March, 2005 in exercise of his powers under s. 263 of the IT Act, 1961 ['the Act']. This appeal has been admitted on the following substantial question of law: "1. Whether in the facts and circumstances of the case, the Tribunal was legally justified in setting aside the order passed by the CIT-II, Jodhpur under s. 263 of the Act treating the said order as invalid and without jurisdiction?" 2. The sum and substance of the case, so far relevant for the appeal, is that the assessee, an AOP came into being in the year 1993 to carry on the business of purchase and sale of agri....
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....ess income of the assessee and to this extent the order passed by the AO is erroneous and requires to be set aside u/s 263 of the IT Act.' ..... 'The order of the AO is erroneous in treating Rs. 38.17 lakhs as business income as money received as advance cannot be treated as income. I, therefore, set aside this order passed by the AO in considering Rs. 38.17 lakhs as business income whereas the addition should have been considering the same as undisclosed income of the AOP and to this extent the order of the AO is erroneous and is set aside, in so far as it is prejudicial to the interest of Revenue." 4. In appeal, the Tribunal found such an approach of the CIT erroneous and wholly without jurisdiction. The Tribunal also observed ....
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....ess income and taxed the same under the head 'income from business' that is sale of agricultural land. This view of the learned AO is legally permissible view. Nothing has been argued by the department that it is not a legally permissible act of the learned AO." 5. Aggrieved by the order aforesaid, the Revenue has preferred this appeal which has been admitted on the question of law as noticed at the outset. 6. After having heard on the matter and having examined the record with reference to the law applicable, we find absolutely no force in this appeal. 7. In the case of CIT vs. Ganpat Ram Bishnoi, DB IT Appeal No. 43 of 1999, reported at [2005] 198 CTR (Raj) 546 : [2008] 296 ITR 292 (Raj), this Court has observed, as regar....
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.... to go into the process of assessment again and again merely on the basis that more enquiries ought to have been conducted to find something. The finding of the Tribunal that the ITO had passed the assessment order after relevant enquiries and considering the aspects of the matter required by the CIT to be considered by him is a finding of fact and on the basis of which, the jurisdiction assumed by the CIT being non-existent must be held to be not sustainable." 8. In the present case, it is more than apparent that the learned Commissioner has proceeded to invoke his jurisdiction under s. 263 of the Act only on his own opinion as to how the amount of the income concerned ought to have been treated. We may observe that so far this amoun....