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TMI Blog2019 (4) TMI 1972X X X X Extracts X X X X X X X X Extracts X X X X ..... d directed the A.O. to redo the assessment in the light of findings, observations and directions and the assessee was under the impression that the A.O. would do the assessment afresh considering the facts and circumstances of the case. It is stated by the assessee that the assessee has come to know later that the CIT's observations and findings were in the nature of directions binding of the A.O. and therefore the A.O. had no discretion but is bound by the CIT's findings and therefore after obtaining proper legal advice, it filed this appeal with a delay and sought condonation of the same. Ld. Counsel for the assessee reiterated the submissions made in the condonation petition and placed reliance upon the decision of the Coordinate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the reasons advanced by the assessee are bona-fide and reasonable. He submitted that the Tribunal in similar circumstances in the case of M/s. Greenfire Agri. Commodities Ltd. in ITA No. 516/Hyd/2013 for A.Y. 2006-07 vide order dated 27.11.2013 condoned the delay by placing reliance on the order of the Tribunal coordinate Bench in the case of Kewalkumar Jain vs. ACIT, Circle-4, Pune (2013) (37 Taxmann. 248) (Pune-Trib) wherein held that "Assessment order passed in case of assessee was set aside by Commissioner in exercise of power under section 263. Against said revisional order, assessee filed instant appeal belatedly along with an application seeking condonation of delay. It was noted that assessee misconstrued law by ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f facts of the case are that, the assessee filed its return of income on 05.03.2011 admitting 'Nil' income. The assessment was taken up for scrutiny and during the assessment proceedings, the A.O. called for the details and after examining the capital gains admitted in the return of income, computed the long-term capital gain at Rs. 7,05,30,880/-. Thus, the assessment was completed u/s. 143(3) of the Act vide order dated 28.03.2013. Thereafter, the CIT assumed jurisdiction u/s. 263 of the Act and perused the assessment record. He was of the opinion that the assessment was erroneous and prejudicial to the interest of the revenue on the following 3 grounds. (1) Though the assessee has discontinued the manufacturing activity, it has cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have been accepted at face value. Therefore, according to the CIT, the assessment order has become erroneous and prejudicial to the interest of the revenue. He accordingly set aside the assessment order with a direction to the A.O. to verify the facts and decide the allowability or otherwise of the claims of the assessee. 5. The Ld. Counsel for the assessee submitted that the assessee had filed details of cost of improvement before the CIT in the computation of income along with fixed asset schedule for the A.Y. 2011-12 and bills and vouchers have also been produced before the A.O. and therefore there was no error committed by the A.O. while computing the capital gains and taking the cost of improvement into consideration. As regards the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed the comments of the A.O. vide letter dated 06.02.2017 on the order of the CIT and also placed reliance upon various case law in support of the revision order of the CIT. 7. Having regard to the rival contentions and material on record, we find that to hold an order erroneous and prejudicial to the interest of the revenue, the CIT has to go the facts of the case. In the case before us, the CIT had pointed out 3 deficiencies in the assessment order, (1) The claim of depreciation being allowed on plant and machinery though the manufacturing activity had been stopped; (2) under valuation of a closing stock; (3) non verification of the cost of improvement of the assessee. The CIT though has pointed out these 3 factors have not been consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd left to the Commissioner he would have estimated the income at a figure higher than the one determined by the Income-tax Officer. That would not vest the Commissioner with power to re-examine the accounts and determine the income himself at a higher figure. It is because the Income-tax Officer has exercised the quasi-judicial power vested in him in accordance with law and arrived at conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. It may be said in such a case that in the opinion of the Commissioner the order in question is prejudicial to the interests of the Revenue. But that by itself will not be enough to vest the Commissioner with the power ..... X X X X Extracts X X X X X X X X Extracts X X X X
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