M/s. Pradeep Bandhu, BHILWARA V. CIT, AJMER

ITA 235/JODH/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7967 (ITAT-JODHPUR)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-11-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 24-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHASH CHANDRA
• Assessee Lawyers: SHAILENDRA BARADIA
• Keywords: Business expenditure; Principle of natural justice
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NO. 235/JODH/2012 [ASSESSMENT YEAR 2009-10] M/S. PRADEEP BANDHU VS CIT, AJMER ROAD, CENTRAL REVENUE BHILWARA BUILDING, AJMER. (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SHAILENDRA BARADIA . DEPARTMENT BY : SHRI SUBHASHCHANDRA-CIT(DR) DATE OF HEARING : 22.11.2012 DATE OF PRONOUNCEMENT : 13.12.2012 ORDER PER HARI OM MARATHA, J.M. THIS APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 200 9-10 IS DIRECTED AGAINST THE ORDER OF THE LD. CIT, AJMER DATED 28/03/2012 PASSED U/S 263 OF THE INCOME TAX ACT, 19 61 (THE ACT FOR SHORT). 2 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE-FIRM FILED ITS RETURN OF INCOME (ROI) ON 2 9.09.2009 DECLARING TOTAL INCOME AT RS. NIL. THE BOOKS OF A CCOUNTS OF THE FIRM ARE DULY AUDITED U/S 44AB AND THE REPORT I N FORM NO 3 CA AND 3CB DATED 26/09/2009 WERE FILED ALONGWITH THE ROI. THE ASSESSEE-FIRM DERIVES ITS INCOME FROM SALE OF P ETROL AND DIESEL AND ALSO FROM TRANSPORT BUSINESS. THE A.O HA S COMPLETED HIS ORDER U/S 143(3) ON 7.1.2011. 3. SUBSEQUENTLY, LD. COMMISSIONER CALLED FOR THE RE CORDS OF THIS ASSESSMENT ORDER AND FOUND THAT THIS ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE IN R ESPECT OF THE FOLLOWING ISSUES :- (I) TRANSPORTATION RECEIPTS (II)SCRAP VALUE OF THE CLOSING STOCK OF TYRES AND TUBES. (III) EXPENSES UNDER THE HEAD MARUTI PENALTY EXPE NSES AFTER ISSUING SHOW-CAUSE NOTICE U/S 263 AND AFTER H EARING THE OBJECTION OF THE ASSESSEE, THE LD. CIT HAS FOUND TH E ORDER AS SUCH AND HAS, THUS, SET IT ASIDE, TO THAT EXTENT, W ITH A DIRECTION TO FRAME IT AFRESH ON THESE ISSUES. 3 4. BEING AGGRIEVED, THE ASSESSEE-FIRM HAS PREFERRED THIS APPEAL BY RAISING FOLLOWING GROUNDS:- 1. THAT THE ORDER UNDER SEC 263 OF INCOME TAX ACT 1961 AS PASSED BY THE LEARNED CIT IS PATENTLY INVALID, CON TRARY TO PROVISION OF LAW AND ALSO CONTRARY TO THE FACTS AND THE MATERIAL, EVIDENCE EXISTING ON RECORDS. 2. THAT THE LEARNED CIT HAS ERRED IN HOLDING THAT THE ORIGINAL ASSESSMENT ORDER AS PASSED U/S 143(3) ON 7 JANUARY 2011 WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. 3. THAT THE ORDER UNDER SEC. 263 AS PASSED BY THE LEAR NED CIT IS NOT JUSTIFIED BOTH ON FACTS AND IN LAW. 4. THAT THE ORDER UNDER SEC. 263 AS PASSED BY THE LEAR NED CIT IS BEYOND THE AMBIT OF SCOPE OF SEC. 263. 5. THAT THE LEARNED CIT HAS NOT CONSIDERED THE FACTS O F THE CASE AND ALSO THE ASSESEE'S REPLY WHILE GIVING DIRE CTIONS IN RESPECT OF THE ALLEGED UNDISCLOSED TRANSPORT RECE IPTS, STOCK OF OLD TYRES AND TUBES, INCOME FROM SALE OF OLD TYR ES AND TUBES AND MARUTI PENALTY EXPENSES. THE CONCLUSIONS AS ARR IVED AT BY HIM IN THESE RESPECTS ARE ERRONEOUS AND NOT JUSTIFI ED BOTH ON FACTS AND IN LAW. 4 5. WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFUL LY GONE THROUGH THE RELEVANT RECORD AVAILABLE BEFORE US. IT IS TRITE THAT AN ORDER CAN BE REVISED ONLY AND ONLY IF THE TWIN-C ONDITIONS OF ERROR IN THE ORDER AND PREJUDICE CAUSED TO THE REVENUE DO CO-EXIST. THE SUBJECT OF REVISION UNDER SECTION 263 HAS BEEN VA STLY EXAMINED AND ANALYZED BY VARIOUS COURTS INCLUDING THAT OF HONBL E APEX COURT. THE REVISIONAL POWER CONFERRED ON THE CIT VIDE SECTION 263 IS OF VIDE AMPLITUDE. IT ENABLES THE CIT TO CALL FOR AND EXAM INE THE RECORDS OF ANY PROCEEDING UNDER THE ACT. IT EMPOWERS THE CIT TO MAKE OR CAUSE TO BE MADE SUCH AN ENQUIRY AS HE DEEMS NECESSARY IN ORDER TO FIND OUT IF ANY ORDER PASSED BY ASSESSING OFFICER IS ERRONEO US IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE O NLY LIMITATION ON HIS POWERS IS THAT HE MUST HAVE SOME MATERIAL(S) WHICH WOULD ENABLE HIM TO FORM A PRIMA FACIE OPINION THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. ONCE HE COMES TO THE ABOVE CONCLUSION ON THE BASIS OF THE MATERIAL THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND ALSO PREJUDICIAL TO THE INTERESTS OF THE REVENUE, THE CI T IS EMPOWERED TO PASS AN ORDER AS THE CIRCUMSTANCES OF THE CASE MAY WARRANT. HE MAY PASS AN ORDER ENHANCING THE ASSESSMENT OR HE MAY MO DIFY THE 5 ASSESSMENT. HE IS ALSO EMPOWERED TO CANCEL THE ASS ESSMENT AND DIRECT TO FRAME A FRESH ASSESSMENT. HE IS EMPOWERE D TO TAKE RECOURSE TO ANY OF THE THREE COURSES INDICATED IN SECTION 26 3. SO, IT IS CLEAR THAT THE CIT DOES NOT HAVE UNFETTERED AND UNCHEQURE D DISCRETION TO REVISE AN ORDER. THE CIT IS REQUIRED TO EXERCISE R EVISIONAL POWER WITHIN THE BOUNDS OF THE LAW AND HAS TO SATISFY THE NEED OF FAIRNESS IN ADMINISTRATIVE ACTION AND FAIR PLAY WITH DUE RESPEC T TO THE PRINCIPLE OF AUDI ALTERAM PARTEM AS ENVISAGED IN THE CONSTITUTIO N OF INDIA AS WELL AS IN SECTION 263. AN ORDER CAN BE TREATED AS ERR ONEOUS IF IT WAS PASSED IN UTTER IGNORANCE OR IN VIOLATION OF ANY LA W; OR PASSED WITHOUT TAKING INTO CONSIDERATION ALL THE RELEVANT FACTS OR BY TAKING INTO CONSIDERATION IRRELEVANT FACTS. THE PREJUDICE TH AT IS CONTEMPLATED UNDER SECTION 263 IS THE