SHRI TARANJIV SINGH SURI, Jaipur V. ITO, Kota

ITA 186/JPR/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99607 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 29-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MEENA CIT DHK
• Assessee Lawyers: S L PODDAR
• Keywords: Prejudicial to interest
• Section: 143(3)

Judgement Text

ITA NO. 186/JP/12 SHRI TARANJIV SINGH SURI VS. ITO WARD 1(1), KOTA 1 VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R. MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO. 186//JP/12 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 SHRI TARANJIV SINGH SURI PROP. SURI DITSRIBUTORS, SURI NIWS, GUMANPURA, KOTA CUKE VS. ITO, WARD I(1) KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AGTPJ 1660 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY : SHRI M.S. MEENA (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 27.10.2015 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 16/12/2015. VKNS'K@ ORDER PER SHRI LALIET KUMAR, JM PRESENT APPEAL IS BEING FILE BY THE ASSESSEE AGAINS T THE ORDER PASSED BY THE CIT, KOTA U/ 263 OF THE INCOME TAX ACT WHERE BY THE CIT HAS SET- ASIDE THE ASSESSMENT ORDER DATED 21.05.2009 AND DIR ECTED THE AO TO CONDUCT A FRESH ASSESSMENT IN THE LIGHT OF THE DI RECTIONS ISSUED IN THE ITA NO. 186/JP/12 SHRI TARANJIV SINGH SURI VS. ITO WARD 1(1), KOTA 2 SAID ORDER. THE APPELLANT AGGRIEVED BY THE ORDER PASSED BY THE CIT, KOTA HAS PREFERRED THE PRESENT APPEAL ON THE FOLLOW ING GROUNDS: 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE LD. CIT, KOTA IS ILLEGAL AND VOID ABILITIES. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT HAS ERRED AND PASSING ORDER U/S 263 OF THE I.T. ACT, ON THE G ROUNDS WHICH ARE NOT PREJUDICIAL TO THE INTEREST OF THE REVENUE OR E RRONEOUS. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT, KOTA HAS WRONGLY SET-ASIDE THE ORDER OF ASSESSING OFFICER U/S 143(3) OF THE IT ACT, 1961 WHICH WAS PASSED AFTER MAKING EL ABORATE ENQUIRIES AND DETAILED INVESTIGATION DURING THE A SSESSMENT PROCEEDINGS REGARDING ALL ISSUES ON THE BASIS OF WH ICH THE LD. CIT HAS PASSED THE ORDER U/S 263 OF THE IT ACT, 1961. BRIEF FACTS: 1. THE ASSESSEE IS AN INDIVIDUAL DERIVES INCOME FROM C&F AGENTS FOR MEDICAL DISTRIBUTION. THE ASSESSEE HAS FILED THE RETURN OF INCOME DECLARING AN INCOME OF RS. 4,80,880/- FILED ON 19.07.2007. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY, THEREFORE NOTICE U/S 143(2) WAS ISSUED TO THE ASSESSEE ON 05.09.2008 . THE QUERY LETTERS ALONG WITH NOTICE U/S 143(2) WAS ISSUED TO THE ASSESSEE. IN COMPLIANCE TO THE NOTICE THE ASSESSEE APPEARED FROM TIME TO TIME ITA NO. 186/JP/12 SHRI TARANJIV SINGH SURI VS. ITO WARD 1(1), KOTA 3 AND ALSO FILED WRITTEN SUBMISSIONS. THE BOOKS OF A CCOUNTS CONSISTING CASH BOOK ,LEDGER, STOCK REGISTER, RELEV ANT RECORDS AND VOUCHERS WERE ALSO PRODUCED FOR EXAMINATION. THE AO , AFTER CONSIDERING THE MATERIAL AVAILABLE ON RECRD HAS PAS SED THE ASSESSMENT ORDER ON 21.05.2009 THEREBY DETERMINING THE INCOME OF THE ASSESSEE TO THE TUNE OF RS. 5,37,278/-. 2. THE COMMISSIONER OF INCOME TAX, HAD ISSUED A NOTICE U/S 263 ON 25.1.2012 ON THE FOLLOWING GROUND. (I) CONTRACT PAYMENT RECEIVED AT RS. 2,03,202/- S PER T HE TDS CERTIFICATES DO NOT APPEAR TO HAVE BEEN SHOWN IN T HE TRADING ACCOUNT. (II) IN THE ABSENCE OF ANY ENQUIRY REGARDING IDENTIFICAT ION OF THE RECIPIENT OF THE RENT AND NON DEDUCTION O TDS, AMOU NT O RS. 3,73,800/- IS ALLOWABLE U/S 40(A)(IA). (III) YOU HAVE DEPOSITED SECURITIES OF RS. 15,00,000/-, 1 0,00,000/- RS. 17,00,000/- IN THE NAMES OF FOUR DIFFERENT PRO PRIETARY CONCERNS; BUT APPARENTLY, NO VERIFICATION F THE SA ID DEPOSITS HAS BEEN MADE BY THE O AT THE TIME OF FRAMING ASSES SMENT U/S 143(3). 3. THE LD. AR FOR THE ASSESSEE HAD APPEARED BEFORE THE CIT AND FILED WRITTEN SUBMISSIONS IN THE SAID WRITTEN SUBMISSION IT WAS MENTIONED AS UNDER: ITA NO. 186/JP/12 SHRI TARANJIV SINGH SURI VS. ITO WARD 1(1), KOTA 4 (I) THAT THE ASSESSMENT HAS BEEN COMPLETED U/S143(3) F OR .Y. 2007-08 ON 21.05.2009 AFTER MAKING ALL ENQUIRIES AN D DETAILS HAS BEEN FURNISHED BEFORE THE AO AS REQUIRED DURIN G THE COURSE OF HEARING FROM TIME TO TIME. (II) THAT DURING THE OF HEARING ALL DETAILS REGARDING C ONTRACT PAYMENT/ EXPENSES RECEIVED AMOUNTING TO RS. 2,03,2 02/- SHOWN IN THE TDS CERTIFICATES AND IT REPRESENT THE AMOUNT OF REIMBURSEMENT OF VARIOUS EXPENSES LIKE CONVEYANCE , RENT, FORWARDING AND BANK CHARGES ETC.) BY THE WIN MEDICA RE PVT. LTD. AS THE ASSESSEE HAS ONLY CLAIMED NET AMOUNT OF EXPENSES (I.E. TOTAL EXPENSES MINUS (-) REIMBURSEME NT RECEIPTS) AND THE SAME CAN BE VERIFIED FROM THE CO PIES OF ACCOUNT OF VARIOUS EXPENSES DETAILS FILED DURING TH E COURSE OF HEARING AND LYING ON THE RECORD. (III) AS REGARDS RENT MOUNTING TO RS.3,73,800/- PAID DURI NG THE YEAR AND DETAIL WERE ALREADY FURNISHED DURING THE COURSE OF HEARING AND TDS WAS NOT DEDUCTED DUE TO THAT THE RE NT HAS BEEN PAID TO DIFFERENT PERSONS AND NOT COVERED UNDE R TDS. ALTHOUGH DETAILS OF RENT PAID ENCLOSED SEPARATELY. (IV) AS REGARDS SECURITIES DEPOSITS MENTIONED ARE VERIF IED WITH THE TDS CERTIFICATES ISSUED BY THE COMPANIES ON I NTEREST THEREON AND AGREEMENT FURNISHED DURING THE COURSE OF HEARING. ASSESSEE HAS DEPOSITED SECURITY DEPOSITS W ITH THE COMPANIES FROM TIME TO TIME, AS PER ITS REQUIREMENT / TERMS AND CONDITIONS WITH THE COMPANIES AND COMPANIES HAS PAID INTEREST AT THE RATE MENTIONED IN THE AGREEMENT. DE TAILS OF DEPOSITS ARE FURNISHED WITH THE AO DURING THE COURS E OF HEARING. ITA NO. 186/JP/12 SHRI TARANJIV SINGH SURI VS. ITO WARD 1(1), KOTA 5 4. THE CIT, WAS NOT CONVINCED WITH THE SUBMISSIONS MADE ON BEHALF OF THE AR AND HAS ACCORDINGLY DIRECTED THE AO TO C ONDUCT A FRESH ASSESSMENT IN THE LIGHT OF THE DIRECTIONS ISSUED IN THE SAID ORDER. 5.FEELING AGGRIEVED BY THE ORDER PASSED BY THE COMM ISSIONER, THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE US . 6. THE LEARNED AR FOR THE ASSESSEE FILED WRITTEN SU BMISSIONS AND MADE A REQUEST THAT THE WRITTEN SUBMISSION MAY KIND LY BE CONSIDERED FOR PASSING THE ORDER OF MERIT , HE FURTHER RELIED UPON AS THE ORDER OF THE AO. ON THE OTHER HAND THE LD. DR FOR THE REVENU E RELIED UPON THE ORDER OF THE CIT AND HAS SUBMITTED THAT THE ORDER H AS BEEN RIGHTLY RE CALLED BY THE AUTHORITIES BELOW. 7. WE HAVE GONE THROUGH THE RECORDS, WRITTEN SUBMIS SIONS AND THE PAPER BOOK FILED BY THE ASSESSEE AS WELL AS THE ORD ER PASSED BY THE LD. CIT UNDER SECTION 263 OF THE IT ACT. IN THE FIRST I NSTANT THE CIT HAS RAISED THE ISSUE OF THE AMOUNT OF RS. 2,03,202/- WH ICH AS PER THE CIT DO NOT APPEAR TO HAVE BEEN SHOWN IN THE TRADING ACC OUNT. IN THIS REGARD, AS PER THE RECORD, A SPECIFIC QUERY IN RESP ECT OF ALL DETAILS OF ALL EXPENSES DEBITED IN P&L ACCOUNT WERE RAISED BY THE AO, THE SAME ITA NO. 186/JP/12 SHRI TARANJIV SINGH SURI VS. ITO WARD 1(1), KOTA 6 WERE DULY REPLIED BY THE ASSESSEE. SINCE THE RECEI PT OF THE AMOUNTS WAS NOT TRADING RECEIPT AND WAS MERELY REIMBURSEME NT OF THE VARIOUS EXPENSES, REIMBURSED BY M/S WIN MEDICARE PV T. LTD, THEREFORE, THE SAME WAS NOT REQUIRED TO BE FORMING PART OF THE TRADING ACCOUNT. IN OUR VIEW SPECIFIC QUERY HAS BEEN RAISE D AND WHICH WAS DULY REPLIED BY THE ASSESSEE. THEREFORE IN OUR OPI NION THE ORDER PASSED BY THE ASSESSEE OFFICER CANNOT BE SAID TO BE ERRONEOUS AND PREJUDICIAL TO THE REVENUE . IN ANY CASE NO LOSS T O THE REVENUE HAS BEEN CAUSED ON ACCOUNT OF THE ABOVE SAID ISSUE. 8. THE SECOND ISSUE RAISED BY THE CIT WAS WITH RESP ECT TO IDENTIFICATION OF THE RECIPIENT OF THE RENT AND NON -DEDUCTION OF THE TDS MOUNT OF RS. 3,73,800 ON THE PAYMENT OF RENT. IN THIS REGARD ALSO WE FOUND THE SPECIFIC QUERY FOR THE EXPENSES D EBITED IN P&L ACCOUNT WERE RAISED BY THE A.O. IN THE AUDITED REP ORT U/S 44AB SUBMITTED BY THE ASSESSEE, DURING THE COURSE OF ASS ESSMENT PROCEEDING FORMING PART OF THE PAPER BOOK FROM PAGE 8 TO 80, CLEARLY SHOWS THAT THERE IS NO SUCH PAYMENT FOR WHICH TDS W AS REQUIRED TO BE DEDUCTED. THOUGH THE DETAILS WAS PART OF THE AUD ITED ACCOUNT, A ITA NO. 186/JP/12 SHRI TARANJIV SINGH SURI VS. ITO WARD 1(1), KOTA 7 FRESH CHART OF THE RENT PAID WAS SUBMITTED TO THE CIT DURING THE PROCEEDINGS. WE ARE OF THE VIEW THAT ONCE THE SPEC IFIC QUERY HAS BEEN RAISED AND THE REPLY HAS BEEN SUBMITTED BY THE ASSESSEE FURTHER NO DISCREPANCY WAS RAISED BY THE AUDITOR. IN OUR V IEW NO ACTION WAS WARRANTED. MOREOVER ON THIS ACCOUNT THE ORDER OF TH E AO WILL NOT BE ERRONEOUS AND WILL BE PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE CIT HAS WRONGLY MENTIONED THAT THE ISSUE WAS NOT E XAMINED BY THE AO AND THESE DETAILS WERE NOT GIVEN TO THE AO. TH E ASSESSEE UNDOUBTEDLY HAS GIVEN DETAILS TO THE CIT IN THE REV ISION PROCEEDINGS IN OUR VIEW ONCE SPECIFIC INFORMATION IS AVAILABLE WITH THE CIT AND THE SAME INFORMATION WAS ALSO FORMING PART OF THE RECORD OF THE AO, IN OUR VIEW THE ORDER OF THE AO CANNOT BE TERMED A S ERRONEOUS & PREJUDICIAL TO INTEREST OF THE REVENUE. 9. THE LAST QUESTION RAISED BY THE CIT WAS WITH RES PECT TO DEPOSITS OF SECURITIES MADE BY THE ASSESSEE WITH 4 DIFFERENT P ROPRIETARY CONCERNS. 10. THE AO HAS RAISED SPECIFIC QUERY WITH RESPECT T O THIS ISSUE AND THE ASSESSEE HAVE ALSO GIVEN REPLIES TO THE SAI D QUESTION. THE ASSESSEE IN HIS REPLY IN PARA 8, AS MENTIONED UNDE R: ITA NO. 186/JP/12 SHRI TARANJIV SINGH SURI VS. ITO WARD 1(1), KOTA 8 'PHOTOCOPY OF INTEREST ACCOUNT ENCLOSED FOR YOUR KI ND PERUSAL.RATE OF INTEREST RECEIVED FROM THE COMPANI ES ARE AS FOLLOWING VLCC PERSONAL SE LTD. @6.6% PA., WINMEDI CARE PVT. LTD. (COSMETIC DIV.) @ 12.5% PA, MODI REVLON PVT. LTD. 12.5%PA KAMAKYA COSMETIC PHARMA LTD. @12.50%,PA, & CEN TURION BANK OF PUNJAB @8% P ON FDR KEPT IN LIEU OF BANK GUARAN TEE FOR PARAMOUNT COSMETIC (I) LTD.'' 11. FURTHER THE ASSESSEE VIDE HIS LETTER DATED 06. 05.2009, SUBMITTED THE PHOTOCOPY OF PROFIT AND LOSS ACCOUNT, BALANCE SHEET ALONG WITH AUDIT REPORTS AND HAS ALSO SUBMITTED CON FIRMATION AS REQUIRED. IN THE SAID BALANCE SHEET, THE DETAILS OF SECURITIES, ARE DULY GIVEN AT PAGE 21 , 39, 57 AND 76. OF THE PAPER BOOK . 12.IN OUR VIEW THE ASSESSEE HAS PROVIDED PHOTO COPI ES OF AGREEMENT WITH 4 CONCERNS , DETAILS OF THE SECURITIES AND HAD ALS O PROVIDED THE INTEREST RECEIVED FROM THE SAID FIRM/COMPANIES, SINCE NO DIS CREPANCY WAS NOTICED BY THE AO, THEREFORE, THERE IS NO REFERENCE WHATSOEVER IN THE ASSESSMENT ORDER. THE HONBLE MUMBAI HIGH COURT IN THE MATTER GKNSINTER METALS LTD. (FORMERLY MAHINDRA SINTERED PRODUCTS LTD.) V.S MS. RAMAPRIYARAGHAVAN, ASSISTANT COMMISSIONER OF INCOME -TAX AND OTHERS ITA NO. 186/JP/12 SHRI TARANJIV SINGH SURI VS. ITO WARD 1(1), KOTA 9 '14............ACCORDING TO THE REVENUE, IT COULD ONLY BE WHEN THE ASSESSMENT ORDER CONTAINS DISCUSSION WITH REGARD TO PARTICULAR CLAIM CAN IT BE SAID THAT THE ASSESSI NG OFFICER HAD FORMED AN OPINION WITH REGARD TO THE CLAIM MADE BY THE ASSESSEE. THIS COURT IN IDEA CELLULAR LTD. V. DEPUTY COMMISSIONER OF INCOME TAX MANU/MH/0169/2008 : 301 ITR 407 HAS EXPRESSLY 13 I T A N O . 5 9 7 2 / M/ 2 0 1 2 AND C O 2 5 4 / M/ 2 0 1 3 NEGATIVED ON IDENTICAL C ONTENTION ON BEHALF OF THE REVENUE. THE COURT HELD THAT ONCE ALL THE MATERIAL WAS PLACED BEFORE THE ASSESSING OFFICER AN D HE CHOSE NOT TO REFER TO THE DEDUCTION/CLAIM WHICH WAS BEING ALLOWED IN THE ASSESSMENT ORDER, IT COULD NOT BE CONTENDED THAT THE ASSESSING OFFICER HAD NOT APPLIE D HIS MIND WHILE PASSING THE ASSESSMENT ORDER. MOREOVER IN THIS CASE, IT IS EVIDENT FROM THE LETTER DATED 6TH AUGUST, 2007 ADDRESSED BY THE ASSESSING OFFICER TO THE PETITIONE R CONTAINING THE REASONS RECORDED FOR ISSUING THE IMP UGNED NOTICE ALSO RECORD THE FACT THAT DURING THE REGULAR ASSESSMENT PROCEEDINGS, THE PETITIONER HAS BEEN ASKED TO FURNI SH DETAILS IN SUPPORT OF THE CLAIM FOR EXEMPTION UNDER SECTION 80LATLS OF THE ACT. THE LETTER FURTHER RECORDS THAT THE DE TAILS SOUGHT FOR WERE FURNISHED AND IT IS NOW OBSERVED TH AT THERE HAS BEEN A DIS-PROPORTIONATE DISTRIBUTION OF EXPENS ES BETWEEN VARIOUS UNITS BELONGING TO THE PETITIONER F OR CLAIMING DEDUCTION UNDER SECTION 80LATLS OF THE ACT. THIS IS A FURTHER INDICATION OF THE FACT THAT THE ASSESSING OFFICER HAD DURING THE REGULAR ASSESSMENT PROCEEDINGS FOR ASSES SMENT YEAR 2002- 03 SOUGHT INFORMATION IN RESPECT OF THE ALLOCATION OF EXPENSES AND THE EXPLANATION OFFERED BY THE PETITIONER WAS FOUND TO BE SATISFACTORY. THIS IS EV IDENT FROM QUERY DATED 27TH DECEMBER, 2004 AND THE PETITIONER' S RESPONSE TO THE SAME ON 25TH JANUARY, 2005 EXPLAINI NG THE MANNER OF DISTRIBUTION OF COMMON EXPENSES FOR DELAY ING THE PROCESS OF CLAIMING DEDUCTION UNDER SECTION 80LALIB OF THE ACT. ALL THIS WOULD INDICATE THAT ASSESSING OFFICER HAD ITA NO. 186/JP/12 SHRI TARANJIV SINGH SURI VS. ITO WARD 1(1), KOTA 10 FORMED AN OPINION WHILE PASSING THE ORDER DATED 9TH MARCH, 2005. THIS COURT IN ARONI COMMERCIALS LTD. V. ASSISTANT COMMISSIONER OF INCOME TAX MANU/MH/1838/20140: 367 ITR 405 HAD OCCASION TO CONSIDER SOMEWHAT SIMIL AR SUBMISSION MADE BY THE REVENUE AND NEGATIVED THE SA ME BY HOLDING THAT WHEN A QUERY HAS BEEN RAISED WITH REGARD TO A PARTICULAR ISSUE DURING THE REGULAR ASSESSMENT PROCEEDINGS, IT MUST FOLLOW THAT THE ASS ESSING OFFICER HAD APPLIED HIS MIND AND TAKEN A VIEW IN THE MATTER AS IS REFLECTED IN THE ASSESSMENT ORDER. BES IDES, THE MANNER IN WHICH AN ASSESSING OFFICER WOULD DRAFT/FR AME HIS ORDER IS NOT WITHIN THE CONTROL OF AN ASSESSEE. MOR EOVER, IF EVERY CONTENTION RAISED BY THE ASSESSEE WHICH EVEN IF ACCEPTED IS TO BE REFLECTED IN THE ASSESSMENT ORDER , THEN AS OBSERVED BY THE GUJARAT HIGH COURT IN CIT V. NIRMA CHEMICALS LTD . MANU/GJ/0136/20080: 305 ITR 607, THE ORDER WOULD RESULT INTO AN EPIC TOME. BESIDES, IT W OULD BE IMPOSSIBLE FOR THE ASSESSING OFFICER TO COMPLETE AL L THE ASSESSMENTS WHICH HAVE TO UNDER GONE SCRUTINY AT IT S HAND..................... '' 13. IN VIEW OF THE ABOVE AO IS NOT REQUIRED TO GI VE DETAILS OF EACH AND EVERY RECEIPT/ DEDUCTIONS IN ASSESSMENT ORDER . AS IN CASE OF ACCEPTED FACT THE ASSESSMENT ORDER BECOME VOLUMINOU S AND AO WILL NOT BE ABLE TO DISCHARGE REGULAR FUNCTIONS 14. THUS IN THE LIGHT OF THE ABOVE WE ARE OF THE C ONSIDERED VIEW THAT THE AO HAD CONDUCTED THE ENQUIRY AS REQUIRED UNDER LAW AND THE ITA NO. 186/JP/12 SHRI TARANJIV SINGH SURI VS. ITO WARD 1(1), KOTA 11 ORDER OF THE AO, WAS NEITHER ERRONEOUS AND NOR PRE JUDICIAL TO THE INTEREST OF REVENUE. UNDOUBTEDLY THE JUDGMENT REL IED UPON BY THE CIT, NAMELY MALABAR INDUSTRIAL CO. LTD V.S CIT (2 000) 243 ITR 83, IS A GOOD LAW. HOWEVER THEREAFTER IN CIT V. MAX INDIA LTD. [2007] 295 ITR 282 (SC), AFTER NOTICING THE JUDGMENT IN MALABAR [2000] 243 ITR 83 (SC), THE SUPREME COURT APPLIED THE LAW DECLARED BY IT, A ND ALSO CLARIFIED THAT (HEADNOTE) : 'THE PHRASE 'PREJUDICIAL TO THE INTERESTS OF THE REVENUE' IN SECTION 263 OF THE INCOME-TAX ACT, 1961, HAS TO B E READ IN CONJUNCTION WITH THE EXPRESSION 'ERRONEOUS' ORDER PASSED BY THE ASSESSING OFFICER. EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE RE VENUE. FOR EXAMPLE, WHEN THE ASSESSING OFFICER ADOPTS ONE OF TWO COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE, OR WHERE TWO VIEWS ARE POSSIBLE AND THE ASSESSING OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISS IONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONE OUS ORDER PREJUDICIAL TO THE REVENUE, UNLESS THE VIEW TAKEN BY THE ASSESSING OFFICER IS UNSUSTAINABLE IN LAW.' ITA NO. 186/JP/12 SHRI TARANJIV SINGH SURI VS. ITO WARD 1(1), KOTA 12 15. IT IS THUS, NOT MERE PREJUDICE TO THE REVENUE, OR A MERE ERRONEOUS VIEW WHICH CAN BE REVISED, UNDER SECTION 263. THERE SHOULD (POST MAX INDIA) BE THE ADDED ELEMENT OF 'UNSUSTAINABILITY' I N THE ORDER OF THE ASSESSING OFFICER, WHICH CLOTHES THE COMMISSIONER W ITH JURISDICTION TO ISSUE NOTICE, AND PROCEED TO MAKE APPROPRIATE ORDER S. IN THE PRESENT CASE THERE IS NEITHER ORDER PASSED BY THE AO IS PREJUDIC E NOR IT IS ERRONEOUS NOR IT IS UNSUSTAINABLE. 16. IN OUR VIEW THE ORDER PASSED BY THE AO IS SUSTA INABLE IN LAW AND THEREFORE, THE APPEAL IS REQUIRED TO BE ALLOWED AN D THE ORDER PASSED BY THE CIT IS DISMISSED. 17. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. 18. ORDER IS PRONOUNCED ON 16/12/2015. SD/- SD/- VH-VKJ-EHUK YFYR DQEKJ (T.R. MEENA ) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 16 DECEMBER, 2015 PILLAI ITA NO. 186/JP/12 SHRI TARANJIV SINGH SURI VS. ITO WARD 1(1), KOTA 13 VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI TARANJIV SINGH SURI, KOTA. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO WARD 1(1), KOTA. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 186/JP/2012) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR