M/S. ABHISHAN ENTERPRISES, Indore V. THE CIT-1, Indore

ITA 337/IND/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5792 (ITAT-INDORE)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-01-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 20-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV VARSHANE
• Assessee Lawyers: ARPIT GAUR CAS
• Keywords: Assessment record
• Section: 142(1); 194C; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI B.C.MEENA, ACCOUNTANT MEMBER I.T.A.NO.337/IND/2015 A.Y. : 2010-11. M/S.ABHISHAN ENTERPRISES, CIT-I, INDORE. VS. INDORE. APPELLANT RESPONDENT PAN NO. AANFA0766G APPELLANTS BY : SHRI ANIL KAMAL GARG AND SHRI ARPIT GAUR, CAS RESPONDENT BY : SHRI R AJEEV VARSHANE, CIT DR . O R D E R PER D.T.GARASIA, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX-I, INDORE, DATED 23.0 3.2015 FOR THE ASSESSMENT YEAR 2010-11. DATE OF HEARING : 06 .01.2016 DATE OF PRONOUNCEMENT : 09 .0 2 .2016 ABHISHAN ENTERPRISES, INDORE, VS. CIT-I, INDORE - I .T.A.NO.337/IND/2015 A.Y. 2010-11 2 2 2. THE SHORT FACTS OF THE CASE ARE AS UNDER. 3. ON PERUSAL OF THE CASE RECORD IT IS REVEALED THAT T HE ASSESSEE HAD CLAIMED TDS OF RS. 13,18,714/- FROM CO NTRACTUAL RECEIPTS OF RS. 6,15,83,252/-, (TOTAL RECEIPT RS. 6 ,31,68,825/- (-) RS. 15,85,573/- SERVICE TAX PAID) AS PER ANNEXU RE A-201. ON PERUSAL OF PROFIT AND LOSS ACCOUNT, THE ASSESSEE HAD OFFERED ONLY RS. 5,81,89,973/- AS INCOME UNDER THE HEAD CONSTRUCTION RECEIPTS. THE COMMISSIONER OF THE INCO ME-TAX WAS OF THE VIEW THAT THE ASSESSEE WAS REQUIRED TO O FFER TOTAL RECEIPTS TO THE EXTENT OF RS. 6,15,83,315/- INSTEAD OF RS. 5,81,89,937/-. HENCE, THE DIFFERENCE OF RS. 33,93,3 15/- SHOULD BE ADDED BACK TO THE TOTAL INCOME. THE COMMI SSIONER WAS OF THE VIEW THAT THE ORDER OF AO IS ERRONEOUS A ND PREJUDICIAL TO THE INTERESTS OF THE REVENUE AND HEN CE SHOW CAUSE NOTICE WAS GIVEN. IN REPLY TO SHOW CAUSE NOTI CE, THE ASSESSEE CONTENDED THAT CASE OF THE ASSESSEE WAS S ELECTED FOR SCRUTINY AND NOTICE U/S 142(1) WAS ISSUED TO THE AS SESSEE AND THE ASSESSEE WAS SPECIFICALLY ASKED TO RECONCILE CO NTRACT RECEIPTS SHOWN IN ITS BOOKS OF ACCOUNT VIS--VIS TH AT WHEN IN ABHISHAN ENTERPRISES, INDORE, VS. CIT-I, INDORE - I .T.A.NO.337/IND/2015 A.Y. 2010-11 3 3 26AS. THE ASSESSEE HAS RECONCILED THE CONTRACT RECE IPT SHOWN IN THE BOOKS OF ACCOUNT VIS--VIS SHOWN IN 26AS BY LETTER DATED 5.11.2012 FURNISHED TWO SEPARATE STATEMENTS MARKED AS ANNEXURE A-2.01 AND A-2.02 GIVING THE NECESSARY DETAILS OF THE DIFFERENCE AND RECONCILIATION THEREOF. COPIES O F THESE TWO RECONCILED STATEMENTS ARE SUBMITTED BEFORE US. AFTE R APPLYING THE MIND, VARIOUS DETAILS AND EVIDENCE FURNISHED BE FORE THE AO AND AFTER APPLYING