Smt. Sefali Sarkar, Kolkata V. Principal CIT - 17, Kolkata , Kolkata

ITA 2464/KOL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6704 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 15-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation; Assessment record; Time period of passing order
• Section: 43B; 37(1); 37

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER ITA NO.2464/KOL/2017 ASSESSMENT YEAR: 2010-11 SMT. SEFALI SARKAR 153/4, JESSORE ROAD, DUMDUM, KOLKA-700074 [ PAN NO.AJQPS 1034 F ] / V/S . PR. COMMISSIONER OF INCOME TAX,-17, MANICKTALA CIVIC CENTRE, UTTARPAN COMPLEX, KOLKATA-700 054 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI SOUMITRA CHOUDHURY, ADVOCATE /BY RESPONDENT SHRI A.K. SINGH, CIT-DR /DATE OF HEARING 19-12-2018 /DATE OF PRONOUNCEMENT 23-01-2019 /O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2010-11 ARISES AGAINST THE COMMISSIONER OF INCOME TAX-17, KOLKATAS ORDER DATE D 31.10.2017 PASSED IN CASE ON MEMO NO.PCIT-17, U/S 273A/2015-16/3115-3117, INVOLV ING PROCEEDINGS 263 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE(S) PERUSED. 2. WE START WITH THE BASIC RELEVANT FACTS. THIS ASS ESSEE IS ASSESSED AN INDIVIDUAL AS PROPRIETRESS OF M/S PANTHER SECURITY SERVICES. SHE FILED HER RETURN ON 12.10.2010 STATING INCOME OF 21,19,030/-. THE ASSESSING OFFICER COMPLETED REGULA R ASSESSMENT ON 16.04.2014 ASSESSING HER TOTAL TAXABLE INCOME AS 22,43,333/-. THE CIT THEREAFTER ITA NO.2464/KOL/2017 ASSESSMENT YEAR 2010-11 SMT. SEFALI SARKAR VS PR. CIT-17 KOL. PAGE 2 EXERCISED HIS 263 REVISIONAL JURISDICTION VIDE ORDE R DATED 16.09.2014 BY DIRECTING THE ASSESSING OFFICER TO FRAME AFRESH ASSESSMENT AS FOL LOWS:- I HAVE PERUSED THE DOCUMENTS AVAILABLE IN THE ASS ESSMENT RECORDS AND THE DETAILS FURNISHED BY THE A/R OF THE ASSESSEE. THE A R HAD EXPLAINED AND PRODUCED THE COPIES OF THE EXPENSES THAT WERE INCUR RED BY AN EMPLOYEE OF THE ASSESSEE WHICH AMOUNTED TO RS23,323/- ON BEHALF OF THE ASSESSEE FOR BUSINESS. HOWEVER, THE AO NEEDS TO EXAMINE THIS AND ALSO THE LEDGER COPY OF VARIOUS BANK LOAN TO ARRIVE AT A PROPER CONCLUSION FROM EVI DENCES I, THEREFORE, SET ASIDE THE ASSESSMENT WITH THE DIRECTION TO EXAMINE THE GENUINENESS OF THE EVIDENCES FILED BY THE AR OF THE ASSESSEE AND ACCOR DINGLY COMPLETE THE AM. HE MAY ALSO EXAMINE ANY CONCOMITANT THAT ARISES IN THE PROCESS AND TAKE NECESSARY ACTION. 3. THE ASSESSING OFFICER FRAMED CONSEQUENTIAL ASSES SMENT AGAIN ASSESSING ASSESSEES TAXABLE INCOME AS 22,43,333/- THIS TIME THE PCIT ISSUED HIS SEC. 263 REVISION SHOW-CAUSE NOTICE DATED 10.08.2017 TERMING THE LATTE CONSEQUENTIAL ASSESSMENT ALSO TO BE ERRONEOUS CAUSING PREJUDICE T O INTEREST OF THE REVENUE AS UNDER:- 3. ON PERUSAL OF THE ASSESSMENT RECORD, IT IS OBSE RVED FROM THE P&L ACCOUNT THAT THE ASSESSEE HAD CLAIMED VARIOUS EXPENSES WHIC H SEEMS TO BE EXCESSIVE AS THE ASSESSEE HAD SHOWN GROSS PROFIT OF RS.2,33,00,4 96/- WHICH WAS 19.32% OF GROSS RECEIPT OF CHARGES. THE ASSESSEE HAD SHOWN NE T PROFIT OF RS.20,17,193/- WHICH IS ONLY 1.6% OF THE TOTAL GROSS RECEIPT AFTER INCURRING EXPENSES UNDER VARIOUS HEADS AMOUNTING TO RS.1,13,09,047/-. THE AS SESSEE SUBMITTED MONTHLY BREAK UP OF EXPENDITURE OF CAR INSURANCE OF RS. BUS INESS PROMOTION EXPENSES OF RS.2,08,034/-, SITE EXPENSES OF RS.11,12,750/- ONLY . NO LEDGER COPY OF THESE EXPENSES AS WELL AS THE REMAINING EXPENSES OR PARTY -WISE DETAILS OF THESE EXPENSES WERE SUBMITTED. IN THE ORIGINAL ASSESSMENT , THE AO HAS NOT VERIFIED THESE EXPENSES AS PER PROVISION OF SEC. 37(1) OF TH E I.T. ACT, 1961. 4. IT IS ALSO FOUND THAT A SUM OF R.78,52,021/- DEB ITED IN THE P&L ACCOUNT UNDER THE HEAD EMPLOYEE CONTRIBUTION TO P.F. & PEN SION. IT IS FOUND THAT TWO AMOUNTS OF RS.8,00,000/- EACH TOTALING RS.16,00 ,000/- HAD PAID ON 29.09.2010 TOWARDS PENSION FUND BUT THERE IS CORRES PONDING PAYMENT OF EMPLOYER AND EMPLOYEE CONTRIBUTION TO P.F. 4. THE ASSESSEE FILED HER REPLY DATED 16.10.2017 CO NTESTING THE PCITS ABOVE REVISION PROPOSAL ON VARIOUS LEGAL AND FACTUAL ASPE CTS. THE PCITS ORDER UNDER CHALLENGE ON 31.10.2017 HAS DIRECTED THE ASSESSING OFFICER TO FRAME AFRESH ASSESSMENT ONCE MORE AS FOLLOWS:- ITA NO.2464/KOL/2017 ASSESSMENT YEAR 2010-11 SMT. SEFALI SARKAR VS PR. CIT-17 KOL. PAGE 3 6. I HAVE CAREFULLY CONSIDERED THE FACTS AND CIRCU MSTANCES OF THE CASE. THE IMPUGNED ASSESSMENT ORDER U/S. 263/144 DATED 30.06.2015 HAS BEEN PASSED WITHOUT MAKING RELEVANT ENQUIRY OR VERIFICATION AS WAS REQUIRED OF THE AO. THE ASSESSEE HAS RAISE OBJECTIONS TO THE PROCEEDINGS AGAIN INITIATED U/S 2 63, INTER-ALIA, STATING THAT THE PRESENT PROCEEDINGS SOUGHT TO REVISE THE IMPUGNED O N DIFFERENT ISSUES NOT TAKEN DURING THE COURSE OF THE ASSESSMENT. AND THAT CONSE QUENTLY, THE EXERCISE OF JURISDICTION STOOD BARRED AS THE LIMITATION IS TO B E RECKONED FROM THE DATE OF PASSING OF THE ORIGINAL ASSESSMENT ORDER OF 16.4.2012. IT W AS ALSO CONTENDED THAT REVISIONARY PROCEEDINGS DID NOT LIE WHERE TWO VIEWS ON AN ISSUE WERE POSSIBLE, WHILE ALSO STRESSING THAT ALL THE MATERIAL FACTS WERE PLACED B EFORE THE AO WHO HAD EXAMINED THE ISSUES. VARIOUS DECISIONS WERE QUOTED IN SUPPORT. IT IS SEEN FROM THE ORDER U/S 263 DATED 16.9.2017, THAT THE THEN PCIT HAD CATEGORICALLY OBSERVED THAT THE AO HAD COLLECTED VA RIOUS DETAILS OF EXPENSES BUT THOSE WERE NOT VERIFIED. ON THE ISSUE OF LOANS, THE AO DI D NOT ASK FOR ANY DETAILS OR MADE ANY ENQUIRY AND EVIDENCES W.R.T. CONTRAVENTION OF S EC.40A(3). IMPORTANTLY, THE THEN PCIT WHILE SETTING ASIDE THE ORIGINAL ASSESSMENT OR DER HAD ALSO DIRECTED THAT HE (AO) MAY ALSO EXAMINE ANY CONCOMITANT THAT ARISES IN THE PROCESS AND TAKE NECESSARY ACTION. (EMPHASIS SUPPLIED). THUS, THE PCIT HAD DIR ECTED THE AO TO DISPOSE THE ASSESSMENT AFRESH BY EXAMINING ALL ISSUES RELEVANT TO ENSURING THE TAXING OF THE CORRECT TOTAL INCOME OF THE ASSESSEE. IN OTHER WORD S, THE NET PROFIT DECLARED BY THE ASSESSEE AUTOMATICALLY BECAME SUBJECTED TO SCRUTINY FOR WHICH THE ASSOCIATED EXPENDITURES HAVING A BEARING REQUIRED TO BE VERIFI ED. NET PROFIT DECLARED WAS RS.20,17,193/- I.E. ONLY 1.6% OF THE TOTAL GROSS RE CEIPT AND EXPENSES CLAIMED UNDER VARIOUS HEADS WERE TO THE TUNE OF RS.L,13,09,047/-, AS UNDER.- ADVERTISEMENT EXPENSES 2,34,606/- BUSINESS PROMOTION EXPENSES 2,08,034/- CAR HIRE CHARGES 5,48,759/- CAR MAINTENANCE 25,34,740/- EMPLOYER CONT. TO ESI 17,26,089/- MESSING EXP. 14,35,550/- RENT 2,48,000/- SALARY & BONUS 16,13,172/- SITE EXPENSES 11,12,750/- THEFT & DAMAGES 5,67,000/- TEA & TIFFIN 2,03,532/- TELEPHONE CHARGES. 1,08,557/- TRAVELLING & CONVEYANCE 7,68,258/- TOTAL 1,13,09,047/- FOR THE ABOVE EXPENSES, THE ASSESSEE AS PER RECORD, HAD SUBMITTED DETAILS OF MONTHLY BREAK UP OF EXPENDITURE INCURRED UNDER THE HEAD 'CA R MAINTENANCE EXPENSES', 'CAR HIRE CHARGES', 'CAR INSURANCE', 'BUSINESS PROMOTION EXPENSES', AND 'SITE EXPENSES'. HOWEVER NO LEDGER ACCOUNT OF THESE EXPENSES OR PART Y-WISE DETAILS OF THESE EXPENSES WERE SUBMITTED. ONLY FEW BILLS/VOUCHERS OF THESE EX PENSES WERE COLLECTED AND PUT ON RECORD. SIMILARLY, THE DEBIT IN THE P&L ACCOUNT UND ER THE HEAD 'EMPLOYEES CONTRIBUTION TO PF & PENSION' AMOUNTING TO RS. 78,5 2,021/-, ALSO BECOMES SUBJECT TO EXAMINATION AS PER SEC 43B. ALL THESE EXPENSES NATU RALLY WILL BE REQUIRED TO BE VERIFIED AS TO THE CORRECTNESS AND GENUINENESS. THU S, I AM NOT ABLE TO APPRECIATE THE ARGUMENT OF THE ASSESSEE THAT DIFFERENT GROUNDS HAV E BEEN TAKEN FOR THE PROCEEDINGS ITA NO.2464/KOL/2017 ASSESSMENT YEAR 2010-11 SMT. SEFALI SARKAR VS PR. CIT-17 KOL. PAGE 4 AT HAND. WHAT IS GERMANE TO THE ISSUE IS THE 'EXPEN SES' AND IT ENCOMPASSES ALL DISBURSEMENTS WHICH AFFECT THE PROFITS. HENCE IT CA NNOT BE SAID THAT THE GROUNDS TAKEN ARE DISSIMILAR. ALSO THERE IS NO QUESTION OF ANY PO SSIBILITY OF TWO VIEWS ON THE ISSUES AT HAND. EITHER THE DEBITS ARE GENUINE OR THEY ARE NOT. EITHER THERE IS VIOLATION OF SEC 37(1) AND SEC 43B OR NOT. THERE IS NO AMBIGUITY IN SEC 37 AND SEC 43B. THUS, THERE IS CLEAR NON-APPLICATION OF MIND ON THE PART OF THE AO . HE DID NOT EXAMINE/VERIFY THE EXPENSES AS WAS DIRECTED BY THE THEN PCIT IN HER OR DER U/S 263. NO ENQUIRY BY AO IS GOOD ENOUGH REASON FOR FURTHER REVISION OF THE IMPU GNED ORDER. CONSEQUENTLY, THE LIMITATION WILL HAVE TO BE RECKONED FROM THE DATE O F PASSING OF THE IMPUGNED ASSESSMENT ORDER DATED 30.6.2015 AND HENCE THE PRES ENT PROCEEDINGS ARE NOT BARRED. 7. HON'BLE KARNATAKA HIGH COURT IN THE CASE OF THAL IBAI F JAIN VS. ITO 101 ITR 1.6 (KAM) HAS HELD THAT WHERE NO ENQUIRIES MADE BY THE ASSESSING OFFICER ON THE RELEVANT ISSUE, ASSESSMENT MUST BE HELD TO BE PREJUDICIAL TO THE INTEREST OF THE REVENUE AND WHAT IS PREJUDICIAL TO THE INTEREST OF REVENUE MUST BE HELD TO BE ERRONEOUS THOUGH THE CONVERSE MAY NOT ALWAYS BE TRUE. 8. HON'BLE SUPREME COURT IN THE CASE OF MALABAR IND USTRIAL CO. PVT. LTD. VS. CIT REPORTED IN (2000) 243 ITR 83,87-88 (SC) AFFIRMING THE HON'BLE KERALA HIGH COURT DECISION (198 ITR 611) HAS HELD THAT THE PHRASE ' PREJUDICIAL TO THE INTEREST OF THE REVENUE ' IS OF WIDE IMPORT AND IS NOT CONFINED TO ONLY LOS S OF TAXES. IF THE A.O. HAS ACCEPTED THE CLAIM OF THE ASSESSEE WITHOUT ANY ENQU IRIES THEN SUCH ASSESSMENT ORDER PASSED BY THE A.O. WAS HELD TO BE ERRONEOUS. 9. IN THIS REGARD, IT IS MENTIONED THAT MERE NON-EN QUIRY WOULD ALSO RENDER A PARTICULAR ORDER PASSED BY LOWER AUTHORITY AS ERRON EOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. THIS POSITION HAS BEEN CLEARL Y CONFIRMED BY HON'BLE SUPREME COURT IN THE CASE OF RAMPYARI DEVI SARAOGI V. CIT [ 1968] 67 ITR 84 & SMT. TARA DEVI AGGARWAL V. CIT [1973] 88 ITR 323 (SC). THE RE ASONING FOR THIS PROPOSITION HAS BEEN EXPLAINED BY HON'BLE DELHI HIGH COURT IN THE C ASE OF GEE VEE ENTERPRISE V. ADDI.CIT[1975] 99 ITR 375.386 IN THE FOLLOWING PARA S :- 'IT IS NOT NECESSARY FOR THE COMMISSIONER TO MAKE F URTHER INQUIRIES BEFORE CANCELLING THE ASSESSMENT ORDER OF THE INCOME-TAX O FFICER. THE COMMISSIONER CAN REGARD THE ORDER AS ERRONEOUS ON THE GROUND THA T IN THE CIRCUMSTANCES OF THE CASE THE INCOME-TAX OFFICER SHOULD HAVE MADE FU RTHER INQUIRIES BEFORE ACCEPTING THE STATEMENTS MADE BY THE ASSESSEE IN HI S RETURN. THE REASON IS OBVIOUS. THE POSITION AND FUNCTION OF THE INCOME-TA X OFFICER IS VERY DIFFERENT FROM THAT OF CIVIL COURT. THE STATEMENTS MADE IN TH E PLEADING PROVED BY THE MINIMUM AMOUNT OF EVIDENCE MAY BE ADOPTED BY A CIVI L COURT IN THE ABSENCE OF ANY REBUTTAL. THE CIVIL COURT IS NEUTRAL. IT SIM PLY GIVES DECISION ON THE BASIS OF THE PLEADING AND EVIDENCE WHICH COME BEFORE IT. THE INCOME-TAX OFFICER IS NOT ONLY AN ADJUDICATOR BUT ALSO AN INVESTIGATOR. H E CANNOT REMAIN PASSIVE IN THE FACE OF A RETURN WHICH IS APPARENTLY IN ORDER B UT CALLS FOR FURTHER INQUIRY. IT IS HIS DUTY TO ASCERTAIN THE TRUTH OF THE FACTS STA TED IN THE RETURN WHEN THE CIRCUMSTANCES OF THE CASE ARE SUCH AS TO PROVOKE AN INQUIRY. IT IS BECAUSE IT IS INCUMBENT ON THE INCOME-TAX OFFICER TO FURTHER INVE STIGATE THE FACTS STATED IN THE RETURN WHEN CIRCUMSTANCES WOULD MAKE SUCH AN IN QUIRY PRUDENT THAT THE WORD 'ERRONEOUS' IN SECTION 263 INCLUDES THE FAILUR E TO MAKE SUCH AN ENQUIRY. THE ORDER BECOMES ERRONEOUS BECAUSE SUCH AN INQUIRY HAS NOT BE MADE AND ITA NO.2464/KOL/2017 ASSESSMENT YEAR 2010-11 SMT. SEFALI SARKAR VS PR. CIT-17 KOL. PAGE 5 NOT BECAUSE THERE IS ANYTHING WRONG WITH THE ORDER IF ALL THE FACTS STATED THEREIN ARE ASSUMED TO BE CORRECT. ' THUS, THE CIT MAY CONSIDER THE ORDER OF THE ASSESSI NG OFFICER TO BE ERRONEOUS NOT ONLY IF IT CONTAIN SOME APPARENT ERROR OF REASONING OR OF LAW OR OF FACT ON THE FACE OF IT BUT ALSO BECAUSE THE ASSESSING OFFICER HAS FAILE D TO MAKE ENQUIRIES WHICH ARE CALLED FOR IN THE CIRCUMSTANCES OF THE CASE AND IT IS AN O RDER WHICH SIMPLY ACCEPTED WHAT THE ASSESSEE HAS STATED IN HIS RETURN OF INCOME ON THE SAID ISSUE. IT IS NOT NECESSARY FOR THE CIT TO MAKE FURTHER ENQUIRIES BEFORE CANCELLING THE ASSESSMENT ORDER. THE COMMISSIONER CAN REGARD THE ORDER ERRONEOUS ON THE GROUND THAT THE ASSESSING OFFICER SHOULD HAVE MADE FURTHER ENQUIRIES. 10. FURTHER TO THIS, IT IS NOTICED THAT THERE IS NO APPEAL RIGHT AVAILABLE TO THE REVENUE FROM THE ORDER OF ASSESSMENT PASSED BY ASSESSING OF FICER AND I.E. WHY REVISIONARY POWERS HAVE BEEN GIVEN TO THE COMMISSIONER AND SUCH POWER WERE HELD TO BE OF WIDE AMPLITUDE BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT V. SHREE MANJUNATHESWARE PACKING PRODUCTS & CAMPHOR WORKS [1 998] 231 ITR 53/96 TAXMAN. THEREFORE, NORMALLY WHEN ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY ON A PARTICULAR ISSUE, THEN SUCH ORDER IN VIEW OF THE ABOVE DETAILE D DISCUSSION HAS TO BE CONSTRUED AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E AND THEREFORE, THE IMPUGNED ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO TH E INTEREST OF REVENUE AS ASSESSING OFFICER HAS FAILED TO MAKE ANY ENQUIRY TO THAT EFFE CT. 11. IT MAY BE FURTHER NOTICED, THAT IN ORDER TO PRO VIDE CLARITY ON THE ISSUE OF ' ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF THE REVENUE ', A NEW EXPLANATION HAS BEEN INSERTED W.E.F 01.06.2015 TO C LARIFY THAT AN ORDER PASSED BY THE ASSESSING OFFICER SHALL BE DEEMED TO BE ERRONEOUS I N SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, IF, IN THE OPINION OF THE PRINCIPAL COMMISSIONER OR COMMISSIONER . (A) THE ORDER IS PASSED WITHOUT MAKING INQUIRIES OR VERIFICATION WHICH, SHOULD HAVE BEEN MADE; (B) THE ORDER IS PASSED ALLOWING ANY RELIEF WITHOU T INQUIRING INTO THE CLAIM (C) THE ORDER HAS NOT BEEN MADE IN ACCORDANCE WITH ANY ORDER, DIRECTION OR INSTRUCTION ISSUED BY THE BOARD UNDER SECTION 119; OR (D) THE ORDER HAS NOT BEEN PASSED IN ACCORDANCE WIT H ANY DECISION, PREJUDICIAL TO THE ASSESSEE, RENDERED BY THE JURISDICTIONAL HIG H COURT OR SUPREME COURT IN THE CASE OF THE ASSESSEE OR ANY OTHER PERSON. 12. THUS, HAVING REGARD TO THE FACTS AND CIRCUMSTAN CES OF THE CASE AND IN THE LIGHT OF THE AFORESAID DECISIONS OF HON'BLE SUPREME COURT AN D HON'BLE HIGH COURT AND IN ACCORDANCE WITH THE AMENDMENT MADE IN SECTION 263 O F THE ACT WITH EFFECT FROM 01.06.2015, I HOLD THAT THE IMPUGNED ASSESSMENT ORD ER DATED 30.06.2015 PASSED BY THE A.O. U/S.263/144 OF THE IT ACT, 1961 IS ERRONEO US IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF REVENUE . 14. CONSEQUENTLY, IN EXERCISE OF THE JURISDICTION C ONFERRED BY SECTION 263 OF THE ACT, THE SAID ORDER OF ASSESSMENT PASSED U/S.263/144 OF THE INCOME TAX ACT, 1961 ON 30.06.2015 FOR THE A.Y.2013-14 IS SET ASIDE. THE AS SESSING OFFICER IS DIRECTED TO PASS ITA NO.2464/KOL/2017 ASSESSMENT YEAR 2010-11 SMT. SEFALI SARKAR VS PR. CIT-17 KOL. PAGE 6 A FRESH ASSESSMENT ORDER AND RECOMPUTED THE ASSESSE E'S INCOME AS PER PROVISIONS OF THE INCOME TAX ACT 1961 BY TAKING INTO ACCOUNT THE FACTS AND THE LEGAL POSITION DISCUSSED ABOVE, AND AFTER AFFORDING A REASONABLE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL PLEADINGS. CASE RECORD COMPRISING OF BOTH ORIGINAL AS WELL AS CONSEQUENTIA L ASSESSMENT, BOTH ROUNDS OF SEC. 263 PROCEEDINGS DOCUMENT AND ASSESSEES REPLY(IES) STANDS PERUSED. THERE CAN HARDLY BE ANY DISPUTE ABOUT THE SETTLED LEGAL PROPOSITION AS PER HON'BLE APEX COURTS LANDMARK DECISION IN MALABAR INDUSTRIAL CO. PVT. LTD. VS. CI T (2000) 243 ITR 83, 87-88 (SC) THAT THE LEGISLATIVE EXPRESSION PREJUDICIAL TO THE INTEREST OF THE REVENUE HAS TO BE READ IN CONJUNCTION WITH AN ERRONEOUS ORDER PASSED BY THE ASSESSING OFFICER. THEIR LORDSHIPS MADE IT CLEAR THAT EVERY LOSS OF REVENUE AS A CONSEQUENCE OF THE ASSESSING OFFICERS ORDER CANNOT BE TREATED AS PREJUDICIAL TO THE INTEREST OF REVENUE; FOR EXAMPLE, WHEN AN INCOME TAX OFFICER ADOPTS ONE OF THE COURSE PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE AND WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME TAX OFFICER HAS TAKEN ONE OF SUCH VIEW WITH WHICH THE C OMMISSIONER DOES NOT AGREE IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTEREST OF REVENUE UNLESS THE INCOME TAX OFFICERS VIEW ADOPTED IS UNSUSTAINABLE IN LAW. THIS LEGAL PROPOSITION HOLDS THE FIELD NOW AS WELL AS REITERATED IN VARIOU S DECISIONS. WE KEEP IN MIND THE SAME TO REVERT BACK TO THE RELEVANT FACTS IN THE IN STANT CASE. THE CITS FORMER REMAND DIRECTION (SUPRA) AS RELATED TO AN EXPENDITURE HEAD OF 23,32/- AND LEDGER COPY OF VARIOUS LOANS TO BE RE-VERIFIED WHEREAS THE PCIT SE COND SHOW CAUSE NOTICE IN ISSUE RAISED TWO MORE ISSUES OF VARIOUS OTHER HEADS OF EX PENDITURE I.E. CAR MAINTENANCE, CAR INSURANCE, THE BUSINESS PROMOTION, SITE EXPENSES EM PLOYEES CONTRIBUTION TO PF AND PENSION ETC., HIS CASE IS THAT THE SAME HAD NOT BEE N EXAMINED DURING ORIGINAL ASSESSMENT FRAMED ON 16.04.2012 WHICH STOOD REVISED AS PER FORMER CITS ORDER DATED 16.09.2014 (SUPRA). THE PCIT CLEARLY SOUGHT TO EXER CISES HIS REVISION JURISDICTION ON DIFFERENT ISSUES WHICH HAD NOWHERE BEEN RAISED IN F IRST ROUND REVISION ORDER. 6. CASE FILE SUGGESTS THAT THE FIRST ROUND REGULAR ASSESSMENT HAD BEEN FRAMED ON 16.04.2012 IN FINANCIAL YEAR ENDING ON 31.03.2013 S EC. 263(2) OF THE ACT PRESCRIBES LIMITATION IN SUCH A CASE TO BE AFTER EXPIRY OF TW O YEARS FROM THE END OF THE FINANCIAL ITA NO.2464/KOL/2017 ASSESSMENT YEAR 2010-11 SMT. SEFALI SARKAR VS PR. CIT-17 KOL. PAGE 7 YEAR IN WHICH THE ORDER SOUGHT TO BE REVISED WAS PA SSED. THE REVENUE FAILED TO DISPUTE THAT THE SAID CLAUSE STATES WITH A NEGATIVE COVENANT. THE LIMITATION PERIOD OF TWO YEARS AS PER THIS STATUTORY PROVISION COMES TO BE 31.03.2015 AS OUTER LIMIT I.E. MUCH EARLIER THAN EARLIER TO THE PCITS SECOND SHOW CAUSE NOTICES ON 10.08.2017. THE SAME IS HELD TO BE HIT BY STATUTORY PERIOD OF LIMIT ATION THEREFORE. 7. LEARNED CIT-DR VEHEMENTLY CONTENDS AT THIS STAG E THAT CITS FORMER REVISION DIRECTIONS (SUPRA) HAD MADE IT CLEAR TO THE ASSESSI NG OFFICER. HE MAY ALSO EXAMINE ANY CONCOMITANT THAT ARISES IN PROCESS AND TAKE NECESSA RY ACTION . WE FIND NO MERIT IN REVENUES INSTANT ARGUMENT AS WELL. WE NOT ICE THAT COLLINS ENGLISH DICTIONARY DEFINES CONCOMITANT TO BE AN EXPRESSION USED TO DESCRIBE S OMETHING THAT HAPPENS OF AT THE SAME TIME AS ANOTHER THING AND IS CONNECT ED WITH IT . WE DO NOT SEE SUCH A CONNECTION OR TIMELY RELATION AMONGST THE TWIN REAS ONS EACH CONTAINED IN THE CITS SEC. 263 SHOW CAUSE NOTICE ON FIRST ROUND REMAND DI RECTIONS WITH THE ONES RAISED IN LATTER ROUND (SUPRA). HON'BLE