The Commissioner Of Income Tax – 24, Mumbai v. M/S.convergence

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.75 OF 2011 The Commissioner of Income Tax – 24, Mumbai..Appellant. Versus M/s.Convergence ..Respondent. Mr.Arvind Pinto for the appellant.None for the respondent. CORAM : J.P. Devadhar &M.S. Sanklecha, JJ. DATE : 7[th] January 2013 P.C. : 1.Whether the Income Tax Appellate Tribunal was justified in setting aside the order passed by the Commissioner of Income Tax under Section 263 of the Income Tax Act, 1961 is the question raised in this appeal. 2.In the present case the assessee had not produced its books of account at the time of assessment before the assessing officer and, therefore, the assessing officer on the basis of the material on record estimated the income of the assessee and accordingly passed the assessment order. 3.The Commissioner of Income Tax after invoking jurisdiction under Section 263 of the Income Tax Act, 1961 passed an order setting aside the assessment and directed fresh assessment. 4.On appeal, the Income Tax Appellate Tribunal set aside the order of the Commissioner of Income Tax by recording a finding that without recording the basis on which the assessment made by the assessing officer is on the lower side and, hence, the assessment is erroneous and prejudicial to the interests of the Revenue, it was not open to the Commissioner of Income Tax to invoke jurisdiction under Section 263 of the Income Tax Act, 1961. 5.In our opinion, the decision of the Income Tax Appellate Tribunal is based on finding of facts and no question of law arises out of the order of the Income Tax Appellate Tribunal. 6. In the result, we see no merit in the appeal and the same is hereby dismissed with no order as to costs. (M.S. Sanklecha, J.) (J.P. Devadhar, J.)