2016 (2) TMI 920

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....263 of the Act as the assessment order is neither erroneous nor pre-judicial to the interest of the revenue. 3. In this case, the assessment order was made u/s. 143(3) of the act vide order dated 18th July, 2012, invoking the powers conferred upon him u/s. 263 of the Act. The Commissioner issued and served notice u/s. 263 of the Act dated 19th September, 2014. In his show cause notice, the Commissioner was of the firm belief that during the course of assessment proceedings, the Assessing Officer mechanically accepted the opening balance of Rs. 1, 49,45,664/- and then debits of interest, brokerage, TDS and commission totaling to Rs. 7,37,493/- and accepted the capital gain of Rs. 3,16,843/-, without making any inquiry to verify the allowa....

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.... the findings of the Commissioner. We have given a thoughtful consideration to the rival submissions. We have also gone through the impugned assessment order and the order of the Commissioner made u/s. 263 of the Act. We have also considered the relevant documentary evidences brought on record before us. The first thing which has to be considered is whether the ld. Commissioner has rightly assumed the power u/s. 263 of the Act. The Hon'ble Supreme Court in Malabar Industrial Co. Ltd. 243 ITR 83 has laid down the following ratio:- "A bare reading of section. 263 of the Income-tax Act, 1961, makes it clear that the prerequisite for the exercise of jurisdiction by the Commissioner suo motu under ii, is that the order of the Income-tax....

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....ised during the course of the assessment proceedings. 9. Now, let us see the reply of the assessee which is at Page No. 7 of the paper book and the relevant part read as under:- 6. Copy of purchase and sale deed of plot no. 113/2/2 is enclosed here with. 7. Working of capital gain is as per return of income. 8. As regard investment of Rs. 14945664/- it is stated that it is a amount of last year investment there was no new investment made during the year and no amount shown as a investment as on 31.03.2010 balance sheet. 10. Thus, it can be seen that specific queries were replied specifically. 11. Again on 09.07.2012, the assessee furnished breakup of investment and copy of fresh computation. We also find ....