SMALL WONDER INDUSTRIES, MUMBAI V. CIT 24, MUMBAI

ITA 2464/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8376 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 16-02-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 01-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEBASIS CHANDRA
• Section: 143(3); 142(1); 80IB; 263; 63

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO.2464/MUM/2013 ASSESSMENT YEAR: 2009-10 SMALL WONDER INDUSTRIES, 78, VIRWANI INDL. ESTATE, WESTERN EXPRESS HIGHWAY, GOREGAON (EAST), MUMBAI-400063 / VS. CIT - 24, MUMBAI ( ! /ASSESSEE) ( ' / REVENUE) P.A. NO. AALFS6318Q ! / ASSESSEE BY SHRI PRAKASH JOTWANI ' / REVENUE BY SHRI DEBASIS CHANDRA CIT-DR # ' $ ! % / DATE OF HEARING : 23/02/2017 $ ! % / DATE OF ORDER: 24/02/2017 SMALL WONDER INDUSTRIES. ITA NO.2464/MUM/2013 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 19/02/2013 OF THE LD. COMMISSIONER OF INCOME TAX, M UMBAI, INVOKING REVISIONAL JURISDICTION U/S 263 OF THE INC OME TAX ACT, 1961 (HEREINAFTER THE ACT), HOLDING THE ORIGINAL AS SESSMENT MADE U/S 143(3) OF THE ACT TO BE ERRONEOUS AND PREJ UDICIAL TO THE INTEREST OF THE REVENUE. 2. DURING HEARING OF THIS APPEAL, THE LD. COUNSEL FOR THE ASSESSEE, SHRI PRAKASH JOTWANI, INVITED OUR ATTENTI ON TO THE ASSESSMENT ORDER FRAMED U/S 143(3) OF THE ACT BY CO NTENDING THAT THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRU TINY, THEREFORE, NOTICE U/S 142 ALONG WITH QUESTIONNAIRE WAS ISSUED TO THE ASSESSEE. THE ASSESSEE ATTENDED THE PROCEEDI NGS FROM TIME TO TIME AND FILED VARIOUS DETAILS CALLED FOR A ND AFTER CONSIDERING THE FACTUAL MATRIX, THE ASSESSMENT WAS FRAMED. OUR ATTENTION WAS INVITED TO THE VARIOUS ISSUES DISCUSSED/DELIBERATED UPON IN THE ASSESSMENT ORDER. THE CRUX OF THE ARGUMENT IS THAT THE ASSESSMENT ORDER IS NEI THER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE RE VENUE, THEREFORE, THE REVISION JURISDICTION WAS WRONGLY IN VOKED. 2.1. ON THE OTHER HAND, THE LD. DR, SHRI DEVASIS CHANDRA, LD. CIT-DR, DEFENDED THE ORDER OF THE LD. COMMISSIONER BY CONTENDING THAT THE ASSESSMENT ORDE R IS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE. OUR ATTENTION WAS INVITED TO PARA-2 OF THE IMPUGNED ORDER. SMALL WONDER INDUSTRIES. ITA NO.2464/MUM/2013 3 RELIANCE WAS PLACED UPON THE DECISION IN HORIZON IN VESTMENT CO. LTD. VS CIT (ITA NO.1593/MUM/2013), ORDER DATED 27/06/2014. 