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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 ..... cts, therefore, they are not applicable to the facts of the case before us. In the result, we set aside the order of the CIT u/s. 263 of the Act was not sustainable. Appeal filed by the assessee is allowed. - ITA No. 1025/Hyd/2015 - - - Dated:- 24-4-2019 - P. Madhavi Devi, Member (J) And S. Rifaur Rahman, Member (A) For the Appellant : K.A. Sai Prasad. For the Respondents : Nivedita Biswas. ORDER P. Madhavi Devi, Member (J) 1. This is assessee's appeal against the order of the CIT-3, Hyderabad u/s. 263 of the Act dated 28.01.2015. 2. At the outset, it is noticed that there is a delay of 123 days in filing of the appeal before us. The assessee has filed an application for condonation of delay and it is stated therein that the Commissioner, Hyderabad had set aside the assessment order and 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 nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assuming that since matter was remitted back to Assessing Officer, he could agitate consequential order to be passed by Assessing Officer in appeal proceedings before Commissioner (Appeals) only. Thus assessee entertained a belief that as original assessment had been set aside, there was no necessity of challenging revisional order of Commissioner before Tribunal. Whether on facts, misconstruction of order of Commissioner by assessee and not filing an appeal against it within prescribed time was wrong but same could not be considered to be mala fide or with any ulterior purpose. Held, yes, Whether, therefore, a case for condonation of delay in filing appeal before Tribunal was made out. Held yes . 8. The learned DR has no objection for argument of the assessee's counsel. 9. After hearing both the parties, we are of the opinion that there exists a reasonable cause in not filing the appeal in time as the assessee misunderstood the content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd., in support of his contention that the depreciation on idle machinery is also to be allowed. 4. The CIT however, was not satisfied with the assessee's contentions. He held that the A.O. has not examined the issues in detail before allowing the claim of the assessee. He held that the assessment has been completed mechanically without verifying the claims vis-a-viz the evidences and that the claims 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 allowability of depreciation on mach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the CIT, which has also been reproduced by the CIT in his order, the CIT has not discussed the merits of the issues in the revision order but has only directed the A.O. to relook into the facts which is not permissible u/s. 263 of the Act. The Hon'ble Bombay High Court in the case of CIT Vs. Gabriel India Ltd., (supra) has held as under: 12. From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an Income-tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately This section does not visualise a case of substitution of the judgment of the Commissioner for that of the Income-tax Officer, who passed the order unless the decision is held to be erroneous. Cases may be visualised where the Income-tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimate himself. The Commissioner, o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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