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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 ..... peals are decided by this common order. 3. The grounds raised by the assessees in both the appeals are in respect of invoking section 263 of the Income-tax Act, 1961 ('the Act' hereinafter) by the CIT. Since the facts are identical, and facts lead to the case of Shri Sudhir Kumar Agarwal, ITA No.233/Agr/2012, both the appeals are heard on the basis of the facts in the case of Sudhir Kumar Agarwal and the same are decided accordingly. 4. The brief facts of the case are that on examination of assessment records the CIT noticed that the assessment 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 Gai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide letter dated 11.12.2009, of which copy has been placed at page Nos.42 43 of the assessee's Paper Book where the assessee submitted the explanation in response to notice under section 142(1) of the Act in paragraph No.3 which is reproduced as under :- "3. It is noticed that a sum of Rs.7,19,244/- were received by you through cheque/DD No.506288 of Jai Laxmi Co-operative Bank, Fatehpur, Delhi on 09.08.2001. You are required to explain the nature of receipt including confirmation from the persons from whom the same was received 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rposes of this sub-section, (a) an order passed [on or before or after the 1st day of June, 1988] by the Assessing Officer shall include (i) an order of assessment made by the Assistant Commissioner [or Deputy Commissioner] or the Income-tax Officer on the basis of the directions issued by the [Joint] Commissioner under section 144A; (ii) an order made by the [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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We find that the expressions "erroneous", "erroneous assessment" and "erroneous judgment" have been defined in Black's Law Dictionary. According to the definition, "erroneous" means "involving error; deviating from the law". "Erroneous assessment" refers to an assessment that deviates from the law and is, 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 exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him. It was also submitted that the name of entity named as Gupta Gupta from the account of which stated to be maintained with Jai Laxmi Co-operative Bank, Fateahpur, Delhi above draft was issued was not heard by him before the same came for discussion in the course of present reassessment 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 sim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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