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TMI Blog2013 (10) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel. For the Respondent : None JUDGEMENT:- ITA 409/2013 and C.M.No.12624/2013 There is delay of 212 days in refiling of the appeal. However, before issuing notice on the application for condonation of delay, we deem it appropriate to examine the appeal on merits. 2. The grounds of appeal and the figures stated therein do not arise out of the impugned order. Question of depreciation on computer and computer peripherals was not a subject matter of the order passed by the tribunal or the order under Section 263 of the Income Tax Act, 1961 ('Act' for short) passed by the Commissioner for assessment year 2006-07. Figure of dividend income mentioned in the grounds of appeal is also incorrect and not Rs.28,20,145/- but Rs.24,12,48 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, for applying Rule 8D certain pre conditions have to be satisfied. There is also a stray observation by the Commissioner to the effect that no explanation was offered why the respondent had surrendered Rs.94,47,712/- for disallowance as the term loan did not cover the investment made. The said observation does not refer to any details or basis. In any case, once the matter was examined by the Assessing Officer and he had conducted inquiry and accepted the surrender of the assessee, the ratio of the decision in Sunbeam Auto Ltd. (supra) is applicable. Assessment order does not become erroneous because the Assessing Officer after verification accepts the claim/disallowance. It will be erroneous if the Commissioner holds that the finding rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or investigation but the Assessing Officer had erroneously not undertaken the same. However, the said finding must be clear, unambiguous and not debatable. The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous. Finding that the order is erroneous is a condition or requirement which must be satisfied for exercise of jurisdiction under section 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply and mean the Commissioner of Income-tax has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question. This distinction must be kept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord as it stands at the time when the order in question was passed by the Assessing Officer but also the record as it stands at the time of examination by the Commissioner of Income-tax (see CIT v. Shree Manjunathesware Packing Products and Camphor Works [1998] 231 ITR 53 (SC). Nothing bars/prohibits the Commissioner of Income-tax from collecting and relying upon new/additional material/evidence to show and state that the order of the Assessing Officer is erroneous." 4. Learned counsel for the appellant-Revenue has relied upon the order dated 19th December, 2011 passed in ITA 1074/2011 in the case of the respondent. In the said case there were two issues. Dividend income of Rs.28,20,145/- was exempt from tax but no disallowance had been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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