Ozone Overseas P.Ltd, New Delhi V. PrCIT-7, New Delhi

ITA 1535/DEL/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3694 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 15-10-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 17-05-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHRA JYOTI CHAKARABORTY
• Keywords: Revision of order; Earning of tax free income; Source of fund; Fair market value; Valuation report; TDS; Rule 8D; Capital Gains
• Section: 263; 143(3); 142(1); 56(2); 14A; 143(2); 13; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘E’: NEW DELHI BEFORE, SHRI M. BALAGANESH, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER ITA No.1535/Del/2023 (ASSESSMENT YEAR 2018-19) M/s Ozone Overseas (P) Ltd. H-40, Bali Nagar New Delhi-110 015 PAN-AABCO 7007K Vs. Principal Commissioner of Income Tax, Delhi-7 (Appellant) (Respondent) Assessee by Sh. Lalit Mohan, CA Respondent by Sh. Subhra Jyoti Chakaraborty, CIT-DR Date of Hearing 21/12/2023 Date of Pronouncement 23/02/2024 ORDER PER YOGESH KUMAR U.S., JM: This appeal filed by the Assessee against the order of Learned Principal Commissioner of Income Tax, New Delhi-7, [“Ld. PCIT”, for short], dated 31/03/2023 for Assessment Year 2018-19. The following grounds of appeal taken by the assessee: “1. That order dated 31.03.2023 u/s 263 of the Act by the learned Pr. Commissioner of Income Tax, Delhi-7, New Delhi has been made without satisfying the statutory preconditions contained 2 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 2 of 18 in the Act and is therefore without jurisdiction and thus, deserves to be quashed as such. 2. That the learned Pr. Commissioner of Income Tax has failed to appreciate that once the learned Assessing Officer on examination of the facts on record and after making all possible enquiries had accepted claim of the appellant then such an order of assessment could not be regarded as erroneous in as much as prejudicial to the interest of revenue merely because the learned Commissioner of Income Tax had a different opinion and that too, without having established in any manner that, view adopted by the learned Assessing Officer was an impossible or unsustainable view. 3. That further more the learned Principal Commissioner of Income Tax has proceeded to set aside the order on mere speculation, generalized observations, theoretical allegations and assertions, without there being any supporting evidence and is therefore not in accordance with law. 4. That even otherwise the finding that order of assessment is erroneous in as much prejudicial to the interest of revenue on the ground that an amount of Rs.6,19,383*97=60080054 is liable to be in the income of the appellant u/s 56(2)(x)(c)(B) of the Act” is based on factually incorrect assumption, incorrect applicable to the provisions of law and therefore untenable. 5. That finding of the learned Principal Commissioner of Income Tax that “As per the valuation report of M/s Ozone Overseas Pvt. Ltd. the FMV value of these shares is Rs.2,392/-. Thus, the FMV purchases exceeds the price of shares by Rs.97 per share” is not based on correct appreciation of facts on record, legally misconceived, misplaced and untenable. 6. That finding of the learned Principal Commissioner of Income Tax that “assessee has purchased 6,19,383 shares @ Rs.2,295/- for share as against 5,84,531 hares noted in the show cause notice. As per the valuation report of the M/s Ozone Overseas (P) Ltd. the FMV value of these shares is Rs.2,392/-. Thus, the FMV purchases exceeds the price of shares by Rs.97 per shares” is not based on correct appreciation of facts and in law and thus unsustainable. 7. That the learned Pr. Commissioner of Income Tax has also failed to appreciate that, u/s 263 of the Act, an order of assessment cannot be set-aside to simply to make further enquiries and 3 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 3 of 18 thereafter pass fresh order of assessment and as such, impugned order is contrary to law and hence, unsustainable. Prayer- It is therefore prayed that, impugned order dated 31.3.2023 under section 263 of the Act be held to be without jurisdiction and, therefore be quashed and appeal of the appellant company be allowed.” 