Sri Sai Lakshmi Constructions Co., Vijayawada V. THE ACIT, Vijayawada

ITA 175/VIZ/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 85491 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 28-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K V N CHARYA
• Keywords: Depreciation; Question of law; Revenue expenditure; Capital expenditure
• Section: 44AD; 143(3); 263; 63

Judgement Text

1 I.T.A. NO.175/VIZ/2014 ASSESSMENT YEAR: 2009-2010 IN THE INCOME TAX APPELLATE TRIBUNAL, VISHAKHAPATNA M BEFORE S/SHRI D.MANMOHAN (VP) & J.SUDHAKAR REDDY (A M) I.T.A. NO.175/VIZ/2014 ASSESSMENT YEAR: 2009-2010 SRI SAI LAKSHMI CONSTRUCTIONS CO., D.NO.60-16-6, SARVANI NAGAR, SIDDARTHA NAGAR, VIJAYAWADA VS. THE ACIT, RANGE - 2, VIJAYAWADA PAN/GIR NO. : AAOFS 7183 E ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI G.V.N.HARI RESPONDENT BY : SHRI K.V.N. CHARYA DATE OF HEARING : 01/12/2014 DATE OF PRONOUNCEMENT : 5 /12/2014 O R D E R PER J.SUDHAKAR REDDY, AM THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AG AINST THE ORDER DATED 20.3.2014 OF THE COMMISSIONER OF INCOME-TAX, VIJAYAWADA PASSED UNDER SECTION 263 OF THE INCOME TAX ACT, 1961. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS IN B USINESS OF CIVIL CONTRACTS. IT FILED ITS RETURN OF INCOME ELECTRONICALLY FOR THE ASSESSMENT YEAR 20 09-2010 ON 30.9.2009 DECLARING TOTAL INCOME AT RS.4,56,44,100/-. THE ASSESSING OFFICER PASSED THE ORDER UNDER SECTION 143(3) OF THE ACT ON 5.9.2011 DETERMINING THE TOTAL INCOME AT RS.4,65,69 ,474/-. 2 I.T.A. NO.175/VIZ/2014 ASSESSMENT YEAR: 2009-2010 3. THE LD COMMISSIONER OF INCOME TAX, VIJAYAWADA RE VISED THE ORDER UNDER SECTION 263 ON THE FOLLOWING FOUR GROUNDS: A) IT IS SEEN FROM THE RECORD THAT THE AO WANTED TO AS SESS THE INCOME @ 12.5% & 8% ON THE MAIN CONTRACT & SUB-CONTRACT, R ESPECTIVELY, FOLLOWING THE RATIO LAID DOWN BY THE HONBLE ITAT I N THE CASE OF M/S. K.N.R. CONSTRUCTIONS BUT WRONGLY CONCLUDED THA T THE INCOME OFFERED BY THE ASSESSEE IS MORE THAN THE INCOME THA T WAS TO BE ESTIMATED AS PER THAT DECISION. HENCE, THE ORDER PASSED IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. (B) OUT OF THE TOTAL CONTRACT RECEIPTS OF RS,8 5,89,63,7127/-, RS.32,63,34,118/- WORTH CONTRACT WORK WAS CLAIMED TO HAVE BEEN GIVEN TO THIRD PARTIES. THE A.O. HAS NOT CALLED FOR THE RELEVANT PARTICULARS AND EXA MINED THIS ISSUE AND HENCE THERE IS NO BASIS FOR THIS CLAIM. (C) THE ASSESSEE HAS INVESTED AN AMOUNT OF RS. 1,06,86,6187/- IN THE LAND. TOTAL INVESTMENT MADE IN LAND SO FAR WAS RS.3,17,89,5157/ -. THE A.O. HAS NOT CALLED FOR THE RELEVANT DETAILS & EXAMINED THE SOURCES, PU RPOSES ETC. (D) THE INVESTMENT IN MADHAPUR BUILDING DURING THE FINANCIAL YEAR IS RS.1,33,55,6857/-. THE AO HAS NOT CALLED FOR THE RELEVANT DETAILS & EX AMINED THE ADEQUACY OF THE COST OF CONSTRUCTION, PURPOSES ETC. 4. AGGRIEVED BY THE ORDER OF LD CIT, THE ASSESSEE I S IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCO ME TAX IS CONTRARY TO THE FACTS AND ALSO THE LAW APPLICABLE TO THE FACTS. 2. THE LEARNED COMMISSIONER OF INCOME TAX IS NOT JUSTI FIED IN INVOKING THE PROVISIONS OF S.263 OF THE ACT IN AS MUCH AS THE OR DER DT. 05 TH SEPTEMBER ,2011 OF THE ASSESSING OFFICER IS NEITHER ERRONEOUS NOR P REJUDICIAL TO THE INTERESTS OF REVENUE. 3. THE LEARNED COMMISSIONER OF INCOME TAX OUGHT N OT HAVE IN REVISION PROCEEDINGS REVISITED THE QUANTUM OF INCOME ASSESSE D, WHEN THE ENTIRE 3 I.T.A. NO.175/VIZ/2014 ASSESSMENT YEAR: 2009-2010 ASSESSMENT U/S 143(3] MERGED WITH ORDER DT.5-11-201 2 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS). 4. A) THE LEARNED COMMISSIONER OF INCOME TAX IS NOT JUSTIFIED IN DIRECTING THE ASSESSING OFFICER TO REEXAMINE WHETHER THE INCO ME ADMITTED BY THE APPELLANT IS IN ACCORDANCE WITH THE RATIO LAID DOWN BY HON'BL E ITAT, HYDERABAD IN THE CASE OF K.N.R. CONSTRUCTIONS. B) THE LEARNED COMMISSIONER OF INCOME TAX OU GHT TO HAVE APPRECIATED THAT THE ASSESSMENT U/S 143(3] OF THE ACT WAS COMPL ETED ON THE BASIS OF HOOK RESULTS AND THEREFORE THE QUESTION OF' REASONABLENE SS OF ESTIMATE' IS NOT AN ISSUE BEFORE THE LEARNED COMMISSIONER OF INCOME TAX U/S 2 63 OF THE ACT. 5. THE LEARNED COMMISSIONER OF INCOME TAX IS NOT JUSTIFIED IN DIRECTING THE ASSESSING OFFICER TO REEXAMINE THE ISSUE OF 'PAYMEN T TO SUB-CONTRACTORS MERELY BECAUSE HE IS OF THE VIEW THAT THE ENQUIRY MADE BY THE ASSESSING OFFICER IS INADEQUATE. 6. THE LEARNED COMMISSIONER OF INCOME TAX IS NOT JUSTIFIED IN DIRECTING THE ASSESSING OFFICER TO REEXAMINE THE INVESTMENT IN LA ND AND INVESTMENT IN BUILDING. 5. AT THE TIME OF HEARING, SHRI G.V.N. HARI, LD COU NSEL FOR THE ASSESSEE SUBMITTED AS FOLLOWS: A) THE AO HAS NEITHER REJECTED THE BOOKS OF ACCOUNT NOR ESTIMATED THE PROFIT. THUS, THE ASSUMPTION OF LD COMMISSIONER OF INCOME T AX, THAT THE AO WANTED TO ASSESS THE INCOME AT 12.5% & 8% ON THE MAIN CONTRACTS AND SUB-CONTRACTS, RESPECTIVELY, BY FOLLOWING THE RATIO LAID DOWN BY THE TRIBUNAL IN TH E CASE OF M/S. K.N.R. CONSTRUCTIONS IS AGAINST THE FACTS OF THE CASE. HE POINTED OUT THA T THE BOOKS OF ACCOUNT HAVE BEEN ACCEPTED BY THE ASSESSING OFFICER AFTER SCRUTINY AN D SIMPLY BECAUSE THERE IS, A NOTE NOT TO THE ASSESSEE, MENTIONED IN THE ASSESSMENT ORDER, IT DOES NOT MEAN THAT THE AO COMMITTED AN ERROR IN NOT REJECTING THE BOOKS OF AC COUNT AND ESTIMATING THE INCOME AT A PARTICULAR RATE. HE RELIED ON CERTAIN CASE LAWS FO R THE PROPOSITION THAT, AFTER ESTIMATION OF INCOME, THE COURTS AND THE TRIBUNAL HAVE LAID DO WN THAT INTEREST EXPENDITURE AND DEPRECIATION ARE TO BE DEDUCTED FOR THE PURPOSE OF ARRIVING AT TAXABLE INCOME AND ARGUED THAT THE AO TOOK THE PLAUSIBLE VIEW. HE FUR THER SUBMITTED THAT THE LD CIT DOES NOT DISPUTE THE FACT THAT THE AO HAS CALLED FOR ALL THE DETAILS AND EXAMINED THE SAME. 4 I.T.A. NO.175/VIZ/2014 ASSESSMENT YEAR: 2009-2010 B) ON THE ISSUE OF SUB-CONTRACT WORK, HE REFERRED TO P AGE 7 PARA-7 OF LD CITS ORDER AND SUBMITTED THAT THE LD CIT ACCEPTED THE FACT THA T THE ASSESSEE HAS FILED ALL THE DETAILS BEFORE THE AO. THUS, HE SUBMITS THAT T HE ALLEGATION THAT NO PROPER ENQUIRY WAS MADE IS WRONG. HE CONTENDED THAT THE L D CIT CANNOT SIT IN JUDGMENT ON THE QUANTUM OF INCOME DETERMINED BY THE AO AS THIS ISSUE IS IN THE DOMAIN OF THE AO. HE RELIED ON THE DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF DIT VS. JYOTI FOUNDATION, 3 57 ITR 388 ( DEL ) F OR THE PROPOSITION THAT LD CIT CANNOT SIMPLY SET ASIDE THE MATTER FOR VERIFICA TION WITHOUT HIMSELF CONDUCTING AN ENQUIRY AND THEN COMING TO A CONCLUSION THAT THE ORDER OF THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE R EVENUE. HE ARGUED THAT IT IS NOT A CASE OF NO ENQUIRY AND IF IT IS THE CASE OF L D CIT THAT THE ENQUIRIES WERE INADEQUATE THEN IT IS HIS DUTY TO CONDUCT THE ENQUI RIES AND DEMONSTRATE THAT THE ORDER OF THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE C) ON INVESTMENT IN LAND AND INVESTMENT IN MADHAPUR BUILDING, HE SUBMITTED THAT THE LD CIT HAS NOT DISPUTED THE FACT THAT THE ASSESSEE HAD SUBMITTED THE SOURCE OF CASH FLOW STATEMENT BEFORE THE AO DURING THE ORIGINAL ASSESSMENT PROCEEDINGS. THE BASIS ON WHICH LD CIT INVOKED HIS POWERS U/S.263 IS BAD IN LAW FOR THE REASON THAT HE SET ASIDE THE MATTER TO THE FILE OF THE AO ON THE GROUND THAT HE SHOULD HAVE CHECKED AS TO THE P URPOSE AND ADEQUACY OF INVESTMENT. HE SUBMITTED THAT SUCH ENQUIRIES IS NE ITHER IN THE DOMAIN OF LD CIT NOR IN THE DOMAIN OF THE AO AND IT IS FOR THE BUSIN ESS-MAN TO DECIDE AS TO WHAT IS TO BE TAKEN FOR THE BUSINESS PURPOSES. HE RELIE D ON A NUMBER OF CASE LAWS, WHICH WE WILL BE REFERRING DURING THE COURSE OF OUR DECISION. 6. LD D.R. SHRI K.V.N. CHARYA, ON THE OTHER HAND, O PPOSED THE CONTENTION OF THE ASSESSEE AND SUBMITTED THAT THE AO IN THIS CASE WAS UNDER A WRONG IMPRESSION THAT THE ESTIMATION OF PROFIT AS LAID DOWN IN THE TRIBUNALS ORDER IN THE CASE OF KNR CONSTRUCTIONS (SUPRA) WAS SATISFIED AND HENCE, HE DID NOT REJECT THE BOOKS OF ACCOUNT O R ESTIMATE THE INCOME. HE POINTED OUT THAT IT IS CLEAR FROM THE AOS NOTE NOT TO THE ASSESSEE, WHEREIN, HE HAS ERRONEOUSLY COME TO THE CONCLUSION THAT THE INCOME DECLARED BY THE ASSESSEE IS IN TUNE WITH THE PERCENTAGE OF PROFIT 5 I.T.A. NO.175/VIZ/2014 ASSESSMENT YEAR: 2009-2010 MENTIONED IN THE ABOVE REFERRED TRIBUNALS DECISION . HE SUBMITTED THAT THIS ASSUMPTION MAKES THE ORDER OF THE AO ERRONEOUS AND PREJUDICIAL TO TH E INTERESTS OF THE REVENUE. 7. TO DEMONSTRATE HIS POINT, HE REFERRED TO PAGE 70 OF ASSESSEES PAPER BOOK, WHEREIN, CONSEQUENTIAL ORDER WAS PASSED BY THE AO, AND SUBMI TTED THAT THE CONCLUSION OF THE AO THAT THE INCOME OFFERED BY THE ASSESSEE, MEETS THE NORMS OF KNR CONSTRUCTIONS (SUPRA) WAS WRONG. AS REGARDS OTHER ISSUES, HE SUBMITTED THAT THE AO H AS NOT APPLIED HIS MIND AND HENCE, THE CIT DIRECTED THAT VERIFICATION SHOULD BE CONDUCTED. H E ARGUED THAT THERE IS NO PREJUDICE CAUSED TO THE ASSESSEE AND RELIED ON THE ORDER OF LD CIT. 8. RIVAL CONTENTIONS HEARD. ON A CAREFUL CONSIDERAT ION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, AND ON PERUSAL OF THE PAPERS ON RECORD AND OR DERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAWS CITED, WE HOLD AS FOLLOWS: 8.1) THE ASSESSING OFFICER HAS PASSED AN ORDER U/S. 143(3) OF THE ACT, WHEREIN, HE HAS NOT REJECTED BOOKS OF ACCOUNT. IN FACT, THERE IS N OTHING IN THE ORDER, WHICH POINTS OUT THAT THERE ARE DEFECTS IN THE BOOKS OF A CCOUNT. UNDER SUCH CIRCUMSTANCES, THE QUESTION OF ESTIMATION OF PROFIT DOES NOT ARISE. THE LD CIT, IN HIS ORDER AT PARA 6 TO 6.2, HAS NOT GIVEN ANY FINDI NG THAT THERE ARE DEFECTS IN THE BOOKS OF ACCOUNT OF THE ASSESSEE, AND SAME SHOULD H AVE BEEN REJECTED BY THE AO. IN THE ABSENCE OF SUCH FINDINGS, THE LD CIT, I N OUR VIEW, IS WRONG IN DIRECTING THE AO TO EXAMINE WHERE THE ADMITTED INCO ME IS IN ACCORDANCE WITH THE RATIO LAID DOWN BY THE ITAT HYDERABABAD IN THE CASE OF KNR CONSTRUCTIONS (SUPRA). ON A PLAIN READING OF THE FINDINGS ON THI S ISSUE LEADS TO OUR CONCLUSION THAT THE LD CIT WAS OF THE VIEW THAT WHEREVER THE N ET PROFIT FROM THE MAIN CONTRACT IS LESS THAN 12.5% OF THE GROSS RECEIPTS A ND WHEREVER, THE NET PROFIT ON SUB-CONTRACT IS LESS THAN 8% OF THE GROSS RECEIPTS OF SAID CONTRACTS, THEN THE AO SHOULD ESTIMATE THE PROFIT IN LINE WITH THESE PERCE NTAGES. SUCH A CONCLUSION IS ERRONEOUS AND NOT IN ACCORDANCE WITH ANY OF THE PRO VISIONS OF THE INCOME TAX ACT. THUS, WE HOLD THAT THE REVISION OF THE ASSESS MENT ON THIS GROUND IS BAD IN LAW. 6 I.T.A. NO.175/VIZ/2014 ASSESSMENT YEAR: 2009-2010 8.2) IN ANY EVENT, THE DETERMINATION OF PROFITS IS IN THE DOMAIN OF THE AO AND THE LD CIT CANNOT SUBSTITUTE HIS VIEWS WITH THE VIEWS OF T HE AO ON THE ESTIMATION OF PROFIT. THIS BENCH OF THE TRIBUNAL IN THE CASE OF M/S. SIDHARTHA ASSOCIATES (ITA NO.72/VIZ/2012) ORDER DATED 8.1.2014 HAS, AT PARA 5 , HELD AS FOLLOWS: WE HAVE CONSIDERED SUBMISSIONS OF LD REPRESENTATIV ES OF PARTIES AND ORDERS OF AUTHORITIES BELOW. IT IS A FACT ON RECOR D THAT THE INCOME OF THE ASSESSEE WAS ESTIMATED @ 12.5% BY REJECTING BOOKS O F ACCOUNT. THE DISPUTE IS ONLY WITH REGARD TO THE FACT THAT AS TO WHETHER AFTER ESTIMATING THE INCOME FURTHER DEDUCTION CAN BE ALLOWED TOWARDS REMUNERATION AND INTEREST PAYMENT TO THE PARTNERS. THE C1T IN EXERCI SE OF HIS POWER U/S.263 OF THE ACT HAS DIRECTED THE AO TO DISALLOW THE EXPENDITURE CLAIMED BY FOLLOWING THE DECISION OF HON'BLE JURISD ICTIONAL HIGH COURT IN THE CASE OF INDWELL CONSTRUCTIONS (SUPRA). HOWEVER, IT IS TO BE NOTED THAT THE VISAKHAPATNAM BENCH AS WELL AS THE HYDERABAD BE NCHES OF THIS TRIBUNAL IN A NUMBER OF DECISIONS AFTER TAKING INTO CONSIDERATION THE RATIO LAID DOWN IN INDWELL CONSTRUCTIONS (SUPRA) HAVE HEL D THAT EVEN IN CASE OF ESTIMATION OF INCOME, FURTHER DEDUCTION TOWARDS INT EREST AND REMUNERATION PAYMENT TO PARTNERS IS ALLOWABLE. THE ITAT HYDERABAD BENCH IN THE CASE OF C. ESWAR REDDY,(L.T.A. NOS.668 ,670, 685 & 686/HYD/2009) DT.31.1.2011 WHILE CONSIDERING AN IDE NTICAL ISSUE NOTED THAT THE DECISION OF INDWELL CONSTRUCTION (SUPRA) W AS DELIVERED PRIOR TO THE INTRODUCTION OF SECTION 44AD OF THE ACT. HENCE, THE TRIBUNAL HELD THAT AFTER THE INTRODUCTION OF SECTION 44AD OF THE ACT, EVEN IN CASE OF ESTIMATION OF INCOME FURTHER DEDUCTION TOWARDS REMU NERATION AND INTEREST PAYMENT TO PARTNERS IS ALLOWABLE. SAME VIE W WAS AGAIN REITERATED BY THE ITAT HYDERABAD BENCH IN THE CASE OF VENKATES WARA SWAMY LORRY SERVICES (L.T.A. NO.903 & 353/HYD/2009) DATED 25.11 .2009. WHEN THE DEPARTMENT PREFERRED APPEAL AGAINST THIS ORDER OF T HE TRIBUNAL, HON'BLE JURISDICTIONAL HIGH COURT UPHELD THE VIEW OF THE IT AT HYDERABAD IN JUDGMENT DT.25.6.2013 IN ITTA NO,82 OF 2013 BY HOLD ING THAT IN VIEW OF CBDT CIRCULAR DATED 31.8.1955, RELIED UPON BY THE T RIBUNAL, INTEREST HAS TO BE ALLOWED SEPARATELY EVEN IN CASE OF ESTIMATION OF PROFIT. SINCE THE VIEW TAKEN BY THE AO IS IN CONSONANCE WITH THE DECI SION OF THE COORDINATE BENCHES OF THE TRIBUNAL AND THAT VIEW IS ONE OF THE POSSIBLE VIEWS, THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) CANNOT BE HELD TO BE EITHER ERRONEOUS OR PREJUDICIAL TO THE INTERESTS OF THE REVENUE ON THIS ISSUE. IN THE AFORESAID VIEW OF THE MATTER, WE DIRE CT THE AO NOT TO DISALLOW THE INTEREST AND REMUNERATION PAYMENT TO P ARTNERS. THE ORDER OF THE CIT IS MODIFIED TO THIS EXTENT. 7 I.T.A. NO.175/VIZ/2014 ASSESSMENT YEAR: 2009-2010 8.3) THE NEXT GROUND ON WHICH THE LD CIT BASED HIS ORDER FOR REVISION IS THAT THE ASSESSEE HAS EARNED INCOME OF 4% ON SUB-CONTRACT. AT PARA -7, THE LD CIT HAS OBSERVED AS FOLLOWS: THE NEXT ISSUE IS THAT THE ASSESSEE CLAIMED AN AMO UNT OF RS.32,63,34,118/- TOWARDS SUB-CONTRACT PAYMENTS TO THIRD PARTIES. DURING ASSESSMENT, THE ASSESSEE VIDE LETTER DT.25.4.2011 F ILED DETAILS OF PAYMENTS MADE TO SUB-CONTRACTORS & TDS MADE THEREON TO 40 PERSONS. THESE DETAILS WERE FILED IN CONNECTION WITH EXAMINA TION OF TDS COMPLIANCE PURPOSES ALONE. THE AO DID NOT OBTAIN M AIN & SUB-CONTRACT AGREEMENTS, DID NOT EXAMINE THE PROFIT ELEMENT ON T HE SUB-CONTRACT WORKS GIVEN TO THIRD PARTIES VIS--VIS THE MAIN CON TRACT AGREEMENTS, ETC. IN THE ABSENCE OF SUCH EXAMINATION, THE PROFIT OR L OSS, AS THE CASE MAY BE, ADMITTED OR CLAIMED BY THE ASSESSEE CAN NEITHER BE VERIFIED NOR BE DETERMINED. ASSESSEES NOTE ITSELF INDICATES THAT THE ASSESSEE COULD HAVE EARNED AN INCOME OF RS.1,30,53,354/- @ 4% ON THIS S UB-CONTRACT ALONE. FOR THE REASON GIVEN WHILE HOLDING THAT POWERS U/S. 263 CANNOT BE INVOKED FOR SUBSTITUTING THE PROFIT DETERMINED BY THE AO, BY TH E ESTIMATE PROPOSED BY THE LD CIT, WE HOLD THAT THE REVISION ON THIS GROUND IS ALSO BA D IN LAW. 8.4) ON THE THIRD ISSUE OF INVESTMENT IN LAND AND BUILD ING, THE LD CIT AT PARA 8.1 STATES AS FOLLOWS: 8.1, ASSESSEE'S SUBMISSIONS ARE CONSIDERED CAREFUL LY. INCOME IS DETERMINED ON THE BASIS OF SOURCES. IN ORDER TO DET ERMINE THE INCOME CORRECTLY, THE AO IS DUTY BOUND TO ASCERTAIN ALL TH E FACTS & CIRCUMSTANCES ASSOCIATED WITH THE INVESTMENT ETC, SO THAT THEY AR E PROPERLY CLASSIFIED & ASSESSED UNDER APPROPRIATE HEAD. THE ASSESSEE IS IN CONTRACT BUSINESS AT DIFFERENT LOCATIONS. THE AO HAS NOT ASCERTAINED AS TO THE PURPOSES FOR WHICH THE LAND WAS ACQUIRED, THE BUILDING IS CONSTR UCTED, NOT EXAMINED ADEQUACY OF SUCH INVESTMENTS ETC, SO THAT APART FRO M CLASSIFYING THEM, HE COULD HAVE CHECKED AS TO WHETHER THE COST OF THE IN VESTMENTS ETC SHOULD BE BORNE BY THE CONTRACT BUSINESS OR NOT. IN VIEW O F SUCH FAILURES, THE ASSESSMENT ORDER PASSED BY HIM IS HELD AS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE AND HENCE IT IS SET ASIDE ON THIS COUNT. THE AO IS DIRECTED TO OBTAIN RELEVANT MATERIALS, EXAMINE THEM AS REQUIRED AND DECIDE THE ISSUES IN ACCORDANCE WITH LAW & ESTABLIS HED PROCEDURE ON SUCH ISSUES AND AFTER AFFORDING A REASONABLE OPPORTUNITY TO THE ASSESSEE. THE REVISION CANNOT BE MADE WITHOUT POINTING OUT TH AT THE ORDER OF THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE R EVENUE. THE ALLEGATION OF THE LD CIT IS THAT THE AO HAS NOT ASCERTAINED AS TO THE PURPOSES FOR WHICH THE LAND WAS ACQUIRED, THE 8 I.T.A. NO.175/VIZ/2014 ASSESSMENT YEAR: 2009-2010 BUILDING IS CONSTRUCTED AND THAT THE AO HAD NOT EXA MINED THE ADEQUACY OF SUCH INVESTMENTS. IN OUR VIEW, ADEQUACY OF INVESTMENTS ETC., ARE NOT WITHIN THE PURVIEW OF INCOME TAX ACT. IT IS NOT THE CASE OF THE LD CIT T HAT THERE IS ANY UNDISCLOSED INCOME. THE LD CIT SIMPLY REMANDS THE MATTER TO THE FILE OF THE AO WITH THE DIRECTION TO OBTAIN RELEVANT MATERIAL AND EXAMINE THE SAME IN ACCORDANC E WITH THE LAW, WHICH IS IN OUR VIEW, CANNOT BE SUSTAINED. 9. THE HONBLE DELHI HIGH COURT IN THE CASE OF DIRECTO R OF INCOME TAX VS JYOTI FOUNDATION(2013) 357 ITR 388 (DEL) HELD AS FOLLOWS: IT WAS HELD THAT REVISIONARY POWER U/S.263 IS CONF ERRED ON THE COMMISSIONER/DIRECTOR OF INCOME TAX WHEN AN ORDER P ASSED BY THE LOWER AUTHORITY IS ERRONEOUS AND PREJUDICIAL TO THE INTER EST OF THE REVENUE. ORDERS WHICH ARE PASSED WITHOUT INQUIRY OR INVESTIG ATION ARE TREATED AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE, BUT ORDERS WHICH ARE PASSED AFTER INQUIRY/INVESTIGATION ON THE QUEST ION/ISSUE ARE NOT PER SE OR NORMALLY TREATED AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE BECAUSE THE REVISIONARY AUTHORITY FEELS AND OPINES THAT FURTHER INQUIRY/INVESTIGATION WAS REQUIRED OR DEEPER OR FUR THER SCRUTINY SHOULD BE UNDERTAKEN. IN THE CASE OF INCOME TAX OFFICER VS. D G HOUSING PROJECTS LIMITED, (2012) 343 ITR, 329 (DELHI) IT WAS HELD TH AT IN CASES OF WRONG OPINION OR FINDING ON MERITS, THE CIT HAS TO COME T O THE CONCLUSION AND HIMSELF DECIDE THAT THE ORDER IS ERRONEOUS, BY COND UCTING NECESSARY ENQUIRY, IF REQUIRED AND NECESSARY, BEFORE THE ORDE R U/S 263 IS PASSED. IN SUCH CASES, THE ORDER OF THE AO WILL BE ERRONEOUS B ECAUSE THE ORDER PASSED IS NOT SUSTAINABLE IN LAW AND THE SAID FINDI NG MUST BE RECORDED. CIT CANNOT REMAND THE MATTER TO THE AO TO DECIDE WH ETHER THE FINDINGS RECORDED ARE ERRONEOUS. IN CASES WHERE THERE IS INA DEQUATE ENQUIRY BUT NOT LACK OF ENQUIRY, AGAIN THE CIT MUST GIVE AND RE CORD A FINDING THAT THE ORDER/INQUIRY MADE IS ERRONEOUS. THIS CAN HAPPEN IF AN ENQUIRY AND VERIFICATION IS CONDUCTED BY THE CIT AND HE IS ABLE TO ESTABLISH AND SHOW THE ERROR OR MISTAKE MADE BY THE AO, MAKING THE ORD ER UNSUSTAINABLE IN LAW. IN SOME CASES POSSIBLY THOUGH RARELY, THE CIT CAN ALSO SHOW AND ESTABLISH THAT THE FACTS ON RECORD OR INFERENCES DR AWN FROM FACTS ON RECORD PER SE JUSTIFIED AND MANDATED FURTHER ENQUIR Y OR INVESTIGATION BUT THE AO HAD ERRONEOUSLY NOT UNDERTAKEN THE SAME. HOW EVER, THE SAID FINDING MUST BE CLEAR, UNAMBIGUOUS AND NOT DEBATABL E. THE MATTER CANNOT BE REMITTED FOR A FRESH DECISION TO THE AO T O CONDUCT FURTHER ENQUIRIES WITHOUT A FINDING THAT THE ORDER IS ERRON EOUS. FINDING THAT THE ORDER IS ERRONEOUS IS A CONDITION OR REQUIREMENT WH ICH MUST BE SATISFIED FOR EXERCISE OF JURISDICTION U/S 263. IN SUCH MATTE RS, TO REMAND THE ISSUE TO THE AO WOULD IMPLY , THE CIT HAS NOT EXAMINED AN D DECIDED WHETHER OR NOT THE ORDER IS ERRONEOUS BUT HAS DIRECTED THE AO TO DECIDE THE ASPECT/QUESTION. AN ORDER OF REMIT CANNOT BE PASSED BY THE CIT TO ASK 9 I.T.A. NO.175/VIZ/2014 ASSESSMENT YEAR: 2009-2010 THE AO TO DECIDE WHETHER THE ORDER WAS ERRONEOUS. T HIS IS NOT PERMISSIBLE. AN ORDER IS NOT ERRONEOUS, UNLESS THE CIT HOLD AND RECORDS REASONS WHY IT IS ERRONEOUS. THEREFORE JURISDICTION AL PRECONDITION STIPULATED IS THAT THE CIT MUST COME TO THE CONCLUS ION THAT THE ORDER IS ERRONEOUS AND IS UNSUSTAINABLE IN LAW. THE MATERIAL WHICH THE CIT CAN RELY INCLUDES NOT ONLY THE RECORD AS IT STANDS AT T HE TIME WHEN THE ORDER IN QUESTION WAS PASSED BY THE AO BUT ALSO THE RECOR D AS IT STANDS AT THE TIME OF EXAMINATION BY THE CIT. IN THE PRESENT CASE, INQUIRIES WERE CERTAINLY CONDU CTED BY THE AO. IT IS NOT A CASE OF NO INQUIRY. THE ORDER U/S 263 ITSELF RECORD S THAT THE DIRECTOR FELT THAT THE INQUIRIES WERE NOT SUFFICIENT AND FURTHER INQUIRIES OR DETAILS SHOULD HAVE BEEN CALLED. HOWEVER, IN SUCH CASES, AS OBSERVED IN THE CASE OF DG HOUSING PROJECTS LIMITED, THE INQUIRY SHOULD HAVE BEEN CONDUCTED BY THE COMMISSIONER OR DIRECTOR HIMSELF TO RECORD THE FINDING THAT THE ASS ESSMENT ORDER WAS ERRONEOUS. HE SHOULD NOT HAVE SET ASIDE THE ORDER AND DIRECTED THE AO TO CONDUCT THE SAID INQUIRY. REVENUE'S APPEAL DISMISSED. 10. IN THE CASE AT HAND, IT IS NOT A CASE OF NO EN QUIRY. THE LD CIT HAS NOT EXAMINED AND DECIDED WHETHER OR NOT THE ORDER IS ERRONEOUS BUT H AS DIRECTED THE AO TO DECIDE THE ASPECT/QUESTION. UNDER SUCH CIRCUMSTANCES, THE ORD ER U/S.263 CANNOT BE UPHELD. 11. IN THE CASE OF CIT VS. SUNBEAM AUTO LTD., (2011 ) 332 ITR 167 (DEL), THE HONBLE HIGH COURT HELD AS FOLLOWS: THE SUBMISSION OF THE COUNSEL FOR THE REVENUE WAS THAT WHILE PASSING THE ASSESSMENT ORDER, THE AO DID NOT CONSIDER THE A SPECT SPECIFICALLY WHETHER THE EXPENDITURE IN QUESTION WAS REVENUE OR CAPITAL EXPENDITURE. THIS ARGUMENT PREDICATES ON THE ASSESSMENT ORDER, W HICH APPARENTLY DOES NO GIVE ANY REASONS WHILE ALLOWING THE ENTIRE EXPENDITURE AS REVENUE EXPENDITURE. HOWEVER, THAT BY ITSELF 'WOULD NOT BE INDICATIVE OF THE FACT THAT THE AO HAD NOT APPLIED HIS MIND ON TH E ISSUE. THE AO IN THE ASSESSING ORDER IS NOT REQUIRED TO GIVE DETAILED RE ASON IN RESPECT OF EACH AND EVERY ITEM OF DEDUCTION, ETC. THEREFORE, ONE HA S TO SEE FROM THE RECORD AS TO WHETHER THERE WAS APPLICATION OF MIND BEFORE ALLOWING THE EXPENDITURE IN QUESTION AS REVENUE EXPENDITURE. THE COUNSEL FOR THE ASSESSEE IS RIGHT IN HIS SUBMISSION THAT ONE HAS TO KEEP IN MIND THE DISTINCTION BETWEEN 'LACK OF INQUIRY' AND 'INADEQUA TE INQUIRY'. IF THERE WAS ANY INQUIRY, EVEN INADEQUATE THAT WOULD NOT BY ITSELF GIVE OCCASION TO THE CIT TO PASS ORDERS UNDER S. 263, MERELY BECAUSE HE HAS DIFFERENT OPINION IN THE MATTER. IT IS ONLY IN CASES OF 'LACK OF INQUIRY' THAT SUCH A COURSE OF ACTION WOULD BE OPEN. THE AO HAD CALLED F OR EXPLANATION ON THIS VERY ITEM FROM THE ASSESSEE AND THE ASSESSEE H AD FURNISHED HIS EXPLANATION VIDE LETTER DT. 26TH SEPT., 2002, THIS FACT IS EVEN TAKEN NOTE OF BY THE CIT HIMSELF IN PARA 3 OF HIS ORDER. THIS CLEARLY SHOWS THAT THE 10 I.T.A. NO.175/VIZ/2014 ASSESSMENT YEAR: 2009-2010 AO HAD UNDERTAKEN THE EXERCISE OF EXAMINING AS TO W HETHER THE EXPENDITURE INCURRED BY THE ASSESSEE IN THE REPLACE MENT OF DYES AND TOOLS IS TO BE TREATED AS REVENUE EXPENDITURE OR NO T. IT APPEARS THAT SINCE THE AO WAS SATISFIED WITH THE AFORESAID EXPLANATION , HE ACCEPTED THE SAME. THE CIT IN HIS IMPUGNED ORDER EVEN ACCEPTS TH IS. THUS, EVEN THE CIT CONCEDED THE POSITION THAT THE AO MADE THE INQU IRIES, ELICITED REPLIES AND THEREAFTER PASSED THE ASSESSMENT ORDER. THE GRI EVANCE OF THE CIT WAS THAT THE AO SHOULD HAVE MADE FURTHER INQUIRIES RATHER THAN ACCEPTING THE EXPLANATION. THEREFORE, IT CANNOT BE SAID THAT IT IS A CASE OF 'LACK OF INQUIRY.-CIT VS. GABRIAL INDIA LTD. (1993) 114 CTR (BORN) 81 : (1993) 203 ITR 108 (BORN) RELIED ON. EVEN THE CIT IN HIS ORDER, PASSED UNDER S. 263, IS NOT CLEAR AS TO WHETHER THE EXPENDITURE CAN BE TREATED AS CAPITAL EXPENDITU RE OR IT IS REVENUE IN NATURE. NO DOUBT F IN CERTAIN CASES, IT MAY NOT BE POSSIBLE TO COME T O A DEFINITE FINDING AND THEREFORE, IT IS NOT NECESSARY THAT IN ALL CASES THE CIT IS BOUND TO EXPRESS FINAL VIEW. BUT, THE LEAST THAT WAS EXPECTED WAS TO RECORD A FINDING THAT ORDER SOUGHT TO BE REVISED WA S ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. NO BASI S FOR THIS IS DISCLOSED. IN SUM AND SUBSTANCE, ACCOUNTING PRACTICE OF THE ASSES SEE IS QUESTIONED. HOWEVER, THAT BASIS OF THE ORDER VANISHES IN THIN A IR WHEN THIS VERY ACCOUNTING PRACTICE, FOLLOWED FOR NUMBER OF YEARS, HAD THE APPROVAL OF THE IT AUTHORITIES. INTERESTINGLY, EVEN FOR FUTURE ASSESSMENT YEARS, THE SAME VERY ACCOUNTING PRACTICE IS ACCEPTED. THE ASSE SSEE IS A MANUFACTURER OF CAR PARTS. IN THE MANUFACTURING PRO CESS, DYES ARE FITTED IN MACHINES BY WHICH THE CAR PARTS ARE MANUFACTURED . THESE DYES ARE THUS THE COMPONENTS OF THE MACHINES. THESE DYES NEE D CONSTANT REPLACEMENT, AS THEIR LIFE IS NOT MORE THAN A YEAR. THE ASSESSEE HAD ALSO EXPLAINED THAT SINCE THESE PARTS ARE MANUFACTURED F OR THE AUTOMOBILE INDUSTRY, WHICH HAVE TO WORK ON COMPLETE ACCURACY A T HIGH SPEED FOR A LONGER PERIOD, REPLACEMENT OF THESE PARTS AT SHORT INTERVALS BECOMES IMPERATIVE TO RETAIN ACCURACY. BECAUSE OF THESE REA SONS, THESE TOOLS AND DYES HAVE A VERY SHORT SPAN OF LIFE AND IT COULD PR ODUCE MAXIMUM ONE LAKH PERMISSIBLE SHORTS. THEREAFTER, THEY HAVE TO B E REPLACED. WITH THE REPLACEMENT OF SUCH TOOLS AND 'DYES, WHICH ARE THE COMPONENTS OF A MACHINE, NO NEW ASSET COMES INTO EXISTENCE, NOR IS THERE BENEFIT OF ENDURING NATURE. IT DOES NOT EVEN ENHANCE THE LIFE OF EXISTING MACHINE OF WHICH THESE TOOLS AND DYES ARE ONLY PARTS. NO PRODU CTION CAPACITY OF THE EXISTING MACHINES IS INCREASED EITHER. IT IS CLEAR THAT VIEW TAKEN BY THE AO WAS ONE OF THE POSSIBLE VIEWS AND THEREFORE, THE AS SESSMENT ORDER PASSED BY THE AO COULD NOT BE HELD TO BE PREJUDICIA L TO THE REVENUE. THUS, FROM WHATEVER ANGLE THE MATTER IS TO BE LOOKE D INTO, THE CONCLUSION WOULD BE THAT THE ORDER OF THE TRIBUNAL DOES NOT CA LL FOR ANY INTERFERENCE AS THE QUESTION OF LAW HAS RIGHTLY BEEN DECIDED,-SU NBEAM AUTO LTD. VS. CIT (2006) 100 TT3 (DEL) 209 AFFIRMED; CIT VS. SARAVANA SPINNING MILLS (P) LTD. (2007) 211 CTR (SC) 281 : (2007) 293 ITR 2 01 (SC) DISTINGUISHED. 11 I.T.A. NO.175/VIZ/2014 ASSESSMENT YEAR: 2009-2010 12. IN THE CASE OF SPECTRA SHARES AND SCRIPS PVT LT D., (2013) 354 ITR 35 (AP), THE HONBLE HIGH COURT CULLED OUT THE PRINCIPLES LAID DOWN BY H ONBLE SUPREME COURT AND VARIOUS HIGH COURTS ON THE ISSUE OF EXERCISE OF JURISDICTION BY THE LD COMMISSIONER OF INCOME TAX UNDER SECTION 263 OF THE ACT. IT READS AS FOLLOWS: (A) THE COMMISSIONER HAS TO BE SATISFIED OF TWIN C ONDITIONS, NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS ; AND (II) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THEM IS ABSENT IF THE ORDER OF THE INCOME-TAX OFFICER IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IT IS PREJUDICIAL TO THE REVENUERECOURSE CANNOT BE HAD T O SECTION 263(1) OF THE ACT. (B) EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN OR DER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE R EVENUE. 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 I NCOME-TAX OFFICER HAS TAKEN ONE VIEW WITH 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. (C) TO INVOKE THE SUO MOTU REVISIONAL POWERS TO REO PEN A CONCLUDED ASSESSMENT UNDER SECTION 263, THE COMMISSIONER MUST GIVE REASONS ; T HAT A BARE REITERATION BY HIM THAT THE ORDER OF THE INCOME-TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, WILL NOT SUFFICE ; THAT T HE REASONS MUST BE SUCH AS TO SHOW THAT THE ENHANCEMENT OR MODIFICATION OF THE ASSESSM ENT OR CANCELLATION OF THE ASSESSMENT OR DIRECTIONS ISSUED FOR A FRESH ASSESSM ENT WERE CALLED FOR, AND MUST IRRESISTIBLY LEAD TO THE CONCLUSION THAT THE ORDER OF THE INCOME-TAX OFFICER WAS NOT ONLY ERRONEOUS BUT WAS PREJUDICIAL TO THE INTERESTS OF T HE REVENUE. THUS, WHILE THE INCOME- TAX OFFICER IS NOT CALLED UPON TO WRITE AN ELABORAT E JUDGMENT GIVING DETAILED REASONS IN RESPECT OF EACH AND EVERY DISALLOWANCE, DEDUCTION, ETC., IT IS INCUMBENT UPON THE COMMISSIONER NOT TO EXERCISE HIS SUO MOTU REVISIONA L POWERS UNLESS SUPPORTED BY ADEQUATE REASONS FOR DOING SO ; THAT IF A QUERY IS RAISED DURING THE COURSE OF THE SCRUTINY BY THE ASSESSING OFFICER, WHICH WAS ANSWER ED TO THE SATISFACTION OF THE ASSESSING OFFICER, BUT NEITHER THE QUERY NOR THE AN SWER WERE REFLECTED IN THE ASSESS- MENT ORDER, THIS WOULD NOT BY ITSELF LEAD TO THE CO NCLUSION THAT THE ORDER OF THE ASSESSING OFFICER CALLED FOR INTERFERENCE AND REVIS ION. (E) THE COMMISSIONER CANNOT INITIATE PROCEEDINGS WI TH A VIEW TO START FISHING AND ROVING INQUIRIES IN MATTERS OR ORDERS WHICH ARE ALREADY CO NCLUDED ; THAT THE DEPARTMENT CANNOT BE PERMITTED TO BEGIN FRESH LITIGATION BECAUSE OF N EW VIEWS THEY ENTERTAIN ON FACTS OR NEW VERSIONS WHICH THEY PRESENT AS TO WHAT SHOULD B E THE INFERENCE OR PROPER INFERENCE EITHER OF THE FACTS DISCLOSED OR THE WEIGHT OF THE CIRCUMSTANCE ; THAT IF THIS IS PERMITTED, LITIGATION WOULD HAVE NO END EXCEPT WHEN LEGAL INGE NUITY IS EXHAUSTED. (F) WHETHER THERE WAS APPLICATION OF MIND BEFORE AL LOWING THE EXPENDITURE IN QUESTION HAS TO BE SEEN ; THAT IF THERE WAS AN INQUIRY, EVEN INADEQUATE THAT WOULD NOT BY ITSELF GIVE OCCASION TO THE COMMISSIONER TO PASS ORDERS UN DER SECTION 263 MERELY BECAUSE HE HAS A DIFFERENT OPINION IN THE MATTER; THAT IT IS O NLY IN CASES OF LACK OF INQUIRY THAT SUCH A 12 I.T.A. NO.175/VIZ/2014 ASSESSMENT YEAR: 2009-2010 COURSE OF ACTION WOULD BE OPEN ; THAT AN ASSESSMENT ORDER MADE BY THE INCOME-TAX OFFICER CANNOT BE BRANDED AS ERRONEOUS BY THE COMMI SSIONER SIMPLY BECAUSE, ACCORDING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELA BORATELY ; THERE MUST BE SOME PRIMA FACIE MATERIAL ON RECORD TO SHOW THAT THE TAX WHICH WAS LAWFULLY EXIGIBLE HAS NOT BEEN IMPOSED OR THAT BY THE APPLICATION OF THE RELE VANT STATUTE ON AN INCORRECT OR INCOMPLETE INTERPRETATION, A LESSER TAX THAN WHAT W AS JUST, HAS BEEN IMPOSED. (G) THE POWER OF THE COMMISSIONER UNDER SECTION 263 (1) IS NOT LIMITED ONLY TO THE MATERIAL WHICH WAS AVAILABLE BEFORE THE AO AND, IN ORDER TO PROTECT THE INTERESTS OF THE REVENUE, THE COMMISSIONER IS ENTITLED TO EXAMINE A NY OTHER RECORD WHICH ARE AVAILABLE AT THE TIME OF EXAMINATION BY HIM AND TO TAKE INTO CONSIDERATION EVEN THOSE EVENTS WHICH AROSE SUBSEQUENT TO THE ORDER OF ASSESSMENT. 13. APPLYING THE PROPOSITION LAID DOWN IN THESE CASE LA WS TO THE FACTS OF THE CASE, WE HAVE TO NECESSARILY COME TO A CONCLUSION THAT THE ORDER U/S.263 PASSED BY THE LD CIT HAS TO BE QUASHED. ACCORDINGLY, WE QUASH THE ORDER U/S.263 P ASSED BY THE LD CIT. 14. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 /12/ 2014 . SD/- SD/- (D.MANMOHAN ) (J.SUDHAKAR REDDY) VICE PRESIDENT ACCOUNTANT MEMBER VISHAKHAPATNAM DATED 5 / 12/2014 PARIDA , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE - SRI SAI LAKSHMI CONSTRUCTIONS CO., D.NO.60 - 16-6, SARVANI NAGAR, SIDDARTHA NAGAR, VIJAYAWADA 2. THE RESPONDENT. : THE ACIT, RANGE - 2, VIJAYAWADA 3. THE CIT(A) - VIJAYWADA 4. CIT , VIJAYAWADA 5. DR, ITAT, VISHAKHAPATNAM 6. GUARD FILE. BY ORDER SR.PS, ITAT, VISHAKHAPATNAM //TRUE COPY//