BOMBAY HIGH COURTS D ECISION IN ABDULGAFAR A NADIADWALA VS. ACIT (2004) 267 ITR 488/137 TAXMAN 112 (BOM) HOLDS THAT IT IS VERY MUCH PERMISSIBLE TO ADOPT ORDINARY DISCRETIONA RY MEANING IN ABSENCE OF ANY STATUTORY GUIDELINE AS FOLLOWS:- WITH THE AFORESAID STRONGLY CANVASSED RIVAL VIEWS, ONE HAS TO FIND THE ANSWER TO THE QUESTION RAISED UNDER THE PROVISIONS OF THE INCOME-TAX ACT. THE PROVISIONS OF THE SAID ACT DO NOT DEFINE THE WORD GOODS OR MERCHANDISE . IN THE ABSENCE OF ANY STATUTORY GUIDELINES UNDER THE A CT, THE DICTIONARIES CAN BE CONSULTED TO FIND OUT THE MEANING OF THE PARTICULAR WORD OF PHRASE. IT IS WELL SETTLED THAT IN THE ABSENCE OF THERE BEING ANYTHING CONTRARY TO THE CONTEXT, THE LANGUAGE OF A STATUTE SHOULD BE INTERPRETED ACCORDI NG TO THE PLAIN DICTIONARY MEANING OF THE TERM USED THEREIN. THOUGH THE DICTIO NARIES ARE NOT TO BE TAKEN AS AUTHORITATIVE EXPONENTS OF THE MEANING OF THE ST ATUTORY LANGUAGE, IT IS PERMISSIBLE TO SEEK INSTRUCTION FROM THESE BOOKS TO UNDERSTAND THE ORDINARY SENSE OF THE WORDS IN AN ENACTMENT. AT THIS JUNCTUR E WE ARE REMINDED OF WHAT SAMUEL JOHNSON, A GREAT ENGLISH POET, CRITIC, ESSAY IST AND DICTIONARY MAKER, HAS STATED:- DICTIONARIES ARE LIKE WATCHES, THE WORST IS BETTER THAN NONE, AND THE BEST CANNOT BE EXPECTED TO GO QUITE TRUE. EVERY HONEST L EXICOGAPHER AGREES KNOWING THAT NO MATTER HOW KEENLY HE STRIVES TO MAK E HIS BOOK GO TRUE HE WOULD INEVITABLY LOSE THE BATTLE WITH WHAT MIG HT BE CALLED LINGUISTIC INDETERMINACY. SINCE INDETERMINACY WILL BE THE PRIMA FACIE OF HIS PROFESSIONAL LIFE, HE WILL OFTEN BE TEMPTED TO DENY AND RESENT, LIKE THE GRAMMARIANS OF THE 17 TH & 18 TH CENTURIES, THE RADICAL INSTABILITY OF LANGUAGES. ITA NO.2464/KOL/2017 ASSESSMENT YEAR 2010-11 SMT. SEFALI SARKAR VS PR. CIT-17 KOL. PAGE 8 IT IS THUS CLEAR THAT THE COURT CAN ALWAYS TASK AID OF THE DICTIONARIES. WE THEREFORE HOLD IN VIEW OF OUR FOREGOING DETAILED DISCUSSION AND VARIOUS JUDICIAL PRECEDENTS THAT THE PCITS ORDER UNDER CHALLENGE DI RECTING AFRESH ASSESSMENT IN HIS ORDER DATED 31.10.2017 IS NOT SUSTAINABLE. THE SAME STANDS REVERSED. 8. THIS ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 23/01/2019 SD/- SD/- ( &) (( &) (J.SUDHAKAR REDDY) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER *DKP-SR.PS ) - 23/01/2019 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SMT. SEFALI SARKAR, 153/4, JESSORE ROAD, DUMDUM KOL-74 2. /RESPONDENT-PR. CIT-17, MANICKTALA CIVIC CENTRE,UTT ARPAN COMPLEX, KOL-54 3. , - / CONCERNED CIT 4. - - / CIT (A) 5. . ((, , , /DR, ITAT, KOLKATA 6. 2 / GUARD FILE. BY ORD ER/ , /TRUE COPY/ / ,,