HIS MIND, PASSED THE IMPUGNED ASSESSMENT ORDER AND THE AO HAS MADE THE ADDITION O F RS. 86,438/-. THEREFORE, THE ORDER PASSED BY THE ASSESS ING OFFICER IS NOT ERRONEOUS AND IF THE AO AFTER APPLYING HIS M IND ON THE ISSUE AND MATERIAL ON RECORD, TOOK ONE VIEW, IN CON TRAST TO THE VIEW, SUBSEQUENTLY TAKEN BY THE COMMISSIONER EXAMIN ING THE ASSESSMENT RECORDS. AFTER CONSIDERING THE REPLY OF THE ASSESSEE, THE LD. CIT WAS OF THE VIEW THAT THE ASSE SSEES EXPLANATION IS NOT SATISFACTORY. THEREFORE, THE LD. CIT SET-ASIDE THE ASSESSMENT ORDER TO THE FILE OF AO TO DECIDE TH E SAME AFRESH ON THE ISSUES MENTIONED ABOVE BY MAKING NECE SSARY INQUIRIES AND INVESTIGATION AND AFTER ASCERTAINING ALL THE FACTS. ABHISHAN ENTERPRISES, INDORE, VS. CIT-I, INDORE - I .T.A.NO.337/IND/2015 A.Y. 2010-11 4 4 THE AO SHOULD TAKE APPROPRIATE DECISION AS PER LAW. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF THE LD. COMMISSIONER. 4. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT TH E AO HAS PASSED THE ORDER U/S 143(3), WHICH IS NEITHE R ERRONEOUS NOR PREJUDICIAL TO THE INTERESTS OF REVEN UE. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS, THE AO HAS ISSUED NOTICE DATED 11.10.2012, WHICH IS ON PAPER BOOK PAGE NO.44 REQUIRED THE ASSESSEE TO FURNISH THE RECONCILIATION OF CONTR ACT RECEIPT VIS--VIS SHOWN IN 26AS. THE AO VIDE QUESTION NO.3 HAD CATEGORICALLY REQUIRED THE ASSESSEE TO FURNISH APPL ICATION REGARDING DIFFERENCE OF CONTRACT RECEIPT AS PER TDS CERTIFICATE AND AS PER PROFIT AND LOSS ACCOUNT OF THE ASSESSEE. IN REPLY TO THE NOTICE THE ASSESSEE FURNISHED TWO SEPARATE STAT EMENTS. RECONCILIATION OF CONTRACT RECEIPTS SHOWN IN THE BO OKS OF ACCOUNT VIS--VIS APPEARING IN 26AS, WHICH IS AT PA GE NOS. 42 & 43 OF THE PAPER BOOK. ON PERUSAL OF THESE STATEME NTS, IT IS APPRECIATED THAT A MINIMUM DIFFERENCE IS OF RS. 86, 438/- AND ABHISHAN ENTERPRISES, INDORE, VS. CIT-I, INDORE - I .T.A.NO.337/IND/2015 A.Y. 2010-11 5 5 THERE IS NO DISCREPANCY IN THE CONTRACT RECEIPT AS SHOWN BY THE ASSESSEE FIRM IN THE BOOKS OF ACCOUNT AND APPEARING IN 26AS. THE DIFFERENCE WAS OF RS. 86,438/-. THE AO HAS MADE ADDITION ON THIS ACCOUNT. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE AO AFTER APPLYING HIS MIND HAS CALLED FOR NECESSARY INFORMATION AND DETAILED EXPLANATION OF THE ASSESSE E. THE ASSESSEE FURNISHED ALL THE REQUIRED DETAILS AND DOC UMENTS ON THE SUBJECT BEFORE THE AO AS MANY AS ON TWO OCCASIO NS. THEREFORE, IT IS WELL SETTLED LAW THAT THE AO FORME D A PARTICULAR OPINION ON ONE ISSUE AFTER MAKING DETAILED INQUIRY AND AFTER APPLYING HIS MIND AND SUCH OPINION OF THE AO CANNOT BE REVIEWED BY HIGHER AUTHORITIES UNDER THE GARB OF RE VISIONARY POWER U/S 263 OF THE INCOME-TAX ACT, 1961. THE LD. AUTHORIZED REPRESENTATIVE ALSO SUBMITTED THAT THE AO HAS MADE THE ADDITION OF RS. 86,438/- AND THE MATTER IS PENDING BEFORE THE CIT(A). THEREFORE, WHEN THE ORDER PASSED BY THE ASS ESSING OFFICER HAD BEEN SUBJECT MATTER OF ANY APPEAL, THEN THE POWERS OF THE COMMISSIONER UNDER THIS SUB-SECTION SHALL EX TEND TO SUCH MATTERS AS HAS NOT BEEN CONSIDERED AND DECIDED IN SUCH ABHISHAN ENTERPRISES, INDORE, VS. CIT-I, INDORE - I .T.A.NO.337/IND/2015 A.Y. 2010-11 6 6 APPEAL. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE LD. CIT HAS ALL THE POWER TO VERIFY THE DIFFERENCE ON ACCOUNT OF DIFFERENCE SHOWN IN GROSS RECEIPT BY THE ASSESSEE F IRM IN ITS AUDITED BOOKS OF ACCOUNT VIS--VIS SHOWN IN 26AS. T HE COMMISSIONER HAS ISSUED SHOW CAUSE NOTICE ONLY ON T HIS COUNT. THEREFORE, UNDER THE PROVISIONS OF SECTION 2 51 OF THE INCOME-TAX ACT, 1961, THE POWERS OF CIT(A) ARE QUIT E WIDE AND CO-TERMINUS WITH THE POWERS OF AN AO AND, THEREFORE , EVEN DURING THE COURSE OF ADJUDICATION OF THE APPEAL, TH E CIT(A) MAY ENHANCE THE INCOME OF THE ASSESSEE BY MAKING ANY FU RTHER ADDITION ON THIS COUNT. THEREFORE, IN VIEW OF THIS LEGAL POSITION, THERE IS NO JUSTIFICATION FOR CIT TO ASSUME THE REV ISIONARY POWER U/S 263 OF THE INCOME-TAX ACT, 1961. 5. THE LD. AUTHORIZED REPRESENTATIVE FURTHER SUBMITTED THAT THE RECONCILIATION STATEMENTS WERE SUBMITTED BEFORE THE AO AND LD. CIT. THE ASSESSEE FIRM SINCE ITS INCEPTI ON, HAS CONSISTENTLY BEEN FOLLOWING MERCANTILE SYSTEM OF AC COUNTING. UNDER THIS SYSTEM, ANY CONTRACT RECEIPT IS RECOGNIZ ED AS REVENUE AS AND WHEN ANY CORRESPONDING WORK WAS EXEC UTED BY ABHISHAN ENTERPRISES, INDORE, VS. CIT-I, INDORE - I .T.A.NO.337/IND/2015 A.Y. 2010-11 7 7 THE ASSESSEE FIRM. SOMETIMES THE ASSESSEE RECEIVES ADVANCE FOR MOBILIZING HIS CIVIL CONSTRUCTION WORK ALSO. AS PER SECTION 194C, WHICH REQUIRES A PAYER OF ANY CONTRACTED SUM TO DEDUCT THE TAX AT SOURCE AT PRESCRIBED RATE ON WHICH ON TH E SUM AT THE TIME WHEN THE PAYMENT IS MADE OR THE CREDIT IS GIVEN TO THE ACCOUNT OF THE CONTRACTOR, WHICHEVER EVENT OCCU RS FIRST. ACCORDING TO THE ASSESSEE, THE ASSESSEE HAS RECEIVE D THE ADVANCE AS PER SECTION 194C AND SUCH DEDUCTION IS D EPOSITED TO THE CREDIT OF CENTRAL GOVERNMENT TREASURY AND GE T REFLECTED IN 26AS STATEMENT. HOWEVER, THE ASSESSEE IS OBSERVI NG MERCANTILE SYSTEM OF ACCOUNTING, TREATS SUCH ADVANC E AS SUCH TILL ANY WORK IS EXECUTED AGAINST SUCH ADVANCE AND RUNNING OR FINAL BILL IS RAISED. IN OTHER WORDS, SUCH ADVANCE IS RECOGNIZED AS REVENUE ONLY IN WHICH THE SERVICES ARE RENDERED BY THE ASSESSEE AND DUE TO THE REASON, THE AMOUNT OF GROSS RECEIPTS AS PER SECTION 26AS STATEMENT IS BOUND TO EXCEED TH E AMOUNT OF REVENUE SHOWN BY THE ASSESSEE IN ITS BOOKS OF AC COUNT, IN THE YEAR IN WHICH SUCH ADVANCE AMOUNT IS TAKEN AND REMAINED UNADJUSTED. ABHISHAN ENTERPRISES, INDORE, VS. CIT-I, INDORE - I .T.A.NO.337/IND/2015 A.Y. 2010-11 8 8 6. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED BEFORE US THAT IN RESPECT OF REMAINING AMOUNT, WHICH THE ASSESSEE HAS RECEIVE D AS ADVANCE WAS ACCOUNTED IN THE SUBSEQUENT YEAR AND TH E ASSESSEE HAS PRODUCED THE COPY OF LEDGER ACCOUNT OF M/S. SAHARA PRIME CITY LIMITED, M/S.RAJSHREE PLASTIWOOD PRIVATE LIMITED. COPY OF LEDGER ACCOUNT OF CONTRACT RECEIPT AND COPY OF SUMMARY OF CONTRACT RECEIPT AND COPY OF ACKNOWLEDGE MENT OF RETURN, WHEREIN THE ASSESSEE HAS SHOWN THE SAME AS HIS INCOME AS THE ASSESSEE HAS EXECUTED THE CONTRACT AN D THE DIFFERENCE OF RS. 13,40,437/- IN RESPECT OF M/S.SAH ARA PRIME CITY LIMITED, DIFFERENCE OF RS. 75,000/- IN RESPECT OF M/S. RAJASTHAN PRODUCTION PRIVATE LIMITED. THE DIFFERENC E OF RS. 7,83,900/- IN RESPECT OF CONTRACT WORK OF M/S. MAHA LAY ENGINEERING COMPONENTS INDIA PRIVATE LIMITED WAS S HOWN AND THE DISCREPANCY OF RS. 86,438/-, WHICH WAS BECO ME A SUBJECT MATTER OF ADDITION BEFORE ORIGINAL ASSESSME NT ORDER. THEREFORE, THE LD. AUTHORIZED REPRESENTATIVE SUBMIT TED THAT THERE IS NO REASON FOR COMMISSIONER TO SET-ASIDE TH IS ABHISHAN ENTERPRISES, INDORE, VS. CIT-I, INDORE - I .T.A.NO.337/IND/2015 A.Y. 2010-11 9 9 ASSESSMENT ORDER TO THE FILE OF LD. CIT AND APPEAL MAY BE ALLOWED IN FULL. 7. ON THE OTHER HAND, THE LD. DR SUBMITTED BEFORE US THAT THE ASSESSEE AHS CONTRACT RECEIPT OF RS. 6,15, 83,252/-, WHILE IN HIS CONTRACT RECEIPT, HE HAS SHOWN THE CON TRACT RECEIPT OF RS. 5,81,89,973/-. THEREFORE, IN 26AS T DS RECEIPT, THERE WAS A DIFFERENCE OF RS 33,93,315/- AND COMMIS SIONER HAS DIRECTED TO VERIFY THIS DIFFERENCE TO AO. THE L D. DR FURTHER SUBMITTED THAT THE AO HAS VERIFIED THIS DIFFERENCE IN HIS ASSESSMENT ORDER, BUT THE AO HAS NOT MADE THE PROPE R INQUIRY. THEREFORE, WHEN THE AO DID NOT MAKE PROPER INQUIRY AND WHEN THE AO FAILED TO ENQUIRY, THE LD. COMMISSI ONER U/S 263 HAS ALL THE POWER TO RESTORE THE MATTER BACK TO THE FILE OF AO. THE LD. DR RELIED UPON THE FOLLOWING DECISIONS :- (I) 67 ITR 84 ( S.C.) (II) 88 ITR 323 (III) 99 ITR 375 (IV) 201 ITR 461 (V) 327 ITR 467 ABHISHAN ENTERPRISES, INDORE, VS. CIT-I, INDORE - I .T.A.NO.337/IND/2015 A.Y. 2010-11 10 10 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSEE HAS RECEIVED TOTAL RECEIP T OF RS. 6,15,83,252/-. THE CONTRACT RECEIPT WAS SHOWN AT RS . 