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TMI Blog2008 (9) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the Assessing Officer was not erroneous, which was one of the pre-condition for invoking jurisdiction under section 263 of the Act. Since it was not erroneous it could not have been termed to be prejudicial to the interest of the Revenue. The order of the Commissioner was set aside. - 1092 of 2008 - - - Dated:- 24-9-2008 - BADAR DURREZ AHMED, RAJIV SHAKDHER JJ Ms. Suruchi Aggarwal for the respondent. Aseem Mowar for the respondent. JUDGMENT The judgment of the court was delivered by Badar Durrez Ahmed J.- This appeal by the Revenue is directed against the order dated February 15, 2008, passed by the Income-tax Appellate Tribunal in I. T. A. No. 775/Del/2006 pertaining to the assessment year 1998-9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has been certified to be drawn in the profit and loss account as per the Companies Act. Therefore, we are of the view that the order passed by the Assessing Officer was not erroneous, which is one of the pre-conditions for invoking jurisdiction under section 263 of the Act. Since it was not erroneous, it could not have been termed to be prejudicial to the interest of the Revenue. In this view of the matter, we set aside the order of the learned Commissioner of Income-tax. In the result, ground No. 2 is allowed." 3. The Supreme Court in Apollo Tyres Ltd. [2002] 255 ITR 273 had categorically held as under (page 280) : "Therefore, we are of the opinion, the Assessing Officer while computing the income under section 115J has only the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Tribunal was under a mistaken impression that the present case was one which fell under section 115JB and that is the reason why the observation was made that the provision of section 115JA and section 115JB were analogous. This conclusion was unnecessary. However, that does not change the ultimate result of the case, inasmuch as the decision in Kovai Maruthi Paper and Board P. Ltd. [2007] 294 ITR 57 was directly applicable to the present case. The fact that the Tribunal applied the decision of the Supreme Court in the case of Apollo Tyres Ltd. [2002] 255 ITR 273 as well as Kovai Maruthi Paper and Board P. Ltd. [2007] 294 ITR 57 cannot therefore be faulted. The Tribunal concluded as under : "While the Assessing Officer would be well ..... X X X X Extracts X X X X X X X X Extracts X X X X
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