TaxTMI 
TaxTMI 
2022 (8) TMI 675
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....and served upon the assessee. In response to the notice, the assessee has filed its return electronically declaring total income at Rs.1,50,00,160/- on 16.10.2017. The ld. Assessing Officer has passed the assessment order on 31.12.2017 under section 153A read with section 143(3) of the Income Tax Act, 1961. Ld. Assessing Officer has determined the taxable income of the assessee at Rs. 55,13,56,830/-. Dissatisfied with the determination of this income, the assessee carried the matter in appeal before the ld. CIT(Appeals) and ultimately it travelled to the Tribunal vide ITA No.2094/KOL/2017, IT(SS)A No. 42/KOL/2019. The Tribunal, apart from these two appals also heard other appeals for A.Ys. 2010-11 to 2016-17. The Tribunal has decided all these appeals vide its order dated 10.05.2022 and copy of this order is available on page no. 299 of the paper book. 3. Ld. Commissioner perused the record and thereafter formed an opinion that action under section 263 of the Income Tax Act is required to be taken against the assessee. Basically ld. Commissioner was of the view that deduction under section 80IB has been claimed by the assessee for its two Projects, namely Salarpuria Sanctity and S....
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....made on the basis of observation of the AO during search. The additions made inter alia include disallowance u/s 14A, disallowance of interest on service tax & TDS, disallowance of donation, membership and subscription and loss on sale of fixed assets, etc, the case of the assessee is squarely supported a series of decisions as decided by various judicial forums which have laid down the same ratio namely PCIT -vs.- Meeta Gutgutia (supra), CIT -vs.- Kabul Chawla and CIT -vs.- Continental Warehousing Corporation (Nhava Sheva) Ltd. Under these facts and circumstances and respectfully following the ratio as laid down in the above decisions, we hold that the additions have been made without any incriminating material found during the course of search and, therefore, cannot be sustained. The legal and jurisdictional grounds raised by the assessee are allowed". 5. On the strength of this finding, ld. counsel for the assessee contended that since the assessment order has been quashed, therefore, there is no foundation for the ld. Commissioner to assume jurisdiction under section 263 of the Income Tax Act. 6. On the other hand, ld. CIT(DR) relied upon the impugned order. 7. We have duly ....
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....g contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, National Tax Tribunal, the High Court or the Supreme Court. Explanation.- In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded." 8. A bare perusal of the sub section-1 would reveal that powers of revision granted by section 263 to the learned Commissioner have four compartments. In the first place, the learned Commissioner may call for and examine the records of any proceedings under this Act. For calling of the record and examination, the learned Commissioner was not required to show any reason. It is a part of his administrative control to call for the records and examine them. The second feature would come when he will judge an order passed by an Assessing Officer on culmi....
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....AO has taken one view with which the CIT does not agree. If cannot be treated as an erroneous order, unless the view taken by the AO is unsustainable under law. (vi) If while making the assessment, the AO examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determine the income, the CIT, while exercising his power under s 263 is not permitted to substitute his estimate of income in place of the income estimated by the AO. (vii) The AO exercises quasi-judicial power vested in his and if he exercises such power in accordance with law and arrive at a conclusion, such conclusion cannot be termed to be erroneous simply because the CIT does not fee stratified with the conclusion. (viii) The CIT, before exercising his jurisdiction under s. 263 must have material on record to arrive at a satisfaction. (ix) If the AO has made enquiries during the course of assessment proceedings on the relevant issues and the assessee has given detailed explanation by a letter in writing and the AO allows the claim on being satisfied with the explanation of the assessee, the decision of the AO cannot be held to be erroneous simply because in his ord....
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....hile passing assessment order. The observation of the Hon'ble court on pages 386 of journal read as under:- "...it is not necessary for the Commissioner to make further inquiries before cancelling the assessment order of the Income-tax Officer. The Commissioner can regard the order as erroneous on the ground that in the circumstances of the case the Income-tax Officer should have made further inquiries before accepting the statements made by the assessee in his return. The reason is obvious. The position and function of the Income-tax Officer is very diffident from that of a civil court. The statement made in a pleading proved by the minimum amount of evidence may be adopted by a civil court in the absence of any rebuttal. The civil court is neutral. It simply gives decision on the basis of the pleading and evidence which comes before it. The Income-tax Officer is not only on adjudicator but also an investigator. He cannot remain passive in the face of the return which is apparently in order but called for further inquiry. It is his duty to ascertain the truth of the facts stated in the return when the circumstances of the case are such as to provoke an inquiry... It is because....