6,15,83,252/-, IN 26AS. THE ASSESSEE HAS OFFERED ON LY RS. 5,81,89,973/- UNDER THE HEAD CONSTRUCTION RECEIPT . THE AO WHILE PASSING THE ASSESSMENT ORDER HAS GIVEN SHOW C AUSE NOTICE TO THE ASSESSEE AND RECONCILIATION STATEMENT WAS FILED ON 5.11.2012 AND ACCORDINGLY, THE ADDITION OF RS. 8 6,438/- WAS MADE TO THE TOTAL INCOME OF THE ASSESSEE. THE A O HAS VERIFIED THE RECONCILIATION STATEMENT AND HE WAS OF THE VIEW THAT THE ONLY ADDITION TO BE MADE IS RS. 86,438/-. THE COMMISSIONER OF INCOME-TAX AFTER HEARING THE ASSESS EE WAS OF THE VIEW THAT THIS REQUIRES VERIFICATION AT THE END OF THE AO ON THE GROUND THAT THE ASSESSEE HAS SHOWN LESS RECEIPT OF RS. 33,93,315/-. THE ASSESSEE HAS CONTENDED BEFORE US T HAT AS PER SECTION 194C, THE ASSESSEE FIRM IS ENGAGED IN B USINESS OF CARRYING OUT CIVIL CONSTRUCTION WORK. THE ASSESSEE IS MAINTAINING REGULAR BOOKS OF ACCOUNT IN ITS ORDINAR Y COURSE OF ABHISHAN ENTERPRISES, INDORE, VS. CIT-I, INDORE - I .T.A.NO.337/IND/2015 A.Y. 2010-11 11 11 BUSINESS. THE ASSESSEE FIRM CONSISTENTLY FOLLOWING THE MERCANTILE SYSTEM OF ACCOUNTING. UNDER THIS SYSTEM, ANY CONTRACT RECEIPT IS RECOGNIZED AS REVENUE AS AND WH EN ANY CORRESPONDING WORK IS EXECUTED BY THE ASSESSEE FIRM . MANY A TIMES, THE PRINCIPAL WHO AWARDS CONTRACT TO THE ASS ESSEE FIRM FOR EXECUTION OF ANY CIVIL CONSTRUCTION WORK, PROVI DES ADVANCES TO THE ASSESSEE FOR MOBILIZING ITS RESOURCES. AS PE R SECTION 194C, THE PAYER OF ANY CONTRACTED SUM DEDUCT THE TA X AT SOURCE AT PRESCRIBED RATE ON THE SUM AT THE TIME WH EN THE PAYMENT IS MADE OR THE CREDIT IS GIVEN TO THE ACCOU NT OF THE CONTRACTOR, WHICHEVER EVENT OCCURS FIRST. IT IS THE CASE OF THE ASSESSEE THAT IN THIS CASE THE ASSESSEE HAS RECEIVE D ADVANCE OF RS. 33,93,315/- FROM THREE PARTIES - RS. 13,40,437/ - IN RESPECT OF M/S.SAHARA PRIME CITY LIMITED, DIFFERENC E OF RS. 75,000/- IN RESPECT OF M/S. RAJASTHAN PRODUCTION PR IVATE LIMITED, THE DIFFERENCE OF RS. 7,83,900/- IN RESPEC T OF CONTRACT WORK OF M/S. MAHALAY ENGINEERING COMPONENTS INDIA P RIVATE LIMITED AND RS. 86,438/- IS ADDED IN THE ASSESSME NT ORDER. AS PER THE ASSESSEE, THIS DIFFERENCE HAS BEEN EXPLA INED TO THE ABHISHAN ENTERPRISES, INDORE, VS. CIT-I, INDORE - I .T.A.NO.337/IND/2015 A.Y. 2010-11 12 12 AO. THE AO WAS SATISFIED AND HE HAS MADE A DETAILED INQUIRY AND HE HAS TAKEN ONE OF THE POSSIBLE VIEWS. WE FIND THAT IN THIS CASE, DURING THE COURSE OF HEARING, LD. AUTHOR IZED REPRESENTATIVE HAS ALSO SUBMITTED THAT THIS AMOUNT IS OFFERED FOR TAXATION IN FINANCIAL YEAR 2010-11 IN HIS RETUR N OF INCOME. THEREFORE, WHEN THIS AMOUNT IS ALREADY OFFERED AND THE DIFFERENCE HAS BEEN EXPLAINED TO THE AO, THERE CANN OT BE ANY SUBJECT MATTER OF S.263 OF THE ACT. WE ARE OF THE VIEW THAT THE AO HAS TAKEN ONE OF THE POSSIBLE VIEWS AND WHEN THE AO HAS TAKEN ONE OF THE POSSIBLE VIEWS, THE LD. COMMISSION ER HAD NO POWER U/S 263 TO REVISE THIS ORDER. WE ALSO FIND TH AT