9911796707
TMI Blog2024 (12) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 2009-10. The appeal was admitted by a bench of this Court vide order dated 22.01.2016 on the following substantial question of law: Whether the Tribunal is correct in setting aside the order u/s. 263 without appreciating that, out of provision of Rs.407,35,36,368/- made for depreciation on investment and the assessee had added back only Rs.2,32,66,62,407/- relating to investments in India and excluded Rs.1,74,68,73,967/- relating to investments outside India when the CIT directed the AO to add back Rs.174,68,73,967/- on this account. 2. Facts leading to filing of this appeal briefly stated are that the assessee is a banking company. The assessee filed its return of income for the Assessment Year 2009-10 on 30.09.2009 in which total i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Assessment Year 1996-97 held that the Commissioner of Income Tax erred in holding that the order passed by the Assessing Officer was erroneous and was prejudicial to the interest of the revenue and since, the tribunal has already decided this issue in favour of the assessee, the same is binding on both the parties. In the aforesaid factual background, the revenue has filed this appeal. 4. Learned counsel for the revenue submitted that the sole foundation of the order passed by the tribunal is the decision passed by the tribunal in the appeals. It is pointed out that against the decision relied upon by the tribunal, the revenue had preferred an appeal viz., I.T.A.No.2300/2005 before this court, which was decided vide judgment dated 03.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial to the interest of the revenue. Accordingly, the order passed by the Commissioner of Income Tax was set aside. The Supreme Court in G.M.Mittal Stainless Steel (P.) Ltd. supra has held that power under Section 263 of the Act has to be exercised on the basis of the material, which was available at the time when the Commissioner of Income Tax passed an order, the order passed by the tribunal was operative and therefore, the Assessing Officer's order could not have been termed as erroneous. Merely because the order of the Assessing Officer was passed relying which was subsequently reversed by this court cannot justify the order passed by the Commissioner of Income Tax under Section 263 of the Act. 7. In view of preceding analysis, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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