M/s. Topgrain Management Pvt. Ltd., Kolkata V. Principal CIT - 1, Kolkata , Kolkata

ITA 1278/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9322 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 11-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RADHEY SHYAM
• Assessee Lawyers: B K NEMA
• Keywords: Business income; Depreciation; Opportunity of being heard; Earning of tax free income; Rule 8D; Set aside
• Section: 143(3); 142(1); 14A; 32; 263; 10

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 1278 / KOL / 2018 ASSESSMENT YEAR :2013-14 M/S TOP GRAIN MANAGEMENT PVT LTD., BERIWALA BUILDING, 2 ND FLOOR, 1/1 MERIDITH STREET, KOLKATA-700 072 [ PAN NO.AAACT 9889 K ] V/S . PRINCIPAL COMMISSIONER OF INCOME TAX-1, 7 TH FLOOR, AAYAKAR BHAWAN,P-7, CHOWRINGHEE SQUARE, KOLKAT-700 069 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI B.K. NEMA, ADVOCATE /BY RESPONDENT SHRI RADHEY SHYAM, CIT-DR /DATE OF HEARING 17 -12-2019 /DATE OF PRONOUNCEMENT 10-01-2020 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2013-14 ARISES AGAINST THE PRINCIPAL COMMISSIONER OF INCOME TAX-1, KOLKATAS O RDER DATED 16.03.2018 PASSED IN MEMO. NO.PR.CIT-1/KOL/REVISION U/S.263/20 17-18/14321-24, INVOLVING PROCEEDINGS U/S 263 OF THE INCOME TAX ACT , 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. WE ADVERT TO BASIC RELEVANT FACTS FIRST OF ALL. THIS ASSESSEE IS STATED TO BE A COMPANY DERIVING INCOME FROM FINANCE AND AGRIC ULTURAL ACTIVITIES. THE ASSESSMENT ORDER DATED 14.10.2015 FORMING SUBJECT-M ATTER OF REVISION PROCEEDINGS REVEALS THAT THE ASSESSEE HAD FILED ITS RETURN ON 29.10.2013 ITA NO.1278/KOL/2018 A.Y. 2013-14 M/S TOP GRAIN MANAGEMENT PVT. LTD. VS. PC IT-1, KOL. PAGE 2 STATING TOTAL INCOME OF 44,29,820/-. THE ASSESSING OFFICER THEREAFTER FRAME D REGULAR ASSESSMENT IN ITS CASE DISALLOWING 7,000/- BY INVOKING U/S 14A R.W.S. RULE 8D DISALLOWANCE. 3. WE PROCEED FURTHER TO NOTICE THAT PCIT THEREAFTE R HAS REVISED THE ABOVE REGULAR ASSESSMENT BY TERMING IT AS ERRONEOUS CAUSI NG PREJUDICE TO INTEREST OF THE REVENUE BY EXERCISING HIS JURISDICTION VESTED U /S. 263 OF THE ACT AS FOLLOWS:- 2. FROM THE IMPUGNED ASSESSMENT ORDER U/S 143(3) IT IS OBSERVED THAT ASSESSEE COMPANY CLAIMED DEPRECIATION OF RS.1,0,17, 831/- INCLUDING DEPRECIATION OF RS.10,10,686/- ON FACTORY BUILDING, WHEREIN, IN A PART OF BUILDING AGRICULTURAL PRODUCES WERE STORED DURING T HE FINANCIAL YEAR 2012-13, WHICH WAS ALSO ALLOWED IN THE ASSESSMENT. SINCE AGR ICULTURAL INCOME IS EXEMPT U/S. 10 OF IT ACT, 1961, THEREFORE, DEPRECIA TION CLAIMED ON FACTORY BUILDING UTILIZED FOR EARNING EXEMPT AGRICULTURAL I NCOME IS REQUIRED TO BE DISALLOWED AND ADDED TO THE TOTAL INCOME. BUT THE S AME WAS NOT DONE IN THE ASSESSMENT U/S.143(3) WHICH HAS RESULTED IN UNDERAS SESSMENT OF INCOME OF RS.10,10,686/- WITH UNDERCHARGE OF TAX OF RS.4,09,1 15/-. 