TaxTMI 
TaxTMI 
2016 (11) TMI 1419
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....ry relating to head "unaccounted income". 3. Whether on the facts and in the circumstances of the case the Income-tax Appellate Tribunal was justified in law in quashing the order under section 263 of the Income-tax Act passed by the Commissioner of Income-tax, Bhopal when the Commissioner of Income-tax, Bhopal has rightly invoked the provisions of section 263 of the Income-tax Act, 1961 only after examination of the record of assessment proceedings and after being fully satisfied that the order passed by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the Revenue and only after giving due opportunity to the assessee of being heard and after making or causing to be made such inquiry as he deemed necessary." The respondent-assessee filed a return for the assessment year in question on July 28, 2009 declaring a total income of Rs. 3,55,440 and an agricultural income of Rs. 2,28,428. Prior to that on July 21, 2008, a search and seizure operation under section 132 of the Income-tax Act was conducted at the residence of one Shri Mukesh Sharma and certain documents were seized in the search and seizure purported to be relating to the pres....
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....ommissioner, an appeal was filed by the respondent-assessee before the Income-tax Appellate Tribunal and vide order dated November 25, 2014 annexure A-4 the Tribunal having allowed the appeal, this appeal under section 260A by the Revenue. 4. The Commissioner while exercising his jurisdiction of revision under section 263 analysed the entire order of assessment and came to the conclusion that, if the income received by the assessee from M/s. Nagarjuna Constructions Company Ltd. comes to Rs. 16.02 crores and from M/s. Simplex Infrastructure Ltd. to Rs. 10.50 crores then addition of only Rs. 14,24,60,600 and Rs. 1,53,41,000 was not proper, it amounts to erroneous assessment and, therefore, exercised jurisdiction under section 263 and remanded the matter back to the Assessing Officer. However, while doing so, the Commissioner failed to consider various aspects of the matter dealt with by both the Assessing Officer in its order of assessment and by the appellate authority in its order dated December 12, 2012, the Assessing Officer while undertaking the appraisal of evidence took note of various documents and evidence that came on record, classified them as primary evidence and corro....
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....nother person, it needs to be established that the latter is the ultimate beneficiary and was enjoying the fruits of transaction. It was held that this fundamental requirement of enjoying the fruits by someone other than the ostensible owner is missing. In this case, it was after analysing all these aspects of the matter in detail that the learned appellate authority interfered in the matter and now power is sought to be exercised under section 263 to say that the Assessing Officer has committed an error in not adding the entire amount of income received and, therefore, an error is committed. 5. The Appellate Tribunal in paras. 5.1 and 5.2 records its finding with regard to the matter particularly with regard to the consideration made by the Assessing Officer in the following manner, which reads as under : "5.1 On the basis of the portion reproduced from the assessment order it is evident that the Assessing Officer was conscious about the importance of the evidences hence considering those evidences he has held that a sum of Rs. 14,24,60,600 was required to be added in the hands of the assessee on account of proceeds received from Nagarjuna Construction Company through ....
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.... Income-tax that certain new facts or evidences were brought to the notice of the Revenue-Department which were having the direct impact on the income assessed by the Assessing Officer. Neither there was an escapement of evidence nor there was any evidence now brought to the notice of the Revenue-Department, therefore, if that was not the position, then we are not inclined to give our approval to such directions." and thereafter took note of the detailed order passed by the Commissioner of Income-tax on December 12, 2012 as we have indicated hereinabove and held that in this case exercise of jurisdiction under section 263 was not warranted. 6. Having heard the submissions made by Shri Sanjay Lal, counsel for the Revenue and Shri Sumit Nema, counsel for the respondent at length, we find after going through the records that the entire proceedings impugned for addition of the amount were based on the documents seized from the premises of Shri Mukesh Sharma. It has been found that these documents were not in the handwriting of the appellant, the accounts on which the amount were transferred did not belong to the assessee, only because the intermediaries in whose name benefit were....
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....ated as prejudicial to the interests of the Revenue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue ; or where two views are possible and the Income-tax Officer 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 Income-tax Officer is unsustainable in law. It has been held by this court that where a sum not earned by a person is assessed as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the Revenue." 8. It is clear from the aforesaid that if two views are possible and if the Assessing Officer has taken a view with which the Commissioner does not agree, it cannot be treated as an erroneous order, prejudicial to the interests of the Revenue. In this case also the Assessing Officer appreciated the entire aspect and came to one conclusion and merely because a different view was possible the exercise of power under section 263 could not be made. The Appellate Tribunal....
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.....02 crores and Rs. 10.50 crores, then making an addition to the tune of only Rs. 14,24,60,600 and Rs. 1,53,41,000 is not proper. This is the only reason for holding the order of the Assessing Officer to be erroneous. However while doing so, the authority namely the Commissioner of Income-tax exercising jurisdiction under section 263 lost sight of the fact that the learned Assessing Officer in detail had gone into this aspect of the matter and has recorded a specific finding to say that appreciating the primary evidence from Nos. 1 to 9 along with corroborative evidence 1 to 6 an addition of only Rs. 14,24,60,600 can be made and similarly by considering primary evidence 1 to 5 along with corroborated evidence No. 7 an addition of Rs. 1,53,41,000 only permissible, thus on a due analyses of the evidence, the Assessing Officer arrived at a particular conclusion and if this is one of the views possible based on evidence that were appreciated by the Assessing Officer, merely because a different view was possible interference under section 263 on this count could not be made. Thereafter this addition is also analysed by the appellate authority in detail while passing the order originally ....