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TMI Blog2016 (12) TMI 1868X X X X Extracts X X X X X X X X Extracts X X X X ..... 91,130 (being the same income as filed as per the original return of income on 28.10.2004). Assessee also filed the returns of income for other assessment years. Thereafter the cases were taken up for scrutiny and the assessments for all the assessment years were framed vide order dated 30.12.2011 and the total income for various years were determined as under: AY Income as per return of income filed pursuant to notice u/s 153A (Rs) Total income determined u/s 153A rws 143(3) (Rs) 2004-05 17,26,91,130 17,90,65,423 2006-07 18,11,24,525 19,67,37,355 2007-08 16,99,16,007 17,87,45,189 2008-09 23,34,61,990 23,68,08,759 2009-10 37,54,97,632 37,90,09,291 2010-11 @ 50,86,35,425 @@ 52,90,71,154 @ - Return of income not filed u/s 153A but a regular return. @@ - Total income determined u/s 143(3) 3. Thereafter on verification of the records and the orders passed by AO, ld.CIT noticed that the order passed by the AO were prima facie erroneous and prejudicial to the interest of the Revenue interalia for the following reasons: 1. For A.Y. 2004-05, according to ld. CIT(A), assessee had shown higher profitability in export division and thereby claimed higher deduction u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rits of the issues. The submissions of the assessee was not found acceptable to the Ld.CIT as he was inter-alia of the view that once a search/requisition is made u/s 132 of the Act, the AO is bound to issue notice u/s 153A to the assessee to furnish the return for each assessment years falling within six assessment years immediately preceding the assessment year relevant to the previous year in which the search was conducted or requisition was made and therefore the AO is empowered to assess or reassess the total income of all these six assessment years. Ld.CIT also noted that AO had himself sent the proposal for revision of the orders u/s 153A r.w.s 143(3) for AY 2004-05, 2006-07 to 2009-10 and u/s 143(3) for AY 2010-11 as he could not conduct the necessary enquiries because of paucity of time. He thereafter vide consolidated order dated 28.3.2014 for AYs 2004-05, 2006-07, 2007-08, 2008-09, 2009-10 and 2010-11 concluded that the order passed by the AO u/s 153A r.w.s 143(3) were not only erroneous but were also prejudicial to the interest of the Revenue. He accordingly set aside the orders passed by the AO and directed the AO to pass fresh assessment orders in line with the his ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of personal hearing. 6. The grounds raised by assessee for A.Y. 2006-07 to A.Y. 201011 are similarly worded as for A.Y. 2004-05 and therefore the same are not reproduced. 7. Before us, at the outset, the ld. AR submitted that the grounds raised by assessee in all the appeals being identical and the issue being common for all the years and therefore his submissions being also common, all the appeals can be disposed together. Ld.D.R. did not object to the aforesaid submissions of ld. AR. We therefore, for the sake of convenience, proceed to dispose of all the appeals by a consolidated order. 8. Before us, Ld AR reiterated the submissions made before ld.CIT and further submitted that the prerequisite conditions specified u/s 263 of the Act were not satisfied and therefore the proceedings u/s 263 initiated by the ld.CIT for all the six assessment years lacks jurisdiction and are therefore bad in law. He submitted that u/s 263, the ld.CIT can revise an order passed by the AO only on the satisfaction of twin conditions namely (i) the order is erroneous and (ii) it is prejudicial to the interest of Revenue. If one of them is absent i.e. if either the order of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment proceedings u/s 143(3) and u/s 153A r.w.s. 143(3) and therefore once the issues have been examined and orders have been passed, revisionary proceedings cannot be initiated. He submitted that in the present case, the revision proceedings were initiated only on the basis of change of opinion which is not permissible as per law. He therefore submitted that the order passed by ld.CIT u/s 263 lacks jurisdiction and even on merits it cannot be upheld and therefore the orders passed by ld.CIT for all the years be set aside. Ld DR on the other hand supported the order of ld.CIT. He further submitted that when AO has allowed the claim without any discussion, the orders passed by AO were erroneous and prejudicial to the interest of the Revenue and therefore ld. CIT has rightly invoked provision of Sec.263 of the Act. In response to ld. A.R's argument, that since order u/s 153C has been passed after approval of Addl.CIT which was obtained u/s 153D and therefore it is not amenable to revisionary proceedings u/s 263, he submitted that provision of Sec.263 does not specifically bar such revision by ld. CIT. He thus supported the order of ld. CIT. 9. We have heard the rival submissions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . If an ITO acting in accordance with law makes 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 judgment of the Commissioner for that of the ITO, who passed the order, unless the decision is held to be erroneous. Cases may be visualised where ITO 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 estimates himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and, left to the Commissioner, he would have estimated the income at a higher figure than the one determined by the ITO. 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 ITO has exercised the quasi-judicial power vested in him in accordance with law and arrived at a conclusion and such a conclusion cannot be termed to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven by him while approving the draft assessment order. Therefore, if at all, there is any error, it is in the order of the range head and not in the assessment order. Without revising the directions of Addl.CIT, assessment order could not be revised." 15. We also find that on identical issue, in the case of Mehtab Alam and others Vs. ACIT (ITA No.288 to 294/LKW/2014 order dated 18.11.2014) the Co-ordinate Bench of the Lucknow Tribunal has observed as under: "19. It is also obvious from the record that while completing the assessment, the Assessing Officer has obtained approval from the JCIT. Therefore, the JCIT has also applied his mind to the factum of seizure of cash of Rs. 2 crores from the assessee and after obtaining approval, the assessment was framed and having convinced with the explanations furnished by the assessee with regard to the availability of cash, no addition was made. Our attention was also invited to the assessment orders framed in the cases of Model Exims; Model Echoes Pvt. Ltd. ; Mohd. Khalid, Prop. S. K. Enterprises and A. L. Razeek Traders, of which copies are available at pages 209 to 309 of the compilation of the assessee, Smt. Nausheen Farah Lari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot disputed by the Revenue, then the Id. Commissioner of Income-tax would not be justified in interfering in the approval according by the Addl. CIT for framing the assessment order and thus there was no case for setting aside the assessment order for the assessment years in question." 16. We also find that the Hyderabad Bench in the case of Trinity Infraventures Ltd. Vs. DCIT (ITA Nos.584 to 589/Hyd/2015 order dated 04.12.2015) has noted as under : "5.4 The Ld. Counsel for the assessee has further submitted that the assessment under section 143(3) read with section 153C was passed after getting approval of Addl.CIT under section 153D of the I.T. Act and therefore such an assessment cannot be revised without revising the directions of the Addl.CIT under section 153D of the I.T. Act. The Ld. Counsel for the assessee, has relied upon the decisions of this Tribunal in the case of Ch. Krishna Murthy Vs. ACIT, C.C.3, Hyderabad in I.T.A.No.766/Hyd/2012 dated 13.02.2015 and also the decision of Lucknow Bench of ITAT in the case of Mehtab Alam 288/Luck/2014 dated 18.11.2014 in support of this contention. He has also placed reliance upon the decision of Hon'ble Allahabad High Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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