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TMI Blog2014 (1) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... n favour of Revenue. - ITA No. 838/Hyd/2013 - - - Dated:- 12-12-2013 - Shri Chandra Poojari And Smt. Asha Vijayaraghavan,JJ. For the Appellant : Smt. K. Haritha For the Respondent : None ORDER Per Chandra Poojari, AM: This appeal by the Revenue is directed against the order of the CIT(A)-V, Hyderabad dated 13.2.2013 for A.Y. 2006-07. 2. The Revenue raised the following grounds: 1. The order of the CIT(A) is erroneous both in law and in facts of the case. 2. The CIT(A) ought to have appreciated the fact that as the assessee is following mercantile system of accounting the whole amount of sale should be considered as accrued to the assessee. 3. The CIT(A) ought to have appreciated the fact that through the agreement of sale dated 02.11.2005 the assessee is entitled to receive the amount of Rs. 501,60,000 and it is accrued to the assessee as the assessee has the right to receive the same. 4. The CIT(A) ought to have appreciated the fact that the ITAT Bench 'B' in ITA No. 1080/Hyd/ 2011 dated 18.5.2012 has already decided the matter on an appeal by the assessee on the order u/s. 263 passed by the Commissioner of Income-tax. 3. None appeared for the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer to re-examine the transactions in depth. She should call for the original Minutes Book as maintained by the assessee- company and the vendee in the regular course of their Board meetings and examine the same. She should summon and examine accountable person from M/s. Leo Edibles Fats Ltd. The Assessing Officer should also examine as to whether the assessee had made any application to the competent authority for reclassification of the land as 'industrial land'. She should call for and examine the original documents and records. She should examine assessability of Rs. 5.01 crores. In case of positive cumulative findings, she should consider bringing the said amount to tax. Against this order, the assessee is in appeal before us. 7. Consequent to the order passed u/s. 263, the AO passed assessment order u/s. 143(3) r.w.s. 263 dated 27.12.2011 which is in conformity with the order passed by the CIT u/s. 263 dated 28.3.2011. Against this assessment order, the assessee went in appeal before the CIT(A). The CIT(A) vide order dated 13.2.2013 decided the issue in favour of the assessee. In our opinion, the finding of the CIT(A) is devoid of merit as the order of the CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot assume, in order to provide legitimacy to the assessment order, that the Assessing Officer has adopted a permissible course of law or taken a possible view where his order does not say so. The submissions made by the learned Counsel, if accepted, would require us to form, substitute and read our view in the order of the Assessing Officer when the Assessing Officer himself has not taken a view. It could have been a different position if the Assessing Officer had "adopted" or "taken" a view after analysing the facts and deciding the matter in the light of the applicable law. However, in the case before us, the Assessing Officer has not at all examined as to whether only one view was possible or two or more views were possible and hence, the question of his adopting or choosing one view in preference to the other does not arise. The aforesaid observations of the Hon'ble Supreme Court do not, in our view, help the assessee; and rather they are against the assessee. 28. In the case of Padmasundara Rao v. State of Tamil Nadu (255 ITR 147), the Hon'ble Supreme Court has held that "... There is always peril in treating the words of a speech or judgment as though they are words i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigator, prosecutor as well as adjudicator under the scheme of the Income- tax Act. If he commits an error while discharging the aforesaid roles and consequently passes an erroneous order causing prejudice either to the assessee or to the State Exchequer or to both, the order so passed by him is liable to be corrected. As mentioned earlier, the assessee can have the prejudice caused to him corrected by filing an appeal; as also by filing a revision application under Section 264. But the State Exchequer has no right of appeal against the orders of the Assessing Officer. Section 263 has therefore been enacted to empower the Commissioner to correct an erroneous order-passed by the Assessing Officer which he considers to be prejudicial to the interest of the revenue. The Commissioner has also been empowered to invoke his revisional jurisdiction under Section 264 at the instance of the assessee also. The line of difference between Sections 263 and 264 is that while the former can be invoked to remove the prejudice caused to the State the later can be invoked to remove the prejudice caused to the assessee. The provisions of Section 263 would lose significance if they were to be inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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