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TMI Blog2012 (4) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... on and that the Commissioner had no jurisdiction to interfere with the order of assessment in the facts and circumstances of the present case. 2. The assessee was assessed to income tax in respect of the assessment year 1995-96 and in the course of the said assessment, assessee's claim in respect of deductions on account of payment of bonus was allowed under Section 43B of the Act even though the said claim had been allowed in the assessment year 1994-95 also. Though proceedings for rectification under Section 154/155 of the Act were initiated for rectifying the said error, the said proceedings were dropped. This led to initiation of suo motu revisional jurisdiction by issuing notice dated 24.01.2000 seeking to revise order of asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate of Auditor against provision of bonus of Rs.25,00,000/- for 93-94. As the payment of bonus for the year 1993-94 amounting to Rs.42,74,392/- was allowed in the assessment year 1994-95 on actual payment basis, the amount of Rs.42,71,328/- being short provision bonus for 93-94 claimed as deduction was required to be disallowed and added back to the income for the assessment year 1995-96 but the Assessing Officer failed to do so. These actions of the Assessing Officer have rendered the assessment order passed u/s 143(3) for the assessment year 1995-96 erroneous in so far as it is prejudicial to the interest of the revenue." 3. It is clear from the above that the payment of bonus had been allowed as a deduction for the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1977) 108 ITR 407. 4. The writ petition was opposed and it was submitted that merely because rectification proceedings were dropped, did not affect jurisdiction of the Commissioner under Section 263 when such jurisdiction was exercised upon a finding that order of the Assessing Officer was erroneous and prejudicial to the interest of the Revenue. Mere fact that there was an Audit report also taking the same view did not affect the jurisdiction of the Commissioner. Objection was also taken that the order of the Commissioner was appellable under Section 253(1)(c) and therefore in view of the said alternative remedy, the writ petition ought not to be entertained. 5. Learned Single Judge held that the writ petition could be entertained as ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reopen an already completed assessment." "32. From the facts as discussed above, it is clear that in the case at hand, the Commissioner has initiated the suo moto revisional proceeding, under Section 263, entirely based on the objection raised by the internal audit authority. There is nothing either in the impugned notice, dated 24.01.2000, or in the impugned order, dated 28.03.2000, to show that the Commissioner has applied his independent mind and has come to the conclusion that the assessment made needs to be revised. Moreover, the suo moto revisional jurisdiction cannot be invoked, under Section 263, for the purpose of making roving enquiry by directing an authority, as has been done in the present case, to, again, verify an issue, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d set aside. Viewed thus, it is clear that the impugned notice, dated 24.01.2000, and the order, dated 28.03.2000, passed by the Commissioner, under Section 263, are absolutely without jurisdiction and not tenable in law." "34. From what have been pointed out above, it is clear that the Commissioner of Income Tax initiated the revisional proceeding influenced by the objection raised by the internal audit party and has not applied his independent mind, while passing the impugned order. Hence, the impugned order is liable to be set aside and quashed." "38. What crystallizes from the above discussion is that in the present case, when there was no lack of jurisdiction on the part of the assessing authority, in passing the order of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid jurisdiction. Mere fact that the Audit party had also raised some objection did not affect the jurisdiction of the revisional authority. It was not a case where the revisional authority had substituted its opinion for that of the Assessing Officer but a case where the Assessing Officer failed to notice the factual aspect and made assessment on wrong assumption of facts and without application of mind. 8. We have given due consideration to the submission made on behalf of the Revenue. We are of the view that the learned Single Judge was not justified in interfering with the order of the Commissioner passed under Section 263 of the Act. Even if we ignore the objection of alternative remedy of appeal, available to the assessee under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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