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TMI Blog2017 (9) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of now valuing the stock and adding 10% for every annum is not at all justified. The manner of such estimate of stock on the basis of last year G.P. of 10% as again the books which were accepted by the Assessing Officer earlier cannot be accepted. The learned Tribunal as such rightly found that the question of taking the impugned action in terms of Section 263 of the said Act would not at all be justified. When an Assessing Officer has proceeded in a particular manner and the Assessing Officer has followed one of the permissible processes in law which has resulted in loss of revenue, it cannot be said to be prejudiced to the revenue and as such, we find there is no substantial question of law which arises in the present appeal.The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment order by restoring the matter to the file of the Assessing Officer afresh for passing a fresh assessment order. The ITAT by an order dated 28/11/2014 allowed the appeal holding that the Commissioner of Income Tax had no jurisdiction to take action under Section 263 of the Act taking the view that the order passed by the Assessing Officer is not erroneous or prejudicial to the interest of the Revenue and against the said order the above appeal came to be filed. 4. The learned Counsel for the appellant submitted that the learned Tribunal was not justified in setting aside the order passed by the Commissioner of Income Tax under Section 263 of the Act when the twin conditions for invoking the power under Section 263 of the Act had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submitted that any error by the Assessing Officer does not by itself be pre-judicial to the interest of the revenue to invoke such powers under Section 263 of the Act. There is no basis for the Commissioner to exercise powers under Section 263 of the Act, and as such there are no substantial questions of law which arise in the present appeal considering the well-reasoned order of the learned Tribunal. 6. We have considered the submissions of the learned Counsel and we have also gone through the records. On perusal of the order passed, the learned Tribunal noted that in order to exercise powers under Section 263 of the Act, both the conditions namely that an order passed by the Assessing Officer is erroneous and that it is prejud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal noted the judgment reported in ( 2009) 319 ITR 339 in the case of Commissioner of Income Tax v/s. Utkal Alloys Ltd . wherein it is held that in the course of search, the search party did not find any incriminating document or duplicate books of accounts involving the respondent assessee in any clandestine business activity and the department could not find out any omission of important purchaser / sale from the assessee's books of account or any entry in the books of account were not supported by voucher. The addition has been made on the basis of estimate of stock worked out on the basis of the said purchases. The learned Tribunal further found that in case of wrong opinion or finding on merits, the Commissioner of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply / clarification submitted by the assessee were accepted by the Assessing Officer and the assessment order was passed accordingly. The statement of stock submitted was brought to the notice of the authorities and upon appreciation of the material on record, the learned Tribunal came to the conclusion that the assessment order passed by the Assessing Officer was under due scrutiny and clarification sought from the assessee which cannot be said to be erroneous. 8. Considering that the learned Appellate Tribunal has found that the conditions specified under Section 263 of the Act have not been satisfied, the question of invoking such powers would not arise. Admittedly, in the present case earlier a survey action was carried out on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Counsel for the appellant is not applicable to the facts of the present case. As observed therein loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue. When an Assessing Officer has proceeded in a particular manner and the Assessing Officer has followed one of the permissible processes in law which has resulted in loss of revenue, it cannot be said to be prejudiced to the revenue and as such, we find there is no substantial question of law which arises in the present appeal. In the circumstances, considering the order of the learned Tribunal examining all the material on record, we are of the opinion that there are no substantial question of law in the above appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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