2008 (9) TMI 961

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....3. 3. Briefly, the facts of the case are that the assessee had claimed exemption of Rs. 6,59,17,776 under s. 10B of the IT Act, 1961, which was allowed by the AO based on permission dt. 30th May, 2001 given by the Development Commr. SEEPZ Special Economic Zone for export oriented unit as per the provisions of the Export Oriented Unit Scheme as envisaged in Export Import Policy 1997-2002. On examining the records, the CIT was of the view that approval for 100 per cent export oriented undertaking has not been granted by the authority prescribed under the IT Act, exemption under s. 10B is not allowable and therefore the AO has committed an error by granting exemption under s. 10B. For this, the CIT has placed reliance on the decision in the....

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....he claim of the assessee. (e) Notice under s. 263 may be dropped or an adjournment of 15 days may be granted. 3.1 After dealing with the contentions of the assessee, the CIT held as under : "Since all the contentions raised by the assessee have not been found to be correct, the order for asst. yr. 2003-04 is erroneous so far as it has not considered whether the approval for 100 per cent EOU has been issued by an authority prescribed under the IT Act. Hence, the order is set aside to examine the issue afresh. The AO may give further opportunity to the assessee to prove whether the approval has been granted by the Board of Approval. He may also make further enquiries in this regard. However, as per the material available ....

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....fect is pointed out by the CIT, he has no jurisdiction under s. 263. The learned Authorised Representative in support of his contention relied upon a judgment of Andhra Pradesh High Court in the case of CIT vs. G.K. Kabra (1995) 125 CTR (AP) 55: (1995) 211 ITR 336(AP). It is also the submission of the learned Authorised Representative that in case the issue is debatable, when AO accepted one view, the CIT cannot exercise power under s. 263 following other possible view. The learned Authorised Representative in support of his contention relied upon the judgment of the apex Court in the case of Malabar Industrial Co. Ltd. vs. CIT (2000) 159 CTR (SC) 1: (2000) 243 ITR 83(SC). 5. The learned Departmental Representative, on the other hand, su....

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....-section,- (a) an order passed on or before or after the 1st day of June, 1988 by the AO shall include- (i) an order of assessment made by the Asstt. CIT or Dy. CIT or the ITO on the basis of the directions issued by the Jt. CIT under s. 144A; (ii) an order made by the Jt. CIT in exercise of the powers or in the performance of the functions of an AO conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief CIT or Director General or CIT authorised by the Board in this behalf under s. 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 ....

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....e interests of the Revenue". It is not an arbitrary or unchartered power. It can be exercised only on fulfilment of the requirements laid down in sub-s. (1). The consideration of the CIT as to whether an order is erroneous insofar as it is prejudicial to the interests of the Revenue, must be based on materials on the record of the proceedings called for by him. If there are no materials on record on the basis of which it can be said that the CIT acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. The power of suo motu revision under sub-s. (1) is in the nature of supervisory jurisdiction and the same can be exercised only if the circumstances....