TaxTMI 
TaxTMI 
2015 (7) TMI 1351
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....ical and required no separate adjudication, therefore both these appeals were heard together and disposed of by this common order for the sake of convenience. It was agreed that appeal of the assessee in ITA No. 3375/M/10 shall be considered. 2. The sum and substance of the grievance of the assessee is that the CIT erred in holding that the assessment order made u/s. 143(3) is erroneous in so far as it is prejudicial to the interest of the Revenue. 2.1. The Ld. Counsel for the assessee pointed out that the contentious issues in this appeal relate to (1) pre-operative expenses and depreciation allowable on fixed asset (2) pre-operative expenses alleged to be claimed by the assessee and (3) set off of brought forward business loss. 2....
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....y followed the findings given in earlier assessment orders therefore there is no application of mind by the officer. All the additions /disallowances made by the AO are in line with the findings given in earlier year's assessment orders. Therefore, the assessment order is devoid of application of mind. In support, the Ld. DR strongly relied upon the decisions of the Tribunal Mumbai Bench in the cases of Vikrant Auto Suspension 150 ITD 495, Arvee International Vs ACIT101 ITD 495, Hon'ble High Court of Bombay in the case of CIT Vs Shivanand Electronics 209 ITR 63 and Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. Vs CIT 243 ITR 83. It is the say of the Ld. DR that the AO has made the assessment based on a stereo typed query ....
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....s. 263 of the Act. 4.1. Vide query No. 24, the Ld. CIT has observed that the assessee has been allowed set off of unabsorbed business loss and depreciation of Rs. 29.60 crores. The set off to the loss for A.Y. 2003-04 have been allowed twice, whereas the Ld. CIT in his order made u/s. 263 on page-2, while computing the set off given by the AO has specifically mentioned that the AO has allowed enhanced brought forward losses consequent to CIT(A)'s order. Since the AO has allowed set off which is based on the order of the Ld. CIT(A), it cannot be said that there is no application of mind on the part of the AO. 4.2. In so far as the claim of professional fees is concerned, according to the Ld. CIT, this amount is inadmissible u/s. 40a(ia....
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.... the order being erroneous" 5. Now, let us see in the light of the above ratio whether the assessment has been made on an incorrect assumption of facts or an incorrect application of law. 5.1. The claim of the DR that the assessment order is devoid of any application of mind on the part of the AO cannot be accepted. Section 114(e) of the Evidence Act provides that there is a presumption that judicial and official acts have been regularly performed, therefore, the order of the AO was after due application of mind. For this proposition, we derive support from the decision in 366 ITR 593. 6. The AO has taken a view which may be different from the view of the Ld. Commissioner and assuming that the view taken by the AO is a loss to the ....