The Commissioner Of Income Tax – 9, Mumbai v. M/S.technimont Icb Private Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.6849 OF 2010 The Commissioner of Income Tax – 9, Mumbai..Appellant. Versus M/s.Technimont ICB Private Limited..Respondent. Mr.Suresh Kumar for the appellant.Mr.P.J. Pardiwala with Mr.Atul K. Jasani & Mr.P.C. Tripathi for the respondent. CORAM : J.P. Devadhar &A.R. Joshi, JJ. DATE : 1[st] December 2011 P.C. : 1.Whether the Income Tax Appellate Tribunal was justified in quashing the order passed under Section 263 of the Income Tax Act, 1961 (‘Act’ for short) is the question raised in this appeal. 2.In the present case, the Commissioner of Income Tax (‘CIT’ for short) has restored the issue to the file of the assessing officer relating to four issues allowed by the assessing officer, by merely recording that a detailed verification is required to be made. The CIT can invoke jurisdiction under Section 263 of the Act only if he comes to the conclusion that the assessment order passed under Section 143(3) of the Act was erroneous and prejudicial to the interest of the Revenue. In the present case, the order passed under Section 263 of the Act does neither directly nor indirectly indicate that the assessment order was erroneous and prejudicial to the interests of the Revenue. Moreover, in the present case the office note annexed to the assessment order specifically records that the case was selected for scrutiny and that the assessee was called upon to furnish various particulars relating to grant of deduction under Section 10B of the Act and it is only after receiving the necessary particulars from the assessee and after being satisfied, the assessment order has been passed. In these circumstances, the CIT was not justified in invoking jurisdiction under Section 263 of the Act and directing the Assessing officer to make detailed enquiry, when in scrutiny assessment a detailed enquiry has already been made. 3.The argument of the Revenue is that the CIT in his notice issued under Section 263 of the Act had stated that the assessment was erroneous and prejudicial to the interests of the Revenue. In our opinion, the CIT has to arrive at a conclusion that the assessment is erroneous and prejudicial to the interests of the Revenue after giving an opportunity of hearing to the assessee and the prima facie belief formed at the time of giving notice under Section 263 of the Act cannot be said to be the decision of the CIT. 4.In these circumstances, we do not see any merit in the appeal and the same is accordingly dismissed with no order as to costs.