Nilkanth Dealcom Pvt. Ltd., , Kolkata V. Principal CIT, Central - 1, Kolkata , Kolkata

ITA 1853/KOL/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4012 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 16-09-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 29-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MIRAJ D SHAH AR SHRI I
• Keywords: Business expenditure; Opportunity of being heard; Deemed dividend; Prejudicial to interest; Block assessment; Capital receipt; Revenue expenditure; Set aside
• Section: 143(3); 142(1); 153A; 2(22)(e); 143(2); 192; 44AB; 13; 153; 22; 153C; 263; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA B BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, HONBLE ACCOUNTANT MEMBER & SRI ABY T. VARKEY, HONBLE JUDICIAL MEMBER) ITA NO. 1853/KOL/2018 ASSESSMENT YEAR: 2012-13 NILKANTH DEALCOM PVT. LTD................................................................................APPELLANT C/O NILKANTH DEALCOM PVT. LTD. 38, CHAKRABERIA LANE RUSHABH APARTMENT KOLKATA 700 020 [PAN : AADCN 0312 N ] VS. PR. COMMISSIONER OF INCOME TAX, CENTRAL-1, KOLKATA...........................................RESPONDENT APPEARANCES BY: SHRI MIRAJ D. SHAH, A/R, APPEARED ON BEHALF OF THE ASSESSEE. SHRI IMOKABA JAMIR, CIT D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : SEPTEMBER 16 TH , 2020 DATE OF PRONOUNCING THE ORDER : OCTOBER 22 ND , 2020 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED PR. COMMISSIONER OF INCOME TAX, CENTRAL 1 KOLKATA, (HEREINAFTER THE LD.CIT(A)), PASSED U/S. 263 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 15/03/2018, FOR THE ASSESSMENT YEAR 2012-13. 2. THE ASSESSEE IS A COMPANY AND FILED ITS RETURN OF INCOME ELECTRONICALLY ON 25/01/2014 DISCLOSING TOTAL INCOME OF RS.32,12,660/-. CONSEQUENTIALLY ON 13/03/2014 AND SUBSEQUENT DATES, SEARCH OPERATIONS U/S 132 OF THE ACT WAS CONDUCTED ON THE OFFICIAL PREMISES OF THE ASSESSEE. NOTICE U/S 153A OF THE ACT WAS ISSUED TO ASSESSEE ON 20/10/2014. IN RESPONSE, THE ASSESSEE FURNISHED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 ON 07/04/2014 DISCLOSING TOTAL INCOME OF RS.32,12,660/-. LATER NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 19/08/2015. THE ASSESSMENT WAS COMPLETED U/S 153A/143(3) OF THE ACT ON 30/03/2016, AFTER TAKING PRIOR APPROVAL OF THE ADDITIONAL COMMISSIONER OF INDIA, CENTRAL RANGE-1, KOLKATA, U/S 153D OF THE ACT, DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.32,12,660/-. 2.1. THE LD. PR. CIT ISSUED A SHOWCAUSE NOTICE U/S 263 OF THE ACT, DT. 06/03/2018, PROPOSING TO REVISE THE ASSESSMENT ORDER PASSED U/S 153A/143(3) OF THE ACT ON 30/03/2016, FOR THE REASON THAT, THE ASSESSEE COMPANY HAD NOT JUSTIFIED, ITS CLAIM OF HAVING INCURRED EXPENDITURE ON ACCOUNT OF (A) BUSINESS DEVELOPMENT EXPENSES OF RS.18,89,250/- & (B) BUSINESS PROMOTION EXPENSES OF RS. 36,06,750/- AND THAT THE ASSESSING OFFICER IN THE ASSESSMENT ORDER DT. 30/03/2016 HAD NOT CALLED FOR THE DETAILS OF EXPEN DITURE UNDER THESE HEAD NATURE OF THE EXPENSES. AFTER CONSIDERING THE REPLY OF THE ASSESSEE, THE LD. PR. CIT SET ASIDE THE ASSESSMENT ORDER DT. 30/03/2016 TO THE FILE OF THE ASSESSING OFFICER, WITH A DIRECTION TO TH E ASSESSING OFFICER TO AND VERIFICATION OF EXPENSES INCURRED FOR PROMOTION. THE ASSESSING OFFICER WAS BASICALLY DIRECTED TO EXAMINE THE GENUINENESS OF THE EXPENSES AND A LSO TO EXAMINE WHETHER THE EXPENSES UNDER THESE TWO HEAD OF EXPENDITURE WAS INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. 3. AGGRIEVE THE ASSESSEE IS IN APPEAL BEFORE US. 4. THE LD. COUNSEL FOR THE ASSESSEE, SHRI MIRAJ D. SHAH, SUBMITTED TH ASSESSMENT PROCEEDING, THE ASSESSING OFFICER HAD CALLED FOR DETAILS BY ISSUING NOTICE U/S 142(1) OF THE ACT, DT. 17/08/2015. HE DREW THE ATTENTION OF THE BENCH TO THE QUESTIONNAIRE ISSUED BY THE ASSESSING OFFICER DURING THE ORIGINAL ASSESSMEN PROCEEDINGS, SPECIFICALLY TO POINT NO. 14 AND THE REPLY GIVEN ASSESSEE AND SUBMITTED THAT THE ASSESSING OFFICER HAD CALLED FOR ALL THE INFORMATION AND DETAILS OF EXPENDITURE INCURRED SUBMITTED THAT THE ASSESSING OFFICER HAS CONCLUSION THAT THE EXPENDITURE IS GENUINE AND WAS INCURRED FOR THE PURPOSE OF BUSINESS AND THEN ONLY HAD ALLOWED THE SAME. HE FURTHER SUBMITTED THAT THE ACCOUNTS OF THE A SSESSEE HAS BEEN AUDITED U/S 44AB OF THE ACT AND THIS AUDITED EXPENDITURE WAS ACCEPTED BY THE ASSESSING OFFICER AS GENUINE AND AS AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS WHILE PASSING THE ASSESSMENT ORDER U/S 143(3) OF THE A CT ON 30/03/2016. 4.1. HE RELIED ON A NUMBER OF CASE U/S 263 OF THE ACT, UNDER SUCH CIRCUMSTANCES, AGAIN EXAMINE WHETHER THIS INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS, OUT THAT THE LD. PR. CIT HAS NOT CONDUCTED ANY INVESTIGATION/VERIFICATION AND IN A VERY GENERAL AND CASUAL THESE TWO EXPENDITURE, TO THE FILE OF THE ASSESSING OFFICER 2 NILKANTH DEALCOM PVT. LTD ASSESSING OFFICER IN THE ASSESSMENT ORDER DT. 30/03/2016 HAD NOT CALLED FOR THE DITURE UNDER THESE HEAD OF ACCOUNT TO VERIFY THE GENUINENESS AND AFTER CONSIDERING THE REPLY OF THE ASSESSEE, THE LD. PR. CIT SET ASIDE THE ASSESSMENT ORDER DT. 30/03/2016 TO THE FILE OF THE ASSESSING OFFICER, WITH A E ASSESSING OFFICER TO PASS A FRESH ASSESSMENT ORDER AFTER EXAMINATION AND VERIFICATION OF EXPENSES INCURRED FOR , BUSINESS DEVELOPMENT AND FOR BUSINESS PROMOTION. THE ASSESSING OFFICER WAS BASICALLY DIRECTED TO EXAMINE THE GENUINENESS LSO TO EXAMINE WHETHER THE EXPENSES UNDER THESE TWO HEAD OF EXPENDITURE WAS INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. AGGRIEVE THE ASSESSEE IS IN APPEAL BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE, SHRI MIRAJ D. SHAH, SUBMITTED TH ASSESSMENT PROCEEDING, THE ASSESSING OFFICER HAD CALLED FOR DETAILS BY ISSUING NOTICE U/S 142(1) OF THE ACT, DT. 17/08/2015. HE DREW THE ATTENTION OF THE BENCH TO THE ISSUED BY THE ASSESSING OFFICER DURING THE ORIGINAL ASSESSMEN SPECIFICALLY TO POINT NO. 14 AND THE REPLY GIVEN TO THIS QUERY BY THE AND SUBMITTED THAT THE ASSESSING OFFICER HAD CALLED FOR ALL THE INFORMATION INCURRED AND THAT THE ASSESSEE HAS FURNISHED THE SAME THAT THE ASSESSING OFFICER HAS , AFTER EXAMINING THESE DETAILS HAD COME TO A CONCLUSION THAT THE EXPENDITURE IS GENUINE AND WAS INCURRED FOR THE PURPOSE OF HAD ALLOWED THE SAME. HE FURTHER SUBMITTED THAT THE ACCOUNTS SSESSEE HAS BEEN AUDITED U/S 44AB OF THE ACT AND THIS AUDITED EXPENDITURE WAS ACCEPTED BY THE ASSESSING OFFICER AS GENUINE AND AS EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS WHILE PASSING THE ASSESSMENT ORDER U/S CT ON 30/03/2016. HE RELIED ON A NUMBER OF CASE - LAW FOR THE PROPOSITION THAT THE O U/S 263 OF THE ACT, UNDER SUCH CIRCUMSTANCES, DIRECTING THE ASSESSING OFFICER TO ONCE WHETHER THIS EXPENDITURE IS GENUINE OR NOT AND AS TO WHET INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS, IS BAD IN LAW. HE POINTED OUT THAT THE LD. PR. CIT HAS NOT CONDUCTED ANY INVESTIGATION/VERIFICATION AND CASUAL MANNER REMANDED THE MATTER FOR VERIFICAT TO THE FILE OF THE ASSESSING OFFICER , BY WRONGLY INVOKING HIS ITA NO. 1853/KOL/2018 ASSESSMENT YEAR: 2012-13 NILKANTH DEALCOM PVT. LTD . ASSESSING OFFICER IN THE ASSESSMENT ORDER DT. 30/03/2016 HAD NOT CALLED FOR THE TO VERIFY THE GENUINENESS AND AFTER CONSIDERING THE REPLY OF THE ASSESSEE, THE LD. PR. CIT SET ASIDE THE ASSESSMENT ORDER DT. 30/03/2016 TO THE FILE OF THE ASSESSING OFFICER, WITH A PASS A FRESH ASSESSMENT ORDER AFTER EXAMINATION BUSINESS DEVELOPMENT AND FOR BUSINESS PROMOTION. THE ASSESSING OFFICER WAS BASICALLY DIRECTED TO EXAMINE THE GENUINENESS LSO TO EXAMINE WHETHER THE EXPENSES UNDER THESE TWO HEAD OF EXPENDITURE WAS INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. THE LD. COUNSEL FOR THE ASSESSEE, SHRI MIRAJ D. SHAH, SUBMITTED TH AT DURING THE ASSESSMENT PROCEEDING, THE ASSESSING OFFICER HAD CALLED FOR DETAILS BY ISSUING NOTICE U/S 142(1) OF THE ACT, DT. 17/08/2015. HE DREW THE ATTENTION OF THE BENCH TO THE ISSUED BY THE ASSESSING OFFICER DURING THE ORIGINAL ASSESSMEN T TO THIS QUERY BY THE AND SUBMITTED THAT THE ASSESSING OFFICER HAD CALLED FOR ALL THE INFORMATION AND THAT THE ASSESSEE HAS FURNISHED THE SAME . HE AFTER EXAMINING THESE DETAILS HAD COME TO A CONCLUSION THAT THE EXPENDITURE IS GENUINE AND WAS INCURRED FOR THE PURPOSE OF HAD ALLOWED THE SAME. HE FURTHER SUBMITTED THAT THE ACCOUNTS SSESSEE HAS BEEN AUDITED U/S 44AB OF THE ACT AND THIS AUDITED EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS WHILE PASSING THE ASSESSMENT ORDER U/S LAW FOR THE PROPOSITION THAT THE O RDER PASSED THE ASSESSING OFFICER TO ONCE AND AS TO WHET HER IT WAS BAD IN LAW. HE POINTED OUT THAT THE LD. PR. CIT HAS NOT CONDUCTED ANY INVESTIGATION/VERIFICATION OF HIS OWN MANNER REMANDED THE MATTER FOR VERIFICAT ION OF BY WRONGLY INVOKING HIS POWERS U/S 263 OF THE ACT. FOR THE SAKE OF BREVITY, WE DO NOT EXTRACT THE CASE RELIED UPON . WE WOULD BE DEALING THE 4.2. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ORDER U/S 153A/143(3) OF THE ACT IS PASSED AFTER OBTAINING STATUTORY APPROVAL OF THE JOINT/ADDITIONAL COMMISSIONER OF INCOME TAX U/S 153D OF THE ACT AND UNDER SUCH CIRCUMSTANCES, KEEPING IN V THE CBDT CIRCULAR ON THE MATTER, THE LD. PR. CIT, CANNOT REVISE THE ASSESSMENT ORDER PASSED WITH SUCH PRIOR STATUTORY APPROVAL, WITHOUT 153D OF THE ACT. HE SUBMIT CONDUCTED AND IT IS NOT FOR THE LD. PR. CIT ENQUIRY AND INVESTIGATION, TO ASSESS MENT ORDER IN THIS CASE WAS PASSED AFTER OBTAINING APPROVAL U/S 153D OF THE ACT AND AS SUCH APPROVAL HAS NOT BEEN SET ASIDE OR HELD TO BE BAD IN LAW BY ANY AUTHORITY, THE LD. PR. CIT HAS NO POWER TO EXERCISE HIS JURISDICTION U/S 263 OF THE ACT FOR REVISING THE ASSESSMENT ORDER PASSED U/S 153A/143(3) OF THE ACT DT. 30/03/2016 AND HENCE SUCH ORDER IS VOID AB INITIO 5. THE LD. D/R, ON THE OTHER HAND, OPPOSED THE CONTENTIONS OF THE ASSESSEE AND SUBMITTED THAT THIS IS A CASE WHERE THE ASSESSEE IS IN THE AND ADVANCES. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MONEY LENDING AND EARNING INTEREST THEREFROM. HE SUBMITTED THAT THE EXPENDITURE CLAIMED BY THE ASSESSEE HAS HAVING BEEN INCURRED FOR BUSINESS DEVELOPMENT EXPENSES AND BUSIN EXPENSES ARE, ON THE FACE OF IT EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. THE LD. D/R SUBMITTED THAT THE ASSESSING OFFICER HAS NOT EXAMINED THE GENUINENESS OF THE EXPENDITURE NOR HAS HE EXAMIN TO WHETHER THIS EXPENDITURE HAS BEEN INCURRED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS OF THE COMPANY. HE ARGUED THAT MERELY GIVING A NOTICE AND CALLING FOR INFORMATION AND PUTTING THE INFORMATION IN THE ASSESSMENT FOLDER CONCLUSION THAT THE EXPENDITURE WAS EXAMINED BY THE ASSESSING OFFICER. HE ALSO DISPUTED THE CLAIM OF THE ASSESSEE THAT ONCE BOOKS OF ACCOUNT ARE AUDITED, IT HAS TO BE CONSIDERED THAT THE EXPENDITURE INCURRED IS BUSINESS. HE SU BMITTED THAT THE ASSESSING OFFICER HAS THE RIGHT AND DUTY TO EXAMINE 3 NILKANTH DEALCOM PVT. LTD POWERS U/S 263 OF THE ACT. FOR THE SAKE OF BREVITY, WE DO NOT EXTRACT THE CASE . WE WOULD BE DEALING THE CASE-LAW DURING THE COURSE OF OUR FINDINGS. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ORDER U/S 153A/143(3) OF THE ACT IS PASSED AFTER OBTAINING STATUTORY APPROVAL OF THE JOINT/ADDITIONAL COMMISSIONER OF INCOME TAX U/S 153D OF THE ACT AND UNDER SUCH CIRCUMSTANCES, KEEPING IN V IEW THE WORDING OF THE SECTION, THE LEGISLATIVE INTENT AND THE CBDT CIRCULAR ON THE MATTER, THE LD. PR. CIT, CANNOT REVISE THE ASSESSMENT ORDER PASSED WITH SUCH PRIOR STATUTORY APPROVAL, WITHOUT REVISING THE ORDER OF HE SUBMIT TED THAT THIS IS NOT A CASE WHERE NO ENQUIRY HAS BEEN CONDUCTED AND IT IS NOT FOR THE LD. PR. CIT , TO SUBSTITUTE HIS VIEW AS TO THE EXTENT OF AND INVESTIGATION, TO THAT OF THE ASSESSING OFFICER. HE PRAYED THAT AS THE MENT ORDER IN THIS CASE WAS PASSED AFTER OBTAINING APPROVAL U/S 153D OF THE ACT AND AS SUCH APPROVAL HAS NOT BEEN SET ASIDE OR HELD TO BE BAD IN LAW BY ANY AUTHORITY, THE LD. PR. CIT HAS NO POWER TO EXERCISE HIS JURISDICTION U/S 263 OF THE ACT THE ASSESSMENT ORDER PASSED U/S 153A/143(3) OF THE ACT DT. 30/03/2016 VOID AB INITIO IN LAW. THE LD. D/R, ON THE OTHER HAND, OPPOSED THE CONTENTIONS OF THE ASSESSEE AND SUBMITTED THAT THIS IS A CASE WHERE THE ASSESSEE IS IN THE BUSINESS OF GRANTING LOANS AND ADVANCES. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MONEY LENDING AND EARNING INTEREST THEREFROM. HE SUBMITTED THAT THE EXPENDITURE CLAIMED BY THE ASSESSEE HAS HAVING BEEN INCURRED FOR BUSINESS DEVELOPMENT EXPENSES AND BUSIN EXPENSES ARE, ON THE FACE OF IT , NOT JUSTIFIED HAS HAVING BEEN INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. THE LD. D/R SUBMITTED THAT THE ASSESSING OFFICER HAS NOT EXAMINED THE GENUINENESS OF THE EXPENDITURE NOR HAS HE EXAMIN TO WHETHER THIS EXPENDITURE HAS BEEN INCURRED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS OF THE COMPANY. HE ARGUED THAT MERELY GIVING A NOTICE AND CALLING FOR AND PUTTING THE INFORMATION IN THE ASSESSMENT FOLDER DOES NOT LEAD TO A THAT THE EXPENDITURE WAS EXAMINED BY THE ASSESSING OFFICER. HE ALSO DISPUTED THE CLAIM OF THE ASSESSEE THAT ONCE BOOKS OF ACCOUNT ARE AUDITED, IT HAS TO BE THAT THE EXPENDITURE INCURRED IS GENUINE AND INCURRED FOR THE PURPOSE OF BMITTED THAT THE ASSESSING OFFICER HAS THE RIGHT AND DUTY TO EXAMINE ITA NO. 1853/KOL/2018 ASSESSMENT YEAR: 2012-13 NILKANTH DEALCOM PVT. LTD . POWERS U/S 263 OF THE ACT. FOR THE SAKE OF BREVITY, WE DO NOT EXTRACT THE CASE -LAW DURING THE COURSE OF OUR FINDINGS. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ORDER U/S 153A/143(3) OF THE ACT IS PASSED AFTER OBTAINING STATUTORY APPROVAL OF THE JOINT/ADDITIONAL COMMISSIONER OF INCOME TAX U/S 153D OF THE ACT AND UNDER SUCH IEW THE WORDING OF THE SECTION, THE LEGISLATIVE INTENT AND THE CBDT CIRCULAR ON THE MATTER, THE LD. PR. CIT, CANNOT REVISE THE ASSESSMENT ORDER REVISING THE ORDER OF APPROVAL U/S TED THAT THIS IS NOT A CASE WHERE NO ENQUIRY HAS BEEN TO THE EXTENT OF HE PRAYED THAT AS THE MENT ORDER IN THIS CASE WAS PASSED AFTER OBTAINING APPROVAL U/S 153D OF THE ACT AND AS SUCH APPROVAL HAS NOT BEEN SET ASIDE OR HELD TO BE BAD IN LAW BY ANY AUTHORITY, THE LD. PR. CIT HAS NO POWER TO EXERCISE HIS JURISDICTION U/S 263 OF THE ACT THE ASSESSMENT ORDER PASSED U/S 153A/143(3) OF THE ACT DT. 30/03/2016 THE LD. D/R, ON THE OTHER HAND, OPPOSED THE CONTENTIONS OF THE ASSESSEE AND BUSINESS OF GRANTING LOANS AND ADVANCES. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MONEY LENDING AND EARNING INTEREST THEREFROM. HE SUBMITTED THAT THE EXPENDITURE CLAIMED BY THE ASSESSEE HAS HAVING BEEN INCURRED FOR BUSINESS DEVELOPMENT EXPENSES AND BUSIN ESS PROMOTION NOT JUSTIFIED HAS HAVING BEEN INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. THE LD. D/R SUBMITTED THAT THE ASSESSING OFFICER HAS NOT EXAMINED THE GENUINENESS OF THE EXPENDITURE NOR HAS HE EXAMIN ED AS TO WHETHER THIS EXPENDITURE HAS BEEN INCURRED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS OF THE COMPANY. HE ARGUED THAT MERELY GIVING A NOTICE AND CALLING FOR DOES NOT LEAD TO A THAT THE EXPENDITURE WAS EXAMINED BY THE ASSESSING OFFICER. HE ALSO DISPUTED THE CLAIM OF THE ASSESSEE THAT ONCE BOOKS OF ACCOUNT ARE AUDITED, IT HAS TO BE GENUINE AND INCURRED FOR THE PURPOSE OF BMITTED THAT THE ASSESSING OFFICER HAS THE RIGHT AND DUTY TO EXAMINE THE GENUINENESS OF AN AUDITED EXPENDITURE. HAS MECHANICALLY COLLECTED INFORMATION WITHOUT VERIFYING THE SAME AND WITHOUT APPLYING HIS MIND TO THE ASSESSEE. HE RELIED ON THE ORDER OF THE LD. PR. CIT AND SUBMITTED THAT, NON OF MIND AND NON- VERIFICATION PREJUDICIAL TO THE INTEREST OF THE PR. CIT HAS RIGHTLY INVOKED HIS POWERS U/S 263 OF THE ACT THE LD. COUNSEL FOR THE ASSESSEE REVISED OR CANCELLED AND HENCE THE LD. D/R SUBMITTED THAT ONCE THE ASSESSMENT ORDER IS SET ASIDE, AUTOMATICALLY, THE ORDER OF APPROVAL PASSED U/S 153D OF THE ACT HAS TO BE CONSIDERED AS SET ASIDE. 6. WE HAVE HEARD RIVAL CONTENTIONS. ON CA CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: 7. WE FIRST TAKE UP THE LEGAL ARGUMENT THAT, ORDER U/S 153A/143(3) OF THE ACT, CANNOT BE REVISED WITHOUT CANCELLING THE ORDER OF STATUTORY APPROVAL GIVEN BY THE JCIT U/S 153D OF THE ACT. ON THIS SAME ISSUE, T KRISHNA MURTHY VS. ASSTT. COMMISSIONER OF INCOME TAX HYDERABAD REPORTE TMI 359 ITAT HYDERABAD , HAS HELD AS FOLLOWS: 23. AT THIS STAGE, ONE HAS TO REMEMBER, THE SETTLED POSITION OF LAW IS, FOR INVOKING JURISDICTION U/S 263 OF THE ACT, TWO CONDITIONS HAVE TO BE SATISFIED CUMULATIVELY. FIRSTLY, ORDER MUST BE ER REVENUE. IN ABSENCE CH. KRISHNA MURT HY OF ANY ONE OF THE TWO CONDITIONS, THE POWER CONFERRED U/S 263 CANNOT BE EXERCISED. ON A PERUSAL OF THE ASSESSMENT ORDER AS A WHOLE, SPECIFICALLY, PARA 1 CONSCIOUS ABOUT THE FACT THAT BARIUM DIVISION WAS HAVING OUTSTANDING LIABILITY OF THE ADVANCE GIVEN BY CHROME DIVISION AT THE TIME OF DEMERGER. HE WAS ALSO AWARE OF THE FACT THAT OUTSTANDING LIABILITY W WHICH SHARES OF NEWLY FORMED COMPANY I.E. VBCPL WERE ALLOTTED TO ASSESSEE AND HIS ASSOCIATES. THEREFORE, IT IS CLEAR FROM THE ASSESSMENT ORDER THAT ASSESSING OFFICER HAS EXAMINED THE ISSUE OF CONVERSION OF ADVANCE IN THE NAME OF ASSESSEE THROUGH JOURNAL ENTRIES AS WELL AS ALLOTMENT OF SHARES AGAINST SUCH ADVANCE TO ASSESSEE AND HIS FAMILY MEMBERS. FURTHERMORE, FROM 4 NILKANTH DEALCOM PVT. LTD THE GENUINENESS OF AN AUDITED EXPENDITURE. HE SUBMITTED THAT THE ASSESSING OFFICER HAS MECHANICALLY COLLECTED INFORMATION WITHOUT VERIFYING THE SAME AND WITHOUT APPLYING HIS MIND TO THE INFORMATION COLLECTED, HAS ACCEPTED THE CLAIMS OF THE ASSESSEE. HE RELIED ON THE ORDER OF THE LD. PR. CIT AND SUBMITTED THAT, NON VERIFICATION OF THE CLAIM MADE BY ASSESSEE IS AN ERROR WHICH IS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND THAT UNDER THOSE CIRCUMSTANCES, THE LD. PR. CIT HAS RIGHTLY INVOKED HIS POWERS U/S 263 OF THE ACT . O N THE ARGUMENTS MADE BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ORDER PASSED U/S 153D OF THE ACT, REVISED OR CANCELLED AND HENCE THE ORDER U/S 143(3) OF THE ACT, CANNOT BE REVISED, LD. D/R SUBMITTED THAT ONCE THE ASSESSMENT ORDER IS SET ASIDE, AUTOMATICALLY, THE ORDER OF APPROVAL PASSED U/S 153D OF THE ACT HAS TO BE CONSIDERED AS SET ASIDE. WE HAVE HEARD RIVAL CONTENTIONS. ON CA REFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: - WE FIRST TAKE UP THE LEGAL ARGUMENT THAT, ORDER U/S 153A/143(3) OF THE ACT, CANNOT BE REVISED WITHOUT CANCELLING THE ORDER OF STATUTORY APPROVAL GIVEN BY THE JCIT ON THIS SAME ISSUE, T HE HYDERABAD BENCH OF THE ITAT IN THE CASE OF KRISHNA MURTHY VS. ASSTT. COMMISSIONER OF INCOME TAX HYDERABAD REPORTE HAS HELD AS FOLLOWS: - 23. AT THIS STAGE, ONE HAS TO REMEMBER, THE SETTLED POSITION OF LAW IS, FOR INVOKING JURISDICTION U/S 263 OF THE ACT, TWO CONDITIONS HAVE TO BE SATISFIED CUMULATIVELY. FIRSTLY, ORDER MUST BE ER RONEOUS AND SECONDLY IT MUST BE PREJUDICIAL TO THE INTERESTS OF REVENUE. IN ABSENCE CH. KRISHNA MURT HY OF ANY ONE OF THE TWO CONDITIONS, THE POWER CONFERRED U/S 263 CANNOT BE EXERCISED. ON A PERUSAL OF THE ASSESSMENT ORDER AS A WHOLE, SPECIFICALLY, PARA 1 7, IT IS VERY MUCH EVIDENT THAT ASSESSING OFFICER WAS CONSCIOUS ABOUT THE FACT THAT BARIUM DIVISION WAS HAVING OUTSTANDING LIABILITY OF THE ADVANCE GIVEN BY CHROME DIVISION AT THE TIME OF DEMERGER. HE WAS ALSO AWARE OF THE FACT THAT OUTSTANDING LIABILITY W AS CONVERTED AS ADVANCE GIVEN TO ASSESSEE AGAINST WHICH SHARES OF NEWLY FORMED COMPANY I.E. VBCPL WERE ALLOTTED TO ASSESSEE AND HIS ASSOCIATES. THEREFORE, IT IS CLEAR FROM THE ASSESSMENT ORDER THAT ASSESSING OFFICER HAS EXAMINED THE ISSUE OF CONVERSION OF THE OUTSTANDING LIABILITY OF BARIUM DIVISION TO ADVANCE IN THE NAME OF ASSESSEE THROUGH JOURNAL ENTRIES AS WELL AS ALLOTMENT OF SHARES AGAINST SUCH ADVANCE TO ASSESSEE AND HIS FAMILY MEMBERS. FURTHERMORE, FROM ITA NO. 1853/KOL/2018 ASSESSMENT YEAR: 2012-13 NILKANTH DEALCOM PVT. LTD . HE SUBMITTED THAT THE ASSESSING OFFICER HAS MECHANICALLY COLLECTED INFORMATION WITHOUT VERIFYING THE SAME AND WITHOUT HAS ACCEPTED THE CLAIMS OF THE ASSESSEE. HE RELIED ON THE ORDER OF THE LD. PR. CIT AND SUBMITTED THAT, NON -APPLICATION IS AN ERROR WHICH IS UNDER THOSE CIRCUMSTANCES, THE LD. N THE ARGUMENTS MADE BY OF THE ACT, WAS NOT ORDER U/S 143(3) OF THE ACT, CANNOT BE REVISED, THE LD. D/R SUBMITTED THAT ONCE THE ASSESSMENT ORDER IS SET ASIDE, AUTOMATICALLY, THE ORDER OF APPROVAL PASSED U/S 153D OF THE ACT HAS TO BE CONSIDERED AS SET ASIDE. REFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES WE FIRST TAKE UP THE LEGAL ARGUMENT THAT, ORDER U/S 153A/143(3) OF THE ACT, CANNOT BE REVISED WITHOUT CANCELLING THE ORDER OF STATUTORY APPROVAL GIVEN BY THE JCIT HE HYDERABAD BENCH OF THE ITAT IN THE CASE OF SHRI CH. KRISHNA MURTHY VS. ASSTT. COMMISSIONER OF INCOME TAX HYDERABAD REPORTE D IN 2013 (3) 23. AT THIS STAGE, ONE HAS TO REMEMBER, THE SETTLED POSITION OF LAW IS, FOR INVOKING JURISDICTION U/S 263 OF THE ACT, TWO CONDITIONS HAVE TO BE SATISFIED CUMULATIVELY. RONEOUS AND SECONDLY IT MUST BE PREJUDICIAL TO THE INTERESTS OF REVENUE. IN ABSENCE CH. KRISHNA MURT HY OF ANY ONE OF THE TWO CONDITIONS, THE POWER CONFERRED U/S 263 CANNOT BE EXERCISED. ON A PERUSAL OF THE ASSESSMENT ORDER AS A 7, IT IS VERY MUCH EVIDENT THAT ASSESSING OFFICER WAS CONSCIOUS ABOUT THE FACT THAT BARIUM DIVISION WAS HAVING OUTSTANDING LIABILITY OF THE ADVANCE GIVEN BY CHROME DIVISION AT THE TIME OF DEMERGER. HE WAS ALSO AWARE OF THE AS CONVERTED AS ADVANCE GIVEN TO ASSESSEE AGAINST WHICH SHARES OF NEWLY FORMED COMPANY I.E. VBCPL WERE ALLOTTED TO ASSESSEE AND HIS ASSOCIATES. THEREFORE, IT IS CLEAR FROM THE ASSESSMENT ORDER THAT ASSESSING OFFICER HAS THE OUTSTANDING LIABILITY OF BARIUM DIVISION TO ADVANCE IN THE NAME OF ASSESSEE THROUGH JOURNAL ENTRIES AS WELL AS ALLOTMENT OF SHARES AGAINST SUCH ADVANCE TO ASSESSEE AND HIS FAMILY MEMBERS. FURTHERMORE, FROM PARA 2.3 OF IMPUGNED ORDER OF LEARNED CIT, IT WHILE FORWARDING THE DRAFT ASSESSMENT ORDER FOR APPROVAL, AFTER CONSIDERING APPRAISAL REPORT HAS PROPOSED TO TREAT THE CONVERSION OF OUTSTANDING LIABILITY OF BARIUM DIVISION AS ADVANCE TO ASSESSEE IN THE BOOKS OF VCPL A 2(22)(E). HOWEVER, WHILE ACCORDING HIS APPROVAL IN TERMS WITH CIT, WHO IS RANGE HEAD DIRECTED ASSESSING OFFICER NOT TO MAKE ADDITION U/S 2(22)( THE REASONING OF THE ADDL. CIT IS, ADVANCE CREATED IN THE NAME OF ASSESSEE WAS ONLY THROUGH BOOK ENTRY AND NO PAYMENT WAS MADE AND SECONDLY, THERE WAS NO ACCUMULATED PROFITS OF THE COMPANY, WHICH IS A PREREQUISITE FOR INVOKING PROVISIONS OF SECTION 2(22)(E) . THEREFORE, FROM THE AFORESAID DISCUSSION, IT BECOMES CLEAR THAT NOT ONLY ASSESSING OFFICER HAS EXAMINED THE ISSUE, BUT, HE HAS ALSO PASSED THE ORDER IN CONSEQUENCE TO THE DIRECTIONS OF HIS HIGHER AUT THE ACT. ITAT, PUNE BENCH IN CASE OF AKIL GULAMALI SOMJI VS. ITO IN ITA NOS. 455 TO 458/PN/2010 DT. 30/03/2012 WHILE HOLDING THE CONDITIONS IMPOSED U/S 153D TO BE OF MA NDATORY NATURE, REFERRED TO CLAUSE 9 OF MANUAL OF OFFICE PROCEDURE, VOLUME II (TECHNICAL) FEBRUARY 2003 ISSUED BY DIRECTORATE OF MURT HY BEHALF OF CBDT, WHICH READS AS UNDER: '9. APPROVAL FOR ASSESSMENT : AN ASSESSMENT ORDER UNDER BE PASSED ONLY WITH THE PREVIOUS APPROVAL OF THE RANGE JCIT/ADDL.CIT. (FOR THE PERIOD FROM 30 CIT.) THE ASSESSING OFFICER SHOULD SUBMIT THE DRAFT ASSESSMENT ORDER FOR SUCH APPROVAL WE THE ORDER RELEVANT MISCELLANEOUS RECORDS FOLDER. DUE OPPORTUNITY OF BEING HEARD SHOULD BE GIVEN TO THE ASSESSEE BY THE SU THE PROPOSED BLOCK ASSESSMENT, AT LEAST ONE MONTH BEFORE THE TIME BARRING DATE. FINALLY ONCE SUCH APPROVAL IS GRANTED, IT MUST BE IN WRITING AND FILED IN THE RELEVANT FOLDER INDICATED ABOVE AFTER MAKING A DUE ENTRY IN T SHEET. THE ASSESSMENT ORDER CAN BE PASSED ONLY AFTER THE RECEIPT OF SUCH APPROVAL. THE FACT THAT SUCH APPROVAL HAS BEEN OBTAINED SHOULD ALSO BE MENTIONED IN THE BODY OF THE ASSESSMENT ORDER ITSELF.' THUS, FROM THE AFORESAID FACTS IT BECOMES CLEAR POWER U/S 153A HAS TO PASS THE ASSESSMENT ORDER AS PER THE APPROVAL GRANTED BY ADDL. CIT U/S 153D. IN THESE CIRCUMSTANCES, ASSESSING OFFICER HAVING EXAMINED THE ISSUE AND APPLIED HIS MIND TO THE FACTS AND HAVING PAS DIRECTIONS OF THE RANGE HEAD AS PER THE STATUTORY PROVISIONS CONTAINED U/S 153D, THE ASSESSMENT ORDER CANNOT BE HELD TO BE ERRONEOUS. IN FACT LD. CIT HAS BLAMED THE RANGE HEAD FOR THE DIRECTIONS GIVEN BY HIM WHILE APPROVING THEREFORE, IF AT ALL, THERE IS ANY ERROR, IT IS IN THE ORDER OF THE RANGE HEAD AND NOT IN THE ASSESSMENT ORDER. WITHOUT REVISING THE DIRECTIONS OF ADDL. CIT, ASSESSMENT ORDER COULD NOT BE REVISED. 24. FURTHERMORE, IT IS CLEAR WHICH RANGE HEAD I.E. ADDL. CIT DISAPPROVED TREATING THE ADVANCE AS DEEMED DIVIDEND U/S 2(22)(E) IS BECAUSE IT IS CONVERTED AS ADVANCE IN THE NAME OF ASSESSEE MERELY THROUGH BOOK ENTRIES AND ACTUALLY NO 5 NILKANTH DEALCOM PVT. LTD PARA 2.3 OF IMPUGNED ORDER OF LEARNED CIT, IT BECOMES CLEAR THAT ASSESSING OFFICER WHILE FORWARDING THE DRAFT ASSESSMENT ORDER FOR APPROVAL, AFTER CONSIDERING APPRAISAL REPORT HAS PROPOSED TO TREAT THE CONVERSION OF OUTSTANDING LIABILITY OF BARIUM DIVISION AS ADVANCE TO ASSESSEE IN THE BOOKS OF VCPL A S DEEMED DIVIDEND U/S 2(22)(E). HOWEVER, WHILE ACCORDING HIS APPROVAL IN TERMS WITH SECTION 153D CIT, WHO IS RANGE HEAD DIRECTED ASSESSING OFFICER NOT TO MAKE ADDITION U/S 2(22)( THE REASONING OF THE ADDL. CIT IS, ADVANCE CREATED IN THE NAME OF ASSESSEE WAS ONLY THROUGH BOOK ENTRY AND NO PAYMENT WAS MADE AND SECONDLY, THERE WAS NO ACCUMULATED PROFITS OF THE COMPANY, WHICH IS A PREREQUISITE FOR INVOKING PROVISIONS . THEREFORE, FROM THE AFORESAID DISCUSSION, IT BECOMES CLEAR THAT NOT ONLY ASSESSING OFFICER HAS EXAMINED THE ISSUE, BUT, HE HAS ALSO PASSED THE ORDER IN CONSEQUENCE TO THE DIRECTIONS OF HIS HIGHER AUT HORITY IN TERMS WITH SECTION 153D THE ACT. ITAT, PUNE BENCH IN CASE OF AKIL GULAMALI SOMJI VS. ITO IN ITA NOS. 455 TO 458/PN/2010 DT. 30/03/2012 WHILE HOLDING THE CONDITIONS IMPOSED U/S 153D TO BE NDATORY NATURE, REFERRED TO CLAUSE 9 OF MANUAL OF OFFICE PROCEDURE, VOLUME II (TECHNICAL) FEBRUARY 2003 ISSUED BY DIRECTORATE OF INCOME- TAX ON CH. KRISHNA HY BEHALF OF CBDT, WHICH READS AS UNDER: '9. APPROVAL FOR ASSESSMENT : AN ASSESSMENT ORDER UNDER CHAPTER XIV BE PASSED ONLY WITH THE PREVIOUS APPROVAL OF THE RANGE JCIT/ADDL.CIT. (FOR THE PERIOD FROM 30 -6-1995 TO 31-1 2- 1996 THE APPROVING AUTHORITY WAS THE CIT.) THE ASSESSING OFFICER SHOULD SUBMIT THE DRAFT ASSESSMENT ORDER FOR SUCH APPROVAL WE LL IN TIME. THE SUBMISSION OF THE DRAFT ORDER MUST BE DOCKETED IN THE ORDER - SHEET AND A COPY OF THE DRAFT ORDER AND COVERING LETTER FILED IN THE RELEVANT MISCELLANEOUS RECORDS FOLDER. DUE OPPORTUNITY OF BEING HEARD SHOULD BE GIVEN TO THE ASSESSEE BY THE SU PERVISORY OFFICER GIVING APPROVAL TO THE PROPOSED BLOCK ASSESSMENT, AT LEAST ONE MONTH BEFORE THE TIME BARRING DATE. FINALLY ONCE SUCH APPROVAL IS GRANTED, IT MUST BE IN WRITING AND FILED IN THE RELEVANT FOLDER INDICATED ABOVE AFTER MAKING A DUE ENTRY IN T SHEET. THE ASSESSMENT ORDER CAN BE PASSED ONLY AFTER THE RECEIPT OF SUCH APPROVAL. THE FACT THAT SUCH APPROVAL HAS BEEN OBTAINED SHOULD ALSO BE MENTIONED IN THE BODY OF THE ASSESSMENT ORDER ITSELF.' THUS, FROM THE AFORESAID FACTS IT BECOMES CLEAR , THE ASSESSING OFFICER WHILE EXERCISING POWER U/S 153A HAS TO PASS THE ASSESSMENT ORDER AS PER THE APPROVAL GRANTED BY ADDL. CIT U/S 153D. IN THESE CIRCUMSTANCES, ASSESSING OFFICER HAVING EXAMINED THE ISSUE AND APPLIED HIS MIND TO THE FACTS AND HAVING PAS SED THE ORDER IN TERMS WITH THE DIRECTIONS OF THE RANGE HEAD AS PER THE STATUTORY PROVISIONS CONTAINED U/S 153D, THE ASSESSMENT ORDER CANNOT BE HELD TO BE ERRONEOUS. IN FACT LD. CIT HAS BLAMED THE RANGE HEAD FOR THE DIRECTIONS GIVEN BY HIM WHILE APPROVING THE DRAFT ASSESSMENT ORDER. THEREFORE, IF AT ALL, THERE IS ANY ERROR, IT IS IN THE ORDER OF THE RANGE HEAD AND NOT IN THE ASSESSMENT ORDER. WITHOUT REVISING THE DIRECTIONS OF ADDL. CIT, ASSESSMENT ORDER 24. FURTHERMORE, IT IS CLEAR FROM THE DISCUSSIONS MADE BY LD. CIT, THE REASONS ON WHICH RANGE HEAD I.E. ADDL. CIT DISAPPROVED TREATING THE ADVANCE AS DEEMED DIVIDEND U/S 2(22)(E) IS BECAUSE IT IS CONVERTED AS ADVANCE IN THE NAME OF ASSESSEE MERELY THROUGH BOOK ENTRIES AND ACTUALLY NO MONEY WAS ADVANCED TO ASSESSEE AND SECONDLY ITA NO. 1853/KOL/2018 ASSESSMENT YEAR: 2012-13 NILKANTH DEALCOM PVT. LTD . BECOMES CLEAR THAT ASSESSING OFFICER WHILE FORWARDING THE DRAFT ASSESSMENT ORDER FOR APPROVAL, AFTER CONSIDERING APPRAISAL REPORT HAS PROPOSED TO TREAT THE CONVERSION OF OUTSTANDING LIABILITY OF S DEEMED DIVIDEND U/S SECTION 153D , ADDL. CIT, WHO IS RANGE HEAD DIRECTED ASSESSING OFFICER NOT TO MAKE ADDITION U/S 2(22)( E). THE REASONING OF THE ADDL. CIT IS, ADVANCE CREATED IN THE NAME OF ASSESSEE WAS ONLY THROUGH BOOK ENTRY AND NO PAYMENT WAS MADE AND SECONDLY, THERE WAS NO ACCUMULATED PROFITS OF THE COMPANY, WHICH IS A PREREQUISITE FOR INVOKING PROVISIONS . THEREFORE, FROM THE AFORESAID DISCUSSION, IT BECOMES CLEAR THAT NOT ONLY ASSESSING OFFICER HAS EXAMINED THE ISSUE, BUT, HE HAS ALSO PASSED THE ORDER IN SECTION 153D OF THE ACT. ITAT, PUNE BENCH IN CASE OF AKIL GULAMALI SOMJI VS. ITO IN ITA NOS. 455 TO 458/PN/2010 DT. 30/03/2012 WHILE HOLDING THE CONDITIONS IMPOSED U/S 153D TO BE NDATORY NATURE, REFERRED TO CLAUSE 9 OF MANUAL OF OFFICE PROCEDURE, VOLUME II TAX ON CH. KRISHNA CHAPTER XIV -B CAN BE PASSED ONLY WITH THE PREVIOUS APPROVAL OF THE RANGE JCIT/ADDL.CIT. (FOR 1996 THE APPROVING AUTHORITY WAS THE CIT.) THE ASSESSING OFFICER SHOULD SUBMIT THE DRAFT ASSESSMENT ORDER FOR SUCH LL IN TIME. THE SUBMISSION OF THE DRAFT ORDER MUST BE DOCKETED IN SHEET AND A COPY OF THE DRAFT ORDER AND COVERING LETTER FILED IN THE RELEVANT MISCELLANEOUS RECORDS FOLDER. DUE OPPORTUNITY OF BEING HEARD PERVISORY OFFICER GIVING APPROVAL TO THE PROPOSED BLOCK ASSESSMENT, AT LEAST ONE MONTH BEFORE THE TIME BARRING DATE. FINALLY ONCE SUCH APPROVAL IS GRANTED, IT MUST BE IN WRITING AND FILED IN THE RELEVANT FOLDER INDICATED ABOVE AFTER MAKING A DUE ENTRY IN T HE ORDER- SHEET. THE ASSESSMENT ORDER CAN BE PASSED ONLY AFTER THE RECEIPT OF SUCH APPROVAL. THE FACT THAT SUCH APPROVAL HAS BEEN OBTAINED SHOULD ALSO BE , THE ASSESSING OFFICER WHILE EXERCISING POWER U/S 153A HAS TO PASS THE ASSESSMENT ORDER AS PER THE APPROVAL GRANTED BY ADDL. CIT U/S 153D. IN THESE CIRCUMSTANCES, ASSESSING OFFICER HAVING EXAMINED THE SED THE ORDER IN TERMS WITH THE DIRECTIONS OF THE RANGE HEAD AS PER THE STATUTORY PROVISIONS CONTAINED U/S 153D, THE ASSESSMENT ORDER CANNOT BE HELD TO BE ERRONEOUS. IN FACT LD. CIT HAS BLAMED THE RANGE THE DRAFT ASSESSMENT ORDER. THEREFORE, IF AT ALL, THERE IS ANY ERROR, IT IS IN THE ORDER OF THE RANGE HEAD AND NOT IN THE ASSESSMENT ORDER. WITHOUT REVISING THE DIRECTIONS OF ADDL. CIT, ASSESSMENT ORDER FROM THE DISCUSSIONS MADE BY LD. CIT, THE REASONS ON WHICH RANGE HEAD I.E. ADDL. CIT DISAPPROVED TREATING THE ADVANCE AS DEEMED DIVIDEND U/S 2(22)(E) IS BECAUSE IT IS CONVERTED AS ADVANCE IN THE NAME OF ASSESSEE MERELY MONEY WAS ADVANCED TO ASSESSEE AND SECONDLY THE COMPANY I.E. VCPL WAS NOT HAVING ACCUM TIME OF SUCH PAYMENT. THOUGH, LEARNED CIT HAS ACCEPTED THE FACT THAT IN REALITY NO MONEY WAS ADVANCED BY THE COMPANY TO ASSESSEE, SUCH A TRANSACTION ASSESSEE AND HIS FAMILY MEMBERS HAVE BECOME OWNER OF SHARES WORTH RS. 4 CRORES IN THE NEWLY FORMED COMPANY. ACCORDING TO HIM, IN THESE CIRCUMSTANCES, JOURNAL ENTRIES PASSED IN THE BOOKS OF ACCOUNT BY OUTSTANDING LIABILITY OF THE NEWLY FORMED COMPANY AS ADVANCE GIVEN TO ASSESSEE WILL ATTRACT PROVISIONS OF SECTION 2(22)(E) THE ITAT CHENNAI BENCH AND ANOTHER DECISION OF HON'BLE MADRAS HIGH COURT IN CASE OF T. SUNDARAM CHETTIAR AND ANOTHER VS. CIT, 49 ITR 287. FROM THE AFORESAID DISCUSSIONS OF LEARNED CIT, IT IS APPARENT AND OBVIOUS THAT THE ISSUE WHETHER THE ADVANCE CAN BE TREATED AS DEEMED D DEBATABLE ISSUE ON WHICH MORE THAN ONE VIEW ARE POSSIBLE. THEREFORE, WHEN THE VIEW TAKEN BY ADDL. CIT AND ASSESSING OFFICER CAN BE CONSIDERED AS ONE OF THE POSSIBLE VIEWS, ASSESSMENT ORDER CANNOT BE TREATE SOME PREJUDICE CAUSED TO REVENUE. ONE MORE ASPECT, WHICH NEEDS TO BE TAKEN NOTE OF IS LEARNED CIT WHILE REVISING ASSESSMENT ORDER AND DIRECTING ASSESSING OFFICER TO TREAT THE AMOUNT OF RS. 4,27,36,648 AS DEEMED DIVI FAILED TO EXAMINE WHETHER M/S VCPL AT THE TIME OF ALLEGED PAYMENT WAS HAVING ACCUMULATED PROFITS OR NOT. WHEN LEARNED CIT IS AWARE OF THE FACT THAT ADDL. CIT WHILE DISAPPROVING THE ADDITION PROPOSED TO BE MADE U/S M/S VCPL DID NOT HAVE ACCUMULATED PROFITS, WHICH IS ONE OF THE CONDITIONS FOR INVOKING SECTION 2(22)(E) DIRECTING FOR ADDI TION OF RS. 4,27,36,648 U/S 2(22)(E). ITAT LUCKNOW BENCH IN CASE OF MEHTAB ALAM VS. ACIT, ITA NO. 288 TO 294/LKW/14 DATED 18/11/2014 WHILE SETTING ASIDE THE ORDER PASSED U/S 263 OF THE ACT, AMONGST OTHER DECISIONS ALSO TOOK NOTE OF A DECISION OF THE HON'BL E ALLABAHAD HIGH COURT IN CASE OF CIT VS. DR. ASHOK KUMAR WHEREIN IT WAS HELD THAT WHEN ASS ABOUT THE FACTS OF THE CASE AND THE ORDER PASSED BY HIM WAS APPROVED BY ADDL. CIT, THEN, LD. CIT CANNOT BE JUSTIFIE FRAMING ASSESSMENT ORDER AND THERE WILL BE NO CASE FOR SETTING ASIDE THE ASSESSMENT ORDER. THEREFORE, CONSIDERED IN THE AFORESAID PERSPECTIVE WHEN IT IS A FACT ON RECORD THAT BOTH THE ADDL. CIT WHILE IN COURSE OF ASSESSMENT PROCEEDING HAVE EXAMINED THE ISSUE OF DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT AT THE HANDS OF ASSESSEE IN RELATION TO THE ADVANCE SHOWN IN HIS NAME IN THE BOOKS OF M/S VCPL AND ADDL. CIT CAN BE CONSIDERED AS ONE OF THE POSSIBLE VIEWS, ASSESSMENT ORDER CANNOT BE TREATED AS ERRONEOUS. MORE SO, WHEN ASSESSMENT ORDER HAS BEEN PASSED IN TERMS WITH SECTION 153D OF THE ACT AND LD. CIT HAS NOT REVISED THE DIRECTIONS OF ADDL. CIT. IN THESE CIRCUMSTANCES, AS ONE OF THE CONDITIONS OF ORDER PASSED U/S 263 IS NOT VALID. ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDER OF LEARNED CIT AND RESTORED THE ASSESSMENT ORDER PASSED. 25. AS WE HAVE HELD THE REVISION ORDER TO BE INVALID FOR THE REASONS STATED ABOVE, THE OTHER ISSUES RAISED BY ASSESSEE IN THE GROUNDS O 6 NILKANTH DEALCOM PVT. LTD THE COMPANY I.E. VCPL WAS NOT HAVING ACCUM ULATED PROFITS CH. KRISHNA MURT TIME OF SUCH PAYMENT. THOUGH, LEARNED CIT HAS ACCEPTED THE FACT THAT IN REALITY NO MONEY WAS ADVANCED BY THE COMPANY TO ASSESSEE, BUT, ACCORDING TO HIM, BY VIRTUE OF SUCH A TRANSACTION ASSESSEE AND HIS FAMILY MEMBERS HAVE BECOME OWNER OF SHARES WORTH RS. 4 CRORES IN THE NEWLY FORMED COMPANY. ACCORDING TO HIM, IN THESE CIRCUMSTANCES, JOURNAL ENTRIES PASSED IN THE BOOKS OF ACCOUNT BY CONVERTING THE OUTSTANDING LIABILITY OF THE NEWLY FORMED COMPANY AS ADVANCE GIVEN TO ASSESSEE WILL SECTION 2(22)(E) . IN THIS CONTEXT, HE HAS RELIED UPON A DECISION OF BENCH AND ANOTHER DECISION OF HON'BLE MADRAS HIGH COURT IN CASE OF T. SUNDARAM CHETTIAR AND ANOTHER VS. CIT, 49 ITR 287. FROM THE AFORESAID DISCUSSIONS OF LEARNED CIT, IT IS APPARENT AND OBVIOUS THAT THE ISSUE WHETHER THE ADVANCE CAN BE TREATED AS DEEMED D IVIDEND U/S 2(22)(E) AT THE HANDS OF ASSESSEE IS A DEBATABLE ISSUE ON WHICH MORE THAN ONE VIEW ARE POSSIBLE. THEREFORE, WHEN THE VIEW TAKEN BY ADDL. CIT AND ASSESSING OFFICER CAN BE CONSIDERED AS ONE OF THE POSSIBLE VIEWS, ASSESSMENT ORDER CANNOT BE TREATE D AS ERRONEOUS, EVEN THOUGH THERE MAY BE SOME PREJUDICE CAUSED TO REVENUE. ONE MORE ASPECT, WHICH NEEDS TO BE TAKEN NOTE OF IS LEARNED CIT WHILE REVISING ASSESSMENT ORDER AND DIRECTING ASSESSING OFFICER TO TREAT THE AMOUNT OF RS. 4,27,36,648 AS DEEMED DIVI DEND AT THE HANDS OF ASSESSEE HAS TOTALLY FAILED TO EXAMINE WHETHER M/S VCPL AT THE TIME OF ALLEGED PAYMENT WAS HAVING ACCUMULATED PROFITS OR NOT. WHEN LEARNED CIT IS AWARE OF THE FACT THAT ADDL. CIT WHILE DISAPPROVING THE ADDITION PROPOSED TO BE MADE U/S 2(22)(E) HAS OBSERVED THAT M/S VCPL DID NOT HAVE ACCUMULATED PROFITS, WHICH IS ONE OF THE CONDITIONS FOR SECTION 2(22)(E) , IT WAS INCUMBENT UPON HIM TO EXAMINE THAT ASPECT BEFORE TION OF RS. 4,27,36,648 U/S 2(22)(E). ITAT LUCKNOW BENCH IN CASE OF MEHTAB ALAM VS. ACIT, ITA NO. 288 TO 294/LKW/14 DATED 18/11/2014 WHILE SETTING ASIDE THE ORDER PASSED U/S 263 OF THE ACT, AMONGST OTHER DECISIONS ALSO TOOK NOTE OF A E ALLABAHAD HIGH COURT IN CASE OF CIT VS. DR. ASHOK KUMAR WHEREIN IT WAS HELD THAT WHEN ASS ESSING OFFICER CH. KRISHNA MURT HY WAS FULLY ALIVE ABOUT THE FACTS OF THE CASE AND THE ORDER PASSED BY HIM WAS APPROVED BY ADDL. CIT, THEN, LD. CIT CANNOT BE JUSTIFIE D IN INTERFERING IN THE APPROVAL GIVEN BY ADDL. CIT FOR FRAMING ASSESSMENT ORDER AND THERE WILL BE NO CASE FOR SETTING ASIDE THE ASSESSMENT ORDER. THEREFORE, CONSIDERED IN THE AFORESAID PERSPECTIVE WHEN IT IS A FACT ON RECORD THAT BOTH THE ADDL. CIT WHILE GRANTING APPROVAL U/S 153D AS WELL AS ASSESSING OFFICER IN COURSE OF ASSESSMENT PROCEEDING HAVE EXAMINED THE ISSUE OF DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT AT THE HANDS OF ASSESSEE IN RELATION TO THE ADVANCE SHOWN IN HIS NAME IN THE BOOKS OF M/S VCPL AND THE VIEW TAKEN BY ASSESSING OFFICER AS WELL AS ADDL. CIT CAN BE CONSIDERED AS ONE OF THE POSSIBLE VIEWS, ASSESSMENT ORDER CANNOT BE TREATED AS ERRONEOUS. MORE SO, WHEN ASSESSMENT ORDER HAS BEEN PASSED IN TERMS WITH OF THE ACT AND LD. CIT HAS NOT REVISED THE DIRECTIONS OF ADDL. CIT. IN THESE CIRCUMSTANCES, AS ONE OF THE CONDITIONS OF SECTION 263 IS NOT SATISFIED, THE IMPUGNED 263 IS NOT VALID. ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDER OF LEARNED CIT AND RESTORED THE ASSESSMENT ORDER PASSED. 25. AS WE HAVE HELD THE REVISION ORDER TO BE INVALID FOR THE REASONS STATED ABOVE, THE OTHER ISSUES RAISED BY ASSESSEE IN THE GROUNDS O F APPEAL RELATING TO THE ABSENCE OF ITA NO. 1853/KOL/2018 ASSESSMENT YEAR: 2012-13 NILKANTH DEALCOM PVT. LTD . ULATED PROFITS CH. KRISHNA MURT HY AT THE TIME OF SUCH PAYMENT. THOUGH, LEARNED CIT HAS ACCEPTED THE FACT THAT IN REALITY NO BUT, ACCORDING TO HIM, BY VIRTUE OF SUCH A TRANSACTION ASSESSEE AND HIS FAMILY MEMBERS HAVE BECOME OWNER OF SHARES WORTH RS. 4 CRORES IN THE NEWLY FORMED COMPANY. ACCORDING TO HIM, IN THESE CONVERTING THE OUTSTANDING LIABILITY OF THE NEWLY FORMED COMPANY AS ADVANCE GIVEN TO ASSESSEE WILL . IN THIS CONTEXT, HE HAS RELIED UPON A DECISION OF BENCH AND ANOTHER DECISION OF HON'BLE MADRAS HIGH COURT IN CASE OF T. SUNDARAM CHETTIAR AND ANOTHER VS. CIT, 49 ITR 287. FROM THE AFORESAID DISCUSSIONS OF LEARNED CIT, IT IS APPARENT AND OBVIOUS THAT THE ISSUE WHETHER THE IVIDEND U/S 2(22)(E) AT THE HANDS OF ASSESSEE IS A DEBATABLE ISSUE ON WHICH MORE THAN ONE VIEW ARE POSSIBLE. THEREFORE, WHEN THE VIEW TAKEN BY ADDL. CIT AND ASSESSING OFFICER CAN BE CONSIDERED AS ONE OF THE POSSIBLE D AS ERRONEOUS, EVEN THOUGH THERE MAY BE SOME PREJUDICE CAUSED TO REVENUE. ONE MORE ASPECT, WHICH NEEDS TO BE TAKEN NOTE OF IS LEARNED CIT WHILE REVISING ASSESSMENT ORDER AND DIRECTING ASSESSING OFFICER TO TREAT DEND AT THE HANDS OF ASSESSEE HAS TOTALLY FAILED TO EXAMINE WHETHER M/S VCPL AT THE TIME OF ALLEGED PAYMENT WAS HAVING ACCUMULATED PROFITS OR NOT. WHEN LEARNED CIT IS AWARE OF THE FACT THAT ADDL. CIT 2(22)(E) HAS OBSERVED THAT M/S VCPL DID NOT HAVE ACCUMULATED PROFITS, WHICH IS ONE OF THE CONDITIONS FOR , IT WAS INCUMBENT UPON HIM TO EXAMINE THAT ASPECT BEFORE TION OF RS. 4,27,36,648 U/S 2(22)(E). ITAT LUCKNOW BENCH IN CASE OF MEHTAB ALAM VS. ACIT, ITA NO. 288 TO 294/LKW/14 DATED 18/11/2014 WHILE SETTING ASIDE THE ORDER PASSED U/S 263 OF THE ACT, AMONGST OTHER DECISIONS ALSO TOOK NOTE OF A E ALLABAHAD HIGH COURT IN CASE OF CIT VS. DR. ASHOK KUMAR HY WAS FULLY ALIVE ABOUT THE FACTS OF THE CASE AND THE ORDER PASSED BY HIM WAS APPROVED BY ADDL. CIT, D IN INTERFERING IN THE APPROVAL GIVEN BY ADDL. CIT FOR FRAMING ASSESSMENT ORDER AND THERE WILL BE NO CASE FOR SETTING ASIDE THE ASSESSMENT ORDER. THEREFORE, CONSIDERED IN THE AFORESAID PERSPECTIVE WHEN IT IS A FACT ON RECORD GRANTING APPROVAL U/S 153D AS WELL AS ASSESSING OFFICER IN COURSE OF ASSESSMENT PROCEEDING HAVE EXAMINED THE ISSUE OF DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT AT THE HANDS OF ASSESSEE IN RELATION TO THE ADVANCE SHOWN IN HIS THE VIEW TAKEN BY ASSESSING OFFICER AS WELL AS ADDL. CIT CAN BE CONSIDERED AS ONE OF THE POSSIBLE VIEWS, ASSESSMENT ORDER CANNOT BE TREATED AS ERRONEOUS. MORE SO, WHEN ASSESSMENT ORDER HAS BEEN PASSED IN TERMS WITH OF THE ACT AND LD. CIT HAS NOT REVISED THE DIRECTIONS OF ADDL. CIT. IN THESE IS NOT SATISFIED, THE IMPUGNED 263 IS NOT VALID. ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDER OF 25. AS WE HAVE HELD THE REVISION ORDER TO BE INVALID FOR THE REASONS STATED ABOVE, THE F APPEAL RELATING TO THE ABSENCE OF INCRIMINATING MATERIAL, ETC. ARE NOT REQUIRED TO BE GONE INTO. FOR THE VERY SAME REASON, ADDITIONAL GROUND IS ALSO 8. THE MUMBAI E BENCH OF THE TRIBUNAL IN THE CASE OF HIRANANDANI VS. PR. CIT IN ITA NOS. 3226, 3227, 3227, 3228, 3229, 3230, 3231 & 3232/M/2017, ORDER DT. 14/02/2018, ORDER DT. 14/02/2018, 25. WE FIND THAT ASSESSMENT ORDER U/S.143 R.W.S.153 GETTING APPROVAL OF ACIT AS PER PROVISIONS OF ORDER U/S.143A R.W.S. 153 OF THE ACT CANNOT REVISE WITHOUT REVISING THE APPROVAL OF AC IT. WE FIND THAT AS PER THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. DR. ASHOK KUMAR IN I.T. APPEAL NO.192 OF 2000 WHEREIN IT IS HELD THAT THE ASSESSMENT ORDER APPROVED BY THE 23 ITA NO3226 ACIT U/S.1 53D OF THE ACT CANNOT SUBJECT TO REVISION U/S.263 OF THE ACT. DR COULD NOT FILE ANY EVIDENCE TO SHOW THAT SUCH PERMISSION WAS REVISED BY ACIT IN PRESENT CASE, THEREFORE, CIT CANNOT REVISE THE ORDER PASSED BY AO U/S.153 OF THE ACT. AS PER SECTION 153A OF THE ACT. 26. TRIBUNAL IN CASE OF TRINITY INFRA VENTURES 589/HYD/2015 DATED 04.12.2015 WHEREIN, THE HON'B ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 153 REVISING THE APPROVAL OF ADDL. CIT: 5.4. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER SUB SECTION 143(3) READ WITH UNDER SECTION 153D REVISED WITHOUT REVISING THE DIRECTIONS OF THE ADDL. CIT UNDER ACT. THE LD. COUNSEL FOR THE ASSESSEE, HAS RELIED UPON THE DECISIONS OF THIS TRIBUNAL IN THE CASE OF CH. KRISHNA MURTHY VS. ACIT, C.C. 3, HYDERABAD IN ITA NO. 766/HYD/2012 DATED 13.02.2015 AND ALSO THE DECISION OF LUCKNOW BENCH OF ITAT IN THE CASE OF M EHTABALAM 288/LUCK/2014 DATED 18.11.2014 IN SUPPORT OF THIS CONTENTION. HE HAS ALSO PLACED RELIANCE UPON THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. DR. ASHOK KUMAR THE ASSESSMENT ORDER APPROVED BY THE ADDL. CIT UNDER SUBJECTED TO REVISION UNDER ALSO, WE HOLD THAT THE REVISION ORDER UNDER SUSTAINABLE. ACCORDINGLY, WE ALLOW THE GROUNDS OF THE ASSESSEE'. 27. HON'BLE TRIBUNAL IN CASE OF 1113/PN/2014 DATED 23.12.2016 WHEREIN, THE HON'BLE TRIBUNAL HELD AS UNDER: 9. REFERRING TO THE DECISION OF THE HYDERABAD BE M/S. TRINITY INFRA VENTURES LTD. VS. DCIT VIDE ITA NOS. 584 TO 589/H/2015 ORDER DATED 04-12- 2015 FOR A.YRS. 2005 THE SAID DECISION, FOLLOWING VARIOUS DECISIONS INCLUDING T ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. DR. ASHOK KUMAR VIDE INCOME TAX APPEAL NO.192/2000 ORDER DATED 06 THE ADDL.CIT U/S.153D CANNOT BE SUBJECTED TO REVISE U/S.263 OF THE 7 NILKANTH DEALCOM PVT. LTD INCRIMINATING MATERIAL, ETC. ARE NOT REQUIRED TO BE GONE INTO. FOR THE VERY SAME REASON, ADDITIONAL GROUND IS ALSO NOT REQUIRED TO BE ADJUDICATED. THE MUMBAI E BENCH OF THE TRIBUNAL IN THE CASE OF SHRI SURENDRA L. HIRANANDANI VS. PR. CIT IN ITA NOS. 3226, 3227, 3227, 3228, 3229, 3230, 3231 & 3232/M/2017, ORDER DT. 14/02/2018, ORDER DT. 14/02/2018, HELD AS UNDER: 25. WE FIND THAT ASSESSMENT ORDER U/S.143 R.W.S.153 A OF THE ACT WAS PASSED AFTER GETTING APPROVAL OF ACIT AS PER PROVISIONS OF SECTION 153D OF THE ACT. WE FIND THAT THE ORDER U/S.143A R.W.S. 153 OF THE ACT CANNOT REVISE WITHOUT REVISING THE APPROVAL OF IT. WE FIND THAT AS PER THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. DR. ASHOK KUMAR IN I.T. APPEAL NO.192 OF 2000 WHEREIN IT IS HELD THAT THE ASSESSMENT ORDER APPROVED BY THE 23 ITA NO3226 -3232.M.17 A.Y.2008 - 53D OF THE ACT CANNOT SUBJECT TO REVISION U/S.263 OF THE ACT. DR COULD NOT FILE ANY EVIDENCE TO SHOW THAT SUCH PERMISSION WAS REVISED BY ACIT IN PRESENT CASE, THEREFORE, CIT CANNOT REVISE THE ORDER PASSED BY AO U/S.153 OF THE ACT. OF THE ACT. 26. TRIBUNAL IN CASE OF TRINITY INFRA VENTURES LTD V. DCIT CC 2(1) IN ITA NOS. 584 589/HYD/2015 DATED 04.12.2015 WHEREIN, THE HON'B LE TRIBUNAL HAS HELD THAT THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 153 A OF THE ACT CANNOT BE REVISED WITHOUT REVISING THE APPROVAL OF ADDL. CIT: 5.4. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER SUB MITTED THAT THE ASSESSMENT UNDER READ WITH SECTION 153C WAS PASSED AFTER GETTING APPROVAL OF ADDL. CIT SECTION 153D OF THE I.T. ACT AND THEREFORE SUCH AN ASSESSMENT CANNOT BE REVISED WITHOUT REVISING THE DIRECTIONS OF THE ADDL. CIT UNDER SECTION 153D ACT. THE LD. COUNSEL FOR THE ASSESSEE, HAS RELIED UPON THE DECISIONS OF THIS TRIBUNAL IN THE CASE OF CH. KRISHNA MURTHY VS. ACIT, C.C. 3, HYDERABAD IN ITA NO. 766/HYD/2012 DATED 13.02.2015 AND ALSO THE DECISION OF LUCKNOW BENCH OF ITAT IN THE CASE OF EHTABALAM 288/LUCK/2014 DATED 18.11.2014 IN SUPPORT OF THIS CONTENTION. HE HAS ALSO PLACED RELIANCE UPON THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. DR. ASHOK KUMAR IN I.T. APPEA L NO. 192 OF 2000 WHEREIN IT HAS BEEN HELD THAT THE ASSESSMENT ORDER APPROVED BY THE ADDL. CIT UNDER SECTION 153D SUBJECTED TO REVISION UNDER SECTION 263 OF THE I.T. ACT. IN VIEW OF THE ABOVE DECISION ALSO, WE HOLD THAT THE REVISION ORDER UNDER SECTION 263 OF THE I.T. ACT IS NOT SUSTAINABLE. ACCORDINGLY, WE ALLOW THE GROUNDS OF THE ASSESSEE'. 27. HON'BLE TRIBUNAL IN CASE OF DHARIWAL INDUSTRIES LTD V. CIT IN ITA NOS. 1108 1113/PN/2014 DATED 23.12.2016 WHEREIN, THE HON'BLE TRIBUNAL HELD AS UNDER: 9. REFERRING TO THE DECISION OF THE HYDERABAD BE NCH OF THE TRIBUNAL IN THE CASE OF M/S. TRINITY INFRA VENTURES LTD. VS. DCIT VIDE ITA NOS. 584 TO 589/H/2015 ORDER 2015 FOR A.YRS. 2005 - 06 TO 2010- 11 HE SUBMITTED THAT THE TRIBUNAL IN THE SAID DECISION, FOLLOWING VARIOUS DECISIONS INCLUDING T HE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. DR. ASHOK KUMAR VIDE INCOME TAX APPEAL NO.192/2000 ORDER DATED 06 -08- 2012, HAS HELD THAT ASSESSMENT ORDER APPROVED BY THE ADDL.CIT U/S.153D CANNOT BE SUBJECTED TO REVISE U/S.263 OF THE I.T. ACT ITA NO. 1853/KOL/2018 ASSESSMENT YEAR: 2012-13 NILKANTH DEALCOM PVT. LTD . INCRIMINATING MATERIAL, ETC. ARE NOT REQUIRED TO BE GONE INTO. FOR THE VERY SAME SHRI SURENDRA L. HIRANANDANI VS. PR. CIT IN ITA NOS. 3226, 3227, 3227, 3228, 3229, 3230, 3231 & HELD AS UNDER: - WAS PASSED AFTER OF THE ACT. WE FIND THAT THE ORDER U/S.143A R.W.S. 153 OF THE ACT CANNOT REVISE WITHOUT REVISING THE APPROVAL OF IT. WE FIND THAT AS PER THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. DR. ASHOK KUMAR IN I.T. APPEAL NO.192 OF 2000 WHEREIN IT IS HELD THAT THE - 09 TO 2014-15 53D OF THE ACT CANNOT SUBJECT TO REVISION U/S.263 OF THE ACT. THE LEARNED DR COULD NOT FILE ANY EVIDENCE TO SHOW THAT SUCH PERMISSION WAS REVISED BY ACIT IN PRESENT CASE, THEREFORE, CIT CANNOT REVISE THE ORDER PASSED BY AO U/S.153 OF THE ACT. 2(1) IN ITA NOS. 584 - LE TRIBUNAL HAS HELD THAT THE CANNOT BE REVISED WITHOUT MITTED THAT THE ASSESSMENT UNDER WAS PASSED AFTER GETTING APPROVAL OF ADDL. CIT OF THE I.T. ACT AND THEREFORE SUCH AN ASSESSMENT CANNOT BE SECTION 153D OF THE I.T. ACT. THE LD. COUNSEL FOR THE ASSESSEE, HAS RELIED UPON THE DECISIONS OF THIS TRIBUNAL IN THE CASE OF CH. KRISHNA MURTHY VS. ACIT, C.C. 3, HYDERABAD IN ITA NO. 766/HYD/2012 DATED 13.02.2015 AND ALSO THE DECISION OF LUCKNOW BENCH OF ITAT IN THE CASE OF EHTABALAM 288/LUCK/2014 DATED 18.11.2014 IN SUPPORT OF THIS CONTENTION. HE HAS ALSO PLACED RELIANCE UPON THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF L NO. 192 OF 2000 WHEREIN IT HAS BEEN HELD THAT SECTION 153D , CANNOT BE OF THE I.T. ACT. IN VIEW OF THE ABOVE DECISION OF THE I.T. ACT IS NOT IN ITA NOS. 1108 - 1113/PN/2014 DATED 23.12.2016 WHEREIN, THE HON'BLE TRIBUNAL HELD AS UNDER: NCH OF THE TRIBUNAL IN THE CASE OF M/S. TRINITY INFRA VENTURES LTD. VS. DCIT VIDE ITA NOS. 584 TO 589/H/2015 ORDER 11 HE SUBMITTED THAT THE TRIBUNAL IN HE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. DR. ASHOK KUMAR VIDE INCOME TAX APPEAL 2012, HAS HELD THAT ASSESSMENT ORDER APPROVED BY I.T. ACT . 12. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE LD.CIT AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. 14. WE FIND MERIT IN THE ABOVE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE. WE FIND THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF MEHTABALAM VS. ACIT VIDE ITA NOS.288 TO 294/LKW/2014 ORDER DATED 18 HAS OBSERV ED AS UNDER. 14.1 WE FIND THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF CH. KRISHNA MURTHY VS. ACIT VIDE ITA NO.766/HYD/2012 ORDER DATED 13 OF THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF MEHTABALAM (SUPRA) HELD THA CIT IS NOT JUSTIFIED IN ASSUMING JURISDICTION U/S.263 WHEN THE ORDER HAS BEEN PASSED IN TERMS OF SECTION 153D TRIBUNAL IN THE CASE OF M/S. TRINITY INFR DECIDE AN IDENTICAL ISSUE AND IT HELD THAT THE ASSESSMENT ORDER APPROVED BY THE ADDL.CIT U/S.153D CANNOT BE SUBJECT TO REVISION U/S.263 OF THE OBSERVATION OF THE TRIBUNAL AT PARA 5.4 OF THE ORDER READS AS UNDER. 28. SINCE IN THE INSTANT CASE ALSO THE ASSESSING OFFICER HAS PASSED THE ORDER AFTER OBTAINING NECESSARY APPROVAL FROM ADDL.CIT U/S.153D OF THE I.T. ACT, THEREFORE, RESPECTFULLY FOLLO WING THE ABOVE THE TRIBUNAL WE ARE OF THE CONSIDERED OPINION THAT THE CIT HAS NO POWER TO REVISE THE ORDER U/S.263 OF THE I.T. ACT THE APPROVAL OF THE ADDL.CIT U/S.153D OF THE I.T. ACT. WE RESPECTFULLY FOLLOWING THE DECISION OF ACIT VS. DR. ASHOK KUMAR, ITA 192 OF 2000. WE FIND THAT IN THE INSTANT CASE THE ORIGINAL APPROVAL WAS GRANTED BY ADDL. CIT AND T CANNOT BE REVISE WITHOUT APPROVAL OF ADD. CIT. (III) CIT HAS NOT CONDUCTED ANY ENQUIRY BEFORE DIRECTING THE ASSESSING OFFI 9. THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF CIT, CENTRAL, PUNE 2017 (1) TMI 260 13. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT SINCE THE ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER AFTER OBTAINING APPROVAL OF THE ADDL. CIT U/S. 153D OF THE THE LD. CIT HAS NO POWER TO EXERCISE HIS JURISDICTION U/S. 263 OF THE I.T. ACT, 1961. IT IS ALSO HIS SUBMISSION THAT EVEN ON MERIT THE TRIBUNAL HAS DECIDED BOTH THE ISSUES IN FAVOUR OF THE ASSESSEE. 14. WE FIND MERIT IN THE ABOVE SUBMIS LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF MEHTAB ALAM V. ACIT VIDE ITA NOS. 288 TO 294/LKW/2014 ORDER DATED 18 31. BESIDES OTHER JUD HAVE ALSO CAREFULLY EXAMINED THE SAME AND WE FIND THAT SIMILAR VIEWS WERE EXPRESSED BY VARIOUS JUDICIAL AUTHORITIES. 32. WE HAVE ALSO EXAMINED THE JUDGMENT OF THE HO CASE OF CIT V. DR. ASHOK KUMAR (SUPRA) ON AN ISSUE WHETHER THE ASSESSMENT ORDER WAS PASSED WITH THE APPROVAL OF THE ADDL. CIT AND THEIR LORDSHIPS HAVE HELD THAT THE ASSESSING OFFICER WAS FULLY ALIVE ABOUT THE FADS OF THE CASE AND THAT IS WHY H NECESSARY APPROVAL OF THE ADDL. CIT BEFORE COMPLETING THE ASSESSMENT ORDERS FOR ALL THE ASSESSMENT YEARS AND ONCE THAT IS NOT DISPUTED BY THE REVENUE, THEN THE ID. COMMISSIONER OF INCOME 8 NILKANTH DEALCOM PVT. LTD 12. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE LD.CIT AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. 14. WE FIND MERIT IN THE ABOVE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE. WE FIND THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF MEHTABALAM VS. ACIT VIDE ITA NOS.288 TO 294/LKW/2014 ORDER DATED 18 -11- 2014 WHILE DECIDING AN IDENTICAL ISSUE ED AS UNDER. 14.1 WE FIND THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF CH. KRISHNA MURTHY VS. ACIT VIDE ITA NO.766/HYD/2012 ORDER DATED 13 -02- 2015 FOLLOWING THE DECISION OF THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF MEHTABALAM (SUPRA) HELD THA CIT IS NOT JUSTIFIED IN ASSUMING JURISDICTION U/S.263 WHEN THE ORDER HAS BEEN PASSED SECTION 153D OF THE ACT. 14.2 WE FIND THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF M/S. TRINITY INFR A VENTURES LTD. (SUPRA) HAD AN OCCASION TO DECIDE AN IDENTICAL ISSUE AND IT HELD THAT THE ASSESSMENT ORDER APPROVED BY THE ADDL.CIT U/S.153D CANNOT BE SUBJECT TO REVISION U/S.263 OF THE I.T. ACT OBSERVATION OF THE TRIBUNAL AT PARA 5.4 OF THE ORDER READS AS UNDER. 28. SINCE IN THE INSTANT CASE ALSO THE ASSESSING OFFICER HAS PASSED THE ORDER AFTER OBTAINING NECESSARY APPROVAL FROM ADDL.CIT U/S.153D OF THE I.T. ACT, THEREFORE, WING THE ABOVE - MENTIONED DECISIONS OF THE COORDINATE BENCHES OF THE TRIBUNAL WE ARE OF THE CONSIDERED OPINION THAT THE CIT HAS NO POWER TO REVISE THE I.T. ACT IN THE INSTANT CASE SINCE THE SAME HAS BEEN PASSED WITH THE APPROVAL OF THE ADDL.CIT U/S.153D OF THE I.T. ACT. WE RESPECTFULLY FOLLOWING THE DR. ASHOK KUMAR, ITA 192 OF 2000. WE FIND THAT IN THE INSTANT CASE THE ORIGINAL APPROVAL WAS GRANTED BY ADDL. CIT AND T HIS ASSESSMENT ORDER IS CANNOT BE REVISE WITHOUT APPROVAL OF ADD. CIT. (III) CIT HAS NOT CONDUCTED ANY ENQUIRY BEFORE DIRECTING THE ASSESSING OFFI CER TO DECIDE THE ISSUES AFRESH. THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF DHARIWAL INDUSTRIES LIMITED CIT, CENTRAL, PUNE 2017 (1) TMI 260 ITAT PUNE , HELD AS UNDER:- 13. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT SINCE THE ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER AFTER OBTAINING APPROVAL OF THE ADDL. CIT U/S. 153D OF THE THE LD. CIT HAS NO POWER TO EXERCISE HIS JURISDICTION U/S. 263 OF THE I.T. ACT, 1961. IT IS ALSO HIS SUBMISSION THAT EVEN ON MERIT THE TRIBUNAL HAS DECIDED BOTH THE ISSUES IN FAVOUR OF THE 14. WE FIND MERIT IN THE ABOVE SUBMIS SION OF THE LD. COUNSEL FOR THE ASSESSEE. WE FIND THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF MEHTAB ALAM V. ACIT VIDE ITA NOS. 288 TO 294/LKW/2014 ORDER DATED 18 -11- 2014 WHILE DECIDING AN IDENTICAL ISSUE HAS OBSERVED AS UNDER: 31. BESIDES OTHER JUD GMENTS WERE ALSO REFERRED BY THE ASSESSEE IN THIS REGARD AND WE HAVE ALSO CAREFULLY EXAMINED THE SAME AND WE FIND THAT SIMILAR VIEWS WERE EXPRESSED BY VARIOUS JUDICIAL AUTHORITIES. 32. WE HAVE ALSO EXAMINED THE JUDGMENT OF THE HO N BLE JURISDICTIONAL HIGH CASE OF CIT V. DR. ASHOK KUMAR (SUPRA) ON AN ISSUE WHETHER THE ASSESSMENT ORDER WAS PASSED WITH THE APPROVAL OF THE ADDL. CIT AND THEIR LORDSHIPS HAVE HELD THAT THE ASSESSING OFFICER WAS FULLY ALIVE ABOUT THE FADS OF THE CASE AND THAT IS WHY H NECESSARY APPROVAL OF THE ADDL. CIT BEFORE COMPLETING THE ASSESSMENT ORDERS FOR ALL THE ASSESSMENT YEARS AND ONCE THAT IS NOT DISPUTED BY THE REVENUE, THEN THE ID. COMMISSIONER OF INCOME - TAX WOULD NOT BE JUSTIFIED IN INTERFERING IN THE APPROVAL ITA NO. 1853/KOL/2018 ASSESSMENT YEAR: 2012-13 NILKANTH DEALCOM PVT. LTD . 12. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE LD.CIT AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. 14. WE FIND MERIT IN THE ABOVE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE. WE FIND THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF MEHTABALAM VS. ACIT VIDE ITA 2014 WHILE DECIDING AN IDENTICAL ISSUE 14.1 WE FIND THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF CH. KRISHNA MURTHY 2015 FOLLOWING THE DECISION OF THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF MEHTABALAM (SUPRA) HELD THA T CIT IS NOT JUSTIFIED IN ASSUMING JURISDICTION U/S.263 WHEN THE ORDER HAS BEEN PASSED OF THE ACT. 14.2 WE FIND THE HYDERABAD BENCH OF THE A VENTURES LTD. (SUPRA) HAD AN OCCASION TO DECIDE AN IDENTICAL ISSUE AND IT HELD THAT THE ASSESSMENT ORDER APPROVED BY THE I.T. ACT . THE RELEVANT 28. SINCE IN THE INSTANT CASE ALSO THE ASSESSING OFFICER HAS PASSED THE ORDER AFTER OBTAINING NECESSARY APPROVAL FROM ADDL.CIT U/S.153D OF THE I.T. ACT, THEREFORE, MENTIONED DECISIONS OF THE COORDINATE BENCHES OF THE TRIBUNAL WE ARE OF THE CONSIDERED OPINION THAT THE CIT HAS NO POWER TO REVISE THE THE SAME HAS BEEN PASSED WITH THE APPROVAL OF THE ADDL.CIT U/S.153D OF THE I.T. ACT. WE RESPECTFULLY FOLLOWING THE DR. ASHOK KUMAR, ITA 192 OF 2000. WE FIND THAT IN THE INSTANT HIS ASSESSMENT ORDER IS CANNOT BE REVISE WITHOUT APPROVAL OF ADD. CIT. (III) CIT HAS NOT CONDUCTED ANY CER TO DECIDE THE ISSUES AFRESH. DHARIWAL INDUSTRIES LIMITED VS. 13. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT SINCE THE ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER AFTER OBTAINING APPROVAL OF THE ADDL. CIT U/S. 153D OF THE I.T. ACT, THEREFORE, THE LD. CIT HAS NO POWER TO EXERCISE HIS JURISDICTION U/S. 263 OF THE I.T. ACT, 1961. IT IS ALSO HIS SUBMISSION THAT EVEN ON MERIT THE TRIBUNAL HAS DECIDED BOTH THE ISSUES IN FAVOUR OF THE SION OF THE LD. COUNSEL FOR THE ASSESSEE. WE FIND THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF MEHTAB ALAM V. ACIT VIDE ITA NOS. 288 TO 2014 WHILE DECIDING AN IDENTICAL ISSUE HAS OBSERVED AS UNDER: GMENTS WERE ALSO REFERRED BY THE ASSESSEE IN THIS REGARD AND WE HAVE ALSO CAREFULLY EXAMINED THE SAME AND WE FIND THAT SIMILAR VIEWS WERE EXPRESSED BY BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. DR. ASHOK KUMAR (SUPRA) ON AN ISSUE WHETHER THE ASSESSMENT ORDER WAS PASSED WITH THE APPROVAL OF THE ADDL. CIT AND THEIR LORDSHIPS HAVE HELD THAT THE ASSESSING OFFICER WAS FULLY ALIVE ABOUT THE FADS OF THE CASE AND THAT IS WHY H E GOT NECESSARY APPROVAL OF THE ADDL. CIT BEFORE COMPLETING THE ASSESSMENT ORDERS FOR ALL THE ASSESSMENT YEARS AND ONCE THAT IS NOT DISPUTED BY THE REVENUE, THEN THE ID. TAX WOULD NOT BE JUSTIFIED IN INTERFERING IN THE APPROVAL ACCORDING BY T HE ADDL. CIT FOR FRAMING THE AS FOR SETTING ASIDE THE ASSESSMENT ORDER FOR THE ASSESSMENT YEARS IN QUESTION. 14.1 WE FIND THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF CH. KRISHNA MURTHY V. ACIT VIDE ITA NO. 766/HYD/2012 ORDER DATED 13 THE TRIBUNAL IN THE CASE OF MEHTAB ALAM (SUPRA) HELD THAT CIT(A) IS NOT JUSTIFIED IN ASSUMING JURISDICTION U/S. 263 WHEN THE ORDER HAS BEEN PASSED IN TERMS OF SECTIO 14.2 WE FIND THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF TRINITY INFRA VENTURES LTD. (SUPRA) HAD AN OCCASION TO DECIDE AN IDENTICAL ISSUE AND IT HELD THAT THE ASSESSMENT ORDER APPROVED BY THE ADDL. CIT U/S. 153D CANNOT BE SUBJECT RELEVANT OBSERVATION OF THE TRIBUNAL AT PARA 5.4 OF THE ORDER READS AS UNDER: 5.4. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER SUBMITTED THAT THE ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 153C WAS PASSED UNDER SECTION 153D OF THE I.T. ACT AND THEREFORE SUCH AN ASSESSMENT CANNOT BE REVISED WITHOUT REVISING THE DIRECTIONS OF THE ADDL. CIT UNDER SECTION 153D OF THE I.T. ACT. THE LD. COUNSEL FOR THE ASSESSEE, HAS RELIED UPO KRISHNA MURTHY V. ACIT, C.C. 3, HYDERABAD IN ITA. NO 766/HYD/2012 DATED 13.02.2015 AND ALSO THE DECISION OF LUCKNOW BENCH OF ITAT IN THE CASE OF MEHTAB ALAM 288/LUCK/2014 DATED 18.11.2014 IN SUPPORT OF TH RELIANCE UPON THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT V. DR. ASHOK KUMAR IN I.T. APPEAL NO. 192 OF 2000 WHEREIN IT HAS BEEN HE ORDER AP PROVED BY THE ADDL. CIT UNDER SECTION 153 UNDER SECTION 263 OF THE I.T. ACT. IN VIEW OF THE ABOVE DECISION ALSO, WE HOLD THAT THE REVISION ORDER UNDER SECTION 263 OF THE I.T. ACT IS NOT SUSTAINABLE. ACCORDINGLY, WE ALL THE GROUNDS OF THE ASSESSEE. 15. SINCE IN THE INSTANT CASE ALSO THE ASSESSING OFFICER HAS PASSED THE ORDER AFTER OBTAINING NECESSARY APPROVAL FROM ADDL. CIT U/S. 153D OF THE I.T. ACT, THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE TRIBUNAL WE ARE OF THE CONSIDERED OPINION THAT THE CIT HAS NO POWER TO REVISE THE ORDER U/S. 263 OF THE I.T. ACT IN THE INSTANT CASE SINCE THE SAME HAS BEEN PASSED WITH THE APPROVAL OF THE ADDL. CIT U/S. 153D OF THE I.T. ACT. 10. RESPECTFULLY FOLLOWING THE PROPOSITIONS O APPLYING THE SAME TO THE FACTS OF THE CASE, WE HAVE NO OTHER ALTERNATIVE BUT TO HOLD THAT THE REVISION ORDER PASSED U/S 263 OF THE ACT BY THE LD. PR. CIT IS BAD IN LAW FOR THE REASON THAT THE ORDER OF STATUTORY AP U/S 153A R.W.S. 143(3) OF THE ACT, DT. 30/03/2016, WAS PASSED VALID AND LEGAL ORDER. 11. EVEN OTHERWISE, IN THIS CASE, WE FIND THAT THE LD. PR. CIT, WITHOUT MAKING ANY ENQUIRIES ON HIS OWN, IN A MECHANICAL MANNER ASSESSING OFFICER FOR FRESH ADJUDICATION. SUCH GENERAL RESTORATION OF THE MATTER TO THE OF THE ASSESSING OFFICER, WITHOUT THE LD. PR. CIT MAKING ANY ENQUIRY ANY OPINION ON THE ISSUE , IS NOT PERMITTED IN LAW. THIS IS NOT A CASE WHERE THERE IS NO ENQUIRY. AS PER THE LD. PR. CIT, THIS I 9 NILKANTH DEALCOM PVT. LTD HE ADDL. CIT FOR FRAMING THE AS SESSMENT ORDER AND THAN THERE WAS NO CASE FOR SETTING ASIDE THE ASSESSMENT ORDER FOR THE ASSESSMENT YEARS IN QUESTION. 14.1 WE FIND THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF CH. KRISHNA MURTHY V. ACIT VIDE ITA NO. 766/HYD/2012 ORDER DATED 13 -02- 2015 FOLLOWING THE DECISION OF THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF MEHTAB ALAM (SUPRA) HELD THAT CIT(A) IS NOT JUSTIFIED IN ASSUMING JURISDICTION U/S. 263 WHEN THE ORDER HAS BEEN PASSED IN TERMS OF SECTIO N 153D OF THE ACT. 14.2 WE FIND THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF TRINITY INFRA VENTURES LTD. (SUPRA) HAD AN OCCASION TO DECIDE AN IDENTICAL ISSUE AND IT HELD THAT THE ASSESSMENT ORDER APPROVED BY THE ADDL. CIT U/S. 153D CANNOT BE SUBJECT TO REVISION U/S. 263 OF THE I.T. ACT. THE RELEVANT OBSERVATION OF THE TRIBUNAL AT PARA 5.4 OF THE ORDER READS AS UNDER: 5.4. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER SUBMITTED THAT THE ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 153C WAS PASSED AFTER GETTING APPROVAL OF ADDL. CIT UNDER SECTION 153D OF THE I.T. ACT AND THEREFORE SUCH AN ASSESSMENT CANNOT BE REVISED WITHOUT REVISING THE DIRECTIONS OF THE ADDL. CIT UNDER SECTION 153D OF THE I.T. ACT. THE LD. COUNSEL FOR THE ASSESSEE, HAS RELIED UPO N THE DECISIONS OF THIS TRIBUNAL IN THE CASE OF CH. KRISHNA MURTHY V. ACIT, C.C. 3, HYDERABAD IN ITA. NO 766/HYD/2012 DATED 13.02.2015 AND ALSO THE DECISION OF LUCKNOW BENCH OF ITAT IN THE CASE OF MEHTAB ALAM 288/LUCK/2014 DATED 18.11.2014 IN SUPPORT OF TH IS CONTENTION. HE HAS ALSO PLACED RELIANCE UPON THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT V. DR. ASHOK KUMAR IN I.T. APPEAL NO. 192 OF 2000 WHEREIN IT HAS BEEN HE LD THAT THE ASSESSMENT PROVED BY THE ADDL. CIT UNDER SECTION 153 D, CANNOT BE SUBJECTED TO REVISION UNDER SECTION 263 OF THE I.T. ACT. IN VIEW OF THE ABOVE DECISION ALSO, WE HOLD THAT THE REVISION ORDER UNDER SECTION 263 OF THE I.T. ACT IS NOT SUSTAINABLE. ACCORDINGLY, WE ALL THE GROUNDS OF THE ASSESSEE. THE INSTANT CASE ALSO THE ASSESSING OFFICER HAS PASSED THE ORDER AFTER OBTAINING NECESSARY APPROVAL FROM ADDL. CIT U/S. 153D OF THE I.T. ACT, THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE - MENTIONED DECISIONS OF THE COORDINATE BENCHES OF THE OF THE CONSIDERED OPINION THAT THE CIT HAS NO POWER TO REVISE THE ORDER U/S. 263 OF THE I.T. ACT IN THE INSTANT CASE SINCE THE SAME HAS BEEN PASSED WITH THE APPROVAL OF THE ADDL. CIT U/S. 153D OF THE I.T. ACT. RESPECTFULLY FOLLOWING THE PROPOSITIONS O F LAW LAID DOWN IN ALL THESE JUDGMENTS AND APPLYING THE SAME TO THE FACTS OF THE CASE, WE HAVE NO OTHER ALTERNATIVE BUT TO HOLD THAT THE REVISION ORDER PASSED U/S 263 OF THE ACT BY THE LD. PR. CIT IS BAD IN LAW FOR THE REASON THAT THE ORDER OF STATUTORY AP PROVAL PASSED U/S 153D OF THE ACT, BASED ON WHICH THE ORDER U/S 153A R.W.S. 143(3) OF THE ACT, DT. 30/03/2016, WAS PASSED , WAS NOT REVISED AND EVEN OTHERWISE, IN THIS CASE, WE FIND THAT THE LD. PR. CIT, WITHOUT MAKING ANY ON HIS OWN, IN A MECHANICAL MANNER HAS SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. SUCH GENERAL RESTORATION OF THE MATTER TO THE OF THE ASSESSING OFFICER, WITHOUT THE LD. PR. CIT MAKING ANY ENQUIRY BY HIMSELF , IS NOT PERMITTED IN LAW. THIS IS NOT A CASE WHERE THERE IS NO ENQUIRY. AS PER THE LD. PR. CIT, THIS I S A CASE OF INADEQUATE ENQUIRY. T ITA NO. 1853/KOL/2018 ASSESSMENT YEAR: 2012-13 NILKANTH DEALCOM PVT. LTD . SESSMENT ORDER AND THAN THERE WAS NO CASE FOR SETTING ASIDE THE ASSESSMENT ORDER FOR THE ASSESSMENT YEARS IN QUESTION. 14.1 WE FIND THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF CH. KRISHNA MURTHY V. ACIT VIDE 2015 FOLLOWING THE DECISION OF THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF MEHTAB ALAM (SUPRA) HELD THAT CIT(A) IS NOT JUSTIFIED IN ASSUMING N 153D OF THE ACT. 14.2 WE FIND THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF TRINITY INFRA VENTURES LTD. (SUPRA) HAD AN OCCASION TO DECIDE AN IDENTICAL ISSUE AND IT HELD THAT THE ASSESSMENT ORDER TO REVISION U/S. 263 OF THE I.T. ACT. THE 5.4. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER SUBMITTED THAT THE ASSESSMENT UNDER AFTER GETTING APPROVAL OF ADDL. CIT UNDER SECTION 153D OF THE I.T. ACT AND THEREFORE SUCH AN ASSESSMENT CANNOT BE REVISED WITHOUT REVISING THE DIRECTIONS OF THE ADDL. CIT UNDER SECTION 153D OF THE I.T. ACT. THE LD. N THE DECISIONS OF THIS TRIBUNAL IN THE CASE OF CH. KRISHNA MURTHY V. ACIT, C.C. 3, HYDERABAD IN ITA. NO 766/HYD/2012 DATED 13.02.2015 AND ALSO THE DECISION OF LUCKNOW BENCH OF ITAT IN THE CASE OF MEHTAB ALAM IS CONTENTION. HE HAS ALSO PLACED RELIANCE UPON THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT V. DR. LD THAT THE ASSESSMENT D, CANNOT BE SUBJECTED TO REVISION UNDER SECTION 263 OF THE I.T. ACT. IN VIEW OF THE ABOVE DECISION ALSO, WE HOLD THAT THE REVISION ORDER UNDER SECTION 263 OF THE I.T. ACT IS NOT SUSTAINABLE. ACCORDINGLY, WE ALL OW THE INSTANT CASE ALSO THE ASSESSING OFFICER HAS PASSED THE ORDER AFTER OBTAINING NECESSARY APPROVAL FROM ADDL. CIT U/S. 153D OF THE I.T. ACT, THEREFORE, MENTIONED DECISIONS OF THE COORDINATE BENCHES OF THE OF THE CONSIDERED OPINION THAT THE CIT HAS NO POWER TO REVISE THE ORDER U/S. 263 OF THE I.T. ACT IN THE INSTANT CASE SINCE THE SAME HAS BEEN PASSED WITH THE ALL THESE JUDGMENTS AND APPLYING THE SAME TO THE FACTS OF THE CASE, WE HAVE NO OTHER ALTERNATIVE BUT TO HOLD THAT THE REVISION ORDER PASSED U/S 263 OF THE ACT BY THE LD. PR. CIT IS BAD IN LAW FOR THE REASON PROVAL PASSED U/S 153D OF THE ACT, BASED ON WHICH THE ORDER WAS NOT REVISED AND IS A EVEN OTHERWISE, IN THIS CASE, WE FIND THAT THE LD. PR. CIT, WITHOUT MAKING ANY HAS SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. SUCH GENERAL RESTORATION OF THE MATTER TO THE FILE BY HIMSELF OR FORMING , IS NOT PERMITTED IN LAW. THIS IS NOT A CASE WHERE THERE IS NO S A CASE OF INADEQUATE ENQUIRY. T HE LEGAL POSITION ON THIS ISSUE HAS BEEN SETTLED BY VARIOUS COURTS OF LAW. THE RELEVANT CASE UNDER:- J.L. MORRISON (INDIA) LTD. (2014) 366 ITR 593 (CAL.) SECTION 4, READ WITH SECTION 263, OF THE INCOME ASSESSMENT YEAR 2006 COMPANY IN INDIA FOR PRODUCING AND SELLING PRODUCTS OF SAID FOREIGN COMPANY IN INDIA FOR A SPECIFIC PERIOD CERTAIN AMOUNT TO ASSESSEE AS ONE AS ISSUING A NOC FOR SETTING UP A 100 PER CENT SUBSIDIARY BY THEN IN INDIA OFFICER PASSED ASSESSMENT ORDER UNDER SECTION 143(3) ACCEPTING ASSESSEE'S CLAIM THAT SAID A MOUNT WAS TO BE TREATED AS CAPITAL RECEIPT ORDER MAINLY ON GROUND THAT AMOUNT RECEIVED FROM GERMAN COMPANY WAS TO BE TAXED AS 'INCOME FROM OTHER SOURCES' IN TERMS OF CONTRACT, ASSESSEE WAS NOT ENTITLED IN ANY EVENT, UPON EXPIRY OF CONTRACT, TO PREVENT GERMAN CONCERN FROM SETTING UP IT 100 PER CENT SUBSIDIARY FOR PURPOSE OF MANUFACTURING AND MARKETING ITS GOODS AND, THUS, PAYMENT IN QUESTION WAS A GRATUITOUS PAYMENT - ASSESSEE AGREED TO HAVE ITS MANUFACTURING AND TRADING STRUCTURE IMPAIRED RESULTING IN LOSS OF HIS SOURCE OF INCOME, RECEIPT IN THAT CASE WOULD BE A CAPITAL RECEIPT WHETHER IN VIEW OF AFO REVISIONAL ORDER- HELD, YES CIT VS. SUNBEAM AUTO LTD. (2011) 332 ITR 167 (DEL.) SECTION 263 OF THE INCO REVENUE - ASSESSMENT YEAR 2001 OFFICER HAS MADE AN INADEQUATE ENQUIRY , THAT WOULD NOT, BY ITSELF, GIVE OCCASION TO COMMISSIONER TO PASS OR OPINION IN MATTER, IT IS ONLY IN CASES OF 'LACK OF INQUIRY' THAT SUCH A COURSE OF ACTION WOULD BE OPEN - HELD, YES MANUFACTURING AND SUPPLYING AUTO PARTS YEAR, IT HAD BEEN ALLOWED DEDUCTION OF EXPENDITURE INCURRED ON TOOLS AND DYES AS REVENUE EXPENDITURE - OF HIS POWERS UNDER SECTION 263 ON GROUND THAT ASSES AFORESAID EXPENDITURE WITHOUT MAKING PROPER ENQUIRY MATTER BACK TO ASSESSING OFFICER TO RE SHOWED THAT ASSESSING OFFICER HAD UNDERTAKEN EXERCISE OF EXAMINING AS EXPENDITURE INCURRED BY ASSESSEE IN REPLACEMENT OF DYES AND TOOLS WAS TO BE TREATED AS REVENUE EXPENDITURE OR NOT AND ON BEING SATISFIED WITH ASSESSEE'S EXPLANATION, HE ACCEPTED SAME, IT COULD BE SAID TO BE A CASE OF LACK OF INQUIRY FURTHER, ON FACTS AND LAW, VIEW TAKEN BY ASSESSING OFFICER WAS ONE OF POSSIBLE VIEWS AND, THEREFORE, ASSESSMENT ORDER PASSED BY ASSESSING OFFICER COULD NOT BE HELD TO BE PREJUDICIAL TO INTEREST OF REVENUE JUSTIFIED IN SETTING ASIDE ORDER OF COMMISSIONER CHROMA BUSINESS LTD. V. DCIT (2004) 82 TTJ 540 (CAL.) SECTION 263 OF THE INCOME - ASSESSMENT YEAR 1997 AND ALLOWING LOSS IN SHARE TRANSACTIONS, HAD CALLED FOR DETAILS OF S 10 NILKANTH DEALCOM PVT. LTD THIS ISSUE HAS BEEN SETTLED BY VARIOUS COURTS OF LAW. THE RELEVANT CASE - J.L. MORRISON (INDIA) LTD. (2014) 366 ITR 593 (CAL.) SECTION 4, READ WITH SECTION 263, OF THE INCOME -TAX ACT, 1961 - INCOME ASSESSMENT YEAR 2006 -07 - ASSESSEE ENTERED INTO AN AGREEMENT WITH A GERMAN COMPANY IN INDIA FOR PRODUCING AND SELLING PRODUCTS OF SAID FOREIGN COMPANY IN INDIA FOR A SPECIFIC PERIOD - AFTER EXPIRY OF PERIOD OF AGREEMENT, GERMAN COMPANY PAID AMOUNT TO ASSESSEE AS ONE - TIME SETTLEMENT FOR TERMINATION OF CONTRACT AS WELL AS ISSUING A NOC FOR SETTING UP A 100 PER CENT SUBSIDIARY BY THEN IN INDIA OFFICER PASSED ASSESSMENT ORDER UNDER SECTION 143(3) ACCEPTING ASSESSEE'S CLAIM THAT MOUNT WAS TO BE TREATED AS CAPITAL RECEIPT - COMMISSIONER PASSED A REVISIONAL ORDER MAINLY ON GROUND THAT AMOUNT RECEIVED FROM GERMAN COMPANY WAS TO BE TAXED AS 'INCOME FROM OTHER SOURCES' - TRIBUNAL, SET ASIDE REVISIONAL ORDER OF CONTRACT, ASSESSEE WAS NOT ENTITLED IN ANY EVENT, UPON EXPIRY OF CONTRACT, TO PREVENT GERMAN CONCERN FROM SETTING UP IT 100 PER CENT SUBSIDIARY FOR PURPOSE OF MANUFACTURING AND MARKETING ITS GOODS AND, THUS, PAYMENT IN QUESTION WAS A EVEN OTHERWISE, IF IT WAS ASSUMED THAT BY AGREEING TO ISSUE NOC, ASSESSEE AGREED TO HAVE ITS MANUFACTURING AND TRADING STRUCTURE IMPAIRED RESULTING IN LOSS OF HIS SOURCE OF INCOME, RECEIPT IN THAT CASE WOULD BE A CAPITAL RECEIPT WHETHER IN VIEW OF AFO RESAID, TRIBUNAL WAS JUSTIFIED IN SETTING ASIDE IMPUGNED HELD, YES CIT VS. SUNBEAM AUTO LTD. (2011) 332 ITR 167 (DEL.) OF THE INCO ME-TAX ACT, 1961 - REVISION - OF ORDER PREJUDICIAL TO INTEREST OF ASSESSMENT YEAR 2001 -02 - WHETHER IF WHILE MAKING ASSESSMENT, ASSESSING OFFICER HAS MADE AN INADEQUATE ENQUIRY , THAT WOULD NOT, BY ITSELF, GIVE OCCASION TO COMMISSIONER TO PASS OR DER UNDER SECTION 263, MERELY BECAUSE HE HAS DIFFERENT OPINION IN MATTER, IT IS ONLY IN CASES OF 'LACK OF INQUIRY' THAT SUCH A COURSE OF ACTION HELD, YES - ASSESSEE- COMPANY WAS ENGAGED IN BUSINESS OF MANUFACTURING AND SUPPLYING AUTO PARTS - IN ASSESSMENT FOR RELEVANT ASSESSMENT YEAR, IT HAD BEEN ALLOWED DEDUCTION OF EXPENDITURE INCURRED ON TOOLS AND DYES AS - COMMISSIONER, HOWEVER, SET ASIDE ASSESSMENT ORDER IN EXERCISE OF HIS POWERS UNDER SECTION 263 ON GROUND THAT ASSES SING OFFICER HAD ALLOWED AFORESAID EXPENDITURE WITHOUT MAKING PROPER ENQUIRY - HE, ACCORDINGLY, REMITTED MATTER BACK TO ASSESSING OFFICER TO RE -EXAMINE ISSUE - WHETHER WHEN FACTS CLEARLY SHOWED THAT ASSESSING OFFICER HAD UNDERTAKEN EXERCISE OF EXAMINING AS EXPENDITURE INCURRED BY ASSESSEE IN REPLACEMENT OF DYES AND TOOLS WAS TO BE TREATED AS REVENUE EXPENDITURE OR NOT AND ON BEING SATISFIED WITH ASSESSEE'S EXPLANATION, HE ACCEPTED SAME, IT COULD BE SAID TO BE A CASE OF LACK OF INQUIRY - FURTHER, ON FACTS AND LAW, VIEW TAKEN BY ASSESSING OFFICER WAS ONE OF POSSIBLE VIEWS AND, THEREFORE, ASSESSMENT ORDER PASSED BY ASSESSING OFFICER COULD NOT BE HELD TO BE PREJUDICIAL TO INTEREST OF REVENUE - HELD, YES - WHETHER, THEREFORE, TRIBUNA JUSTIFIED IN SETTING ASIDE ORDER OF COMMISSIONER - HELD, YES CHROMA BUSINESS LTD. V. DCIT (2004) 82 TTJ 540 (CAL.) SECTION 263 OF THE INCOME -TAX ACT, 1961 - REVISION - OF ORDERS PREJUDICIAL TO INTEREST OF REVENUE ASSESSMENT YEAR 1997 -98 - WHETHER WHERE ASSESSING OFFICER, BEFORE COMPLETING ASSESSMENT AND ALLOWING LOSS IN SHARE TRANSACTIONS, HAD CALLED FOR DETAILS OF S HARE TRANSACTIONS AND HAD ITA NO. 1853/KOL/2018 ASSESSMENT YEAR: 2012-13 NILKANTH DEALCOM PVT. LTD . - LAW ARE PROVIDED AS INCOME - CHARGEABLE AS - ASSESSEE ENTERED INTO AN AGREEMENT WITH A GERMAN COMPANY IN INDIA FOR PRODUCING AND SELLING PRODUCTS OF SAID FOREIGN COMPANY IN INDIA AFTER EXPIRY OF PERIOD OF AGREEMENT, GERMAN COMPANY PAID TIME SETTLEMENT FOR TERMINATION OF CONTRACT AS WELL AS ISSUING A NOC FOR SETTING UP A 100 PER CENT SUBSIDIARY BY THEN IN INDIA - ASSESSING OFFICER PASSED ASSESSMENT ORDER UNDER SECTION 143(3) ACCEPTING ASSESSEE'S CLAIM THAT COMMISSIONER PASSED A REVISIONAL ORDER MAINLY ON GROUND THAT AMOUNT RECEIVED FROM GERMAN COMPANY WAS TO BE TAXED TRIBUNAL, SET ASIDE REVISIONAL ORDER - IT WAS NOTED THAT OF CONTRACT, ASSESSEE WAS NOT ENTITLED IN ANY EVENT, UPON EXPIRY OF CONTRACT, TO PREVENT GERMAN CONCERN FROM SETTING UP IT 100 PER CENT SUBSIDIARY FOR PURPOSE OF MANUFACTURING AND MARKETING ITS GOODS AND, THUS, PAYMENT IN QUESTION WAS A EVEN OTHERWISE, IF IT WAS ASSUMED THAT BY AGREEING TO ISSUE NOC, ASSESSEE AGREED TO HAVE ITS MANUFACTURING AND TRADING STRUCTURE IMPAIRED RESULTING IN LOSS OF HIS SOURCE OF INCOME, RECEIPT IN THAT CASE WOULD BE A CAPITAL RECEIPT - RESAID, TRIBUNAL WAS JUSTIFIED IN SETTING ASIDE IMPUGNED OF ORDER PREJUDICIAL TO INTEREST OF WHETHER IF WHILE MAKING ASSESSMENT, ASSESSING OFFICER HAS MADE AN INADEQUATE ENQUIRY , THAT WOULD NOT, BY ITSELF, GIVE OCCASION TO DER UNDER SECTION 263, MERELY BECAUSE HE HAS DIFFERENT OPINION IN MATTER, IT IS ONLY IN CASES OF 'LACK OF INQUIRY' THAT SUCH A COURSE OF ACTION COMPANY WAS ENGAGED IN BUSINESS OF IN ASSESSMENT FOR RELEVANT ASSESSMENT YEAR, IT HAD BEEN ALLOWED DEDUCTION OF EXPENDITURE INCURRED ON TOOLS AND DYES AS COMMISSIONER, HOWEVER, SET ASIDE ASSESSMENT ORDER IN EXERCISE SING OFFICER HAD ALLOWED HE, ACCORDINGLY, REMITTED WHETHER WHEN FACTS CLEARLY SHOWED THAT ASSESSING OFFICER HAD UNDERTAKEN EXERCISE OF EXAMINING AS TO WHETHER EXPENDITURE INCURRED BY ASSESSEE IN REPLACEMENT OF DYES AND TOOLS WAS TO BE TREATED AS REVENUE EXPENDITURE OR NOT AND ON BEING SATISFIED WITH ASSESSEE'S EXPLANATION, HE - HELD, NO - WHETHER FURTHER, ON FACTS AND LAW, VIEW TAKEN BY ASSESSING OFFICER WAS ONE OF POSSIBLE VIEWS AND, THEREFORE, ASSESSMENT ORDER PASSED BY ASSESSING OFFICER COULD NOT BE HELD TO BE WHETHER, THEREFORE, TRIBUNA L WAS OF ORDERS PREJUDICIAL TO INTEREST OF REVENUE WHETHER WHERE ASSESSING OFFICER, BEFORE COMPLETING ASSESSMENT HARE TRANSACTIONS AND HAD DISCUSSED WITH ASSESSEE BUT HAD PASSED A BRIEF ASSESSMENT ORDER WITHOUT RECORDING THEREIN FACTS AND DISCUSSION, THAT FACT DID NOT EMPOWER COMMISSIONER TO INVOKE JURISDICTION UNDER SECTION 263 - HELD, YES CIT VS. VIKAS POLYMERS SECTION 263 OF THE INCOME - ASSESSMENT YEAR 1982 PREREQUISITE THAT COMMISSIONER MUST GIVE REASONS TO JUSTIFY EXERCISE OF SUO MOTU REVISIONAL POWERS BY HIM TO REOPEN A CONCLUDED ASSESSMENT AND EXERCISE OF POWER BEING QUASI NATURE, REASONS MUST BE CANCELLATION OF ASSESSMENT OR DIRECTIONS ISSUED FOR A FRESH ASSESSMENT WERE CALLED FOR, AND MUST IRRESISTIBLY LEAD TO CONCLUSION THAT ORDER OF ASSESSING OFFICER WAS NOT ONLY ERRONEOUS BUT W AS ALSO PREJUDICIAL TO INTEREST OF REVENUE POWERS, ASSESSEE MUST BE CALLED, HIS EXPLANATION SOUGHT FOR AND EXAMINED BY COMMISSIONER, AND THEREAFTER, IF COMMISSIONER STILL FEELS THAT ORDER IS ERRONEOUS AND REVENUE, COMMISSIONER MAY PASS REVISIONAL ORDERS DURING COURSE OF SCRUTINY BY ASSESSING OFFICER, WHICH WAS ANSWERED TO SATISFACTION OF ASSESSING OFFICER, BUT NEITHER QUERY NOR ANSWER WA ITSELF, LEAD TO CONCLUSION THAT ORDER OF ASSESSING OFFICER CALLED FOR INTERFERENCE AND REVISION HELD, YES CIT VS. ARVIND JEWELLERS (2003) 259 ITR 502 (GUJ.) SECTION 263 OF THE INCOME - ASSESSMENT YEAR 1981 EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY ASSESSING OFFICER AND IT IS ONLY WHEN AN ORDER IS ERRONEOUS THAT SECTION WILL BE ATTRACTED AND INCORRECT ASSUMPTION OF FACTS OR AN INCORRECT APPLICATION OF LAW WILL SATISFY REQUIREMENT PURSUANCE OF NOTICES ISSUED UNDER SECTIONS 142(1) AND 143(2), ASSESSEE PRODUCED RELEVANT MATERIAL AND OFFERED EXPLANATION CONDUCTED UNDER SECTION 132 A DEFINITE CONCLUSION AND MADE CERTAIN ADDITIONS CONCLUSION REACHED BY ITO ON GROUND THAT ON MATERIAL ALREADY BROUGHT ON RECORD, BETTER ASSESSMENT COUL D HAVE BEEN FRAMED THAN THAT FRAMED BY ITO AND INVOKED SECTION 263 WHETHER SINCE MATERIAL WAS THERE ON RECORD AND SAID MATERIAL WAS CONSIDERED BY ITO AND A PARTICULAR VIEW WAS TAKEN, MERE FACT THAT DIFFERENT VIEW COULD BE TAKEN, SHOULD NOT HAVE BEEN BASI S FOR AN ACTION UNDER SECTION 263 ARRIVING AT A CONCLUSION THAT ORDER PASSED BY ITO WAS ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE - HELD, YES CIT VS. KRISHNA CAPBOX SECTION 263 OF THE INCOME (ERRONEOUS ORDER) - ASSESSMENT YEAR 2008 SCRUTINY AND STATUTORY NO REPLIED BY ASSESSEE AND AFTER INQUIRY, BEING SATISFIED IN RESPECT TO QUERIES REPLIED BY ASSESSEE, ASSESSING OFFICER ACCEPTED DECLARED INCOME AND PASSED ASSESSMENT ORDER HO WEVER, ISSUED A NOTICE UNDER SECTION 263 ON GROUND THAT ASSESSING OFFICER HAD NOT MADE INQUIRY ON CERTAIN ASPECTS AND ACCEPTED VERSION OF ASSESSEE WITHOUT MAKING ANY INQUIRY OR VERIFICATION, WHICH WAS SUBSTANTIALLY PREJUDICIAL TO REVENUE ASSESSMENT - TRIBUNAL HELD THAT ONCE INQUIRY WAS MADE, A MERE NON 11 NILKANTH DEALCOM PVT. LTD DISCUSSED WITH ASSESSEE BUT HAD PASSED A BRIEF ASSESSMENT ORDER WITHOUT RECORDING THEREIN FACTS AND DISCUSSION, THAT FACT DID NOT EMPOWER COMMISSIONER TO INVOKE JURISDICTION UNDER CIT VS. VIKAS POLYMERS (2012) 341 ITR 537 (DEL.) OF THE INCOME -TAX ACT, 1961 - REVISION - OF ORDERS PERJUDICIAL TO INTERESTS OF REVENUE ASSESSMENT YEAR 1982 -83 - WHETHER FOR EXERCISING POWER UNDER SECTION 263, IT IS A PREREQUISITE THAT COMMISSIONER MUST GIVE REASONS TO JUSTIFY EXERCISE OF SUO MOTU REVISIONAL POWERS BY HIM TO REOPEN A CONCLUDED ASSESSMENT AND EXERCISE OF POWER BEING QUASI NATURE, REASONS MUST BE SUCH AS TO SHOW THAT ENHANCEMENT OR MODIFICATION OF ASSESSMENT OR CANCELLATION OF ASSESSMENT OR DIRECTIONS ISSUED FOR A FRESH ASSESSMENT WERE CALLED FOR, AND MUST IRRESISTIBLY LEAD TO CONCLUSION THAT ORDER OF ASSESSING OFFICER WAS NOT ONLY ERRONEOUS BUT AS ALSO PREJUDICIAL TO INTEREST OF REVENUE - HELD, YES - WHETHER BEFORE EXERCISING REVISIONAL POWERS, ASSESSEE MUST BE CALLED, HIS EXPLANATION SOUGHT FOR AND EXAMINED BY COMMISSIONER, AND THEREAFTER, IF COMMISSIONER STILL FEELS THAT ORDER IS ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE, COMMISSIONER MAY PASS REVISIONAL ORDERS - HELD, YES - WHETHER IF A QUERY WAS RAISED DURING COURSE OF SCRUTINY BY ASSESSING OFFICER, WHICH WAS ANSWERED TO SATISFACTION OF ASSESSING OFFICER, BUT NEITHER QUERY NOR ANSWER WA S REFLECTED IN ASSESSMENT ORDER, THAT WOULD NOT, BY ITSELF, LEAD TO CONCLUSION THAT ORDER OF ASSESSING OFFICER CALLED FOR INTERFERENCE AND REVISION CIT VS. ARVIND JEWELLERS (2003) 259 ITR 502 (GUJ.) OF THE INCOME -TAX ACT, 1961 - REVISION - OF ORDERS PREJUDICIAL TO INTERESTS OF REVENUE ASSESSMENT YEAR 1981 -82 - WHETHER PROVISIONS OF SECTION 263 CANNOT BE EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY ASSESSING OFFICER AND IT IS ONLY WHEN AN ORDER IS ERRONEOUS THAT SECTION WILL BE ATTRACTED AND INCORRECT ASSUMPTION OF FACTS OR AN INCORRECT APPLICATION OF LAW WILL SATISFY REQUIREMENT OF ORDER BEING ERRONEOUS PURSUANCE OF NOTICES ISSUED UNDER SECTIONS 142(1) AND 143(2), ASSESSEE PRODUCED RELEVANT MATERIAL AND OFFERED EXPLANATION - ITO HAD RAISED ALL POSSIBLE ENQUIRIES IN VIEW OF A SEARCH CONDUCTED UNDER SECTION 132 - A FTER CONSIDERING THOSE MATERIALS AND EXPLANATION, ITO CAME TO A DEFINITE CONCLUSION AND MADE CERTAIN ADDITIONS - HOWEVER, COMMISSIONER DID NOT AGREE WITH CONCLUSION REACHED BY ITO ON GROUND THAT ON MATERIAL ALREADY BROUGHT ON RECORD, BETTER D HAVE BEEN FRAMED THAN THAT FRAMED BY ITO AND INVOKED SECTION 263 WHETHER SINCE MATERIAL WAS THERE ON RECORD AND SAID MATERIAL WAS CONSIDERED BY ITO AND A PARTICULAR VIEW WAS TAKEN, MERE FACT THAT DIFFERENT VIEW COULD BE TAKEN, SHOULD NOT HAVE BEEN S FOR AN ACTION UNDER SECTION 263 - HELD, YES - WHETHER COMMISSIONER WAS UNJUSTIFIED IN ARRIVING AT A CONCLUSION THAT ORDER PASSED BY ITO WAS ERRONEOUS AND PREJUDICIAL TO INTEREST OF CIT VS. KRISHNA CAPBOX (P.) LTD. (2015) 372 ITR 310 (ALL.) SECTION 263 OF THE INCOME -TAX ACT, 1961 - REVISION - OF ORDERS PREJUDICIAL TO INTEREST OF REVENUE ASSESSMENT YEAR 2008 -09 - ASSESSEE FILED ITS RETURN SCRUTINY AND STATUTORY NO TICE WAS ISSUED - ASSESSING OFFICER MADE CERTAIN QUERIES, WHICH WERE REPLIED BY ASSESSEE AND AFTER INQUIRY, BEING SATISFIED IN RESPECT TO QUERIES REPLIED BY ASSESSEE, ASSESSING OFFICER ACCEPTED DECLARED INCOME AND PASSED ASSESSMENT ORDER WEVER, ISSUED A NOTICE UNDER SECTION 263 ON GROUND THAT ASSESSING OFFICER HAD NOT MADE INQUIRY ON CERTAIN ASPECTS AND ACCEPTED VERSION OF ASSESSEE WITHOUT MAKING ANY INQUIRY OR VERIFICATION, WHICH WAS SUBSTANTIALLY PREJUDICIAL TO REVENUE - ACCORDINGLY, HE TRIBUNAL HELD THAT ONCE INQUIRY WAS MADE, A MERE NON - DISCUSSION OR NON ITA NO. 1853/KOL/2018 ASSESSMENT YEAR: 2012-13 NILKANTH DEALCOM PVT. LTD . DISCUSSED WITH ASSESSEE BUT HAD PASSED A BRIEF ASSESSMENT ORDER WITHOUT RECORDING THEREIN FACTS AND DISCUSSION, THAT FACT DID NOT EMPOWER COMMISSIONER TO INVOKE JURISDICTION UNDER OF ORDERS PERJUDICIAL TO INTERESTS OF REVENUE FOR EXERCISING POWER UNDER SECTION 263, IT IS A PREREQUISITE THAT COMMISSIONER MUST GIVE REASONS TO JUSTIFY EXERCISE OF SUO MOTU REVISIONAL POWERS BY HIM TO REOPEN A CONCLUDED ASSESSMENT AND EXERCISE OF POWER BEING QUASI -JUDICIAL IN SUCH AS TO SHOW THAT ENHANCEMENT OR MODIFICATION OF ASSESSMENT OR CANCELLATION OF ASSESSMENT OR DIRECTIONS ISSUED FOR A FRESH ASSESSMENT WERE CALLED FOR, AND MUST IRRESISTIBLY LEAD TO CONCLUSION THAT ORDER OF ASSESSING OFFICER WAS NOT ONLY ERRONEOUS BUT WHETHER BEFORE EXERCISING REVISIONAL POWERS, ASSESSEE MUST BE CALLED, HIS EXPLANATION SOUGHT FOR AND EXAMINED BY COMMISSIONER, PREJUDICIAL TO INTEREST OF WHETHER IF A QUERY WAS RAISED DURING COURSE OF SCRUTINY BY ASSESSING OFFICER, WHICH WAS ANSWERED TO SATISFACTION OF ASSESSING S REFLECTED IN ASSESSMENT ORDER, THAT WOULD NOT, BY ITSELF, LEAD TO CONCLUSION THAT ORDER OF ASSESSING OFFICER CALLED FOR INTERFERENCE AND REVISION - OF ORDERS PREJUDICIAL TO INTERESTS OF REVENUE WHETHER PROVISIONS OF SECTION 263 CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY ASSESSING OFFICER AND IT IS ONLY WHEN AN ORDER IS ERRONEOUS THAT SECTION WILL BE ATTRACTED AND INCORRECT ASSUMPTION OF FACTS OR AN OF ORDER BEING ERRONEOUS - HELD, YES - IN PURSUANCE OF NOTICES ISSUED UNDER SECTIONS 142(1) AND 143(2), ASSESSEE PRODUCED RELEVANT ITO HAD RAISED ALL POSSIBLE ENQUIRIES IN VIEW OF A SEARCH FTER CONSIDERING THOSE MATERIALS AND EXPLANATION, ITO CAME TO HOWEVER, COMMISSIONER DID NOT AGREE WITH CONCLUSION REACHED BY ITO ON GROUND THAT ON MATERIAL ALREADY BROUGHT ON RECORD, BETTER D HAVE BEEN FRAMED THAN THAT FRAMED BY ITO AND INVOKED SECTION 263 - WHETHER SINCE MATERIAL WAS THERE ON RECORD AND SAID MATERIAL WAS CONSIDERED BY ITO AND A PARTICULAR VIEW WAS TAKEN, MERE FACT THAT DIFFERENT VIEW COULD BE TAKEN, SHOULD NOT HAVE BEEN WHETHER COMMISSIONER WAS UNJUSTIFIED IN ARRIVING AT A CONCLUSION THAT ORDER PASSED BY ITO WAS ERRONEOUS AND PREJUDICIAL TO INTEREST OF OF ORDERS PREJUDICIAL TO INTEREST OF REVENUE ASSESSEE FILED ITS RETURN - CASE WAS SELECTED FOR ASSESSING OFFICER MADE CERTAIN QUERIES, WHICH WERE REPLIED BY ASSESSEE AND AFTER INQUIRY, BEING SATISFIED IN RESPECT TO QUERIES REPLIED BY ASSESSEE, ASSESSING OFFICER ACCEPTED DECLARED INCOME AND PASSED ASSESSMENT ORDER - COMMISSIONER, WEVER, ISSUED A NOTICE UNDER SECTION 263 ON GROUND THAT ASSESSING OFFICER HAD NOT MADE INQUIRY ON CERTAIN ASPECTS AND ACCEPTED VERSION OF ASSESSEE WITHOUT MAKING ANY INQUIRY OR ACCORDINGLY, HE PARTLY SET ASIDE DISCUSSION OR NON -MENTION THEREOF IN ASSESSMENT ORDER COULD NOT LEAD TO ASSUMPTION THAT ASSESSING OFFICER DID NOT APPLY HIS MIND OR THAT HE HAD NOT MADE INQUIRY ON SUBJECT A COMMISSIONER BY ISSUING NOTICE UNDER SECTION 263 ANYTHING TO SHOW THAT FINDINGS RECORDED BY TRIBUNAL WERE PERVERSE OR CONTRARY TO RECORD, INVOKING OF REVISION PROCEEDINGS CIT VS. FINE JEWELLERY (INDIA) LTD. [2015] 372 ITR 303 (BOM.) SECTION 37(1), READ WITH SECTION 263, OF THE INCOME ALLOWABILITY OF (BRAND BUILDING EXPENSES) BUSINESS OF MANUFACTURING AND EXPORT OF JEWELLERY, INCURRED CERTAIN EXPENSES FOR CREATION OF BRAND AND CLAIMED DEDUCTION OF SAME AS REVENUE EXPENDITURE MAJOR PART OF AMOUNT CLAIMED TAKING A VIEW THAT EXPENDITURE INCURRED WAS CAPITAL IN NATURE OFFICER HAD MADE SPECIFIC ENQUIRY ON THIS ISSUE DURING ASSESSMENT PROCEEDINGS AND NATURE OF EXPENDITURE WAS EXPLAINED BY ASSESSEE TO POSSIBLE VIEW, ORDER OF ASSESSING OFFICER COULD NOT BE SET ASIDE IN EXERCISE OF POWERS UNDER SECTION 263 - HELD, YES 12. RESPECTFULLY FOLLOWING THE PROPOSITION OF LAW LAID DOWN LAW TO THE FACTS OF THE CASE, WE HOLD THAT THE REVISION IN QUESTION IS BAD IN LAW. HENCE, WE QUASH THE ORDER PASSED U/S 263 OF THE ACT, DT. 13. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE SD/- [ABY T. VARKEY] JUDICIAL MEMBER DATED : 22.10.2020 {SC SPS} 12 NILKANTH DEALCOM PVT. LTD THEREOF IN ASSESSMENT ORDER COULD NOT LEAD TO ASSUMPTION THAT ASSESSING OFFICER DID NOT APPLY HIS MIND OR THAT HE HAD NOT MADE INQUIRY ON SUBJECT A ND THIS WOULD NOT JUSTIFY INTERFERENCE BY COMMISSIONER BY ISSUING NOTICE UNDER SECTION 263 - WHETHER SINCE DEPARTMENT COULD NOT PLACE ANYTHING TO SHOW THAT FINDINGS RECORDED BY TRIBUNAL WERE PERVERSE OR CONTRARY TO RECORD, INVOKING OF REVISION PROCEEDINGS WAS UNJUSTIFIED - HELD, YES CIT VS. FINE JEWELLERY (INDIA) LTD. [2015] 372 ITR 303 (BOM.) SECTION 37(1), READ WITH SECTION 263, OF THE INCOME -TAX ACT, 1961 - BUSINESS EXPENDITURE ALLOWABILITY OF (BRAND BUILDING EXPENSES) - ASSESSMENT YEAR 2006- 07 BUSINESS OF MANUFACTURING AND EXPORT OF JEWELLERY, INCURRED CERTAIN EXPENSES FOR CREATION OF BRAND AND CLAIMED DEDUCTION OF SAME AS REVENUE EXPENDITURE - ASSESSING OFFICER ALLOWED MAJOR PART OF AMOUNT CLAIMED - COMMISSIONER SET ASIDE ASSE SSMENT ORDER UNDER SECTION 263 TAKING A VIEW THAT EXPENDITURE INCURRED WAS CAPITAL IN NATURE - WHETHER SINCE (I) ASSESSING OFFICER HAD MADE SPECIFIC ENQUIRY ON THIS ISSUE DURING ASSESSMENT PROCEEDINGS AND NATURE OF EXPENDITURE WAS EXPLAINED BY ASSESSEE TO HIM AND (II) VIEW TAKEN BY ASSESSING OFFICER WAS A POSSIBLE VIEW, ORDER OF ASSESSING OFFICER COULD NOT BE SET ASIDE IN EXERCISE OF POWERS UNDER RESPECTFULLY FOLLOWING THE PROPOSITION OF LAW LAID DOWN IN THE ABOVE REFERRED CASE TO THE FACTS OF THE CASE, WE HOLD THAT THE REVISION IN QUESTION IS BAD IN LAW. HENCE, WE QUASH THE ORDER PASSED U/S 263 OF THE ACT, DT. 15/03/2018. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 22 ND DAY OF OCTOBER, 2020. [ J. SUDHAKAR REDDY AC COUNTANT MEMBER ITA NO. 1853/KOL/2018 ASSESSMENT YEAR: 2012-13 NILKANTH DEALCOM PVT. LTD . THEREOF IN ASSESSMENT ORDER COULD NOT LEAD TO ASSUMPTION THAT ASSESSING OFFICER DID NOT APPLY ND THIS WOULD NOT JUSTIFY INTERFERENCE BY WHETHER SINCE DEPARTMENT COULD NOT PLACE ANYTHING TO SHOW THAT FINDINGS RECORDED BY TRIBUNAL WERE PERVERSE OR CONTRARY TO RECORD, BUSINESS EXPENDITURE - 07 - ASSESSEE, ENGAGED IN BUSINESS OF MANUFACTURING AND EXPORT OF JEWELLERY, INCURRED CERTAIN EXPENSES FOR CREATION OF ASSESSING OFFICER ALLOWED SSMENT ORDER UNDER SECTION 263 WHETHER SINCE (I) ASSESSING OFFICER HAD MADE SPECIFIC ENQUIRY ON THIS ISSUE DURING ASSESSMENT PROCEEDINGS AND NATURE OF HIM AND (II) VIEW TAKEN BY ASSESSING OFFICER WAS A POSSIBLE VIEW, ORDER OF ASSESSING OFFICER COULD NOT BE SET ASIDE IN EXERCISE OF POWERS UNDER IN THE ABOVE REFERRED CASE - TO THE FACTS OF THE CASE, WE HOLD THAT THE REVISION IN QUESTION IS BAD IN LAW. HENCE, WE SD/- J. SUDHAKAR REDDY ] COUNTANT MEMBER COPY OF THE ORDER FORWARDED TO: 1. NILKANTH DEALCOM PVT. LTD C/O NILKANTH DEALCOM PVT. LTD. 38, CHAKRABERIA LANE RUSHABH APARTMENT KOLKATA 700 020 2. PR. COMMISSIONER OF INCOME TAX, CENTRAL 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 13 NILKANTH DEALCOM PVT. LTD C/O NILKANTH DEALCOM PVT. LTD. PR. COMMISSIONER OF INCOME TAX, CENTRAL -1, KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES ITA NO. 1853/KOL/2018 ASSESSMENT YEAR: 2012-13 NILKANTH DEALCOM PVT. LTD . TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES