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TMI Blog2018 (11) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... in the instant case the AO’s order was erroneous and prejudicial to the interest of the revenue within the terms of section 263 of the Act - decided in favour of assessee. - ITA No. 2524/Del/2017 - - - Dated:- 19-9-2018 - Shri Sudhanshu Srivastava, Judicial Member And Shri Prashant Maharishi, Accountant Member For the Appellant : S/Shri Piyush K. Kamal, D.K. Gandhi, Adv. For the Respondent : Smt. Meeta Singh, CIT DR ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER This appeal has been preferred by the assessee against the order dated 27.12.2016 passed by the Ld. Pr. CIT, Muzaffarnagar for assessment year 2012-13 wherein vide the impugned order passed u/s 263 of the Income Tax Act, 1961 (hereinafter called 'the Act')., the Ld. Pr. C.I.T. has set aside the assessment order dated 29.08.2014 with directions to pass a fresh assessment order. 2.0 Brief facts of the case are that the assessee is a private limited company and is engaged in trading and export of rice and other agricultural products. The original return of income was filed on 8.9.2012 declaring a taxable income of ₹ 14,12,410/-. The case was selected for scrutiny under CASS and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. PRAYER It is prayed that the order of the Learned Principal CIT reopening the original assessment order u/s 263 be set aside and the original assessment order may be restored. 3. At the outset, the Ld. AR submitted that there was a delay of 58 days in filing the captioned appeal. He drew our attention to the application for condonation of delay which was duly supported by an affidavit in this regard and it was prayed that the delay be condoned as the delay was beyond the control of the assessee. 4. The Ld. CIT DR opposed the prayer for condonation of delay. 5. We have heard the rival submissions and perused the averments made in the delay condonation application and the affidavit which has been filed in support of the averments. As per the application and the affidavit, it has been submitted that both the Directors of the company were out of India for the period 24.12.2016 to 2.3.2017 and the impugned order was served on the company on 30.12.2016. It has been further submitted that the impugned order was handed over to the authorised representative of the company but the authorised representative was unable to attend office for a long period due to the weddi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to substantiate his contention that the assumption of jurisdiction u/s 263 of the Act was not proper because there was no lack of inquiry on the part of the Assessing Officer. It was submitted that merely because the assessment order did not refer to the queries raised during the course of scrutiny proceedings and the response thereto by the assessee, it could not be inferred that there was no inquiry so as to conclude that the assessment was erroneous and prejudicial to the interest of the revenue. It was also submitted that merely because there is no elaborate discussion in the assessment order, the order cannot be said to be erroneous. The Ld. AR also placed on record a copy of assessment order dated 27.12.2017 passed u/s 263 r/w section 143(3) of the Act subsequent to the revisionary proceedings and in accordance with directions of the Ld. Pr. C.I.T. and submitted that no addition had been made by the Assessing Officer in this order also on the issues on which proceedings u/s 263 were initiated. It was prayed that the impugned order be set aside. 7.0 In response, the Ld. C.I.T. DR placed reliance on the order of the Ld. Pr. C.I.T. and vehemently argued that the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a view to starting fishing and roving enquiries in matters or orders which are already concluded. Such action will be against the well-accepted policy of law that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity [see Parashuram Pottery Works Co. Ltd. vs. ITO, (1977) 106 ITR 1 (SC)]. 8.3 It is a matter of record that in the present case the AO had made enquiries during the assessment proceedings; the assessee had given detailed explanation and the Assessing Officer on being satisfied with the explanation of the assessee had passed the assessment order. Such decision of the Assessing Officer cannot be held to be erroneous . The Hon ble Delhi High Court in the case of CIT vs. Sunbeam Auto Ltd. reported in 332 ITR 167 has held as under: Therefore, one has to see from the record as to whether there was application of mind before allowing the expenditure in question as revenue expenditure. Learned counsel for the assessee is right in his submission th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said that the order passed was erroneous. In CIT v Gabriel India Ltd. (1993) 203 ITR 108 (Bom), the Hon ble Bombay High Court held that once the Assessing Officer has exercised the quasi-judicial power vested in him in accordance with law and arrived at a conclusion, such a conclusion cannot be considered erroneous simply because the Commissioner does not feel satisfied with the conclusion. It may be that in the opinion of the Commissioner, the order in question is prejudicial to the interests of the revenue. But that by itself would not be enough to vest the Commissioner with the powers of suo motu revision because the first requirement, namely, that the order is erroneous, is lacking. 8.5 In the instant appeal before us, it is not the Department s case that no information regarding the issues raised by the Ld. Pr. CIT was called for by the AO. It is undisputed that relevant details and documents were furnished by the assessee during the assessment proceedings and forms part of the record. Hence, no inference can be drawn that the AO has not examined the issue although he has not expressed it in as many terms as may be considered appropriate by his superior authority and eve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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