Inadequate enquiry cannot be a ground for exercising of revisionary powers u/s 263 (of Income Tax Act, 1961).

Held Reasons recorded for reopening of the assessment and the reason for initiating proceedings u/s 263 (of Income Tax Act, 1961),are the same and based on the same material. The allegation in this show cause notice issued u/s 263 (of Income Tax Act, 1961), is that the Assessing Officer has failed to examine and that no enquiry was conducted into the veracity of the loans by the Assessing Officer, is factually incorrect. It is well settled that inadequate enquiry cannot be a ground for exercising of revisionary powers u/s 263 (of Income Tax Act, 1961). Assessing Officer had conducted enquiries both with the assessee as well as with the third parties and on receipt of all the information, has accepted these loans as genuine. CIT cannot substitute his opinion for that of the Assessing Officer. Pr. CIT has not conducted any verification or prima facie investigation on his own to come to a conclusion that the order passed by the Assessing Officer is erroneous and prejudicial to the interest of the revenue. He also failed to notice that enquiries were in fact made by the Assessing Officer. (para 7) Order passed u/s 263 (of Income Tax Act, 1961), d. 19/03/2019, as bad in law. It is wrong both on facts as well as law. Enquiries were made by the Assessing Officer and the Assessing Officer on such enquiries has taken a possible view. The very reason for reopening is the ground for proposing the revision. This is not permissible in law. (para 8) Assessee, on 24/03/2016, requested the Assessing Officer to treat the original return of income filed by it for the Assessment Year 2009-10, as that return of income which is filed in response to notice u/s 148 (of Income Tax Act, 1961). From the order sheet entries, it is clear that notice u/s 143(2) (of Income Tax Act, 1961) was issued on 24/02/2016. This fact is also mentioned by the Assessing Officer at para 5 of his order. This proves that the notice u/s 143(2) (of Income Tax Act, 1961), was issued much prior to the assessee filing his return of income. This is not in accordance with law. Hence the order passed u/s 148 (of Income Tax Act, 1961) without issuing valid notice u/s 143(2) (of Income Tax Act, 1961), makes the reassessment order dt. 20/05/2016, passed u/s 143(3) (of Income Tax Act, 1961)/147, bad in law. Consequently, the revision of the assessment u/s 263 (of Income Tax Act, 1961) dt. 19/03/2019, revising such illegal assessment order is also bad in law. (para 9.1)

This appeal filed by the assessee is directed against the order of the Learned Pr. Commissioner of Income Tax, Central, Kolkata- 2, Kolkata, (hereinafter the “ld. Pr. CIT”), passed u/s. 263 (of Income Tax Act, 1961) (the ‘Act’), dt. 19/03/2019, for the Assessment Year 2009-10.

2. At the outset we find that there is a delay of 126 (One Twenty Six) days in filing of this appeal by the assessee. After perusing the petition for condonation, we are convinced that the assessee was prevented by sufficient cause from filing the appeal in time. Hence the delay is condoned and the appeal is admitted.

3. The ld. Counsel for the assessee submitted that the order passed u/s 263 (of Income Tax Act, 1961), is bad in law for the following reasons:-

a) The assessment was reopened after verifying unsecured loans of Rs. 1.74 Crores, received by the assessee from various companies and the Assessing Officer after examining this issue had accepted the unsecured loans as genuine in the reassessment proceedings. The ld. Pr. CIT, cannot for the very same reason revise the assessment order passed by the Assessing Officer. He drew the attention of the Bench to the copy of the reasons recorded for reopening of the assessment as well as the show cause notice issued by the ld. Pr. CIT, prior to passing of his order u/s 263 (of Income Tax Act, 1961) to demonstrate that both actions were for the very same reasons.

c) The ld. Pr. CIT coming to a conclusion that the order requires revision. Such lack of enquiry and non application of mind by the ld. Pr. CIT makes the order bad in law.

d) That the assessee is entitled to question reassessment order passed u/s 143(3) (of Income Tax Act, 1961)/147 of the Act on 20/05/2016,while challenging the order passed u/s 263 (of Income Tax Act, 1961) reassessment order root of the matter.

e) The Assessing Officer in the reassessment order dt. 20/05/2016 has not made any addition based on the order relatable to the reasons on which the revision was made and the returned income was accepted. Thus, such reassessment order is bad in law and reassessment order is bad in law.

f) The Assessing Officer in page 1 of the assessment order states that the notice u/s 148 (of Income Tax Act, 1961) was issued on 24/02/2016 (para 4). At para 5, page 1 of his order, he further states that the Act was issued on 24/02/2016. This proves that notice u/s 143(2) (of Income Tax Act, 1961) was issued prior to the assessee filing a return in response to a notice issued u/s 148 (of Income Tax Act, 1961) and that this makes the notice u/s 143(2) (of Income Tax Act, 1961) u/s 263 (of Income Tax Act, 1961) to demonstrate that both actions were for the very same reasons.

That the Assessing Officer while completing the assessment u/s 143(3) (of Income Tax Act, 1961)/147 of the Act on 20/05/2016 had conducted enquiries, obtained information from third parties and on being satisfied with the identity and creditworthiness of the sundry creditors and that the genuineness of the transactions had not made any addition. That adequate enquiries were made and it is not a case of lack of enquiry or lack of application of mind and that revision cannot be made on the ground of inadequate.

The ld. Pr. CIT did not conduct any enquiry or verification by himself for coming to a conclusion that the order requires revision. Such lack of enquiry and non application of mind by the ld. Pr. CIT makes the order.

That the assessee is entitled to question the legality and validity of the reassessment order passed u/s 143(3) (of Income Tax Act, 1961)/147 of the Act on 20/05/2016, while challenging the order passed u/s 263 (of Income Tax Act, 1961) reassessment order, as it would be a jurisdictional issue which goes to the after.

The Assessing Officer in page 1 of the assessment order states that the notice u/s 148 (of Income Tax Act, 1961) was issued on 24/02/2016 (para 4). At para 5, page 1 of his order, he further states that statutory notice u/s 143(2) (of Income Tax Act, 1961) was issued on 24/02/2016. This proves that notice u/s 143(2) (of Income Tax Act, 1961) was issued prior to the assessee filing a return in response to a notice issued u/s 148 (of Income Tax Act, 1961) and that this makes the notice u/s 143(2) (of Income Tax Act, 1961) u/s 263 (of Income Tax Act, 1961) to demonstrate that both actions were for the very That the Assessing Officer while completing the assessment u/s 143(3) (of Income Tax Act, 1961)/147 of the Act on 20/05/2016 had conducted enquiries, obtained information from third parties and on being satisfied with the identity at the genuineness of the transactions had not made any addition. That adequate enquiries were made and it is not a case of lack of enquiry or lack of application of mind and that revision cannot be made on the ground of inadequate did not conduct any enquiry or verification by himself for coming to a conclusion that the order requires revision. Such lack of enquiry and non application of mind by the ld. Pr. CIT makes the order ity and validity of the reassessment order passed u/s 143(3) (of Income Tax Act, 1961)/147 of the Act on 20/05/2016, while challenging the order passed u/s 263 (of Income Tax Act, 1961), revising the as it would be a jurisdictional issue which goes to the The Assessing Officer in the reassessment order dt. 20/05/2016 has not made any addition based on the order relatable to the reasons on which the revision was made and the returned income was accepted. Thus, such consequently the revision of such The Assessing Officer in page 1 of the assessment order states that the notice u/s 148 (of Income Tax Act, 1961) was issued on 24/02/2016 (para 4). At para 5, statutory notice u/s 143(2) (of Income Tax Act, 1961) was issued on 24/02/2016. This proves that notice u/s 143(2) (of Income Tax Act, 1961) was issued prior to the assessee filing a return in response to a notice issued u/s 148 (of Income Tax Act, 1961) and that this makes the notice u/s 143(2) (of Income Tax Act, 1961), bad in law. Thus, the assessment order is bad in law notice u/s 143(2) (of Income Tax Act, 1961) was issued to the assessee after filing of the return of income in response to a notice issued u/s 148 (of Income Tax Act, 1961) and the framing of assessment u/s 143(3) (of Income Tax Act, 1961). Thu u/s 263 (of Income Tax Act, 1961), consequently bad in law.

He submitted that the Assessing Officer has not examined the antecedents of the company and the creditworthiness while accepting the loans. He the ld. Pr. CIT and submitted that as the Assessing Officer has completed the without due enquiry and verification prejudicial to the interest of the revenue. On a query from the Bench Department to the legal arguments raised by the assessee’s counsel on the validity of the reassessment order, the ld. CIT D/R submitted that he is relying on the order of the ld. Pr. CIT.

5. We have heard rival contentions. On careful consideration of the facts an circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:

6. The reasons for reopening of assessment as recorded by the Assessing Officer are as follows:-

“The assessee had filed the return for the AY 2009 section 143(3) (of Income Tax Act, 1961) or 153A (of Income Tax Act, 1961).

As per the communication received from OFFICE OF THE DEPUTY DIRECTOR OF INCOME TAX (INVESTIGATION), UNIT AAYAKAR BHAWAN ANNEXE, DDIT/U-2(4)/Rungta/2015

A search and seizure operation under section 132 (of Income Tax Act, 1961) was conducted on Rungta group of companies on 25/08/2015. During the cours search investigation, a report in the form of STR received from DDIT (Inv), Unit Ranchi. The STR was in the name of RECENT SUPPLIERS PVT. LTD. and related with Rungta Group of Companies by way of financial transaction. In this case one entry operator SHRI RAJENDRA BUBNA was identified and statement under oath was recorded. In his statement (copy enclosed in folder), he stated that he had provided unsecured loan through his web of the Act, bad in law. Thus, the assessment order is bad in law notice u/s 143(2) (of Income Tax Act, 1961) was issued to the assessee after filing of the return of income in response to a notice issued u/s 148 (of Income Tax Act, 1961) and the framing of assessment u/s 143(3) (of Income Tax Act, 1961). Thus, the revisionary order passed u/s 263 (of Income Tax Act, 1961), consequently bad in law.

The ld. CIT D/R, on the other hand, submitted that the ld. Pr. CIT had given a finding that the assessee had shown unsecured loan of Rs.1.74 Crores and the Assessing s not looked into the adverse evidences while completing the reassessment.

He submitted that the Assessing Officer has not examined the antecedents of the company and the creditworthiness while accepting the loans. He relied on the order of and submitted that as the Assessing Officer has completed the without due enquiry and verification and hence, the order passed was erroneous and prejudicial to the interest of the revenue. On a query from the Bench, on the reply of the nt to the legal arguments raised by the assessee’s counsel on the validity of the reassessment order, the ld. CIT D/R submitted that he is relying on the order of the We have heard rival contentions. On careful consideration of the facts an circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:-

The reasons for reopening of assessment as recorded by the Assessing Officer had filed the return for the AY 2009-10, but was not scrutinized under As per the communication received from OFFICE OF THE DEPUTY DIRECTOR OF INCOME TAX (INVESTIGATION), UNIT-2(4), KOLKATA, 4TH FLOOR, ROOM NO 4/7A, ANNEXE, -13, CHOWRINGHEE, KOLKATA-69, VIDE LETTER No. 2(4)/Rungta/2015-16/2331 Dated 14.01.2016

A search and seizure operation under section 132 (of Income Tax Act, 1961) was conducted on Rungta group of companies on 25/08/2015. During the cours search investigation, a report in the form of STR received from DDIT (Inv), Unit Ranchi. The STR was in the name of RECENT SUPPLIERS PVT. LTD. and related with Rungta Group of Companies by way of financial transaction. y operator SHRI RAJENDRA BUBNA was identified and statement under oath was recorded. In his statement (copy enclosed in folder), he stated that he had provided unsecured loan through his web of Jamakharchi/paper companies to the Act, bad in law. Thus, the assessment order is bad in law as no notice u/s 143(2) (of Income Tax Act, 1961) was issued to the assessee after filing of the return of income in response to a notice issued u/s 148 (of Income Tax Act, 1961) and the framing revisionary order passed The ld. CIT D/R, on the other hand, submitted that the ld. Pr. CIT had given a finding that the assessee had shown unsecured loan of Rs.1.74 Crores and the Assessing s not looked into the adverse evidences while completing the reassessment.

He submitted that the Assessing Officer has not examined the antecedents of the relied on the order of and submitted that as the Assessing Officer has completed the assessment , the order passed was erroneous and on the reply of the nt to the legal arguments raised by the assessee’s counsel on the validity of the reassessment order, the ld. CIT D/R submitted that he is relying on the order of the We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities.

The reasons for reopening of assessment as recorded by the Assessing Officer 10, but was not scrutinized under As per the communication received from OFFICE OF THE DEPUTY DIRECTOR OF FLOOR, ROOM NO 4/7A, 69, VIDE LETTER No.

In the light of above facts, I have reasons to believe that the income of Rs.1.74 crore chargeable to tax has escaped assessment for assessment year 2009 meaning of section 147 (of Income Tax Act, 1961).”

6.1. Thereafter, the Assessing Officer called for information required documents accepted the loans received by the assessee company as genuine.

The assessee filed a copy of the order sheet entry at page 73 & perusal of the same demonstrates that the Assessing Officer has called for third party information and had received the same the assessee.

After this exercise, the Assessing Officer assessee from different creditors as genuine and has not made any addition passed u/s 143(3) (of Income Tax Act, 1961) r.w.s. 147 (of Income Tax Act, 1961) on 20/05/2016

6.1.1. The ld. Pr. CIT proposed to revise this reassessment order giving a showcause notice dt. 08/03/2019. Para 3 & 4 of th “3. It has been observed from the assessment records for the relevant assessment year that your concern had received unsecured loans to the tune ofRs.1.74 Cr. From various companies.

4. At the time of re nature of business activities of your concern with the companies from who unsecured loans were taken. Since no enquiry was conducted into the veracity of such loans and creditworthiness of the lenders, the order of the AO appears to be erroneous in so far as it is prejudicial to the interest of the revenue.”

7. From the above it is clear that reasons recorded for reopening of the assessment and the reason for initiating proceedings u/s 263 (of Income Tax Act, 1961), are the same and based on the same material. The allegation in this showcause notice issued u/s 263 (of Income Tax Act, 1961), is that the Assessing Officer has failed to examine and that no enquiry was conducted into the veracity of the loans by the Assessing Officer, is factually incorrect. inadequate enquiry cannot be a ground for exercising of revisionary powers u/s 263 (of Income Tax Act, 1961) of the M/S ANINDITA STEELS LIMITED [formerly known as ANINDITA TRADES & INVESTMENT LTD] to the tune of Rs.1.74 CRORES DURING THE FINANCIAL YEAR 09 CORRESPONDING ASSESSMENT YEAR 2009-10.

Also the statement of Sri Samir Kumar Chatterjee, Director of Recent Suppliers (copy enclosed in the folder).

Thereafter, the Assessing Officer called for information and after obtaining the required documents accepted the loans received by the assessee company as genuine.

The assessee filed a copy of the order sheet entry at page 73 & 74 of the paper book. A perusal of the same demonstrates that the Assessing Officer has called for third party and had received the same and also had taken replies and submissions from After this exercise, the Assessing Officer has accepted the loans taken by the assessee from different creditors as genuine and has not made any addition passed u/s 143(3) (of Income Tax Act, 1961) r.w.s. 147 (of Income Tax Act, 1961) on 20/05/2016.

The ld. Pr. CIT proposed to revise this reassessment order dt. 20/05/2 giving a showcause notice dt. 08/03/2019. Para 3 & 4 of this notice reads as follows:

It has been observed from the assessment records for the relevant assessment year that your concern had received unsecured loans to the tune of rom various companies.

At the time of re-assessment proceedings, the A.O. failed to examine the nature of business activities of your concern with the companies from who unsecured loans were taken. Since no enquiry was conducted into the veracity ch loans and creditworthiness of the lenders, the order of the AO appears to be erroneous in so far as it is prejudicial to the interest of the revenue.”

From the above it is clear that reasons recorded for reopening of the assessment initiating proceedings u/s 263 (of Income Tax Act, 1961), are the same and based on the The allegation in this showcause notice issued u/s 263 (of Income Tax Act, 1961), is that the Assessing Officer has failed to examine and that no enquiry was conducted into the ity of the loans by the Assessing Officer, is factually incorrect. It is well settled that inadequate enquiry cannot be a ground for exercising of revisionary powers u/s 263 (of Income Tax Act, 1961) of the rmerly known as ANINDITA TRADES & INVESTMENT LTD] to the tune of Rs.1.74 CRORES DURING THE FINANCIAL YEAR Also the statement of Sri Samir Kumar Chatterjee, Director of Recent Suppliers In the light of above facts, I have reasons to believe that the income of Rs.1.74 cror -10 within the after obtaining the required documents accepted the loans received by the assessee company as genuine.

74 of the paper book. A perusal of the same demonstrates that the Assessing Officer has called for third party and also had taken replies and submissions from has accepted the loans taken by the assessee from different creditors as genuine and has not made any addition in the order dt. 20/05/2016 by notice reads as follows:-

It has been observed from the assessment records for the relevant assessment year that your concern had received unsecured loans to the tune of assessment proceedings, the A.O. failed to examine the nature of business activities of your concern with the companies from who unsecured loans were taken. Since no enquiry was conducted into the veracity ch loans and creditworthiness of the lenders, the order of the AO appears to be erroneous in so far as it is prejudicial to the interest of the revenue.”

From the above it is clear that reasons recorded for reopening of the assessment initiating proceedings u/s 263 (of Income Tax Act, 1961), are the same and based on the The allegation in this show cause notice issued u/s 263 (of Income Tax Act, 1961), is that the Assessing Officer has failed to examine and that no enquiry was conducted into the It is well settled that inadequate enquiry cannot be a ground for exercising of revisionary powers u/s 263 (of Income Tax Act, 1961). It is for the Assessing Officer to determine the extent of enquiry and done on a particular issue. From the papers on record it is clear that the Assessing Officer had conducted enquiries both with the assessee as well as with the third parties and on receipt of all the information, copies of which are pl book, has accepted these loans as genuine. The ld. Pr. CIT cannot substitute his that of the Assessing Officer. It is also seen that the ld. Pr. CIT has not conducted any verification or prima facie investi passed by the Assessing Officer is erroneous and prejudicial to the interest of the revenue.

He also failed to notice that enquiries were in fact made by the Assessing Officer.

The law on this issue Spectra Shares and Scrips Pvt. Ltd. V CIT (AP) 354 ITR 35 judgments on this issue of exercise of jurisdiction u/s 263 (of Income Tax Act, 1961) by the Principal Commissioner of Income Tax and culled the principles laid down in the judgments as below :

RampyarideviSaraogi v. CIT (1968) 67 ITR 84 (SC) and in Smt. Tara Devi Aggarwal V. CIT (197 25. In Max India Ltd.

Co.Ltd. (2 Supra) and observed that every loss of Revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interest the Revenue. For example, when an Income Tax Officer adopted one of the courses the Assessing Officer to determine the extent of enquiry and done on a particular issue. From the papers on record it is clear that the Assessing Officer had conducted enquiries both with the assessee as well as with the third parties and on receipt of all the information, copies of which are placed from pages 43 to 72 of the paper has accepted these loans as genuine. The ld. Pr. CIT cannot substitute his that of the Assessing Officer. It is also seen that the ld. Pr. CIT has not conducted any investigation on his own to come to a conclusion that the order passed by the Assessing Officer is erroneous and prejudicial to the interest of the revenue.

He also failed to notice that enquiries were in fact made by the Assessing Officer.