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE ENGAGED IN THE BUSINESS OF MANUFACTURING OF FEEDING BOTTLES AND ACCESSORIES. THE ASSESSEE SHOWED TOTAL TURNOVER OF RS.2,40,72,048/- AND OFFERED GROSS PROFIT OF RS.99,20,394/- AT THE RATE OF 41.21% OF THE TOTAL TURNOVER. THE ASSESSEE CLAIMED DEDUCTION U/S 80IB OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) AT T HE RATE OF 25% OF THE TOTAL PROFIT OF RS.65,39,181/- AFTER RED UCING THE BROUGHT FORWARD LOSSES OF RS.3,44,910/-. THE ASSESS EE DECLARED INCOME OF RS.49,04,386/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY, THEREFORE, NOTICE U/S 14 3(2) AND 142(1) OF THE ACT ALONG WITH QUESTIONNAIRE WERE ISS UED AND SERVED UPON THE ASSESSEE. IN RESPONSE TO THESE NOTI CES, THE ASSESSEE ATTENDED THE PROCEEDINGS FROM TIME TO TIME AND FILED VARIOUS DETAILS CALLED FOR (AS IS EVIDENT FROM PAGE -1 OF THE ASSESSMENT ORDER ITSELF). AFTER SCRUTINY OF VARIOU S DETAILS FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND AFT ER EXAMINATION OF RETURN OF INCOME, AN ANNEXURE THERET O, AFTER HAVING MAKING THE DISCUSSION MADE CERTAIN DISALLOWA NCES. IT IS NOTED THAT THE LD. ASSESSING OFFICER HAS MADE AN ELABORATE DISCUSSION WITH RESPECT TO DISALLOWANCE OF DEDUCTIO N U/S 80IB OF THE ACT ON INTEREST INCOME (PAGE-2 OF THE ASSESS MENT ORDER), DISALLOWANCE OUT OF INTEREST U/S 36(1)(III) OF THE ACT AS DETAILED SMALL WONDER INDUSTRIES. ITA NO.2464/MUM/2013 4 IN PARA (B) ONWARDS, SET OFF OF UNABSORBED LOSSES ( PARA-C) AND FINALLY, THE COMPUTATION PART, ETC. THERE IS A NOTI NG AT THE LAST PAGE OF THE ASSESSMENT ORDER ASSESSED U.S 143(3) O F THE I.T. ACT, 1961, CREDIT FOR PRE-PAID TAXES IS GIVEN AFTER DUE VERIFICATION. WE HAVE VERIFIED THE ASSESSMENT ORDER AND FIND THAT THE ASSESSMENT ORDER IS BROADLY NEITHER ERRONE OUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE AS THE S AME HAS BEEN FRAMED AFTER DUE APPLICATION OF MIND AND ON CONSIDE RATION OF FACTUAL MATRIX ALONG WITH THE DETAILS/QUESTIONNAIRE , FILED BY THE ASSESSEE. BEFORE INVOKING THE REVISIONS JURISDI CTION, THE LD. COMMISSIONER HAS TO BE SATISFIED OF TWIN CONDITIONS I.E. (1) THE ASSESSMENT ORDER, SOUGHT TO BE REVISED, IS ERRONEOUS AND (2) IT IS PREJUDICIAL TO THE INTEREST OF THE REVENU E. IF ONE OF THEME IS ABSENT, MEANING THEREBY, IF TH E ASSESSMENT ORDER IS ERRONEOUS BUT NOT PREJUDICE TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT PREJUDICIAL T O THE REVENUE RECOURSE CANNOT BE HAD TO SECTION 263(1) OF THE ACT . THE PROVISION CANNOT BE INVOKED TO CORRECT EACH AND EVE RY TYPE OF MISTAKE OR ERROR COMMITTED BY THE ASSESSING OFFICER . IT IS ONLY WHEN THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE REVENUE, THE REVISIONAL JURISDICTION IS ATTRACTED. OUR VIEW FIND SUPPORTS FROM THE LANDMARK DECISION FROM THE HONBLE APEX CO URT IN MALABAR INDUSTRIAL COMPANY LTD. VS CIT 243 ITR 83 ( SC), CIT VS GABRIEL INDIA LTD. (203 ITR 109)(BOM), RATIO LAI D DOWN IN ASHOK MANILAL THAKKAR VS ACIT 279 ITR (AT)143(AHD.) , CIT VS SMALL WONDER INDUSTRIES. ITA NO.2464/MUM/2013 5 HONDA SIEL POWER PRODUCTS LTD. 194 TAXMAN 175 (DEL. ), CIT VS INTERNAL TRAVEL HOUSE LTD. 194 TAXMAN 324 (DEL.) AN D CIT VS HINDUSTAN COCA COLA BEVERAGES PVT. LTD. (ITA NOS.13 91/2010, 1394/2010 & 1396/2010) WHEREIN, THE HONBLE DELHI H IGH COURT HELD THAT SECTION 263 CANNOT BE INVOKED TO CO RRECT EACH AND EVERY TYPE OF MISTAKE COMMITTED BY THE ASSESSIN G OFFICER, IF IT IS NOT PREJUDICIAL TO THE INTEREST OF THE RE VENUE AND EVERY LOSS OF REVENUE AS A CONSEQUENCE OF ASSESSMENT ORDE R CANNOT BE TREATED AS PREJUDICIAL TO THE INTEREST OF THE RE VENUE. SO FAR AS, NON-APPLICATION OF MIND BY THE ASSESSING OFFICE R IS CONCERNED UNDER THE FACTS NARRATED IN THIS ORDER, R ELIANCE CAN BE PLACED UPON THE RATIO LAID DOWN IN FOLLOWING CA SES:- I. CIT VS GABRIEL INDIA LTD. 203 ITR 108 (BOM.) II. CIT VS. ASHISH RAJPAL (320 ITR 674)(DEL.) III. CIT VS. EICHER LTD. (294 ITR 310) (DEL.) IV. HARI IRON TRADING CO. VS. CIT (263 ITR 437) (P&H) V. CIT VS. DEVELOPMENT CREDIT BANK LTD. (323 ITR 206) (BOM.) VI. RCI LTD. VS. CIT (2010) 40 DTR MUM (TRB.) 186 VII. RELIANCE GAS TRANSPORTATION INFRASTRUCTURE LTD. VS. CIT(2014) (100 DTR 1)(MUM.)(TRB.) AND VIII. CIT VS. ANIL KUMAR SHARMA 335 ITR 83(DEL.) IX. CIT VS ARVIND JEWELLERS 259 ITR 502 (GUJ.) X. CIT VS SUNBEAM AUTO 189 TAXMAN 436 (DEL.) 2.3. THE HONBLE DELHI HIGH COURT IN INTERNATIONAL TRAVEL HOUSE LTD. (344 ITR 554) HELD THAT THE LD. COMMISSI ONER HAS NO UNFETTERED POWER TO INITIATE PROCEEDINGS BY REVI SION FOR SMALL WONDER INDUSTRIES. ITA NO.2464/MUM/2013 6 REEXAMINING AND DIRECTING FRESH ENQUIRY ON HIS OWN WHIM FOR CHANGE OR HAVING A DIFFERENT VIEW. 2.4. IF THE OBSERVATION MADE IN THE ASSESSMENT OR DER, NOTICES ISSUED TO THE ASSESSEE ALONG WITH QUESTIONN AIRE, REPLY FILED BY THE ASSESSEE ALONG WITH DOCUMENTS/DETAILS, OBJECTIONS/OBSERVATIONS MADE IN THE NOTICE ISSUED U /S 263 BY THE LD. COMMISSIONER AND REPLY FILED BY THE ASSESSE E, IF KEPT IN JUXTAPOSITION AND ANALYZED UNDISPUTED FACT OOZES OU T IS THAT THE ASSESSMENT U/S 143(3) OF THE ACT WAS FRAMED AFT ER EXAMINATION OF NECESSARY DETAILS/REPLY TO THE QUEST IONNAIRE, FILED BY THE ASSESSEE. IT IS NOT THE CASE THAT ASS ESSMENT WAS FRAMED WITHOUT APPLICATION OF MIND AND IN A SLIP SH OT MANNER. NOW QUESTION ARISES WHETHER THE ASSESSMENT ORDER IS ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF THE REV ENUE. WE ARE OF THE VIEW, THAT THERE IS A DISTINCTION BETWEEN L ACK OF ENQUIRY AND INADEQUATE ENQUIRY. IN THE PRESENT CASE THE A SSESSING OFFICER COLLECTED NECESSARY DETAILS, EXAMINED THE S AME AND THEN FRAMED THE ASSESSMENT U/S. 143(3) OF THE ACT. THEREFORE, IN SUCH A SITUATION THE DECISION FROM HON'BLE HIGH COURT OF DELHI IN CIT VS. ANIL KUMAR SHARMA (2011) 335 ITR 8 3 (DEL.)