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TMI Blog2019 (4) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... made. Even from the records, we notice that the assessee by way of exhaustive reply filed with the CIT in respect of all the aforesaid issues, on the basis of which the order passed by the AO was sought to be revised, had thus furnished clarifications as regards all the said issues and demonstrated that the assessment order was not erroneous and prejudicial to the interest of revenue‟. However, the Ld. CIT without pointing out any infirmity in the reply /explanation of the assessee, and as to why the same could not accepted had rather hushed through the matter and concluded that the assessment order passed by the AO was found to be erroneous and prejudicial to the interest of revenue . By no stretch of imagination, the assessment order can be termed as erroneous and or prejudicial to the interest of revenue and are required to be satisfied for invoking the provisions of section 263 of the Act - Decided in favour of assessee. - I.T.A. No. 3499/Mum/2017 - - - Dated:- 8-2-2019 - Hon ble Sh. G. S. Pannu, VP And Hon ble Sh. Sandeep Gosain, JM For the Appellant : Shri Anil Sathe, AR For the Respondent : Shri H. N. Singh, DR ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same by this common order. 4. We have heard counsels for both the parties at length and we have also perused the material placed on record, judgment cited by both the parties as well as the orders passed by revenue authorities. Before we decide the merits of the case, it is necessary to evaluate the orders passed by Ld. CIT while passing order u/s 263 of I.T. Act. The operative portion of the order of Ld. CIT is contained in para no. 6 7 of its order and the same is reproduced below:- 6. The assessee s submission is duly considered. The case of the assessee is being in the terms discussed hereunder. Firstly, as regards the submission of theassessee that the details regarding the expenses aimed by the assessee in the return ofincome were filed by the assessee vide letter dated 31.07.20 15 and 22.09.2015 respectively and same were scrutinized and verified by the O while finalizing the assessment cannot be accepted as there are no such details of verification/examination of the nature and genuineness of the above expenses claims made by the assessee placed on record. Secondly, assessee received unsecured loan of ₹ 25,00,000/- during the year from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not necessary for the CIT to have., himself made enquiries before cancelling assessment Similarly,in the case of Rajakshmi Mills Vs ITO reported in 121 ITD 343,the Special Bench of ITAT, Chennai has held that Commissioner can regard order as erroneous from the ground that in circumstances of the case the AO should have made further enquiries before allowing the claim of loan ₹ 25.00,003/- and other expenses as genuine. Therefore, the lack of enquiry or lack of application of mind on the part of AO and by accepting the submission of the assessee on its face value without its proper verification, to my considered opinion makes the assessment order erroneous in so far as prejudicial to the interest of the revenue. Accordingly, the assessment made for AY 2013-14 is hereby set aside to be made afresh. The Assessing Officer is directed to proceed and finalize the assessment after providing sufficient opportunity of being heard to the assessee. 5. Ld. AR appearing on behalf of the assessee submitted before us that the assessment order u/s 143(3) of the Act was passed by the AO after detail enquiries from the assessee and in this respect all the required documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. We have also considered the previous and subsequent years of assessment orders in the case of assessee wherein after considering the similar documents, no additions were made in the case of assessee. 10. We have also gone through the orders passed by the Coordinate Bench of Hon‟ble ITAT in ITA No. 2155/Mum/2017 in the case of John Galt International Vrs. Pr. CIT. The operative portion of the order of ITAT is contained in para no. 21 to 22, which is reproduced below:- 21. We further find that except stating that the assessee has not furnished any details before the Assessing Officer, the Assessing Officer without conducting proper investigation and without proper application of mind accepted the claims of the assessee and therefore order is erroneous and prejudicial to the interest of the Revenue, the Ld.PCIT could not demonstrate or give proper reasons as to how the Assessment Order passed by the Assessing Officer is erroneous and prejudicial to the interest of the Revenue. 22. In view of the above discussion we are of the view that the Ld.PCIT has failed to show that the impugned Assessment Order passed by the Assessing Officer was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity - Therefore, the view taken by the AO was one of the possible views and the assessment order passed by the AO could not be held to be prejudicial to the Revenue and CIT Vrs. Gabrial India Ltd. 203 ITR 108, wherein it was held that Revision - Scope-Order sought to be revised must be erroneous and also by virtue of its being erroneous prejudice must have been caused to interests of the Revenue- Section 263 does not visualise substitution of judgment of Commissioner for that of ITO, unless the decision is held to be erroneous-Order is erroneous when it is not in accordance with law and is prejudicial when it has caused loss of revenue There must be material before the Commissioner to satisfy him, prima facie, that the two requisits are present Power cannot be exercised at the whims and caprice of Commissioner and Small Wonder Industries vrs. CIT in ITA No. 2464/Mum/2013. 12. We have also gone through the orders passed by AO and we find that AO in para no 3 of its order has categorically mentioned that assessee maintains all relevant books of accounts and supporting evidences. It has also been categorically mentioned by the AO that the books of account of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C). For invoking revisional jurisdiction u/s. 263 the assessment order must contain grievous error which is subversive of the administration of Revenue. Further, exact error must be disclosed by the Commissioner as was held in CIT vs. G.K. Kabra (211 ITR 336)(AP). Totality of facts, clearly indicates that assessment u/s. 143(3) of the Act was framed by the Assessing Officer after obtaining necessary details from the assessee and further the same were examined by him. Therefore, even if, the same has not been spelt elaborately in the assessment order it cannot be said that there is a lack of enquiry or prejudice has been caused to the Revenue, as we have discussed various case laws in earlier part of this order which are identical to the facts before us. Our view is further fortified by the decision of Mumbai Bench of the Tribunal in the case of Mehta Trading Company (ITA No.2838/Mum/2013), order dated 31/10/2014, which is also on identical facts/issue. Even otherwise in the case of Narayan Tatu Rane vrs. ITO (2016) 70 taxmann.com 227, it was held that newly inserted explanation-2(a) to section 263 does not authorize or give unfettered powers to the Commissioner to revise ea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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