PREJUDICE TO THE INCOME TA X ADMINISTRATION AS A WHOLE. THE REVISION HAS TO BE DONE FOR THE PURPO SE OF SETTING RIGHT DISTORTIONS AND PREJUDICES CAUSED TO THE REVENUE IN THE ABOVE CONTEXT. THE FUNDAMENTAL PRINCIPLES WHICH EMERGE FROM THE SE VERAL CASES REGARDING THE POWERS OF THE CIT UNDER SECTION 263 M AY BE SUMMARIZED BELOW: 6 (I) THE CIT MUST RECORD SATISFACTION THAT THE ORDE R OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO T HE INTERESTS OF THE REVENUE. BOTH THE CONDITIONS MUS T BE FULFILLED. (II) SECTION 263 CANNOT BE INVOKED TO CORRECT EAC H AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE ASSESSING OFFICER AND IT IS ONLY WHEN AN ORDER IS ERRONEOUS, THAT THE SECTION WILL BE ATTRACTED. (III) AN INCORRECT ASSUMPTION OF FACTS OR AN INCORR ECT APPLICATION OF LAW WILL SUFFICE FOR THE REQUIREME NT OR ORDER BEING ERRONEOUS. (IV) IF THE ORDER IS PASSED WITHOUT APPLICATION OF MIND, SUCH ORDER WILL FALL UNDER THE CATEGORY OF ERRONEOUS ORD ER. (V) EVERY LOSS OF REVENUE CANNOT BE TREATED AS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND IF THE ASSESSING OF FICER HAS ADOPTED ONE OF THE COURSES PERMISSIBLE UNDER LA W OR WHERE TWO VIEWS ARE POSSIBLE AND THE ASSESSING OFFI CER HAS TAKEN ONE VIEW UNDER WITH WHICH THE CIT DOES NO T AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER, UNLESS THE VIEW TAKEN BY THE ASSESSING OFFICER IS UNSUSTAI NABLE UNDER THE LAW. 7 (VI) IF WHILE MAKING THE ASSESSMENT, THE ASSE SSING OFFICER EXAMINES THE ACCOUNTS, MAKES ENQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINES THE INCOME, THE CIT, WHILE EXERCISING HI S POWER UNDER SECTION 263, IS NOT PERMITTED TO SUBSTI TUTE HIS ESTIMATE OF INCOME IN PLACE OF THE INCOME ESTIM ATED BY THE ASSESSING OFFICER. (VII) THE ASSESSING OFFICER EXERCISE QUASI-JUDICIA L POWER VESTED IN HIM AND IF HE EXERCISE SUCH POWER IN ACCORDANCE WITH LAW AND ARRIVES AS A CONCLUSION, SUCH CONCLUSION CA NNOT BE TERMED TO BE ERRONEOUS SIMPLY BECAUSE THE CIT DO ES NOT FEEL SATISFIED WITH THE CONCLUSION. (VIII) THE CIT, BEFORE EXERCISING HIS JURISDICTION UNDER SECTION 263, MUST HAVE MATERIAL ON RECORD TO ARRIVE AT A SATISFACTION. IF THE ASSESSING OFFICER HAS MADE ENQUIRIES DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON THE RELEVANT ISSUES AND T HE ASSESSEE HAS GIVEN DETAILED EXPLANATION BE A LETTER IN WRITING A ND THE ASSESSING OFFICER ALLOWED THE CLAIM ON BEING SATISFIED WITH T HE EXPLANATION OF THE ASSESSEE, THE DECISION OF THE ASSESSING OFFICER CANNOT BE HELD TO BE 8 ERRONEOUS SIMPLY BECAUSE IN HIS ORDER HE DOES NOT M AKE AN ELABORATE DISCUSSION IN THAT REGARD. 6. WE HAVE FOUND THAT THE LD. CIT ISSUED A SHOW CAU SE NOTICE DATED 06.03.2012 ON THE ABOVE ISSUES TO THE ASSESSEE- FIRM. A DETAILED REPLY DATED 20.03.2012 GIVEN BY TH E ASSESSEE READS AS UNDER:- 1. DIFFERENCE IN TRANSPORTATION RECEIPTS AS PER TDS DETAIL AND AS PER PROFIT & LOSS ACCOUNT: IT IS SUBMITTED THAT THE DEPARTMENT HAS GIVE N OBSERVATION THAT DETAILS OF TRANSPORTATION RECEIP T AVAILABLE ON RECORD WAS RS. 7,53,08,733/- AND TRANSPORTATION RECEIPT AS PER PROFIT & LOSS ACCOUNT WAS RS. 7,24,21,780/-. TH E DIFFERENCE OF RS. 2 8,86,9 5 3/-. WE HUMBLY SUBMIT THAT THIS DIFFERENCE IS ARISE DUE TO ACCOUNTING TREATMENT ADOPTED BY M/S TATA MOTORS LTD . AND M/S TML DISTRIBUTION LTD. ASSESSEE ISSUED TRANSPORTATIO N BILL IN THE MONTH OF APRIL 2009 & MAY 2009 BUT IN TDS CERTIFICA TE OF M/S TATA MOTORS LTD. AND M/S TML DISTRIBUTION LTD. IT W AS TAKEN IN THE PERIOD FROM 01/03/2009 TO 31/03/2009 WHILE IN T DS CERTIFICATE DATE OF PAYMENT /AMOUNT CREDITED WAS SH OWN APRIL 9 2009 & MAY 2009 MONTH WHICH WAS FALLING IN NEXT FIN ANCIAL YEAR 2009-10. AS SUCH ASSESSEE ISSUED TRANSPORTATION BILL IN THE MONTH OF APRIL 2008 & MAY 2008 BUT IN TDS CERTIFICATE OF M/S TATA MOTORS LTD. AND M/S TML DISTRIBUTION LTD. IT WAS TA KEN IN THE PERIOD FROM 01/03/2008 TO 31/03/2008 WHILE IN TDS C ERTIFICATE DATE OF PAYMENT /AMOUNT CREDITED WAS SHOWN APRIL 20 08 & MAY 2008 MONTH WHICH WAS FALLING IN FINANCIAL YEAR UNDE R ASSESSMENT I.E. 2008-09. AS SUCH ASSESSEE ISSUED TRANSPORTATION BILL IN THE F.Y. 2007-08 BUT SOME PARTIES' PAYMENT RECEIVED IN F. Y. 2008-09 . THEY DEDUCT TDS WHEN THEY PAID THE AMOUNT. COPY OF ABOVE MENTIONED TDS CERTIFICATES ATTACHED W ITH THIS LETTER FOR YOUR KIND CONSIDERATION. THUS, WE HAVE D ECLARED TRANSPORTATION RECEIPTS PROPERLY AND CORRECTLY. MANY TIME ASSESSEE SUBCONTRACT THE TRANSPORTATION W ORK TO OTHER PARTIES. AMOUNT PAID TO OTHER PARTIES DIRECTL Y LESS FROM TRANSPORTATION RECEIPTS. IN VIEW OF ABOVE SUBMISSION, EXPLANATION, IT IS HUM BLY SUBMITTED THAT WE HAVE DECLARED TRANSPORTATION RECE IPTS PROPERLY AND CORRECTLY AND THE DIFFERENCE ARISE DUE TO ACCOUNTING TREATMENT. 10 2. TYRE AND TUBE EXPENSES, CLOSING STOCK OF OLD TYRE AND TUBES & INCOME FROM SALE OF OLD TYRE AND TUBES: IT IS SUBMITTED THAT THE DEPARTMENT HAS GIVEN OBSER VATION THAT THE ASSESSEE FIRM HAS CLAIMED TOTAL EXPENSES OF RS. 51,75,5601- UNDER THE HEAD OF TYRE AND TUBE EXPENSES IN PROFIT & LOSS ACCOUNT BUT THERE IS NO CLOSING STOCK OF OLD TYRE H AS BEEN SHOWN AND NOT SHOWN ANY INCOME BY SALE OF OLD TYRE AND TU BES. WE HUMBLY SUBMIT THAT THE ASSESSEE FIRM HAS CLAIMED TOTAL EXPENSES OF RS. 51,75,560/- UNDER THE HEAD OF TYRE AND TUBE EXPENSES IN PROFIT & LOSS ACCOUNT. THIS EXPENSES MA INLY DIVIDED IN THREE PART: TYRE & TUBE (NEW TYRE PURCHASES EXPENSES) TYRE &TUBE (TYRE RETREADING EXPENSES) TYRE AND RETREADING (OLD TYRE PURCHASES AND RETREADING EXPENSES) TYRE & TUBE (NEW TYRE PURCHASES EXPENSES) THIS TYPE OF EXPENSES WAS PURCHASE OF NEW TYRE & TUBE FOR RUNNING HEAVY VEHICLE BY THE ASSESSEE. NEW TYRE & TUBES PURCHASED AS PER REQUIREMENT SO THERE WAS NO CLOSING STOCK. THIS IS PURCHASED AND CONSUMED ITEM. TYRE & TUBE (TYRE RETREADING EXPENSES) - THIS TYPE OF EXPENSES WAS TYRE RETREADING EXPENSES. WHEN A TYRE DEPRECIAT ED OR DAMAGED THEN IT RETREADED. TYRE RETREADING MEANS, T YRE 11 RETREADING IS A TECHNOLOGY, WHERE THE OLD TYRES ARE MADE SERVICEABLE BY REMOVING WORN OUT AND DAMAGED TREADS (RUBBER BELTS) AND REPLACING IT WITH NEW TREADS. SIMILAR TO THE NEW TYRES, THE TREATED TYRES CAN BE VERY WELL USED ON A LL VEHICLES, IRRESPECTIVE OF LIGHT OR HEAVY VEHICLES. VIHEN RETR EADED TYRE DAMAGED OR FULLY DEPRECIATED, IT HAS NEGLIGIBLE SCR AP VALUE. TYRE & RETREADING (OLD TYRE PURCHASES & RETREADING EXPENSES) - THIS TYPE OF EXPENSES WAS OLD TYRE PURCHASES & RE TREADING EXPENSES. ASSESSEE PURCHASED OLD TYRE 'AND RETREADE D THEM, FOR THE OLD TYRES WAS MADE SERVICEABLE SIMILAR TO THE N EW TYRES. IN VIEW OF ABOVE SUBMISSION, EXPLANATION, IT IS HUM BLY SUBMITTED THAT ASSESSEE PURCHASED TYRE & TUBES AND CONSUMED T HEM SO THERE WAS NO CLOSING STOCK OF TYRE & TUBES. WHEN A TYRE DEPRECIATED OR DAMAGED THEN IT RETREADED. WHEN RETR EADED TYRE DAMAGED OR FULLY DEPRECIATED, IT HAS NEGLIGIBLE SCR AP VALUE. SO THERE WAS NEGLIGIBLE SCRAP INCOME WHICH WAS SHOWN I N OTHER INCOME IN PROFIT & LOSS ACCOUNT. 3. MARUTI PENALTY EXPENSES : IT IS SUBMITTED THAT THE DEPARTMENT HAS GIVEN OBSER VATION THAT THE ASSESSEE FIRM HAS CLAIMED EXPENSES OF RS. 1,01, 5661- UNDER THE HEAD OF MARUTI PENALTY EXPENSES IN PROFIT & LOS S ACCOUNT, SINCE THE EXPENSES ARE OF THE NATURE OF PENALTY, TH E SAME ARE REQUIRED TO BE FULLY DISALLOWED. 12 WE HUMBLY SUBMIT THAT THE ASSESSEE-FIRM HAS CLAIMED EXPENSES OF RS. 1,01, 566/-UNDER THE HEAD OF MARUTI PENALTY EXP ENSES IN PROFIT & LOSS ACCOUNT. NATURE OF THIS EXPENSES DESCRIBE AS FOLLOWS: WHEN ASSESSEE 'S TRANSPORTATION VEHICLE (TRAILER) N OT REACHED ON TIME AT MARUTI 'S VEHICLE PICKUP UNIT FOR LOADING O F MARUTI PASSENGER CARS FOR DELIVER AT MARUTI DEALERS, THEN MARUTI CHARGED A PENALTY FOR LATE LOADING. WHEN ASSESSEE 'S TRANSPORTATION VEHICLE (TRAILER) N OT DELIVER ON TIME MARUTI PASSENGER CARS AT MARUTI DEALERS AT THE IR SHOWROOM OR BUSINESS PLACE, THEN MARUTI CHARGED A PENALTY FO R LATE DELIVERY. SOMETIMES LOADED GOODS DAMAGED DURING THE COURSE OF TRANSPORTATION THEN MARUTI CHARGED A CHARGES/PENALT Y FOR DAMAGE WHICH WAS INCLUDED IN THIS EXPENSES. PENALTY CHARGED BY MARUTI CO. DOES NOT CONSTITUTES ANY VIOLATION OF THE STATUTORY DUTY OR OBLIGATION. SO M ARUTI PENALTY EXPENSES IS NORMAL BUSINESS EXPENSES. IN VIEW OF ABOVE SUBMISSION, EXPLANATION, IT IS HUM BLY SUBMITTED THAT THIS EXPENSES IS NORMAL BUSINESS EXP ENSES AND NOT A NATURE OF PENALTY. WE ONCE AGAIN HUMBLY SUBMIT THAT IN THE GIVEN FACTS & CIRCUMSTANCES OF THE CASE, PROVISIONS OF THE SECTIO N 263 ARE NOT ATTRACTED. FROM VARIOUS CITED CASE LAWS, JUDICIOUS ASSESSMENT 13 ORDER U/S 143(3), EXPLANATION AND SUBMISSION ON EAC H & EVERY ISSUE/POINT RAISED BY YOUR HONOUR AND ALL THE MATER IAL ON THE RECORDS, INVOKING THE PROVISIONS OF SECTION 263 WIL L BE PREJUDICIAL TO THE NATURAL JUSTICE, UNJUSTIFIED, BAD IN LAW AND WILL BE INVALID. WE PRAY FOR DROPPING THE SAME. 7. PER CONTRA, LD. CIT(D.R.) HAS SUPPORTED THE ORDE R OF LD. CIT(ADMN.) IN ITS LETTER AS WELL IN ITS SPIRIT. 8. AFTER CONSIDERING RIVAL SUBMISSIONS IN THE LIGHT OF THE LEGAL POSITION ON THE SUBJECT OF REVISION, WE HAVE FOUND THAT THE A.O. HAS EXAMINED EACH AND EVERY OF THE ABOVE I SSUES, AS PER LAW. THE ORDER OF LD. CIT IS DIRECTORY IN THE N ATURE WHICH IS BASED ON HIS OWN VIEW AS AGAINST THE TAKEN BY TH E A.O. WE DONT FIND ANY LACK OF INQUIRY OR EVEN A CASE OF IN ADEQUATE INQUIRY. UNDER SECTION 263, THE COMMISSIONER CANNOT SUBSTITUTE HIS OWN VIEW. HE HAS NOT GIVEN ANY VALID REASON AS TO HOW THE ASSESSMENT ORDER IS ERRONEOUS. HE HAS SI MPLY STATED THAT THE ASSESSMENT ORDER DATED 7.1.2011 IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE TO T HAT EXTENT. THE INTENTION OF THIS SECTION IS SOMEWHAT DIFFERENT . IN CASE 14 THE A.O. HAS NOT MADE ENQUIRIES AND TAKEN AN ERRONE OUS DECISION REGARDING AN ITEM OF INCOME, ONLY THEN THE ORDER CAN BE SAID TO BE ERRONEOUS ON THAT POINT. IN CASE THE A.O. TAKES A POSSIBLE VIEW QUA A CLAIM MADE AND THE LD. CIT TAKES ANOTHER POSSIBLE VIEW, THE ORDER CANNOT BE SAID TO BE ERRONEOUS. 9. ACCORDINGLY, WE RATHER, THINK THE ORDER OF THE L D. CIT IS NOT CORRECT. HE HAS TRANSGRESSED HIS REVISIONARY P OWERS AS IF HE IS SITTING IN APPEAL. HIS POWERS ARE DELINEATED BY THE COURTS IN THE MANNER WE HAVE DISCUSSED ABOVE. THER EFORE, SET ASIDE THE ORDER OF LD. CIT PASSED U/S 263 OF TH E ACT. THE ORDER OF A.O. IS RESTORED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE-FIRM IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH DECEMBER, 2012. SD/- SD/- (N.K.SAINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13 TH DECEMBER , 2012 15 VL/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) BY ORDER 5. THE DR ASSISTANT REGISTRAR ITAT, JODHPUR