3.JURISDICTIONAL PRINCIPAL COMMISSIONER OF INCOME T AX WAS SATISFIED THAT IT WAS A CASE OF ERRONEOUS ASSESSMENT IN SO FAR AS IT WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. SHOW CAUSE NOTICE U/S 263 OF THE ACT WAS ISSUED VIDE THIS OFFICE LETTERS . . . , - 1/U/S263/AAACT9889K/2017-18/12191 & :05.02.2018. THE ASSESSEE WAS REQUESTED TO CAUSE AN EXPLANATION TO WHY THE PR OVISIONS OF SECTION-263 OF THE ACT SHOULD NOT BE INVOKED IN THIS CASE AND T HE ASSESSMENT COMPLETED BY THE ASSESSING OFFICER SHOULD NOT BE REVISED / MO DIFIED OR SET-ASIDE. 4. IN RESPONSE TO THE SAID NOTICE SHRI B. K. NEMA, ADVOCATE AND AIR OF THE ASSESSEE ATTENDED. HE WAS HEARD. THE WRITTEN SUBMIS SION FURNISHED ON 07.03.2018 IS AS FOLLOWS : 1 . IT IS RESPECTFULLY SUBMITTED THAT THE ORDER PASSE D U/S 143(3) OF I.T. ACT 1961 BY DY. COMMISSIONER OF INCOME TAX, CIRCLE- 1(2), KOLKATA ON 14/10/2015 FOR ASSTT. YEAR 2013-14 DETERMINING TOTA L INCOME AT RS.44,36,820/- IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE. IN VIEW OF ABOVE NO PROCEEDINGS U/S 263 OF I.T. ACT 1961 OUGHT TO HAVE BEEN INITIATED IN THE CASE OF ASSESSE E. 2 . IT IS RESPECTFULLY SUBMITTED THAT IN NOTICE ISSUE D U/ S 263 OF I.T. ACT 1961 IT HAS BEEN OBSERVED THAT DEPRECIATION OF RS.1 0,10,686/- ON FACTORY BUILDING HAS BEEN ALLOWED IN THE ASSESSMENT FRAMED WHICH HAS BEEN UTILIZED FOR EARNING EXEMPT AGRICULTURAL INCOM E AND THUS WAS REQUIRED TO BE DISALLOWED. IT HAS BEEN OBSERVED THA T THIS HAS RESULTED INTO UNDER ASSESSMENT OF INCOME AT RS.10,10,686/- . ITA NO.1278/KOL/2018 A.Y. 2013-14 M/S TOP GRAIN MANAGEMENT PVT. LTD. VS. PC IT-1, KOL. PAGE 3 3 . ASSESSEE HAS USED THE BUILDING FOR ACTIVITY OF BU SINESS FOR DERIVING WAREHOUSING CHARGES AND DURING THE YEAR UNDER CONSI DERATION COMPANY HAS RECEIVED WAREHOUSING RECEIPT AT RS.3,60 ,210/-. THE BUSINESS RECEIPTS OF WAREHOUSING HAS BEEN ASSESSED AS INCOME FROM BUSINESS IN THE ASSESSMENT FRAMED. THE BUILDING HAV ING BEEN USED FOR THE ACTIVITY OF BUSINESS OF WAREHOUSING DEPRECIATIO N ON OPENING WRITTEN DOWN VALUE OF BLOCK OF ASSET BEING STATUTORY ALLOWA NCE U/S 32 OF I.T. ACT 1961 CANNOT BE DENIED AS CLAIMED. ALLOWANCE OF DEPRECIATION IN CASE OF ASSESSEE ON THE OPENING WDV OF BLOCK OF ASS ETS CANNOT BE FAULTED AND ALLOWANCE OF DEPRECIATION CANNOT BE SAI D TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. 4 . IT IS RESPECTFULLY SUBMITTED THAT ASSESSEE HAS OP ENING WDV OF BLOCK OF ASSETS OF ' BUILDING ' AT RS.1,01,06,861/ -. ASSESSEE IN RETURN OF INCOME HAS ALSO SHOWN WAREHOUSING RECEIPTS TO THE T UNE OF RS. 3, 60, 210/ -. THE AFORESAID ASSET EVEN IF UTILIZED ON CER TAIN OCCASION FOR DERIVING EXEMPT INCOME NO DISALLOWANCE IN RESPECT T O ALLOWABLE DEPRECIATION U/ S 32 OF I. T. ACT 1961 CAN BE MADE AT THE HANDS OF ASSESSEE. ON OPENING WDV IN RESPECT TO BLOCK OF ASS ETS OF ' BUILDING ' STATUTORY ALLOWANCE U/ S 32 OF I.T. ACT 1961 HAS TO BE GRANTED EVEN IF ASSET IS PARTLY USED FOR THE PURPOSE OF DERIVING EX EMPT INCOME. THERE IS NO PROVISIONS TO DENY GRANT OF DEPRECIATION IN R ESPECT TO BLOCK OF ASSET IF THE BUILDING HAS BEEN UTILIZED FOR THE PUR POSE OF BUSINESS. 5 . IT IS RESPECTFULLY SUBMITTED THAT AO HAS TAKEN TH E ONLY POSSIBLE VIEW IN THE MATTER WHILE ACCEPTING THE CLAIM OF DEPRECIA TION. IT IS SETTLED POSITION OF LAW THAT IF AG. HAS TAKEN ONE OF THE PO SSIBLE VIEW OF THE MATTER, ORDER PASSED BY HIM CANNOT BE TERMED AS ERR ONEOUS. THE ASSESSEE FOR THIS PROPOSITION PLACES RELIANCE ON TH E DECISION OF APEX COURT IN THE CASE OF MAX INDIA LTD. REPORTED AT 295 ITR 282 (SC). RATIO LAID DOWN BY THE DECISION SQUARELY APPLIES TO THE F ACTS IN THE CASE OF ASSESSEE AND ORDER OF AO CANNOT BE TERMED AS ERRONE OUS. IN VIEW OF ABOVE IT IS HUMBLY SUBMITTED THAT PROCEEDINGS INITI ATED U/ S 263 BE DROPPED. 6 . CONSIDERING THE SUBMISSION MADE HEREINABOVE IT IS HUMBLY SUBMITTED THAT THERE IS NO MISTAKE IN THE ASSESSMEN T FRAMED AND THERE IS NO UNDER ASSESSMENT OF INCOME AT RS.10,10,686/- AS OBSERVED IN NOTICE ISSUED U/S 263 OF I.T. ACT 1961. THE ORDER P ASSED BY A.O BEING NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST O F REVENUE NO ORDER U/S 263 OF I.T. ACT 1961 IN RESPECT TO SAME CAN BE PASS ED. 5. I HAVE CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE SUBMISSION OF THE ASSESSEE. AT THE OUTSET, THE ASSE SSEE HAS STRONGLY OBJECTED TO THE PROCEEDINGS U/S 263 STATING THAT TH E IMPUGNED ASSESSMENT ORDER WAS NEITHER ERRONEOUS NOR PREJUDICIAL TO INTE REST OF REVENUE. IT IS THE CONTENTION OF THE ASSESSEE THAT THE BUILDING ON WHI CH EXCESS DEPRECIATION OF RS.10,10,666686/- WAS CLAIMED, WAS USED FOR ITS ACT IVITY OF BUSINESS OF WARE HOUSING. FURTHERMORE THAT THE BUILDING WAS PART OF THE BLOCK OF ASSETS OF OPENING WDV OF RS.1,1,06,861/-, HENCE STATUTORY ALL OWANCE U/S 32 COULD NOT ITA NO.1278/KOL/2018 A.Y. 2013-14 M/S TOP GRAIN MANAGEMENT PVT. LTD. VS. PC IT-1, KOL. PAGE 4 BE DENIED. IT WAS EXPLAINED THAT WARE HOUSING INCOM E OF RS.3,60,21/- FROM A PARTNERSHIP FIRM SRBH TECHNOLOGY FOR' STORING OF TH EIR WHEAT BAGS WAS RECEIVED DURING THE YEAR. FROM THE RECORDS, IT IS SEEN THAT ASSESSEE HAD NOWH ERE CLARIFIED ITS ACTIVITY OF WARE HOUSING BUSINESS. THE PORTION OF BUILDING ON W HICH DEPRECIATION HAS BEEN CLAIMED IS ADMITTEDLY UTILIZED FOR STORING OF AGRICULTURE PRODUCE, WHILE NO DEPRECIATION WAS CLAIMED ON LEASED OUT PORTION. NEE DLESS TO SAY, THE TASK OF ANY TAXING AUTHORITY IS TO ENSURE BRINGING TO TAX T HE CORRECT INCOME / OR AS IN THE CASE DISALLOW ANY INCORRECT CLAIMS ON A/C OF ER ROR OF FACTS OR LAW. AO DID NOT ALSO VERIFY THE SOURCE OF RENTAL INCOME. IT WAS INCUMBENT UPON THE AO TO APPLY HIS MIND AND MAKE NECESSARY ENQUIRES BY CALLI NG FOR DOCUMENTS TO HIS SATISFACTION. THIS IS NOT A CASE OF AO TAKING ONE P OSSIBLE VIEW POINT AS CONTENDED WHEN FACTS OF THE MATTER ARE EITHER CLEAR OR WHEN ASSESSEE HAD NOT DISCHARGED ITS ONUS OF SUBSTANTIATING ITS CLAIM. 6 HON'BLE DELHI HIGH COURT IN THE CASE OF GEE VEE E NTERPRISE VS. ADDL.CIT REPORTED IN 99 ITR 375, 386 (DEL) HAS HELD THAT THE CIT MAY CONSIDER THE ORDER OF THE ASSESSING OFFICER TO BE ERRONEOUS NOT ONLY IF IT CONTAIN SOME APPARENT ERROR OF REASONING OR OF LAW OR OF FACT ON THE FACE OF IT BUT ALSO BECAUSE THE ASSESSING OFFICER HAS FAILED TO MAKE EN QUIRIES WHICH ARE CALLED FOR IN THE CIRCUMSTANCES OF THE CASE AND IT IS AN O RDER WHICH SIMPLY ACCEPTED WHAT THE ASSESSEE HAS STATED IN HIS RETURN OF INCOM E ON THE SAID ISSUE. IT IS NOT NECESSARY FOR THE CIT TO MAKE FURTHER ENQUIRIES BEFORE CANCELLING THE ASSESSMENT ORDER. THE COMMISSIONER CAN REGARD THE O RDER ERRONEOUS ON THE GROUND THAT THE ASSESSING OFFICER SHOULD HAVE MADE FURTHER ENQUIRIES. 7 HON'BLE KARNATAKA HIGH COURT IN THE CASE OF THALI BAI F. JAIN VS. ITO 101 ITR 1, 6 (KARN) HAS HELD THAT WHERE NO ENQUIRIES MA DE BY THE ASSESSING OFFICER ON THE RELEVANT ISSUE, ASSESSMENT MUST BE H ELD TO BE PREJUDICIAL TO THE INTERESTS OF THE REVENUE AND WHAT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE MUST BE HELD TO BE ERRONEOUS THOUGH THE CONVERSE MA Y NOT ALWAYS BE TRUE. 8 HON'BLE SUPREME COURT IN THE CASE OF MALABAR INDU STRIAL CO. PVT. LTD VS. CIT REPORTED IN (2000) 243 ITR 83, 87-88(SC) AFFIRM ING THE HON'BLE KERALA HIGH COURT DECISION (198 ITR 611) HAS HELD THAT THE PHRASE ' PREJUDICIAL TO THE INTERESTS OF THE REVENUE ' IS OF WIDE IMPORT AND IS NOT CONFINED TO ONLY LOSS OF TAXES. IF THE A.O HAS ACCEPTED THE CLAIM OF THE ASSESSEE WITHOUT ANY ENQUIRIES THEN SUCH ASSESSMENT ORDER PASSED BY THE A.O. WAS HELD TO BE ERRONEOUS. 