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TMI Blog2017 (6) TMI 1364X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the conclusion of the Assessing Officer is either erroneous in fact or erroneous in law. Without returning a clear finding that the order of the Assessing Officer was erroneous, the ld Commissioner of Income Tax could not interfere with such an order u/s.263 for making a fishing or roving enquiry. In the instant case, we find that CIT has simply observed that the submission of the assessee needs verification. As per the provisions of section 263, CIT could have either himself verified the submission of the assessee or could have got the submission of the assessee verified by other agencies and thereafter if he would have come to the conclusion that the order passed by the Assessing Officer in respect of the issue was actually errone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed and the related grounds of appeal of the assessee are dismissed. - ITA No. 223/CTK/2014 - - - Dated:- 6-6-2017 - S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER For the Assessee : Shri Bhagaban Panda/D.K.Mohanty, AR For the Revenue : Shri Kunal Singh, CIT DR ORDER Per N.S. Saini, AM This is an appeal filed by the assessee against the order under section 263 of the Act of CIT-Bhubaneswar, dated 29.3.2014, for the assessment year 2009-2010. 2. The assessee has taken the following grounds of appeal: 1. For that the notice issued by the learned Commissioner of Income Tax, Bhubaneswar (CIT) under Section 263 of the I.T. Act, 1961 (the 'Act') are bad in law, void a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 154, the invoking of provision U/s. 263 are not only excessive, arbitrary but also ex facie illegal and liable to be quashed. 3. We have heard the rival submissions and perused the orders of lower authorities and materials available on record. The brief facts of the case are that the assessee is a State Public Sector Undertaking owned by Government of Orissa. The assessee derives income from construction of building for residential purposes of the police, vigilance, prison and fire personnel, etc. The assessee filed its return of income based on provisional account on 30.9.2009 disclosing income of ₹ 9,2048,485/-. The assessee could not file the revised return u/s.139(5) of the Act after the completion of their departmental audit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accepted as income. The assessee s contention is that the same has been done so. This contention of the assessee needs further verification and therefore the matter is set-aside and restored to the file of the AO for redoing the assessment after offering proper opportunity to the assessee. 6. We find that in the instant case, it is not in dispute that during the course of assessment, the Assessing Officer called for details of closing work-in-progress, which was furnished by the assessee and was also examined by the Assessing Officer. It is not the case of the ld Commissioner of Income Tax that the Assessing Officer has not examined the valuation of closing work in progress. That being so, in our considered view, the ld Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not properly examined and, therefore, the assessment order is erroneous . The said finding will be correct, if the Commissioner of Income-tax had examined and verified the said transaction himself and given a finding on the merits. As held above, a distinction must be drawn in the cases where the Assessing Officer does not conduct an enquiry ; as lack of enquiry by itself renders the order being erroneous and prejudicial to the interests of the Revenue and cases where the Assessing Officer conducts enquiry but finding recorded is erroneous and which is also prejudicial to the interests of the Revenue. In latter cases, the Commissioner of Income-tax has to examine the order of the Assessing Officer on the merits or the decision taken by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n rectified by the Assessing Officer u/s.154 of the Act and, therefore, exercise of power u/s.263 of the Act was excessive. 9. We find that as per provisions of section 263 of the Act, the ld Commissioner of Income Tax can exercise the jurisdiction when he finds that the order of the Assessing officer is erroneous and prejudicial to the interests of the revenue. Nowhere, the said section provides that if the error is apparent then powers conferred u/s.263 upon the Commissioner of Income Tax cannot be exercised. Hence, we do not find any force in the above submission of the assessee. Therefore, the order of the Commissioner of Income Tax in respect of above two issues are confirmed and the related grounds of appeal of the assessee are dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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