M/s. H.M. Agriexports Pvt. Ltd., Uttar Pradesh V. Pr. CIT, Muzaffarnagar

ITA 2524/DEL/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 9796 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 27-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MEETA SINGH
• Assessee Lawyers: PIYUSH K KAMAL D K GANDHI
• Keywords: Gross profit estimation; Condonation of delay; Revenue expenditure
• Section: 143(3); 263

Judgement Text

ITA NO. 2524/DEL/2017 ASSESSMENT YEAR 2012-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 2524/DEL/2017 ASSESSMENT YEAR : 2012-13 H.M. AGRIEXPORTS PVT. LTD., VS PR. CI T, HM AGRIEXPORTS, MUZAFFARN AGAR. CHILKANA ROAD, SAHARANPUR, UTTAR PRADESH-247001 (PAN: AACCH5350D) (APPELLANT) (RESPONDENT) APPELLANT BY : S/SHRI PIYUSH K. KAMAL, D.K. GANDHI, ADV. RESPONDENT BY : SMT. MEETA SINGH, CIT DR DATE OF HEARING: 21.06.2018 DATE OF PRONOUNCEMENT: 19.09.2018 O R D E R PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAI NST THE ORDER DATED 27.12.2016 PASSED BY THE LD. PR. CIT, M UZAFFARNAGAR FOR ASSESSMENT YEAR 2012-13 WHEREIN VIDE THE IMPUGN ED ORDER PASSED U/S 263 OF THE INCOME TAX ACT, 1961 (HEREINA FTER CALLED 'THE ACT')., THE LD. PR. C.I.T. HAS SET ASIDE THE A SSESSMENT ORDER DATED 29.08.2014 WITH DIRECTIONS TO PASS A FRESH AS SESSMENT ORDER. I.T.A. NO. 2524/DEL/2017 ASSESSMENT YEAR 2012-13 2 2.0 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S A PRIVATE LIMITED COMPANY AND IS ENGAGED IN TRADING AND EXPOR T OF RICE AND OTHER AGRICULTURAL PRODUCTS. THE ORIGINAL RETURN O F INCOME WAS FILED ON 8.9.2012 DECLARING A TAXABLE INCOME OF RS. 14,12,410/-. THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND, SUBSEQUENTLY, THE ASSESSMENT WAS COMPLETED AT RS. 1 4,82,410/- AFTER MAKING AN ADDITION OF RS. 70,000/- ON ACCOUNT OF UN- VOUCHED EXPENSES. 2.1 SUBSEQUENTLY, THE LD. PR. CIT ISSUED NOTICE U/S 263 OF THE ACT ON 5.12.2016 ON THE GROUNDS THAT NO EFFORT WAS MADE BY THE ASSESSING OFFICER TO KNOW THE REASONS FOR LOW NET P ROFIT, THE ASSESSING OFFICER DID NOT EXAMINE THE INCREASE OF R S. 1,54,27,250/- IN THE UNSECURED LOANS AND THE ASSESS ING OFFICER HAD NOT VERIFIED THE CLOSING STOCK OF FINISHED GOOD S AS THERE WERE NO SUPPORTING DOCUMENTS. 2.2 IN RESPONSE, THE ASSESSEE SUBMITTED DETAILED EX PLANATIONS BUT THE LD. PR. C.I.T. WAS UNCONVINCED AND OBSERVED THAT THE ASSESSING OFFICER HAD FAILED TO EXAMINE THE CASE PR OPERLY AND, THEREFORE, THE ASSESSMENT ORDER WAS ERRONEOUS IN SO FAR AS BEING PREJUDICIAL TO THE INTEREST OF THE REVENUE AND SET ASIDE THE I.T.A. NO. 2524/DEL/2017 ASSESSMENT YEAR 2012-13 3 ASSESSMENT ORDER WITH DIRECTIONS TO PASS A FRESH AS SESSMENT ORDER IN ACCORDANCE WITH PROVISIONS OF LAW. 2.3 AGGRIEVED, THE ASSESSEE IS NOW BEFORE THE ITAT AND HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE ORDER OF THE LEARNED PRINCIPAL CIT IS AGAINST LAW' AND FACTS OF THE CASE. 2. THAT THE LEARNED PRINCIPAL CIT HAS ERRED IN HOL DING THAT THE ORIGINAL ASSESSMENT ORDER PASSED BY LEARNE D ITO WARD-1, SAHARANPUR, IS ERRONEOUS IN SO FAR AS I T IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. 3. THAT THE ORDER OF THE PRINCIPAL CIT IS WRONG AN D ERRONEOUS AS THE ORIGINAL ASSESSMENT ORDER HAS BEEN PASSED AFTER EXAMINING ALL THE DETAILS FURNISHED BY THE ASSESSEE AND AFTER THOROUGH INSPECTION OF BOOKS OF ACCOUNTS ON VARIOUS OCCASIONS. THAT THE LEARNED ITO AT THE TIME OF THE ORIGINAL ASSESSMENT MADE SPECIFIC ENQUIRIES REGARDING THE UNSECURED LOANS, THE PROFITABILITY AND THE VALUATION OF THE CLOSING STOC KS. THE ASSESSMENT ORDER WAS PASSED AFTER MINUTELY EXAMINING ALL THE DETAILS FURNISHED BY THE ASSESSE. 4. THAT THE ORDER OF THE PRINCIPAL CIT IS WRONG AN D ERRONEOUS AS IT FAILS TO PROVE THAT THE ORIGINAL OR DER SUFFERS FROM ANY DEFECT OR THAT THE ORDER IS CONTRA RY TO LAW OR THAT IT HAS BEEN PASSED UPON AN ERRONEOUS APPLICATION OF LEGAL PRINCIPLES. 5. THAT THE ORDER OF THE PRINCIPAL CIT IS WRONG AN D ERRONEOUS AS THE ASSESSMENT ORDER CANNOT BE REOPENED SIMPLY BECAUSE THE CIT HAS A DIFFERENT OPINION. THE REVISIONAL POWER CONFERRED ON THE CIT IS NOT AN APPELLATE POWER BUT A SUPERVISORY POWER. PRAYER IT IS PRAYED THAT THE ORDER OF THE LEARNED PRINCIPA L CIT REOPENING THE ORIGINAL ASSESSMENT ORDER U/S 263 BE SET I.T.A. NO. 2524/DEL/2017 ASSESSMENT YEAR 2012-13 4 ASIDE AND THE ORIGINAL ASSESSMENT ORDER MAY BE RESTORED. 3. AT THE OUTSET, THE LD. AR SUBMITTED THAT THERE W AS A DELAY OF 58 DAYS IN FILING THE CAPTIONED APPEAL. HE DREW OU R ATTENTION TO THE APPLICATION FOR CONDONATION OF DELAY WHICH WAS DULY SUPPORTED BY AN AFFIDAVIT IN THIS REGARD AND IT WAS PRAYED THAT THE DELAY BE CONDONED AS THE DELAY WAS BEYOND THE CONTR OL OF THE ASSESSEE. 4. THE LD. CIT DR OPPOSED THE PRAYER FOR CONDONATIO N OF DELAY. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE AVERMENTS MADE IN THE DELAY CONDONATION APPLICATION AND THE AFFIDAVIT WHICH HAS BEEN FILED IN SUPPORT OF THE AV ERMENTS. AS PER THE APPLICATION AND THE AFFIDAVIT, IT HAS BEEN SUBM ITTED THAT BOTH THE DIRECTORS OF THE COMPANY WERE OUT OF INDIA FOR THE PERIOD 24.12.2016 TO 2.3.2017 AND THE IMPUGNED ORDER WAS S ERVED ON THE COMPANY ON 30.12.2016. IT HAS BEEN FURTHER SUB MITTED THAT THE IMPUGNED ORDER WAS HANDED OVER TO THE AUTHORISE D REPRESENTATIVE OF THE