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TMI Blog2014 (12) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial premises of the Director/Partner of one M/s.Vijay Grihanirman Pvt.Ltd. and its sister concerns (Vijay Group). During the search, various documents and loose papers belonging to the Assessee Mr.Kiran H.Shah were seized. They have been referred to as A-1 to A-27 in the panchanama dated 22 September 2005. The Assessee was the main Director, according to the Revenue, of a Private Limited Company called M/s.Motta Construction Pvt.Ltd., which is engaged in construction business. As the warrant was in the name of the Assessee, proceedings under section 153C were initiated. The Return was filed on 29 September 2006 declaring the total income of Rs. 19,94,038/-. Original Return under the same provision was filed on 29 March 2001 declaring the total income of Rs. 4,97.038/-. The Assessment Order under section 143(3) read with section 153C was passed by the Asst.Commissioner of Income Tax Central Circle-15 & 16, Mumbai on 4 May 2007 assessing total income of Rs. 21,73,220/-. 4. The Commissioner referred to several expenses and examined the assessment records as also the seized materials. We are concerned in this case with the unaccounted expenses incurred by M/s.Motta Construction Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law. He submits that the Tribunal has erred in interfering with the order of the Commissioner. The jurisdiction under section 263 of the Act was properly exercised by the Commissioner, inasmuch as, the Commissioner concluded that the Assessing Officer's order of assessment is erroneous and in so far as it is prejudicial to the interest of the Revenue. The Commissioner has explained in detail as to how it was not enough merely to accept the statement of the Assessee that there was an opening balance, but how that figure of Rs. 2.33 crores has been derived as an opening balance on 31 March 1999 should have been carefully and properly examined by the Assessing Officer. 7. Mr.Malhotra submits that there was a definite design in picking and choosing the date of 31 March 1999/1 April 1999. That could have a relation with the date of the assessment namely 4 May 2007. That the Assessing Officer had restraints and limitations on the exercise of the powers and he could not have gone beyond a period stated in law that the Assessee deliberately chose this date and thereafter explained as to how the figure was arrived at. In relation to that explanation given by the Assessee in respons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal has considered the notice of the Assessing Officer dated 12 April 2007 and response thereto by the Assessee on 21 April, 2007, as also a letter addressed to the Asst.Director of Income-Tax (Inv.)Unit VIII (2) dated 5 December 2005 by the Assessee. It is, therefore, apparent that the responses by the Assessee were extensive, they were considered and this was not a case where the Assessing Officer had committed an error and to such extent as would enable the Commissioner to exercise his revisional power under section 263. Mr.Mistri submits that even if the assessment order later on passed and on 28 December 2010, was available on record that did not make any difference. In such circumstances and relying upon the judgment of this Court in the case of Commissioner of Income-Tax vs. Gabriel India Ltd. 1993 (203) ITR 108, Mr.Mistri submits that the Appeals deserve to be dismissed. 10. We have, with the assistance of the learned Counsel appearing for the parties, perused the order passed by the Commissioner and that of the Tribunal. We have also perused the decisions which have been brought to our notice under the statutory provisions. We must at once refer to the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v/s. Honda Siel Power Products Ltd. (2010) 235 CTR 336. 15. Apart from that what we find is that throughout the legal position has been what is essentially pointed out by this Court in CIT v/s. Gabriel India Ltd. (supra). Inquiries have been made in regard to nature of the expenditure incurred by the Assessee, the explanation has been given and which the Assessee termed as a detailed explanation and in writing. This was a part of the record of the case. The claim was allowed by the Assessing Officer on being satisfied with this explanation of the Assessee. Such an order or assessment made by the Assessing Officer could not have been held to be erroneous simply because elaborate or better reasons could have been assigned. If the Commissioner initiates proceedings under section 263 and hears the Assessee, but on examination of the entire material what he upsets or rather interferes with is a possible view, then the course adopted by him was held to be impermissible in law. 16. The Tribunal did not deviate from these principles of law, but applied them to the facts of the present case and in doing that from para 16 it analyzes as to how the view taken by the Assessing Officer can be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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