2. The brief facts of the case are that, Assessee filed its return of loss of Rs.1,30,78,091/-. The case was selected for scrutiny assessment. Assessment was completed u/s 143(3) r.w.s 143(3A) and 143(3B) of the Income Tax act, 1961 (‘Act’ for short) by the National E-assessment Center, Delhi under E-assessment scheme vide order dated 16/03/2021 and current loss of Rs.1,30,78,091/- was allowed to be carried forward to the assessee. The revisionary jurisdiction u/s 263 of the Act was invoked by the PCIT, Delhi-7 and an order u/s 263 of the Act came to be passed by setting aside the assessment order dated 16/03/2021 directing the AO to pass fresh Assessment order by modifying the same after making proper enquiry and verification in following manners:- “4. The submissions of the assessee have been considered carefully, from the details submitted by the assessee, it is noted that the assessee has purchased 6,19,382 shares @ Rs.2295 for shares as against 5,84,531 shares noted in the show cause notice. As per the valuation report of M/s Ozone Overseas Pvt. Ltd. the FMV value of these shares is Rs.2392. Thus, the FMV purchases exceeds the price of shares by Rs.97 per share. As per the provisions of Section 56(2)(x)(C) (B) of the Income Tax Act, 1961. Where any person receives in any previous year any property other than 4 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 4 of 18 immovable property, the aggregate fair market value of such property as exceeds the purchase consideration is liable to be included in the income of the assessee as income from other sources. Thus an amount of Rs.6,19,382 x 97=60080054 is liable to be in the income of the assessee. It is noted that the Assessing Officer has not included this income to the total income declared by the assessee, has been passed by the Assessing Officer without due diligence and without making inquiries or verification which should have been made, is prejudicial to the interest of assessment order which is passed by the assessing officer without making inquiries or verification which should have been made or the order is passed allowing any relief without inquiring into the claim, shall be deemed to be erroneous in so far as it is prejudicial to the interest of the revenue.” 3. Aggrieved by the order dated 31/03/2023 passed u/s 263 of the Act by the PCIT, the Assessee preferred the present appeal on the ground mentioned above. 4. The Ld. Counsel for the assessee submitted that the order impugned dated 31/03/2023 passed u/s 263 of the Act is without satisfying the statutory pre-conditions contained in the Act, the Ld. PCIT failed to appreciate that the AO on examination of facts on record and after making all possible enquiries accepted the claim of the assessee, therefore, the order of the AO cannot be termed as erroneous in as much as prejudicial to the interest of Revenue merely because the Ld. PCIT had a different opinion. Further submitted that the entire observations of the Ld. PCIT is without supporting any evidence, therefore, the same deserves to be set aside. 5 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 5 of 18 5. The Ld. DR relying on the order of the PCIT submitted that the assessment order is erroneous and is prejudicial to the interest of the Revenue, therefore, the Ld. PCIT has rightly invoked the jurisdiction which requires no interference at the hands of the Tribunal. 6. We have heard the parties and perused the materials on record. It is evident from the record that the case of the assessee was originally selected for ‘Complete Scrutiny’ under the E- Assessment Scheme, 2019 on following issues:- (i) Investment/Advances/Loans (ii) Business Loss (iii) Expenses Incurred for Earning Exempt Income (iv) Share Capital/Other Capital 7. A notice u/s 143(2) of the Act has been issued by the A.O. on 22.09.2019 to the assessee to submit the response with supporting documents on the issues for which the case was selected for scrutiny which includes the issue of ‘investments’ which was the subject matter of impugned order passed u/s 263 of the Act. 6 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 6 of 18 8. One more notice has been issued on 21.02.2020 wherein further information has been sought by the AO from the assessee followed by notices dated 14/10/2020 and another reminder dated 25/01/2021. The Assessee filed reply on 01/02/2021 wherein the assessee has provided the copy of the bank statement and bank account details and further provided following documents to the A.O. (i) Copy of ledger account of Assessee Company in the books of Ozone E- Ventures (P) Ltd. for the period 1.04.2017 to 31.03.2018. (ii) Copy of ledger account of Axis Finance Ltd. in the books of Ozone E0Venture (P)( Ltd. for the period 1.04.2017 to 31.03.2018 (iii) Copy of Valuation of Report (iv) Copy of acknowledgement of return of income along with computation of income and financial statement for financial year 2015-16 relevant to assessment year 2016-17. v) Copy of acknowledgement of return of income along with computation of income and financial statement for financial year 2016-17 relevant to A.Y 2017-18. 