COMPANY BUT THE AUTHORISED RE PRESENTATIVE WAS UNABLE TO ATTEND OFFICE FOR A LONG PERIOD DUE T O THE WEDDING OF HIS SON ON 25.02.2017. A PHOTOCOPY OF THE WEDDING INVITATION OF THE SON OF THE AUTHORISED REPRESENTATIVE HAS ALSO B EEN ENCLOSED ALONG WITH DELAY CONDONATION APPLICATION TO SUBSTAN TIATE THE I.T.A. NO. 2524/DEL/2017 ASSESSMENT YEAR 2012-13 5 SAME. PHOTOCOPIES OF PASSPORTS OF BOTH THE DIRECT ORS HAVE ALSO BEEN ENCLOSED ALONG WITH THE DELAY CONDONATION APPL ICATION IN SUPPORT OF THE CONTENTION THAT BOTH THE DIRECTORS W ERE TRAVELLING OUTSIDE INDIA. THUS, IT IS APPARENT THAT THE DELAY WAS NOT INTENTIONAL AND, THEREFORE, THE SAME DESERVES TO BE CONDONED. ACCORDINGLY, WE CONDONE THE DELAY OF 58 DAYS AND AD MIT THE APPEAL FOR REGULAR HEARING. 6.0 THE LD. AR DREW OUR ATTENTION TO THE SHOW CAUSE NOTICE ISSUED U/S 263 OF THE ACT AND ALSO PLACED ON RECORD A COPY OF THE ORDER SHEET OF THE ORIGINAL ASSESSMENT PROCEEDINGS AND SUBMITTED THAT VIDE ORDER SHEET ENTRY DATED 25.8.2014, THE AO HAD MADE QUERY REGARDING ADVANCES FROM CUSTOMERS AND TRADE R ECEIVABLES, UNSECURED LOANS AND ADVANCES INCLUDING SQUARED UP L OANS, COPY OF ACCOUNTS OF SUNDRY DEBTORS AND CREDITORS ALONG W ITH THEIR COMPLETE ADDRESSES, DETAILS OF SALES, PURCHASES SEP ARATELY FOR DOMESTIC PURPOSES AND EXPORT ALONG WITH JUSTIFICATI ON OF STOCK AND JUSTIFICATION FOR LOW GP/NP RATE. THE LD. AR T HEREAFTER DREW OUR ATTENTION TO THE SUBMISSIONS MADE BY THE ASSESS EE BEFORE THE AO IN RESPONSE TO THE QUERIES WHICH WERE PLACED AT PAGES 29-38 OF THE PAPER BOOK. IT WAS SUBMITTED THAT THE ASSES SEE HAD DULY RESPONDED TO ALL THE QUERIES RAISED BY THE ASSESSIN G OFFICER AND, I.T.A. NO. 2524/DEL/2017 ASSESSMENT YEAR 2012-13 6 THEREFORE, THE CONTENTION OF THE LD. PR. C.I.T. WAS INCORRECT INASMUCH AS IT WAS ALLEGED THAT THE ASSESSING OFFIC ER HAD NOT MADE PROPER INQUIRES ON THE THREE ISSUES AS MENTION ED IN THE SHOW CAUSE NOTICE. THE LD. AR ALSO SUBMITTED THAT EVEN THE LD. PR. C.I.T. HAS MENTIONED IN THE IMPUGNED ORDER THAT THE ASSESSEE HAD SUBMITTED DETAILS OF PURCHASE AND SALES IN THE VALUE AS WELL AS IN QUANTITY ALONG WITH LEDGER COPY OF ALL PURCHA SES AND SALES IN QUANTITY AS WELL AS IN VALUE. THE LD. AR DREW OUR ATTENTION TO THE CHART PLACED AT PAGE 10 OF THE PAPER BOOK WHEREIN T HE COMPARATIVE DETAILS OF THE STOCK MOVEMENT FOR ASSES SMENT YEARS 2011-12 TO 2015-16 WAS PLACED. IT WAS SUBMITTED TH AT THE CONTENTION OF THE LD. PR. C.I.T. THAT THE ASSESSING OFFICER HAD FAILED TO CONDUCT FULL INVESTIGATION TO DETERMINE T HE CORRECT INCOME OF THE ASSESSEE WAS FACTUALLY INCORRECT. TH E LD. AR PLACED RELIANCE ON A PLETHORA OF CASE LAWS TO SUBSTANTIATE HIS CONTENTION THAT THE ASSUMPTION OF JURISDICTION U/S 263 OF THE ACT WAS NOT PROPER BECAUSE THERE WAS NO LACK OF INQUIRY ON THE PART OF THE ASSESSING OFFICER. IT WAS SUBMITTED THAT MERELY B ECAUSE THE ASSESSMENT ORDER DID NOT REFER TO THE QUERIES RAISE D DURING THE COURSE OF SCRUTINY PROCEEDINGS AND THE RESPONSE THE RETO BY THE ASSESSEE, IT COULD NOT BE INFERRED THAT THERE WAS N O INQUIRY SO AS I.T.A. NO. 2524/DEL/2017 ASSESSMENT YEAR 2012-13 7 TO CONCLUDE THAT THE ASSESSMENT WAS ERRONEOUS AND P REJUDICIAL TO THE INTEREST OF THE REVENUE. IT WAS ALSO SUBMITTED THAT MERELY BECAUSE THERE IS NO ELABORATE DISCUSSION IN THE ASS ESSMENT ORDER, THE ORDER CANNOT BE SAID TO BE ERRONEOUS. THE LD. AR ALSO PLACED ON RECORD A COPY OF ASSESSMENT ORDER DATED 27.12.20 17 PASSED U/S 263 R/W SECTION 143(3) OF THE ACT SUBSEQUENT TO THE REVISIONARY PROCEEDINGS AND IN ACCORDANCE WITH DIRE CTIONS OF THE LD. PR. C.I.T. AND SUBMITTED THAT NO ADDITION HAD B EEN MADE BY THE ASSESSING OFFICER IN THIS ORDER ALSO ON THE ISS UES ON WHICH PROCEEDINGS U/S 263 WERE INITIATED. IT WAS PRAYED THAT THE IMPUGNED ORDER BE SET ASIDE. 7.0 IN RESPONSE, THE LD. C.I.T. DR PLACED RELIANCE ON THE ORDER OF THE LD. PR. C.I.T. AND VEHEMENTLY ARGUED THAT THE I MPUGNED ORDER HAD BEEN PASSED AFTER PROPER APPRECIATION OF THE FA CTS ON RECORD AND IT WAS APPARENT FROM THE ASSESSMENT ORDER THAT THE SAME HAD BEEN PASSED IN A HASTY MANNER WITHOUT MAKING ADEQUA TE INQUIRIES, SPECIALLY ON THE ISSUES ON WHICH THE ASS ESSEES CASE WAS SELECTED FOR SCRUTINY. IT WAS PRAYED THAT THE IMPUGNED ORDER SHOULD BE UPHELD. 8.0 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SETTLED LAW THA T IN ORDER TO I.T.A. NO. 2524/DEL/2017 ASSESSMENT YEAR 2012-13 8 ASSUME JURISDICTION UNDER SECTION 263 OF THE ACT, T HE PRE- REQUISITES ARE THAT THE ORDER PASSED BY THE ASSESSI NG OFFICER SHOULD BE ERRONEOUS AND IT SHOULD BE PREJUDICIAL TO THE INTERESTS OF REVENUE. IN OTHER WORDS THE TWIN CONDITIONS HAVE TO BE SATISFIED, NAMELY, (I) THE ORDER OF THE ASSESSING O FFICER SOUGHT TO BE REVISED SHOULD BE ERRONEOUS AND (II) IT SHOULD B E PREJUDICIAL TO THE INTERESTS OF THE REVENUE . BOTH THE CONDITIONS MUST BE SATISFIED. IN CASE THE ORDER OF THE ASSESSING OFFIC ER IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE INTERESTS OF THE REVE NUE, THE COMMISSIONER WOULD NOT BE COMPETENT TO EXERCISE JUR ISDICTION UNDER SECTION 263. IN A CASE, WHERE TWO VIEWS ARE P OSSIBLE AND THE ASSESSING OFFICER HAS TAKEN A VIEW WITH WHICH T HE COMMISSIONER DOES NOT AGREE, THE SAID ORDER CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE UNLESS THE VIEW TAKEN BY THE ASSESSING OFFICER IS U NSUSTAINABLE IN LAW. A PERUSAL OF THE SHOW CAUSE NOTICE SHOWS THAT IT HAS NOT BEEN STATED IN ANY MANNER AS TO HOW THE LEARNED ASS ESSING OFFICER HAD FAILED TO APPLY HIS MIND, PARTICULARLY WHEN IT HAS NOT BEEN DENIED OR DISPUTED THAT ALL INFORMATION INCLUD ING BOOKS OF ACCOUNTS, CONFIRMATIONS, BANK STATEMENTS ETC. HAVE BEEN FURNISHED IN THE COURSE OF ASSESSMENT PROCEEDINGS. I.T.A. NO. 2524/DEL/2017 ASSESSMENT YEAR 2012-13 9 8.1 THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. VIKAS POLYMERS REPORTED IN 341 ITR 537 HAS HELD AS UNDER: 13. IT IS ALSO TRITE THAT THERE IS A FINE THOUGH S UBTLE DISTINCTION BETWEEN 'LACK OF INQUIRY AND 'INADEQUATE INQUIRY. IT IS ONLY IN CASES OF 'LACK OF INQUIRY' THAT THE COMMISSIONER IS EMPOWERED TO EXERCISE HIS REVISIONA L POWERS BY CALLING FOR AND EXAMINING THE RECORDS OF ANY PROCEEDINGS UNDER THE ACT AND PASSING ORDERS THEREO N. 8.2 IN CIT VS. GABRIEL INDIA LTD. REPORTED IN 203 I TR 108 (BOM), IT WAS EXPRESSLY OBSERVED BY THE HONBLE BOMBAY HIG H COURT AS UNDER:- 'THE COMMISSIONER CANNOT INITIATE PROCEEDINGS WITH A VIEW TO STARTING FISHING AND ROVING ENQUIRIES IN MA TTERS OR ORDERS WHICH ARE ALREADY CONCLUDED. SUCH ACTION WIL L BE AGAINST THE WELL-ACCEPTED POLICY OF LAW THAT THERE MUST BE A POINT OF FINALITY IN ALL LEGAL PROCEEDINGS, THAT STALE ISSUES SHOULD NOT BE REACTIVATED BEYOND A PARTICULA R STAGE AND THAT LAPSE OF TIME MUST INDUCE REPOSE IN AND SET AT REST JUDICIAL AND QUASI-JUDICIAL CONTROVERSI ES AS IT MUST IN OTHER SPHERES OF HUMAN ACTIVITY [SEE PARASH URAM POTTERY WORKS CO. LTD. VS. ITO, (1977) 106 ITR 1 (S C)]. 8.3 IT IS A MATTER OF RECORD THAT IN THE PRESENT CA SE THE AO HAD MADE ENQUIRIES DURING THE ASSESSMENT PROCEEDINGS; T HE ASSESSEE HAD GIVEN DETAILED EXPLANATION AND THE ASSESSING OF FICER ON BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE HAD PASSED THE ASSESSMENT ORDER. SUCH DECISION OF THE ASSESSING OF FICER CANNOT BE HELD TO BE 'ERRONEOUS'. THE HONBLE DELHI HIGH C OURT IN THE I.T.A. NO. 2524/DEL/2017 ASSESSMENT YEAR 2012-13 10 CASE OF CIT VS. SUNBEAM AUTO LTD. REPORTED IN 332 I TR 167 HAS HELD AS UNDER: THEREFORE, ONE HAS TO SEE FROM THE RECORD AS TO WH ETHER THERE WAS APPLICATION OF MIND BEFORE ALLOWING THE EXPENDITURE IN QUESTION AS REVENUE EXPENDITURE. LEA RNED COUNSEL FOR THE ASSESSEE IS RIGHT IN HIS SUBMISSION THAT ONE HAS TO KEEP IN MIND THE DISTINCTION BETWEEN 'LA CK OF INQUIRY' AND 'INADEQUATE INQUIRY'. IF THERE WAS ANY INQUIRY, EVEN INADEQUATE THAT WOULD NOT BY ITSELF G IVE OCCASION TO THE COMMISSIONER TO PASS ORDERS UNDER SECTION 263 OF THE ACT, MERELY BECAUSE HE HAS DIFFE RENT OPINION IN THE MATTER. IT IS ONLY IN CASES OF 'LACK OF INQUIRY' THAT SUCH A COURSE OF ACTION WOULD BE OPEN . 8.4 THE HONBLE MADRAS HIGH COURT HELD IN THE CASE OF CIT VS. VALLIAMMAL (D.) (1998) 230 ITR 695 (MAD) THAT ASSES SMENT ORDER MADE AFTER CONSIDERING ALL FACT AND INFORMATION CAN NOT BE REVISED. WHERE THE ASSESSEE HAD FURNISHED THE REQUISITE INFO RMATION AND THE ASSESSING OFFICER HAD COMPLETED THE ASSESSMENT AFTER CONSIDERING AND THE FACTS BUT THE COMMISSIONER REVI SED THE ASSESSMENT ORDER ON THE GROUND THAT THE ASSESSING O FFICER HAD NOT MADE PROPER ENQUIRIES, THE TRIBUNAL WAS HELD JU STIFIED IN REVERSING THE ORDER OF THE COMMISSIONER AND RESTORI NG THAT OF THE ASSESSING OFFICER. COMMISSIONER CANNOT RE-EXAMINE A CCOUNTS AND SUBSTITUTE HIS JUDGMENT FOR THAT OF THE ASSESSING O FFICER. AN ORDER CANNOT BE TERMED AS ERRONEOUS UNLESS IT IS NOT IN A CCORDANCE WITH I.T.A. NO. 2524/DEL/2017 ASSESSMENT YEAR 2012-13 11 LAW. IF ASSESSING OFFICER MAKES ASSESSMENT IN ACCOR DANCE WITH LAW, THE SAME CANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE, ACCORDING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY. THIS SECTION DO ES NOT VISUALIZE A CASE OF SUBSTITUTION OF THE JUDGMENT OF THE COMMISSIONER FOR THAT OF THE ASSESSING OFFICER UNLE SS THE DECISION IS HELD TO BE ERRONEOUS. CASES MAY BE VISUALIZED WH ERE THE ASSESSING OFFICER EXAMINES THE ACCOUNTS, MAKES ENQU IRES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINES THE INCOME EITHER BY MAKING THE ACCOUNTS OR BY MAKING SOME ESTIMATES HIMSELF. THE COMMISSIONER, ON PERUSAL OF THE RECORDS, MAY BE OF THE OPINION THAT THE ESTIMAT E MADE BY THE OFFICER WAS ON LOWER SIDE AND, LEFT TO THE COMMISSI ONER, HE WOULD HAVE ESTIMATED THE INCOME AT A HIGHER FIGURE THAT T HE ONE DETERMINED BY THE ASSESSING OFFICER. THAT WOULD NOT VEST THE COMMISSIONER WITH THE POWER TO RE-EXAMINE THE ACCOU NTS AND DETERMINE THE INCOME HIMSELF AT A HIGHER FIGURE. FU RTHER IN THE CASE OF INFOSYS TECHNOLOGIES VS. JCIT (ASST) (2006) 286 ITR (AT) 211, THE BANGALORE BENCH OF THE ITAT HELD THAT WHER E THE A.O AS EXAMINED AND CONSIDERED AND ISSUE, THOUGH NOT MENTI ONED IN THE ASSESSMENT ORDER, IT CANNOT BE SAID THAT THE ORDER PASSED WAS I.T.A. NO. 2524/DEL/2017 ASSESSMENT YEAR 2012-13 12 ERRONEOUS. IN CIT V GABRIEL INDIA LTD. (1993) 203 ITR 108 (BOM), THE HONBLE BOMBAY HIGH COURT HELD THAT ONCE THE AS SESSING OFFICER HAS EXERCISED THE QUASI-JUDICIAL POWER VEST ED IN HIM IN ACCORDANCE WITH LAW AND ARRIVED AT A CONCLUSION, SU CH A CONCLUSION CANNOT BE CONSIDERED ERRONEOUS SIMPLY BE CAUSE THE COMMISSIONER DOES NOT FEEL SATISFIED WITH THE CONCL USION. IT MAY BE THAT IN THE OPINION OF THE COMMISSIONER, THE ORD ER IN QUESTION IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. BUT THAT BY ITSELF WOULD NOT BE ENOUGH TO VEST THE COMMISSIONER WITH T HE POWERS OF SUO MOTU REVISION BECAUSE THE FIRST REQUIREMENT, NAMELY, TH AT THE ORDER IS ERRONEOUS, IS LACKING. 