The law on this issue is clear. The Hon’ble Andhra Pradesh High Court in the case of Spectra Shares and Scrips Pvt. Ltd. V CIT (AP) 354 ITR 35 had considered a number of judgments on this issue of exercise of jurisdiction u/s 263 (of Income Tax Act, 1961) by the Principal Commissioner of Income Tax and culled the principles laid down in the judgments as Malabar Industrial Co.Ltd. ( 2 Supra), the Supreme Court held that a bare reading of Sec.263 (of Income Tax Act, 1961) makes it clear that the prerequisite for the exercise of jurisdiction by the Commissioner suomotu under it, is the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent – if the order of the Income Tax Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous but it is prejudicial to the Revenue – recourse cannot be had to Sec.263(1) (of Income Tax Act, 1961). It also held at pg-88 as follows:

"The phrase "prejudicial to the interests of the Revenue" has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken tax Officer is unsustainable in law. It has been held by this Court that where a sum not earned by a person is assessed as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the Revenue. RampyarideviSaraogi v. CIT (1968) 67 ITR 84 (SC) and in Smt. Tara Devi Aggarwal V. CIT (1973) 88 ITR 323 (SC)".

Max India Ltd. (3 Supra), reiterated the view in Malabar Industrial (2 Supra) and observed that every loss of Revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interest the Revenue. For example, when an Income Tax Officer adopted one of the course the Assessing Officer to determine the extent of enquiry and investigation to be done on a particular issue. From the papers on record it is clear that the Assessing Officer had conducted enquiries both with the assessee as well as with the third parties and on aced from pages 43 to 72 of the paper has accepted these loans as genuine. The ld. Pr. CIT cannot substitute his opinion for that of the Assessing Officer. It is also seen that the ld. Pr. CIT has not conducted any gation on his own to come to a conclusion that the order passed by the Assessing Officer is erroneous and prejudicial to the interest of the revenue.

He also failed to notice that enquiries were in fact made by the Assessing Officer.

Rampyari devi Saraogi v. CIT (1968) 67 ITR 84 (SC) and in Smt. Tara Devi Malabar Industrial (2 Supra) and observed that every loss of Revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income Tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue; or where two views are possible and the Income Tax Officer has taken one view with which the Commissioner does n prejudicial to the interests of the Revenue, unless the view taken by the Income Tax Officer is unsustainable in law. On the facts of that case, Sec.80HHC(3) (of Income Tax Act, 1961) as it then stood was interpreted by the Asses that in view of the 2005 Amendment which is clarificatory and retrospective in nature, the view of the Assessing Officer was unsustainable in law and the Commissioner was correct in invoking Sec.263 (of Income Tax Act, 1961). But the Supreme C the said contention and held that when the Commissioner passed his order disagreeing with the view of the Assessing Officer, there were two views on the word "profits" in that section; that the said section was amended eleven times; that different views existed on the day when the Commissioner passed his order; that the mechanics of the section had become so complicated over the years that two views were inherently possible; and therefore, the subsequent amendment in 2005 even though retrospec 26. In Vikas Polymers suomotu revision exercisable by the Commissioner under the provisions of Sec.263 (of Income Tax Act, 1961) is supervisory in nature; that an "erroneous judgm accordance with law; that 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 hav written differently or more elaborately; that the section does not visualize the substitution of the judgment of the Commissioner for that of the Income Tax Officer, who passed the order unless the decision is not in accordance with the law; that to invoke suomotu revisional powers to reopen a concluded assessment under Sec.263 (of Income Tax Act, 1961), the Commissioner must give reasons; that a bare reiteration by him that the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of th be such as to show that the enhancement or modification of the assessment or cancellation of the assessment or directions issued for a fresh assessment were called for, and must irresistibly lead to the co Income Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons in respect of each an disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny by the Assessing Officer, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer called for interference 27. In Sunbeam Auto Ltd.

Officer in the assessment order is not required to give a detailed reason in respect of each and every item of deduction, etc.; that whether there was applicat mind before allowing the expenditure in question has to be seen; that if there was an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Sec.263 (of Income Tax Act, 1961) merely because he has a different opinion in the matter; that it is only in cases of lack of inquiry that such a course of action would be open; that an assessment order made by the Income Tax Officer cannot be branded as erroneous by the Commissioner simply because, permissible in law and it has resulted in loss of revenue; or where two views are possible and the Income Tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income Tax Officer is unsustainable in law. On the facts of that case, Sec.80HHC(3) (of Income Tax Act, 1961) as it then stood was interpreted by the Assessing Officer but the Revenue contended that in view of the 2005 Amendment which is clarificatory and retrospective in nature, the view of the Assessing Officer was unsustainable in law and the Commissioner was correct in invoking Sec.263 (of Income Tax Act, 1961). But the Supreme C the said contention and held that when the Commissioner passed his order disagreeing with the view of the Assessing Officer, there were two views on the word "profits" in that section; that the said section was amended eleven times; erent views existed on the day when the Commissioner passed his order; that the mechanics of the section had become so complicated over the years that two views were inherently possible; and therefore, the subsequent amendment in 2005 even though retrospective will not attract the provision of Sec.263 (of Income Tax Act, 1961). Vikas Polymers (4 Supra), the Delhi High Court held that the power of suomotu revision exercisable by the Commissioner under the provisions of Sec.263 (of Income Tax Act, 1961) is supervisory in nature; that an "erroneous judgment" means one which is not in accordance with law; that 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 hav written differently or more elaborately; that the section does not visualize the substitution of the judgment of the Commissioner for that of the Income Tax Officer, who passed the order unless the decision is not in accordance with the invoke suomotu revisional powers to reopen a concluded assessment under Sec.263 (of Income Tax Act, 1961), the Commissioner must give reasons; that a bare reiteration by him that the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show that the enhancement or modification of the assessment or cancellation of the assessment or directions issued for a fresh assessment were called for, and must irresistibly lead to the conclusion that the order of the Income Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons in respect of each an disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny by the er, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer called for interference and revision.

Sunbeam Auto Ltd.( 5 Supra), the Delhi High Court held that the Assessing Officer in the assessment order is not required to give a detailed reason in respect of each and every item of deduction, etc.; that whether there was applicat mind before allowing the expenditure in question has to be seen; that if there was an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Sec.263 (of Income Tax Act, 1961) merely because he has a different atter; that it is only in cases of lack of inquiry that such a course of action would be open; that an assessment order made by the Income Tax Officer cannot be branded as erroneous by the Commissioner simply because, permissible in law and it has resulted in loss of revenue; or where two views are possible and the Income Tax Officer has taken one view with which the ot agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income Tax Officer is unsustainable in law. On the facts of that case, Sec.80HHC(3) (of Income Tax Act, 1961) as it sing Officer but the Revenue contended that in view of the 2005 Amendment which is clarificatory and retrospective in nature, the view of the Assessing Officer was unsustainable in law and the Commissioner was correct in invoking Sec.263 (of Income Tax Act, 1961). But the Supreme Court rejected the said contention and held that when the Commissioner passed his order disagreeing with the view of the Assessing Officer, there were two views on the word "profits" in that section; that the said section was amended eleven times; erent views existed on the day when the Commissioner passed his order; that the mechanics of the section had become so complicated over the years that two views were inherently possible; and therefore, the subsequent amendment in tive will not attract the provision of Sec.263 (of Income Tax Act, 1961). (4 Supra), the Delhi High Court held that the power of suomotu revision exercisable by the Commissioner under the provisions of Sec.263 (of Income Tax Act, 1961) ent" means one which is not in accordance with law; that 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 differently or more elaborately; that the section does not visualize the substitution of the judgment of the Commissioner for that of the Income Tax Officer, who passed the order unless the decision is not in accordance with the invoke suomotu revisional powers to reopen a concluded assessment under Sec.263 (of Income Tax Act, 1961), the Commissioner must give reasons; that a bare reiteration by him that the order of the Income Tax Officer is erroneous in so far as it is e Revenue, will not suffice; that the reasons must be such as to show that the enhancement or modification of the assessment or cancellation of the assessment or directions issued for a fresh assessment were nclusion that the order of the Income Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons in respect of each and every disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny by the er, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer ( 5 Supra), the Delhi High Court held that the Assessing Officer in the assessment order is not required to give a detailed reason in respect of each and every item of deduction, etc.; that whether there was application of mind before allowing the expenditure in question has to be seen; that if there was an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Sec.263 (of Income Tax Act, 1961) merely because he has a different atter; that it is only in cases of lack of inquiry that such a course of action would be open; that an assessment order made by the Income Tax Officer cannot be branded as erroneous by the Commissioner simply because, according to him, the order should hav must be some prima facie material on record to show that the tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a less just, has been imposed. In that case, the Delhi High Court held that the Commissioner in the exercise of revisional power could not have objected to the finding of the Assessing Officer that expenditure on tools and dies by the assesse a manufacturer of Car parts, is revenue expenditure where the said claim was allowed by the latter on being satisfied with the explanation of the assessee and where the same accounting practice followed by the assessee for number of years with the approval of the Income Tax Authorities. It held that the Assessing Officer had called for explanation on the very item from the assessee and the assessee had furnished its explanation. Merely because the Assessing Officer in his order did not make an elaborate as erroneous. The opinion of the Assessing Officer is one of the possible views and there was no material before the Commissioner to vary that opinion and ask for fresh inquiry.

28. In Gabriel India Ltd consideration of the Commissioner as to whether an order is erroneous in so far as it is prejudicial to the interests of the Revenue, must be based on materials on the record of the proceedings called for by h record on the basis of which it can be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. It he Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded; that the department cannot be permitted to begin fresh litigation because of new views they entertain on facts or new versions which they present as to what should be the inference or proper inference either of the facts disclosed or the weight of the circumstance; that if this is permitted, litigation would have no end except when legal ingenuity is exhausted; that to do so is to divide one argument into two and multiply the litigation. It held that cases may be visualized where the Income Tax Officer while making an assessment examines the accounts, makes inquiries, applies his mind to the facts and circum accepting the account or by making some estimate himself; that the Commissioner, on perusal of the record, may be of the opinion that the estimate made by the Officer concerned was on the lower side a he would have estimated the income at a figure higher than the one determined by the Income Tax Officer; but that would not vest the Commissioner with power to reexamine the accounts and determine the income himself at a higher there must be material available on the record called for by the Commissioner to satisfy him prima facie that the order is both erroneous and prejudicial to the interests of the Revenue. Otherwise, it would amount to giving unbridled and arbitrary power to the revising authority to initiate proceedings for revision in every case and start re already been concluded under law.

29. In M.S. Raju(15 Supra), this Court has held that the power of the Commissioner under Sec.263(1) (of Income Tax Act, 1961) is not limited only to the material which was available before the Assessing Officer and, in order to protect the interests of the Revenue, the Commissioner is entitled to examine any other records which are according to him, the order should have been written more elaborately; there must be some prima facie material on record to show that the tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a lesser tax than what was just, has been imposed. In that case, the Delhi High Court held that the Commissioner in the exercise of revisional power could not have objected to the finding of the Assessing Officer that expenditure on tools and dies by the assesse a manufacturer of Car parts, is revenue expenditure where the said claim was allowed by the latter on being satisfied with the explanation of the assessee and where the same accounting practice followed by the assessee for number of years val of the Income Tax Authorities. It held that the Assessing Officer had called for explanation on the very item from the assessee and the assessee had furnished its explanation. Merely because the Assessing Officer in his order did not make an elaborate discussion in that regard, his order cannot be termed as erroneous. The opinion of the Assessing Officer is one of the possible views and there was no material before the Commissioner to vary that opinion and ask for Gabriel India Ltd. (6 Supra), the Bombay High Court held that a consideration of the Commissioner as to whether an order is erroneous in so far as it is prejudicial to the interests of the Revenue, must be based on materials on the record of the proceedings called for by him. If there are no materials on record on the basis of which it can be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded; that the department cannot be permitted to begin fresh litigation because of new views they entertain n facts or new versions which they present as to what should be the inference or proper inference either of the facts disclosed or the weight of the circumstance; that if this is permitted, litigation would have no end except when legal ingenuity ted; that to do so is to divide one argument into two and multiply the litigation. It held that cases may be visualized where the Income Tax Officer while making an assessment examines the accounts, makes inquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the account or by making some estimate himself; that the Commissioner, on perusal of the record, 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 figure higher than the one determined by the Income Tax Officer; but that would not vest the Commissioner with power to reexamine the accounts and determine the income himself at a higher there must be material available on the record called for by the Commissioner to satisfy him prima facie that the order is both erroneous and prejudicial to the interests of the Revenue. Otherwise, it would amount to giving unbridled and power to the revising authority to initiate proceedings for revision in every case and start re-examination and fresh inquiry in matters which have already been concluded under law.

30. In Rampyari Devi Saraogi revisional powers cancelled assessee’s assessment for the yea 1960-61 because he found that the income tax officer was not justified in accepting the initial capital, the gift received and sale of jewellery, the income from business etc., without any enquiry or evidence whatsoever . He directed the income tax officer to do fresh assessment after making proper enquiry and investigation in regard to the jurisdiction. The assessee complained before the Supreme Court that no fair or reasonable opportunity was given to her. The Supreme Court held that there officer made the assessments in undue hurry; that he had passed a short stereo typed assessment order for each assessment year; that on the face of the record, the orders were pre- caused to the assessee on account of failure of the Commissioner to indicate the results of the enquiry made by him, as she would have a full opportunity for showing to the income tax officer whether he had jurisdiction or the income tax assessed in the assessment years which were originally passed were correct or not".

31. From the above decisions, the following principles as to exercise of jurisdiction by the Commissioner u/s.263 (of Income Tax Act, 1961) can be culled ou a) The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If erroneous but is not prejudicial to the Revenue or if it is not erroneous but it is prejudicial to the Revenue had to Sec.263(1) (of Income Tax Act, 1961).

b) Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Reven when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income

c) To invoke suomotu revisional powers to reopen a concluded assessment under Sec.263 (of Income Tax Act, 1961), the Commissi the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show that the and must irresi Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny b Assessing Officer, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer called for interference and revision.

Rampyari Devi Saraogi(21 Supra), the Commissioner in exercise of revisional powers cancelled assessee’s assessment for the years 1952 61 because he found that the income tax officer was not justified in accepting the initial capital, the gift received and sale of jewellery, the income from business etc., without any enquiry or evidence whatsoever . He directed the come tax officer to do fresh assessment after making proper enquiry and investigation in regard to the jurisdiction. The assessee complained before the Supreme Court that no fair or reasonable opportunity was given to her. The Supreme Court held that there was ample material to show that the income tax officer made the assessments in undue hurry; that he had passed a short stereo typed assessment order for each assessment year; that on the face of the record, -judicial to the interest of the Revenue; and no prejudice was caused to the assessee on account of failure of the Commissioner to indicate the results of the enquiry made by him, as she would have a full opportunity for showing to the income tax officer whether he had jurisdiction or not and whether the income tax assessed in the assessment years which were originally passed were correct or not"

31. From the above decisions, the following principles as to exercise of jurisdiction by the Commissioner u/s.263 (of Income Tax Act, 1961) can be culled out: a) The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If erroneous but is not prejudicial to the Revenue or if it is not erroneous but it is prejudicial to the Revenue – recourse cannot be had to Sec.263(1) (of Income Tax Act, 1961).

b) Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income tax Officer has taken one view with which the Commissioner does not agree, it annot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law.

c) To invoke suomotu revisional powers to reopen a concluded assessment under Sec.263 (of Income Tax Act, 1961), the Commissioner must give reasons; that a bare reiteration by him that the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show that the and must irresistibly lead to the conclusion that the order of the Income Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons in respect of each and every disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny b Assessing Officer, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer alled for interference and revision.

e) The Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded; that the department cannot be permitted to begin fresh litigation because of new views of examination by him and to take into consideration even (21 Supra), the Commissioner in exercise of rs 1952-1953 to 61 because he found that the income tax officer was not justified in accepting the initial capital, the gift received and sale of jewellery, the income from business etc., without any enquiry or evidence whatsoever .

He directed the come tax officer to do fresh assessment after making proper enquiry andinvestigation in regard to the jurisdiction. The assessee complained before the Supreme Court that no fair or reasonable opportunity was given to her. The was ample material to show that the income tax officer made the assessments in undue hurry; that he had passed a short stereo typed assessment order for each assessment year; that on the face of the record, the Revenue; and no prejudice was caused to the assessee on account of failure of the Commissioner to indicate the results of the enquiry made by him, as she would have a full opportunity for not and whether the income tax assessed in the assessment years which were originally passed.

31. From the above decisions, the following principles as to exercise of jurisdiction

a) The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If erroneous but is not prejudicial to the Revenue recourse cannot be

b) Every loss of revenue as a consequence of an order of the Assessing Officer ue. For example, tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income- tax Officer has taken one view with which the Commissioner does not agree, it annot be treated as an erroneous order prejudicial to the interests of the tax Officer is unsustainable in law.

c) To invoke suomotu revisional powers to reopen a concluded assessment under oner must give reasons; that a bare reiteration by him that the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show stibly lead to the conclusion that the order of the Income Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an in respect of each and every disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny by the Assessing Officer, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer

e) The Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded; that these of new views they entertain on facts or new circumstance; that if this is permitted, litigation would have no end except when legal ingenuity is exhausted

f) Whether there was application of mind before allowing the expenditure in question has to be see not by itself give occasion to the Commissioner to pass orders under Sec.263 (of Income Tax Act, 1961) merely because he has a different opinion in the matter; that it is only in cases of lack of inquiry that such a course order made by the Income Tax Officer cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately; there must be some prima facie mater show that the tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a lesser tax than what was just, has been imposed.

g) The power of the Comm entitled to examine any other records which are available at the time of examination by him and to take into consideration even those events which arose subsequent to the order of assessment.

Now we examine the following judgements DIRECTOR OF INCOME TAX vs. JYOTI FOUNDATION 357 ITR 388 (Delhi High Court ) It was held that revisionary power u/s 263 (of Income Tax Act, 1961) is conferred on the Commissioner/Director of Income Tax when an order passed by the lower authority is erroneous and prejudicial to the interest of the Revenue. are passed without inquiry or investiga prejudicial to the interest of the Revenue, but orders which are passed after inquiry/investigation on the question/issue are not per se or normally treated as erroneous and prejudicial to the interest of the Revenue becau authority feels and opines that further inquiry/investigation was required or deeper or further scrutiny should be undertaken.

INCOME TAX OFFICER vs. DG HOUSING PROJECTS LTD343 ITR 329 (Delhi) Revenue does not have any right to appeal an order passed by the Assessing Officer. S. 263 has been enacted to empower the CIT to exercise power of revision and revise any order passed by the Assessing Officer, if two cumulative conditions are satisfied. Fi revised should be erroneous and secondly, it should be prejudicial to the interest of the Revenue. The expression "prejudicial to the interest of the Revenue" is of wide import and is not confined to merely loss of tax. The te a wrong/incorrect decision deviating from law. This expression postulates an error which makes an order unsustainable in law.

The Assessing Officer is both an investigator and an adjudicator. If the Assessing Officer as an adjudicator assessment which is unsustainable in law, it can be corrected by the Commissioner in exercise of revisionary power. As an investigator, it is incumbent upon the Assessing Officer to investigate the facts requi verified to compute the taxable income. If the Assessing Officer fails to conduct the said investigation, he commits an error and the word "erroneous" includes failure to make the enquiry. In such cases, the order becomes erroneous b they entertain on facts or new circumstance; that if this is permitted, litigation would have no end except when legal ingenuity is exhausted

f) Whether there was application of mind before allowing the expenditure in question has to be seen; that if there was an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Sec.263 (of Income Tax Act, 1961) merely because he has a different opinion in the matter; that it is only in cases of lack of inquiry that such a course of action would be open; that an assessment order made by the Income Tax Officer cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately; there must be some prima facie material on record to show that the tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a lesser tax than what was just, has been imposed.

g) The power of the Commissioner under Sec.263(1) (of Income Tax Act, 1961) is not Commissioner is entitled to examine any other records which are available at the time of examination by him and to take into consideration even those events which arose subsequent to the order of assessment.

e the following judgements. :-

INCOME TAX OFFICER vs. DG HOUSING PROJECTS LTD343 ITR 329 (Delhi) Revenue does not have any right to appeal to the first appellate authority against an order passed by the Assessing Officer. S. 263 has been enacted to empower the CIT to exercise power of revision and revise any order passed by the Assessing Officer, if two cumulative conditions are satisfied. Firstly, the order sought to be revised should be erroneous and secondly, it should be prejudicial to the interest of the Revenue. The expression "prejudicial to the interest of the Revenue" is of wide import and is not confined to merely loss of tax. The term "erroneous" means a wrong/incorrect decision deviating from law. This expression postulates an error which makes an order unsustainable in law.

The Assessing Officer is both an investigator and an adjudicator. If the Assessing Officer as an adjudicator decides a question or aspect and makes a wrong assessment which is unsustainable in law, it can be corrected by the Commissioner in exercise of revisionary power. As an investigator, it is incumbent upon the Assessing Officer to investigate the facts required to be examined and verified to compute the taxable income. If the Assessing Officer fails to conduct the said investigation, he commits an error and the word "erroneous" includes failure to make the enquiry. In such cases, the order becomes erroneous b they entertain on facts or new circumstance; that if this is permitted, litigation

f) Whether there was application of mind before allowing the expenditure in n; that if there was an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Sec.263 (of Income Tax Act, 1961) merely because he has a different opinion in the matter; that it is only in cases of of action would be open; that an assessment order made by the Income Tax Officer cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been ial on record to show that the tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a issioner under Sec.263(1) (of Income Tax Act, 1961) is not Commissioner is entitled to examine any other records which are available at the time of examination by him and to take into consideration even those events which arose.

Orders which tion are treated as erroneous and prejudicial to the interest of the Revenue, but orders which are passed after inquiry/investigation on the question/issue are not per se or normally treated as se the revisionary authority feels and opines that further inquiry/investigation was required or to the first appellate authority against an order passed by the Assessing Officer. S. 263 has been enacted to empower the CIT to exercise power of revision and revise any order passed by the Assessing rstly, the order sought to be revised should be erroneous and secondly, it should be prejudicial to the interest of the Revenue. The expression "prejudicial to the interest of the Revenue" is of rm "erroneous" means a wrong/incorrect decision deviating from law.

This expression postulates an The Assessing Officer is both an investigator and an adjudicator. If the Assessing decides a question or aspect and makes a wrong assessment which is unsustainable in law, it can be corrected by the Commissioner in exercise of revisionary power. As an investigator, it is incumbent red to be examined and verified to compute the taxable income. If the Assessing Officer fails to conduct the said investigation, he commits an error and the word "erroneous" includes failure to make the enquiry. In such cases, the order becomes erroneous because enquiry or verification has not been made and not because a wrong order has been passed on merits Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneous, by conduct necessary enquiry, if required and necessary, before the order under s. 263 is passed. In such cases, the order of the Assessing Officer will be erroneous because the order passed is not sustainable in law and the said finding must be recorded.

CIT cannot remand the matter to the Assessing Officer to decide whether the findings recorded are erroneous. not lack of enquiry, again the CIT must give and record a finding that the order/inquiry made is erroneous. is conducted by the CIT and he is able to establish and show the error or mistake made by the Assessing Officer, making the order unsustainable in Law.

In some cases possibly though rarely, the CIT can also s record or inferences drawn from facts on record per se further enquiry or investigation but the Assessing Officer had erroneously not undertaken the same. However, the said finding must be clear, u not debatable. The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous.

Finding that the order is erroneous is a condition or requirement which mu satisfied for exercise of jurisdiction under s. 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply and mean the CIT has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question.

This distinction must be kept in mind by the CIT while exercising jurisdiction under s. 263 of the Act and in the absence of the finding that the order is erroneous and prejudicial to the interest of Revenue the said section is not sustainable. investigation", it will be difficult to hold that the order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, i without CIT conducting verification/inquiry. The order of the Assessing Officer may be or may not be wrong. CIT cannot direct reconsideration on this ground but only when the order is erroneous. CIT to ask the Assessing Officer to decide whether the order was erroneous.

This is not permissible. An order is not erroneous, unless the CIT hold and records reasons why it is erroneous. An order will not become erroneous because on remit, the Assessing Office must after recording reasons hold that the order is erroneous. The jurisdictional precondition stipulated is that the CIT must come to the conclusion that the order is erroneous and is unsustainable i which the CIT can rely includes not only the record as it stands at the time when the order in question was passed by the Assessing Officer but also the record as it stands at the time of examination by the CIT. N collecting and relying upon new/additional material/evidence to show and state that the order of the Assessing Officer is erroneous.

COMMISSIONER OF INCOME TAX vs. J. L. MORRISON (INDIA) LTD. 366 ITR As regard the submi of the Act can be exercised even in a case where the issue is debatable, it was held that the case of CIT vs. M. M. Khambhatwala was not applicable. The observation enquiry or verification has not been made and not because a wrong order has been passed on merits.

Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneous, by conduct necessary enquiry, if required and necessary, before the order under s. 263 is passed. In such cases, the order of the Assessing Officer will be erroneous because the order passed is not sustainable in law and the said finding must be recorded. not remand the matter to the Assessing Officer to decide whether the findings recorded are erroneous. In cases where there is inadequate enquiry but not lack of enquiry, again the CIT must give and record a finding that the order/inquiry made is erroneous. This can happen if an enquiry and verification is conducted by the CIT and he is able to establish and show the error or mistake made by the Assessing Officer, making the order unsustainable in Law. In some cases possibly though rarely, the CIT can also show and establish that the facts on record or inferences drawn from facts on record per se justified and mandated further enquiry or investigation but the Assessing Officer had erroneously not undertaken the same. However, the said finding must be clear, unambiguous and The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous.

COMMISSIONER OF INCOME TAX vs. J. L. MORRISON (INDIA) LTD. 366 ITR As regard the submission on behalf of the Revenue that power under Section 263 (of Income Tax Act, 1961) can be exercised even in a case where the issue is debatable, it was held that the case of CIT vs. M. M. Khambhatwala was not applicable. The observation enquiry or verification has not been made and not because a wrong order has Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneous, by conducting necessary enquiry, if required and necessary, before the order under s. 263 is passed.

In such cases, the order of the Assessing Officer will be erroneous because the order passed is not sustainable in law and the said finding must be recorded. not remand the matter to the Assessing Officer to decide whether the In cases where there is inadequate enquiry but not lack of enquiry, again the CIT must give and record a finding that the This can happen if an enquiry and verification is conducted by the CIT and he is able to establish and show the error or mistake made by the Assessing Officer, making the order unsustainable in Law. In some how and establish that the facts on justified and mandated further enquiry or investigation but the Assessing Officer had erroneously not nambiguous and The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous.

Finding that the order is erroneous is a condition or requirement which must be satisfied for exercise of jurisdiction under s. 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply and mean the CIT has not examined and decided whether or not the order is erroneous but has This distinction must be kept in mind by the CIT while exercising jurisdiction under s. 263 of the Act and in the absence of the finding that the order is , exercise of jurisdiction under In most cases of alleged "inadequate investigation", it will be difficult to hold that the order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, is erroneous, without CIT conducting verification/inquiry. The order of the Assessing Officer may be or may not be wrong. CIT cannot direct reconsideration on this ground An order of remit cannot be passed by the ask the Assessing Officer to decide whether the order was erroneous.

This is not permissible. An order is not erroneous, unless the CIT hold and records reasons why it is erroneous. An order will not become erroneous because on r may decide that the order is erroneous. Therefore CIT must after recording reasons hold that the order is erroneous. The jurisdictional precondition stipulated is that the CIT must come to the conclusion that the order n law. It may be noticed that the material which the CIT can rely includes not only the record as it stands at the time when the order in question was passed by the Assessing Officer but also the record as it othing bars/prohibits the CIT from collecting and relying upon new/additional material/evidence to show and state ssion on behalf of the Revenue that power under Section 263 (of Income Tax Act, 1961) can be exercised even in a case where the issue is debatable, it was held that the case of CIT vs. M. M. Khambhatwala was not applicable. The observation that the Commissioner can exerc case were the issue is debatable was a mere passing remark which is again contrary to the view taken by the Apex Court in thecase of Malabar Industrial Company Ltd. & Max India Ltd. If the Assessing Officer it cannot be said that the view taken by him is erroneous nor the order of the Assessing Officer in that case can be set aside in revision. It has to be shown unmistakably that the order of the Assessing Officer is unsustainable. short of that would not clothe the CIT with jurisdiction to exercise power under Section 263 (of Income Tax Act, 1961). CIT vs. M. M. Khambhatwala reported in 198 ITR 144; CIT vs. Ralson Industries Ltd. reported in 288 ITR 322 (SC), not applicable; Malabar Industrial Co. Ltd. v. CIT reported in 243 ITR 83, relied on.

(Para 72)

As regard the third question as to whether the assessment order was passed by the Assessing Officer without application of mind, it was held that the Court has to start with the presumptio There is evidence to show that the assessing officer had required the assessee to answer 17 questions and to file documents in regard thereto. It is difficult to proceed on the basis that the 17 questions r application of mind. Without application of mind the questions raised by him in the annexure to notice under Section 142(1) (of Income Tax Act, 1961) could not have been formulated. The Assessing Officer was required to examine the return fi assessee in order to ascertain his income and to levy appropriate tax on that basis. When the Assessing Officer was satisfied that the return, filed by the assessee, was in accordance with law, he was under no obligation to justify as to why was he satisfied. On the top of that the Assessing Officer by his order dated 28th March, 2008 did not adversely affect any right of the assessee nor was any civil right of the assessee prejudiced. He was as such under no obligation in law to give reasons. The fact, that all requisite papers were summoned and thereafter the matter was heard from time to time coupled with the fact that the view taken by him is not shown by the revenue to be erroneous and was also considered both by the Tribunal as also by us to under Clause (e) of Section 114 of the Evidence Act. A prima facie evidence, on the basis of the aforesaid presumption, is thus converted into a conclusive proof of the fact that the order was passed by the mind. Meerut Roller Flour Mills Pvt. Ltd. vs. C.I.T., ITA No. 116 /Coch/ 2012; CIT vs. Infosys Technologies Ltd., 341 ITR 293 (Karnataka); S.N. Mukherjee vs. Union of India, AIR 1990 SC 1984; A. A. Doshi vs. JCIT, Works Ltd. Vs. CIT, 275 ITR 43 (Del), distinguished.

(Paras 90-92, 102)

No rigid rule could be laid down about the situation when the jurisdiction can be exercised. Whether satisfaction of the CIT for exercising jurisdiction was called for or not, has to be decided having regard to a given fact situation. In the present case, the Tribunal has held that the assessee had disclosed that out of sale that the Commissioner can exercise power under Section 263 (of Income Tax Act, 1961) even in a case were the issue is debatable was a mere passing remark which is again contrary to the view taken by the Apex Court in thecase of Malabar Industrial Company Ltd. & Max India Ltd. If the Assessing Officer has taken a possible view, it cannot be said that the view taken by him is erroneous nor the order of the Assessing Officer in that case can be set aside in revision. It has to be shown unmistakably that the order of the Assessing Officer is unsustainable. short of that would not clothe the CIT with jurisdiction to exercise power under Section 263 (of Income Tax Act, 1961). CIT vs. M. M. Khambhatwala reported in 198 ITR 144; CIT vs. Ralson Industries Ltd. reported in 288 ITR 322 (SC), not applicable; Malabar strial Co. Ltd. v. CIT reported in 243 ITR 83, relied on.

There is evidence to show that the assessing officer had required the assessee to answer 17 questions and to file documents in regard thereto. It is difficult to proceed on the basis that the 17 questions raised by him did not require application of mind. Without application of mind the questions raised by him in the annexure to notice under Section 142(1) (of Income Tax Act, 1961) could not have been formulated. The Assessing Officer was required to examine the return fi assessee in order to ascertain his income and to levy appropriate tax on that basis. When the Assessing Officer was satisfied that the return, filed by the assessee, was in accordance with law, he was under no obligation to justify as to he satisfied. On the top of that the Assessing Officer by his order dated March, 2008 did not adversely affect any right of the assessee nor was any civil right of the assessee prejudiced. He was as such under no obligation in law to e fact, that all requisite papers were summoned and thereafter the matter was heard from time to time coupled with the fact that the view taken by him is not shown by the revenue to be erroneous and was also considered both by the Tribunal as also by us to be a possible view, strengthens the presumption under Clause (e) of Section 114 of the Evidence Act. A prima facie evidence, on the basis of the aforesaid presumption, is thus converted into a conclusive proof of the fact that the order was passed by the assessing officer after due application of mind. Meerut Roller Flour Mills Pvt. Ltd. vs. C.I.T., ITA No. 116 /Coch/ 2012; CIT vs. Infosys Technologies Ltd., 341 ITR 293 (Karnataka); S.N. Mukherjee vs. Union of India, AIR 1990 SC 1984; A. A. Doshi vs. JCIT, 256 ITR 685; Hindusthan Tin Works Ltd. Vs. CIT, 275 ITR 43 (Del), distinguished.

No rigid rule could be laid down about the situation when the jurisdiction can be er satisfaction of the CIT for exercising jurisdiction was called for or not, has to be decided having regard to a given fact situation. In the present case, the Tribunal has held that the assessee had disclosed that out of sale ise power under Section 263 (of Income Tax Act, 1961) even in a case were the issue is debatable was a mere passing remark which is again contrary to the view taken by the Apex Court in thecase of Malabar Industrial has taken a possible view, it cannot be said that the view taken by him is erroneous nor the order of the Assessing Officer in that case can be set aside in revision. It has to be shown unmistakably that the order of the Assessing Officer is unsustainable. Anything short of that would not clothe the CIT with jurisdiction to exercise power under Section 263 (of Income Tax Act, 1961). CIT vs. M. M. Khambhatwala reported in 198 ITR 144; CIT vs. Ralson Industries Ltd. reported in 288 ITR 322 (SC), not applicable; Malabar As regard the third question as to whether the assessment order was passed by the Assessing Officer without application of mind, it was held that the Court has n that the assessment order was regularly passed.

There is evidence to show that the assessing officer had required the assessee to answer 17 questions and to file documents in regard thereto. It is difficult to aised by him did not require application of mind. Without application of mind the questions raised by him in the annexure to notice under Section 142(1) (of Income Tax Act, 1961) could not have been formulated. The Assessing Officer was required to examine the return filed by the assessee in order to ascertain his income and to levy appropriate tax on that basis. When the Assessing Officer was satisfied that the return, filed by the assessee, was in accordance with law, he was under no obligation to justify as to he satisfied. On the top of that the Assessing Officer by his order dated March, 2008 did not adversely affect any right of the assessee nor was any civil right of the assessee prejudiced. He was as such under no obligation in law to e fact, that all requisite papers were summoned and thereafter the matter was heard from time to time coupled with the fact that the view taken by him is not shown by the revenue to be erroneous and was also considered both be a possible view, strengthens the presumption under Clause (e) of Section 114 of the Evidence Act. A prima facie evidence, on the basis of the aforesaid presumption, is thus converted into a conclusive proof of the assessing officer after due application of mind. Meerut Roller Flour Mills Pvt. Ltd. vs. C.I.T., ITA No. 116 /Coch/ 2012; CIT vs. Infosys Technologies Ltd., 341 ITR 293 (Karnataka); S.N. Mukherjee vs. Union 256 ITR 685; Hindusthan Tin.

9. As regards the arguments of the assessee that the validity of the reassessment proceedings can be challenged during the course of challenging the revisionary order u/s 263 (of Income Tax Act, 1961), we are of the opinion that law is in the favour of such arguments.

Jurisdictional issue, can be raised even in collateral proceedings. are unable to uphold the contention of the assessee that the reassessment order itself would become bad in law, result in an addition being made by the Assessing Officer made in this case. What the Courts of law have said on this issue is that, if an addition is not made for the reasons which are recorded for reopening of the assessment, addition can be made on some other grounds which do not form part of the reasons recorded for reopening. If an Assessing Officer accepts the return of income of the assessee on reopening of an assessment, such assessment order does not become an illegal assessment order. The Courts never said that the reassessment order would be bad in law. Thus, this argument of the assessee is dismissed.

9.1. Coming to the second argument we find that the notice u/s 148 (of Income Tax Act, 1961) has been issued to the assessee on 24/02/2016 as is evident from the copy of the notice place at page 6 of the paper book. From the order sheet entry it is clear that the assessee, on 24/03/2016, re income filed by it for the Assessment Year 2009 filed in response to notice u/s 148 (of Income Tax Act, 1961). From the order sheet entries, it is clear that notice u/s 143(2) (of Income Tax Act, 1961) was issued on 24/02/2016. This fact is also mentioned by the Assessing Officer at para 5 of his order. This proves that the notice u/s 143(2) (of Income Tax Act, 1961), was issued much prior to the assessee filing his return of income. This is not in accordance with law. Hence the order passed u/s 148 (of Income Tax Act, 1961) without issuing valid consideration, a sum of Rs. 1 lakh was to be received for sale of permit. If that is so, there was no error in the view taken by the AO and no case was made out for invoking jurisdiction under s. 263.

Applying the propositions of law to the facts of this case, we hold that the o of the Act, d. 19/03/2019, as bad in law. It is wrong both on facts as well as law. Enquiries were made by the Assessing Officer and the Assessing Officer on such enquiries has taken a possible view. The very reason for reopening is the proposing the revision. This is not permissible in law. As regards the arguments of the assessee that the validity of the reassessment proceedings can be challenged during the course of challenging the revisionary order e are of the opinion that law is in the favour of such arguments. Jurisdictional issue, can be raised even in collateral proceedings. At the same time, we are unable to uphold the contention of the assessee that the reassessment order itself if the reason recorded for reopening does not result in an addition being made by the Assessing Officer. In fact, no addition has been made in this case. What the Courts of law have said on this issue is that, if an addition is de for the reasons which are recorded for reopening of the assessment, be made on some other grounds which do not form part of the reasons.

If an Assessing Officer accepts the return of income of the reopening of an assessment, such assessment order does not become an. The Courts never said that the reassessment order would be bad in law. Thus, this argument of the assessee is dismissed as devoid of merit econd argument we find that the notice u/s 148 (of Income Tax Act, 1961) has been issued to the assessee on 24/02/2016 as is evident from the copy of the notice place at page 6 of the paper book. From the order sheet entry it is clear that the on 24/03/2016, requested the Assessing Officer to treat the original return of for the Assessment Year 2009-10, as that return of income filed in response to notice u/s 148 (of Income Tax Act, 1961). From the order sheet entries, it is clear 43(2) of the Act was issued on 24/02/2016. This fact is also mentioned by the Assessing Officer at para 5 of his order. This proves that the notice u/s 143(2) (of Income Tax Act, 1961), was issued much prior to the assessee filing his return of income. This is not in Hence the order passed u/s 148 (of Income Tax Act, 1961) without issuing valid m1 lakh was to be received for sale of permit. If that is so, there was no error in the view taken by the AO and no case was made out for Applying the propositions of law to the facts of this case, we hold that the order It is wrong both on facts as well as law. Enquiries were made by the Assessing Officer and the Assessing Officer on such enquiries has taken a possible view. The very reason for reopening is the ground for As regards the arguments of the assessee that the validity of the reassessment proceedings can be challenged during the course of challenging the revisionary order e are of the opinion that law is in the favour of such arguments.

At the same time, we are unable to uphold the contention of the assessee that the reassessment order itself for reopening does not ultimately.

In fact, no addition has been made in this case. What the Courts of law have said on this issue is that, if an addition is de for the reasons which are recorded for reopening of the assessment, no other be made on some other grounds which do not form part of the reasons .

If an Assessing Officer accepts the return of income of the reopening of an assessment, such assessment order does not become an The Courts never said that the reassessment order would be as devoid of merit. second argument we find that the notice u/s 148 (of Income Tax Act, 1961) has been issued to the assessee on 24/02/2016 as is evident from the copy of the notice place at page 6 of the paper book. From the order sheet entry it is clear that the quested the Assessing Officer to treat the original return of return of income which is filed in response to notice u/s 148 (of Income Tax Act, 1961). From the order sheet entries, it is clear 43(2) of the Act was issued on 24/02/2016. This fact is also mentioned by the Assessing Officer at para 5 of his order. This proves that the notice u/s 143(2) (of Income Tax Act, 1961), was issued much prior to the assessee filing his return of income. This is not in.

Hence the order passed u/s 148 (of Income Tax Act, 1961) without issuing valid notice u/s 143(2) (of Income Tax Act, 1961), makes the reassessment order dt. 20/05/2016, passed u/s 143(3) (of Income Tax Act, 1961)/147 of the Act, bad in law. Consequently, the revision of the assessment u/s 263 (of Income Tax Act, 1961) dt. 19/03/2019, revising such illegal assessment order Thus, for all these reasons we quash the order passed by the ld. Pr. CIT u/s 263 (of Income Tax Act, 1961) as bad in law and allow the appeal of the assessee.

10. In the result, appeal of the assessee is allowed.

Kolkata, the

Sd/-

[Aby T. Varkey] Judicial Member Dated : 16.09.2020 {SC SPS} Copy of the order forwarded to:

1. Anindita Steels Ltd 603, Panchawati Tower Harmu Road RanchiJharkand – 834012

2. Pr. Commissioner of Income Tax

3. CIT(A)-

4. CIT- ,

5. CIT(DR), Kolkata Benches, Kolkata. notice u/s 143(2) (of Income Tax Act, 1961), makes the reassessment order dt. 20/05/2016, passed u/s 143(3) (of Income Tax Act, 1961)/147 of the Act, bad in law. Consequently, the revision of the assessment u/s 263 (of Income Tax Act, 1961) revising such illegal assessment order is also

Thus, for all these reasons we quash the order passed by the ld. Pr. CIT u/s 263 (of Income Tax Act, 1961) as bad in law and allow the appeal of the assessee. of the assessee is allowed.

Kolkata, the 16th day of September, 2020.

[J. Sudhakar Reddy Accountant Member

Pr. Commissioner of Income Tax -(2), Kolkata

Kolkata.

Assistant Registrar ITAT, Kolkata Benches ITA No. 2225/Kol/2019 Assessment Year: 2009-10 Anindita Steels Ltd notice u/s 143(2) (of Income Tax Act, 1961), makes the reassessment order dt. 20/05/2016, passed u/s 143(3) (of Income Tax Act, 1961)/147 of the Act, bad in law. Consequently, the revision of the assessment u/s 263 (of Income Tax Act, 1961) also bad in law.

Thus, for all these reasons we quash the order passed by the ld. Pr. CIT u/s 263 (of Income Tax Act, 1961)

Sd/-

J. Sudhakar Reddy]

countant Member

LEGAL REFERENCES

Section 1 Section 4 Section 90 Section 143(3) Section 147 Section 148 Section 132 Section 263 Section 142(1) Section 114 Section 143(2) Section 43 Section 1952 Section 263(1) Section 80HHC(3)

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Inadequate enquiry cannot be a ground for exercising of revisionary powers u/s 263 (of Income Tax Act, 1961).

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Held

Reasons recorded for reopening of the assessment and the reason for initiating proceedings u/s 263 (of Income Tax Act, 1961),are the same and based on the same material. The allegation in this show cause notice issued u/s 263 (of Income Tax Act, 1961),
is that the Assessing Officer has failed to examine and that no enquiry was conducted into the veracity of the loans by the Assessing Officer, is factually incorrect. It is well settled that inadequate enquiry
cannot be a ground for exercising of revisionary powers u/s 263 (of Income Tax Act, 1961). Assessing Officer had conducted enquiries both with the assessee as well as with the third parties and on receipt of all the information,
has accepted these loans as genuine. CIT cannot substitute his opinion for that of the Assessing Officer. Pr. CIT has not conducted any verification or prima facie investigation on his own to come to
a conclusion that the order passed by the Assessing Officer is erroneous and prejudicial to the interest of the revenue. He also failed to notice that enquiries were in fact made by the Assessing Officer.

(para 7)

Order passed u/s 263 (of Income Tax Act, 1961), d. 19/03/2019, as bad in law. It is wrong both on facts as well as law. Enquiries were made by the Assessing Officer and the Assessing Officer on such enquiries has taken a possible
view. The very reason for reopening is the ground for proposing the revision. This is not permissible in law.

(para 8)

Assessee, on 24/03/2016, requested the Assessing Officer to treat the original return of income filed by it for the Assessment Year 2009-10, as that return of income which is filed in response to notice u/s
148 (of Income Tax Act, 1961). From the order sheet entries, it is clear that notice u/s 143(2) (of Income Tax Act, 1961) was issued on 24/02/2016. This fact is also mentioned by the Assessing Officer at para 5 of his order. This proves that the notice u/s 143(2) (of Income Tax Act, 1961),
was issued much prior to the assessee filing his return of income. This is not in accordance with law. Hence the order passed u/s 148 (of Income Tax Act, 1961) without issuing valid notice u/s 143(2) (of Income Tax Act, 1961), makes the reassessment order
dt. 20/05/2016, passed u/s 143(3) (of Income Tax Act, 1961)/147, bad in law. Consequently, the revision of the assessment u/s 263 (of Income Tax Act, 1961) dt. 19/03/2019, revising such illegal assessment order is also bad in law.

(para 9.1)

This appeal filed by the assessee is directed against the order of the Learned Pr. Commissioner of Income Tax, Central, Kolkata- 2, Kolkata, (hereinafter the “ld. Pr. CIT”), passed u/s. 263 (of Income Tax Act, 1961) (the ‘Act’), dt. 19/03/2019, for the Assessment Year 2009-10. 
2. At the outset we find that there is a delay of 126 (One Twenty Six) days in filing of this appeal by the assessee. After perusing the petition for condonation, we are convinced that the assessee was prevented by sufficient cause from filing the appeal in time. Hence the delay is condoned and the appeal is admitted. 
3. The ld. Counsel for the assessee submitted that the order passed u/s 263 (of Income Tax Act, 1961), is bad in law for the following reasons:-

a) The assessment was reopened after verifying unsecured loans of Rs. 1.74
Crores, received by the assessee from various companies and the
Assessing Officer after examining this issue had accepted the unsecured
loans as genuine in the reassessment proceedings. The ld. Pr. CIT, cannot
for the very same reason revise the assessment order passed by the
Assessing Officer. He drew the attention of the Bench to the copy of the
reasons recorded for reopening of the assessment as well as the
show cause notice issued by the ld. Pr. CIT, prior to passing of his order
u/s 263 (of Income Tax Act, 1961) to demonstrate that both actions were for the very
same reasons.

b) That the Assessing Officer while completing the assessment u/s
143(3) (of Income Tax Act, 1961)/147 of the Act on 20/05/2016 had conducted enquiries, obtained
information from third parties and on being satisfied with the identity
and creditworthiness of the transactions had not made any addition. That adequate enquiries were made and it is not a case of lack of enquiry or lack of application of mind and that revision cannot be made on the ground of inadequate enquiry. 
c) The ld. Pr. CIT coming to a conclusion that the order requires revision. Such lack of enquiry and non application of mind by the ld. Pr. CIT makes the order bad in law. 
d) That the assessee is entitled to question reassessment order passed u/s 143(3) (of Income Tax Act, 1961)/147 of the Act on 20/05/2016,while challenging the order passed u/s 263 (of Income Tax Act, 1961) reassessment order root of the matter. 
e) The Assessing Officer in the reassessment order dt. 20/05/2016 has not
made any addition based on the order relatable to the reasons on which
the revision was made and the returned income was accepted. Thus, such
reassessment order is bad in law and reassessment order is bad in law. 
f) The Assessing Officer in page 1 of the assessment order states that the
notice u/s 148 (of Income Tax Act, 1961) was issued on 24/02/2016 (para 4). At para 5,
page 1 of his order, he further states that the Act was issued on 24/02/2016. This proves that notice u/s 143(2) (of Income Tax Act, 1961) was issued prior to the assessee filing a return in response to a notice issued u/s 148 (of Income Tax Act, 1961) and that this makes the notice u/s 143(2) (of Income Tax Act, 1961) u/s 263 (of Income Tax Act, 1961) to demonstrate that both actions were for the very same reasons.

That the Assessing Officer while completing the assessment u/s
143(3) (of Income Tax Act, 1961)/147 of the Act on 20/05/2016 had conducted enquiries, obtained
information from third parties and on being satisfied with the identity
and creditworthiness of the sundry creditors and that the genuineness of
the transactions had not made any addition. That adequate enquiries
were made and it is not a case of lack of enquiry or lack of application of
mind and that revision cannot be made on the ground of inadequate.

The ld. Pr. CIT did not conduct any enquiry or verification by himself for
coming to a conclusion that the order requires revision. Such lack of
enquiry and non application of mind by the ld. Pr. CIT makes the order.

That the assessee is entitled to question the legality and validity of the
reassessment order passed u/s 143(3) (of Income Tax Act, 1961)/147 of the Act on 20/05/2016,
while challenging the order passed u/s 263 (of Income Tax Act, 1961) reassessment order, as it would be a jurisdictional issue which goes to the after.

The Assessing Officer in the reassessment order dt. 20/05/2016 has not
made any addition based on the order relatable to the reasons on which
the revision was made and the returned income was accepted. Thus, such
reassessment order is bad in law and consequently the revision of such
reassessment order is bad in law. 
The Assessing Officer in page 1 of the assessment order states that the
notice u/s 148 (of Income Tax Act, 1961) was issued on 24/02/2016 (para 4). At para 5,
page 1 of his order, he further states that statutory notice u/s 143(2) (of Income Tax Act, 1961) was issued on 24/02/2016. This proves that notice u/s 143(2) (of Income Tax Act, 1961) was issued prior to the assessee filing a return in response to a
notice issued u/s 148 (of Income Tax Act, 1961) and that this makes the notice u/s 143(2) (of Income Tax Act, 1961)
u/s 263 (of Income Tax Act, 1961) to demonstrate that both actions were for the very
That the Assessing Officer while completing the assessment u/s
143(3) (of Income Tax Act, 1961)/147 of the Act on 20/05/2016 had conducted enquiries, obtained
information from third parties and on being satisfied with the identity
at the genuineness of the transactions had not made any addition. That adequate enquiries were made and it is not a case of lack of enquiry or lack of application of mind and that revision cannot be made on the ground of inadequate did not conduct any enquiry or verification by himself for
coming to a conclusion that the order requires revision. Such lack of
enquiry and non application of mind by the ld. Pr. CIT makes the order
ity and validity of the reassessment order passed u/s 143(3) (of Income Tax Act, 1961)/147 of the Act on 20/05/2016, while challenging the order passed u/s 263 (of Income Tax Act, 1961), revising the as it would be a jurisdictional issue which goes to the
The Assessing Officer in the reassessment order dt. 20/05/2016 has not
made any addition based on the order relatable to the reasons on which
the revision was made and the returned income was accepted. Thus, such
consequently the revision of such The Assessing Officer in page 1 of the assessment order states that the notice u/s 148 (of Income Tax Act, 1961) was issued on 24/02/2016 (para 4). At para 5, statutory notice u/s 143(2) (of Income Tax Act, 1961) was issued on 24/02/2016. This proves that notice u/s 143(2) (of Income Tax Act, 1961) was issued prior to the assessee filing a return in response to a notice issued u/s 148 (of Income Tax Act, 1961) and that this makes the notice u/s 143(2) (of Income Tax Act, 1961), bad in law. Thus, the assessment order is bad in law notice u/s 143(2) (of Income Tax Act, 1961) was issued to the assessee after filing of the return of income in response to a notice issued u/s 148 (of Income Tax Act, 1961) and the framing of assessment u/s 143(3) (of Income Tax Act, 1961). Thu u/s 263 (of Income Tax Act, 1961), consequently bad in law.

4. The ld. CIT D/R, on the other hand, submitted that the ld. Pr. CIT had given a finding that the assessee had shown unsecured loan of Rs.1.74 Crores and the Assessing Officer has not looked into the adverse evidences while completing the reassessment. 
He submitted that the Assessing Officer has not examined the antecedents of the company and the creditworthiness while accepting the loans. He
the ld. Pr. CIT and submitted that as the Assessing Officer has completed the without due enquiry and verification prejudicial to the interest of the revenue. On a query from the Bench Department to the legal arguments raised by the assessee’s counsel on the validity of the reassessment order, the ld. CIT D/R submitted that he is relying on the order of the ld. Pr. CIT. 
5. We have heard rival contentions. On careful consideration of the facts an
circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows: 
6. The reasons for reopening of assessment as recorded by the Assessing Officer are as follows:- 
“The assessee had filed the return for the AY 2009
section 143(3) (of Income Tax Act, 1961) or 153A (of Income Tax Act, 1961). 
As per the communication received from OFFICE OF THE DEPUTY DIRECTOR OF
INCOME TAX (INVESTIGATION), UNIT AAYAKAR BHAWAN ANNEXE, DDIT/U-2(4)/Rungta/2015 
A search and seizure operation under section 132 (of Income Tax Act, 1961) was conducted on Rungta group of companies on 25/08/2015. During the cours
search investigation, a report in the form of STR received from DDIT (Inv), Unit Ranchi. The STR was in the name of RECENT SUPPLIERS PVT. LTD. and related with Rungta Group of Companies by way of financial transaction.
In this case one entry operator SHRI RAJENDRA BUBNA was identified and statement under oath was recorded. In his statement (copy enclosed in folder), he stated that he had provided unsecured loan through his web of
the Act, bad in law. Thus, the assessment order is bad in law notice u/s 143(2) (of Income Tax Act, 1961) was issued to the assessee after filing of the return of income in response to a notice issued u/s 148 (of Income Tax Act, 1961) and the framing of assessment u/s 143(3) (of Income Tax Act, 1961). Thus, the revisionary order passed u/s 263 (of Income Tax Act, 1961), consequently bad in law. 
The ld. CIT D/R, on the other hand, submitted that the ld. Pr. CIT had given a finding that the assessee had shown unsecured loan of Rs.1.74 Crores and the Assessing s not looked into the adverse evidences while completing the reassessment. 
He submitted that the Assessing Officer has not examined the antecedents of the company and the creditworthiness while accepting the loans. He relied on the order of and submitted that as the Assessing Officer has completed the
without due enquiry and verification and hence, the order passed was erroneous and prejudicial to the interest of the revenue. On a query from the Bench, on the reply of the nt to the legal arguments raised by the assessee’s counsel on the validity of the reassessment order, the ld. CIT D/R submitted that he is relying on the order of the We have heard rival contentions. On careful consideration of the facts an circumstances of the case, perusal of the papers on record, orders of the authorities
below as well as case law cited, we hold as follows:- 
The reasons for reopening of assessment as recorded by the Assessing Officer
had filed the return for the AY 2009-10, but was not scrutinized under
As per the communication received from OFFICE OF THE DEPUTY DIRECTOR OF
INCOME TAX (INVESTIGATION), UNIT-2(4), KOLKATA, 4TH FLOOR, ROOM NO 4/7A,
ANNEXE, -13, CHOWRINGHEE, KOLKATA-69, VIDE LETTER No.
2(4)/Rungta/2015-16/2331 Dated 14.01.2016 
A search and seizure operation under section 132 (of Income Tax Act, 1961) was conducted on Rungta group of companies on 25/08/2015. During the cours
search investigation, a report in the form of STR received from DDIT (Inv), Unit Ranchi. The STR was in the name of RECENT SUPPLIERS PVT. LTD. and related with Rungta Group of Companies by way of financial transaction.
y operator SHRI RAJENDRA BUBNA was identified and statement under oath was recorded. In his statement (copy enclosed in folder), he stated that he
had provided unsecured loan through his web of Jamakharchi/paper companies to the Act, bad in law. Thus, the assessment order is bad in law as no
notice u/s 143(2) (of Income Tax Act, 1961) was issued to the assessee after filing of the return of
income in response to a notice issued u/s 148 (of Income Tax Act, 1961) and the framing
revisionary order passed The ld. CIT D/R, on the other hand, submitted that the ld. Pr. CIT had given a finding that the assessee had shown unsecured loan of Rs.1.74 Crores and the Assessing s not looked into the adverse evidences while completing the reassessment. 
He submitted that the Assessing Officer has not examined the antecedents of the relied on the order of and submitted that as the Assessing Officer has completed the assessment , the order passed was erroneous and
on the reply of the nt to the legal arguments raised by the assessee’s counsel on the validity of the reassessment order, the ld. CIT D/R submitted that he is relying on the order of the We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities.

The reasons for reopening of assessment as recorded by the Assessing Officer
10, but was not scrutinized under As per the communication received from OFFICE OF THE DEPUTY DIRECTOR OF FLOOR, ROOM NO 4/7A, 69, VIDE LETTER No.

A search and seizure operation under section 132 (of Income Tax Act, 1961) was conducted on Rungta group of companies on 25/08/2015. During the course of post search investigation, a report in the form of STR received from DDIT (Inv), Unit-1, Ranchi. The STR was in the name of RECENT SUPPLIERS PVT. LTD. and related with y operator SHRI RAJENDRA BUBNA was identified and statement
under oath was recorded. In his statement (copy enclosed in folder), he stated that he Jamakharchi/paper companies to M/S ANINDITA STEELS LIMITED [fo INVESTMENT LTD] to the tune of Rs.1.74 CRORES DURING THE FINANCIAL YEAR
2008-09 CORRESPONDING ASSESSMENT YEAR 2009 Also the statement of Sri Samir Kumar Chatterjee, Director of Recent Suppliers Pvt. Ltd. was recorded (copy enclosed in the folder). 
In the light of above facts, I have reasons to believe that the income of Rs.1.74 crore chargeable to tax has escaped assessment for assessment year 2009 meaning of section 147 (of Income Tax Act, 1961).” 
6.1. Thereafter, the Assessing Officer called for information
required documents accepted the loans received by the assessee company as genuine. 
The assessee filed a copy of the order sheet entry at page 73 &amp;
perusal of the same demonstrates that the Assessing Officer has called for third party information and had received the same the assessee. 
After this exercise, the Assessing Officer assessee from different creditors as genuine and has not made any addition passed u/s 143(3) (of Income Tax Act, 1961) r.w.s. 147 (of Income Tax Act, 1961) on 20/05/2016 
6.1.1. The ld. Pr. CIT proposed to revise this reassessment order
giving a showcause notice dt. 08/03/2019. Para 3 &amp; 4 of th
“3. It has been observed from the assessment records for the relevant
assessment year that your concern had received unsecured loans to the tune ofRs.1.74 Cr. From various companies. 
4. At the time of re nature of business activities of your concern with the companies from who unsecured loans were taken. Since no enquiry was conducted into the veracity of such loans and creditworthiness of the lenders, the order of the AO appears to be erroneous in so far as it is prejudicial to the interest of the revenue.” 
7. From the above it is clear that reasons recorded for reopening of the assessment and the reason for initiating proceedings u/s 263 (of Income Tax Act, 1961), are the same and based on the same material. The allegation in this showcause notice issued u/s 263 (of Income Tax Act, 1961), is that the Assessing Officer has failed to examine and that no enquiry was conducted into the veracity of the loans by the Assessing Officer, is factually incorrect. inadequate enquiry cannot be a ground for exercising of revisionary powers u/s 263 (of Income Tax Act, 1961) of the
M/S ANINDITA STEELS LIMITED [formerly known as ANINDITA TRADES &amp;
INVESTMENT LTD] to the tune of Rs.1.74 CRORES DURING THE FINANCIAL YEAR
09 CORRESPONDING ASSESSMENT YEAR 2009-10. 
Also the statement of Sri Samir Kumar Chatterjee, Director of Recent Suppliers (copy enclosed in the folder).

In the light of above facts, I have reasons to believe that the income of Rs.1.74 crore chargeable to tax has escaped assessment for assessment year 2009- meaning of section 147 (of Income Tax Act, 1961).” 
Thereafter, the Assessing Officer called for information and after obtaining the required documents accepted the loans received by the assessee company as genuine. 
The assessee filed a copy of the order sheet entry at page 73 &amp; 74 of the paper book. A perusal of the same demonstrates that the Assessing Officer has called for third party and had received the same and also had taken replies and submissions from After this exercise, the Assessing Officer has accepted the loans taken by the assessee from different creditors as genuine and has not made any addition passed u/s 143(3) (of Income Tax Act, 1961) r.w.s. 147 (of Income Tax Act, 1961) on 20/05/2016. 
The ld. Pr. CIT proposed to revise this reassessment order dt. 20/05/2
giving a showcause notice dt. 08/03/2019. Para 3 &amp; 4 of this notice reads as follows: 
It has been observed from the assessment records for the relevant
assessment year that your concern had received unsecured loans to the tune of rom various companies. 
At the time of re-assessment proceedings, the A.O. failed to examine the
nature of business activities of your concern with the companies from who
unsecured loans were taken. Since no enquiry was conducted into the veracity
ch loans and creditworthiness of the lenders, the order of the AO appears
to be erroneous in so far as it is prejudicial to the interest of the revenue.” 
From the above it is clear that reasons recorded for reopening of the assessment initiating proceedings u/s 263 (of Income Tax Act, 1961), are the same and based on the The allegation in this showcause notice issued u/s 263 (of Income Tax Act, 1961), is that the Assessing Officer has failed to examine and that no enquiry was conducted into the ity of the loans by the Assessing Officer, is factually incorrect. It is well settled that inadequate enquiry cannot be a ground for exercising of revisionary powers u/s 263 (of Income Tax Act, 1961) of the rmerly known as ANINDITA TRADES &amp; INVESTMENT LTD] to the tune of Rs.1.74 CRORES DURING THE FINANCIAL YEAR Also the statement of Sri Samir Kumar Chatterjee, Director of Recent Suppliers In the light of above facts, I have reasons to believe that the income of Rs.1.74 cror -10 within the after obtaining the required documents accepted the loans received by the assessee company as genuine. 
74 of the paper book. A perusal of the same demonstrates that the Assessing Officer has called for third party and also had taken replies and submissions from has accepted the loans taken by the assessee from different creditors as genuine and has not made any addition in the order dt. 20/05/2016 by notice reads as follows:- 
It has been observed from the assessment records for the relevant
assessment year that your concern had received unsecured loans to the tune of assessment proceedings, the A.O. failed to examine the nature of business activities of your concern with the companies from who unsecured loans were taken. Since no enquiry was conducted into the veracity ch loans and creditworthiness of the lenders, the order of the AO appears to be erroneous in so far as it is prejudicial to the interest of the revenue.” 
From the above it is clear that reasons recorded for reopening of the assessment initiating proceedings u/s 263 (of Income Tax Act, 1961), are the same and based on the The allegation in this show cause notice issued u/s 263 (of Income Tax Act, 1961), is that the Assessing Officer has failed to examine and that no enquiry was conducted into the It is well settled that inadequate enquiry cannot be a ground for exercising of revisionary powers u/s 263 (of Income Tax Act, 1961). It is for the Assessing Officer to determine the extent of enquiry and done on a particular issue. From the papers on record it is clear that the Assessing Officer had conducted enquiries both with the assessee as well as with the third parties and on receipt of all the information, copies of which are pl
book, has accepted these loans as genuine. The ld. Pr. CIT cannot substitute his that of the Assessing Officer. It is also seen that the ld. Pr. CIT has not conducted any verification or prima facie investi passed by the Assessing Officer is erroneous and prejudicial to the interest of the revenue. 
He also failed to notice that enquiries were in fact made by the Assessing Officer. 
The law on this issue Spectra Shares and Scrips Pvt. Ltd. V CIT (AP) 354 ITR 35 judgments on this issue of exercise of jurisdiction u/s 263 (of Income Tax Act, 1961) by the Principal Commissioner of Income Tax and culled the principles laid down in the judgments as below :

“24. In Malabar Industrial Co.Ltd. ( 2 Supra), bare reading of Sec.263 (of Income Tax Act, 1961) makes it clear that the prerequisite for the exercise of jurisdiction by the Commissioner suomotu under it, is the order of the Income Tax
Officer is erroneous in so far as it is prejudicial to the inte
Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent
Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous but it is prejudicial to the Revenue Act. It also held at pg
"The phrase "prejudicial conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Rev Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income
one view with which the Commissioner does not agree, it erroneous order prejudicial to the interests of the Revenue, unless the view taken
by the Income-tax Officer is unsustainable in law. It has been held by this Court that where a sum not earned by a person is assessed as income in h
so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the Revenue. 
RampyarideviSaraogi v. CIT (1968) 67 ITR 84 (SC) and in Smt. Tara Devi
Aggarwal V. CIT (197 25. In Max India Ltd. 
Co.Ltd. (2 Supra) and observed that every loss of Revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interest the Revenue. For example, when an Income Tax Officer adopted one of the courses the Assessing Officer to determine the extent of enquiry and
done on a particular issue. From the papers on record it is clear that the Assessing Officer had conducted enquiries both with the assessee as well as with the third parties and on receipt of all the information, copies of which are placed from pages 43 to 72 of the paper has accepted these loans as genuine. The ld. Pr. CIT cannot substitute his that of the Assessing Officer. It is also seen that the ld. Pr. CIT has not conducted any
investigation on his own to come to a conclusion that the order
passed by the Assessing Officer is erroneous and prejudicial to the interest of the revenue. 
He also failed to notice that enquiries were in fact made by the Assessing Officer. 
The law on this issue is clear. The Hon’ble Andhra Pradesh High Court in the case of Spectra Shares and Scrips Pvt. Ltd. V CIT (AP) 354 ITR 35 had considered a number of judgments on this issue of exercise of jurisdiction u/s 263 (of Income Tax Act, 1961) by the Principal Commissioner of Income Tax and culled the principles laid down in the judgments as Malabar Industrial Co.Ltd. ( 2 Supra), the Supreme Court held that a bare reading of Sec.263 (of Income Tax Act, 1961) makes it clear that the prerequisite for the exercise of jurisdiction by the Commissioner suomotu under it, is the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the
Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent – if the order of the Income Tax Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous but it is prejudicial to the Revenue – recourse cannot be had to Sec.263(1) (of Income Tax Act, 1961). It also held at pg-88 as follows: 
"The phrase "prejudicial to the interests of the Revenue" has to be read in
conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken tax Officer is unsustainable in law. It has been held by this Court that where a sum not earned by a person is assessed as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the Revenue. RampyarideviSaraogi v. CIT (1968) 67 ITR 84 (SC) and in Smt. Tara Devi Aggarwal V. CIT (1973) 88 ITR 323 (SC)". 
Max India Ltd. (3 Supra), reiterated the view in Malabar Industrial
(2 Supra) and observed that every loss of Revenue as a consequence of an
order of the Assessing Officer cannot be treated as prejudicial to the interest the Revenue. For example, when an Income Tax Officer adopted one of the course the Assessing Officer to determine the extent of enquiry and investigation to be done on a particular issue. From the papers on record it is clear that the Assessing Officer had conducted enquiries both with the assessee as well as with the third parties and on aced from pages 43 to 72 of the paper has accepted these loans as genuine. The ld. Pr. CIT cannot substitute his opinion for that of the Assessing Officer. It is also seen that the ld. Pr. CIT has not conducted any gation on his own to come to a conclusion that the order passed by the Assessing Officer is erroneous and prejudicial to the interest of the revenue. 
He also failed to notice that enquiries were in fact made by the Assessing Officer.

The Hon’ble Andhra Pradesh High Court in the case of had considered a number of judgments on this issue of exercise of jurisdiction u/s 263 (of Income Tax Act, 1961) by the Principal Commissioner of Income Tax and culled the principles laid down in the judgments as the Supreme Court held that a bare reading of Sec.263 (of Income Tax Act, 1961) makes it clear that the prerequisite for the exercise of jurisdiction by the Commissioner suomotu under it, is the order of the Income Tax rests of the Revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the rder of the Income Tax Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous
recourse cannot be had to Sec.263(1) (of Income Tax Act, 1961) of the to the interests of the Revenue" has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as enue. For example, when an Income-tax
Officer adopted one of the courses permissible in law and it has resulted in loss of tax Officer has taken cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken
tax Officer is unsustainable in law. It has been held by this Court
is hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the Revenue. 
Rampyari devi Saraogi v. CIT (1968) 67 ITR 84 (SC) and in Smt. Tara Devi
Malabar Industrial (2 Supra) and observed that every loss of Revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income Tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue; or where two views are possible and the Income Tax Officer has taken one view with which the Commissioner does n prejudicial to the interests of the Revenue, unless the view taken by the Income Tax Officer is unsustainable in law. On the facts of that case, Sec.80HHC(3) (of Income Tax Act, 1961) as it
then stood was interpreted by the Asses that in view of the 2005 Amendment which is clarificatory and retrospective in nature, the view of the Assessing Officer was unsustainable in law and the Commissioner was correct in invoking Sec.263 (of Income Tax Act, 1961). But the Supreme C the said contention and held that when the Commissioner passed his order disagreeing with the view of the Assessing Officer, there were two views on the word "profits" in that section; that the said section was amended eleven times; that different views existed on the day when the Commissioner passed his order; that the mechanics of the section had become so complicated over the years that two views were inherently possible; and therefore, the subsequent amendment in 2005 even though retrospec 26. In Vikas Polymers suomotu revision exercisable by the Commissioner under the provisions of Sec.263 (of Income Tax Act, 1961) is supervisory in nature; that an "erroneous judgm accordance with law; that 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 hav written differently or more elaborately; that the section does not visualize the substitution of the judgment of the Commissioner for that of the Income Tax Officer, who passed the order unless the decision is not in accordance with the law; that to invoke suomotu revisional powers to reopen a concluded assessment under Sec.263 (of Income Tax Act, 1961), the Commissioner must give reasons; that a bare reiteration by him that the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of th be such as to show that the enhancement or modification of the assessment or cancellation of the assessment or directions issued for a fresh assessment were called for, and must irresistibly lead to the co Income Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons in respect of each an disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny by the Assessing Officer, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer called for interference 27. In Sunbeam Auto Ltd. 
Officer in the assessment order is not required to give a detailed reason in respect of each and every item of deduction, etc.; that whether there was applicat mind before allowing the expenditure in question has to be seen; that if there was an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Sec.263 (of Income Tax Act, 1961) merely because he has a different opinion in the matter; that it is only in cases of lack of inquiry that such a course of action would be open; that an assessment order made by the Income Tax Officer cannot be branded as erroneous by the Commissioner simply because, permissible in law and it has resulted in loss of revenue; or where two views are possible and the Income Tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income Tax Officer is unsustainable in law. On the facts of that case, Sec.80HHC(3) (of Income Tax Act, 1961) as it then stood was interpreted by the Assessing Officer but the Revenue contended that in view of the 2005 Amendment which is clarificatory and retrospective in nature, the view of the Assessing Officer was unsustainable in law and the Commissioner was correct in invoking Sec.263 (of Income Tax Act, 1961). But the Supreme C the said contention and held that when the Commissioner passed his order disagreeing with the view of the Assessing Officer, there were two views on the word "profits" in that section; that the said section was amended eleven times; erent views existed on the day when the Commissioner passed his order; that the mechanics of the section had become so complicated over the years that two views were inherently possible; and therefore, the subsequent amendment in 2005 even though retrospective will not attract the provision of Sec.263 (of Income Tax Act, 1961). Vikas Polymers (4 Supra), the Delhi High Court held that the power of suomotu revision exercisable by the Commissioner under the provisions of Sec.263 (of Income Tax Act, 1961) is supervisory in nature; that an "erroneous judgment" means one which is not in accordance with law; that 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 hav written differently or more elaborately; that the section does not visualize the substitution of the judgment of the Commissioner for that of the Income Tax Officer, who passed the order unless the decision is not in accordance with the invoke suomotu revisional powers to reopen a concluded assessment under Sec.263 (of Income Tax Act, 1961), the Commissioner must give reasons; that a bare reiteration by him that the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show that the enhancement or modification of the assessment or cancellation of the assessment or directions issued for a fresh assessment were called for, and must irresistibly lead to the conclusion that the order of the
Income Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons in respect of each an disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny by the er, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer called for interference and revision. 
Sunbeam Auto Ltd.( 5 Supra), the Delhi High Court held that the Assessing
Officer in the assessment order is not required to give a detailed reason in respect of each and every item of deduction, etc.; that whether there was applicat mind before allowing the expenditure in question has to be seen; that if there was an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Sec.263 (of Income Tax Act, 1961) merely because he has a different atter; that it is only in cases of lack of inquiry that such a course of action would be open; that an assessment order made by the Income Tax Officer cannot be branded as erroneous by the Commissioner simply because, permissible in law and it has resulted in loss of revenue; or where two views are possible and the Income Tax Officer has taken one view with which the ot agree, it cannot be treated as an erroneous order
prejudicial to the interests of the Revenue, unless the view taken by the Income Tax Officer is unsustainable in law. On the facts of that case, Sec.80HHC(3) (of Income Tax Act, 1961) as it sing Officer but the Revenue contended that in view of the 2005 Amendment which is clarificatory and retrospective in nature, the view of the Assessing Officer was unsustainable in law and the Commissioner was correct in invoking Sec.263 (of Income Tax Act, 1961). But the Supreme Court rejected the said contention and held that when the Commissioner passed his order disagreeing with the view of the Assessing Officer, there were two views on the
word "profits" in that section; that the said section was amended eleven times; erent views existed on the day when the Commissioner passed his order; that the mechanics of the section had become so complicated over the years that two views were inherently possible; and therefore, the subsequent amendment in tive will not attract the provision of Sec.263 (of Income Tax Act, 1961). (4 Supra), the Delhi High Court held that the power of suomotu revision exercisable by the Commissioner under the provisions of Sec.263 (of Income Tax Act, 1961) ent" means one which is not in
accordance with law; that 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 differently or more elaborately; that the section does not visualize the substitution of the judgment of the Commissioner for that of the Income Tax Officer, who passed the order unless the decision is not in accordance with the invoke suomotu revisional powers to reopen a concluded assessment under Sec.263 (of Income Tax Act, 1961), the Commissioner must give reasons; that a bare reiteration by him that the order of the Income Tax Officer is erroneous in so far as it is e Revenue, will not suffice; that the reasons must be such as to show that the enhancement or modification of the assessment or
cancellation of the assessment or directions issued for a fresh assessment were nclusion that the order of the Income Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons in respect of each and every disallowance, deduction, etc., it is incumbent upon the Commissioner not to
exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny by the er, which was answered to the satisfaction of the Assessing Officer,
but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer ( 5 Supra), the Delhi High Court held that the Assessing
Officer in the assessment order is not required to give a detailed reason in respect of each and every item of deduction, etc.; that whether there was application of mind before allowing the expenditure in question has to be seen; that if there was an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Sec.263 (of Income Tax Act, 1961) merely because he has a different atter; that it is only in cases of lack of inquiry that such a course of action would be open; that an assessment order made by the Income Tax Officer cannot be branded as erroneous by the Commissioner simply because, according to him, the order should hav
must be some prima facie material on record to show that the tax which was
lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a less
just, has been imposed. In that case, the Delhi High Court held that the
Commissioner in the exercise of revisional power could not have objected to the finding of the Assessing Officer that expenditure on tools and dies by the assesse a manufacturer of Car parts, is revenue expenditure where the said claim was allowed by the latter on being satisfied with the explanation of the assessee and where the same accounting practice followed by the assessee for number of years with the approval of the Income Tax Authorities. It held that the Assessing Officer had called for explanation on the very item from the assessee and the assessee had furnished its explanation. Merely because the Assessing Officer in his order
did not make an elaborate as erroneous. The opinion of the Assessing Officer is one of the possible views and there was no material before the Commissioner to vary that opinion and ask for fresh inquiry. 
28. In Gabriel India Ltd consideration of the Commissioner as to whether an order is erroneous in so far as it is prejudicial to the interests of the Revenue, must be based on materials on the record of the proceedings called for by h record on the basis of which it can be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. It he Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded; that the department cannot be permitted to begin fresh litigation because of new views they entertain on facts or new versions which they present as to what should be the inference or proper inference either of the facts disclosed or the weight of the circumstance; that if this is permitted, litigation would have no end except when legal ingenuity is exhausted; that to do so is to divide one argument into two and multiply the litigation. It held that cases may be visualized where the Income Tax Officer while making an assessment examines the accounts, makes inquiries, applies his mind to the facts and circum accepting the account or by making some estimate himself; that the
Commissioner, on perusal of the record, may be of the opinion that the estimate made by the Officer concerned was on the lower side a
he would have estimated the income at a figure higher than the one determined by the Income Tax Officer; but that would not vest the Commissioner with power to reexamine the accounts and determine the income himself at a higher there must be material available on the record called for by the Commissioner to satisfy him prima facie that the order is both erroneous and prejudicial to the interests of the Revenue. Otherwise, it would amount to giving unbridled and arbitrary power to the revising authority to initiate proceedings for revision in every case and start re
already been concluded under law. 
29. In M.S. Raju(15 Supra), this Court has held that the power of the
Commissioner under Sec.263(1) (of Income Tax Act, 1961) is not limited only to the material which was
available before the Assessing Officer and, in order to protect the interests of the Revenue, the Commissioner is entitled to examine any other records which are according to him, the order should have been written more elaborately; there must be some prima facie material on record to show that the tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a lesser tax than what was just, has been imposed. In that case, the Delhi High Court held that the Commissioner in the exercise of revisional power could not have objected to the finding of the Assessing Officer that expenditure on tools and dies by the assesse a manufacturer of Car parts, is revenue expenditure where the said claim was allowed by the latter on being satisfied with the explanation of the assessee and
where the same accounting practice followed by the assessee for number of years val of the Income Tax Authorities. It held that the Assessing Officer
had called for explanation on the very item from the assessee and the assessee had furnished its explanation. Merely because the Assessing Officer in his order did not make an elaborate discussion in that regard, his order cannot be termed as erroneous. The opinion of the Assessing Officer is one of the possible views and there was no material before the Commissioner to vary that opinion and ask for Gabriel India Ltd. (6 Supra), the Bombay High Court held that a consideration of the Commissioner as to whether an order is erroneous in so far as it is prejudicial to the interests of the Revenue, must be based on materials on the record of the proceedings called for by him. If there are no materials on record on the basis of which it can be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded; that the department cannot be permitted to begin fresh litigation because of new views they entertain n facts or new versions which they present as to what should be the inference or proper inference either of the facts disclosed or the weight of the circumstance; that if this is permitted, litigation would have no end except when legal ingenuity ted; that to do so is to divide one argument into two and multiply the litigation. It held that cases may be visualized where the Income Tax Officer while making an assessment examines the accounts, makes inquiries, applies his mind to the facts and circumstances of the case and determines the income either by
accepting the account or by making some estimate himself; that the
Commissioner, on perusal of the record, 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 figure higher than the one determined by the Income Tax Officer; but that would not vest the Commissioner with power to reexamine the accounts and determine the income himself at a higher there must be material available on the record called for by the Commissioner to satisfy him prima facie that the order is both erroneous and prejudicial to the interests of the Revenue. Otherwise, it would amount to giving unbridled and power to the revising authority to initiate proceedings for revision in every case and start re-examination and fresh inquiry in matters which have already been concluded under law.

(15 Supra), this Court has held that the power of the
issioner under Sec.263(1) (of Income Tax Act, 1961) is not limited only to the material which was
available before the Assessing Officer and, in order to protect the interests of the Revenue, the Commissioner is entitled to examine any other records which are e been written more elaborately; there must be some prima facie material on record to show that the tax which was lawfully exigible has not been imposed or that by the application of the relevant
er tax than what was just, has been imposed. In that case, the Delhi High Court held that the Commissioner in the exercise of revisional power could not have objected to the finding of the Assessing Officer that expenditure on tools and dies by the assessee, a manufacturer of Car parts, is revenue expenditure where the said claim was allowed by the latter on being satisfied with the explanation of the assessee and where the same accounting practice followed by the assessee for number of years val of the Income Tax Authorities. It held that the Assessing Officer had called for explanation on the very item from the assessee and the assessee had furnished its explanation. Merely because the Assessing Officer in his order
discussion in that regard, his order cannot be termed as erroneous. The opinion of the Assessing Officer is one of the possible views and
there was no material before the Commissioner to vary that opinion and ask for (6 Supra), the Bombay High Court held that a consideration of the Commissioner as to whether an order is erroneous in so far
as it is prejudicial to the interests of the Revenue, must be based on materials on im. If there are no materials on record on the basis of which it can be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. It held that the Commissioner cannot initiate proceedings with a view to start fishing and roving
inquiries in matters or orders which are already concluded; that the department cannot be permitted to begin fresh litigation because of new views they entertain n facts or new versions which they present as to what should be the inference or proper inference either of the facts disclosed or the weight of the circumstance; that if this is permitted, litigation would have no end except when legal ingenuity ted; that to do so is to divide one argument into two and multiply the litigation. It held that cases may be visualized where the Income Tax Officer while making an assessment examines the accounts, makes inquiries, applies his mind stances of the case and determines the income either by accepting the account or by making some estimate himself; that the Commissioner, on perusal of the record, may be of the opinion that the estimate nd left to the Commissioner he would have estimated the income at a figure higher than the one determined
by the Income Tax Officer; but that would not vest the Commissioner with power to reexamine the accounts and determine the income himself at a higher figure; there must be material available on the record called for by the Commissioner to satisfy him prima facie that the order is both erroneous and prejudicial to the interests of the Revenue. Otherwise, it would amount to giving unbridled and power to the revising authority to initiate proceedings for revision in examination and fresh inquiry in matters which have
(15 Supra), this Court has held that the power of the issioner under Sec.263(1) (of Income Tax Act, 1961) is not limited only to the material which was available before the Assessing Officer and, in order to protect the interests of the Revenue, the Commissioner is entitled to examine any other records which are
available at the time those events which arose subsequent to the order of assessment. 
30. In Rampyari Devi Saraogi revisional powers cancelled assessee’s assessment for the yea 1960-61 because he found that the income tax officer was not justified in accepting the initial capital, the gift received and sale of jewellery, the income from business etc., without any enquiry or evidence whatsoever . He directed the income tax officer to do fresh assessment after making proper enquiry and investigation in regard to the jurisdiction. The assessee complained before the Supreme Court that no fair or reasonable opportunity was given to her. The Supreme Court held that there officer made the assessments in undue hurry; that he had passed a short stereo typed assessment order for each assessment year; that on the face of the record, the orders were pre- caused to the assessee on account of failure of the Commissioner to indicate the results of the enquiry made by him, as she would have a full opportunity for showing to the income tax officer whether he had jurisdiction or the income tax assessed in the assessment years which were originally passed were correct or not". 
31. From the above decisions, the following principles as to exercise of jurisdiction by the Commissioner u/s.263 (of Income Tax Act, 1961) can be culled ou
a) The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If erroneous but is not prejudicial to the Revenue or if it is not erroneous but it is prejudicial to the Revenue had to Sec.263(1) (of Income Tax Act, 1961). 
b) Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Reven
when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income 
c) To invoke suomotu revisional powers to reopen a concluded assessment under Sec.263 (of Income Tax Act, 1961), the Commissi the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show that the and must irresi
Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny b Assessing Officer, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer
called for interference and revision. 
e) The Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded; that the department cannot be permitted to begin fresh litigation becau
available at the time of examination by him and to take into consideration even those events which arose subsequent to the order of assessment. 
Rampyari Devi Saraogi(21 Supra), the Commissioner in exercise of
revisional powers cancelled assessee’s assessment for the years 1952
61 because he found that the income tax officer was not justified in
accepting the initial capital, the gift received and sale of jewellery, the income from business etc., without any enquiry or evidence whatsoever . He directed the come tax officer to do fresh assessment after making proper enquiry and investigation in regard to the jurisdiction. The assessee complained before the Supreme Court that no fair or reasonable opportunity was given to her. The Supreme Court held that there was ample material to show that the income tax officer made the assessments in undue hurry; that he had passed a short stereo typed assessment order for each assessment year; that on the face of the record, -judicial to the interest of the Revenue; and no prejudice was caused to the assessee on account of failure of the Commissioner to indicate the results of the enquiry made by him, as she would have a full opportunity for showing to the income tax officer whether he had jurisdiction or not and whether the income tax assessed in the assessment years which were originally passed were correct or not" 
31. From the above decisions, the following principles as to exercise of jurisdiction by the Commissioner u/s.263 (of Income Tax Act, 1961) can be culled out:
a) The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If erroneous but is not prejudicial to the Revenue or if it is not erroneous but it is prejudicial to the Revenue – recourse cannot be had to Sec.263(1) (of Income Tax Act, 1961). 
b) Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income tax Officer has taken one view with which the Commissioner does not agree, it annot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law. 
c) To invoke suomotu revisional powers to reopen a concluded assessment under Sec.263 (of Income Tax Act, 1961), the Commissioner must give reasons; that a bare reiteration by him that the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show that the and must irresistibly lead to the conclusion that the order of the Income Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons in respect of each and every disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny b Assessing Officer, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer
alled for interference and revision. 
e) The Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded; that the department cannot be permitted to begin fresh litigation because of new views of examination by him and to take into consideration even
(21 Supra), the Commissioner in exercise of rs 1952-1953 to
61 because he found that the income tax officer was not justified in
accepting the initial capital, the gift received and sale of jewellery, the income from business etc., without any enquiry or evidence whatsoever . He directed the come tax officer to do fresh assessment after making proper enquiry andinvestigation in regard to the jurisdiction. The assessee complained before the Supreme Court that no fair or reasonable opportunity was given to her. The was ample material to show that the income tax
officer made the assessments in undue hurry; that he had passed a short stereo typed assessment order for each assessment year; that on the face of the record, the Revenue; and no prejudice was caused to the assessee on account of failure of the Commissioner to indicate the results of the enquiry made by him, as she would have a full opportunity for not and whether the income tax assessed in the assessment years which were originally passed. 
31. From the above decisions, the following principles as to exercise of jurisdiction a) The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If erroneous but is not prejudicial to the Revenue recourse cannot be 
b) Every loss of revenue as a consequence of an order of the Assessing Officer ue. For example, tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income- tax Officer has taken one view with which the Commissioner does not agree, it annot be treated as an erroneous order prejudicial to the interests of the tax Officer is unsustainable in law. 
c) To invoke suomotu revisional powers to reopen a concluded assessment under oner must give reasons; that a bare reiteration by him that
the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show stibly lead to the conclusion that the order of the Income Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an in respect of each and every disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny by the Assessing Officer, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer 
e) The Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded; that these of new views they entertain on facts or new circumstance; that if this is permitted, litigation would have no end except when legal ingenuity is exhausted 
f) Whether there was application of mind before allowing the expenditure in
question has to be see not by itself give occasion to the Commissioner to pass orders under Sec.263 (of Income Tax Act, 1961) merely because he has a different opinion in the matter; that it is only in cases of lack of inquiry that such a course
order made by the Income Tax Officer cannot be branded as erroneous by the
Commissioner simply because, according to him, the order should have been
written more elaborately; there must be some prima facie mater
show that the tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a lesser tax than what was just, has been imposed. 
g) The power of the Comm entitled to examine any other records which are available at the time of examination by him and to take into consideration even those events which arose subsequent to the order of assessment. 
Now we examine the following judgements DIRECTOR OF INCOME TAX vs. JYOTI FOUNDATION 357 ITR 388 (Delhi High Court ) It was held that revisionary power u/s 263 (of Income Tax Act, 1961) is conferred on the Commissioner/Director of Income Tax when an order passed by the lower authority is erroneous and prejudicial to the interest of the Revenue. are passed without inquiry or investiga
prejudicial to the interest of the Revenue, but orders which are passed after inquiry/investigation on the question/issue are not per se or normally treated as erroneous and prejudicial to the interest of the Revenue becau
authority feels and opines that further inquiry/investigation was required or deeper or further scrutiny should be undertaken. 
INCOME TAX OFFICER vs. DG HOUSING PROJECTS LTD343 ITR 329 (Delhi)
Revenue does not have any right to appeal an order passed by the Assessing Officer. S. 263 has been enacted to empower the CIT to exercise power of revision and revise any order passed by the Assessing Officer, if two cumulative conditions are satisfied. Fi revised should be erroneous and secondly, it should be prejudicial to the interest of the Revenue. The expression "prejudicial to the interest of the Revenue" is of wide import and is not confined to merely loss of tax. The te a wrong/incorrect decision deviating from law. This expression postulates an error which makes an order unsustainable in law. 
The Assessing Officer is both an investigator and an adjudicator. If the Assessing Officer as an adjudicator assessment which is unsustainable in law, it can be corrected by the Commissioner in exercise of revisionary power. As an investigator, it is incumbent upon the Assessing Officer to investigate the facts requi verified to compute the taxable income. If the Assessing Officer fails to conduct the said investigation, he commits an error and the word "erroneous" includes failure to make the enquiry. In such cases, the order becomes erroneous b they entertain on facts or new circumstance; that if this is permitted, litigation would have no end except when legal ingenuity is exhausted 
f) Whether there was application of mind before allowing the expenditure in
question has to be seen; that if there was an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Sec.263 (of Income Tax Act, 1961) merely because he has a different opinion in the matter; that it is only in cases of lack of inquiry that such a course of action would be open; that an assessment order made by the Income Tax Officer cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately; there must be some prima facie material on record to show that the tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a lesser tax than what was just, has been imposed. 
g) The power of the Commissioner under Sec.263(1) (of Income Tax Act, 1961) is not Commissioner is
entitled to examine any other records which are available at the time of
examination by him and to take into consideration even those events which arose subsequent to the order of assessment.

e the following judgements. :-

DIRECTOR OF INCOME TAX vs. JYOTI FOUNDATION 357 ITR 388 (Delhi High Court )
It was held that revisionary power u/s 263 (of Income Tax Act, 1961) is conferred on the
Commissioner/Director of Income Tax when an order passed by the lower
authority is erroneous and prejudicial to the interest of the Revenue. Orders which tion are treated as erroneous and prejudicial to the interest of the Revenue, but orders which are passed after inquiry/investigation on the question/issue are not per se or normally treated as se the revisionary
authority feels and opines that further inquiry/investigation was required or to the first appellate authority against an order passed by the Assessing Officer. S. 263 has been enacted to empower the CIT to exercise power of revision and revise any order passed by the Assessing rstly, the order sought to be revised should be erroneous and secondly, it should be prejudicial to the interest of the Revenue. The expression "prejudicial to the interest of the Revenue" is of rm "erroneous" means a wrong/incorrect decision deviating from law. This expression postulates an The Assessing Officer is both an investigator and an adjudicator. If the Assessing decides a question or aspect and makes a wrong assessment which is unsustainable in law, it can be corrected by the
Commissioner in exercise of revisionary power. As an investigator, it is incumbent red to be examined and verified to compute the taxable income. If the Assessing Officer fails to conduct the said investigation, he commits an error and the word "erroneous" includes failure to make the enquiry. In such cases, the order becomes erroneous because enquiry or verification has not been made and not because a wrong order has been passed on merits
Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneous, by conduct
necessary enquiry, if required and necessary, before the order under s. 263 is passed. In such cases, the order of the Assessing Officer will be erroneous because the order passed is not sustainable in law and the said finding must be recorded. 
CIT cannot remand the matter to the Assessing Officer to decide whether the
findings recorded are erroneous. not lack of enquiry, again the CIT must give and record a finding that the order/inquiry made is erroneous.
is conducted by the CIT and he is able to establish and show the error or mistake made by the Assessing Officer, making the order unsustainable in Law. In some cases possibly though rarely, the CIT can also s
record or inferences drawn from facts on record per se further enquiry or investigation but the Assessing Officer had erroneously not
undertaken the same. However, the said finding must be clear, u
not debatable. The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous. 
Finding that the order is erroneous is a condition or requirement which mu
satisfied for exercise of jurisdiction under s. 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply and mean the CIT has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question. 
This distinction must be kept in mind by the CIT while exercising jurisdiction under s. 263 of the Act and in the absence of the finding that the order is erroneous and prejudicial to the interest of Revenue
the said section is not sustainable. investigation", it will be difficult to hold that the order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, i without CIT conducting verification/inquiry. The order of the Assessing Officer
may be or may not be wrong. CIT cannot direct reconsideration on this ground
but only when the order is erroneous. CIT to ask the Assessing Officer to decide whether the order was erroneous. This is not permissible. An order is not erroneous, unless the CIT hold and records reasons why it is erroneous. An order will not become erroneous because on remit, the Assessing Office must after recording reasons hold that the order is erroneous. The jurisdictional precondition stipulated is that the CIT must come to the conclusion that the order is erroneous and is unsustainable i which the CIT can rely includes not only the record as it stands at the time when the order in question was passed by the Assessing Officer but also the record as it stands at the time of examination by the CIT. N collecting and relying upon new/additional material/evidence to show and state that the order of the Assessing Officer is erroneous. 
COMMISSIONER OF INCOME TAX vs. J. L. MORRISON (INDIA) LTD. 366 ITR
As regard the submi of the Act can be exercised even in a case where the issue is debatable, it was held that the case of CIT vs. M. M. Khambhatwala was not applicable. The observation enquiry or verification has not been made and not because a wrong order has been passed on merits. 
Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneous, by conduct
necessary enquiry, if required and necessary, before the order under s. 263 is passed. In such cases, the order of the Assessing Officer will be erroneous because the order passed is not sustainable in law and the said finding must be recorded. not remand the matter to the Assessing Officer to decide whether the findings recorded are erroneous. In cases where there is inadequate enquiry but not lack of enquiry, again the CIT must give and record a finding that the order/inquiry made is erroneous. This can happen if an enquiry and verification is conducted by the CIT and he is able to establish and show the error or mistake made by the Assessing Officer, making the order unsustainable in Law. In some cases possibly though rarely, the CIT can also show and establish that the facts on record or inferences drawn from facts on record per se justified and mandated further enquiry or investigation but the Assessing Officer had erroneously not undertaken the same. However, the said finding must be clear, unambiguous and
The matter cannot be remitted for a fresh decision to the Assessing
Officer to conduct further enquiries without a finding that the order is erroneous. 
Finding that the order is erroneous is a condition or requirement which mu
satisfied for exercise of jurisdiction under s. 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply and mean the CIT has not examined and decided whether or not the order is erroneous but has Assessing Officer to decide the aspect/question.

This distinction must be kept in mind by the CIT while exercising jurisdiction under s. 263 of the Act and in the absence of the finding that the order is erroneous and prejudicial to the interest of Revenue, exercise of jurisdiction under the said section is not sustainable. In most cases of alleged "inadequate investigation", it will be difficult to hold that the order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, i without CIT conducting verification/inquiry. The order of the Assessing Officer may be or may not be wrong. CIT cannot direct reconsideration on this ground but only when the order is erroneous. An order of remit cannot be passed by the ask the Assessing Officer to decide whether the order was erroneous. This is not permissible. An order is not erroneous, unless the CIT hold and records reasons why it is erroneous. An order will not become erroneous because on remit, the Assessing Officer may decide that the order is erroneous. Therefore CIT must after recording reasons hold that the order is erroneous. The jurisdictional precondition stipulated is that the CIT must come to the conclusion that the order
is erroneous and is unsustainable in law. It may be noticed that the material which the CIT can rely includes not only the record as it stands at the time when the order in question was passed by the Assessing Officer but also the record as it stands at the time of examination by the CIT. Nothing bars/prohibits the CIT from collecting and relying upon new/additional material/evidence to show and state that the order of the Assessing Officer is erroneous. 
COMMISSIONER OF INCOME TAX vs. J. L. MORRISON (INDIA) LTD. 366 ITR
As regard the submission on behalf of the Revenue that power under Section 263 (of Income Tax Act, 1961) can be exercised even in a case where the issue is debatable, it was held that the case of CIT vs. M. M. Khambhatwala was not applicable. The observation enquiry or verification has not been made and not because a wrong order has Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneous, by conducting necessary enquiry, if required and necessary, before the order under s. 263 is passed. In such cases, the order of the Assessing Officer will be erroneous because
the order passed is not sustainable in law and the said finding must be recorded. not remand the matter to the Assessing Officer to decide whether the In cases where there is inadequate enquiry but not lack of enquiry, again the CIT must give and record a finding that the This can happen if an enquiry and verification is conducted by the CIT and he is able to establish and show the error or mistake made by the Assessing Officer, making the order unsustainable in Law. In some how and establish that the facts on
justified and mandated further enquiry or investigation but the Assessing Officer had erroneously not nambiguous and The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous. 
Finding that the order is erroneous is a condition or requirement which must be satisfied for exercise of jurisdiction under s. 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply and mean the CIT has not examined and decided whether or not the order is erroneous but has This distinction must be kept in mind by the CIT while exercising jurisdiction under s. 263 of the Act and in the absence of the finding that the order is , exercise of jurisdiction under In most cases of alleged "inadequate investigation", it will be difficult to hold that the order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, is erroneous, without CIT conducting verification/inquiry. The order of the Assessing Officer may be or may not be wrong. CIT cannot direct reconsideration on this ground An order of remit cannot be passed by the ask the Assessing Officer to decide whether the order was erroneous. This is not permissible. An order is not erroneous, unless the CIT hold and records reasons why it is erroneous. An order will not become erroneous because on r may decide that the order is erroneous. Therefore CIT
must after recording reasons hold that the order is erroneous. The jurisdictional precondition stipulated is that the CIT must come to the conclusion that the order n law. It may be noticed that the material
which the CIT can rely includes not only the record as it stands at the time when the order in question was passed by the Assessing Officer but also the record as it othing bars/prohibits the CIT from collecting and relying upon new/additional material/evidence to show and state ssion on behalf of the Revenue that power under Section 263 (of Income Tax Act, 1961) can be exercised even in a case where the issue is debatable, it was held that the case of CIT vs. M. M. Khambhatwala was not applicable. The observation that the Commissioner can exerc case were the issue is debatable was a mere passing remark which is again contrary to the view taken by the Apex Court in thecase of Malabar Industrial Company Ltd. &amp; Max India Ltd. If the Assessing Officer
it cannot be said that the view taken by him is erroneous nor the order of the Assessing Officer in that case can be set aside in revision. It has to be shown unmistakably that the order of the Assessing Officer is unsustainable. short of that would not clothe the CIT with jurisdiction to exercise power under Section 263 (of Income Tax Act, 1961). CIT vs. M. M. Khambhatwala reported in 198 ITR 144; CIT vs. Ralson Industries Ltd. reported in 288 ITR 322 (SC), not applicable; Malabar Industrial Co. Ltd. v. CIT reported in 243 ITR 83, relied on. 
(Para 72) 
As regard the third question as to whether the assessment order was passed by the Assessing Officer without application of mind, it was held that the Court has to start with the presumptio There is evidence to show that the assessing officer had required the assessee to answer 17 questions and to file documents in regard thereto. It is difficult to proceed on the basis that the 17 questions r application of mind. Without application of mind the questions raised by him in the annexure to notice under Section 142(1) (of Income Tax Act, 1961) could not have been formulated. The Assessing Officer was required to examine the return fi assessee in order to ascertain his income and to levy appropriate tax on that basis. When the Assessing Officer was satisfied that the return, filed by the assessee, was in accordance with law, he was under no obligation to justify as to why was he satisfied. On the top of that the Assessing Officer by his order dated 28th March, 2008 did not adversely affect any right of the assessee nor was any civil right of the assessee prejudiced. He was as such under no obligation in law to
give reasons. The fact, that all requisite papers were summoned and thereafter the matter was heard from time to time coupled with the fact that the view taken by him is not shown by the revenue to be erroneous and was also considered both by the Tribunal as also by us to under Clause (e) of Section 114 of the Evidence Act. A prima facie evidence, on the
basis of the aforesaid presumption, is thus converted into a conclusive proof of the fact that the order was passed by the mind. Meerut Roller Flour Mills Pvt. Ltd. vs. C.I.T., ITA No. 116 /Coch/ 2012; CIT vs. Infosys Technologies Ltd., 341 ITR 293 (Karnataka); S.N. Mukherjee vs. Union
of India, AIR 1990 SC 1984; A. A. Doshi vs. JCIT, Works Ltd. Vs. CIT, 275 ITR 43 (Del), distinguished. 
(Paras 90-92, 102) 
COMMISSIONER OF INCOME TAX vs. SOHANA WOOLLEN MILLS 296 ITR 238 (P&amp;H HC)
A reference to the provisions of s. 263 shows that jurisdiction thereunder
exercised if the CIT finds that the order of the AO was erroneous and prejudicial to the interest of Revenue. Mere audit objection and merely because a different view could be taken, were not enough to say that the order of the AO was erroneous or prejudicial to the interest of the Revenue. The jurisdiction could be exercised if the CIT was satisfied that the basis for exercise of jurisdiction existed. 
No rigid rule could be laid down about the situation when the jurisdiction can be exercised. Whether satisfaction of the CIT for exercising jurisdiction was called for or not, has to be decided having regard to a given fact situation. In the present case, the Tribunal has held that the assessee had disclosed that out of sale that the Commissioner can exercise power under Section 263 (of Income Tax Act, 1961) even in a case were the issue is debatable was a mere passing remark which is again contrary to the view taken by the Apex Court in thecase of Malabar Industrial Company Ltd. &amp; Max India Ltd. If the Assessing Officer has taken a possible view,
it cannot be said that the view taken by him is erroneous nor the order of the Assessing Officer in that case can be set aside in revision. It has to be shown unmistakably that the order of the Assessing Officer is unsustainable. short of that would not clothe the CIT with jurisdiction to exercise power under Section 263 (of Income Tax Act, 1961). CIT vs. M. M. Khambhatwala reported in 198 ITR 144; CIT vs. Ralson Industries Ltd. reported in 288 ITR 322 (SC), not applicable; Malabar strial Co. Ltd. v. CIT reported in 243 ITR 83, relied on. 
As regard the third question as to whether the assessment order was passed by the Assessing Officer without application of mind, it was held that the Court has to start with the presumption that the assessment order was regularly passed. 
There is evidence to show that the assessing officer had required the assessee to answer 17 questions and to file documents in regard thereto. It is difficult to proceed on the basis that the 17 questions raised by him did not require application of mind. Without application of mind the questions raised by him in the annexure to notice under Section 142(1) (of Income Tax Act, 1961) could not have been formulated. The Assessing Officer was required to examine the return fi assessee in order to ascertain his income and to levy appropriate tax on that basis. When the Assessing Officer was satisfied that the return, filed by the assessee, was in accordance with law, he was under no obligation to justify as to he satisfied. On the top of that the Assessing Officer by his order dated March, 2008 did not adversely affect any right of the assessee nor was any civil right of the assessee prejudiced. He was as such under no obligation in law to e fact, that all requisite papers were summoned and thereafter the matter was heard from time to time coupled with the fact that the view taken by him is not shown by the revenue to be erroneous and was also considered both by the Tribunal as also by us to be a possible view, strengthens the presumption under Clause (e) of Section 114 of the Evidence Act. A prima facie evidence, on the basis of the aforesaid presumption, is thus converted into a conclusive proof of the fact that the order was passed by the assessing officer after due application of
mind. Meerut Roller Flour Mills Pvt. Ltd. vs. C.I.T., ITA No. 116 /Coch/ 2012; CIT vs. Infosys Technologies Ltd., 341 ITR 293 (Karnataka); S.N. Mukherjee vs. Union of India, AIR 1990 SC 1984; A. A. Doshi vs. JCIT, 256 ITR 685; Hindusthan Tin Works Ltd. Vs. CIT, 275 ITR 43 (Del), distinguished.

COMMISSIONER OF INCOME TAX vs. SOHANA WOOLLEN MILLS 296 ITR 238 (P&amp;H HC)
A reference to the provisions of s. 263 shows that jurisdiction thereunder
exercised if the CIT finds that the order of the AO was erroneous and prejudicial to the interest of Revenue. Mere audit objection and merely because a different view could be taken, were not enough to say that the order of the AO was prejudicial to the interest of the Revenue. The jurisdiction could be exercised if the CIT was satisfied that the basis for exercise of jurisdiction existed. 
No rigid rule could be laid down about the situation when the jurisdiction can be er satisfaction of the CIT for exercising jurisdiction was called for
or not, has to be decided having regard to a given fact situation. In the present case, the Tribunal has held that the assessee had disclosed that out of sale ise power under Section 263 (of Income Tax Act, 1961) even in a case were the issue is debatable was a mere passing remark which is again contrary to the view taken by the Apex Court in thecase of Malabar Industrial has taken a possible view, it cannot be said that the view taken by him is erroneous nor the order of the Assessing Officer in that case can be set aside in revision. It has to be shown unmistakably that the order of the Assessing Officer is unsustainable. Anything short of that would not clothe the CIT with jurisdiction to exercise power under Section 263 (of Income Tax Act, 1961). CIT vs. M. M. Khambhatwala reported in 198 ITR 144; CIT vs. Ralson Industries Ltd. reported in 288 ITR 322 (SC), not applicable; Malabar As regard the third question as to whether the assessment order was passed by the Assessing Officer without application of mind, it was held that the Court has
n that the assessment order was regularly passed. 
There is evidence to show that the assessing officer had required the assessee to answer 17 questions and to file documents in regard thereto. It is difficult to aised by him did not require application of mind. Without application of mind the questions raised by him in the annexure to notice under Section 142(1) (of Income Tax Act, 1961) could not have been formulated. The Assessing Officer was required to examine the return filed by the
assessee in order to ascertain his income and to levy appropriate tax on that basis. When the Assessing Officer was satisfied that the return, filed by the assessee, was in accordance with law, he was under no obligation to justify as to he satisfied. On the top of that the Assessing Officer by his order dated March, 2008 did not adversely affect any right of the assessee nor was any civil right of the assessee prejudiced. He was as such under no obligation in law to e fact, that all requisite papers were summoned and thereafter the matter was heard from time to time coupled with the fact that the view taken by him is not shown by the revenue to be erroneous and was also considered both be a possible view, strengthens the presumption
under Clause (e) of Section 114 of the Evidence Act. A prima facie evidence, on the basis of the aforesaid presumption, is thus converted into a conclusive proof of the assessing officer after due application of
mind. Meerut Roller Flour Mills Pvt. Ltd. vs. C.I.T., ITA No. 116 /Coch/ 2012; CIT vs. Infosys Technologies Ltd., 341 ITR 293 (Karnataka); S.N. Mukherjee vs. Union 256 ITR 685; Hindusthan Tin.

COMMISSIONER OF INCOME TAX vs. SOHANA WOOLLEN MILLS 296 ITR 238 (P&amp;H HC)
A reference to the provisions of s. 263 shows that jurisdiction thereunder can be exercised if the CIT finds that the order of the AO was erroneous and prejudicial to the interest of Revenue. Mere audit objection and merely because a different view could be taken, were not enough to say that the order of the AO was prejudicial to the interest of the Revenue. The jurisdiction could be exercised if the CIT was satisfied that the basis for exercise of jurisdiction existed. 
No rigid rule could be laid down about the situation when the jurisdiction can be er satisfaction of the CIT for exercising jurisdiction was called for
or not, has to be decided having regard to a given fact situation. In the present case, the Tribunal has held that the assessee had disclosed that out of sale consideration, a sum of Rs. so, there was no error in the view taken by the AO and no case was made out for invoking jurisdiction under s. 263.

8. Applying the propositions of law to the facts of this case, we hold that the o passed u/s 263 (of Income Tax Act, 1961), d. 19/03/2019, as bad in law. as law. Enquiries were made by the Assessing Officer and the Assessing Officer on such enquiries has taken a possible view. The very reason for reopening is the proposing the revision. This is not permissible in law. 
9. As regards the arguments of the assessee that the validity of the reassessment proceedings can be challenged during the course of challenging the revisionary order u/s 263 (of Income Tax Act, 1961), we are of the opinion that law is in the favour of such arguments. 
Jurisdictional issue, can be raised even in collateral proceedings.
are unable to uphold the contention of the assessee that the reassessment order itself would become bad in law, result in an addition being made by the Assessing Officer made in this case. What the Courts of law have said on this issue is that, if an addition is not made for the reasons which are recorded for reopening of the assessment, addition can be made on some other grounds which do not form part of the reasons recorded for reopening. If an Assessing Officer accepts the return of income of the assessee on reopening of an assessment, such assessment order does not become an illegal assessment order. The Courts never said that the reassessment order would be
bad in law. Thus, this argument of the assessee is dismissed. 
9.1. Coming to the second argument we find that the notice u/s 148 (of Income Tax Act, 1961) has been issued to the assessee on 24/02/2016 as is evident from the copy of the notice place at page 6 of the paper book. From the order sheet entry it is clear that the assessee, on 24/03/2016, re income filed by it for the Assessment Year 2009 filed in response to notice u/s 148 (of Income Tax Act, 1961). From the order sheet entries, it is clear that notice u/s 143(2) (of Income Tax Act, 1961) was issued on 24/02/2016. This fact is also mentioned by the Assessing Officer at para 5 of his order. This proves that the notice u/s 143(2) (of Income Tax Act, 1961), was issued much prior to the assessee filing his return of income. This is not in accordance with law. Hence the order passed u/s 148 (of Income Tax Act, 1961) without issuing valid consideration, a sum of Rs. 1 lakh was to be received for sale of permit. If that is so, there was no error in the view taken by the AO and no case was made out for invoking jurisdiction under s. 263. 
Applying the propositions of law to the facts of this case, we hold that the o of the Act, d. 19/03/2019, as bad in law. It is wrong both on facts as well as law. Enquiries were made by the Assessing Officer and the Assessing Officer on such enquiries has taken a possible view. The very reason for reopening is the proposing the revision. This is not permissible in law.
As regards the arguments of the assessee that the validity of the reassessment proceedings can be challenged during the course of challenging the revisionary order e are of the opinion that law is in the favour of such arguments. Jurisdictional issue, can be raised even in collateral proceedings. At the same time, we are unable to uphold the contention of the assessee that the reassessment order itself if the reason recorded for reopening does not result in an addition being made by the Assessing Officer. In fact, no addition has been made in this case. What the Courts of law have said on this issue is that, if an addition is de for the reasons which are recorded for reopening of the assessment, be made on some other grounds which do not form part of the reasons. 
If an Assessing Officer accepts the return of income of the
reopening of an assessment, such assessment order does not become an. The Courts never said that the reassessment order would be bad in law. Thus, this argument of the assessee is dismissed as devoid of merit
econd argument we find that the notice u/s 148 (of Income Tax Act, 1961) has
been issued to the assessee on 24/02/2016 as is evident from the copy of the notice place at page 6 of the paper book. From the order sheet entry it is clear that the on 24/03/2016, requested the Assessing Officer to treat the original return of for the Assessment Year 2009-10, as that return of income
filed in response to notice u/s 148 (of Income Tax Act, 1961). From the order sheet entries, it is clear 43(2) of the Act was issued on 24/02/2016. This fact is also mentioned by the Assessing Officer at para 5 of his order. This proves that the notice u/s 143(2) (of Income Tax Act, 1961), was issued much prior to the assessee filing his return of income. This is not in Hence the order passed u/s 148 (of Income Tax Act, 1961) without issuing valid m1 lakh was to be received for sale of permit. If that is so, there was no error in the view taken by the AO and no case was made out for Applying the propositions of law to the facts of this case, we hold that the order It is wrong both on facts as well
as law. Enquiries were made by the Assessing Officer and the Assessing Officer on such enquiries has taken a possible view. The very reason for reopening is the ground for As regards the arguments of the assessee that the validity of the reassessment proceedings can be challenged during the course of challenging the revisionary order e are of the opinion that law is in the favour of such arguments. At the same time, we are unable to uphold the contention of the assessee that the reassessment order itself for reopening does not ultimately. In fact, no addition has been made in this case. What the Courts of law have said on this issue is that, if an addition is de for the reasons which are recorded for reopening of the assessment, no other be made on some other grounds which do not form part of the reasons . If an Assessing Officer accepts the return of income of the
reopening of an assessment, such assessment order does not become an
The Courts never said that the reassessment order would be as devoid of merit. second argument we find that the notice u/s 148 (of Income Tax Act, 1961) has been issued to the assessee on 24/02/2016 as is evident from the copy of the notice place at page 6 of the paper book. From the order sheet entry it is clear that the quested the Assessing Officer to treat the original return of return of income which is filed in response to notice u/s 148 (of Income Tax Act, 1961). From the order sheet entries, it is clear 43(2) of the Act was issued on 24/02/2016. This fact is also mentioned by the Assessing Officer at para 5 of his order. This proves that the notice u/s 143(2) (of Income Tax Act, 1961), was issued much prior to the assessee filing his return of income. This is not in. Hence the order passed u/s 148 (of Income Tax Act, 1961) without issuing valid
notice u/s 143(2) (of Income Tax Act, 1961), makes the reassessment order dt. 20/05/2016, passed u/s 143(3) (of Income Tax Act, 1961)/147 of the Act, bad in law. Consequently, the revision of the assessment u/s 263 (of Income Tax Act, 1961) dt. 19/03/2019, revising such illegal assessment order Thus, for all these reasons we quash the order passed by the ld. Pr. CIT u/s 263 (of Income Tax Act, 1961) as bad in law and allow the appeal of the assessee. 
10. In the result, appeal of the assessee is allowed.

Kolkata, the

Sd/- 
[Aby T. Varkey] Judicial Member Dated : 16.09.2020
{SC SPS} Copy of the order forwarded to: 
1. Anindita Steels Ltd 603, Panchawati Tower
Harmu Road RanchiJharkand – 834012 
2. Pr. Commissioner of Income Tax 
3. CIT(A)- 
4. CIT- , 
5. CIT(DR), Kolkata Benches, Kolkata.

notice u/s 143(2) (of Income Tax Act, 1961), makes the reassessment order dt. 20/05/2016, passed u/s 143(3) (of Income Tax Act, 1961)/147 of the Act, bad in law. Consequently, the revision of the assessment u/s 263 (of Income Tax Act, 1961) revising such illegal assessment order is also

Thus, for all these reasons we quash the order passed by the ld. Pr. CIT u/s 263 (of Income Tax Act, 1961) as bad in law and allow the appeal of the assessee.
of the assessee is allowed. 
Kolkata, the 16th day of September, 2020.

[J. Sudhakar Reddy Accountant Member

Pr. Commissioner of Income Tax -(2), Kolkata

Kolkata.

Assistant Registrar ITAT, Kolkata Benches ITA No. 2225/Kol/2019
Assessment Year: 2009-10 Anindita Steels Ltd notice u/s 143(2) (of Income Tax Act, 1961), makes the reassessment order dt. 20/05/2016, passed u/s
143(3) (of Income Tax Act, 1961)/147 of the Act, bad in law. Consequently, the revision of the assessment u/s 263 (of Income Tax Act, 1961) also bad in law. 
Thus, for all these reasons we quash the order passed by the ld. Pr. CIT u/s 263 (of Income Tax Act, 1961)

Sd/- 
J. Sudhakar Reddy] 
countant Member

a) The assessment was reopened after verifying unsecured loans of Rs. 1.74
Crores, received by the assessee from various companies and the
Assessing Officer after examining this issue had accepted the unsecured
loans as genuine in the reassessment proceedings. The ld. Pr. CIT, cannot
for the very same reason revise the assessment order passed by the
Assessing Officer. He drew the attention of the Bench to the copy of the
reasons recorded for reopening of the assessment as well as the
show cause notice issued by the ld. Pr. CIT, prior to passing of his order
u/s 263 (of Income Tax Act, 1961) to demonstrate that both actions were for the very
same reasons.

That the Assessing Officer while completing the assessment u/s
143(3) (of Income Tax Act, 1961)/147 of the Act on 20/05/2016 had conducted enquiries, obtained
information from third parties and on being satisfied with the identity
and creditworthiness of the sundry creditors and that the genuineness of
the transactions had not made any addition. That adequate enquiries
were made and it is not a case of lack of enquiry or lack of application of
mind and that revision cannot be made on the ground of inadequate.

The ld. Pr. CIT did not conduct any enquiry or verification by himself for
coming to a conclusion that the order requires revision. Such lack of
enquiry and non application of mind by the ld. Pr. CIT makes the order.

That the assessee is entitled to question the legality and validity of the
reassessment order passed u/s 143(3) (of Income Tax Act, 1961)/147 of the Act on 20/05/2016,
while challenging the order passed u/s 263 (of Income Tax Act, 1961) reassessment order, as it would be a jurisdictional issue which goes to the after.

The reasons for reopening of assessment as recorded by the Assessing Officer
10, but was not scrutinized under As per the communication received from OFFICE OF THE DEPUTY DIRECTOR OF FLOOR, ROOM NO 4/7A, 69, VIDE LETTER No.

A search and seizure operation under section 132 (of Income Tax Act, 1961) was conducted on Rungta group of companies on 25/08/2015. During the course of post search investigation, a report in the form of STR received from DDIT (Inv), Unit-1, Ranchi. The STR was in the name of RECENT SUPPLIERS PVT. LTD. and related with y operator SHRI RAJENDRA BUBNA was identified and statement
under oath was recorded. In his statement (copy enclosed in folder), he stated that he Jamakharchi/paper companies to M/S ANINDITA STEELS LIMITED [fo INVESTMENT LTD] to the tune of Rs.1.74 CRORES DURING THE FINANCIAL YEAR
2008-09 CORRESPONDING ASSESSMENT YEAR 2009 Also the statement of Sri Samir Kumar Chatterjee, Director of Recent Suppliers Pvt. Ltd. was recorded (copy enclosed in the folder). 
In the light of above facts, I have reasons to believe that the income of Rs.1.74 crore chargeable to tax has escaped assessment for assessment year 2009 meaning of section 147 (of Income Tax Act, 1961).” 
6.1. Thereafter, the Assessing Officer called for information
required documents accepted the loans received by the assessee company as genuine. 
The assessee filed a copy of the order sheet entry at page 73 &
perusal of the same demonstrates that the Assessing Officer has called for third party information and had received the same the assessee. 
After this exercise, the Assessing Officer assessee from different creditors as genuine and has not made any addition passed u/s 143(3) (of Income Tax Act, 1961) r.w.s. 147 (of Income Tax Act, 1961) on 20/05/2016 
6.1.1. The ld. Pr. CIT proposed to revise this reassessment order
giving a showcause notice dt. 08/03/2019. Para 3 & 4 of th
“3. It has been observed from the assessment records for the relevant
assessment year that your concern had received unsecured loans to the tune ofRs.1.74 Cr. From various companies. 
4. At the time of re nature of business activities of your concern with the companies from who unsecured loans were taken. Since no enquiry was conducted into the veracity of such loans and creditworthiness of the lenders, the order of the AO appears to be erroneous in so far as it is prejudicial to the interest of the revenue.” 
7. From the above it is clear that reasons recorded for reopening of the assessment and the reason for initiating proceedings u/s 263 (of Income Tax Act, 1961), are the same and based on the same material. The allegation in this showcause notice issued u/s 263 (of Income Tax Act, 1961), is that the Assessing Officer has failed to examine and that no enquiry was conducted into the veracity of the loans by the Assessing Officer, is factually incorrect. inadequate enquiry cannot be a ground for exercising of revisionary powers u/s 263 (of Income Tax Act, 1961) of the
M/S ANINDITA STEELS LIMITED [formerly known as ANINDITA TRADES &
INVESTMENT LTD] to the tune of Rs.1.74 CRORES DURING THE FINANCIAL YEAR
09 CORRESPONDING ASSESSMENT YEAR 2009-10. 
Also the statement of Sri Samir Kumar Chatterjee, Director of Recent Suppliers (copy enclosed in the folder).

In the light of above facts, I have reasons to believe that the income of Rs.1.74 crore chargeable to tax has escaped assessment for assessment year 2009- meaning of section 147 (of Income Tax Act, 1961).” 
Thereafter, the Assessing Officer called for information and after obtaining the required documents accepted the loans received by the assessee company as genuine. 
The assessee filed a copy of the order sheet entry at page 73 & 74 of the paper book. A perusal of the same demonstrates that the Assessing Officer has called for third party and had received the same and also had taken replies and submissions from After this exercise, the Assessing Officer has accepted the loans taken by the assessee from different creditors as genuine and has not made any addition passed u/s 143(3) (of Income Tax Act, 1961) r.w.s. 147 (of Income Tax Act, 1961) on 20/05/2016. 
The ld. Pr. CIT proposed to revise this reassessment order dt. 20/05/2
giving a showcause notice dt. 08/03/2019. Para 3 & 4 of this notice reads as follows: 
It has been observed from the assessment records for the relevant
assessment year that your concern had received unsecured loans to the tune of rom various companies. 
At the time of re-assessment proceedings, the A.O. failed to examine the
nature of business activities of your concern with the companies from who
unsecured loans were taken. Since no enquiry was conducted into the veracity
ch loans and creditworthiness of the lenders, the order of the AO appears
to be erroneous in so far as it is prejudicial to the interest of the revenue.” 
From the above it is clear that reasons recorded for reopening of the assessment initiating proceedings u/s 263 (of Income Tax Act, 1961), are the same and based on the The allegation in this showcause notice issued u/s 263 (of Income Tax Act, 1961), is that the Assessing Officer has failed to examine and that no enquiry was conducted into the ity of the loans by the Assessing Officer, is factually incorrect. It is well settled that inadequate enquiry cannot be a ground for exercising of revisionary powers u/s 263 (of Income Tax Act, 1961) of the rmerly known as ANINDITA TRADES & INVESTMENT LTD] to the tune of Rs.1.74 CRORES DURING THE FINANCIAL YEAR Also the statement of Sri Samir Kumar Chatterjee, Director of Recent Suppliers In the light of above facts, I have reasons to believe that the income of Rs.1.74 cror -10 within the after obtaining the required documents accepted the loans received by the assessee company as genuine. 
74 of the paper book. A perusal of the same demonstrates that the Assessing Officer has called for third party and also had taken replies and submissions from has accepted the loans taken by the assessee from different creditors as genuine and has not made any addition in the order dt. 20/05/2016 by notice reads as follows:- 
It has been observed from the assessment records for the relevant
assessment year that your concern had received unsecured loans to the tune of assessment proceedings, the A.O. failed to examine the nature of business activities of your concern with the companies from who unsecured loans were taken. Since no enquiry was conducted into the veracity ch loans and creditworthiness of the lenders, the order of the AO appears to be erroneous in so far as it is prejudicial to the interest of the revenue.” 
From the above it is clear that reasons recorded for reopening of the assessment initiating proceedings u/s 263 (of Income Tax Act, 1961), are the same and based on the The allegation in this show cause notice issued u/s 263 (of Income Tax Act, 1961), is that the Assessing Officer has failed to examine and that no enquiry was conducted into the It is well settled that inadequate enquiry cannot be a ground for exercising of revisionary powers u/s 263 (of Income Tax Act, 1961). It is for the Assessing Officer to determine the extent of enquiry and done on a particular issue. From the papers on record it is clear that the Assessing Officer had conducted enquiries both with the assessee as well as with the third parties and on receipt of all the information, copies of which are pl
book, has accepted these loans as genuine. The ld. Pr. CIT cannot substitute his that of the Assessing Officer. It is also seen that the ld. Pr. CIT has not conducted any verification or prima facie investi passed by the Assessing Officer is erroneous and prejudicial to the interest of the revenue. 
He also failed to notice that enquiries were in fact made by the Assessing Officer. 
The law on this issue Spectra Shares and Scrips Pvt. Ltd. V CIT (AP) 354 ITR 35 judgments on this issue of exercise of jurisdiction u/s 263 (of Income Tax Act, 1961) by the Principal Commissioner of Income Tax and culled the principles laid down in the judgments as below :

e the following judgements. :-

This distinction must be kept in mind by the CIT while exercising jurisdiction under s. 263 of the Act and in the absence of the finding that the order is erroneous and prejudicial to the interest of Revenue, exercise of jurisdiction under the said section is not sustainable. In most cases of alleged "inadequate investigation", it will be difficult to hold that the order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, i without CIT conducting verification/inquiry. The order of the Assessing Officer may be or may not be wrong. CIT cannot direct reconsideration on this ground but only when the order is erroneous. An order of remit cannot be passed by the ask the Assessing Officer to decide whether the order was erroneous. This is not permissible. An order is not erroneous, unless the CIT hold and records reasons why it is erroneous. An order will not become erroneous because on remit, the Assessing Officer may decide that the order is erroneous. Therefore CIT must after recording reasons hold that the order is erroneous. The jurisdictional precondition stipulated is that the CIT must come to the conclusion that the order
is erroneous and is unsustainable in law. It may be noticed that the material which the CIT can rely includes not only the record as it stands at the time when the order in question was passed by the Assessing Officer but also the record as it stands at the time of examination by the CIT. Nothing bars/prohibits the CIT from collecting and relying upon new/additional material/evidence to show and state that the order of the Assessing Officer is erroneous. 
COMMISSIONER OF INCOME TAX vs. J. L. MORRISON (INDIA) LTD. 366 ITR
As regard the submission on behalf of the Revenue that power under Section 263 (of Income Tax Act, 1961) can be exercised even in a case where the issue is debatable, it was held that the case of CIT vs. M. M. Khambhatwala was not applicable. The observation enquiry or verification has not been made and not because a wrong order has Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneous, by conducting necessary enquiry, if required and necessary, before the order under s. 263 is passed. In such cases, the order of the Assessing Officer will be erroneous because
the order passed is not sustainable in law and the said finding must be recorded. not remand the matter to the Assessing Officer to decide whether the In cases where there is inadequate enquiry but not lack of enquiry, again the CIT must give and record a finding that the This can happen if an enquiry and verification is conducted by the CIT and he is able to establish and show the error or mistake made by the Assessing Officer, making the order unsustainable in Law. In some how and establish that the facts on
justified and mandated further enquiry or investigation but the Assessing Officer had erroneously not nambiguous and The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous. 
Finding that the order is erroneous is a condition or requirement which must be satisfied for exercise of jurisdiction under s. 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply and mean the CIT has not examined and decided whether or not the order is erroneous but has This distinction must be kept in mind by the CIT while exercising jurisdiction under s. 263 of the Act and in the absence of the finding that the order is , exercise of jurisdiction under In most cases of alleged "inadequate investigation", it will be difficult to hold that the order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, is erroneous, without CIT conducting verification/inquiry. The order of the Assessing Officer may be or may not be wrong. CIT cannot direct reconsideration on this ground An order of remit cannot be passed by the ask the Assessing Officer to decide whether the order was erroneous. This is not permissible. An order is not erroneous, unless the CIT hold and records reasons why it is erroneous. An order will not become erroneous because on r may decide that the order is erroneous. Therefore CIT
must after recording reasons hold that the order is erroneous. The jurisdictional precondition stipulated is that the CIT must come to the conclusion that the order n law. It may be noticed that the material
which the CIT can rely includes not only the record as it stands at the time when the order in question was passed by the Assessing Officer but also the record as it othing bars/prohibits the CIT from collecting and relying upon new/additional material/evidence to show and state ssion on behalf of the Revenue that power under Section 263 (of Income Tax Act, 1961) can be exercised even in a case where the issue is debatable, it was held that the case of CIT vs. M. M. Khambhatwala was not applicable. The observation that the Commissioner can exerc case were the issue is debatable was a mere passing remark which is again contrary to the view taken by the Apex Court in thecase of Malabar Industrial Company Ltd. & Max India Ltd. If the Assessing Officer
it cannot be said that the view taken by him is erroneous nor the order of the Assessing Officer in that case can be set aside in revision. It has to be shown unmistakably that the order of the Assessing Officer is unsustainable. short of that would not clothe the CIT with jurisdiction to exercise power under Section 263 (of Income Tax Act, 1961). CIT vs. M. M. Khambhatwala reported in 198 ITR 144; CIT vs. Ralson Industries Ltd. reported in 288 ITR 322 (SC), not applicable; Malabar Industrial Co. Ltd. v. CIT reported in 243 ITR 83, relied on. 
(Para 72) 
As regard the third question as to whether the assessment order was passed by the Assessing Officer without application of mind, it was held that the Court has to start with the presumptio There is evidence to show that the assessing officer had required the assessee to answer 17 questions and to file documents in regard thereto. It is difficult to proceed on the basis that the 17 questions r application of mind. Without application of mind the questions raised by him in the annexure to notice under Section 142(1) (of Income Tax Act, 1961) could not have been formulated. The Assessing Officer was required to examine the return fi assessee in order to ascertain his income and to levy appropriate tax on that basis. When the Assessing Officer was satisfied that the return, filed by the assessee, was in accordance with law, he was under no obligation to justify as to why was he satisfied. On the top of that the Assessing Officer by his order dated 28th March, 2008 did not adversely affect any right of the assessee nor was any civil right of the assessee prejudiced. He was as such under no obligation in law to
give reasons. The fact, that all requisite papers were summoned and thereafter the matter was heard from time to time coupled with the fact that the view taken by him is not shown by the revenue to be erroneous and was also considered both by the Tribunal as also by us to under Clause (e) of Section 114 of the Evidence Act. A prima facie evidence, on the
basis of the aforesaid presumption, is thus converted into a conclusive proof of the fact that the order was passed by the mind. Meerut Roller Flour Mills Pvt. Ltd. vs. C.I.T., ITA No. 116 /Coch/ 2012; CIT vs. Infosys Technologies Ltd., 341 ITR 293 (Karnataka); S.N. Mukherjee vs. Union
of India, AIR 1990 SC 1984; A. A. Doshi vs. JCIT, Works Ltd. Vs. CIT, 275 ITR 43 (Del), distinguished. 
(Paras 90-92, 102) 
COMMISSIONER OF INCOME TAX vs. SOHANA WOOLLEN MILLS 296 ITR 238 (P&H HC)
A reference to the provisions of s. 263 shows that jurisdiction thereunder
exercised if the CIT finds that the order of the AO was erroneous and prejudicial to the interest of Revenue. Mere audit objection and merely because a different view could be taken, were not enough to say that the order of the AO was erroneous or prejudicial to the interest of the Revenue. The jurisdiction could be exercised if the CIT was satisfied that the basis for exercise of jurisdiction existed. 
No rigid rule could be laid down about the situation when the jurisdiction can be exercised. Whether satisfaction of the CIT for exercising jurisdiction was called for or not, has to be decided having regard to a given fact situation. In the present case, the Tribunal has held that the assessee had disclosed that out of sale that the Commissioner can exercise power under Section 263 (of Income Tax Act, 1961) even in a case were the issue is debatable was a mere passing remark which is again contrary to the view taken by the Apex Court in thecase of Malabar Industrial Company Ltd. & Max India Ltd. If the Assessing Officer has taken a possible view,
it cannot be said that the view taken by him is erroneous nor the order of the Assessing Officer in that case can be set aside in revision. It has to be shown unmistakably that the order of the Assessing Officer is unsustainable. short of that would not clothe the CIT with jurisdiction to exercise power under Section 263 (of Income Tax Act, 1961). CIT vs. M. M. Khambhatwala reported in 198 ITR 144; CIT vs. Ralson Industries Ltd. reported in 288 ITR 322 (SC), not applicable; Malabar strial Co. Ltd. v. CIT reported in 243 ITR 83, relied on. 
As regard the third question as to whether the assessment order was passed by the Assessing Officer without application of mind, it was held that the Court has to start with the presumption that the assessment order was regularly passed. 
There is evidence to show that the assessing officer had required the assessee to answer 17 questions and to file documents in regard thereto. It is difficult to proceed on the basis that the 17 questions raised by him did not require application of mind. Without application of mind the questions raised by him in the annexure to notice under Section 142(1) (of Income Tax Act, 1961) could not have been formulated. The Assessing Officer was required to examine the return fi assessee in order to ascertain his income and to levy appropriate tax on that basis. When the Assessing Officer was satisfied that the return, filed by the assessee, was in accordance with law, he was under no obligation to justify as to he satisfied. On the top of that the Assessing Officer by his order dated March, 2008 did not adversely affect any right of the assessee nor was any civil right of the assessee prejudiced. He was as such under no obligation in law to e fact, that all requisite papers were summoned and thereafter the matter was heard from time to time coupled with the fact that the view taken by him is not shown by the revenue to be erroneous and was also considered both by the Tribunal as also by us to be a possible view, strengthens the presumption under Clause (e) of Section 114 of the Evidence Act. A prima facie evidence, on the basis of the aforesaid presumption, is thus converted into a conclusive proof of the fact that the order was passed by the assessing officer after due application of
mind. Meerut Roller Flour Mills Pvt. Ltd. vs. C.I.T., ITA No. 116 /Coch/ 2012; CIT vs. Infosys Technologies Ltd., 341 ITR 293 (Karnataka); S.N. Mukherjee vs. Union of India, AIR 1990 SC 1984; A. A. Doshi vs. JCIT, 256 ITR 685; Hindusthan Tin Works Ltd. Vs. CIT, 275 ITR 43 (Del), distinguished.

COMMISSIONER OF INCOME TAX vs. SOHANA WOOLLEN MILLS 296 ITR 238 (P&H HC)
A reference to the provisions of s. 263 shows that jurisdiction thereunder
exercised if the CIT finds that the order of the AO was erroneous and prejudicial to the interest of Revenue. Mere audit objection and merely because a different view could be taken, were not enough to say that the order of the AO was prejudicial to the interest of the Revenue. The jurisdiction could be exercised if the CIT was satisfied that the basis for exercise of jurisdiction existed. 
No rigid rule could be laid down about the situation when the jurisdiction can be er satisfaction of the CIT for exercising jurisdiction was called for
or not, has to be decided having regard to a given fact situation. In the present case, the Tribunal has held that the assessee had disclosed that out of sale ise power under Section 263 (of Income Tax Act, 1961) even in a case were the issue is debatable was a mere passing remark which is again contrary to the view taken by the Apex Court in thecase of Malabar Industrial has taken a possible view, it cannot be said that the view taken by him is erroneous nor the order of the Assessing Officer in that case can be set aside in revision. It has to be shown unmistakably that the order of the Assessing Officer is unsustainable. Anything short of that would not clothe the CIT with jurisdiction to exercise power under Section 263 (of Income Tax Act, 1961). CIT vs. M. M. Khambhatwala reported in 198 ITR 144; CIT vs. Ralson Industries Ltd. reported in 288 ITR 322 (SC), not applicable; Malabar As regard the third question as to whether the assessment order was passed by the Assessing Officer without application of mind, it was held that the Court has
n that the assessment order was regularly passed. 
There is evidence to show that the assessing officer had required the assessee to answer 17 questions and to file documents in regard thereto. It is difficult to aised by him did not require application of mind. Without application of mind the questions raised by him in the annexure to notice under Section 142(1) (of Income Tax Act, 1961) could not have been formulated. The Assessing Officer was required to examine the return filed by the
assessee in order to ascertain his income and to levy appropriate tax on that basis. When the Assessing Officer was satisfied that the return, filed by the assessee, was in accordance with law, he was under no obligation to justify as to he satisfied. On the top of that the Assessing Officer by his order dated March, 2008 did not adversely affect any right of the assessee nor was any civil right of the assessee prejudiced. He was as such under no obligation in law to e fact, that all requisite papers were summoned and thereafter the matter was heard from time to time coupled with the fact that the view taken by him is not shown by the revenue to be erroneous and was also considered both be a possible view, strengthens the presumption
under Clause (e) of Section 114 of the Evidence Act. A prima facie evidence, on the basis of the aforesaid presumption, is thus converted into a conclusive proof of the assessing officer after due application of
mind. Meerut Roller Flour Mills Pvt. Ltd. vs. C.I.T., ITA No. 116 /Coch/ 2012; CIT vs. Infosys Technologies Ltd., 341 ITR 293 (Karnataka); S.N. Mukherjee vs. Union 256 ITR 685; Hindusthan Tin.

COMMISSIONER OF INCOME TAX vs. SOHANA WOOLLEN MILLS 296 ITR 238 (P&H HC)
A reference to the provisions of s. 263 shows that jurisdiction thereunder can be exercised if the CIT finds that the order of the AO was erroneous and prejudicial to the interest of Revenue. Mere audit objection and merely because a different view could be taken, were not enough to say that the order of the AO was prejudicial to the interest of the Revenue. The jurisdiction could be exercised if the CIT was satisfied that the basis for exercise of jurisdiction existed. 
No rigid rule could be laid down about the situation when the jurisdiction can be er satisfaction of the CIT for exercising jurisdiction was called for
or not, has to be decided having regard to a given fact situation. In the present case, the Tribunal has held that the assessee had disclosed that out of sale consideration, a sum of Rs. so, there was no error in the view taken by the AO and no case was made out for invoking jurisdiction under s. 263.

Kolkata, the

[J. Sudhakar Reddy Accountant Member

Pr. Commissioner of Income Tax -(2), Kolkata

Kolkata.

Assistant Registrar ITAT, Kolkata Benches ITA No. 2225/Kol/2019
Assessment Year: 2009-10 Anindita Steels Ltd notice u/s 143(2) (of Income Tax Act, 1961), makes the reassessment order dt. 20/05/2016, passed u/s
143(3) (of Income Tax Act, 1961)/147 of the Act, bad in law. Consequently, the revision of the assessment u/s 263 (of Income Tax Act, 1961) also bad in law. 
Thus, for all these reasons we quash the order passed by the ld. Pr. CIT u/s 263 (of Income Tax Act, 1961)

Sd/- 
J. Sudhakar Reddy] 
countant Member

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Section - 132 (of Income Tax Act, 1961), Search and seizure

Section - 153A (of Income Tax Act, 1961), Assessment in case of search or requi…

Section - 263 (of Income Tax Act, 1961), Revision of orders prejudicial to reve…

Inadequate enquiry cannot be a ground for exercising of revisionary powers u/s 263 (of Income Tax Act, 1961).