(SUPRA), CLEARLY COMES TO THE RESCUE OF THE ASSESSEE . THE HON'BLE HIGH COURT HELD AS UNDER :- HELD, DISMISSING THE APPEAL, THAT THE PRESENT CASE WOULD NOT BE ONE OF LACK OF ENQUIRY EVEN IF THE ENQUIRY WAS TERMED INADEQUATE. THE TRIBUNAL FOUND THAT COMPLETE DETAILS WERE FILED BEFORE THE ASSESSING OFFICER AND THAT HE APPLIED HIS MIND TO THE RELEVANT MATERIAL AND FACT, ALTHOUGH SUCH SMALL WONDER INDUSTRIES. ITA NO.2464/MUM/2013 7 APPLICATION OF MIND WAS NOT DISCERNABLE FROM THE ASSESSMENT ORDER . THE TRIBUNAL HELD THAT THE COMMISSIONER IN PROCEEDINGS U/S. 263 ALSO HAD ALL THESE DETAILS AND MATERIALS AVAILABLE BEFORE HIM BUT HAD NOT BEEN ABLE TO POINT OUT DEFECTS CONCLUSIVELY IN THE MATERIAL, FOR ARRIVING AT A CONCLUSION THAT PARTICULAR INCOME HAD ESCAPED ASSESSMENT ON ACCOUNT OF NON-APPLICATION OF MIND BY THE ASSESSING OFFICER . THE TRIBUNAL WAS RIGHT AND THE ORDER OF REVISION WAS NOT VALID. 2.5. THE AFORESAID ORDER CLEARLY FITS INTO THE FAC TS BEFORE US. WHILE COMING TO THE AFORESAID CONCLUSION THE HO N'BLE HIGH COURT DULY CONSIDERED THE DECISION IN CIT VS. SUNBEAM AUTO LTD. (2011) 332 ITR 167 (DEL.) (PARA-6 & 7). WE ARE EXPECTED TO ASCERTAIN WHETHER THE ASSESSING OFFICER HAD INVESTIGATED/EXAMINED THE ISSUE AND APPLIED HIS MIN D TOWARDS THE WHOLE RECORD MADE AVAILABLE BY THE ASSESSEE DUR ING ASSESSMENT PROCEEDINGS. UNCONTROVERTEDLY, NECESSARY DETAILS/REPLY TO THE QUESTIONNAIRE WERE FILED/PRODU CED BY THE ASSESSEE AND THE SAME WERE EXAMINED BY THE ASSESSIN G OFFICER, THEREFORE, IT IS NOT A CASE OF LACK OF ENQ UIRY BY THE ASSESSING OFFICER. IDENTICAL RATIO WAS LAID DOWN BY THE TRIBUNAL IN THE CASE OF RELIANCE GAS TRANSPORTATION INFRASTRUCTURE LTD. VS. CIT (2014) 100 DTR (MUM.) (TRB.) 1 , ORDER DATED 10/1/2014. IN ANOTHER CASE FROM HON'BLE JURISDICTIONAL HIGH COURT IN CIT VS. DEVELOPMENT CREDIT BANK LIMITED (2010) 323 ITR 206 , ON IDENTICAL FACT WHEREIN ASSESSMENT ORDER WAS PASSED AFTER CONSIDERING ALL DETAILS CALLED FOR AND FURNISHED BY THE ASSESSEE. THE LD. COMMISSIONER INVOKED REVISIONAL J URISDICTION ON THE GROUND THAT ENQUIRY WAS NOT CONDUCTED, THE H ON'BLE HIGH COURT HELD THAT THE LD. COMMISSIONER WAS NOT J USTIFIED IN SMALL WONDER INDUSTRIES. ITA NO.2464/MUM/2013 8 INVOKING THE REVISIONAL JURISDICTION. IDENTICAL IS THE SITUATION FROM HON'BLE HIGH COURT PUNJAB & HARYANA IN HARI IRON TR ADING COMPANY VS. CIT (263 ITR 437) ORDER DATED 23/5/2003 . THE HON'BLE HIGH COURT OF DELHI IN CIT VS. EICHER (294 ITR 310) (DEL.) WHEREIN THE ENTIRE MATERIAL WAS PLACED BY THE ASSES SEE BEFORE THE ASSESSING OFFICER AT THE TIME OF ORIGINAL ASSES SMENT, THE ASSESSING OFFICER APPLIED HIS MIND TO THE MATERIAL AND ACCEPTED THE VIEW CANVASSED BY THE ASSESSEE AND MER E FACT THAT HE DID NOT EXPRESS THIS IN THE ASSESSMENT ORDE R, CANNOT BE A GROUND TO