8.5 IN THE INSTANT APPEAL BEFORE US, IT IS NOT THE DEPARTMENTS CASE THAT NO INFORMATION REGARDING THE ISSUES RAISE D BY THE LD. PR. CIT WAS CALLED FOR BY THE AO. IT IS UNDISPUTED THAT RELEVANT DETAILS AND DOCUMENTS WERE FURNISHED BY THE ASSESSE E DURING THE ASSESSMENT PROCEEDINGS AND FORMS PART OF THE RECORD . HENCE, NO INFERENCE CAN BE DRAWN THAT THE AO HAS NOT EXAMINED THE ISSUE ALTHOUGH HE HAS NOT EXPRESSED IT IN AS MANY TERMS A S MAY BE CONSIDERED APPROPRIATE BY HIS SUPERIOR AUTHORITY AN D EVEN IF THE SAME IS FOUND TO BE INADEQUATE THE SAME CANNOT BE A GROUND FOR REVISION. IT IS CLEAR THAT AN ORDER CANNOT BE TERME D AS ERRONEOUS I.T.A. NO. 2524/DEL/2017 ASSESSMENT YEAR 2012-13 13 UNLESS IT IS NOT IN ACCORDANCE WITH LAW. THIS SECTI ON DOES NOT VISUALIZE A CASE OF SUBSTITUTION OF THE JUDGMENT OF THE COMMISSIONER FOR THAT OF THE AO. THEREFORE, IT CANN OT BE HELD THAT IN THE INSTANT CASE THE AOS ORDER WAS ERRONEO US AND PREJUDICIAL TO THE INTEREST OF THE REVENUE WITHIN T HE TERMS OF SECTION 263 OF THE ACT. ONCE THE ISSUES WERE CONSI DERED AND EXAMINED BY THE ASSESSING OFFICER, THE LD. PR. COMM ISSIONER CANNOT SET ASIDE THE ORDER WITHOUT RECORDING A CONT RARY FINDING. THIS WILL BE CONTRARY TO SECTION 263 OF THE ACT. 8.6 THEREFORE, ON FACTS AND IN LIGHT OF THE ABOVE M ENTIONED JUDICIAL PRECEDENTS, IT IS OUR CONSIDERED OPINION T HAT IN THE INSTANT CASE, THE ASSESSING OFFICERS ORDER CANNOT BE HELD TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE WITHIN THE MEANING OF SECTION 263. THEREFORE, IN VIEW OF THE FACTUAL MATRIX OF THE CASE AND RESPECTFULLY FOLLOWING THE R ATIO OF THE VARIOUS JUDICIAL PRONOUNCEMENTS AS DISCUSSED ABOVE, WE HOLD THAT THE IMPUGNED ACTION OF THE LD. PR. C.I.T. U/S 263 OF THE ACT WAS PATENTLY ILLEGAL AND IS LIABLE TO BE QUASHED. THE PROCEEDINGS U/S 263 OF THE ACT ARE ACCORDINGLY QUASHED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. I.T.A. NO. 2524/DEL/2017 ASSESSMENT YEAR 2012-13 14 ORDER PRONOUNCED IN THE OPEN COURT ON 19.09.2018. SD/- SD/- (PRASHANT MAHARISHI) (SUDHANSHU SRIVAST AVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 19 TH SEPTEMBER, 2018 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR I.T.A. NO. 2524/DEL/2017 ASSESSMENT YEAR 2012-13 15 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER