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2016 (11) TMI 1700 - ITAT KOLKATARevision u/s 263 by CIT - reason given in the show-cause notice as different for which revision powers are finally exercised - unexplained investment under section 69B - HELD THAT:- The issue raised by the ld. CIT in the notice issued u/s 263 of the Act was materially different with grounds on which the revision order was passed. It is thus clear that the ground taken in the show-cause notice that there was unexplained investment under section 69B - But upon taking into account the submission made by the assessee, the ld. CIT himself changed the stand. CIT instead of taking the decision on merits based on the show-cause notice has merely referred the matter to the Assessing Officer for verification of certain aspects. It is thus clear that there was a shift in the stand of the ld. CIT as to whether it was a case for revision on the ground of unexplained investment under section 69B of the Act or non-verification of certain aspects. The reason given in the show-cause notice is different for which revision powers are finally exercised in the impugned order. As in a situation in which the revision order is passed on the ground other than the grounds for which revision proceedings are initiated, the same cannot be sustainable in law. That apart, in the impugned order we have also noticed that the learned Commissioner has not faulted the explanation given by the assessee and has merely remitted the matter to the file of Assessing Officer for verification of factual elements embedded in explanation as given by the assessee. This approach is also not sustainable in law in view of the law laid down by the Hon'ble Bombay High Court in the case of CIT -vs.- Gabriel India Limited [1993 (4) TMI 55 - BOMBAY HIGH COURT] In the present case, proceedings were not initiated on the grounds that adequate enquiries were not carried out. The Commissioner has not alleged in the show cause notice that adequate enquiries were not carried out, and again, it is elementary that no person can be condemned unheard, and therefore, the assessee not having been heard on the question whether or not adequate enquiries were carried out, learned Commissioner could not have subjected the assessment order to revision proceedings on the ground that adequate enquiries were not carried out. Secondly, there is nothing on record to provoke an enquiry, which has not been carried out in the instant case. Learned Commissioner has not pointed out any reason as to why the Assessing Officer should have made further enquiry, which was apparently left out. In view of this discussion and entirety of the case, we uphold the grievance of the assessee and quash the impugned revision order. AO has conducted the enquiry about the addition of the fixed assets as appearing from the notice issued under section 142(1) Commissioner of income tax can exercise his jurisdiction u/s 263 of the Act only in cases where no enquiry is made by the Assessing Officer. In the instant case, it is admitted by the Income Tax Department that the Assessing Officer had made some enquiries though according to them it was not a proper enquiry. In view of the above facts that some enquiry was made is sufficient to debar the authorities from exercising the powers u/s 263 of the Act. The Tribunal was accordingly justified in setting aside the order passed u/s 263 of the Act. - Decided in favour of assessee. Disallowance u/s 14A r.w.r.8D - In the instant case the AO has taken the possible view for making the disallowance under section 14A of the Act. Thus in our considered view the AO has taken a possible view and therefore the order of the AO cannot be held erroneous & prejudicial to the interest of Revenue. Accordingly the ground raised by the assessee is allowed. Addition of trade discount on the ground that the assessee claim for trade discount was not in order - From the submission of the ld. AR we find that details of the trade discount were duly furnished to the AO at the time of assessment under section 143(3) of the Act. The details of such discount is placed - From the facts we find that the ld. CIT has changed its stand as initiated in the notice and at the time of passing the order under section 263 of the Act. In similar facts & circumstances we have already held in Para 8(a) of this order that the order of the AO is not erroneous and prejudicial to the interest of Revenue. Following the same we reverse the order of ld. CIT and the ground raised by the assessee is allowed. Excess depreciation claimed - We do not agree with the view of the ld. CIT as there is change in his stand with regard to the notice and in the revision order. In similar facts & circumstances we have already held in Para 8(a) of this order that the order of the AO is not erroneous and prejudicial to the interest of Revenue. Following the same we reverse the order of ld. CIT and the ground raised by the assessee is allowed. The assessee gets the relief, accordingly - Assessee appeal allowed.
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