7 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 7 of 18 9. The Assessing Officer asked the further details vide letter dated 24/11/2020 as follows:- “Please furnish the following documents/information. 1. Detailed note on nature of business carried out during the AY. 2018-19 as well as during last three preceding previous years. 2. Computation of income for the AY 2018-19. 3. Copies of bank statements of all bank accounts with narration for the period 01.04.2017 to 31.03.2018. 4. With respect to the fresh issue of share during the year under consideration, kindly submit the below specified details: a) Name and address of the shareholders. b) PAN of the shareholders. C) Face Value of each share. d) Number of shares allotted to each shareholder. e) Total value of the shares allotted to each shareholder. f) Payment received from each shareholder during the financial year. 5. Provide documentary evidence to substantiate the identity and ITR of last 3 years of the shareholders to substantiate creditworthiness the shareholders as well as the proof of genuineness of transaction in respect of fresh credit of the share capital account. 6. The valuation report with respect to the working of EPS. 7. The comparison of the working of EPS with the immediately prior instance, wherein the shares were allotted. 8. The year wise details of dividend declared during the year and three earlier years. 8 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 8 of 18 1. With respect to investments appearing in balance sheet during the year, kindly provide the following details: a) Nature of the asset b) Purchase consideration c) Date of purchase d) Mode of acquisition e) Source of funds for investment 2. Please furnish the detail of income received on the investment during the year. 3. Please furnish the detail of assets sold during the year along with calculation of capital gain thereon, if any. Annexure Kindly provide following details with respect to the investments during the year under consideration:- 1. Kindly provide following details with respect to the investments: a) Nature of investment. b) Amount of investment. c) Source of investment. d) Interest paid on the fund utilized. 2. Kindly provide monthly opening and closing balance during the year with respect to investments. 3. Kindly provide details of exempt income earned during the year under consideration. 4. Provide following details for the expenses incurred for earning exempt income. a) Direct expenses. 9 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 9 of 18 b) Indirect expense c) Interest paid on borrowed funds utilized for the investment. 5. Computation as per Rule 8D read with section 14A of the Income Tax. The above information may please be submitted with an Index and serially numbered. Please enclose separate Annexure wherever required. All the papers should be duly verified by the authorized signatory properly indexed and should be uploaded online on the e- assessment proceeding in the instant case.” 10. On receipt of the notice dated 24/11/2020 reproduced above, the Assessee filed a reply dated 01/02/2021 which reproduced as under:- “The Assessing Officer National e-Assessment Centre New Delhi. Dear Sir, SUB: Assessment proceedings u/s 143(2) In the case of M/S OZONE E-VENTURES PVT LTD.(AABCO7007K) FOR THE A.Y. 2018-19 Dear Sir/Madam, We are in receipt of notice u/s 142(1) dated 24.11.2020 vide DIN:- ITBA/AST/F/142(1)/2020- 21/1028711478(1). In this regard we enclose part details as required in the notice:- 1. The assessee Company was carrying out e-commerce trading as well as retail trading business of all types of mobile phones accessories such as speakers, tempered glass, data cables etc and medical devices. The assessee Company was doing the same business in the preceding three previous years too and there is no change of business. 2. We enclose copy of computation of income for the year under review for records and perusal. 10 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 10 of 18 3. Copies of bank statements for the year under review are enclosed. The assessee Company had maintained following bank accounts details of the same are as under:- S. No. Name of Bank Address Account No. 1 Yes Bank KIRITI NAGAR, NEW DELH 034081300000227 2 HDFC Bank Bali Nagar, New Delhi 034081300000227 3 Axis Bank Moti Nagar, New Delhi 917020075874440 The assessee Company had issued fresh preference shares of Rs. 90 cr to Ozone Overseas Pvt. Ltd. The details of the allottee of preference shares for the year under review is as under:- a. Name & Address Nagar, :- Ozone Overseas Private Limited, H-40, Bali New Delhi-110015. b. PAN :- AAACO3093J c. Face Value of each share :- Rs. 10 each share d. Number of shares allotted:- 9,00,00,000 shares e. Total value of the shares:- 9,00,00,000/- f. Payment received during Financial Year:- 9,00,00,000/- received in F.Y 2017-18 The balance details are under compilation and we seek time till the 15 th February, 2021 for submission.” 11 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 11 of 18 11. Further the assessee has submitted a reply dated 24/02/2021 by producing the copy of the IETR, computation of income of Ozone Overseas Pvt. Ltd. for last three years and also produced the audited financial statement of the said company. The assessee has also provided the valuation of the shares. The reply dated 24/02/2021 filed by the assessee are reproduced as under:- Date: 24.02.2021 The Assessing Officer National e-Assessment Centre New Delhi. Dear Sir SUB: Assessment proceedings u/s 143(2) In the case of M/S OZONE E-VENTURES PVT LTD.(AABCO7Q07K) FOR THE A.Y. 2018-19 Dear Sir/Madam, We are in receipt of notice u/s 142(1) dated 24.11.2020 vide DIN:- ITBA/AST/F/142(l)/2020- 21 1028711478(1). In this regard we enclose details as required in the notice:- Annexure 1. We enclose ITR & Computation of Ozone Overseas Pvt Ltd for last 3 years. Ozone Overseas Pvt Ltd is a company incorporated late 1999 and having revenue from operations of Rs. 268 cr. and average PAT for 3 years is above Rs. 20 cr which proves ihe credit worthiness of the shareholder. Further we are also enclosing the audited financial statements of Ozone Overseas which shows the net worth of the Company over the year as follows:- 2. The redeemable preference shares were issued at par as there was no requirement for any valuation in this case. The Company had not issued any equity shares to Ozone Overseas Private Limited 3. As already stated, no equity shares were allotted in the year under review and immediate preceding year and the working of EPS is not relevant for issue of Redeemable Preference Shares. (Rs. In cr) Financial year Sales/Income PAT Net Worth Investment/Bank FY 2015-16 214.65 14.66 126.87 42.29 FY 2016-17 252.32 21.19 166.65 30.45 FY 2017-18 274.94 23.96 192.62 18.94 12 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 12 of 18 4. The Company has not declared any dividend during the year under review nor in any previous 3 years. The Company had been suffering losses in the past as is evident from the audited financial statements enclosed. Annexure B 1. The assessee Company had made investment in purchasing equity shares of Ozone Overseas Pvt. Ltd. in the year under review which are duly reflecting in the audited financials of company. As required details of investment made during the year is as under:- S. No. Nature of Asset Purchase Consideration (Rs.) Date of Purchase Mode of Acquisition Source of funds for Investment 1 607067 Equity Shares 1,39,35,04,08 6/- 17.11.2017 By Bank Transfer Issue of Preference Shares and Loan from Axis Finance Limited /Sale proceeds 2. 2667 Equity Shares 61,22,018/- 15.12.2017 By Bank Transfer Issue of Preference Shares and Loan from Axis Finance Limited /Sale proceeds 3. 342 Equity Shares 7,85,051/- 20.12.2017 By Bank Transfer Issue of Preference Shares and Loan from Axis Finance Limited /Sale proceeds 4. 244 Equity shares 5,60,095/- 20.12.2017 By Bank Transfer Issue of Preference Shares and Loan from Axis Finance Limited /Sale proceeds 5. 1136 Equity Shares 20,67,654/- 25.03.2018 By Bank Transfer Issue of Preference Shares and Loan from Axis Finance Limited /Sale proceeds 6. 801 Equity Shares 18,38,671/- 25.03.2018 By Bank Transfer Issue of Preference Shares and Loan from Axis Finance Limited /Sale proceeds 7. 459 Equity Shares 10,53,621 /- 25.03.2018 By Bank Transfer Issue of Preference Shares and Loan from Axis Finance Limited /Sale proceeds 8. 646 Equity Shares 14,82,874/- 25.03.2018 By Bank Transfer Issue of Preference Shares and Loan from Axis Finance Limited /Sale proceeds 13 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 13 of 18 Copy of Ledger account of Investment is enclosed for records. The Shares were purchased at an average rate of Rs. 2295.47 per share. Valuation report of Ozone Overseas Shares is enclosed for records and approval. The Assessee Company has also sold part of the shares purchased on 7.12.2017 and 14.12.2017 at the purchase price to the following persons:- i. Dinesh Kumar Jhunjhunwela 8713 Shares 2,00,00,430/- ii. Gaurav Kumar Jhunjhunwela 13069 Shares 2,99,99,497/- iii. S Chand Properties (P) Ltd. 13069 Shares 2,99,99,497/- No Capital Gains accrued on the sale as the same were sold at the acquisition price of Rs. 2295.47 per share within a span of less than one month. Thus a net total Investment of Rs. 134,16,58,603/- was made out of funds as discussed above. The Company sources for acquisition of shares are as follows:- 9. 708Equity Shares 16,25,193/- 25.03.2018 By Bank Transfer Issue of Preference Shares and Loan from Axis Finance Limited /Sale proceeds 10. 629 Equity Shares 14,43,851/- 25.03.2018 By Bank Transfer Issue of Preference Shares and Loan from Axis Finance Limited /Sale proceeds 11. 339 Equity Shares 7,78,164/- 25.03.2018 By Bank Transfer Issue of Preference Shares and Loan from Axis Finance Limited /Sale proceeds 12. 685 Equity Shares 14,57,623 25.03.2018 By Bank Transfer Issue of Preference Shares and Loan from Axis Finance Limited /Sale proceeds 13. 2463 Equity Shares 56,49,152/- 25.03.2018 By Bank Transfer Issue of Preference Shares and Loan from Axis Finance Limited /Sale proceeds 14. 667 Equity Shares 15,31,079/- 25.03.2018 By Bank Transfer Issue of Preference Shares and Loan from Axis Finance Limited /Sale proceeds 15. 531 Equity Shares 12,18,895/- 25.03.2018 By Bank Transfer Issue of Preference Shares and Loan from Axis Finance Limited /Sale proceeds 14 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 14 of 18 Loan from Axis Finance Limited Rs. 51.00 cr Issue of Redeemable Preference Shares Rs. 90.00 cr Total Rs. 141.00 cr Ledger account of Axis Finance Limited is enclosed for records. Further the Interest paid on loan of Rs. 2.12 cr to Axis finance limited was also capitalized to the cost of investments. Thus the total Investment value as on 31.3.2018 stood at Rs. 136.28 cr 2. No Income has been received on the investments made by the Company during the year under review. 3. The Assessee Company has also sold part of the shares purchased on 7.12.2017 and 14.12.2017 at the purchase price to the following persons:- Dinesh Kumar Jhunjhunwela 8713 Shares 2,00,00,430/- Gaurav Kumar Jhunjhunwela 13069 Shares 7,99,99,497/- S Chand Properties (P) Ltd. 13069 Shares 2,99,99,4977- No Capital Gains accmed on the sale as the same were sold at the acquisition price of Rs. 2295.47 per share within a span of less than one month. Annexure C 1. Details with respect to Investment are as under:- a. Nature of Investment- Equity Shares of Ozone Overseas Private Limited were acquired b. Net Total Investment of Rs. 134.17 cr c. Source of Investment- Loan from Axis Finance Limited Rs. 51.00 cr. I ssue of Redeemable Preference Shares Rs. 90.00 cr Total Rs. 141.00 Cr. d. Interest paid on fund utilized- The Interest paid on funds utilized on loan taken from Axis Finance Limited amounting to Rs. 2,11,96,866/- up to 31.3.2018 has been capitalized to Investment. TDS of Rs. 21,19,688/- was deducted and deposited on the Interest Paid on Loan to Axis Finance Limited. Monthly opening and closing balances with respect to Investments is as below:- 15 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 15 of 18 3. No exempt income was earned during the year from the Investments made. In fact, all the interest paid on the loan taken to fund the investment stands capitalized to investment. It is also to be considered that a sum of R’s. 14,53,868/- was earned on FDR kept with Axis Bank Limited out of the loan proceeds and the same has been treated as part of Profit & Loss Account. 4. As already stated no exempt income was earned and neither any expense was incurred on the investments made. The entire interest paid stands capitalized to cost of Total Investment. 5. Rule 8D read with Section 14A of the Income Tax Act is not applicable to the assessee Company as no expenses were incurred, no exempt income as earned and besides the interest paid on loan availed stands capitalized. All the details sought for in the questionnaire stands submitted. In case any other information is required, the same shall be promptly attended to. We regret the delay in providing the replies to information sought for. Thanking You, For ANIL KHATRI & CO. Chartered Accountants -sd/- Authorized Signatory Encl: As Above 12. The shares purchased by the assessee at an average rate of Rs. 22,95.47 per share, the FMU value of the share is Rs. 2392 as per DCF Method and the NAV of the share is Rs. 835. Thus, it is the case of the assessee that the April Opening Balance Closing Balance May - - June - - July - - August - - September - - October November 1,393,504,086 1,393,504,086 December 1,393,504,086 1,320,971,826 January 1,320,971,826 1,320,971,826 February 1,320,971,826 1,320,971,826 March 1,320,971,826 1,341,658,603 16 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 16 of 18 assessee has brought shares at more than NAV. The ld. A.O. after examining the valuation and other particulars of the investment has made no addition. The Ld. PCIT observed that as per the provision of Section 56(2) (x)(c)(B) of the Act where a person received any previous year, any property other than immovable property the aggregate fair market value of such property has exceed the purchase consideration is liable to be included in the income of the assessee as income from other source, therefore, an amount of Rs. 6,19,382 x 97 i.e equal to 6,00,80,054/- is liable to be income of the assessee. The option to adopt either NAV or DCF Method for valuing the shares has been given to an Assessee in the statute itself. When the A.O. has appreciated this option availed by the Assessee, his order cannot be construed as erroneous. 13. From the above, it is observed that it is not a case wherein the Assessing Officer failed to conduct enquiry rather it is the case wherein the Assessing Officer has conducted an elaborate enquiry and adopted one of the two views which was plausible view. The question would be as to whether in such circumstances the power u/s 263 of the Act would be invoked or not. The above said question is no longer res-integra and the said issue is well settled in several decisions. In the case of Malabar Industrial Co. Ltd. vs. Commissioner of Income Tax, (2000) 243 ITR 83 (SC). The Hon’ble Supreme Court held as follows :- 17 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 17 of 18 “The phrase “prejudicial to the interests of the Revenue” has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue ; or where two views are possible and the Income-tax Officer has taken one view which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law.” 14. Further, the Hon’ble Supreme Court in the case of Pr. CIT vs. Canara Bank Securities Ltd., S.L.P.(C) No. 25651 of 2019, vide order dated 14th October, 2019 dismissed the Department’s appeal affirming the view taken by the Bombay High Court in ITA No.1761 of 2016, dated February 11, 2019, wherein the High Court held that the question whether the income should be taxed as business income or has arisen from other source was a debatable issue and the Assessing Officer had taken the plausible view that it was a business income after due enquiries and therefore not open for the Commissioner to take such an order in revision. Therefore, following the ratio laid down by the Hon’ble Supreme Court in Malabar Industrial Co. Ltd. vs. Commissioner of Income Tax (supra) and other decisions mentioned above, we 18 ITA No.1535/Del/2023 M/s Ozone Overseas (P) Ltd. vs. PCIT Page 18 of 18 are of the considered opinion that the impugned order of the Ld. PCIT is found to be erroneous, accordingly, order impugned of the Ld. PCIT is hereby quashed. 15. In the result, appeal filed by the Assessee is allowed. Order pronounced in open Court on 23 rd February, 2024. Sd/- Sd/- (M. BALAGANESH) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 23/02/2024 Pk/R.N, Sr ps Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI