TaxTMI 
TaxTMI 
2016 (1) TMI 1306
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....ess premises of the assessee as on 26.9.2008 and the assessee surrendered an amount of Rs. 80,50,000/- on account of excess claim. IN its return of income, the assessee has claimed deduction under section 80IB of the Act amounting to Rs. 39,02,098/- being 30% profits derived during the year. The said deduction was claimed including the income of Rs. 80,50,000/- surrendered during the survey. The learned Commissioner of Income Tax was of the view that the said deduction was allowed by the Assessing Officer without making any enquiry during the assessment proceedings under section 143(3) of the Act. As the surrendered income could not be considered as profits derived from business, the deduction under section 80IB is not allowable on the same. 3. The assessee submitted before the learned Commissioner of Income Tax that the claim of deduction under section 80IB of the Act was duly disclosed by the assessee with the return of income filed with Trading and Profit & Loss Account, balance sheet and audit report in Form No.10CCB computing the deduction under section 80IB of the Act at Rs. 39,02,098/-. A survey under section 133A of the Act took place at the business premises of the asse....
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....arned counsel for the assessee, first took us to various pages of the Paper Book filed by the assessee. Page 3 is the questionnaire issued by the Assessing Officer dated 19.1.2011 during the assessment proceedings, whereby at point No.3, a copy of report in support of claim of any exemption under section 10A/10B etc. and/or deduction under Chapter VI complete in all respects is asked for. Page 4 is the reply of the assessee dated 31.1.2011, annexed with the Form No.10CCB for claiming deduction under section 80IB of the Act. At page 5 the copy of Form No.10CCB starts and at page 9 the amount of said claim amounting to Rs. 39,02,098/- being 30% of Rs. 1,20,06,994/- is mentioned. Page 12 is the letter dated 26.9.2008 filed by the assessee during the course of survey, whereby the surrender was made. Our attention was specifically invited to the following sentences : "I Vipin Kumar, Managing Director of M/s Kudu Knit Process (P) Ltd., voluntary surrender a sum of Rupees Eighty Lacs and Fifty Thousand Only as income out of our manufacturing business of the Company and Rupees Nineteen Lacs Fifty thousand Only in the construction or Building No.D-359 (Total Rupees One Crore). The ....
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....006, whereby in the similar circumstances deduction under section 80IB of the Act is allowed on the income surrendered during the course of assessment. 8. The learned D.R., while relying on the order of the learned Commissioner of Income Tax, submitted that the findings of the learned Commissioner of Income Tax is corroborated by the order sheet dated 2.11.2011 and 23.11.2011 and the submission made by the assessee. A copy of order sheet was filed before us. He further submitted that the Assessing Officer has not made any enquiry regarding deduction under section 80IB of the Act as was necessitated from the fact that a survey was conducted in the case and an additional income was surrendered. The Assessing Officer had simply asked the assessee to give calculation of deduction under section 80IB of the Act regarding the surrendered income, the learned Commissioner of Income Tax was well within his power to confer jurisdiction under section 263 of the Act. The learned D.R. placed reliance on the following judgments : (i) Malabar Industrial Co. Ltd. Vs. CIT 243 ITR 83 (SC) (ii) Gee Vee Enterprises Vs. Addl.CIT 99 ITR 375 (Del) (iii) CIT Vs.Raja Industries....
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.... proper enquiry is conducted by the Assessing Officer and the Assessing Officer has taken a view permissible under the law, the Commissioner of Income Tax cannot sit over the judgment of the Assessing Officer as to the extent of enquiries to be conducted and order cannot be said to be erroneous. However inadequate an enquiry may be, the Commissioner of Income Tax cannot impose his view over the view taken by the Assessing Officer. However, in case on some enquiry, the Assessing Officer takes a view which is contrary to any law for the time being inforce, then the order can be said to be erroneous. 11. Now, we will analyze the facts of the present case to the law as described hereinabove. This is certainly not a case of no enquiry at all. The Assessing Officer, though, has not written in very clear terms, in his order, the reason for his getting satisfied as to the surrendered income being business income, from the record, it is quite clear that he was agreeable to the assessee's stand through out that the surrendered income is its business income. Therefore, at most, it can be a case of inadequate enquiry, which we have already explained, cannot be a reason to hold the order to ....