CONCLUDE THAT INCOME HAS ESCA PED ASSESSMENT , FURTHER SUPPORTS THE CASE OF THE ASSESSEE . IDENTICALLY, THE HON'BLE HIGH COURT OF DELHI IN CIT VS. ASHISH RAJPAL (320 ITR 674) VIDE ORDER DT.14/5/2009, DECIDED IN FAVOUR OF THE ASSESSEE . THE HON'BLE JURISDICTIONAL HIGH COURT IN CIT VS. GABRIEL INDIA LTD. (203 ITR 108) HELD THAT THERE MUST BE MATERIAL BEFORE THE COMMISSIONER TO SATISFY HIMSELF THAT TWO REQUISITE PROVIDED U/S. 263 ARE PRESENT, OTHERWISE POWER CANNOT BE EXERCISED AT THE WHIMS AND CAPRICE OF THE COMMISSIONER. WE HAVE ALSO SEEN THE PAPER BOOK FILE D BY THE ASSESSEE AND THE DOCUMENTS/PAPERS CONTAINED/MENTION ED THEREIN WERE DULY MADE AVAILABLE BEFORE THE ASSESSI NG OFFICER, BEFORE FRAMING THE ASSESSMENT U/S. 143(3) OF THE AC T AND ARE SATISFIED THAT HE ASKED THE ASSESSEE TO FURNISH THE NECESSARY DETAILS, THEREFORE, THE OBSERVATION MADE BY THE LD. COMMISSIONER IS NOT SUBSTANTIATED AS HAS BEEN ALLEG ED IN THE REVISIONAL ORDER. SMALL WONDER INDUSTRIES. ITA NO.2464/MUM/2013 9 2.6. ADMITTEDLY, AN INCORRECT ASSUMPTION OF FACT O R AN INCORRECT APPLICATION OF LAW WOULD SATISFY THE REQU IREMENT OF ORDER BEING ERRONEOUS U/S. 263 OF THE ACT. THE PHRA SE PREJUDICIAL TO THE INTEREST OF THE REVENUE U/S. 2 63 OF THE ACT, HAS TO BE READ IN CONJUNCTION WITH THE EXPRESSION ERRONEOUS ORDER BY THE ASSESSING OFFICER. EVERY LOSS OF REVEN UE AS A CONSEQUENCE OF ASSESSMENT ORDER CANNOT BE TERMED AS PREJUDICIAL TO THE INTEREST OF REVENUE, MEANING T HEREBY, PREJUDICE MUST BE PREJUDICE TO THE REVENUE ADMINI STRATION. AT THE SAME TIME, IF ANOTHER VIEW IS POSSIBLE REVIS ION IS NOT PERMISSIBLE. OUR VIEW IS FORTIFIED BY THE DECISION FROM HIMACHAL PRADESH FINANCIAL CORPN. (186 TAXMANN 105) (HP), BISMILLAH TRADING CO. (248 ITR 292)(KER.) AND CIT V S. GREEN WORLD CORPN. (314 ITR 81)(SC) . FOR INVOKING REVISIONAL JURISDICTION U/S. 263 THE ASSESSMENT ORDER MUST CON TAIN GRIEVOUS ERROR WHICH IS SUBVERSIVE OF THE ADMINIS TRATION OF REVENUE. FURTHER, EXACT ERROR MUST BE DISCLOSED B Y THE COMMISSIONER AS WAS HELD IN CIT VS. G.K. KABRA (211 ITR 336)(AP) . TOTALITY OF FACTS, CLEARLY INDICATES THAT ASSESSM ENT U/S. 143(3) OF THE ACT WAS FRAMED BY THE ASSESSING OFFICER AFTER OBTAINING NECESSARY DETAILS FROM THE ASSESSEE AND FURTHER THE SAME WERE EXAMINED BY HIM. THEREFORE, EVEN IF, THE SAME HAS NOT BEEN SPELT ELABORATELY IN THE ASSESSMENT OR DER IT CANNOT BE SAID THAT THERE IS A LACK OF ENQUIRY OR PREJUDICE HAS BEEN CAUSED TO THE REVENUE, AS WE HAVE DISCUSSE D VARIOUS CASE LAWS IN EARLIER PART OF THIS ORDER WHICH ARE I DENTICAL TO THE FACTS BEFORE US. OUR VIEW IS FURTHER FORTIFIED BY T HE DECISION OF SMALL WONDER INDUSTRIES. ITA NO.2464/MUM/2013 10 MUMBAI BENCH OF THE TRIBUNAL (WHEREIN ONE OF US I. E. JM IS SIGNATORY TO THE ORDER ) IN THE CASE OF MEHTA TRADI NG COMPANY (ITA NO.2838/MUM/2013), ORDER DATED 31/10/2014, WHI CH IS ALSO ON IDENTICAL FACTS/ISSUE. 