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TMI Blog2014 (2) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... e part of income of business after consideration of the record and with the finding that the same was to be treated as profit from the business of sale of agricultural land. In the given set of facts and circumstances of the case, particularly when the said income has been duly added to the income of the assessee, neither the order of the AO on this ground could have been considered as erroneous nor it could have been treated as operating prejudicial to the interest of Revenue. Thus when we find that the order passed by the Tribunal is in consonance with the law applicable and cannot be said to be legally unjustified, the formulated question in this case is required to be answered in the affirmative i.e., against the Revenue and in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed at ₹ 42,78,794 under s. 143(3)/148 by the order dt. 31st March, 2014. 3. Against the assessment order dt. 31st March, 2004, the assessee preferred an appeal which was pending before the CIT(A)-II, Jodhpur. However, during the pendency of this appeal, the CIT-II, Jodhpur proceeded to issue a show cause notice under s. 263 on 1st March, 2005 and ultimately, set aside the assessment order, treating the same as erroneous and prejudicial to the interest of Revenue. The only ground on which the learned CIT set aside the order of the AO was that the addition of ₹ 38,17,000 ought to have been towards undisclosed income of AOP instead of being taxed under the head 'income from business'. The related parts of the order impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the amount of ₹ 38,17,000 was concerned, it could have been treated by the AO as income from other sources or income from undisclosed sources; and the AO opted for one of the legally permissible option available before him. The Tribunal, inter alia, observed as under: 9. In the given case the ld. AO has discussed both the options available before him, as discussed in the impugned order itself. The ld. AO opted for one course of action out of two legally possible options before him. So the order cannot be said to be erroneous. It may be prejudicial to the interest of the revenue. Therefore, one conditions of the two sine qua non is missing, and which ousts the jurisdiction of the ld. CIT. The learned CIT cannot substitute his own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO had not applied his mind to the various aspects of the matter. In such circumstances, without even prima facie laying the foundation for holding that assessment order is erroneous and prejudicial to interest in any matter merely on specious ground that the AO was required to make an enquiry, cannot be held to satisfy the test of necessary condition existing for invoking jurisdiction under s. 263 of the IT Act. Undoubtedly, the jurisdiction under s. 263 is wide and is meant to ensure that due revenue ought to reach the public treasury and if it does not reach on account of some mistake of law or fact committed by the AO, the CIT can cancel that order and require the concerned AO to pass a fresh order in accordance with law after holdin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same was treated by the AO to be part of income of business after consideration of the record and with the finding that the same was to be treated as profit from the business of sale of agricultural land. 9. In the given set of facts and circumstances of the case, particularly when the said income has been duly added to the income of the assessee, neither the order of the AO on this ground could have been considered as erroneous nor it could have been treated as operating prejudicial to the interest of Revenue. 10. In the aforesaid view of the matter, and when we find that the order passed by the Tribunal is in consonance with the law applicable and cannot be said to be legally unjustified, the formulated question in this case is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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