9 IN THIS REGARD IT IS MENTIONED THAT MERE NON ENQU IRY WOULD ALSO RENDER A PARTICULAR ORDER PASSED BY LOWER AUTHORITY AS ERRON EOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. THIS POSITION HAS BEEN CLEARL Y CONFIRMED BY HON'BLE SUPREME COURT IN THE CASE OF RAMPYARI DEVI SARAOGI V. CIT [1968] 67 ITR 84 & SMT. TARA DEVI AGGARWAL V. CIT [1973] 88 ITR 323 (SC). THE REASONING FOR THIS PROPOSITION HAS BEEN EXPLAINED BY HON'HLE DELH I HIGH COURT IN THE CASE OF GEE VEE ENTERPRISE V. ADDL. CIT [1975] 99 ITR 375 I N THE FOLLOWING PARA :- 'IT IS NOT NECESSARY FOR THE COMMISSIONER TO MAKE F URTHER INQUIRIES BEFORE CANCELLING THE ASSESSMENT ORDER OF THE INCOM E-TAX OFFICER. THE ITA NO.1278/KOL/2018 A.Y. 2013-14 M/S TOP GRAIN MANAGEMENT PVT. LTD. VS. PC IT-1, KOL. PAGE 5 COMMISSIONER CAN REGARD THE ORDER AS ERRONEOUS ON T HE GROUND THAT IN THE CIRCUMSTANCES OF THE CASE THE INCOME-TAX OFFICE R SHOULD HAVE MADE FURTHER INQUIRIES BEFORE ACCEPTING THE STATEME NTS MADE BY THE ASSESSEE IN HIS RETURN. THE REASON IS OBVIOUS. THE POSITION AND FUNCTION OF THE INCOME-TAX OFFICER IS VERY DIFFEREN T FROM THAT OF CIVIL COURT. THE STATEMENTS MADE IN THE PLEADING PROVED B Y THE MINIMUM AMOUNT OF EVIDENCE MAY BE ADOPTED BY A CIVIL COURT IN THE ABSENCE OF ANY REBUTTAL. THE CIVIL COURT IS NEUTRAL. IT SIMPLY GIVES DECISION ON THE BASIS OF THE PLEADING AND EVIDENCE WHICH COME BEFOR E IT. THE INCOME- TAX OFFICER IS NOT ONLY AN ADJUDICATOR BUT ALSO AN INVESTIGATOR. HE CANNOT REMAIN PASSIVE IN THE FACE OF A RETURN WHICH IS APP ARENTLY IN ORDER BUT CALLS FOR FURTHER INQUIRY. IT IS HIS DUTY TO ASCERT AIN THE TRUTH OF THE FACTS STATED IN THE RETURN WHEN THE CIRCUMSTANCES OF THE CASE ARE SUCH AS TO PROVOKE AN INQUIRY. IT IS BECAUSE IT IS INCUMBENT O N THE INCOME-TAX OFFICER TO FURTHER INVESTIGATE THE FACTS STATED IN THE RETURN WHEN CIRCUMSTANCES WOULD MAKE SUCH AN INQUIRY PRUDENT TH AT THE WORD ' ERRONEOUS ' IN SECTION 263 INCLUDES THE FAILURE TO MAKE SUCH AN ENQUIRY. THE ORDER BECOMES ERRONEOUS BECAUSE SUCH A N INQUIRY HAS NOT BE MADE AND NOT BECAUSE THERE IS ANYTHING WRONG WITH THE ORDER IF ALL THE FACTS STATED THEREIN ARE ASSUMED TO BE CORR ECT. ' 10 FURTHER TO THIS IT IS NOTICED THAT THERE IS NO A PPEAL RIGHT AVAILABLE TO THE REVENUE FROM THE ORDER OF ASSESSMENT PASSED BY ASSE SSING OFFICER AND I.E. WHY REVISIONARY POWERS HAVE BEEN GIVEN TO THE COMMI SSIONER AND SUCH POWER WERE HELD TO BE OF WIDE AMPLITUDE BY THE HON' BLE SUPREME COURT IN THE CASE OF CIT V. SHREE MANJUNATHESWARE PACKING PRODUC TS & CAMPHOR WORKS [1998], 231 ITR 53/96 TAXMAN 1. THEREFORE, NORMALLY WHEN ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY ON A PARTICULAR ISSUE, THE N SUCH ORDER IN VIEW OF THE ABOVE DETAILED DISCUSSION HAS TO BE CONSTRUED AS ER RONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AND THEREFORE, THE IMPUGNED ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E AS ASSESSING OFFICER HAS FAILED TO MAKE ANY ENQUIRY. 