TaxTMI 
TaxTMI 
2022 (9) TMI 925
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....ment was selected for "limited scrutiny" under CASSconsidering the large value of cash deposits during the demonetisation period. The information was called for by the ld. AO. After the detailed examination by issuing notice u/s 142(1) the assessing authority was satisfied & had completed the scrutiny with Nil demand. After the order of ld. AO u/s 143(3), the ld. PCIT had issued the notice u/s 263 for incomplete verification during assessment related to deposit of cash during demonetisation period. Considering the assessment order as erroneous, the ld. PCIT had set aside the order of ld. AO and directed for fresh assessment. 3. Being aggrieved, assessee filed an appeal before us. 4. During hearing proceeding before ITAT, none was present on behalf of the assessee. The matter was taken up for adjudication with the consent of ld. CIT DR. The orderod assessment was passed u/s 143(3). The relevant para of theorder of PCIT is extracted as below:- "Return declaring income of Rs.5,43,450/- was e-filed by the assessee vide acknowledgment no. 558876240300318 on 30.03.2018, which was processed u/s 143(3) of the Income Tax Act, 1961. Later on, the case of the assessee was picke....
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....of Acknowledgements of their ITRs for AY 2017-18 were filed. A confirmation from her other son Ravi Gupta was filed stating that he had paid cash rent in advance to the assessee. No source or details of cash-in-hand or of the personal savings was filed. (iii). The AO was not satisfied with the above documents/ explanation filed by the assessee. So, vide notice u/s 142(1) of the Act dt 8.11.19, the assessee was asked by the AO to furnish the position of her cash in hand as on 31.3.15 and 31.3.16 . She was also asked to explain how the personal savings of Rs 2,50,000/- were accumulated. Vide further notice u/s 142(1) of the Act dt 2.12.19 the AO informed the assessee that the confirmations filed from son and husband were not satisfactory as even dates of the cash gifts had not been mentioned. The assessee was asked to file bank statements of her husband and son from whom she had claimed the cash gifts of Rs 2,60,000/- and Rs 2,50,000/-. Similarly, the date of payment of the advance rent had not been mentioned in the confirmation filed. The asessee was asked to file copy of Rent Deed executed by her with her son Sh Ravi Gupta from whom she had claimed receipt of Rs. 2,10,000/....
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....ure higher than the one determined by the Income tax officer. That would not vest the Commissioner with power to 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 a conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. . . . There must be some prima facie material on record to show that the tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation a lesser tax than what was just has been imposed." The Hon'ble High Court has considered the definitions given to the words "erroneous", "erroneous assessment" and "erroneous judgment" in Black's Law Dictionary and accordingly held that an order cannot be termed as erroneous unless it is not in accordance with law. An order can be termed as "erroneous" only if it is not in accordance with the law. 7.2. The Hon'ble Delhi High Court has also followed the above said view in the case of Sunbeam Auto....
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....ous and not debatable. The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous. Finding that the order is erroneous is a condition or requirement which must be satisfied for exercise of jurisdiction under section 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply and mean the Commissioner of Income tax has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question...." 7.4. The law interpreted by the Hon'ableHigh Courts make it clear that the Ld. PCIT, before holding an order to be erroneous, should have conducted necessary enquiries or verification in order to show that the finding given by the assessing officer is erroneous, the Ld. PCIT should have shown that the view taken by the AO is unsustainable in law. In the instant case, the Ld PCIT has failed to do so and has simply expressed the view that the assessing officer should have conducted enquiry in a particular manner as desired by him. Such a course of action of the Ld. PCIT is not in accordance with the mandat....