Dhariwal Industries Ltd., Pune V. Commissioner of Income-tax,

ITA 1110/PUN/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0292 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-12-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 23-05-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SANJAY KAPADIA
• Keywords: Revision of order; Depreciation; Earning of tax free income; Difference of opinion; Change of opinion; Rule 8D; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 153A; 14A; 192; 153C

Judgement Text

] IQ.KS ] IQ.KS ] IQ.KS ] IQ.KS IQ.KS IQ.KSIQ.KS IQ.KS IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , . . , # BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM . / ITA NOS.1108 TO 1113/PUN/2014 % % / ASSESSMENT YEARS : 2004 -05 TO 2006-07 & 2008-09 TO 2010-11 DHARIWAL INDUSTRIES LIMITED, MANIKCHAND HOUSE, PLOT NO.100/101, D. KENNEDY ROAD, BEHIND HOTEL LE-MERIDIAN, PUNE -411001 PAN NO.AAACD5896L . / APPELLANT V/S CIT, CENTRAL, PUNE . / RESPONDENT / ASSESSEE BY : SHRI SANJAY KAPADIA / REVENUE BY : SHRI RAJEEV KUMAR, CIT / ORDER PER R.K. PANDA, AM : THE ABOVE BATCH OF APPEALS FILED BY THE ASSESSEE ARE DIRE CTED AGAINST THE SEPARATE ORDERS DATED 28-03-2014 PASSED U/S.263 OF THE I.T. ACT, 1961 BY THE CIT CENTRAL, PUNE RELATING TO ASSES SMENT YEARS 2004-05 TO 2006-07 AND 2008-09 TO 2010-11 RESPECTIVE LY. SINCE IDENTICAL GROUNDS HAVE BEEN RAISED BY THE ASSESSEE IN ALL THESE APPEALS, THEREFORE, THESE WERE HEARD TOGETHER AND ARE B EING DISPOSED OF BY THIS COMMON ORDER. / DATE OF HEARING : 19.12.2016 / DATE OF PRONOUNCEMENT:23.12.2016 2 ITA NOS.1108 TO 1113/PUN/2014 ITA NO.1108/PUN/2014 (A.Y. 2004-05) : 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A PUBLIC LIMITED COMPANY ENGAGED IN THE MANUFACTURE OF PAN MASALA AND GUTKHA. A SEARCH ACTION U/S.132 OF THE I.T. ACT, 1961 WA S CONDUCTED IN THE RMD GUTKHA GROUP OF CASES ON 20-01-2010. IN P URSUANCE TO NOTICE U/S.153A THE ASSESSEE FILED RETURN OF INCOME FOR DIFFER ENT ASSESSMENT YEARS AND ASSESSMENTS WERE COMPLETED U/S.1 53A R.W.S. 143(3) DETERMINING THE TOTAL INCOME FOR DIFFERENT ASSESSMENT YEARS, THE DETAILS OF WHICH ARE AS UNDER : ASSESSMENT YEAR ORDER U/S.143(3)/DATE ORDER U/S.153A/143(3)/DT. ORDER U/S.154/DT. 2004 - 05 4,53,79,410/ - DT.29-12-2006 24,36,62,863/ - DT.29-12-2011 25,67,75,890/ - DT.01-06-2012 2005 - 06 3,23,98,154/ - DT.30-03-2002 49,64,59,790/ - DT.29-12-2011 - 2006 - 07 30,52,31,698/ - DT.19-12-2008 77,32,49,820/ - DT.29-12-2011 - 2008 - 09 - DT.88,40,9 2,836/ - 29-12-2011 - 2009 - 10 - 52,54,79,716/ - DT.29-12-2011 - 2010 - 11 - 59,44,01,256/ - DT.29-12-2011 - 3. SUBSEQUENTLY, THE LD.CIT EXAMINED THE RECORDS AND N OTED THAT THE ASSESSEE HAS EXEMPT INCOME IN THE FORM OF DIVIDEND INC OME OF RS.7,17,12,277/-, RS.1,33,79,236/- AND RS.1,19,42,071/- FOR A.YR S. 2004-05, 2005-06 AND 2006-07 RESPECTIVELY. THEREFORE, PR OVISIONS OF SECTION 14A ARE APPLICABLE. HOWEVER, THE ASSESSING OFFICER H AS NOT DISALLOWED ANY EXPENDITURE U/S14A. THEREFORE, PRIMA-FACIE, TH ESE ORDERS OF THE ASSESSING OFFICER FOR THE ABOVE YEARS ARE E RRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 3 ITA NOS.1108 TO 1113/PUN/2014 3.1 SIMILARLY FOR A.YRS. 2008-09 TO 2010-11 HE OBSERVED T HAT DEPRECIATION ON ASSETS OF HYDERABAD UNIT OF THE ASSESSE E, WHICH WAS NOT IN USE, WAS NOT DISALLOWED BY THE ASSESSING OFFICER. HE OBSERVED THAT THIS IS A RECURRING ISSUE ON WHICH ADDITIONS HAVE BE EN MADE FOR A.YRS. 2004-05 TO 2007-08. MOREOVER, SINCE THE ASSETS H AVE NOT BEEN PUT TO USE DURING THE RELEVANT PERIOD, ASSESSEE IS NOT ENTITLED FOR DEPRECIATION. THEREFORE, THE SAID DEPRECIATION CLAIM OF HYDER ABAD UNIT SHOULD HAVE BEEN DISALLOWED FOR THE YEAR UNDER CONSID ERATION AS WELL. ACCORDING TO HIM, NON DISALLOWANCE OF DEPRECIATION IN RES PECT OF HYDERABAD UNIT OF THE ASSESSEE PRIMA-FACIE MAKES THE ASS ESSMENT ORDERS PASSED BY THE ASSESSING OFFICER FOR THE ABOVE YEA RS IS ERRONEOUS IN SO FAR AS THEY WERE PREJUDICIAL TO THE INTER EST OF THE REVENUE. 3.2 THERE IS ONE MORE ISSUE ON WHICH THE LD.CIT ALSO INVO KED HIS REVISIONAL POWERS FOR ALL THE YEARS, I.E. SUPPLY OF RAW MAT ERIAL TO RASIKLAL M. DHARIWAL (HUF). HOWEVER, SINCE NO ADDITION HAS BE EN MADE BY THE ASSESSING OFFICER IN THE ORDER PASSED U/S.263 /153A R.W.S.143(3) SUBSEQUENT TO THE 263 ORDER PASSED BY THE CIT ON THE BASIS OF SUBMISSION MADE BY THE ASSESSEE, THEREFORE, WE AR E NOT CONCERNED WITH THE THIRD ISSUE. 4. THE LD.CIT ACCORDINGLY ISSUED NOTICE U/S.263 ASKING TH E ASSESSEE TO MAKE ITS SUBMISSIONS. REJECTING THE VARIOUS EXPLANATIONS GIVEN BY THE ASSESSEE AND OBSERVING THAT NON-DISALLOWANC E OF EXPENDITURE U/S.14A FOR A.YRS. 2004-05 TO 2006-07 AND NO N- DISALLOWANCE OF DEPRECIATION ON ASSETS OF THE HYDERABAD U NIT FOR A.YRS. 2008-09 TO 2010-11 THE ORDERS PASSED BY THE AS SESSING OFFICER U/S.153A R.W.S. 143(3) FOR THE ABOVE YEARS HAVE BECOME ER RONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. HE, THE REFORE, SET 4 ITA NOS.1108 TO 1113/PUN/2014 ASIDE THE ASSESSMENT ORDERS FOR THE ABOVE YEARS TO TH E FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO CONDUCT NECESSARY EN QUIRIES AND TO ASCERTAIN THE DISALLOWANCE U/S.14A FOR A.YRS. 2004-05 T O 2006-07 AND DETERMINE THE DISALLOWANCE OF DEPRECIATION IN RESPECT O F HYDERABAD UNIT FOR A.YRS. 2008-09 TO 2010-11. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEA L BEFORE US WITH THE FOLLOWING GROUNDS : 1. THAT ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW, THE LEARNED CIT HAS ERRED IN INVOKING THE PROVISIONS OF SEC TION 263 OF THE ACT AND PASSING THE ORDER OF REVISION WITHOUT : ESTABLISHING IN WHAT MANNER THE ORDER OF THE LEARNED ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE INSPITE OF THE SPEAKING ORDER BEING PASSED U/S. 153A R.W.S. 143(3) OF THE ACT; (A) APPRECIATING THAT ON ALL THE GROUNDS ON WHICH RE VISION PROCEEDINGS HAVE BEEN INITIATED, THE APPELLANT HAS ALREADY MADE ADEQUATE SUBMISSIONS AND WHICH ARE DULY CONSIDERED BY THE LEARNED ASSESSING OFFICER. 2. THAT ON THE FACTS AND CIRCUMSTANCE OF THE CASE A ND IN LAW, THE LEARNED CIT HAS ERRED IN INVOKING THE PROVISIONS O F SECTION 263 OF THE ACT AND PASSING THE ORDER OF REVISION UNDER THAT SECTIO N MERELY ON CHANGE OF OPINION ON ALL THE ISSUES RAISED IN REVISION PROCEEDI NGS, WHICH WERE DULY CONSIDERED BY THE LEARNED ASSESSING OFFICER WHILE F RAMING THE ASSESSMENT U/S. 143(3) OF THE ACT. 3. WITHOUT PREJUDICE TO THE AFORESAID GROUNDS OF APPE AL, THAT ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW, THE LEA RNED CIT HAS ERRED IN PASSING THE ORDER U/S 263 ON THOSE ISSUES FOR WHICH NO INC RIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH AND THU S, THESE ISSUES WERE BEYOND THE SCOPE OF ADJUDICATION BY THE LEARNED ASSESSING OFFICER AND EVEN LEARNED COMMISSIONER. 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, SUBSTITUTE, MODIFY ANY OR ALL OF THE ABOVE GROUNDS OF APPEAL, IF NECESSAR Y, ON THE BASIS OF SUBMISSIONS TO BE MADE AT THE TIME OF PERSONAL HEARING. 6. IDENTICAL GROUNDS HAVE BEEN RAISED BY THE ASSESSEE FOR THE OTHER YEARS. 7. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET FILED THE FOLLOWING CHART : 5 ITA NOS.1108 TO 1113/PUN/2014 SR. NO. ISSUES RAISED BY THE LD.CIT (CENTRAL), PUNE U/S.263 OF THE ACT ACTION TAKEN BY THE LD. ASSESSING OFFICER, CENTRAL CIRCLE - 1(1), PUNE U/S.143(3) R.W.S. 263 OF THE ACT. A.Y. 2004 - 05 (RS.) A.Y. 2005-06 (RS.) A.Y. 2006-07 (RS.) A.Y. 2008-09 (RS.) A.Y. 2009-10 (RS.) A.Y. 2010-11 (RS.) 1 DISALLOWANCE U/S.14A 35,85,614 6,68,962 5,97,104 NA NA NA 2 SUPPLIES OF RAW MATERIAL TO R.M. DHARIWAL (HUF) NO ADDITIONS MADE AS ISSUES DROPPED BY ASSESSING OFFICER BASED ON SUBMISSIONS NA NA NA NA NA 3 DEPRECIATION OF DEFUNCT HYDERABAD UNIT NA NA NA 8,48,806 7,54,369 6,72,105 NOTES : 1. DISALLOWANCE U/S.14A FOR A.Y. 2007-08 HAS BEEN REST RICTED TO RS.2,00,000/- AND BEEN PARTLY ALLOWED IN FAVOUR OF APPELLANT BY HONB LE ITAT, BENCH B, PUNE VIDE ITA NO.1318/PN/2013 ORDER DATED 02-05-2016 (PARA NO .167 TO 177) 2. DEPRECIATION ON HYDERABAD UNIT HAS BEEN ALLOWED IN FAVOUR OF APPELLANT BY HONBLE ITAT, BENCH B, PUNE VIDE ITA NO.1318 TO 1 324/PN/2013 ORDER DATED 02-05-2016 (PARA NO.158 TO 162) 3. THE IDENTICAL ISSUES WERE RAISED IN SISTER CONCERN NAMELY R.M. DHARIWAL (HUF) HEREIN ABOVE AND HEARD ON 16/17-11-2016. 8. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER IN ALL THESE CASES HAVE PASSED THE ORDER U/S.153A R.W.S. 143(3) WITH THE PRIOR APPROVAL OF THE ADDL.CIT CENTRAL, RANGE-1, P UNE AS REQUIRED U/S.153D OF THE I.T.ACT VIDE HIS LETTER NO.PN/AD DL.CIT. CR- 1/ASST. ORDER APPROVAL/2011-12/846 DATED 29-12-2011. 9. REFERRING TO THE DECISION OF THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF M/S. TRINITY INFRA VENTURES LTD. VS. DCIT VIDE ITA NOS. 584 TO 589/H/2015 ORDER DATED 04-12-2015 FOR A.YRS. 2005- 06 TO 2010-11 HE SUBMITTED THAT THE TRIBUNAL IN THE SAID DECISION, FOLLOWING VARIOUS DECISIONS INCLUDING THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. DR. ASHOK KUM AR VIDE INCOME TAX APPEAL NO.192/2000 ORDER DATED 06-08-2012, HAS HELD THAT ASSESSMENT ORDER APPROVED BY THE ADDL.CIT U/S.153 D CANNOT BE SUBJECTED TO REVISE U/S.263 OF THE I.T. ACT. HE ACCORDIN GLY SUBMITTED 6 ITA NOS.1108 TO 1113/PUN/2014 THAT SINCE IN THE INSTANT CASE ALSO THE ASSESSING OFFICER H AS PASSED THE ORDER U/S.153A R.W.S. 143(3) AFTER OBTAINING THE APPROV AL OF THE ADDL.CIT U/S.153D OF THE I.T. ACT, THEREFORE, THE LD.CIT H AS NO POWER TO REVISE THE SAID ORDER U/S.263 OF THE I.T. ACT. 10. WITHOUT PREJUDICE TO THE ABOVE, THE LD. COUNSEL FOR TH E ASSESSEE REFERRING TO THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.YRS. 2004-05 TO 2010-11 VIDE ITA NOS. 1318 TO 1324/PN/2013 AND 1389 TO 1391/PN/2013 AND 1408 TO 1410/PN/2013 ORDER DATE D 02-05- 2016 SUBMITTED THAT THE ISSUE RELATING TO DISALLOWANCE OF EXPENDITURE U/S.14A AND THE DEPRECIATION ON ASSETS OF HYDERABAD UNIT HAVE BEEN DECIDED IN FAVOUR OF THE ASSESSEE. THEREFORE, EVEN ON ME RIT ALSO, THE CIT IS NOT JUSTIFIED IN INVOKING THE JURISDICTION U/S.263 OF THE I.T. ACT. 11. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND STRONGLY OPPOSED THE ARGUMENTS ADVANCED BY THE LD. C OUNSEL FOR THE ASSESSEE AND SUPPORTED THE ORDER OF THE LD.CIT. HE S UBMITTED THAT THE PROVISIONS OF SECTION 153D IS NOT A MANDATORY REQUIRE MENT AND IS AN ADMINISTRATIVE REQUIREMENT. THEREFORE, THE CIT CANNOT BE FAULTED WITH FOR INVOKING THE JURISDICTION U/S.263 IN A CASE WHERE T HE ASSESSING OFFICER HAS PASSED THE ORDER U/S.153A R.W.S. 143 (3) WITH THE PRIOR APPROVAL OF THE ADDL.CIT U/S.153D OF THE I.T. AC T. SO AS THE ARGUMENTS ON MERIT ARE CONCERNED, THE LD.CIT DR HEAVILY RELIED ON THE ORDER OF THE CIT. HE ALSO DREW THE ATTENTION OF TH E BENCH TO THE PROVISIONS OF SECTION 2(7A). 12. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE LD.CIT AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSID ERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THE ASSESSING O FFICER IN THE 7 ITA NOS.1108 TO 1113/PUN/2014 INSTANT CASE FOR ALL THE SIX ASSESSMENT YEARS HAS PASS ED THE ORDER U/S.153A R.W.S. 143(3) AFTER OBTAINING APPROVAL OF THE ADDL.CIT U/S.153D OF THE I.T. ACT. WE FIND THE LD.CIT INVOKED HIS R EVISIONAL POWERS U/S.263 OF THE I.T. ACT ON THE GROUND THAT THE ORDER PASSED BY THE ASSESSING OFFICER FOR ALL THE YEARS ARE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE SINCE HE HAS FAILED TO DISALLOW THE EXPENDITURE U/S.14A FOR A.YRS. 2004-05 TO 2006-07 AND FAILE D TO DISALLOW THE CLAIM OF DEPRECIATION ON ASSETS OF HYDERABAD UN IT WHICH IS DEFUNCT FOR A.Y.2008-09 TO 2010-11. 13. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESS EE THAT SINCE THE ORDER HAS BEEN PASSED BY THE ASSESSING OFFICE R AFTER OBTAINING APPROVAL OF THE ADDL.CIT U/S.153D OF THE I.T. ACT , THEREFORE, THE LD.CIT HAS NO POWER TO EXERCISE HIS JURISDICTION U/S .263 OF THE I.T. ACT, 1961. IT IS ALSO HIS SUBMISSION THAT EVEN ON MER IT THE TRIBUNAL HAS DECIDED BOTH THE ISSUES IN FAVOUR OF THE ASSESSEE. 14. WE FIND MERIT IN THE ABOVE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE. WE FIND THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF MEHTAB ALAM VS. ACIT VIDE ITA NOS.288 TO 294/LKW/2014 ORDER DATED 18-11-2014 WHILE DECIDING AN IDENTICAL ISSUE HAS OBSE RVED AS UNDER : 31. BESIDES OTHER JUDGMENTS WERE ALSO REFERRED BY THE ASSESSEE IN THIS REGARD AND WE HAVE ALSO CAREFULLY EXAMINED THE SA ME AND WE FIND THAT SIMILAR VIEWS WERE EXPRESSED BY VARIOUS JUDICIAL AU THORITIES. 32. WE HAVE ALSO EXAMINED THE JUDGMENT OF THE HON'BL E JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. DR. ASHOK KUMAR (SU PRA) ON AN ISSUE WHETHER THE ASSESSMENT ORDER WAS PASSED WITH THE APPROVAL OF THE ADDL. CIT AND THEIR LORDSHIPS HAVE HELD THAT THE ASSESSING OFFI CER WAS FULLY ALIVE ABOUT THE FACTS OF THE CASE AND THAT IS WHY HE G OT NECESSARY APPROVAL OF THE ADDL. CIT BEFORE COMPLETING THE ASSESSM ENT ORDERS FOR ALL THE ASSESSMENT YEARS AND ONCE THAT IS NOT DISPUTED BY THE REVENUE, THEN THE LD. COMMISSIONER OF INCOME-TAX WOULD NOT BE JUSTIF IED IN INTERFERING 8 ITA NOS.1108 TO 1113/PUN/2014 IN THE APPROVAL ACCORDING BY THE ADDL. CIT FOR FRAM ING THE ASSESSMENT ORDER AND THUS THERE WAS NO CASE FOR SETTING ASIDE THE A SSESSMENT ORDER FOR THE ASSESSMENT YEARS IN QUESTION. 14.1 WE FIND THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF CH. KRISHNA MURTHY VS. ACIT VIDE ITA NO.766/HYD/2012 ORDER DATED 13- 02-2015 FOLLOWING THE DECISION OF THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF MEHTAB ALAM (SUPRA) HELD THAT CIT(A) IS NOT J USTIFIED IN ASSUMING JURISDICTION U/S.263 WHEN THE ORDER HAS BEEN PA SSED IN TERMS OF SECTION 153D OF THE ACT. 14.2 WE FIND THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CAS E OF M/S. TRINITY INFRA VENTURES LTD. (SUPRA) HAD AN OCCASION TO DECIDE AN IDENTICAL ISSUE AND IT HELD THAT THE ASSESSMENT ORDER APP ROVED BY THE ADDL.CIT U/S.153D CANNOT BE SUBJECT TO REVISION U/S.263 OF THE I.T. ACT. THE RELEVANT OBSERVATION OF THE TRIBUNAL AT PARA 5.4 OF THE ORDER READS AS UNDER : 5.4. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER SUBMITT ED THAT THE ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 153C WA S PASSED AFTER GETTING APPROVAL OF ADDL. CIT UNDER SECTION 15 3DOF THE I.T. ACT AND THEREFORE SUCH AN ASSESSMENT CANNOT BE REVISED WITHOUT RE VISING THE DIRECTIONS OF THE ADDL. CIT UNDER SECTION 153D OF THE I.T. ACT. THE LD. COUNSEL FOR THE ASSESSEE, HAS RELIED UPON THE DECISIONS OF THIS TRIBUNAL IN THE CASE OF CH. KRISHNA MURTHY VS. ACIT, C.C.3, HYDERA BAD IN ITA.NO.766/HYD/2012 DATED 13.02.2015 AND ALSO THE DECISION OF LUCKNOW BENCH OF ITAT IN THE CASE OF MEHTAB ALAM 288 /LUCK/2014 DATED 18.11.2014 IN SUPPORT OF THIS CONTENTION. HE HA S ALSO PLACED RELIANCE UPON THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. DR. ASHOK KUMAR IN I.T. APPEAL NO. 192 OF 2000 WHEREIN IT HAS BEEN HELD THAT THE ASSESSMENT ORDER APPROVED BY THE ADD L. CIT UNDER SECTION 153D, CANNOT BE SUBJECTED TO REVISION UN DER SECTION 263OF THE I.T. ACT. IN VIEW OF THE ABOVE DECISION ALSO, WE HOLD THAT THE REVISION ORDER UNDER SECTION 263 OF THE I.T. ACT IS NOT SUSTAIN ABLE. ACCORDINGLY, WE ALLOW THE GROUNDS OF THE ASSESSEE. 15. SINCE IN THE INSTANT CASE ALSO THE ASSESSING OFFICER HAS PASSED THE ORDER AFTER OBTAINING NECESSARY APPROVAL FROM ADDL.CIT U/S.153D OF THE I.T. ACT, THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE-M ENTIONED DECISIONS OF THE COORDINATE BENCHES OF THE TRIBUNAL WE AR E OF THE 9 ITA NOS.1108 TO 1113/PUN/2014 CONSIDERED OPINION THAT THE CIT HAS NO POWER TO REVISE THE ORDER U/S.263 OF THE I.T. ACT IN THE INSTANT CASE SINCE THE SAM E HAS BEEN PASSED WITH THE APPROVAL OF THE ADDL.CIT U/S.153D OF THE I.T. ACT. 16. EVEN ON MERIT ALSO, WE FIND THE ISSUE RELATING TO DISALLOW ANCE OF EXPENDITURE U/S.14A HAS BEEN DECIDED BY THE TRIBUNAL PA RTLY IN FAVOUR OF THE ASSESSEE. THE RELEVANT OBSERVATION OF THE TRIBUNAL AT PARA NOS.168 OF THE ORDER READS AS UNDER : 168. AFTER HEARING BOTH THE SIDES, WE FIND THE AO DI SALLOWED RS.8,64,152/- BEING ADMINISTRATIVE EXPENSES INCURRED F OR EARNING THE EXEMPT INCOME. WE FIND THE LD.CIT(A) CONSIDERING TH E TOTALITY OF THE FACTS OF THE CASE HAS RESTRICTED SUCH DISALLOWANCE TO RS.3 ,50,000/- WHICH IN OUR OPINION IS A REASONED ONE. WE UPHOLD THE ORDE R OF THE CIT(A) ON THIS ISSUE AND THE GROUNDS RAISED BY THE ASSESSEE AS WELL AS T HE REVENUE ON THIS ISSUE ARE DISMISSED. 168.1 THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS GROUN D OF APPEAL NO.7 REGARDING DISALLOWANCE OF RS.50,000/- IN RESPECT OF SALES PROMOTION EXPENSES BECAUSE OF SMALLNESS OF THE AMOUNT. THEREFORE, THE GROUND RAISED BY THE ASSESSEE IS DISMISSED. 17. SINCE THE ASSESSMENT YEARS INVOLVED ARE A.YRS. 2004-0 5 TO 2006-07 RULE 8D IS NOT APPLICABLE. SO FAR AS DISALLOWANCE OF ADMINISTRATIVE EXPENDITURE IS CONCERNED, THE SAME IS DEBAT ABLE ISSUE IN THE INSTANT CASE CONSIDERING THE TOTALITY OF THE FACTS O F THE CASE SINCE THE ENTIRE DIVIDEND IS FROM INVESTMENT IN MUTUAL FUND S. FURTHER ONLY ADHOC DISALLOWANCE OF NOMINAL EXPENDITURE HAS BEEN SUSTAINED BY THE TRIBUNAL. WE THEREFORE ARE OF THE OPINION THAT THE LD.CIT WAS NOT JUSTIFIED IN ASSUMING JURISDICTION U/S.263 OF T HE I.T. ACT ON THE ISSUE OF DISALLOWANCE U/S.14A 18. SIMILARLY, THE ISSUE RELATING TO DEPRECIATION ON ASSETS OF