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TMI Blog2012 (3) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... to the notice of the Assessing Officer. In any case, it is not discernible that the Assessing Officer appears to have applied his mind analytically and logically and thereafter he took one of the possible view. - ITA No. 5956/Del/2010 - - - Dated:- 23-3-2012 - SHRI RAJPAL YADAV AND SHRI K.G. BANSAL For the Appellant: S/Shri Salil Kapoor, Raman Chawla and Ankit Gupta, Adv. For the Respondent: Shri HL Dihana, CIT(DR) ORDER PER RAJPAL YADAV: JUDICIAL MEMBER The present appeal is directed at the instance of assessee against the order passed under section 263 of the Income-tax Act, 1961 by the Learned Commissioner on 12.5.2010 in assessment year 2006-07. The grievance of the assessee is that Learned Commissioner has erred in taking cognizance under sec. 263 of the Act and setting aside the assessment order passed by the Assessing Officer under section 143(3) and directing him to pass a fresh assessment order. 2. The brief facts of the case are that the assessee company is engaged in providing medical diagnostic and lab testing facilities. It has filed its return of income on 29.11.2006 declaring an income of ₹ 2,34,94,381. The case of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s exempt from tax. Thus, it cannot be alleged that Assessing Officer has not conducted proper inquiry before accepting the claim of assessee. The assessee contended that in this background, order of the Assessing Officer cannot be termed as erroneous. He accepted the one of the possible view in law. Learned Commissioner did not accept the contentions of the assessee and he set aside the assessment order by making following observations:- I have heard the authorized representative, gone through the submission as also the facts on record. Prima facie the assessee s submission has some strength and needs appropriate consideration as per law. At the same time, it is also a matter of record that there is a lack of enquiry/investigation on the part of the Assessing Officer. To that extent, it can certainly be held that the order of the A.O. is both erroneous as well as prejudicial to the interest of revenue. Therefore, the provision of section 263 of the Act is invoked and the order of the Assessing Officer is set aside to be redone afresh. The assessee shall be given reasonable opportunities of being heard . 5. The learned counsel for the assessee while impugning the order of Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee with regard to the decision of Hon'ble Delhi High Court in the case of CIT vs. Nalwa Investment reported in this decision was delivered on 11.5.2011. We alsoconfronted the learned counsel for the assessee with the decision of Hon'ble Delhi High Court in the case of Gee Vee Enterprises reported in 99 ITR 373. The learned counsel for the assessee pointed out that these decisions are on their own facts, in the case of assessee, learned Assessing Officer though not recorded specific finding in the assessment order but from the record, it is discernible that he has issued a show-cause notice, assessee has given a reply and thereafter he passed the assessment order. It would suggest that he must have gone through all the details. In this connection, he made reference to the decision of the full bench of the Hon'ble Delhi High Court in the case of Kelvinator India Ltd. reported in 256 ITR 1 wherein Hon'ble High Court has observed that if an assessment has been framed under sec. 143(3) then it would be presumed that Assessing Officer has gone into all the issues. On the other hand, Learned DR submitted that from the record, it is not discernible whether Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch power in accordance with law and arrives at a conclusion, such conclusion cannot be termed to be erroneous simply because the CIT does not feel satisfied with the conclusion. (viii) The CIT, before exercising his jurisdiction under s. 263 must have material on record to arrive at a satisfaction. (ix) If the A.O has made enquiries during the course of assessment proceedings on the relevant issues and the assessee has given detailed explanation by a letter in writing and the A.O allows the claim on being satisfied with the explanation of the assessee, the decision of the A.O cannot be held to be erroneous simply because in his order he does not make an elaborate discussion in that regard. 8. Before embarking upon an inquiry about the facts of the present case and how those facts have been considered by the learned revenue authorities below, we deem it appropriate to make a reference of the observations of the Hon'ble Delhi High Court in the case of Vee Gee Enterprises reported in 99 ITR 373 wherein Hon'ble High Court has expounded the approach of the Assessing Officer while passing assessment order. The observations of the Hon'ble High Court read as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd. Thereafter, the order sheet entries are regularly available from 16.7.2008 up to 15.12.2008. Assessing Officer has called for similar details vide order sheet entry dated 1.12.2008. We find that on 26.11.2008, assessee has filed certain details and case was adjourned to Ist of December 2008. On these details again signatures of Assessing Officer is available. Similarly, on 17th September 2008, assessee has submitted a letter with details, signatures of Assessing Officer is available. However, the details are alleged to have been submitted on 15.12.2008, no signature or initial of any officer is discernible on this letter, whether it was received or not received on that day. Assessment order has been passed on 29.12.2008. We agree with the contentions of learned counsel for the assessee that it is the prerogative of the Assessing Officer as to how he drafts his order and it is not in assessee s control to appraise him which details he should discuss in the order. Therefore, even if no discussion is available in the assessment order, it cannot be said that no inquiry was conducted by the Assessing Officer. The ideal situation to find out that Assessing Officer has investigated an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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