TaxTMI 
TaxTMI 
TaxTMI 
2019 (6) TMI 708
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....cumulated losses and Ld. AO allowed the set off brought forward loss of earlier years at Rs. 54,00,565/- as against Rs. 19,78,185/- claimed by the assessee. 3. Against this addition assessee preferred an appeal before the Ld. CIT(A) but partly succeeded. Against the order of Ld. CIT(A) dated 02.01.2014 both the assessee and revenue came in appeal before the Tribunal and vide order dated 05.10.2015 in ITANo.248 &226/Ind/2014,Tribunal restored the issue of verification of genuineness of five creditors to the file of the Ld. AO with a direction that the assessee shall provide correct address ad details. Necessary verification shall be made by the Assessing Officer to test the genuineness of the creditors totalling to Rs. 10,73,727/- . 4. In compliance to the directions given by the Tribunal vide order dated 05.10.2015. Ld. AO carried out the proceedings u/s 143(3) r.w.s. 254 of the Act and vide order dated 28.11.2016 confirmed the addition of Rs. 10,19,818/- pertaining to 4 creditors holding them to be non-genuine. 5. Ld. Pr. CIT-2 invoked the powers vested with her u/s 263 of the Act and held that the order of the Ld. AO framed u/s 143(3) r.w.s 254 of the Act dated 28.11.2016 is e....
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.... u/s 143(3) r.w.s 254 of the Act on the ground that the Ld. AO has not conducted proper inquiry relating to computation of books profits u/s 115JB of the Act and tax payable thereon. Ld. Pr. CIT issued following show cause notice for initiating proceedings: Sub- Notice u/s 263 of the Income Tax Act, 1961-A.Y. 2007-08, show cause-Reg. Please refer to the order u/s 143(3)/254 dated 28.11.2016, passed by ITO-3(3) Bhopal, for A.Y. 2007- 08, whereby total income was assessed at Rs. Nil. 2. Perusal of the order u/s 143(3)/254 dated 28.11.2016, reveals that the income of the assessee was revised as per order u/s 254/143(3) dated 28.11.2016 at Rs. Nil after setting off loss of Rs. 28,50,884/- under MAT provisions, such non assessment of book profit resulted into short levy of tax of Rs. 3,19,800/-+ interest u/s 234B. 3. Assessment in the said case, 143(3)/254 dated 28.11.2016, was finalized without considering the above mentioned facts relating to MAT provisions. This omission on part of the AO, renders the order u/s 143(3)/254 dated 28.11.2016, for A.Y. 2007-08, erroneous as well as prejudicial to the interests of revenue. Therefore, I propose to invoke powers vested u/s 263 of th....
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....records relating to any proceeding under this Act available at the time of examination by the Principal Commissioner or Commissioner; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal filed on or before or after the 1st day of June, 1988, the powers of the Principal Commissioner or] Commissioner under this sub-section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal. Explanation 2.-For the purposes of this section, it is hereby declared that an order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue, if, in the opinion of the Principal Commissioner or Commissioner,- (a) the order is passed without making inquiries or verification which should have been made; (b) the order is passed allowing any relief without inquiring into the claim; (c) the order has not been made in accordance with any order, direction or instruction issued by the Board under section 119; or (d) the order has not been passed in accordance with any decision which is pr....
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....ue has failed to controvert the findings of the Learned CIT(A) in respect of 16 creditors which have been accepted by Learned CIT(A) as genuine, therefore we find no merit in the appeal of the revenue. However, in respect of fiver creditors which were held to be non-genuine, we hold that certain more facts need to be brought on record to decide the issue, therefore, after hearing both the sides, we restore this issue to the file of the Assessing Officer to decide de novo. The assessee shall provide correct addresses of these five creditors and the Assessing Officer will verify whether these concerns are showing outstanding in their books of accounts against the assessee. Whether the creditors are genuine or not. After considering all these, assessing officer shall decide the issue as per law. 15. We observe that Hon'ble High Court of Gujarat in the case of Garden Silk Mills Ltd. vs. CIT 221 ITR 861 gave following observations which to some extent are connected to the instant appeal: "We are of the view that merely because the Department is contemplating to file a special leave petition, the Commissioner cannot refuse to follow the decision when the court has settled the la....