Syamal Kumar Pandey, Hooghly V. CIT, Kol-XX, Kolkata, Kolkata

ITA 1645/KOL/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75071 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 28-11-2011
• Court: TRIBUNAL
• Department Lawyers: AMIT KUMAR MAITRA
• Keywords: Revision of order; Depreciation; Principle of natural justice
• Section: 143(3); 142(1); 147; 148; 263

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND . . . . ' '' ''# '#'# '#, $% ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI ABRAHAM P. GEORGE, AM] & & & & / I.T.A NOS. 1644 & 1645/KOL/2011 '( )* '( )* '( )* '( )*/ // / ASSESSMENT YEARS: 2006-07 & 2007-08 SYAMAL KUMAR PANDEY VS. COMMISSIONER OF INCOME- TAX, KOL-XX (PAN: AFLPP0744G) (,- /APPELLANT ) (./,-/ RESPONDENT ) DATE OF HEARING: 30.01.2014 DATE OF PRONOUNCEMENT: 13.02.2014 FOR THE APPELLANT: SHRI SOMNATH GHOSH, ADVOCATE FOR THE RESPONDENT: SHRI AMIT KUMAR MAITRA, JCIT , SR. DR $0 / ORDER PER SHRI MAHAVIR SINGH, JM: THESE APPEALS BY ASSESSEE ARE ARISING OUT OF SEPARA TE REVISION ORDERS OF CIT-XX, KOLKATA IN F. NO. CIT/KOL-XX/28/REVIEW U/S. 263/201 1-12/2079-81 DATED 27.09.2011 AND F. NO. CIT/KOL-XX/28/REVIEW U/S. 263/2011-12/2149-51 D ATED 30.09.2011 . ASSESSMENTS WERE FRAMED SEPARATELY BY ACIT, CIRCLE-2, HOOGHLY U/S. 1 47 R.W.S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASS ESSMENT YEARS 2006-07 & 2007-08 VIDE HIS ORDERS DATED 05.05.2010 AND 07.12.2009. 2. THE ONLY COMMON ISSUE IN THESE TWO APPEALS OF AS SESSEE IS AGAINST THE REVISION ORDER OF CIT, KOL-XX PASSED U/S. 263 OF THE ACT. SINCE FACTS ARE IDENTICAL AND GROUNDS ARE COMMON, WE REPRODUCE THE FOLLOWING GROUNDS TAKEN BY ASSESSEE F OR AY 2006-07: I. FOR THAT NONE OF THE CONDITIONS PRECEDENT FOR T HE ASSUMPTION OF JURISDICTION U/S. 263 OF THE INCOME TAX ACT, 1961 EXISTED AND/OR HAS BEEN COMPLIED WITH AND/OR FULFILLED ON THE PART OF THE LD. COMMISSIONER OF INCOME TAX, KOLKATA XX, KOLKATA IN THE INSTANT CASE AND THE IMPUGNED ORDER PASSED IN PURSUANCE THE RETO IS AB INITIO VOID, ULTRA VIRES AND EX-FACIE NULL IN LAW. 11. FOR THAT ON A PROPER CONSPECTUS, THE LD. COMMS SIONER OF INCOME TAX, KOLKATA: XX, KOLKATA FAILED TO APPRECIATE THE DISTINCTIVE FE ATURES AND ATTRIBUTES OF THE STTL EVEREST SYSTEN PHACO EMULSIFICATION MACHINE IN THE PROPER PERSPECTIVE WHICH, IN FACT, PARTAKES OF THE CHARACTER OF A COMPUTER PER SE AND THE ASSUMPTION OF JURISDICTION U/S. 263 OF THE INCOME TAX ACT, 1961 ON SUCH INTRINSICAL IY WRONG INTERPRETATION IS WHOLLY ARBITRARY, UNJUSTIFIABLE AND PERVERSE. 2 ITA NOS. 1644-1645/K/2011 SYAMAL KR. PANDEY , AY:2006-07& 07-08 111. FOR THAT THE PREMISE OF THE LD. COMMISSIONER O F INCOME TAX, KOLKATA XX, KOLKATA FOR ISSUANCE OF THE IMPUGNED DIRECTION TO R EFRAME THE ASSESSMENT BY RESTRICTING THE DEPRECIATION ON STTL EVEREST SYSTEM PHACO EMULS IFICATION MACHINE TO 15% CONSTRUING THE SAME TO BE PLANT & MACHINERY AS AGAI NST 60% APPROPRIATELY ALLOWED BY THE LD. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCL E 2, HOOGHLY CLASSIFYING IT AS A COMPUTER WITHIN THE MEANING ATTRIBUTED UNDER PART A 111 (5) OF THE NEW APPENDIX I IS UNFOUNDED AND THE PURPORTED CONCLUSION REACHED ON S UCH BASIS IS ENTRELY CAPRICIOUS, UNFAIR AND PERVERSE. IV. FOR THAT THE ACTION OF THE LD. COMMISSIONER OF INCOME TAX, KOLKATA XX, KO1KATA IN CONCEIVED THAT THE ASSESSMENT ORDER PASSED U/S. 147/143(3) OF THE INCOME TAX ACT, 1961 BY THE LD. ASSISTANT COMMISSIONER OF INCOME TA X, CIRCLE 2, HOOGHLY AFTER DUE APPLICATION OF MIND AND CONSIDERING THE SUBMISSIONS MADE ELUCIDATING THE ISSUE WAS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF REVENUE, IS WRONG, FLAWED AND PERVERSE IN THE CIRCUMSTANCES OF THE INSTANT CASE. 3. BRIEFLY STATED FACTS ARE THAT FOR THE RELEVANT A SSESSMENT YEAR 2006-07 ASSESSEE FILED HIS RETURN OF INCOME ON 28.08.2006, WHICH WAS PROCESSED U/S. 143(1) OF THE ACT ON 16.11.2007. SUBSEQUENTLY, THE AO NOTICED FROM THE RETURN OF INC OME THAT ASSESSEE HAS CLAIMED DEPRECIATION ON COMPUTERISED PROFESSIONAL INSTRUMENTS (IN SHORT CPI) @ 60% INSTEAD OF 15% AND ACCORDING TO HIM, THERE IS ESCAPEMENT OF INCOME IN TERMS OF P ROVISIONS OF SECTION 147 OF THE ACT AND THEREBY HE ISSUED NOTICE U/S. 148 OF THE ACT BY REC ORDING THE REASONS. THE AO WHILE COMPLETING ASSESSMENT U/S. 143(3) R.W.S. 147 OF THE ACT ACCEPTED THE CLAIM OF THE ASSESSEE REGARDING DEPRECIATION @ 60% ON CPI. SUBSEQUENTLY, THE CIT, KOL-XX ISSUED SHOW CAUSE NOTICE U/S. 263 OF THE ACT FOR REVISION OF ASSESSME NT FRAMED U/S. 143(3) R.W.S. 147 OF THE ACT VIDE HIS SHOW CAUSE NOTICE NO. CIT-XX/KOL/28/REV.26 3/2011-12/778 DATED 23/24.06.2011. THE CIT ASSUMED JURISDICTION U/S. 263 OF THE ACT ON THE GROUND THAT THIS ASSESSMENT IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E FOR THE REASON FOR ACCEPTING THE CLAIM OF ASSESSEE I.E. CPI I.E. STTL EVEREST SYSTEM PHACO EM ULSIFICATION MACHINE, WHICH WAS PURCHASED FROM ALCON LABORATORIES (INDIA) PVT. LTD. ON 13.06.2005 FOR A TOTAL CONSIDERATION OF RS.15,40,000/- INSTALLED AND STARTED OPERATION FROM 01.07.2005. ACCORDINGLY, CIT, KOL-XX REVISED THE ASSESSMENT BY OBSERVING AS UNDER: THE NTERPRETATION ADOPTED BY THE A.O. IN THE ASSE SSMENT ORDER REGARDING THE CLASSIFICATION OF THE PHACO EMULSIFICATION MACHINE AS A COMPUTER IS BLATANTLY ERRONEOUS, BECAUSE AS DISCUSSED ABOVE THE I.T. RULE S NOWHERE INTEND TO INCLUDE THE SOPHISTICATED AND AUTOMATIC MEDICAL EQUIPMENTS UTIL IZING HARDWARE AND SOFTWARE IN THEM UNDER THE CATEGORY OF COMPUTERS WHICH IS ELI GIBLE TO A HIGHER RATE OF DEPRECIATION. OWING TO THIS ERRONEOUS VIEW ON THE P ART OF THE A.O. THE ASSESSMENT ORDER HAS SIMULTANEOUSLY BEEN RENDERED ERRONEOUS. AS A R ESULT OF THIS ACTION OF THE A.O. EXCESS DEPRECIATION AMOUNTING TO RS.8,00,279/- HAS BEEN ALLOWED BY HIM TO THE ASSESSEE IN RESPECT OF THE PHACO EMULSIFICATION MACHINE. CON SEQUENTLY THE ASSESSEES TAXABLE INCOME FOR THE RELEVANT ASSESSMENT YEAR HAS BEEN QU ANTIFIED AT A LESSER FIGURE, THEREBY RESULTING IN A LOWER TAX LIABILITY RAISED ON THE AS SESSEE. IN THE PROCESS THE INTEREST OF THE REVENUE GOT PREJUDICED. IN OTHER WORDS, THE INSTANT ASSESSMENT ORDER IS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE. THE CONTENTION OF THE LD. A.RS THAT THE A.O. 3 ITA NOS. 1644-1645/K/2011 SYAMAL KR. PANDEY , AY:2006-07& 07-08 HAD ADOPTED ONE OF THE TWO POSSIBLE VIEWS IS NOT AT ALL TENABLE BECAUSE NEITHER THE I.T. ACT NOR THE I.T. RULES GIVES RISE TO ANY AMBIGUITY OR AMBIVALENCE ABOUT THE RATE OF DEPRECIATION MEANT FOR THE GENERAL MEDICAL EQUIPMEN TS. SINCE THE DEPRECIATION RATE PRESCRIBED FOR THIS KIND OF MEDICAL INSTRUMENT IS U NEQUIVOCALLY 15%, THERE S NO SCOPE FOR THE EXISTENCE OF TWO VIEWS. HENCE THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF M/S MALABAR INDUSTRIAL CO. LTD AS RELIED UPON BY THE LD. A.RS IS NOT APPLICABLE TO THE ASSESSEES CASE. THE CONTENTIONS OF THE LD. A.RS. A RE ACCORDINGLY REJECTED. I AM THUS OF THE CONSIDERED OPINION THAT THE ASSESSMENT ORDER DA TED 05.05.2010 IS ABSOLUTELY ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF REVENUE. HENCE I SET ASIDE THE IMPUGNED ASSESSMENT ORDER U/S 263 OF THE I.T. ACT, 1961 WITH THE DIRECTION TO THE A.O. TO FRAME THE SAME DE NOVO BY TAKING INTO ACCOUNT THE F ACTS AND THE LEGAL POSITION DISCUSSED ABOVE. NEEDLESS TO MENTION THAT WHILE RE-DOING THE ASSESSMENT, THE ASSESSING OFFICER SHALL AFFORD A REASONABLE OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. AGGRIEVED, NOW ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. AT THE OUTSET, WE FIND THAT THE NOTICE U/S. 148 OF THE ACT WAS ISSUED ON 17.06.2009 AND FOR THE SAME, REASONS RECORDED ON 17.06.2009 READS AS UNDER : RETURN OF INCOME FILED BY THE ASSESSEE DISCLOSING TOTAL INCOME OF RS.42,37,637/- WAS PROCESSED U/S. 143(1) ON 16.11.07. SUBSEQUENTLY IT WAS NOTICED THAT THE ASSESSEE CLAIM ED DEPRECIATION ON COMPUTERISED PROFESSIONAL INSTRUMENTS @ 60% AND THE SAME WAS ALL OWED, WHICH IS NOT APPROPRIATE AS COMPUTERISED PROFITS SHOULD NOT BE COVERED UNDER COMPUTER & COMPUTER SOFTWARE. INSTEAD, THIS SHOULD HAVE BEEN TREATED AS NORMAL PL ANT & MACHINERY AND WAS REQUIRED TO BE ALLOWED DEPRECIATION @ 15% INSTEAD OF 60%. IT IS FURTHER NOTICED THAT THE ASSET COMPUTERIZED P ROF. INST. VALUED AT RS.15,40,000/- WHICH WAS ADDED AFTER 30.09.05 SO THAT ON THE ABOVE AMOUN T DEPRECIATION SHOULD BE ALLOWED @ 7.5% THUS THERE AS UNDER-STATEMENT/UNDER-ASSESSMENT BY INCOME OF RS.9,15,779/-. HENCE, NOTICE U/S. 148 OF THE I. T. ACT, 1961 IS IS SUED. LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO PAGE 24 OF THE ASSESSEES PAPER BOOK, WHEREBY NOTICE U/S. 142(1) ALONG WITH QUESTIONNAIRE WAS ISSUED VIDE LETTER NO. ACIT/CIR- 2/HG/SCRUTINY/S K PANDEY (51)/2009-10/445 DATED 08. 02.2010, WHEREIN THE ISSUE OF DEPRECIATION ON CPI WAS QUESTIONED. THE RELEVANT P ORTION READS AS UNDER: FOR YOUR KIND INFORMATION AND RECORD, THE REASON O F INITIATION OF PROCEEDINGS U/S.147 OF THE I.T. ACT, 1961 IS GIVEN HEREUNDER: 1. DEPRECIATION ON COMPUTERIZED PROFESSIONAL INSTRUMEN T WAS CLAIMED @ 60% WHICH WAS INAPPROPRIATE AS COMPUTERIZED PROFES SIONAL INSTRUMENTS CANNOT BE COVERED UNDER COMPUTER & COMPUTER SOFTWA RE. THOSE ASSETS SHOULD HAVE BEEN TAKEN AS NORMAL PLANT & MACHINERY AND WAS REQUIRED TO BE ALLOWED DEPRECIATION @ 15% INSTEAD OF @ 60%. 2. COMPUTERIZED PROFESSIONAL INSTRUMENTS VALUED AT RS.15,40,000/- WAS ADDED AFTER 30/09/2005 THOUGH THE DEPRECIATION WAS CLAIME D @ 60%. IT SHOULD BE @ 50% OF NORMAL RATE OF DEPRECIATION, (I.E. 15%) ON T HE AMOUNT OF RS.15,40,000/- 4 ITA NOS. 1644-1645/K/2011 SYAMAL KR. PANDEY , AY:2006-07& 07-08 ,WHICH WAS ADDED AFTER 30/09/2005.THEREFORE, THE EL IGIBLE AMOUNT OF DEPRECIATION SHOULD HAVE BEEN ALLOWED @ 7.5%. LD. COUNSEL FOR THE ASSESSEE ALSO TOOK US TO ASSESS MENT ORDER WHEREIN THE CLASSIFICATION OF CPI IS DISCUSSED VIDE PARA 3, 4 AND 5 AS UNDER: 3. THE ORIGINAL DOCUMENTS IN CONNECTION WITH PURCH ASE OF THE PHACO EMULSIFICATION MACHINE AND SUBSEQUENT INSTALLATION CERTIFICATE HAV E BEEN VERIFIED AND FOUND IN ORDER. ASSESSEE WAS RIGHTLY ENTITLED 100% DEPRECIATION ON THE APPLICABLE RATE FOR THE CCMPUTERIZED PROFESSIONAL INSTRUMENT. 4. THE REMAINING QUESTION FOR APPLICABITITY OF THE ALLOWABLE RATE FOR THE SAID COMPUTERIZED PROFESSIONAL INSTRUMENT WAS POINTED BE FORE THE ASSESSEE. ASSESSEE WAS CLARIFIED THAT THE TAX INVOICE PURPORTEDLY ISSUED B Y M/S. ALCON LABORATORIES (INDIA) PVT. LTD. HAD CLEARLY STATED THAT THE SAID MACHINE WAS FULLY COMPUTERIZED. HE HAD ALSO MENTIONED THAT THE INSTALLATION CERTIFICATE ISSUED BY THE SERVICE ENGINEER, WHICH WAS ISSUED ON 01/07/2005 HAD CLEARLY MENTIONED THE FOLL OWING: PERFORMED S.T.P. CHECKED ALL THE SOFTWARE AND HARD WARE PART OF THE MACHINE ARE FOUND WORKING FINE.. ASSESSEE HAD, THEREFORE, STRESSED THAT THE MACHINE SHOULD NOT BE TREATED AS MERE TOOLS OR INSTRUMENT; RATHER IT SHOULD BE TREATED AS COMPU TER FOR THE PURPOSE OF CALCULATION OF DEPRECIATION. 5. THE POINTS RAISED BY THE ASSESSEE IN CONNECTION WITH APPLICABLE RATE IN THE CASE OF PHACO EMULSIFICATION MACHINE HAS BEEN C ONSIDERED. IN THE INCOME TAX RULES, NO SEPARATE RATE OF DEPRECIATION HAS BEEN PR ESCRIBED FOR THIS MACHINE. AGAIN, IT IS ALSO TRUE THAT THE SAID MACHINE CONTAINS SOFTWAR E AS WELL AS HARDWARE AS CONVENTIONAL COMPUTERS. THEREFORE, CONTENTION OF TH E ASSESSEE REGARDING 60% DEPRECIATION CLAIM ON THE SAID MACHINE CANNOT BE IG NORED. FOR THE PURPOSE OF NATURAL JUSTICE, 60% DEPRECIATION ON THE STTL EVEREST SYSTE M, PHACO EMULSIFICATION MACHINE IS ALLOWED. AND ALLOWED DEPRECIATION BY THE AO WHILE COMPLETING ASSESSMENT U/S. 143(3) READ WITH SECTION 147 OF THE ACT AT 60% AND SUBSEQUENTLY, AS NOTED AB OVE, THE CIT, KOL-XX HAS PASSED REVISION ORDER FOR THE SAME REASON. IT MEANS THAT THE AO WH ILE COMPLETING ASSESSMENT U/S. 143(3) R.W.S. 147 OF THE ACT HAS FORMED AN OPINION. WE FIND THAT THE CIT RESTED HIS FINDINGS ON THE ISSUE THAT THE AO HAS ERRONEOUSLY ACCEPTED THE DEPRECIATION CL AIMED BY THE APPELLANT @ 60% ON THE STTL EVEREST SYSTEM PHACO EMULSIFICATION MACHINE CL ASSIFYING THE SAME TO BE A COMPUTER. IN THE INSTANT CASE, THE ELEMENTS WHICH CONSTITUTE A C OMPUTER WERE FULLY INCORPORATED AND/OR EXISTED IN THE STTL EVEREST SYSTEM PHACO EMULSIFICA TION MACHINE AND NO MANUALLY OPERABLE ITEMS WERE INVOLVED THEREIN. THE AO CONSIDERED TWO IMPORTANT AND CONCLUSIVE PIECE OF EVIDENCE IN SUPPORT OF HIS FINDING OF ACCEDING TO T HE CLAIM OF DEPRECIATION MADE BY THE ASSESSEE RELYING UPON THE TAX INVOICE ISSUED BY THE SELLER A LCON LABORATORIES (INDIA) PVT. LTD. AND CERTIFICATE OF INSTALLATION ISSUED BY THE SERVICE E NGINEER. IT IS AN ADMITTED FACT THAT THE SELLER OF THE MACHINE ALCON LABORATORIES (INDIA) PVT. LTD. IN ITS INVOICE HAS CLEARLY CATEGORIZED THE 5 ITA NOS. 1644-1645/K/2011 SYAMAL KR. PANDEY , AY:2006-07& 07-08 MACHINE AS ONE WHICH IS FULLY COMPUTERIZED. FURTHER , THE SERVICE ENGINEER, WHO INSTALLED THE MACHINE, HAS DULY CERTIFIED THAT PERFORMED S.T.P. CHECKED ALL THE SOFTWARE AND HARDWARE PART OF THE MACHINE ARE FOUND WORKING FINE. THEREFORE, THERE IS NO DOUBT OR DISPUTE TO ACCEPT THE FACT THAT THE IN-BUILT MECHANISM IN THE STTL EVERE ST SYSTEM PHACO EMULSIFICATION MACHINE ABOUT INCORPORATION OF HARDWARE AND SOFTWARE PARTS, WHICH ARE NOTHING BUT ONLY COMPONENTS OF A COMPUTER. IT IS A FACT THAT THE SERVICE ENGINEER IS THE AUTHORITY IN THIS LINE AND HIS CLASSIFICATION AND IDENTIFICATION OF THE NATURE OF THE MACHINE AND OPINION IS THAT OF AN EXPERT AND AS SUCH, CANNOT BE BRUSHED ASIDE AND SUBSTITUTE D BY A PRESUMPTIVE OPINION OF A TOTALLY NON- TECHNICAL PERSON, THE CIT IN THIS CASE, BASING HIS IDEA ON SOME GENERAL OBSERVATIONS ABOUT IN- BUILT MECHANISM AND ULTIMATE FUNCTIONING OF SUCH SO PHISTICATED MACHINE. THEREFORE, THE OPINION CONCEIVED BY ASSESSING OFFICER RELYING ON T HE CERTIFICATION BY THE SELLER AND THE ENGINEER CANNOT BE TERMED ERRONEOUS THAT TOO BY A N OPINION OF A NON-TECHNICAL PERSON LIKE THE CIT AND IN SUCH CIRCUMSTANCES, SETTING ASIDE THE AS SESSMENT TO RECALCULATE DEPRECIATION AT 15% INSTEAD OF 60% ALLOWED EARLIER WAS NOTHING BUT SUBS TITUTION OF ONE OPINION MERELY ON GUESSWORK IN PLACE OF ONE THE POSSIBLE CONCLUSION B ASED ON APPROPRIATE INFORMATION AND DOCUMENTS. THE ASSESSING OFFICER DULY AND APPROPRIA TELY ARRIVED AT THE CONCLUSION BY OPTING FOR THE BEST POSSIBLE OPINION UNDERLINED BY EVIDENC E WHICH CANNOT BE TERMED AS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE . IN ABSENCE OF PRESCRIPTION OF SPECIFIC RATE OF DEPRECIATION FOR STTL EVEREST SYSTEM PHACO EMULSIFI CATION MACHINE UNDER THE NEW APPENDIX IN INCOME TAX RULES, 1962 THE ASSESSING OFFICER THU S TOOK THE MOST REASONABLE AND POSSIBLE VIEW BASING UPON EVIDENCE; THE VERACITY OF WHICH CA NNOT BE SUBSTITUTED FOR TAKING ANOTHER VIEW IN THE MATTER RELYING UPON SPECULATION AND SURMISES AND THEREFORE, THE APPELLANT HAS RIGHTLY CLAIMED DEPRECIATION AT 60% ON SUCH INSTRUMENT. IT IS PRECISELY SETTLED BY HONBLE APEX COURT IN THIS RESPECT THAT AN ORDER OF ASSESSMENT PASSED BY AN ITO, THEREFORE, SHOULD NOT BE INTERFERED WITH ONLY BECAUSE ANOTHER VIEW IS POSSIBLE C.I.T. V S. GREENWORLD CORPORATION (2009) 314 ITR 81 (SC). IT IS ALSO SETTLED BY HONBLE SUPREME COUR T THAT IF THE ASSESSING OFFICER ADOPTS ONE OF THE POSSIBLE COURSES AVAILABLE IN THE SCHEME OF INC OME TAX WHICH RESULTS IN ANY LOSS OF REVENUE OR WHEN TWO VIEWS ARE POSSIBLE AND THE AO ADOPTED O NE OF THE AFORESAID RECOURSES AVAILABLE IN LAW WITH WHICH THE CIT DOES NOT AGREE, IT WOULD NOT BE AN ORDER PREJUDICIAL TO THE INTEREST OF REVENUE FOR INVOKING JURISDICTION U/S. 263 OF THE A CT. IN SUCH CASE, THE PROVISION OF S. 263 OF THE ACT WOULD BE INAPPLICABLE UNLESS IT IS SPECIFICALLY FOUND THAT THE COURSE FOLLOWED BY THE ASSESSING OFFICER IS ULTRA VIRES THE SCOPE ON THE P ROVISION OF LAW AS HELD IN MALABAR INDUSTRIAL CO. LTD. VS. CIT (2000) 243 ITR 83 (SC). IN THE INS TANT CASE, ON APPRAISAL OF THE SAME RECORDS WHICH ARE ALREADY WITH THE ASSESSING OFFICER, THE C IT TOOK A DIFFERENT VIEW THAN THAT ADOPTED 6 ITA NOS. 1644-1645/K/2011 SYAMAL KR. PANDEY , AY:2006-07& 07-08 BY HIS SUBORDINATE ON THE SAME SET OF FACTS, IT IS NOT PERMISSIBLE TO ASSUME JURISDICTION U/S. 263 OF THE ACT. IN THE ABOVE CIRCUMSTANCES, THE VIEW TA KEN BY THE ASSESSING OFFICER WAS ONE OF THE POSSIBLE VIEWS AND THE ASSESSMENT ORDER PASSED BY H IM COULD NOT BE CONSIDERED TO BE ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTERESTS OF REVENU E AND THE ACTION OF CIT OF ASSUMING JURISDICTION U/S. 263 OF THE ACT AND DIRECTING THE ASSESSING OFF ICER TO REDO THE ASSESSMENT IS WHOLLY CONTRARY TO THE STATUTORY POSITION IN THIS RESPECT. ACCORDINGLY, WE ARE OF THE CONSIDERED VIEW THAT THE REVISION ORDER PASSED BY CIT U/S. 263 OF T HE ACT IS INVALID AND DESERVES TO BE QUASHED. WE ORDER ACCORDINGLY. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 6. ORDER IS PRONOUNCED IN THE OPEN COURT ON 13 TH FEB., 2014 SD/- SD/- . . . . ' '' ''# '#'# '# , $% , (ABRAHAM P. GEORGE) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13TH FEBRUARY, 2013 12 '3' 4 JD.(SR.P.S.) $0 5 . 6$ )7- COPY OF THE ORDER FORWARDED TO: 1 . ,- / APPELLANT SHRI SYAMAL KUMAR PANDEY, CHINSURAH STA TION ROAD, KHADINA MORE, P.O. CHINSURAH, R.S. DIST. HOOG HLY, PIN-712 102. 2 ./,- / RESPONDENT CIT,KOLKATA-XX, KOLKATA 3 . 0' ( )/ THE CIT(A), KOLKATA 4. 5. 0' / CIT KOLKATA <= .' / DR, KOLKATA BENCHES, KOLKATA / ./ TRUE COPY, $0'>/ BY ORDER, ' /ASSTT. REGISTRAR .