TaxTMI 
TaxTMI 
TaxTMI 
2016 (5) TMI 1453
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....hat in your case, the assessment was completed u/s 153C /143(3) of the Income Tax Act, 1961 at an income of Rs. 49,500/- on 30.12.2010. 2. It is seen from the assessment record of A.Y. 2003- 04, that an amount of Rs. 1,79,00,000/- has been received as share capital from the various parties, in this regard, you have filed the details of fresh capital received during the year. In your reply dated 26.11.2010, copies' of Form No. 2 as per Company Act, 1956 for allotment of shares, copies of application for allotment of shares made by the applicants have also been enclosed. After going through, the details and documents submitted by you before the AO, 1 find that genuineness of the transactions for share capital introduced during the year and creditworthiness of the applicant are not proved by these documents. Neither the AO has made any further effort to investigate the genuineness or creditworthiness of the applicant, The AO has accepted the investment to share capital paid during the year without proper evidence. Therefore, his order dated-- 13.12.2010 passed u/s 153C r.w.s. 143(3) is erroneous and prejudicial to the interest of the revenue to the extent of fresh capital amount....
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....rough the contention of the assessee as also perused the judgements relied upon and do not find any merit in the assessee's case. It is not in dispute that the AO has merely taken the documents on records as were submitted during the course of assessment proceedings and has mechanically accepted them as true and correct without there being any further inquiries caused as to the genuineness of the creditors. From the fact as has been stated earlier that during the course of some search it was also found that the assessee company was a beneficiary "of various entry providers who had acknowledged the said fact that they were the entry providers only and had not actually subscribed to any such shares. It was in these circumstances that had the AO investigated the issue at with regards to genuineness of the transactions the position would have been difference and therefore by not making the proper inquiries the order of the AO is erroneous and since the amount which should have been brought to tax the same is also prejudicial to the interest of the revenue. XXXXXXX 5.Thus from the facts of the case as has been appreciated it is clear that the assessing officer has completed the asse....
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....reference to CD is absolutely vague. The Ld. CIT never confronted the assessee with the so called evidence and nor was the assesseee even made aware as to who the supposed entry operators were and what evidence against the assessee was provided by them. He submitted that it is judicially settled that the CIT cannot act on assumptions and presumptions while assuming jurisdiction u/s 263. He is bound to establish that the assessment is erroneous and prejudicial to the interest of revenue. The Ld. AR submitted that the department has not been able to give the copy of evidence against the assessee, if any, contained in the so called CD in spite of specific request having been made. It was also submitted that the attention of Ld. CIT was drawn to various rulings for various propositions of law in reply to the show cause notice but he has not considered any of the rulings cited before him. In light of the facts and the settled law, it was submitted that the appeal of the assessee be allowed. 6. The Ld. DR, in response, submitted that the impugned order had been passed after due consideration of the facts of the case and that the Department had a specific information about accommodation ....
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....annot be terms as "erroneous" unless it is not in accordance with law. If Assessing Officer acting in accordance with law makes a certain assessment, the same cannot be branded as "erroneous" by the Commissioner simply because, according to him, the order should have been written differently or more elaborately. The Section does not visualize the substitution of the judgment of the Commissioner for that of the Assessing Officer, who passed the order unless the decision is not in accordance with law. Then again, any and every erroneous order cannot be the subject matter of revision because the second requirement also must be fulfilled. There must be material on record to show that tax which was lawfully exigible has not been imposed [See Gabriel India Ltd. (supra)]. However, the expression "prejudicial to the interest of the revenue", as held by the Hon'ble Supreme Court in the Malabar Industrial Co. Ltd.'s case, is not an expression of art and is not defined in the Act and, therefore, must be understood in its ordinary meaning. It is of wide import and is not confined to the loss of tax [see Dawjee Dadabhoy & Co. (supra), CIT vs. T. Narayana Pai (1975) 98 ITR 422 (KAR), CIT vs.....
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....not be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately. This section does not visualize a case of substitution of the judgment of the Commissioner for that of the Incometax Officer, who passed the order unless the decision is held to be erroneous. Cases may be visualized where the Income-tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the commissioner he would have estimated the income at a figure higher than the one determined by the Income-tax Officer. That would not vest the Commissioner with power to re-examine the accounts and determine the income himself at a higher figure. It is because the Income-tax Officer has exercised the quasi-judicial power vested in him in accordance with law and arrived at conclusion and such a conclusion cannot be termed to be erroneous simpl....
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....he ground that the Assessing Officer had not made proper enquiries, the Tribunal was held justified in reversing the order of the commissioner and restoring that of the assessing officer. Commissioner cannot re- examine accounts and substitute his judgment for that of the Assessing Officer. An order cannot be termed as erroneous unless it is not in accordance with law. If assessing officer makes assessment in accordance with law, the same cannot be branded as erroneous by the commissioner simply because, according to him, the order should have been written more elaborately. This section does not visualize a case of substitution of the judgment of the commissioner for that of the Assessing Officer unless the decision is held to be erroneous. Cases may be visualized where the Assessing Officer examines the accounts, makes enquires, applies his mind to the facts and circumstances of the case and determines the income either by making the accounts or by making some estimates himself. The commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer was on lower side and, left to the commissioner, he would have estimated the income at a higher figu....