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TMI Blog1997 (1) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... house in the accounting years relevant for the assessment years 1975-76 and 1976-77. The husband of the assessee while explaining the investment in the construction, stated that the two advances of Rs. 12,000 and Rs. 15,000 had been taken by him from his wife in the accounting years relevant to the assessment years 1975-76 and 1976-77. The assessee at the stage of the assessment, for the years in question surrendered the amounts of advances of Rs. 12,000 and Rs. 15,000 and then the said two amounts were brought to tax in her hands. Thereafter, the Commissioner of Income-tax found that no inquiry whatsoever was made by the assessing authority into the amounts surrendered by the assessee at the stage of the assessment made for the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Srivastava and Sons (Kanpur) Ltd. v. CIT [1978] 111 ITR 326 (All). In this case this court referring to section 33B of the Indian Income-tax Act, 1922 (analogous to section 263 of the Income-tax Act, 1961), held that under section 33B, the Commissioner can revise an order passed by the Income-tax Officer only if, (i) it is erroneous and (ii) is prejudicial to the interests of the Revenue. The submission of Sri Bharat Ji is that in the absence of necessary inquiry, the assessment orders made by the assessing authority for the years in question may be erroneous but there is no finding by the Commissioner of Income-tax that the orders passed by the assessing authority for the relevant years were prejudicial to the interests of the Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s having a regular source of undisclosed income from which she was able to earn much more than what was disclosed by her can also not be ruled out. It also appears that the surrender of the amounts in question was made by the assessee in her return of income only to corroborate the story of the loan said to have been given by her to her husband. " It is true that the Commissioner of Income-tax has himself not made any inquiry into the question whether the assessee could receive the two amounts said to have been advanced by her to her husband for the purpose of construction of the house. However, the Appellate Tribunal has gone into this question and recorded a finding as under : " From the stand taken by the assessee in the said reply a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the conclusion that the assessment orders in this behalf were prejudicial to the interests of the Revenue. No exception can be taken to the view taken by the Appellate Tribunal. The Appellate Tribunal after the appraisal of the affidavits filed by the assessee for the first time in the proceedings initiated under section 263, came to the conclusion that no evidence whatsoever was adduced by the assessee to show that she received the two amounts said to have been advanced by her to her husband in the respective assessment years and that was why the Tribunal concluded that the Commissioner of Income-tax rightly held that the orders of the assessing authority were erroneous and prejudicial to the interests of the Revenue. The Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Supreme Court in the case of Smt. Tara Devi Aggarwal v. CIT [1973] 88 ITR 323, when the court held as follows : " Even where an income has not been earned and is not assessable, merely because the assessee wants it to be assessed in his or her hands in order to assist someone else who would have been assessed to a larger amount, an assessment so made can certainly be erroneous and prejudicial to the interests of the Revenue. The Commissioner of Income-tax in the instant case clearly held that it appears that the " assessee surrendered the two amounts said to have been advanced by her to her husband during the years in question only to corroborate the story of loan said to have been given by her to her husband ". One may surrende ..... X X X X Extracts X X X X X X X X Extracts X X X X
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