11 HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE LIGHT OF THE AFORESAID DECISIONS OF HON'BLE SUPREME COURT AN D HON'BLE HIGH COURT, I HOLD THAT THE IMPUGNED ASSESSMENT ORDER DATED 14.10 .2015 PASSED BY THE A.O. IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. I FURTHER HOLD, AFTER GIVING THE ASSESSEE AN OPPORTUN ITY OF BEING HEARD, THAT THE IMPUGNED ASSESSMENT ORDER DATED 14.10.2015 IS LIABL E TO SET-ASIDE. THEREFORE, I SET ASIDE THE SAID ASSESSMENT ORDER DI RECTING THE AO TO RE-FRAME THE ASSESSMENT AFTER CONSIDERING THE AFORESAID OBSE RVATIONS, HON'BLE SUPREME COURT AND HON'BLE HIGH COURTS DECISIONS AND AS PER LAW. 12. IN THE RESULT, THE ASSESSMENT ORDER U/S 143(3) DATED 14.10.2015 FOR AY 2013-14 IS SET-ASIDE TO THE FILE OF THE ASSESSING O FFICER WITH A DIRECTION TO PASS A FRESH ASSESSMENT ORDER LIMITED TO THE AFORES AID OBSERVATIONS, AS PER LAW AND AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO.1278/KOL/2018 A.Y. 2013-14 M/S TOP GRAIN MANAGEMENT PVT. LTD. VS. PC IT-1, KOL. PAGE 6 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL PLEADINGS. IT HAS COME ON RECORD THAT MAIN ISSUE BETWEEN THE PARTIES IS THAT OF ASSESSEES DEPRECIATION CLAIM REGARDING ITS WAREHOUSE. THE PCI TS CASE AS PER HIS ABOVE EXTRACTED DETAILED DISCUSSION IS THAT SINCE THE ASS ESSEE HAD ALSO UTILIZED THE FIXED ASSET / WAREHOUSE FOR STORING AGRICULTURAL PR ODUCE YIELDING EXEMPT INCOME, THE ASSESSING OFFICER FAILED TO CONDUCT NEC ESSARY ENQUIRY TO THIS EFFECT RENDERING THE IMPUGNED ASSESSMENT AS ERRONEO US CAUSING PREJUDICE TO INTEREST OF THE REVENUE. WE FIND NO MERIT IN PCITS FOREGOING REASONING. THERE CAN HARDLY BE ANY DISPUTE ABOUT THE SETTLED L AW MALABAR INDUSTRIAL CO. LTD. VS. COMMISSIONER OF INCOME TAX (2000) 243 ITR 83 (SC) REITERATED IN COMMISSIONER OF INCOME TAX VS. MAX INDIA (2007) 295 ITR 282 (SC) THAT TWIN CONDITIONS FOR AN ASSESSMENT BEING ERRONEOUS AS WEL L AS CAUSING PREJUDICE TO INTEREST OF THE REVENUE HAVE TO BE SIMULTANEOUSLY S ATISFIED BEFORE THE CIT OR THE PCIT; AS THE CASE MAY BE, SEEKS TO INVOKE HIS R EVISION JURISDICTION VESTED U/S. 263 OF THE ACT. AND ALSO THAT SUCH REVISION PR OCEEDINGS OUGHT NOT TO BE SET INTO MOTION IN CASE THE ASSESSING OFFICER HAS T AKEN ONE OF THE TWO POSSIBLE VIEWS. WE KEEP IN MIND THIS SETTLED LEGAL PROPOSITION TO DEAL WITH THE FACTS OF THE INSTANT CASE. THE ASSESSEES DETAILED PAPER BOOK ITS PAGE 19 INDICATES THAT THE ASSESSING OFFICER HAD ISSUED HIS SEC. 142(1) NOTICE DATED 22.09.2015 ASKING FOR DETAILED EVIDENCE REGARDING D EPRECIATION AT # 9 AS WELL AS ON THE ISSUE THAT THE CORRESPONDING FIXED ASSET HAD NOT BEEN PUT TO USE DURING THE RELEVANT PREVIOUS YEAR. THE ASSESSEE DET AILED REPLY DATED 07.10.2020 STATED THAT ITS BUILDING AT FACTORY SITE HAD BEEN DIVIDED INTO TWO PARTS AND ONE OF THEM WAS GIVEN ON LEASE WITHOUT AN Y CORRESPONDING DEPRECIATION CLAIM RAISED THEREUPON. THE OTHERE PAR T OF THE BUILDING WAS STATED TO HAVE BEEN UTILIZED FOR STORAGE OF AGRICUL TURAL PRODUCE RELEVANT TO ITS DEPRECIATION CLAIM. SUFFICE TO SAY, THE ASSESSING O FFICER DID NOT MAKE ANY DISALLOWANCE. 5. COUPLED WITH THIS, IT FURTHER EMERGES THAT THE A SSESSEE HAD ALSO DECLARED ITS INCOME FROM WAREHOUSE(S) OPERATION AS WELL QUA STORAGE OF AGRICULTURAL ITA NO.1278/KOL/2018 A.Y. 2013-14 M/S TOP GRAIN MANAGEMENT PVT. LTD. VS. PC IT-1, KOL. PAGE 7 PRODUCE ONLY. AND ALSO THAT THE RELEVANT FIXED ASSE TS FORM PART OF BLOCK OF ASSETS HAVING CORRESPONDING CARRIED FORWARD WRITTEN DOWN VALUE AS ON 01.04.2012 ELIGIBLE FOR DEPRECIATION RELIEF. WE OBS ERVE IN THIS CLINCHING FACTUAL BACKDROP THAT ONCE THE ASSESSEE HAD ITSELF CHOSEN N OT TO ITS DEPRECIATION CLAIM AS PER ITS STAND BEFORE THE ASSESSING OFFICER , THE IMPUGNED ASSESSMENT ALLOWING DEPRECIATION ON THE REMAINING PORTION CANN OT BE HELD AS AN INSTANCE OF AN ERRONEOUS ONE CAUSING PREJUDICE TO INTEREST O F THE REVENUE. WE ACCORDINGLY HOLD THAT THE PCIT HAS ERRED IN EXERCIS ING HIS REVISIONAL JURISDICTION U/S 263 OF THE ACT MORE PARTICULARLY W HEN THE ASSESSING OFFICER HAD CARRIED OUT ALL NECESSARY FACTUAL VERIFICATION AND ENQUIRIES QUA THE INSTANT ISSUE. WE THEREFORE REVERSE THE PCITS ACTION EXERC ISING REVISION JURISDICTION AND RESTORE THE REGULAR ASSESSMENT DATED.14.10.2014 FRAMED IN ASSESSEES CASE. ORDERED ACCORDINGLY. 6. THIS ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 10 /01/2012 SD/- SD/- ( )) ( + )) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP &- 10 / 01 /201 2 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S TOP GRAIN MANAGEMENT PVT.LTD., BERIW ALA BUILDINGS, 2 ND FLOOR, 1/1 MERI DITH ST., KOLKATA-72 2. /RESPONDENT-PCIT,-1, 7 TH FL, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQ. KOLKAKTA- 69 3. 5 6 / CONCERNED CIT KOLKATA 4. 6- / CIT (A) KOLKATA 5. ++5, 5, / DR, ITAT, KOLKATA 6. = / GUARD FILE. BY ORDER/ , /TRUE COPY/ 5,