HYDERABAD DIVISION HAS BEEN DECIDED BY THE TRIBUNAL IN FAVO UR OF THE ASSESSEE FOR A.Y. 2004-05 ONWARDS BY OBSERVING AS UNDER : 10 ITA NOS.1108 TO 1113/PUN/2014 161. AFTER HEARING BOTH THE SIDES, WE FIND NO INFIRM ITY IN THE ORDER OF THE CIT(A). THE AO HAD DISALLOWED THE DEPRECIATION ON THE GROUND THAT THE ASSESSEE HAS NOT USED THE ASSETS DURING THE YEAR AS THE UNIT WAS NON FUNCTIONAL. WE FIND THE ISSUE HAS BEEN DECIDED IN FA OVUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF G.R. SHIPPING LTD.(SUPRA). IN THAT CASE THE ASSESSEE WAS ENGA GED IN SHIPPING BUSINESS AND OWNED A BARGE WHICH WAS INCLUDED IN THE BL OCK OF ASSETS. THE BARGE MET WITH AN ACCIDENT AND SUNK ON 06-03-200 0, I.E. RELEVANT TO A.Y. 2000-01. AS THE EFFORTS TO RETRIEVE THE BARGE W AS UNECONOMICAL THE BARGE WAS SOLD ON AS IS WHERE IS BASIS FOR RS.55 LAKHS IN THE MONTH OF MAY 2001 RELEVANT TO A.Y. 2002-03. AS THE BARGE WAS NON O PERATIONAL AND NOT USED FOR BUSINESS AT A LATER DATE IN A.Y. 2001-02 THE A O DENIED DEPRECIATION. THE TRIBUNAL HELD THAT AFTER THE CON CEPT OF BLOCK OF ASSET W.E.F. 01-04-1988, INDIVIDUAL ASSETS HAD LOST THEIR IDE NTITY ONCE IT ENTERED WITH THE BLOCK OF ASSETS AND ONLY THE BLOCK OF ASSETS HA D TO BE CONSIDERED. IT WAS HELD THAT THE TEST OF USER HAD TO B E APPLIED UPON THE BLOCK OF ASSETS AS A WHOLE AND NOT ON INDIVIDUAL ASSETS. ON APPEAL BY THE REVENUE, THE HONBLE HIGH COURT DISMISSED THE APPEAL F ILED BY THE REVENUE. THEREFORE, SINCE THE LD.CIT(A) IN THE INSTA NT CASE HAS ALLOWED THE CLAIM OF DEPRECIATION ON THE BLOCK OF ASSETS INSTA LLED AT HYDERABAD DIVISION WHICH WERE NOT USED DURING THE IMPUGNED ASSESSME NT YEAR BY FOLLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT, THEREFORE, IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTI CE WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A). GROUND R AISED BY THE REVENUE IS ACCORDINGLY DISMISSED. 162. IDENTICAL GROUNDS HAVE BEEN RAISED BY THE REVENU E IN A.YRS. 2005- 06 TO 2007-08. FOLLOWING SIMILAR REASONINGS THE GROUN DS ON THIS ISSUE RAISED BY THE REVENUE FOR THE ABOVE YEARS ARE DISMISSED. 19. IN VIEW OF THE ABOVE DISCUSSION, WE HOLD THAT THE LD.CIT WAS NOT JUSTIFIED IN REVISING THE ORDER U/S.263 OF THE I.T. ACT BOTH ON TECHNICAL GROUND AS WELL AS ON MERIT. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT AND THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 20. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23-12-2016. SD/- SD/- ( SUSHMA CHOWLA ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER IQ.KS PUNE ; DATED : 23 RD DECEMBER , 2016. LRH'K 11 ITA NOS.1108 TO 1113/PUN/2014 ' (*+ ,+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. % ( ) - THE CIT(A)-CENTRAL, PUNE 4. % S / THE CIT-CENTRAL, PUNE 5. ( ++, , , , IQ.KS / DR, ITAT, A PUNE; 6. 0 / GUARD FILE. / BY ORDER , ( + //TRUE COPY// 23 + , / SR. PRIVATE SECRETARY ,, IQ.KS / ITAT, PUNE