TaxTMI 
TaxTMI 
2018 (4) TMI 328
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....o the interest of revenue on the ground that the allowability of loss in future option as an admissible business expenditure remained to be seen by the AO during the assessment proceedings although prime facie evidence against its allowability was there on record and AO has not made proper enquiry before completing assessment regarding this issue. By not checking the above issue and by not making adequate enquiry the Assessing Officer has not assessed the proper income and the order has become erroneous and prejudicial to the interest of the revenue hence set aside the order. 2. That any other grounds of appeal may kindly be allowed at the time of hearing." Shri S.M. Surana, Ld. Advocate appeared on behalf of assessee and Shri G. Hangshing, Ld. Departmental Representative appeared on behalf of Revenue. 2. Briefly stated facts are that assessee in the present case is an individual and deriving her income from interest, director's remuneration and dividend. The assessee for the year under consideration filed her return of income declaring at nil, which was processed u/s 143(1) of the Act. Subsequently the case was selected under scrutiny and accordingly the notice u/s ....
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....mpleting assessment regarding this issue. By not checking the above issue and by not making adequate enquiry the Assessing Officer has not assessed the proper income and the order has become erroneous and prejudicial to the interest of the revenue. In view of the above, the order dated 02/03/2015 passed by ITO, Ward- 43(1), Kolkata is found to be erroneous and prejudicial to the interest of revenue and hence set aside on the above limited issue with the direction to pass fresh assessment order after examining the evidence and documents in respect of the above issue raised after giving opportunity to the assessee and in accordance with law." Against the order of Ld. Pr. CIT the assessee is in appeal before us. 3. Ld. AR before us filed paper book which is running pages from 1 to 28 and reiterated the submissions that were made before Ld. Pr. CIT. He also submitted that Ld. Pr. CIT was not confident enough in holding the assessment order as erroneous which is causing prejudice to the interest of Revenue as he has given a finding that some aspects have not been seen by the AO during the assessment proceedings. Similarly, Ld. Pr. CIT has also observed in his impugned ....
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....f enquiry". Although apparently the assessment does not give any reasons why purchased were not being added as income, that by itself would not be indicative of the fact that the AO has not applied his mind to the issue. AO is not required to give detailed reason in respect of each and every item of deduction in the assessment order. AO had called for explanation regarding suppressed sales and the assessee had furnished his explanation. Thus, it cannot be said that it is a case of 'lack enquiry'. Further, even the CIT is not clear as to whether entire purchases has to b. added or peak purchases has to be added or the entire sales has to be added as income. Therefore, the view taken by the AO was one of the possible views and the assessment order passed by the AO could not be held to be prejudicial to the Revenue. Even the CIT conceded the position that the AO made the inquiries, elicited replies on Gross Profit and thereafter passed the assessment order. The grievance of the CIT was that the AO should have made further inquiries as to whether any addition has to be made on account of unrecorded purchases or whether the entire suppressed sales and to be regarded as income of....
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....were called for examination and opinion had been formed by the Assessing Officer while passing the original assessment order on 30.06.2006. This has not been shown to be fallacious. In this situation, we are of the considered view that the order passed under section 263 is unsustainable in law in so far as inquiry has been done by the Assessing Officer when passing the original assessment order. In such circumstances, the order passed by the ld. CIT under section 263 dated 24.03.2009 for the assessment year 1999-2000 stands quashed." Ld. AR for the assessee further relied on the order of the co-ordinate Bench of this Tribunal in the case of M/s Damodar Developers P. Ltd. vs. CIT in ITA No.1216/Kol/2014 for A.Y 2009-10 dated 16.12.2014, wherein the Tribunal has held:- "7. Now, we examine the present order of the ld. CIT on the anvil of aforesaid provisions and case law. In this case, the ld. CIT has observed that the assessee had made certain payments of rent, consultancy charges, professional charges and sales promotion charges. The ld. CIT has opined that this sum has to be disallowed u/s. 40(a)(ia) of the Act, as the assessee had not deducted the TDS thereon. No....
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.... "... ... During the year under consideration the assessee derived income from interest, director's remuneration & dividend whereas suffered loss in future option and sale of shares. Details filed have been test checked. Fresh loans during the year have been verified. In regard to loss from currency futures transactions reference u/s. 133(6) of the Act made to National Stock Exchange and verified from the reply received." Besides the above, we also observed that Ld. Pr. CIT in his impugned order has duly admitted the fact that necessary documents explaining the loss in future & option were available on record. Yet the Ld. Pr. CIT was of the view that proper enquiry has not been made during the assessment proceedings. Accordingly, the order was held erroneous in so far as prejudicial to the interest of Revenue. From the above finding of AO we observe that the assessment was framed after necessary verification. We also note that Ld. Pr. CIT himself was also not clear about the error which is causing prejudice to the interest of Revenue. We further observe that provision of Section 263 of the Act does not give any power whatsoever to the Ld. CIT to remit the issue to the....