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TMI Blog2015 (2) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... on to issue show-cause notice under section 263 if he himself is satisfied after examining the records of the assessment order passed by the Assessing Officer which falls under his jurisdiction and the Commissioner of Income-tax also gets power of revision if the twin conditions are satisfied that the order passed by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the Revenue.The practice adopted by the Commissioner of Income-tax is de hors and it amounts to unnecessary harassment to the assessee for no fault of his. - Decided in favour of assessee. - D.B. Income Tax Appeal No.24/2012 - - - Dated:- 2-1-2014 - MR. AJAY RASTOGI AND MR. J.K. RANKA, JJ. For the Appellant : Smt. Parinitoo Jain JUDGMENT J. K. Ranka J.- 1. This appeal under section 260A of the Income-tax Act, 1961 (for short, the IT Act ), has been preferred by the appellant-Revenue against the order of the Income-tax Appellate Tribunal (for short, the ITAT ) dated July 28, 2011, passed in I. T. A. No. 2191/JP-2011 by which the Income-tax Appellate Tribunal has allowed the appeal filed by the respondent-assessee against the order of the Commissioner of Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2011, set aside the order of the Assessing Officer dated September 30, 2008, and also observed that the Assessing Officer, who passed the order on September 30, 2008, had no jurisdiction to complete the assessment as the income of the subsequent assessment year 2007-08 was over rupees five lakhs and as per the circular of the Additional Commissioner of Income-tax, Range, Sawai Madhopur, the jurisdiction has to be seen on the basis of income as on April 1, 2001, and on 1st April of every subsequent year thereafter. Therefore, the Commissioner was of the opinion that since the return of income for the assessment year 2007-08 was over rupees five lakhs and, as such, the jurisdiction lied with the Deputy Commissioner of Income-tax/Assistant Commissioner of Income- tax and not the Assessing Officer. Thus, the Commissioner of Income-tax concluded that the order under section 143(3) itself was without authority and invalid, hence, the Assessing Officer, having proper jurisdiction, should re-assess the returned income again. 7. This order of the Commissioner under section 263 was assailed by the respondent-assessee before the Income-tax Appellate Tribunal, who, vide order dated July 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,50,000 and the matter even travelled before the Commissioner of Income-tax (Appeals) who allowed the appeal in part. 10. It is also an admitted fact that one Commissioner of Income-tax (Administration) had issued notice under section 263 dated October 29, 2009 and he also being satisfied dropped the proceedings under section 263 of the Income-tax Act and it would be fruitful to quote paragraph 6 for the present purpose which is reproduced ad infra : Considering the submissions and facts of the case, it is noticed that the issue involved have been examined by the Assessing Officer on the basis of the submissions/details made by the assessee. The major issue regarding obtaining confirmations of advance given to farmers, the assessee has submitted that the same are brought for ward from previous years. The assessee has also received interest of ₹ 4,18,328 on various advances given. The Assessing Officer has made substantial addition/disallowances aggregating to ₹ 4,45,526 while framing the order under section 143(3) out of which some of the issues are subject matter of issuance of notice under the present proceedings. It would be incorrect to deviate f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he orders or directions issued by the Board or by the Chief Commissioner or Director Gen eral 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 avail able 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. 13. Admittedly, the assessment order was challenged before the Commissioner of Income-tax (Appeals) who also allowed part relief and even up to the stage of the order of the subsequent Commissioner of Income-tax, Kota who dropped the proceedings under section 263 on May 4, 2010, the respondent-assessee was not made aware of the jurisdictional issue. 14. It may also be observed that the notice under section 143(2) was issued on January 11, 2007, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciples of audi alteram partem as envisaged in the Constitution. The law is well settled that the Commissioner of Income-tax cannot invoke the powers to correct each and every mistake or error committed by the Assessing Officer. Every loss to the Revenue, cannot be treated as prejudicial to the interests of the Revenue and if the Assessing Officer has adopted one of the course permissible under the law or where two views are possible and the Assessing Officer has taken one view which the Commissioner of Income-tax does not agree, it cannot be treated as an order erroneous and prejudicial to the interests of the Revenue, the Assessing Officer exercises quasi-judicial power vested in him and if he exercises such powers in accordance with law and arrives at a just conclusion such conclusion cannot be termed to be erroneous only because the Commissioner of Income-tax does not feel satisfied with the conclusion. 17. We are also of the view that the Commissioner in the subsequent order passed under section 263 held that the assessment order was without jurisdiction and is not valid order and, in our view, the original order passed under section 143(3) and 263 cannot be rectified eit ..... 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