TaxTMI 
TaxTMI 
2017 (10) TMI 1096
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....On the facts and circumstances of the case, the order of the learned Commissioner of Income Tax u/s 263 of the IT Act, 1961 is wrong, invalid, illegal & bad in law. 2. Brief facts of the case are that the assessee-company is engaged in Film exhibition, Cinema Advertisement etc., filed its return of income for relevant AY on 15.10.2010 declaring total income at Rs. 8,26,784/-. The assessment was completed on 18.03.2013 under section 143(3) of the Act. The Assessing Officer passed the assessment order by making certain additions/disallowances. Subsequently, the assessment was revised by ld. PCIT on 03.03.2015. Notice under section 263 dated 22.07.2014 was served on the assessee. In the notice, the ld. PCIT raised the following issue: (i) That assessee claimed credit of TDS of Rs. 2,54,69,821/-. In support of TDS credit attached TDS certificate. The credit was claimed on details available as per Form-26AS. However, the advertisement income in respect to those entities was neither offered to tax nor any explanation was given as to why credit for those TDS shown in Form 26AS claimed through income was not offered to tax. It was further mentioned that it would be reasonable t....
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....ex cinema. The assessee claimed depreciation to Multiplex Cinema unit for the first time in 2009-10 and thereafter reducing amount from cost of Multiplex cinema, net written down value (WDV) was carried forward to AY 2010-11. For AY 2010-11, the WDV of Multiplex cinema was carried forward as per the provision of section 43(6) and depreciation was claimed. During the assessment, the AO called various details and particular regarding the working of depreciation on fixed asset, which was furnished along with Audit Report. Depreciation for the first time claimed in the year under consideration, is not the first year in which the depreciation for building is claimed. Such claim was made in AY 2009- 10. Therefore, for AY 2010-11, the AO was not required to make any enquiry in view of the specific provision of section 43(6) of the Act defining the WDV of depreciable asset. The AO has simply to follow it in the following order which the AO has done no error was committed by the AO, as the AO has no occasion to make such enquiry. In alternative, the assessee has also made detailed note below the schedule of fixed asset in its Audit Report about the claim of depreciation and the AO being sat....
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....anting subsidy for relief to the Multiplex Theater. The AO on the basis of cinema ticket issued by the assessee-company disallowed the claim of deduction for Entertainment Tax; the assessee has shown income net of "Entertainment Tax" from ticket sales. Ticket sales do not show any portion towards Entertainment Tax. Thus, entire amount was required to be offered for tax, the AO was duty bound to examine and bring the said tax to the income. The ld. PCIT set-aside the assessment order and directed the AO to re-frame the assessment order after examining all three issues. Aggrieved by the order of ld. PCIT, the assessee has filed the present appeal before us. 5. We have heard the ld. Authorized Representative (AR) of the assessee and ld. Departmental Representative (DR) for the Revenue and perused the material available on record. The learned AR of the assessee argued that assessment order under section 143 (3) was passed on 08.03.2013. The assessing officer passed the order after examining all the issue raised by learned PCIT in its notice under section 263. The order passed by assessing officer is neither erroneous not prejudicial to the interest of revenue. The mare facts that th....
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....ntertainment tax treated as Capital subsidy, it was argued that assessing officer decided the nature of the subsidy after ascertaining from the scheme. The assessing officer was conscious about the nature of subsidy being capital in nature; the issue was properly examined by the assessing officer while passing assessment order. It was argued that the order passed by the assessing officer is neither erroneous nor prejudicial to the interest of revenue. 6. On the other hand the learned DR for the revenue supported the order of learned PCIT. It was argued that no details were called by assessing officer nor the assessing officer examined such claims of the assessee, on which the order is set-aside. Section 263 of Income tax Act empowers the Pr CIT or CIT to examine if the order passed by the assessing officer is in accordance with law or not or the assessing officer has not made adequate enquiry necessary related with the claims. It is not necessary even to issued notice to the assessee on a specific charge. The Commissioner of income tax has to give opportunity of hearing before revising the order, in case the order passed by assessing officer is erroneous and prejudicial to the i....
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....g officer is a quasi judicial authority and his order is amenable to appeal or revision. If nay finding of the assessing officer goes against the assessee, the order is amenable to statutory appeal provided under the Act. However, if the order is prejudicial to the interest of revenue, the remedy of appeal is not available to the revenue. Therefore section 263 is enacted to empower the Commissioner to exercise the power to invoke jurisdiction conferred under section 263 of the Act. Therefore, the order passed by assessing officer must be speaking and substantial. If the order passed by assessing officer is subversive of the administration of revenue, it must be regarded as erroneous and prejudicial to the interest of revenue. And the revenue is bound to suffer. In our considered view the order is prejudicial to the interest of revenue as per the provision of section 263; (i) if the order sought to be revised was passed without considering and referring the facts or contains error of facts or law, on the face of it, (ii) If the order is based on incorrect assumption of law or facts or allowed the relief silently, or (iii) If the order passed by assessing o....