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TMI Blog2013 (9) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 143(3)/148 was completed by the A.O. on 29.12.2009. The assessment was completed at an income of Rs. 9,70,934/- in case of Shri Sudhir Kumar Agarwal and Rs. 7,48,324/- in case of Smt Bina Agarwal. Notice under section 148 of the Act was issued after recording reasons that Gupta & Gupta, New Delhi has given accommodation entry of Rs. 7,19,244/- on 09.08.2001 to the assessee vide cheques/DD No.506288 of Jai Laxmi Co-operative Bank, Fatehpur. In case of Smt. Bina Agarwal, the accommodation entry was of Rs. 6,19,349/- vide cheques/DD No.255551 of Jai Laxmi Co-operative Bank, Fatehpur. The A.O. accepted the Long Term Capital Gain of Rs. 7,02,415/- on sale of shares through broker M/s. JRD Stock Brokers Pvt. Ltd. of 3500 shares of M/s. Goyal Achal Samapati VN Limited @ Rs.200/- on 02.05.2001 which was purchased @ Rs.4.65 on 03.04.2000 through broker M/s. Online Securities (P) Ltd. The CIT, after considering assessee's submissions, found that the A.O. has not carried out any investigation during the assessment proceedings and completed the assessment simply by accepting the claim of LTCG disclosed by the assessee in his return of income. The A.O. did not apply his mind corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived including the bank account in which the proceeds of this instrument were credited." 7. The ld. Authorised Representative further submitted that the assessee has furnished affidavit before the A.O. at the time of original assessment proceeding of which copy has been placed at page No.15 of assessee's Paper Book. Contents of the affidavit pointed out by the Ld. Authorised Representative are reproduced as under:- "1. I had not received any draft bearing serial no.505082 dated 04.08.2001 from M/s Gupta & Gupta issued from Jai Laxmi Co-operative Bank, Delhi of Rs. 519454.00. 2. I had also not received any draft of Rs.719244.00 bearing serial No. 506288 dated 09.08.2001 issued from Jai Laxsmi Co-operative Bank, Delhi from M./s Gupta & Gupta but the amount of Rs.719249.00 is the sale proceeds of Shares sold by me through JRD Stock Brokers Pvt. Ltd. and received Rs.717450.00 vide draft No.251477 from State Bank of Indore, Chandani Chowk, Delhi after deducting of draft charges Rs. 1794.00 and deposit in my saving bank account No.01190179152 and also shown as computation in capital given in my return for A.Y. 2002-2003. &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e [Joint] Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief Commissioner or Director General or Commissioner authorised by the Board in this behalf under section 120; (b) "record" [shall include and shall be deemed always to have included] all records relating to any proceeding under this Act available at the time of examination by the Commissioner; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal [filed on or before or after the 1st day of June, 1988], the powers of the Commissioner under this sub-section shall extend [and shall be deemed always to have extended] to such matters as had not been considered and decided in such appeal.] [(2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed.] (3) Notwithstanding anything contained in sub-section (2), an order in revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, invalid, and is defect that is jurisdictional in its nature, similarly, "erroneous judgment" means "one rendered according to course and practice of court, but contrary to law, upon mistaken view of law, or upon erroneous application of legal principles". 10.2 An order cannot be termed as erroneous unless it is not in accordance with law. If an Income tax Officer acting in accordance with law makes an assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the AO should made thorough enquiry and order should have been written more elaborately. This section does not visualise a case of substitution of the judgment of the Commissioner for that of the Income-tax Officer, who passed the order, unless the decision is held to be erroneous. Cases may be visualised where the Income-tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some changes. The Commissioner, on perusal of the records, may be of the different opinion than the opinion of the Income-tax Officer. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent proceedings. It was categorically submitted that he did not know any such person and therefore the question of receipt of demand draft from it does not merit any consideration. The assessee filed an affidavit dated 23.12.2009 wherein these facts were deposed in unequivocal terms. In the affidavit it was also deposed that the assessee indemnify the Government of India from any loss caused to revenue if the submissions made by him were found to be incorrect. 3. After considering the facts available on rectors the assessment is completed at an income of Rs. 9,70,934/-. Issue notice of demand and Challan." 10.4 On perusal of the A.O.'s order and material on record, we find that the CIT invoked section 263 of the Act because the CIT did not feel satisfy with the conclusion made by the A.O not on account of that the order of the A.O. was erroneous. The CIT invoked section 263 of the Act simply on account that the A.O. did not carry out the investigation of the case on the line of investigation as CIT wants. The CIT has wrongly observed that the A.O. has not applied his mind particularly under the circumstances and facts which have demonstrated by the Ld. Au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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