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TMI Blog2024 (10) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... passed under section 263 of the Income-tax Act, 1961 (in short, the Act ), for Assessment Year 2018-19, passed on dated 06.03.2024. The impugned order was emanated from the order of the National e-Assessment Centre, Delhi (in short, the ld. A.O. ), passed under section 143(3)r.w.s. 144B of the Act, date of order 23/04/2021. 2. The assessee has taken the following grounds: - 1.1 In the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Exemptions), Mumbai [ the CIT for short] erred in revising the assessment order u/s 143(3) r.w.s. 144B of the Income Tax Act, 1961 passed by the National E-Assessment Centre, Delhi, [ the AO or the NeAC for short] by invoking the provisions of section 263 of the Income Tax Act, 1961 [ the Act for short] in violation of principles of Natural Justice. 2.1. In the facts and circumstances of the case and in law, the CIT erred in revising the assessment order passed by the A0/ NeAC u/s 143(3) r.w.s. 144B of the Act by invoking the provisions of section 263 of the Act. 2.2. While doing so the Ld. CIT failed to appreciate: (a) The necessary pre-conditions for initiation and completion of a revision u/s 263 of the Act wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order. The ld CIT by invoking provision 263 of the Act treated the assessment order as erroneous and prejudicial to the revenue. The ld. CIT on perusal of assessment record it is found that the assessee had conducted Goa Fest in Goa annually where in the leader of advertising industries are invited to deliver their presentation on the industry. The participation in this event is through subscription only. The ld. CIT has treated this activity as business activity and not in charitable nature. The issue was never adjudicated by the ld.AO in the assessment order. So, the expenses of Goa Fest is directed to further verification and setting aside the assessment order as erroneous prejudicial to the revenue. Being aggrieve don revision order U/s 263 the assessee filed an appeal before us. 4. The ld. AR argued and filed written submission which is kept in the record. The ld.ARargued that the assessee is covered it s own case ITA No. 2072/MUM/2016 date of pronouncement 01.03.2019. So, the invoking Section 263 of the Act is unjustified. The ld. AR respectfully relie don different judgements and submitted his submission which is reproduced as below: - Sr. No. Particulars Ex. Nos. 1. PRO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )] 6. PROPOSITION 6: CIT cannot hold an order to be erroneous merely because he could have written a better assessment order. A perfect assessment is a myth. The Power of review is not invocable to cover up the alleged deficiencies in the assessment order [Ref. Salora International Ltd. v/s Addl. CIT (2005) 2 SOT 705 (Delhi) (Trib.) wherein it was held that, Merely because from a perfectionist point of view, it is felt that some more enquiries and verifications could have been made by Assessing Officer while making assessment/assessment order cannot be declared to be erroneous and prejudicial to interest of revenue... ] In fact, it has been held that, Where an Assessing Officer acting in accordance with law passes some order, same cannot be branded as erroneous by the Commissioner if he is of other view or in the opinion of the Commissioner the order passed by the Assessing Officer is weak or should have made detailed order. Section 263 does not visualize a case of substitution of judgement of Commissioner for that the Assessing Officer who passed the order, unless the order of Assessing Officer is held to be erroneous causing prejudice to the interest of revenue... [Ref. Allied En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee trust every year. Further the activities conducted by the assessee it can be understood that they are not charitable in nature as the receipts for the Goa Fest are divided into members and non-members subscriptions whereas the expenditure is not identified as such attributable to members and non-members. Therefore, the assessee's case is to be considered as that of an entity engaged in commercial/business activity and the receipts are to be brought to tax accordingly. Further the claim of exemption u/s 11 need to be examined by the AO in light of the nature of activity undertaken by the assessee. 10. In view of the facts and circumstances on record, I am satisfied that the AO has not verified the impugned issues. This non verification renders the assessment order dated 23.04.2021 is erroneous in so far as it was prejudicial to the interest of revenue with in the meaning of Explanation 2 to Section 263 of the Act reproduced above. 11. Hence, by virtue of powers vested in the undersigned vide the provisions of Section 263 of the Income Tax Act, the assessment order u/s 143(3) r.w.s. 144B of the Act dated 23.04.2021 is set aside for denovo assessment. The assessing off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi). The relevant paragraphs are reproduced as below: - 15. As far as the first aspect with respect to exercise of power under Section 263 is concerned, the issue stands concluded, in the light of the amendment with effect from 1989, by insertion of Explanation (c) to Section 263 (1). The non-consideration of the larger claim for Rs. 298.93 crores as depreciation and the consideration of only a part of it (Rs. 644,81,091) by the assessing officer, who did not go into the issue with respect to the whole amount, was an error, that could be corrected under Section 263. Aruba (supra) is decisive, in that the provision of Section 263 (1) Explanation (c) was introduced to cater to precisely this kind of mischief. 16. On the aspect of show cause notice, i.e., the second and third questions framed, the court is of the opinion that the ruling in Amitabh Bachhan (supra) is decisive; it upholds the power of the Commissioner to consider all aspects which were the subject matter of the AO's order, if in his opinion, they are erroneous, despite the assessee's appeal on that or some other aspect. The Court held that: Reverting to the specific provisions of Section 263 of the Act what ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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