CASE LAW DETAILS
Decided by: ITAT, Agra Bench, Agra, In The Case of : Rajesh Goyal & Sons v. CIT , Appeal No. : ITA No. 204/Agr./2008, Decided on: December 19, 2008
The revisional power under section 263 cannot be exercised in respect of a matter which falls within the power to assess escaped income under section 147; the Commissioner may under this section pass such an order as the circumstances of the case justify, including an order enhancing or modifying the assessment or canceling the assessment and directing a fresh assessment, or any other order to the detriment of the assessee; but, a mistake or omission in the assessment order would not justify the setting aside of the whole order.
8. Having carefully examined the entire evidences available on the record in the light of the oral submissions of the parties, with reference to the provisions of law and the precedents relied before us and after giving anxious thought, in the light of the plain words used in section 263 of the Act and in the light of the ratio of the decision of the Hon’ble Supreme Court rendered in the case of Malabar Industries Co. Ltd. v. CIT (2000 243 ITR 83 (SC) and other relevant cases we are of the considered opinion that this is not a fit case for revising the assessment order. The reasons for our above conclusion are that the twin conditions, viz., the assessment order should be erroneous in so far as it is prejudicial to the interests of revenue do not co-exist in this case. The AO had reopened the assessment u/s 148 of the Act only to verify the gift received by the assessee from the donor Smt. Manisha Goyal of Rs. 2,00,000/- The assessee had filed return of income for the year under consideration and had disclosed this gift having been received during the relevant year, alongwith entire requisite details. During the assessment proceedings, the Id. AO examined all the relevant evidences produced before him, either alongwith the return or during the assessment proceedings, and has accepted the gift as genuine. The AO called for the entire details in the shape of copy of bank account, gift deed and return filed by the donor. The assessee filed a copy of bank account of the donor for the relevant period, a copy of donor’s return of income alongwith her confirmation, in which she has confirmed the factum of gift. Only after examination of all these documents, the AO has accepted the gift as genuine.
9. The revisional power conferred on the Commissioner under this section is of wide amplitude. It enables the Commissioner to call for and examine the record of any proceeding under the Act. the revisional power under section 263 cannot be exercised in respect of a matter which falls within the power to assess escaped income under section 147 of the Act. the revisional power is a quasi-judicial one hedged with limitation and has to be exercised subject to the same and within its scope and ambit. So far as calling for the records and examining them is concerned undoubtedly, it is an administrative act but on examination `to consider’ or in other words, to form an opinion that particular order is erroneous is so far as it is prejudicial to the interests of the Revenue, is a quasi-judicial act because on this consideration or opinion the whole machinery of re-examination and reconsideration of an order of assessment, which has already been concluded and controversy which has been set at rest, is again set in motion. It is an important decision and the same cannot be based upon the whims and the fancies or the caprice of the revising authority. There must be material (s) available from the records called for by the Commissioner. The Commissioner must give reasons for passing an order. He is bound by the decisions of the Hon’ble Supreme Court and jurisdictional High Court. The Commissioner must come to a firm conclusion on the point that error in the order has resulted in prejudice to the interests of the Revenue. He has to apply his mind for coming to a firm conclusion which should be based on proper material and he must mention that material in his order. The Commissioner may under this section pass such an order as the circumstances of the cases justify, including an order enhancing or modifying the assessment or canceling the assessment and directing a fresh assessment, or any other order to the detriment of the assessee. But a mistake or omission in the assessment order would not justify the setting aside of the whole order.