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TMI Blog2012 (6) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... s taken a decision, but which according to the ld. CIT, is not and should not be that decision, section 263 does not empower him to look on the issue from that aspect. The ld. CIT cannot replace his own opinion and substitute with that of the Assessing Officer. He can revise the assessment order only and only when the twin conditions i.e erroneous and prejudicial to the interests of the Revenue, are fulfilled. In this case, the assessment order is not at all erroneous, hence, it cannot be revised. order of the ld. CIT set aside and restore the assessment order. appeal stands allowed - IT Appeal No. 334 (Mds.) of 2011 - - - Dated:- 24-8-2011 - Hari OM MARATHA, N.S. SAINI, JJ. R. Meenakshisundaram for the Appellant. Dr. I. Vijayak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese credits from these angles. Therefore, after giving show cause notice u/s 263, he has rejected the explanation filed on behalf of the assessee and has set aside the assessment order by holding it as erroneous and prejudicial to the interests of the Revenue. He has directed the Assessing Officer to redo the assessment by treating Rs. 9,30,000/- as unexplained cash credit u/s 68 of the Act. He has further enlarged the ambit of section 263 by observing that the Assessing Officer is at liberty to consider any other relevant points during the course of fresh assessment as directed above. He has also directed to collect tax alongwith interest and penalty after expeditiously completing the assessment order. Against this finding, the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both sides in detail. We have also perused carefully the entire evidence available on record. It is trite that an order can be revised only and only if twin conditions of 'error in the order' and 'prejudice caused to the Revenue' co-exist. 4. The subject of 'revision under section 263' has been vastly examined and analysed by various Courts including that of Hon'ble Apex Court. The revisional power conferred on the CIT vide section 263 is of vide amplitude. It enables the CIT to call for and examine the records of any proceeding under the Act. It empowers the CIT to make or cause to be made such an enquiry as he deems necessary in order to find out if any order passed by Assessing Officer is erroneous in so far as it is prejudicial to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he revision has to be done for the purpose of setting right distortions and prejudices caused to the Revenue in the above context. The fundamental principles which emerge from the several cases regarding the powers of the CIT under section 263 may be summarized below: ( i ) The CIT must record satisfaction that the order of the Assessing Officer is erroneous and prejudicial to the interests of the revenue. Both the conditions must be fulfilled. ( ii ) Section 263 cannot be invoked to correct each and every type of mistake or error committed by the Assessing Officer and it is only when an order is erroneous, that the section will be attracted. ( iii ) An incorrect assumption of facts or an incorrect application of law will suffice fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led explanation be a letter in writing and the Assessing Officer allowed the claim on being satisfied with the explanation of the assessee, the decision of the Assessing Officer cannot be held to be erroneous simply because in his order he does not make an elaborate discussion in that regard. 5. Reverting back to the facts of the case, we have found clearly from the record that the Assessing Officer has verily examined this issue and has taken the view that the cash credits stand explained. This is not a case where the Assessing Officer has not applied his mind to a particular item of income. The powers of ld. CIT as analyzed herein above are also restricted inasmuch as that he can revise those items of income in a particular order only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion, all the three requirements as laid down by the precedents for proving cash credits stand fulfilled to the satisfaction of the Assessing Officer. But the appellate authority can further look into this aspect but not the CIT as has been done in this case. and the primary onus of the assessee gets discharged. On similar set of facts if he Assessing Officer has taken a decision, but which according to the ld. CIT, is not and should not be that decision, section 263 does not empower him to look on the issue from that aspect. The ld. CIT cannot replace his own opinion and substitute with that of the Assessing Officer. He can revise the assessment order only and only when the twin conditions i.e erroneous and prejudicial to the interes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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