TaxTMI 
TaxTMI 
2023 (6) TMI 1424
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....sessment year. 2. That the learned Pr. Commissioner of Income Tax has erred in law and in fact by passing an order under section 263(1) without considering the fact substantial expansion was established in the initial year of 2012-13 and the same is carried forward in the relevant assessment year. 3. That the learned Pr. Commissioner of Income Tax has erred in law by passing an order under section 263(1) where he had mentioned in the assessment order that AO has overlooked the issue in the assessment year 2012-13 where as the order u/s 263 has been passed for the assessment year 2013-14. 4. That the learned Pr. Commissioner of Income Tax has erred in law by passing an order under section 263(1) for the assessment year 2013-14 whereas he had concluded that AO has overlooked the issue in the assessment year 2012-13. 5. That the learned Pr. Commissioner of Income Tax has erred in law and in fact by passing an order under section 263(1) in accordance with the Explanation 2(c) where as no order/direction has been made to the AO as envisaged in Explanation 2(c). 6. That the learned Pr. Commissioner of Income Tax has erred in law and in fact by....
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....ces, total income was assessed at Rs. 5,31,38,970/-. Subsequently, Ld. Pr. CIT called for assessment records and on the basis of verification of the material, issued a show cause notice dated 31.12.2018, invoking the revisionary proceedings u/s. 263 of the Act. Observations made by Ld. Pr. CIT in the show cause notice are reproduced as under: It is noticed that the assessee has claimed deduction u/s 80IC amounting to Rs. 1,94,69,973/-. Subsequently , it is observed that the assessee had claimed deduction u/s 80IC upon the profit of unit IV Which has located at Plot No .210(102,104), Mouja judikalam behind plot No.69B(I) Dharampur pargana Dist. Solan, Himachal Pradesh. It is also seen from 10CCB Than Unit IV had total profit of Rs. 1,94,69,973/- during the year out of total sale of Rs.15,33,46,850/- Moreover, the date of commencement of business was 06/07/2006 and the initial assessment year from when deduction u/s 80IC (2) r.w section 80IC(3)(iii) being claimed was A.Y 2007-08 as evident from 10CCB Thus A.Y 2014-15 being the 8^th year the assessee was eligible for claiming deduction @30% only u/s 80IC(ii) as the assessee was eligible for claiming deduction @100% of the profit de....
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.... validly warranting revision u/s. 263 of the Act, 1961. Thus order passed u/s. 143(3) of the Income Tax Act,1961 is erroneous so far as prejudicial to the interest of revenue. As regards to the explanation of the assessee that the company has undergone substantial expansion in the Assessment Year 2012-13 and the relevant details in respect of the expansion of the business was provided during the course of scrutiny proceedings, it may be logically concluded that the Assessing officer has overlooked the issue and bas allowed the deduction u/s. 80lC as claimed by the assessee. This is the case, where the AO has failed to verify the aforementioned issue before going on to complete the assessment proceedings." 4.2. Ld. Pr. CIT thus, set aside the assessment order by holding it as erroneous insofar as it is prejudicial to the interest of revenue in accordance with explanation (2)(c) below section 263(1) of the Act on the ground of lack of enquiry. He thus directed the Ld. AO to pass a fresh assessment order in accordance with the relevant provisions of law after affording reasonable opportunity of hearing to the assessee. Aggrieved, assessee is in appeal before the Tribunal. ....
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.....2022 by dismissing the appeal of the assessee. While dismissing the appeal, Coordinate Bench stated about its inability to find any such documents on record which could show that issue regarding deduction of claim u/s. 80IC before the Ld. AO was examined. Accordingly, the Coordinate Bench found no infirmity in the order passed u/s. 263 of the Act, setting aside the assessment order dated 28.03.2016, directing the AO to frame the assessment afresh after considering the observation made by the Ld. Counsel. 5.3. In this respect, Ld. Counsel made another submission dated 09.02.2023, pointing out differences between the two assessment years viz., AY 2013-14 and 2014-15 in respect of revisionary proceedings invoked in both the years. Ld. Counsel thus, asserted that order passed by Coordinate Bench for AY 2013-14 (supra) cannot be applied in the impugned order i.e. AY 2015-16. 5.4. Since Ld. Counsel has claimed that substantial expansion has taken place in AY 2012-13 wherein this issue of expansion has been thoroughly examined by the AO, he was directed by the Bench to furnish the details in this respect. Further direction was given to furnish copies of order of the Ld.....
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.... 2014 -15 are identical, containing the reference to explanation (2)(c) below section 263(1) of the Act on the ground of lack of enquiry. Ld counsel has taken a ground in this respect wherein explanation 2(c) refers to "the order has not been made in accordance with any order, direction or instruction issued by the Board u/s. 119." Ld. Counsel has categorically submitted that there is no such order or direction or instruction in respect of the claim of the assessee in view of which Ld. Pr. CIT has made a reference to set aside the assessment order and invoke the revisionary proceeding. In the course of hearing before us, we have considered this contention and found it to be more in the nature of a typographical mistake where in the intent of the Ld. Pr. CIT is to make a reference to clause (a) to Explanation (2) which deals with "the order is passed without making enquiries or verification which should have been made" as Ld. Pr. CIT has mentioned "ground of lack of enquiry" before referring to explanation (2)(c) below sec. 263(1). However, at the same time, we note that this mistake considered by us as typographical mistake exists in both the revisionary orders passed u/s. 263 in p....
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.... F. Y. 2011-12 * List of major Raw material and Final Product of Unit-IV. 8. Aspect of application of mind by the CIT has been succinctly dealt by the Hon'ble Delhi High Court in the judgment of DG Housing Finance Co. Ltd. [2012] 20 taxmann.com 587 (Del) which is discussed hereunder. 8.1. While adverting on the issue, Hon'ble High Court held that the CIT has to come to the conclusion and himself decide that order is erroneous, by conducting necessary enquiry, if required and necessary before the order u/s 263 of the Act is passed. In such cases, the order of the AO will be erroneous because the order passed is not sustainable in law and the said finding must be recorded by CIT who cannot remand the matter to the assessing officer to decide whether the findings recorded are erroneous. 8.2. In cases where there is inadequate enquiry but not lack of enquiry, again the CIT must give and record a finding that the order/enquiry made is erroneous. This can happen if an enquiry and verification is conducted by the CIT and he is able to establish and show the error or mistake made by the AO, making the order unsustainable in law. 8.3. In some cases, po....
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.... two issues in the show cause notice and thereafter concluded on the same to set aside the assessment with the direction to do it afresh. We find that the issues in the present case considered by the Ld. CIT for exercising revisionary proceedings u/s. 263 of the Act are purely on facts which are verifiable from the records of the assessee. 9. We are of the considered view that Ld. Pr. CIT has to come to the conclusion and himself decide that order is erroneous by conducting necessary enquiry, if required, before passing the order u/s. 263 of the Act. It is an important fact that Ld. Pr. CIT is able to establish and show the error or mistake making the assessment order indisputably in law. Accordingly, we find it proper to remit the matter back to the file of Ld. Pr. CIT to consider the material placed on record for proper application of mind and conduct the enquiry or cause to be conducted any enquiry, if required, to draw conclusion as to order being erroneous insofar as prejudicial to the interest of revenue. Needless to say that assessee be given reasonable opportunity of being heard to furnish all the evidence, document, explanation to substantiate its claim. 9.1. I....