THE AO HAS MADE THE ADDITION OF RS 86,438/- AND THAT ADDI TION IS CHALLENGED BEFORE THE CIT(A) AND THE CIT(A) HAD CO- TERMINUS POWERS WITH THE AO AND THE LD. CIT(A) CAN ALSO VERY WELL LOOK INTO IT. THEREFORE, FOR THE SAME AMOUNT, THERE CANN OT BE REVISION U/S 263 OF THE ACT. WE FIND THAT SIMILAR I SSUE HAD COME UP BEFORE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. VIKAS POLYMERS, (2012) 341 ITR 0537 (DEL), WHEREIN IT IS HELD THAT POWER OF SUO MOTU REVISION EXERCISABLE BY THE CIT IS ABHISHAN ENTERPRISES, INDORE, VS. CIT-I, INDORE - I .T.A.NO.337/IND/2015 A.Y. 2010-11 13 13 UNDOUBTEDLY SUPERVISORY IN NATURE. THE OPENING WORD S OF SECTION 263 EMPOWERS THE CIT TO CALL FOR AND EXAMIN E THE RECORD OF ANY PROCEEDINGS UNDER THE ACT. A BARE RE ADING OF SECTION 263 ALSO MAKES IT CLEAR THAT THE CIT HAS TO BE SATISFIED OF TWIN CONDITIONS, NAMELY, (I) THE ORDER OF THE AO SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THEM IS ABSENT AND IF THE OR DER OF THE ITO IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE INTE RESTS OF THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IT IS PREJUDI CIAL TO THE REVENUE, RECOURSE CANNOT BE HAD TO SECTION 263(1). RESPECTFULLY FOLLOWING THE SAME, WE ARE OF THE VIEW THAT IN THE INSTANT CASE, CITS REVISIONAL POWER IS UNCALLED FO R AND UNJUSTIFIED. WE FIND THAT IT IS IN THE NATURE OF RE VIEWING THE FISHING INQUIRY. THE LD. CIT PROCEEDED ON THE ASSUM PTION THAT NO SUCH INFORMATION WAS FURNISHED TO HIM AT THE TIM E OF ASSESSMENT ORDER. THE LD. COMMISSIONER HAS MENTIONE D THAT THE AO HAS NOT EXAMINED THE PROFIT AND LOSS ACCOUNT ASSUMING SO, THIS MADE THE ORDER ERRONEOUS, BUT IT IS NOT PREJUDICIAL TO THE INTERESTS OF REVENUE. WE ARE OF THE VIEW THAT ABHISHAN ENTERPRISES, INDORE, VS. CIT-I, INDORE - I .T.A.NO.337/IND/2015 A.Y. 2010-11 14 14 IN THE INSTANT CASE, THE AO HAS VERIFIED THE RECONC ILIATION OF STATEMENTS AND IT IS MENTIONED IN PARAGRAPH 4 OF TH E ASSESSMENT ORDER. THEREFORE, THE AO HAS TAKEN ONE O F THE POSSIBLE VIEWS. THEREFORE, WE ALLOW THE APPEAL OF T HE ASSESSEE AND WE HOLD THAT THE AO HAS APPLIED HIS MIND. THERE FORE, THE IMPUGNED ASSESSMENT ORDER CANNOT BE LEVELED AS ERRO NEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE UND ER THE AMBIT OF PROVISIONS OF SECTION 263 OF THE INCOME-TAX ACT, 1961. THE ASSESSEES CASE IS SQUARELY COVERED BY THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS. CIT, (2000) 243 ITR 83 ( S. C. ). 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 9 TH FEBRUARY, 2016. SD/- (B.C.MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 9 TH FEBRUARY, 2016. ABHISHAN ENTERPRISES, INDORE, VS. CIT-I, INDORE - I .T.A.NO.337/IND/2015 A.Y. 2010-11 15 15 CPU*20.1