2.7. IT IS ALSO NOTED THAT THE LD. COMMISSIONER IN VOKED REVISIONAL JURISDICTION U/S 263 WITH RESPECT TO COM MISSION OF RS.2,12,136/- AT THE RATE OF RS.25 PER PIECE TO RAJ ENDRA JAIN AND KIRAN JAIN BY OBSERVING THAT NO SUCH COMMISSION WAS PAID IN EARLIER YEAR FOR SIMILAR SALES. THE ASSESS EE EXPLAINED THAT COMMISSION WAS PAID TO THESE PARTIES FOR LOOKI NG AFTER THE LOGISTIC ISSUE. WE FIND THAT THE ASSESSEE VIDE LETT ER DATED 11/07/2011, ADDRESSED TO THE LD. DCIT, IN RESPONSE TO NOTICE U/S 142(1) CLARIFIED THE FACTUAL MATRIX AND AGAIN V IDE LETTER DATED 26/07/2011 ADDRESSED TO LD. DCIT DULY FURNISH ED THE PARTYWISE DETAILS OF COMMISSION PAID WITH NAME, ADD RESS AND PURPOSE (ALL THESE DOCUMENTS ARE AVAILABLE IN THE P APER BOOK OF THE ASSESSEE). THE ZEROX COPY OF AGREEMENT AND C REDIT NOTE WAS ALSO ENCLOSED ALONG WITH THE MEMORANDUM OF UNDERSTANDING DATED 10/04/2008. THUS, WE ARE SATIS FIED THAT THE ASSESSMENT WAS FRAMED AFTER MAKING DUE ENQUIRY AND ON PERUSAL/EXAMINATION OF DOCUMENTARY EVIDENCE. IN SUC H A SITUATION, INVOKING REVISIONAL JURISDICTION U/S 253 CANNOT BE SAID TO BE JUSTIFIED. 2.8. SO FAR AS, THE RELIANCE UPON THE DECISION IN HORIZON INVESTMENT COMPANY LTD. VS CIT (ITA NO.1593/MUM/201 3) ORDER DATED 27/06/2014 IS CONCERNED, WE FIND THAT T HE LD. ASSESSING OFFICER NEITHER MADE ANY QUERY WITH RESPE CT TO THE SMALL WONDER INDUSTRIES. ITA NO.2464/MUM/2013 11 ISSUE NOR MADE ANY PROPER ENQUIRY. HOWEVER, IT IS N OT THE CASE BEFORE US, THEREFORE, THIS DECISION IS ON DIFFERENT FACTS. IN VIEW OF THESE FACTS AND THE JUDICIAL PRONOUNCEMENT FROM HON'BLE APEX COURT AND VARIOUS HON'BLE HIGH COURTS WE SET A SIDE THE ORDER OF THE LD. COMMISSIONER AND DECIDE THE APPEAL IN FAVOUR OF THE ASSESSEE, BECAUSE, BY NO STRETCH OF IMAGINAT ION, THE ASSESSMENT ORDER CAN BE TERMED AS ERRONEOUS AND/OR PREJUDICIAL TO THE INTEREST OF THE REVENUE, THUS, I NVOKING REVISIONAL JURISDICTION BY THE LD. COMMISSIONER CAN NOT BE UPHELD. RESULTANTLY, THE APPEAL OF THE ASSESSEE IS ALLOWED . THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 23/02/2017. SD/- SD/- ( RAMIT KOCHAR ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER # MUMBAI; ' DATED : 24/02/2017 F{X~{T? P.S / (' %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. )*+, / THE APPELLANT 2. -.+, / THE RESPONDENT. 3. / / # 0! ( )* ) / THE CIT, MUMBAI. 4. / / # 0! / CIT(A)- , MUMBAI 5. 2'3 -! , / )*% ) 4 , # / DR, SMALL WONDER INDUSTRIES. ITA NO.2464/MUM/2013 12 ITAT, MUMBAI 6. 5 6 / GUARD FILE. / BY ORDER, .2*! -! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , # / ITAT, MUMBAI,