The West Bengal National University of Juridicial Science, Kolkata V. CIT(Exemption) , Kolkata

ITA 2643/KOL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5956 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-09-2020
• Assessment Year: 2016-2017
• Appeal Filed On: 26-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Revision of order; Opportunity of being heard; Benefit of exemption; Condonation of delay; Revised return; Revenue expenditure
• Section: 263; 63; 154; 2; 11; 139; 143(3); 142(1); 12A; 119(2)(b); 12AA; 10B; 195; 143(2); 139(1); 13; 119

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, HONBLE ACCOUNTANT MEMBER & SRI S.S. GODARA, HONBLE JUDICIAL MEMBER) [VIRTUAL COURT HEARING] ITA NO. 2643/KOL/2019 ASSESSMENT YEAR: 2016-17 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE......APPELLANT 12 LB BLOCK, NUJS BHAWAN SECTOR-3 SALT LAKE CITY KOLKATA 700 098 [PAN : AAAJT 1531 H] VS. COMMISSIONER OF INCOME TAX (EXEMPTION), KOLKATA.................. .......... RESPONDENT APPEARANCES BY: SHRI SOUMITRA CHOUDHURY, ADVOCATE & SHRI RATAN KR. GOEL, A/R, APPEARED ON BEHALF OF THE ASSESSEE. SHRI RAM BILASH MEENA, CIT, D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : SEPTEMBER 8 TH , 2020 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 30 TH , 2020 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (EXEMPTIONS)- KOLKATA, (HEREINAFTER THE LD. CIT (E)), DT. 13/09/2019, PASSED U/S 263 OF THE INCOME TAX ACT, 1961 (THE ACT), RELATING TO THE ASSESSMENT YEAR 2016-17 (FINANCIAL YEAR 2015-16). 2. AT THE OUTSET WE FIND THAT THERE IS A DELAY OF 26 (TWENTY SIX) DAYS IN FILING OF THIS APPEAL BY THE ASSESSEE. AFTER PERUSING THE PETITION FOR CONDONATION, WE ARE CONVINCED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM FILING THE APPEAL IN TIME. HENCE THE DELAY IS CONDONED AND THE APPEAL IS ADMITTED. 3. THE ASSESSEE, THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE (WBNUJS) IS ONE OF THE PREMIER NATIONAL LAW SCHOOLS OF INDIA. IT WAS BROUGHT INTO EXISTENCE BY THE GOVERNMENT OF WEST BENGAL, BY WAY OF THE WBNUJS ACT, 1999 (WEST BENGAL ACT IX OF 1999) ADOPTED BY THE WEST BENGAL LEGISLATURE IN JULY, 1999. THE UNIVERSITY WAS NOTIFIED UNDER CLAUSE (F) OF SECTION 2 OF THE UGC ACT, 1956 IN AUGUST, 2004 AND WAS GRANTED PERMANENT AFFILIATION BY THE BAR COUNCIL OF INDIA IN JULY, 2005. THE CHIEF JUSTICE OF INDIA IS THE CHANCELLOR OF THE WBNUJS AND IS ALSO THE CHAIRMAN OF THE GENERAL COUNCIL, THE SUPREME POLICY MAKING BODY OF UNIVERSITY. THE ASSESSEE GOT REGISTRATION U/S 12A OF THE ACT ON 09/12/2016 VIDE M. NO.: CIT(E)/10E/666/2016-17/S-0307/3396-98. THE LD. CIT(E), KOLKATA, HAS ALSO GRANTED APPROVAL TO THE ASSESSEE U/S 10(23C)(VI) OF THE ACT ON 27/09/2016. THE APPROVAL IS APPLICABLE FROM THE ASSESSMENT YEAR 2017 3.1. THE ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME FOR TH ON 20/10/2016. NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 10/07/2017 AND SCRUTINY PROCEEDINGS INITIATED.. THE ASSESSEE GOT REGISTRATION U/S 12A OF THE ACT ON 09/12/2016. THEREAFTER, THE ASSESSEE FILED A PETITION FOR CONDONATION OF DELAY IN FILING OF FORM NO. 10 BEFORE THE LD. CIT(E), KOLKATA ON 23/ 119 (2)(B) OF THE ACT, DT. 20/11/2017 CONDONING THE DELAY IN FILING OF THE REQUISITE FORM NO. 10 FOR THE ASSESSMENT YEAR 2014 FOLLOWS:- THE ASSESSEE FILED PETITION FOR CONDONATION OF DELAY IN FILING OF FORM 10 FOR THE ASSESSMENT YEARS 2014 - THE ASSESSEE HAS CONTENDED THAT THE REQUISITE FORM 10 FOR THE SAID ASSESSMENT YEARS COULD NOT BE FILED IN TIME SINCE REGISTRATION U/S. 12AA OF THE INCOME TAX ACT, 1961 WAS GRANTED ON 09.12.2016. HOWEVER, PREPARING FUTURE LEGAL PROFESSIONALS WANTS TO AVAIL OPPORTUNITIES OF SETTING APART OF FUND FOR FUTURE UTILISATION. THE FUND WAS, IN FACT, INVESTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 11 (5) OF T HE INCOME TAX ACT, 1961. IN THIS REGARD, THE ASSESSEE REFERRED TO THE CBDT'S CIRCULAR NO. 273 DATED 03.06.1980. CONSIDERING THE MERITS OF THE CASE AND IN ACCORDANCE WITH CBDT'S CIRCULAR, IN EXERCISE OF POWERS CONFERRED BY SUB 1961 AND ALL OTHER POWERS ENABLING IN THIS BEHALF, THE PETITIONS FOR CONDONATION OF DELAY U/S. 119(2)(B) OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEARS 2014 2016- 17 ARE ALLOWED. HOWEVER, NO INTEREST IS ALLOWED THE BELATED RETURN. 3.1.1. THEREAFTER, THE ASSESSEE FILED A REVISED RETURN OF INCOME ON 29/11/2017 ALONG WITH FORM 10B. THEREAFTER, NOTICE U/S 142(1) OF THE ACT DT. 11/09/2018, WAS ISSUED TO THE ASSESSEE. ANOTHER NOTICE U/S 143(2) OF THE ACT DT. 13/08/2018, WAS ISSUED TO THE ASSESSEE PROPOSING TO SCRUTINIZE THE RETURN OF INCOME FILED ON 29/11/2017. THE ASSESSING OFFICER PASSED AN ORDER U/S 143(3) OF THE ACT ON 31/10/2018 DETERMINING THE TOTAL INC OME OF THE ASSESSEE AT NIL. 3.2. THE LD. CIT(E), INVOKED HIS POWERS U/S 263 OF THE ACT AND INITIATED PROCEEDINGS VIDE NOTICE DT. 27/05/2019. CONSIDERED THE SAME AND HELD AS FOLLOWS: THE UNDISPUTED FACTS OF THE CASE ARE THAT THE RETURN OF INCOME A WELL AS FORM- 10 HAVE BEEN FILED BELATEDLY. AS PER SECTION 11(2) IS TO BE ALLOWED ONLY IF THE RETURN OF INCOME AS WELL AS FORM THE DUE DATE . IN THIS CASE, DELAY IN FILING OF FORM 10 ONLY HAS BEEN CONDONED IN EXERCISE OF POWERS DELEGATED TO THE UNDERSIGNED. IT HOWEVER, DOES NOT MEAN THAT THE DELAY IN FILING OF RETURN OF INCOME ALSO STANDS CONDONED. 2 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE APPROVAL TO THE ASSESSEE U/S 10(23C)(VI) OF THE ACT ON 27/09/2016. THE APPROVAL IS APPLICABLE FROM THE ASSESSMENT YEAR 2017 -18 ONWARDS. THE ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME FOR TH E ASSESSMENT YEAR 2016 NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 10/07/2017 AND SCRUTINY THE ASSESSEE GOT REGISTRATION U/S 12A OF THE ACT ON 09/12/2016. THEREAFTER, THE ASSESSEE FILED A PETITION FOR CONDONATION OF DELAY IN FILING OF FORM NO. 10 BEFORE THE LD. CIT(E), KOLKATA ON 23/ 01/2017. THE LD. CIT(E), KOLKATA, PASSED AN ORDER THE ACT, DT. 20/11/2017 CONDONING THE DELAY IN FILING OF THE REQUISITE FORM NO. 10 FOR THE ASSESSMENT YEAR 2014 -15, 2015-16 & 2016- 17. THE ORDER READS AS THE ASSESSEE FILED PETITION FOR CONDONATION OF DELAY IN FILING OF FORM 10 FOR THE - 15, 2015-16 & 2016-17 ON 23.01.2017. THE ASSESSEE HAS CONTENDED THAT THE REQUISITE FORM 10 FOR THE SAID ASSESSMENT YEARS COULD NOT BE FILED IN TIME SINCE REGISTRATION U/S. 12AA OF THE INCOME TAX ACT, 1961 WAS GRANTED ON 09.12.2016. HOWEVER, THE ASSESSEE IS AN INSTITUTE OF EMINENCE ENGAGED IN PREPARING FUTURE LEGAL PROFESSIONALS WANTS TO AVAIL OPPORTUNITIES OF SETTING APART OF FUND FOR FUTURE UTILISATION. THE FUND WAS, IN FACT, INVESTED IN ACCORDANCE WITH THE PROVISIONS OF HE INCOME TAX ACT, 1961. IN THIS REGARD, THE ASSESSEE REFERRED TO THE CBDT'S CIRCULAR NO. 273 DATED 03.06.1980. CONSIDERING THE MERITS OF THE CASE AND IN ACCORDANCE WITH CBDT'S CIRCULAR, IN EXERCISE OF POWERS CONFERRED BY SUB -CLAUSE (B) OF CLAUSE 2 OF SEC TION 119 OF THE I. T. ACT, 1961 AND ALL OTHER POWERS ENABLING IN THIS BEHALF, THE PETITIONS FOR CONDONATION OF DELAY U/S. 119(2)(B) OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEARS 2014 17 ARE ALLOWED. HOWEVER, NO INTEREST IS ALLOWED TO BE PROVIDED WHILE PROCESSING THE ASSESSEE FILED A REVISED RETURN OF INCOME ON 29/11/2017 ALONG WITH FORM 10B. THEREAFTER, NOTICE U/S 142(1) OF THE ACT DT. 11/09/2018, WAS ISSUED TO ANOTHER NOTICE U/S 143(2) OF THE ACT DT. 13/08/2018, WAS ISSUED TO THE PROPOSING TO SCRUTINIZE THE RETURN OF INCOME FILED ON 29/11/2017. THE ASSESSING OFFICER PASSED AN ORDER U/S 143(3) OF THE ACT ON 31/10/2018 DETERMINING OME OF THE ASSESSEE AT NIL. THE LD. CIT(E), INVOKED HIS POWERS U/S 263 OF THE ACT AND INITIATED PROCEEDINGS VIDE NOTICE DT. 27/05/2019. THE ASSESSEE FILED DETAILED SUBMISSIONS. THE LD. CIT(E) HELD AS FOLLOWS: - THE UNDISPUTED FACTS OF THE CASE ARE THAT THE RETURN OF INCOME A WELL AS 10 HAVE BEEN FILED BELATEDLY. AS PER SECTION - 13(9) ACCUMULATION UNDER SECTION 11(2) IS TO BE ALLOWED ONLY IF THE RETURN OF INCOME AS WELL AS FORM - 10 IS FILED BEFORE . IN THIS CASE, DELAY IN FILING OF FORM 10 ONLY HAS BEEN CONDONED IN EXERCISE OF POWERS DELEGATED TO THE UNDERSIGNED. IT HOWEVER, DOES NOT MEAN THAT THE DELAY IN FILING OF RETURN OF INCOME ALSO STANDS CONDONED. ITA NO. 2643/KOL/2019 ASSESSMENT YEAR: 2016-17 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE APPROVAL TO THE ASSESSEE U/S 10(23C)(VI) OF THE ACT ON 27/09/2016. THE APPROVAL IS E ASSESSMENT YEAR 2016 -17 NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 10/07/2017 AND SCRUTINY THE ASSESSEE GOT REGISTRATION U/S 12A OF THE ACT ON 09/12/2016. THEREAFTER, THE ASSESSEE FILED A PETITION FOR CONDONATION OF DELAY IN FILING OF FORM NO. 10 01/2017. THE LD. CIT(E), KOLKATA, PASSED AN ORDER THE ACT, DT. 20/11/2017 CONDONING THE DELAY IN FILING OF THE REQUISITE FORM 17. THE ORDER READS AS THE ASSESSEE FILED PETITION FOR CONDONATION OF DELAY IN FILING OF FORM 10 FOR THE THE ASSESSEE HAS CONTENDED THAT THE REQUISITE FORM 10 FOR THE SAID ASSESSMENT YEARS COULD NOT BE FILED IN TIME SINCE REGISTRATION U/S. 12AA OF THE INCOME TAX ACT, 1961 THE ASSESSEE IS AN INSTITUTE OF EMINENCE ENGAGED IN PREPARING FUTURE LEGAL PROFESSIONALS WANTS TO AVAIL OPPORTUNITIES OF SETTING APART OF FUND FOR FUTURE UTILISATION. THE FUND WAS, IN FACT, INVESTED IN ACCORDANCE WITH THE PROVISIONS OF HE INCOME TAX ACT, 1961. IN THIS REGARD, THE ASSESSEE REFERRED TO THE CONSIDERING THE MERITS OF THE CASE AND IN ACCORDANCE WITH CBDT'S CIRCULAR, IN TION 119 OF THE I. T. ACT, 1961 AND ALL OTHER POWERS ENABLING IN THIS BEHALF, THE PETITIONS FOR CONDONATION OF DELAY U/S. 119(2)(B) OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEARS 2014 -15, 2015-16 & TO BE PROVIDED WHILE PROCESSING THE ASSESSEE FILED A REVISED RETURN OF INCOME ON 29/11/2017 ALONG WITH FORM 10B. THEREAFTER, NOTICE U/S 142(1) OF THE ACT DT. 11/09/2018, WAS ISSUED TO ANOTHER NOTICE U/S 143(2) OF THE ACT DT. 13/08/2018, WAS ISSUED TO THE PROPOSING TO SCRUTINIZE THE RETURN OF INCOME FILED ON 29/11/2017. THEREAFTER THE ASSESSING OFFICER PASSED AN ORDER U/S 143(3) OF THE ACT ON 31/10/2018 DETERMINING THE LD. CIT(E), INVOKED HIS POWERS U/S 263 OF THE ACT AND INITIATED PROCEEDINGS THE ASSESSEE FILED DETAILED SUBMISSIONS. THE LD. CIT(E) THE UNDISPUTED FACTS OF THE CASE ARE THAT THE RETURN OF INCOME A WELL AS 13(9) ACCUMULATION UNDER SECTION 10 IS FILED BEFORE . IN THIS CASE, DELAY IN FILING OF FORM 10 ONLY HAS BEEN CONDONED IN EXERCISE OF POWERS DELEGATED TO THE UNDERSIGNED. IT HOWEVER, DOES NOT MEAN THAT THE IN VIEW OF THE REQUIREMENTS OF SECTION 13(9) ALLOWING ACCUMULATION U/S 11 (2) IN THE CASE OF A LATE RETURN IS CLEARLY ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THE PROPER REMEDY, IF AT ALL, AVAILABLE TO THE ASSESSEE WAS TO APPLY TO C.B.D.T. FOR CONDONATION OF DE INCOME. IN THE ABSENCE OF CONDONATION OF DELAY IN FILING OF RETURN OF INCOME. THE CLAIM OF EXEMPTION U/S 11(2) CANNOT BE ALLOWED IN THE FACTS OF THE PRESENT CASE. THE ASSESSMENT ORDER OF THE A.O. IS THEREFORE ERRONEOUS AND PREJU THE A.O. IS ACCORDINGLY DIRECTED TO COMPUTE THE INCOME WITHOUT ALLOWING ACCUMULATION U/S 11 (2). 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ORDER PASSED U/S 263 OF THE ACT IS INCORRECT IN LAW AS WELL AS ON FACTS. HE FIL AND DREW THE ATTENTION OF THE BENCH TO PAGE 111 OF THE PAPER BOOK, WHERE THE PROPOSAL FOR REVISION OF THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE ACT, BY THE LD. CIT(E) INVOKING POWERS 1(1), KOLKATA. HE SUBMITTED THAT THE ASSESSING OFFICER CANNOT PROPOSE REVISION OF AN ORDER U/S 263 OF THE ACT AND THE JURISDICTION HAS TO ORIGINATE FROM THE COMMISSIONER OF INCOME TAX, AFTER HE EXAMINES THE RECORD THE JUDGMENT OF THE KOLKATA C BENCH OF THE TRIBUNAL IN THE CASE OF VS. PR. CIT IN ITA NO. 1073/KOL/2012; ASSESSMENT YEAR 2005 THE PROPOSITION THAT INVOCATION OF REVISIONARY JURISDICTION ON BY THE ASSESSING OFFICER, IS BAD IN LAW. 4.1. ON MERITS, HE SUBMITTED THAT THE CBDT VIDE ITS CIRCULAR NO. 6/2006 DT. 19/02/2020, NOTIFICATION NO. F. NO. 197/55/2018 OF INCOME TAX TO ADMIT BELATED APPLICATIONS FOR CONDONATION OF DELAY IN FILING OF THE RETURN OF INCOME U/S 119(2)(B) OF THE ACT AND DECIDE THE SAME ON MERITS. HE POINTED OUT THAT THE LD. CIT(E) HAD CONDONED THE DELAY IN YEARS 2014-15, 2015- 16 & 2016 APPROVAL U/S 10(23C)(VI) OF THE ACT WAS GRANTED ON 27/09/2016. HE TOOK THIS BENCH THROUGH THE ORDER OF THE ASSESSING OFFICER AND SUBMITTED THAT ALL ASPECTS HAVE BEEN CONSIDERED BY THE ASSESSING OFFICER AND A REASONED ORDER PASSED BY TAKING A POSSIBLE VIEW CIT(E) WAS WRONG IN EXERCISING HIS JURISD THE ASSESSING OFFICER HAS TAKEN A P SATISFIED WITH THE REPLIES AND EVIDENCES SUBMITTED BY FROM THE COPY OF THE ORDER SHEET ENTRIE 3 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE IN VIEW OF THE REQUIREMENTS OF SECTION 13(9) THE ACTION OF THE A.O. IN ALLOWING ACCUMULATION U/S 11 (2) IN THE CASE OF A LATE RETURN IS CLEARLY ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THE PROPER REMEDY, IF AT ALL, AVAILABLE TO THE ASSESSEE WAS TO APPLY TO C.B.D.T. FOR CONDONATION OF DE LAY IN FILING OF RETURN OF IN THE ABSENCE OF CONDONATION OF DELAY IN FILING OF RETURN OF INCOME. THE CLAIM OF EXEMPTION U/S 11(2) CANNOT BE ALLOWED IN THE FACTS OF THE PRESENT CASE. THE ASSESSMENT ORDER OF THE A.O. IS THEREFORE ERRONEOUS AND PREJU DICIAL TO THE REVENUE. THE A.O. IS ACCORDINGLY DIRECTED TO COMPUTE THE INCOME WITHOUT ALLOWING ACCUMULATION U/S 11 (2). THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ORDER PASSED U/S 263 OF THE ACT IS INCORRECT IN LAW AS WELL AS ON FACTS. HE FIL ED A PAPER BOOK RUNNING INTO 166 PAGES AND DREW THE ATTENTION OF THE BENCH TO PAGE 111 OF THE PAPER BOOK, WHERE THE PROPOSAL THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE ACT, BY THE LD. CIT(E) INVOKING POWERS U/S 2 63 OF THE ACT WAS MADE BY DCIT(E), CIRCLE 1(1), KOLKATA. HE SUBMITTED THAT THE ASSESSING OFFICER CANNOT PROPOSE REVISION OF AN ORDER U/S 263 OF THE ACT AND THE JURISDICTION HAS TO ORIGINATE FROM THE COMMISSIONER OF INCOME TAX, AFTER HE EXAMINES THE RECORD AND PROCEEDINGS UNDER THE ACT. HE RELIED ON THE JUDGMENT OF THE KOLKATA C BENCH OF THE TRIBUNAL IN THE CASE OF M/S. RUPAYAN UDYOG VS. PR. CIT IN ITA NO. 1073/KOL/2012; ASSESSMENT YEAR 2005 - 06, ORDER DT. 28/11/2018 THE PROPOSITION THAT INVOCATION OF REVISIONARY JURISDICTION ON A PROPOSAL THE ASSESSING OFFICER, IS BAD IN LAW. ON MERITS, HE SUBMITTED THAT THE CBDT VIDE ITS CIRCULAR NO. 6/2006 DT. 19/02/2020, NOTIFICATION NO. F. NO. 197/55/2018 -ITA- 1, AUTHORIZING THE COMMISSIONER OF INCOME TAX TO ADMIT BELATED APPLICATIONS FOR CONDONATION OF DELAY IN FILING OF THE RETURN OF INCOME U/S 119(2)(B) OF THE ACT AND DECIDE THE SAME ON MERITS. HE POINTED OUT THAT THE LD. CIT(E) HAD CONDONED THE DELAY IN FILING OF FROM NO. 10 FOR THE ASSESSMENT 16 & 2016 - 17, U/S 119(2)(B) OF THE ACT. HE FURTHER POINTED OUT THAT APPROVAL U/S 10(23C)(VI) OF THE ACT WAS GRANTED ON 27/09/2016. HE TOOK THIS BENCH THROUGH THE ORDER OF THE ASSESSING OFFICER PASSED U/S 143(3) OF THE ACT, DT. 31/10/2018 AND SUBMITTED THAT ALL ASPECTS HAVE BEEN CONSIDERED BY THE ASSESSING OFFICER AND A BY TAKING A POSSIBLE VIEW AND UNDER THESE CI RCUMSTANCES, THE LD. CIT(E) WAS WRONG IN EXERCISING HIS JURISD ICTION U/S 263 OF THE ACT. HE POINTED OUT THAT THE ASSESSING OFFICER HAS TAKEN A P OSSIBLE VIEW AFTER DETAILED ENQUIRY AND ON BEING AND EVIDENCES SUBMITTED BY THE ASSESSEE, WHICH ARE EVIDENT FROM THE COPY OF THE ORDER SHEET ENTRIE S AND CASE RECORDS. HE RELIED ON A NUMBER OF CASE ITA NO. 2643/KOL/2019 ASSESSMENT YEAR: 2016-17 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE THE ACTION OF THE A.O. IN ALLOWING ACCUMULATION U/S 11 (2) IN THE CASE OF A LATE RETURN IS CLEARLY ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THE PROPER REMEDY, IF AT ALL, AVAILABLE TO LAY IN FILING OF RETURN OF IN THE ABSENCE OF CONDONATION OF DELAY IN FILING OF RETURN OF INCOME. THE CLAIM OF EXEMPTION U/S 11(2) CANNOT BE ALLOWED IN THE FACTS OF THE PRESENT CASE. THE DICIAL TO THE REVENUE. THE A.O. IS ACCORDINGLY DIRECTED TO COMPUTE THE INCOME WITHOUT ALLOWING THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ORDER PASSED U/S 263 OF THE ED A PAPER BOOK RUNNING INTO 166 PAGES AND DREW THE ATTENTION OF THE BENCH TO PAGE 111 OF THE PAPER BOOK, WHERE THE PROPOSAL THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE 63 OF THE ACT WAS MADE BY DCIT(E), CIRCLE - 1(1), KOLKATA. HE SUBMITTED THAT THE ASSESSING OFFICER CANNOT PROPOSE REVISION OF AN ORDER U/S 263 OF THE ACT AND THE JURISDICTION HAS TO ORIGINATE FROM THE COMMISSIONER OF AND PROCEEDINGS UNDER THE ACT. HE RELIED ON M/S. RUPAYAN UDYOG 06, ORDER DT. 28/11/2018 , FOR PROPOSAL TO DO SO MADE ON MERITS, HE SUBMITTED THAT THE CBDT VIDE ITS CIRCULAR NO. 6/2006 DT. 1, AUTHORIZING THE COMMISSIONER OF INCOME TAX TO ADMIT BELATED APPLICATIONS FOR CONDONATION OF DELAY IN FILING OF THE RETURN OF INCOME U/S 119(2)(B) OF THE ACT AND DECIDE THE SAME ON MERITS. HE POINTED OUT FILING OF FROM NO. 10 FOR THE ASSESSMENT 17, U/S 119(2)(B) OF THE ACT. HE FURTHER POINTED OUT THAT APPROVAL U/S 10(23C)(VI) OF THE ACT WAS GRANTED ON 27/09/2016. HE TOOK THIS BENCH PASSED U/S 143(3) OF THE ACT, DT. 31/10/2018 AND SUBMITTED THAT ALL ASPECTS HAVE BEEN CONSIDERED BY THE ASSESSING OFFICER AND A RCUMSTANCES, THE LD. ICTION U/S 263 OF THE ACT. HE POINTED OUT THAT VIEW AFTER DETAILED ENQUIRY AND ON BEING THE ASSESSEE, WHICH ARE EVIDENT S AND CASE RECORDS. HE RELIED ON A NUMBER OF CASE - LAW FOR THE PROPOSITIONS THAT NOT PERMISSIBLE. WE WOULD REFER TO THESE AS AND WHEN NECESSARY. 5. THE LD. CIT D/R, SHRI RAM BI CONTENTIONS OF THE LD. A/R AND SUBMITTED THAT THERE WAS A DELAY IN FILING OF THE INCOME AND THIS HAS NOT BEEN CONDONED BY THE LD. CIT(E), AS THE CIRCULAR NO. 6/2020 ISSUED BY THE CBDT TO CONDONE THE DELA SUBMITS THAT THIS LEGAL ISSUE EXAMINED BY THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT U/S 143(3) OF THE ACT ON 31/10/2018 WHICH IS AN ERROR, WHI HE POINTED OUT THAT THE TWIN CONDITIONS THAT I.E., (A) RETURN OF INCOME HAS TO BE FILED IN TIME AND (B) THE CLAIM HAS TO BE MADE BY FILING FORM NO. 10, HAVE TO BE SATISFIED FOR CLAIMING EXEMPTION. HE ARGUED T LD. CIT(E) WAS FORCED TO REVISE THE ORDER U/S 263 OF THE ACT. ON THE LEGAL ARGUMENTS RAISED BY THE ASSESSEE, THE LD. D/R SUBMITTED THAT INFORMATION CAN BE GATHERED FROM ANY SOURCE BY THE COMMISSIONER RECOMMENDED WAS ONLY INFORMATION BUT THE POWERS WERE EXERCISED BY THE LD. CIT(E) 263 OF THE ACT BY APPLICATION OF MIND. HE DISTINGUISHED COUNSEL FOR THE ASSESSEE. 6. IN REPLY, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ORIGINAL RETURN OF INCOME WAS IN FACT FILED WERE LD. D/R TO ARGUE OTHERWISE. HE POINTED OUT THAT THE REVISED RETURN WAS FILE THE LD. CIT(E) CONDONED THE DELAY IN FILING OF THE FORM NO. 10 ON 20/11/2017, AS IT COULD NOT HAVE BEEN DONE EARLIER. 7. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: 8. WE FIRST TAKE UP THE LEGAL ISSUE. THE ASSESSING OFFICER ON 25/04/2019, MADE THE FOLLOWING PROPOSALS:- IN THIS CASE THE RETURN FOR THE A.Y I.T. ACT, 1961 ON A TOTAL INCOME OF RS. NIL ON 31.10.2018. LATER IT WAS REVEALED THAT THE ASSESSEE CLAIMED SET APART OF FUND U/S. 11 (2) OF THE ACT FOR AN AMOUNT OF RS. 17,04,30,176/ NOT SUBMITTED ONLINE WITHIN T 4 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE THAT , UNDER SUCH CIRCUMSTANCES, REVISION U/S 263 OF THE ACT IS WE WOULD REFER TO THESE AS AND WHEN NECESSARY. HE PRAYED FOR RELIE THE LD. CIT D/R, SHRI RAM BI LASH MEENA, ON THE OTHER HAND, OPPOSED THE AND SUBMITTED THAT THERE WAS A DELAY IN FILING OF THE INCOME AND THIS HAS NOT BEEN CONDONED BY THE LD. CIT(E), AS THE CIRCULAR NO. 6/2020 ISSUED BY THE CBDT TO CONDONE THE DELA Y, WAS ISSUED MUCH LATER ON 19/02/2020. SUBMITS THAT THIS LEGAL ISSUE OF APPLICABILITY OF SECTION 13(9) OF THE ACT, EXAMINED BY THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT U/S 143(3) OF THE WHICH IS AN ERROR, WHI CH CAUSED PREJUDICE TO THE INTEREST OF REVENUE HE POINTED OUT THAT THE TWIN CONDITIONS THAT I.E., (A) RETURN OF INCOME HAS TO BE FILED IN TIME AND (B) THE CLAIM HAS TO BE MADE BY FILING FORM NO. 10, HAVE TO BE SATISFIED FOR ARGUED T HAT THE FIRST CONDITION WAS NOT SATISFIED AND HENCE THE LD. CIT(E) WAS FORCED TO REVISE THE ORDER U/S 263 OF THE ACT. ON THE LEGAL ARGUMENTS RAISED BY THE ASSESSEE, THE LD. D/R SUBMITTED THAT INFORMATION CAN BE GATHERED FROM ANY SOURCE BY THE COMMISSIONER OF INCOME TAX AND WHAT THE ASSESSING OFFICER RECOMMENDED WAS ONLY INFORMATION BUT THE POWERS WERE EXERCISED BY THE LD. CIT(E) BY APPLICATION OF MIND. HE DISTINGUISHED ALL THE CASE- LAW CITED BY THE LD. REPLY, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ORIGINAL RETURN OF WERE IN TIME I.E., ON 20/10/2016 AND IT WAS WRONG ON PART OF THE LD. D/R TO ARGUE OTHERWISE. HE POINTED OUT THAT THE REVISED RETURN WAS FILE THE LD. CIT(E) CONDONED THE DELAY IN FILING OF THE FORM NO. 10 ON 20/11/2017, AS IT COULD WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL 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 ISSUE. THE ASSESSING OFFICER ON 25/04/2019, MADE THE IN THIS CASE THE RETURN FOR THE A.Y -2016- 17 WAS ASSESSED U/S. 143(3) O I.T. ACT, 1961 ON A TOTAL INCOME OF RS. NIL ON 31.10.2018. LATER IT WAS REVEALED THAT THE ASSESSEE CLAIMED SET APART OF FUND U/S. 11 (2) OF THE ACT FOR AN AMOUNT OF RS. 17,04,30,176/ - . HOWEVER, THE REQUISITE FORM NOT SUBMITTED ONLINE WITHIN T HE DUE DATE I.E. 17.10.2016. ITA NO. 2643/KOL/2019 ASSESSMENT YEAR: 2016-17 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE REVISION U/S 263 OF THE ACT IS HE PRAYED FOR RELIE F. LASH MEENA, ON THE OTHER HAND, OPPOSED THE AND SUBMITTED THAT THERE WAS A DELAY IN FILING OF THE RETURN OF INCOME AND THIS HAS NOT BEEN CONDONED BY THE LD. CIT(E), AS THE CIRCULAR NO. 6/2020 Y, WAS ISSUED MUCH LATER ON 19/02/2020. HE OF APPLICABILITY OF SECTION 13(9) OF THE ACT, HAS NOT BEEN EXAMINED BY THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT U/S 143(3) OF THE CH CAUSED PREJUDICE TO THE INTEREST OF REVENUE . HE POINTED OUT THAT THE TWIN CONDITIONS THAT I.E., (A) RETURN OF INCOME HAS TO BE FILED IN TIME AND (B) THE CLAIM HAS TO BE MADE BY FILING FORM NO. 10, HAVE TO BE SATISFIED FOR HAT THE FIRST CONDITION WAS NOT SATISFIED AND HENCE THE LD. CIT(E) WAS FORCED TO REVISE THE ORDER U/S 263 OF THE ACT. ON THE LEGAL ARGUMENTS RAISED BY THE ASSESSEE, THE LD. D/R SUBMITTED THAT INFORMATION CAN BE GATHERED FROM ANY OF INCOME TAX AND WHAT THE ASSESSING OFFICER RECOMMENDED WAS ONLY INFORMATION BUT THE POWERS WERE EXERCISED BY THE LD. CIT(E) U/S LAW CITED BY THE LD. REPLY, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ORIGINAL RETURN OF IN TIME I.E., ON 20/10/2016 AND IT WAS WRONG ON PART OF THE LD. D/R TO ARGUE OTHERWISE. HE POINTED OUT THAT THE REVISED RETURN WAS FILE D ONLY AFTER THE LD. CIT(E) CONDONED THE DELAY IN FILING OF THE FORM NO. 10 ON 20/11/2017, AS IT COULD WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND ORDERS OF THE AUTHORITIES WE FIRST TAKE UP THE LEGAL ISSUE. THE ASSESSING OFFICER ON 25/04/2019, MADE THE 17 WAS ASSESSED U/S. 143(3) O F THE LATER IT WAS REVEALED THAT THE ASSESSEE CLAIMED SET APART OF FUND U/S. 11 (2) . HOWEVER, THE REQUISITE FORM -10 WAS IN THIS CASE THE DELAY IN FILING FORM CIT(EXEMPTION), KOLKATA VIDE HIS ORDER DATED 20.11.2017. HOWEVER, AS PER PROVISIONS OF SECTION 13(9) OF THE ACT BOTH THE RETURN OF INCOME AND FORM REQUIRED TO BE SUBMITTED ON OR BEFORE THE DUE DATE OF FILING RETURN AS PRESCRIBED U/S 139(1) OF THE ACT. IN THE INSTANT CASE, THE DELAY IN FILING FORM LD. CIT, THE DELAY IN FILING RETURN OF INCOME STANDS LATE. HENCE THE ASSESSEE IS NOT ELIGIBLE FOR THE BENEFIT OF EXEMPTION U/S. 11(2) OF THE ACT. IN VIEW OF THE ABOVE, IT IS EVIDENT THAT THE ORDER PASSED U/S. 143(3) OF THE ACT AS ABOVE IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE AS PER SECTION 13 (9) OF THE ACT. UNDER THE CIRCUMSTANCES I REQUEST YOUR HONOUR TO KINDLY INITIATE PROCEEDING U/S. 263 OF THE ACT, 1961 FOR REVISING THE AFORESAID ORDER PASSED U/S. 143(3) OF THE ACT. 8.1. THE LD. CIT(E) INITIATED PROCEEDINGS U/S 263 OF THE ACT BASED ON THIS PROPOSAL. THE ISSUE IS WHETHER SUCH INITIATION OF PROCEEDINGS IS VALID IN LAW. 8.2. THE KOLKATA C BENCH OF THE TRIBUNAL IN THE CASE OF HAS HELD AS FOLLOWS:- SO FROM A BARE READING OF SEC. 263 OF THE ACT REVEALS THAT THE COMMISSIONER MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING UNDER THE ACT AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE AO IS ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTERES AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE PASS ORDERS AS PRESCRIBED UNDER THE ACT. SO, THE POWER VESTED IN THE CIT IS THAT OF REVISIONAL JURISDICTION TO INTERFERE WITH THE ORDER OF AO, IF IT IS ERRONEOUS IN SO FAR AS EXERCISE THE REVISIONAL JURISDICTION IS VESTED ONLY WITH THE PR. COMMISSIONER/COMMISSIONER IF HE CONSIDERS THE ORDER OF THE AO TO BE ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THEREFORE, THIS POWER IS VESTED WITH THE PR. CIT/CIT TO EXERCISE REVISIONAL JURISDICTION IS ONLY WHEN HE CONSIDERS THAT THE ORDER PASSED BY THE AO IS ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND THAT POWER CANNOT BE USURPED BY THE REVISIONAL JURISDICTION VESTED WITH THE CIT AS PER THE SCHEME OF THE ACT WHICH GIVES VARIOUS POWER TO VARIOUS AUTHORITIES TO EXERCISE AND THEY HAVE TO EXERCISE POWERS IN THEIR RESPECTIVE GIVEN SPHERE WHICH IS CLEARLY EAR THE AO WHO IS EMPOWERED BY THE ACT TO ASSESS A SUBJECT WITHIN A PRESCRIBED TIME PERIOD HAS FIRST ASSESSED THE ASSESSEE AND LATER AFTER PASSAGE OF TIME HAS TAKEN UP A PROPOSAL WITH THE CIT TO EXERCISE HIS REVISIONAL WHEN IN THE FIRST PLACE THE AO NOTICING THAT HE FAILED TO PROPERLY ENQUIRE BEFORE ASSESSING THE ASSESSEE WITHIN THE TIME LIMIT PRESCRIBED BY THE STATUTE CANNOT BE ALLOWED TO GET FRESH INNINGS T O REASSESS BECAUSE IT WAS HIS DUTY TO ENQUIRE PROPERLY WITHIN THE TIME LIMIT PRESCRIBED BY THE STATUTE. THEREFORE, THE VERY INVOCATION OF REVISIONAL JURISDICTION ON THE PROPOSAL OF THE AO ITSELF IS BAD IN LAW AND FOR COMING TO SUCH A DECISION WE RELY ON TH THE CASE OF SHANTAI EXIM LTD. VS. CIT (2017) 88 TAXMANN.COM 361 (AHD. TRIB.) AND THE DECISION OF ITAT, MUMBAI BENCH IN THE CASE OF ASHOK KUMAR SHIVPURI VS. CIT FOR AY 2008 DATED 07.11.2014. THEREFORE, WE FIND MERIT IN THE C VERY USURPATION OF JURISDICTION U/S. 263 OF THE ACT BY THE CIT. THEREFORE, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. SIMILAR VIEW WAS TAKEN BY TH M/S. LUXMI TOWNSHIP & HOLDING LTD. VS. CIT; ITA NO. 468/KOL/2019; ASSESSMENT YEAR 2014 5 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE IN THIS CASE THE DELAY IN FILING FORM - 10 WAS CONDONED BY LD. CIT(EXEMPTION), KOLKATA VIDE HIS ORDER DATED 20.11.2017. HOWEVER, AS PER PROVISIONS OF SECTION 13(9) OF THE ACT BOTH THE RETURN OF INCOME AND FORM BE SUBMITTED ON OR BEFORE THE DUE DATE OF FILING RETURN AS PRESCRIBED U/S IN THE INSTANT CASE, THE DELAY IN FILING FORM - 10 THOUGH WAS CONDONED BY THE LD. CIT, THE DELAY IN FILING RETURN OF INCOME STANDS LATE. HENCE THE ASSESSEE IS NOT ELIGIBLE FOR THE BENEFIT OF EXEMPTION U/S. 11(2) OF THE ACT. IN VIEW OF THE ABOVE, IT IS EVIDENT THAT THE ORDER PASSED U/S. 143(3) OF THE ACT AS ABOVE IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE AS PER SECTION 13 (9) OF THE ACT. UNDER THE CIRCUMSTANCES I REQUEST YOUR HONOUR TO KINDLY INITIATE PROCEEDING U/S. 263 OF THE ACT, 1961 FOR REVISING THE AFORESAID ORDER PASSED U/S. 143(3) OF THE THE LD. CIT(E) INITIATED PROCEEDINGS U/S 263 OF THE ACT BASED ON THIS PROPOSAL. THE ISSUE IS WHETHER SUCH INITIATION OF PROCEEDINGS IS VALID IN LAW. THE KOLKATA C BENCH OF THE TRIBUNAL IN THE CASE OF M/S. RUPAYAN UDYOG (SUPRA) SO FROM A BARE READING OF SEC. 263 OF THE ACT REVEALS THAT THE COMMISSIONER MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING UNDER THE ACT AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE AO IS ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTERES T OF THE REVENUE, HE MAY AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE PASS ORDERS AS PRESCRIBED UNDER THE ACT. SO, THE POWER VESTED IN THE CIT IS THAT OF REVISIONAL JURISDICTION TO INTERFERE WITH THE ORDER OF AO, IF IT IS ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE REVENUE AND, THEREFORE, THE POWER TO EXERCISE THE REVISIONAL JURISDICTION IS VESTED ONLY WITH THE PR. COMMISSIONER/COMMISSIONER IF HE CONSIDERS THE ORDER OF THE AO TO BE ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF THE THEREFORE, THIS POWER IS VESTED WITH THE PR. CIT/CIT TO EXERCISE REVISIONAL JURISDICTION IS ONLY WHEN HE CONSIDERS THAT THE ORDER PASSED BY THE AO IS ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND THAT POWER CANNOT BE USURPED BY THE AO TO TRIGGER THE REVISIONAL JURISDICTION VESTED WITH THE CIT AS PER THE SCHEME OF THE ACT WHICH GIVES VARIOUS POWER TO VARIOUS AUTHORITIES TO EXERCISE AND THEY HAVE TO EXERCISE POWERS IN THEIR RESPECTIVE GIVEN SPHERE WHICH IS CLEARLY EAR -MARKED AND SPELLE D OUT BY THE STATUTE. HERE, WE NOTE THAT THE AO WHO IS EMPOWERED BY THE ACT TO ASSESS A SUBJECT WITHIN A PRESCRIBED TIME PERIOD HAS FIRST ASSESSED THE ASSESSEE AND LATER AFTER PASSAGE OF TIME HAS TAKEN UP A PROPOSAL WITH THE CIT TO EXERCISE HIS REVISIONAL JURISDICTION CANNOT BE COUNTENANCED FOR THE SIMPLE REASON THAT WHEN IN THE FIRST PLACE THE AO NOTICING THAT HE FAILED TO PROPERLY ENQUIRE BEFORE ASSESSING THE ASSESSEE WITHIN THE TIME LIMIT PRESCRIBED BY THE STATUTE CANNOT BE ALLOWED TO GET FRESH INNINGS O REASSESS BECAUSE IT WAS HIS DUTY TO ENQUIRE PROPERLY WITHIN THE TIME LIMIT PRESCRIBED BY THE STATUTE. THEREFORE, THE VERY INVOCATION OF REVISIONAL JURISDICTION ON THE PROPOSAL OF THE AO ITSELF IS BAD IN LAW AND FOR COMING TO SUCH A DECISION WE RELY ON TH E DECISION OF THE TRIBUNAL IN THE CASE OF SHANTAI EXIM LTD. VS. CIT (2017) 88 TAXMANN.COM 361 (AHD. TRIB.) AND THE DECISION OF ITAT, MUMBAI BENCH IN THE CASE OF ASHOK KUMAR SHIVPURI VS. CIT FOR AY 2008 DATED 07.11.2014. THEREFORE, WE FIND MERIT IN THE C ONTENTION OF THE LD. AR AND WE QUASH THE VERY USURPATION OF JURISDICTION U/S. 263 OF THE ACT BY THE CIT. THEREFORE, THE APPEAL FILED BY THE SIMILAR VIEW WAS TAKEN BY TH E KOLKATA BENCH OF THE TRIBUNAL IN THE FOLLOWING CASES: LUXMI TOWNSHIP & HOLDING LTD. VS. CIT; ITA NO. 468/KOL/2019; ASSESSMENT YEAR 2014 -15, ORDER DT. 2014-15. ITA NO. 2643/KOL/2019 ASSESSMENT YEAR: 2016-17 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE 10 WAS CONDONED BY LD. CIT(EXEMPTION), KOLKATA VIDE HIS ORDER DATED 20.11.2017. HOWEVER, AS PER PROVISIONS OF SECTION 13(9) OF THE ACT BOTH THE RETURN OF INCOME AND FORM -10 ARE BE SUBMITTED ON OR BEFORE THE DUE DATE OF FILING RETURN AS PRESCRIBED U/S 10 THOUGH WAS CONDONED BY THE LD. CIT, THE DELAY IN FILING RETURN OF INCOME STANDS LATE. HENCE THE ASSESSEE IS NOT IN VIEW OF THE ABOVE, IT IS EVIDENT THAT THE ORDER PASSED U/S. 143(3) OF THE ACT AS ABOVE IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE AS UNDER THE CIRCUMSTANCES I REQUEST YOUR HONOUR TO KINDLY INITIATE PROCEEDING U/S. 263 OF THE ACT, 1961 FOR REVISING THE AFORESAID ORDER PASSED U/S. 143(3) OF THE THE LD. CIT(E) INITIATED PROCEEDINGS U/S 263 OF THE ACT BASED ON THIS PROPOSAL. M/S. RUPAYAN UDYOG (SUPRA) SO FROM A BARE READING OF SEC. 263 OF THE ACT REVEALS THAT THE COMMISSIONER MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING UNDER THE ACT AND IF HE CONSIDERS THAT ANY ORDER PASSED T OF THE REVENUE, HE MAY AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE PASS ORDERS AS PRESCRIBED UNDER THE ACT. SO, THE POWER VESTED IN THE CIT IS THAT OF REVISIONAL JURISDICTION TO INTERFERE WITH THE ORDER PREJUDICIAL TO THE REVENUE AND, THEREFORE, THE POWER TO EXERCISE THE REVISIONAL JURISDICTION IS VESTED ONLY WITH THE PR. COMMISSIONER/COMMISSIONER IF HE CONSIDERS THE ORDER OF THE AO TO BE ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF THE THEREFORE, THIS POWER IS VESTED WITH THE PR. CIT/CIT TO EXERCISE REVISIONAL JURISDICTION IS ONLY WHEN HE CONSIDERS THAT THE ORDER PASSED BY THE AO IS ERRONEOUS IN SO FAR AS PREJUDICIAL AO TO TRIGGER THE REVISIONAL JURISDICTION VESTED WITH THE CIT AS PER THE SCHEME OF THE ACT WHICH GIVES VARIOUS POWER TO VARIOUS AUTHORITIES TO EXERCISE AND THEY HAVE TO EXERCISE POWERS IN THEIR RESPECTIVE D OUT BY THE STATUTE. HERE, WE NOTE THAT THE AO WHO IS EMPOWERED BY THE ACT TO ASSESS A SUBJECT WITHIN A PRESCRIBED TIME PERIOD HAS FIRST ASSESSED THE ASSESSEE AND LATER AFTER PASSAGE OF TIME HAS TAKEN UP A PROPOSAL WITH THE JURISDICTION CANNOT BE COUNTENANCED FOR THE SIMPLE REASON THAT WHEN IN THE FIRST PLACE THE AO NOTICING THAT HE FAILED TO PROPERLY ENQUIRE BEFORE ASSESSING THE ASSESSEE WITHIN THE TIME LIMIT PRESCRIBED BY THE STATUTE CANNOT BE ALLOWED TO GET FRESH INNINGS O REASSESS BECAUSE IT WAS HIS DUTY TO ENQUIRE PROPERLY WITHIN THE TIME LIMIT PRESCRIBED BY THE STATUTE. THEREFORE, THE VERY INVOCATION OF REVISIONAL JURISDICTION ON THE PROPOSAL OF THE AO E DECISION OF THE TRIBUNAL IN THE CASE OF SHANTAI EXIM LTD. VS. CIT (2017) 88 TAXMANN.COM 361 (AHD. TRIB.) AND THE DECISION OF ITAT, MUMBAI BENCH IN THE CASE OF ASHOK KUMAR SHIVPURI VS. CIT FOR AY 2008 -09 ONTENTION OF THE LD. AR AND WE QUASH THE VERY USURPATION OF JURISDICTION U/S. 263 OF THE ACT BY THE CIT. THEREFORE, THE APPEAL FILED BY THE E KOLKATA BENCH OF THE TRIBUNAL IN THE FOLLOWING CASES: - LUXMI TOWNSHIP & HOLDING LTD. VS. CIT; ITA NO. 468/KOL/2019; BANGIYA GRAMIN VIKASH BANK VS. PR. CIT IN ITA NO. 877/KOL/2015, ASSESSMENT YEAR 2010 AMBO AGRO PRODUCTS LTD. VS. PR. CIT, YEAR 2009- 10, ORDER DT. 19/05/2017. 9. APPLYING THE PROPOSITION OF LAW LAID DOWN IN THIS REGARD ABOVE, TO THE FACTS OF THE CASE ON HAND, WE HAVE TO HOLD THAT THE ORDER PASSED U/S 263 OF THE ACT IS BAD IN LAW FOR THE REASON THAT, THE JURISDICTION BY THE LD. CIT(E) BASED ON THE PROPOSALS OF THE ASSESSING OFFICER. THIS IS NOT PERMISSIBLE IN LAW. 10. WE NOW COME TO THE MERITS OF THE CASE. SECTION 11(2) OF THE ACT READS AS FOLLOWS: [(2) 99 [WHERE 1 [EIGHTY - (B) OF SUB- SECTION (1) READ WITH THE EXPLANATION TO NOT DEEMED TO HAVE BEEN APPLIED, TO CHARITABLE OR RELIGIOUS PURPOSES IN INDIA DURING THE PREVIOUS YEAR BUT IS ACCUMULATED OR SET APART, EITHER IN WHOLE OR IN PART, FOR APPLICATION TO SUCH PURPOSES IN INDIA, SUCH INCOM NOT BE INCLUDED IN THE TOTAL INCOME OF THE PREVIOUS YEAR OF THE PERSON IN RECEIPT OF THE INCOME, PROVIDED THE FOLLOWING CONDITIONS ARE COMPLIED WITH, NAMELY: 2 [(A) SUCH PERSON FURNIS MANNER 4 TO THE ASSESSING OFFICER, STATING THE PURPOSE FOR WHICH THE INCOME IS BEING ACCUMULATED OR SET APART AND THE PERIOD FO SET APART, WHICH SHALL IN NO CASE EXCEED FIVE YEARS; (B) THE MONEY SO ACCUMULATED SPECIFIED IN SUB (C) THE STATEMENT REFERRED TO IN CLAUSE (A) IS FURNISHED ON OR BEFORE THE DUE DATE SPECIFIED UNDER SUB - YEAR: PROVIDED THAT IN COMPUTING THE PERIOD OF FIVE YEARS REFERRED TO IN PERIOD DURING WHICH THE INCOME COULD NOT BE APPLIED FOR THE PURPOSE FOR WHICH IT IS SO ACCUMULATED OR SET APART, DUE TO AN ORDER OR INJUNCTION OF ANY COURT, SHALL BE EXCLUDED.] 5 [EXPLANATION. ANY AMOUNT CR OR CLAUSE (B) OF SUB- SECTION (1), READ WITH THE EXPLANATION TO THAT SUB NOT APPLIED, BUT IS ACCUMULATED OR SET APART, TO ANY TRUST OR INSTITUTION REGISTERED UNDER SECTION 12AA OR TO EDUCATIONAL INSTITUTION OR ANY HOSPITAL OR OTHER MEDICAL INSTITUTION REFERRED TO IN SUB CLAUSE (IV) OR SUB- CLAUSE (V) OR SUB 6 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE BANGIYA GRAMIN VIKASH BANK VS. PR. CIT IN ITA NO. 877/KOL/2015, ASSESSMENT YEAR 2010 -11, ORDER DT. 12/05/2017. AMBO AGRO PRODUCTS LTD. VS. PR. CIT, IN ITA NO. 676/KOL/2016, ASSESSMENT 10, ORDER DT. 19/05/2017. APPLYING THE PROPOSITION OF LAW LAID DOWN IN THIS REGARD IN THE CASE LAW REFERRED TO THE FACTS OF THE CASE ON HAND, WE HAVE TO HOLD THAT THE ORDER PASSED U/S 263 OF IS BAD IN LAW FOR THE REASON THAT, THE JURISDICTION U/S 263 OF THE ACT, BY THE LD. CIT(E) BASED ON THE PROPOSALS OF THE ASSESSING OFFICER. THIS IS NOT PERMISSIBLE WE NOW COME TO THE MERITS OF THE CASE. SECTION 11(2) OF THE ACT READS AS FOLLOWS: - - FIVE] PER CENT OF THE INCOME REFERRED TO IN CLAUSE (A) OR CLAUSE SECTION (1) READ WITH THE EXPLANATION TO THAT SUB- SECTION IS NOT APPLIED, OR IS NOT DEEMED TO HAVE BEEN APPLIED, TO CHARITABLE OR RELIGIOUS PURPOSES IN INDIA DURING THE PREVIOUS YEAR BUT IS ACCUMULATED OR SET APART, EITHER IN WHOLE OR IN PART, FOR APPLICATION TO SUCH PURPOSES IN INDIA, SUCH INCOM E SO ACCUMULATED OR SET APART SHALL NOT BE INCLUDED IN THE TOTAL INCOME OF THE PREVIOUS YEAR OF THE PERSON IN RECEIPT OF THE INCOME, PROVIDED THE FOLLOWING CONDITIONS ARE COMPLIED WITH, NAMELY: SUCH PERSON FURNIS HES A STATEMENT IN THE PRESCRIBED FORM AND IN THE PRESCRIBED TO THE ASSESSING OFFICER, STATING THE PURPOSE FOR WHICH THE INCOME IS BEING ACCUMULATED OR SET APART AND THE PERIOD FO R WHICH THE INCOME IS TO BE ACCUMULATED OR SET APART, WHICH SHALL IN NO CASE EXCEED FIVE YEARS; THE MONEY SO ACCUMULATED 4 OR SET APART IS INVESTED OR DEPOSITED IN THE FORMS OR MODES SPECIFIED IN SUB -SECTION (5); THE STATEMENT REFERRED TO IN CLAUSE (A) IS FURNISHED ON OR BEFORE THE DUE DATE SPECIFIED - SECTION (1) OF SECTION 139 FOR FURNISHING THE RETURN OF INCOME FOR THE PREVIOUS THAT IN COMPUTING THE PERIOD OF FIVE YEARS REFERRED TO IN PERIOD DURING WHICH THE INCOME COULD NOT BE APPLIED FOR THE PURPOSE FOR WHICH IT IS SO ACCUMULATED OR SET APART, DUE TO AN ORDER OR INJUNCTION OF ANY COURT, SHALL BE ANY AMOUNT CR EDITED OR PAID, OUT OF INCOME REFERRED TO IN CLAUSE (A) SECTION (1), READ WITH THE EXPLANATION TO THAT SUB - SECTION, WHICH IS NOT APPLIED, BUT IS ACCUMULATED OR SET APART, TO ANY TRUST OR INSTITUTION REGISTERED UNDER SECTION 12AA OR TO ANY FUND OR INSTITUTION OR TRUST OR ANY UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION OR ANY HOSPITAL OR OTHER MEDICAL INSTITUTION REFERRED TO IN SUB CLAUSE (V) OR SUB -CLAUSE (VI) OR SUB- CLAUSE (VIA) OF CLAUSE (23C) OF ITA NO. 2643/KOL/2019 ASSESSMENT YEAR: 2016-17 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE BANGIYA GRAMIN VIKASH BANK VS. PR. CIT IN ITA NO. 877/KOL/2015, IN ITA NO. 676/KOL/2016, ASSESSMENT IN THE CASE LAW REFERRED TO THE FACTS OF THE CASE ON HAND, WE HAVE TO HOLD THAT THE ORDER PASSED U/S 263 OF U/S 263 OF THE ACT, WAS INVOKED BY THE LD. CIT(E) BASED ON THE PROPOSALS OF THE ASSESSING OFFICER. THIS IS NOT PERMISSIBLE FIVE] PER CENT OF THE INCOME REFERRED TO IN CLAUSE (A) OR CLAUSE SECTION IS NOT APPLIED, OR IS NOT DEEMED TO HAVE BEEN APPLIED, TO CHARITABLE OR RELIGIOUS PURPOSES IN INDIA DURING THE PREVIOUS YEAR BUT IS ACCUMULATED OR SET APART, EITHER IN WHOLE OR IN PART, FOR E SO ACCUMULATED OR SET APART SHALL NOT BE INCLUDED IN THE TOTAL INCOME OF THE PREVIOUS YEAR OF THE PERSON IN RECEIPT OF THE ] HES A STATEMENT IN THE PRESCRIBED FORM AND IN THE PRESCRIBED 3 TO THE ASSESSING OFFICER, STATING THE PURPOSE FOR WHICH THE INCOME IS BEING R WHICH THE INCOME IS TO BE ACCUMULATED OR OR SET APART IS INVESTED OR DEPOSITED IN THE FORMS OR MODES THE STATEMENT REFERRED TO IN CLAUSE (A) IS FURNISHED ON OR BEFORE THE DUE DATE SPECIFIED SECTION (1) OF SECTION 139 FOR FURNISHING THE RETURN OF INCOME FOR THE PREVIOUS THAT IN COMPUTING THE PERIOD OF FIVE YEARS REFERRED TO IN CLAUSE (A), THE PERIOD DURING WHICH THE INCOME COULD NOT BE APPLIED FOR THE PURPOSE FOR WHICH IT IS SO ACCUMULATED OR SET APART, DUE TO AN ORDER OR INJUNCTION OF ANY COURT, SHALL BE EDITED OR PAID, OUT OF INCOME REFERRED TO IN CLAUSE (A) SECTION, WHICH IS NOT APPLIED, BUT IS ACCUMULATED OR SET APART, TO ANY TRUST OR INSTITUTION REGISTERED ANY FUND OR INSTITUTION OR TRUST OR ANY UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION OR ANY HOSPITAL OR OTHER MEDICAL INSTITUTION REFERRED TO IN SUB - CLAUSE (VIA) OF CLAUSE (23C) OF SECTION 10, SHALL N OT BE TREATED AS APPLICATION OF INCOME FOR CHARITABLE OR RELIGIOUS PURPOSES, EITHER DURING THE PERIOD OF ACCUMULATION OR THEREAFTER.] SECTION 13(9) OF THE ACT, READS AS FOLLOWS: [(9) NOTHING CONTAINED IN SUB INCOME FROM THE TOTAL INCOME OF THE PREVIOUS YEAR OF A PERSON IN RECEIPT THEREOF, IF (I) THE STATEMENT REFERRED TO IN CLAUSE (A) OF THE SAID SUB INCOME IS NOT FURNISHED ON OR BEFORE THE DUE DATE SPECIFIED UNDER SUB SECTION 139 (II) THE RETURN OF INCOME FOR THE PREVIOUS YEAR IS NOT FURNISHED BY SUCH PERSON ON OR BEFORE THE DUE DATE SPECIFIED UNDER SUB RETURN OF INCOME FOR THE SAID PREVIOUS YEAR.] 16 [EXPLANATION 1. FOR THE PURPOSES OF ANY OTHER LEGAL OBLIGATION AND FOR THE PURPOSES OF THIS SECTION 'RELATIVE', IN RELATION TO AN INDIVIDUAL, MEANS (I) SPOUSE OF THE INDIVIDUAL; (II) BROTHER OR SISTER OF THE INDIVIDUAL; (III) BROTHER OR (IV) ANY LINEAL ASCENDANT OR DESCENDANT OF THE INDIVIDUAL; (V) ANY LINEAL ASCENDANT OR DESCENDANT OF THE SPOUSE OF THE INDIVIDUAL; (VI) SPOUSE OF A PERSON REFERRED TO IN SUB SUB- CLAUSE (V); (VII) ANY LINEAL DESCENDANT OF A BROTHER OR SISTER OF EITHER THE INDIVIDUAL OR OF THE SPOUSE OF THE INDIVIDUAL.] EXPLANATION 2. A TRUST OR INSTITUTION CREATED OR ESTABLISHED FOR THE BENEFIT OF SCHEDULED CASTES, BACKWA RD CLASSES, SCHEDULED TRIBES OR WOMEN AND CHILDREN SHALL NOT BE DEEMED TO BE A TRUST OR INSTITUTION CREATED OR ESTABLISHED FOR THE BENEFIT OF A RELIGIOUS COMMUNITY OR CASTE WITHIN THE MEANING OF CLAUSE (B) OF SUB EXPLANATION 3. FOR THE PURPOSE SUBSTANTIAL INTEREST IN A CONCERN, (I) IN A CASE WHERE THE CONCERN IS A COMPANY, IF ITS SHARES (NOT BEING SHARES ENTITLED TO A FIXED RATE OF DIVIDEND WHETHER WITH OR WITHOUT A FURTHER RIGHT TO PROFITS) CARRYING NOT LESS THAN TWENTY PER CENT OF THE VOTING POWER ARE, AT ANY TIME DURING THE PREVIOUS YEAR, OWNED BENEFICIALLY BY SUCH PERSON OR PARTLY BY SUCH PERSON AND PARTLY BY ONE OR MORE OF THE OTHER PERSONS REFERRED TO IN SUB (II) IN THE CASE OF ANY OTHER CONCERN, IF SUCH PERSON IS ENTITLED, OR SUCH PERSON AND ONE OR MORE OF THE OTHER PERSONS REFERRED TO IN SUB AGGREGATE, AT ANY TIME DURING THE PREVIOUS YEAR, TO NOT LESS THAN TWENTY PE THE PROFITS OF SUCH CONCERN.] 7 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE OT BE TREATED AS APPLICATION OF INCOME FOR CHARITABLE OR RELIGIOUS PURPOSES, EITHER DURING THE PERIOD OF ACCUMULATION OR THEREAFTER.] SECTION 13(9) OF THE ACT, READS AS FOLLOWS: - [(9) NOTHING CONTAINED IN SUB -SECTION (2) OF SECTION 11 SHALL OPERATE SO AS TO EXCLUDE ANY INCOME FROM THE TOTAL INCOME OF THE PREVIOUS YEAR OF A PERSON IN RECEIPT THEREOF, IF THE STATEMENT REFERRED TO IN CLAUSE (A) OF THE SAID SUB - SECTION IN RESPECT OF SUCH INCOME IS NOT FURNISHED ON OR BEFORE THE DUE DATE SPECIFIED UNDER SUB SECTION 139 FOR FURNISHING THE RETURN OF INCOME FOR THE PREVIOUS YEAR; OR THE RETURN OF INCOME FOR THE PREVIOUS YEAR IS NOT FURNISHED BY SUCH PERSON ON OR BEFORE THE DUE DATE SPECIFIED UNDER SUB -SECTION (1) OF SECTION 139 RETURN OF INCOME FOR THE SAID PREVIOUS YEAR.] FOR THE PURPOSES OF SECTIONS 11 , 12 , 12A AND THIS SECTION, 'TRUST' INCLUDES ANY OTHER LEGAL OBLIGATION AND FOR THE PURPOSES OF THIS SECTION 'RELATIVE', IN RELATION TO AN SPOUSE OF THE INDIVIDUAL; BROTHER OR SISTER OF THE INDIVIDUAL; BROTHER OR SISTER OF THE SPOUSE OF THE INDIVIDUAL; ANY LINEAL ASCENDANT OR DESCENDANT OF THE INDIVIDUAL; ANY LINEAL ASCENDANT OR DESCENDANT OF THE SPOUSE OF THE INDIVIDUAL; SPOUSE OF A PERSON REFERRED TO IN SUB -CLAUSE (II), SUB- CLAUSE (III), CLAUSE (V); ANY LINEAL DESCENDANT OF A BROTHER OR SISTER OF EITHER THE INDIVIDUAL OR OF THE SPOUSE OF THE INDIVIDUAL.] A TRUST OR INSTITUTION CREATED OR ESTABLISHED FOR THE BENEFIT OF SCHEDULED RD CLASSES, SCHEDULED TRIBES OR WOMEN AND CHILDREN SHALL NOT BE DEEMED TO BE A TRUST OR INSTITUTION CREATED OR ESTABLISHED FOR THE BENEFIT OF A RELIGIOUS COMMUNITY OR CASTE WITHIN THE MEANING OF CLAUSE (B) OF SUB -SECTION (1). FOR THE PURPOSE S OF THIS SECTION, A PERSON SHALL BE DEEMED TO HAVE A SUBSTANTIAL INTEREST IN A CONCERN, IN A CASE WHERE THE CONCERN IS A COMPANY, IF ITS SHARES (NOT BEING SHARES ENTITLED TO A FIXED RATE OF DIVIDEND WHETHER WITH OR WITHOUT A FURTHER RIGHT TO PROFITS) CARRYING NOT LESS THAN TWENTY PER CENT OF THE VOTING POWER ARE, AT ANY TIME DURING THE PREVIOUS YEAR, OWNED BENEFICIALLY BY SUCH PERSON OR PARTLY BY SUCH PERSON AND PARTLY BY ONE OR MORE OF THE OTHER PERSONS REFERRED TO IN SUB IN THE CASE OF ANY OTHER CONCERN, IF SUCH PERSON IS ENTITLED, OR SUCH PERSON AND ONE OR MORE OF THE OTHER PERSONS REFERRED TO IN SUB - SECTION (3) ARE ENTITLED IN THE AGGREGATE, AT ANY TIME DURING THE PREVIOUS YEAR, TO NOT LESS THAN TWENTY PE THE PROFITS OF SUCH CONCERN.] ITA NO. 2643/KOL/2019 ASSESSMENT YEAR: 2016-17 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE OT BE TREATED AS APPLICATION OF INCOME FOR CHARITABLE OR RELIGIOUS SHALL OPERATE SO AS TO EXCLUDE ANY INCOME FROM THE TOTAL INCOME OF THE PREVIOUS YEAR OF A PERSON IN RECEIPT THEREOF, IF SECTION IN RESPECT OF SUCH INCOME IS NOT FURNISHED ON OR BEFORE THE DUE DATE SPECIFIED UNDER SUB -SECTION (1) OF FOR FURNISHING THE RETURN OF INCOME FOR THE PREVIOUS YEAR; OR THE RETURN OF INCOME FOR THE PREVIOUS YEAR IS NOT FURNISHED BY SUCH PERSON ON OR SECTION 139 FOR FURNISHING THE AND THIS SECTION, 'TRUST' INCLUDES ANY OTHER LEGAL OBLIGATION AND FOR THE PURPOSES OF THIS SECTION 'RELATIVE', IN RELATION TO AN ANY LINEAL ASCENDANT OR DESCENDANT OF THE SPOUSE OF THE INDIVIDUAL; CLAUSE (III), SUB-CLAUSE (IV) OR ANY LINEAL DESCENDANT OF A BROTHER OR SISTER OF EITHER THE INDIVIDUAL OR OF THE SPOUSE A TRUST OR INSTITUTION CREATED OR ESTABLISHED FOR THE BENEFIT OF SCHEDULED RD CLASSES, SCHEDULED TRIBES OR WOMEN AND CHILDREN SHALL NOT BE DEEMED TO BE A TRUST OR INSTITUTION CREATED OR ESTABLISHED FOR THE BENEFIT OF A RELIGIOUS COMMUNITY OR CASTE S OF THIS SECTION, A PERSON SHALL BE DEEMED TO HAVE A IN A CASE WHERE THE CONCERN IS A COMPANY, IF ITS SHARES (NOT BEING SHARES ENTITLED TO A FIXED RATE OF DIVIDEND WHETHER WITH OR WITHOUT A FURTHER RIGHT TO PARTICIPATE IN PROFITS) CARRYING NOT LESS THAN TWENTY PER CENT OF THE VOTING POWER ARE, AT ANY TIME DURING THE PREVIOUS YEAR, OWNED BENEFICIALLY BY SUCH PERSON OR PARTLY BY SUCH PERSON AND PARTLY BY ONE OR MORE OF THE OTHER PERSONS REFERRED TO IN SUB -SECTION (3); IN THE CASE OF ANY OTHER CONCERN, IF SUCH PERSON IS ENTITLED, OR SUCH PERSON AND ONE OR SECTION (3) ARE ENTITLED IN THE AGGREGATE, AT ANY TIME DURING THE PREVIOUS YEAR, TO NOT LESS THAN TWENTY PE R CENT OF 10.1. WE FIND THAT THE ASSESSING OFFICER IN HIS ORDER PASSED U/S 143(3) OF THE ACT ON 31/10/2018 HAD CONSIDERED EACH AND EVERY ASPECT OF THIS ISSUE. IN FACT, THE RETURN OF INCOME WAS FILED ON 20/10/2016 DECLARING NIL INCOME AND THIS WAS IN TIME. THE ASSESSEE FI LED THE REVISED RETURN OF INCOME ON 29/11/2017 AND THIS WAS SELECTED FOR SCRUTINY. THE LD. CIT(E) WHILE CONDONING THE DELAY IN FILING OF FORM 10 VIDE HIS ORDER DT. 20/11/2017, U/S 119(2)(B) OF THE ACT, WAS AWARE OF ALL THESE CIRCUMSTANCES. AS THE ORIGINAL RETURN WAS FILED IN TIME AND DELAY IN FILING OF FORM 10 CIT(E), WE ARE OF THE VIEW THAT THE TWIN CONDITIONS MENTIONED U/S 13(9) OF THE ACT WAS SATISFIED. IT IS NOT THE CASE OF THE REVENUE THAT THE ORIGINAL RETURN OF INCOME WAS NOT F WITHIN THE DUE DATE OF FILING AS SPECIFIED U/S 139(1) OF THE ACT. THE ASSESSING OFFICER HAS CONSIDERED THE LEGAL POSITION AND HAS TAKEN A POSSIBLE VIEW AFTER APPLICATION OF MIND 11. THIS MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF ADIT(E) (1997) 57 TTJ (MUM)(SMC) 77 UNDER:- 3. AGGRIEVED BY THE SAID ORDER THE ASSESSEE TOOK UP THE MATTER IN APPEAL BEFORE THE DY. CIT(A) AND IT WAS SUBMITTED THAT THE AO WAS NOT JUSTIFIED IN REJECTING THE APPLICATION UNDER S. 154 OF THE ACT AS THE DEFAULT IN FILING FORM NO. 10B ALONG WITH RETURN W AS MERELY A PROCEDURAL FORMALITY. THE LEARNED DY.CIT(A), HOWEVER, HELD THAT THE PRIMA FACIE ADJUSTMENT WAS RIGHTLY DONE IN THE LIGHT OF THE CIRCULAR OFTHE BOARD AS THE ASSESSEE FAILED TO FILE FORM NO. 10B ALONG WITH THE RETURN WHICH WAS MANDATORY. THE ASSE SSEE ALSO CITED THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. HARDEODAS AGARWALLA TRUST (1992) 198 ITR 511 (CAL) AND THE SUBSEQUENT DECISION IN THE CASE OF CIT VS. RAI BAHADUR BISSESSWARLAL MOTILAL MALWASIE TRUST (1992) 195 ITR 825 (CAL) FOR THE PROPOSITION THAT IF THE AUDIT REPORT WAS NOT FILED ALONG WITH THE RETURN OF INCOME, THE RETURN BECAME DEFECTIVE AND THE AO WAS REQUIRED TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO SUBMIT THE AUDIT REPORT AND RECTIFY THE DEFECT BEFORE COMPLETIN G THE ASSESSMENT. RELIANCE WAS ALSO PLACED ON THE DECISION OF THE TRIBUNAL IN THE CASE OF CALCUTTA MANAGEMENT ASSOCIATION VS. ITO (1992) 42 ITD 62 (CAL) WHEREIN THE TRIBUNAL ALLOWED TIME FOR FILING FORM NO. 10B EVEN UPTO THE APPELLATE STAGE. THE LEARNED DY REASONING THAT THE POWER OF CONDONATION OF DELAY IS THE EXCLUSIVE POWER OF THE DIT (EXEMPTION) AND THIS POWER HAS NOT BEEN DELEGATED TO THE APPELLATE AUTHORITIES. THEREFORE, THE ORDER OF THE AO CANNOT BE SAID THE APPEAL OF THE ASSESSEE. 4. THE ASSESSEE IS STILL AGGRIEVED AND HAS COME UP IN APPEAL BEFORE THE TRIBUNAL. SHRI ATUL K. JASANI, THE LEARNED COUNSEL APPEARED FOR THE ASSESSEE AND SHRI V. S. GORE, THE LEARNED DE PARTMENTAL REPRESENTATIVE, APPEARED FOR THE REVENUE. AFTER HEARING BOTH THE PARTIES I AM OF THE VIEW THAT THE AO AS BOUND TO RECTIFY THE ORDER IN THE LIGHT OF THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT CITED ABOVE. SINCE THE HON'BLE CALCUTTA 8 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE WE FIND THAT THE ASSESSING OFFICER IN HIS ORDER PASSED U/S 143(3) OF THE ACT ON 31/10/2018 HAD CONSIDERED EACH AND EVERY ASPECT OF THIS ISSUE. IN FACT, THE RETURN OF INCOME WAS FILED ON 20/10/2016 DECLARING NIL INCOME AND THIS WAS IN TIME. THE LED THE REVISED RETURN OF INCOME ON 29/11/2017 AND THIS WAS SELECTED FOR SCRUTINY. THE LD. CIT(E) WHILE CONDONING THE DELAY IN FILING OF FORM 10 VIDE HIS ORDER DT. 20/11/2017, U/S 119(2)(B) OF THE ACT, WAS AWARE OF ALL THESE CIRCUMSTANCES. AS THE RETURN WAS FILED IN TIME AND DELAY IN FILING OF FORM 10 WAS CONDONED BY THE LD. THAT THE TWIN CONDITIONS MENTIONED U/S 13(9) OF THE ACT WAS IT IS NOT THE CASE OF THE REVENUE THAT THE ORIGINAL RETURN OF INCOME WAS NOT F WITHIN THE DUE DATE OF FILING AS SPECIFIED U/S 139(1) OF THE ACT. THE ASSESSING OFFICER HAS CONSIDERED THE LEGAL POSITION AND HAS TAKEN A POSSIBLE VIEW AFTER APPLICATION OF MIND MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF SWAJAN PARIWAR (1997) 57 TTJ (MUM)(SMC) 77 , WHILE ADJUDICATING AN IDENTICAL ISSUE, 3. AGGRIEVED BY THE SAID ORDER THE ASSESSEE TOOK UP THE MATTER IN APPEAL BEFORE THE DY. CIT(A) AND IT WAS SUBMITTED THAT THE AO WAS NOT JUSTIFIED IN REJECTING THE APPLICATION UNDER S. 154 OF THE ACT AS THE DEFAULT IN FILING FORM NO. 10B ALONG WITH AS MERELY A PROCEDURAL FORMALITY. THE LEARNED DY.CIT(A), HOWEVER, HELD THAT THE PRIMA FACIE ADJUSTMENT WAS RIGHTLY DONE IN THE LIGHT OF THE CIRCULAR OFTHE BOARD AS THE ASSESSEE FAILED TO FILE FORM NO. 10B ALONG WITH THE RETURN WHICH WAS MANDATORY. SSEE ALSO CITED THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF HARDEODAS AGARWALLA TRUST (1992) 198 ITR 511 (CAL) AND THE SUBSEQUENT DECISION IN THE CASE OF CIT VS. RAI BAHADUR BISSESSWARLAL MOTILAL MALWASIE TRUST (CAL) FOR THE PROPOSITION THAT IF THE AUDIT REPORT WAS NOT FILED ALONG WITH THE RETURN OF INCOME, THE RETURN BECAME DEFECTIVE AND THE AO WAS REQUIRED TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO SUBMIT THE AUDIT REPORT AND RECTIFY THE DEFECT G THE ASSESSMENT. RELIANCE WAS ALSO PLACED ON THE DECISION OF THE TRIBUNAL IN THE CASE OF CALCUTTA MANAGEMENT ASSOCIATION VS. ITO (1992) 42 ITD 62 THE TRIBUNAL ALLOWED TIME FOR FILING FORM NO. 10B EVEN UPTO THE APPELLATE STAGE. THE LEARNED DY . CIT(A) DID NOT ACCEPT THE CONTENTIONS ON THE REASONING THAT THE POWER OF CONDONATION OF DELAY IS THE EXCLUSIVE POWER OF THE DIT (EXEMPTION) AND THIS POWER HAS NOT BEEN DELEGATED TO THE APPELLATE AUTHORITIES. THEREFORE, THE ORDER OF THE AO CANNOT BE SAID TO BE RECTIFIABLE. HE ACCORDINGLY REJECTED THE APPEAL OF THE ASSESSEE. 4. THE ASSESSEE IS STILL AGGRIEVED AND HAS COME UP IN APPEAL BEFORE THE TRIBUNAL. SHRI ATUL K. JASANI, THE LEARNED COUNSEL APPEARED FOR THE ASSESSEE AND SHRI V. S. GORE, THE PARTMENTAL REPRESENTATIVE, APPEARED FOR THE REVENUE. AFTER HEARING BOTH THE PARTIES I AM OF THE VIEW THAT THE AO AS BOUND TO RECTIFY THE ORDER IN THE LIGHT OF THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT CITED ABOVE. SINCE THE HON'BLE CALCUTTA ITA NO. 2643/KOL/2019 ASSESSMENT YEAR: 2016-17 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE WE FIND THAT THE ASSESSING OFFICER IN HIS ORDER PASSED U/S 143(3) OF THE ACT ON 31/10/2018 HAD CONSIDERED EACH AND EVERY ASPECT OF THIS ISSUE. IN FACT, THE RETURN OF INCOME WAS FILED ON 20/10/2016 DECLARING NIL INCOME AND THIS WAS IN TIME. THE LED THE REVISED RETURN OF INCOME ON 29/11/2017 AND THIS WAS SELECTED FOR SCRUTINY. THE LD. CIT(E) WHILE CONDONING THE DELAY IN FILING OF FORM 10 VIDE HIS ORDER DT. 20/11/2017, U/S 119(2)(B) OF THE ACT, WAS AWARE OF ALL THESE CIRCUMSTANCES. AS THE WAS CONDONED BY THE LD. THAT THE TWIN CONDITIONS MENTIONED U/S 13(9) OF THE ACT WAS IT IS NOT THE CASE OF THE REVENUE THAT THE ORIGINAL RETURN OF INCOME WAS NOT F ILED WITHIN THE DUE DATE OF FILING AS SPECIFIED U/S 139(1) OF THE ACT. THE ASSESSING OFFICER HAS CONSIDERED THE LEGAL POSITION AND HAS TAKEN A POSSIBLE VIEW AFTER APPLICATION OF MIND . SWAJAN PARIWAR TRUST VS. WHILE ADJUDICATING AN IDENTICAL ISSUE, HAS HELD AS 3. AGGRIEVED BY THE SAID ORDER THE ASSESSEE TOOK UP THE MATTER IN APPEAL BEFORE THE DY. CIT(A) AND IT WAS SUBMITTED THAT THE AO WAS NOT JUSTIFIED IN REJECTING THE APPLICATION UNDER S. 154 OF THE ACT AS THE DEFAULT IN FILING FORM NO. 10B ALONG WITH AS MERELY A PROCEDURAL FORMALITY. THE LEARNED DY.CIT(A), HOWEVER, HELD THAT THE PRIMA FACIE ADJUSTMENT WAS RIGHTLY DONE IN THE LIGHT OF THE CIRCULAR OFTHE BOARD AS THE ASSESSEE FAILED TO FILE FORM NO. 10B ALONG WITH THE RETURN WHICH WAS MANDATORY. SSEE ALSO CITED THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF HARDEODAS AGARWALLA TRUST (1992) 198 ITR 511 (CAL) AND THE SUBSEQUENT DECISION IN THE CASE OF CIT VS. RAI BAHADUR BISSESSWARLAL MOTILAL MALWASIE TRUST (CAL) FOR THE PROPOSITION THAT IF THE AUDIT REPORT WAS NOT FILED ALONG WITH THE RETURN OF INCOME, THE RETURN BECAME DEFECTIVE AND THE AO WAS REQUIRED TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO SUBMIT THE AUDIT REPORT AND RECTIFY THE DEFECT G THE ASSESSMENT. RELIANCE WAS ALSO PLACED ON THE DECISION OF THE TRIBUNAL IN THE CASE OF CALCUTTA MANAGEMENT ASSOCIATION VS. ITO (1992) 42 ITD 62 THE TRIBUNAL ALLOWED TIME FOR FILING FORM NO. 10B EVEN UPTO THE . CIT(A) DID NOT ACCEPT THE CONTENTIONS ON THE REASONING THAT THE POWER OF CONDONATION OF DELAY IS THE EXCLUSIVE POWER OF THE DIT (EXEMPTION) AND THIS POWER HAS NOT BEEN DELEGATED TO THE APPELLATE AUTHORITIES. TO BE RECTIFIABLE. HE ACCORDINGLY REJECTED 4. THE ASSESSEE IS STILL AGGRIEVED AND HAS COME UP IN APPEAL BEFORE THE TRIBUNAL. SHRI ATUL K. JASANI, THE LEARNED COUNSEL APPEARED FOR THE ASSESSEE AND SHRI V. S. GORE, THE PARTMENTAL REPRESENTATIVE, APPEARED FOR THE REVENUE. AFTER HEARING BOTH THE PARTIES I AM OF THE VIEW THAT THE AO AS BOUND TO RECTIFY THE ORDER IN THE LIGHT OF THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT CITED ABOVE. SINCE THE HON'BLE CALCUTTA HIGH COUR T HAS HELD THAT THE FILING OF THE AUDIT REPORT IN FORM NO. 10B WAS MERELY A PROCEDURAL FORMALITY FOR THE PURPOSE OF ENABLING THE AO TO ALLOW THE BENEFIT OF EXEMPTION TO THE TRUST AND SUCH PROCEDURAL DEFECT ONLY MAKES THE RETURN BECOME DEFECTIVE AND RECTIFI ABLE, THE ASSESSEE IS TO BE GIVEN THE BENEFIT AS THE DEFECT HAS SINCE BEEN REMOVED BY FILING OF FORM NO. 10B. THE AO IS DIRECTED TO RECTIFY THE ORDER ACCORDINGLY. 5. IN THE RESULT, THE APPEAL STANDS ALLOWED. 12. IN THE CASE ALSO, THE ASSESSING OFFICER INCOME WHICH WAS FILED IN TIME AS WELL AS THE FORM 10 FILED AFTER CONDONATION OF DELAY BY THE LD. CIT(E) AND GRANT EXEMPTION TO THE ASSESSEE. HE DID SO IN THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT ON 31/ CONSIDERED AS AN ORDER WHICH CAUSES PREJUDICE TO THE REVENUE. THE COURTS HAVE LAID DOWN THE PRINCIPLES ON THE POWERS OF THE CIT U/S 263 OF THE THE HON BLE ANDHRA PRADESH HIGH COURT IN THE CASE OF LTD. V CIT (AP) 354 ITR 35 HAD CONSIDERED A NUMBER OF JUDGMENTS ON THIS ISSUE OF EXERCISE OF JURISDICTION U/S 263 OF THE ACT BY THE PRINCIPAL COMMISSIONER OF INCOME TAX AND CULLED THE PRINCIPLES LAID DOWN IN THE JUDGMENTS AS 24. IN MALABAR INDUSTRIAL CO.LTD. ( 2 SUPRA), BARE READING OF SEC.263 MAKES IT CLEAR THAT THE PREREQUISITE FOR THE EXERCISE OF JURISDICTION BY THE COMMISSIONER SUOMOTU UNDER IT, IS THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE COMMISSIONER HAS TO BE SATISFIED OF TWIN CONDITIONS, NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS PREJUDICIAL TO THE INTERE STS OF THE REVENUE. IF ONE OF THEM IS ABSENT OFFICER IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IT IS PREJUDICIAL TO THE REVENUE ACT. IT A LSO HELD AT PG 'THE PHRASE 'PREJUDICIAL TO THE INTERESTS OF THE REVENUE' HAS TO BE READ IN CONJUNCTION WITH AN 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 REVENUE. FOR EXAMPLE, WHEN AN INCOME OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE: OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME ONE VIEW WITH WHICH THE COMMIS ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE, UNLESS THE VIEW TAKEN BY THE INCOME- TAX OFFICER IS UNSUSTAINABLE IN LAW. IT HAS BEEN HELD BY THIS COURT THAT WHERE A SUM NOT EARNED BY A PERSON I SO OFFERING, THE ORDER PASSED BY THE ASSESSING OFFICER ACCEPTING THE SAME AS SUCH WILL BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. RAMPYARIDEVISARAOGI V. CIT (1968) 67 ITR 84 (SC) AND IN SMT. TARA AGGARWAL V. CIT (1973) 88 ITR 323 (SC)'. 25. IN MAX INDIA LTD. CO.LTD. (2 SUPRA) AND OBSERVED THAT EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN 9 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE T HAS HELD THAT THE FILING OF THE AUDIT REPORT IN FORM NO. 10B WAS MERELY A PROCEDURAL FORMALITY FOR THE PURPOSE OF ENABLING THE AO TO ALLOW THE BENEFIT OF EXEMPTION TO THE TRUST AND SUCH PROCEDURAL DEFECT ONLY MAKES THE RETURN BECOME ABLE, THE ASSESSEE IS TO BE GIVEN THE BENEFIT AS THE DEFECT HAS SINCE BEEN REMOVED BY FILING OF FORM NO. 10B. THE AO IS DIRECTED TO RECTIFY THE ORDER 5. IN THE RESULT, THE APPEAL STANDS ALLOWED. IN THE CASE ALSO, THE ASSESSING OFFICER WAS BOUND TO CONSIDER THE ORIGINAL RETURN OF INCOME WHICH WAS FILED IN TIME AS WELL AS THE FORM 10 FILED AFTER CONDONATION OF DELAY BY THE LD. CIT(E) AND GRANT EXEMPTION TO THE ASSESSEE. HE DID SO IN THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT ON 31/ 10/2018. HE TOOK A POSSIBLE VIEW. SUCH VIEW CANNOT BE CONSIDERED AS AN ORDER WHICH CAUSES PREJUDICE TO THE REVENUE. THE COURTS HAVE LAID DOWN THE PRINCIPLES ON THE POWERS OF THE CIT U/S 263 OF THE ACT. BLE ANDHRA PRADESH HIGH COURT IN THE CASE OF SPECTRA SHARES AND SCRIPS PVT. HAD CONSIDERED A NUMBER OF JUDGMENTS ON THIS ISSUE OF EXERCISE OF JURISDICTION U/S 263 OF THE ACT BY THE PRINCIPAL COMMISSIONER OF INCOME TAX AND CULLED DOWN IN THE JUDGMENTS AS BELOW: MALABAR INDUSTRIAL CO.LTD. ( 2 SUPRA), THE SUPREME COURT HELD THAT A BARE READING OF SEC.263 MAKES IT CLEAR THAT THE PREREQUISITE FOR THE EXERCISE OF JURISDICTION BY THE COMMISSIONER SUOMOTU UNDER IT, IS THE ORDER OF THE INCOME TAX IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE COMMISSIONER HAS TO BE SATISFIED OF TWIN CONDITIONS, NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS PREJUDICIAL TO THE STS OF THE REVENUE. IF ONE OF THEM IS ABSENT IF THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IT IS PREJUDICIAL TO THE REVENUE RECOURSE CANNOT BE HAD TO SEC.263 (1) OF THE LSO HELD AT PG -88 AS FOLLOWS: 'THE PHRASE 'PREJUDICIAL TO THE INTERESTS OF THE REVENUE' HAS TO BE READ IN CONJUNCTION WITH AN 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 THE INTERESTS OF THE REVENUE. FOR EXAMPLE, WHEN AN INCOME OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE: OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME - TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMIS SIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE, UNLESS THE VIEW TAKEN TAX OFFICER IS UNSUSTAINABLE IN LAW. IT HAS BEEN HELD BY THIS COURT THAT WHERE A SUM NOT EARNED BY A PERSON I S ASSESSED AS INCOME IN HIS HANDS ON HIS SO OFFERING, THE ORDER PASSED BY THE ASSESSING OFFICER ACCEPTING THE SAME AS SUCH WILL BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. RAMPYARIDEVISARAOGI V. CIT (1968) 67 ITR 84 (SC) AND IN SMT. TARA AGGARWAL V. CIT (1973) 88 ITR 323 (SC)'. MAX INDIA LTD. (3 SUPRA) , REITERATED THE VIEW IN MALABAR INDUSTRIAL (2 SUPRA) AND OBSERVED THAT EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ITA NO. 2643/KOL/2019 ASSESSMENT YEAR: 2016-17 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE T HAS HELD THAT THE FILING OF THE AUDIT REPORT IN FORM NO. 10B WAS MERELY A PROCEDURAL FORMALITY FOR THE PURPOSE OF ENABLING THE AO TO ALLOW THE BENEFIT OF EXEMPTION TO THE TRUST AND SUCH PROCEDURAL DEFECT ONLY MAKES THE RETURN BECOME ABLE, THE ASSESSEE IS TO BE GIVEN THE BENEFIT AS THE DEFECT HAS SINCE BEEN REMOVED BY FILING OF FORM NO. 10B. THE AO IS DIRECTED TO RECTIFY THE ORDER WAS BOUND TO CONSIDER THE ORIGINAL RETURN OF INCOME WHICH WAS FILED IN TIME AS WELL AS THE FORM 10 FILED AFTER CONDONATION OF DELAY BY THE LD. CIT(E) AND GRANT EXEMPTION TO THE ASSESSEE. HE DID SO IN THE ASSESSMENT ORDER 10/2018. HE TOOK A POSSIBLE VIEW. SUCH VIEW CANNOT BE CONSIDERED AS AN ORDER WHICH CAUSES PREJUDICE TO THE REVENUE. THE COURTS HAVE LAID DOWN SPECTRA SHARES AND SCRIPS PVT. HAD CONSIDERED A NUMBER OF JUDGMENTS ON THIS ISSUE OF EXERCISE OF JURISDICTION U/S 263 OF THE ACT BY THE PRINCIPAL COMMISSIONER OF INCOME TAX AND CULLED THE SUPREME COURT HELD THAT A BARE READING OF SEC.263 MAKES IT CLEAR THAT THE PREREQUISITE FOR THE EXERCISE OF JURISDICTION BY THE COMMISSIONER SUOMOTU UNDER IT, IS THE ORDER OF THE INCOME TAX IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE COMMISSIONER HAS TO BE SATISFIED OF TWIN CONDITIONS, NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS PREJUDICIAL TO THE IF THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS RECOURSE CANNOT BE HAD TO SEC.263 (1) OF THE 'THE PHRASE 'PREJUDICIAL TO THE INTERESTS OF THE REVENUE' HAS TO BE READ IN CONJUNCTION WITH AN 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 THE INTERESTS OF THE REVENUE. FOR EXAMPLE, WHEN AN INCOME -TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF TAX OFFICER HAS TAKEN SIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE, UNLESS THE VIEW TAKEN TAX OFFICER IS UNSUSTAINABLE IN LAW. IT HAS BEEN HELD BY THIS COURT S ASSESSED AS INCOME IN HIS HANDS ON HIS SO OFFERING, THE ORDER PASSED BY THE ASSESSING OFFICER ACCEPTING THE SAME AS SUCH WILL BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. RAMPYARIDEVISARAOGI V. CIT (1968) 67 ITR 84 (SC) AND IN SMT. TARA DEVI MALABAR INDUSTRIAL (2 SUPRA) AND OBSERVED THAT EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PR THE REVENUE. FOR EXAMPLE, WHEN AN INCOME TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE; OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME TAX OFFICER HAS TAKEN ONE VIEW WITH WHIC COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE, UNLESS THE VIEW TAKEN BY THE INCOME TAX OFFICER IS UNSUSTAINABLE IN LAW. ON THE FACTS OF THAT CASE, SEC.80HHC(3) AS IT THEN STOOD WAS INTERPRETED BY THE ASSESSING OFFICER BUT THE REVENUE CONTENDED THAT IN VIEW OF THE 2005 AMENDMENT WHICH IS CLARIFICATORY AND RETROSPECTIVE IN NATURE, THE VIEW OF THE ASSESSING OFFICER WAS UNSUSTAINABLE IN LAW AND THE COMMISSIONER WAS CORRECT IN INVOKING S THE SAID CONTENTION AND HELD THAT WHEN THE COMMISSIONER PASSED HIS ORDER DISAGREEING WITH THE VIEW OF THE ASSESSING OFFICER, THERE WERE TWO VIEWS ON THE WORD 'PROFITS' IN THAT SECTION; THAT THE SAID SECTION WAS AMENDE THAT DIFFERENT VIEWS EXISTED ON THE DAY WHEN THE COMMISSIONER PASSED HIS ORDER; THAT THE MECHANICS OF THE SECTION HAD BECOME SO COMPLICATED OVER THE YEARS THAT TWO VIEWS WERE INHERENTLY POSSIBLE; AND THEREFORE, THE SUBSEQUENT AMENDMENT IN 2 005 EVEN THOUGH RETROSPECTIVE WILL NOT ATTRACT THE PROVISION OF SEC.263. 26. IN VIKAS POLYMERS SUOMOTU REVISION EXERCISABLE BY THE COMMISSIONER UNDER THE PROVISIONS OF SEC.263 IS SUPERVISORY IN NATURE; ACCORDANCE WITH LAW; THAT IF AN INCOME TAX OFFICER ACTING IN ACCORDANCE WITH LAW MAKES A CERTAIN ASSESSMENT, THE SAME CANNOT BE BRANDED AS 'ERRONEOUS' BY THE COMMISSIONER SIMPLY BECAUSE, ACCORDING TO WRITTEN DIFFERENTLY OR MORE ELABORATELY; THAT THE SECTION DOES NOT VISUALIZE THE SUBSTITUTION OF THE JUDGMENT OF THE COMMISSIONER FOR THAT OF THE INCOME TAX OFFICER, WHO PASSED THE ORDER UNLESS THE DECISION IS NOT IN ACCORDA LAW; THAT TO INVOKE SUOMOTU REVISIONAL POWERS TO REOPEN A CONCLUDED ASSESSMENT UNDER SEC.263, THE COMMISSIONER MUST GIVE REASONS; THAT A BARE REITERATION BY HIM THAT THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICI AL TO THE INTERESTS OF THE REVENUE, WILL NOT SUFFICE; THAT THE REASONS MUST BE SUCH AS TO SHOW THAT THE ENHANCEMENT OR MODIFICATION OF THE ASSESSMENT OR CANCELLATION OF THE ASSESSMENT OR DIRECTIONS ISSUED FOR A FRESH ASSESSMENT WERE CALLED FOR, AND MUST IR INCOME TAX OFFICER WAS NOT ONLY ERRONEOUS BUT WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THUS, WHILE THE INCOME TAX OFFICER IS NOT CALLED UPON TO WRITE AN ELABORATE JUDGMENT GIVING DETAILED REAS DISALLOWANCE, DEDUCTION, ETC., IT IS INCUMBENT UPON THE COMMISSIONER NOT TO EXERCISE HIS SUOMOTU REVISIONAL POWERS UNLESS SUPPORTED BY ADEQUATE REASONS FOR DOING SO; THAT IF A QUERY IS RAISED DURING THE COURSE OF THE SCRUTI ASSESSING OFFICER, WHICH WAS ANSWERED TO THE SATISFACTION OF THE ASSESSING OFFICER, BUT NEITHER THE QUERY NOR THE ANSWER WERE REFLECTED IN THE ASSESSMENT ORDER, THIS WOULD NOT BY ITSELF LEAD TO THE CONCLUSION THAT THE ORDER OF THE ASSESSING OFFIC CALLED FOR INTERFERENCE AND REVISION. 27. IN SUNBEAM AUTO LTD. OFFICER IN THE ASSESSMENT ORDER IS NOT REQUIRED TO GIVE A DETAILED REASON IN RESPECT OF EACH AND EVERY ITEM OF DEDUCTION, ETC.; THAT W MIND BEFORE ALLOWING THE EXPENDITURE IN QUESTION HAS TO BE SEEN; THAT IF THERE WAS AN INQUIRY, EVEN INADEQUATE THAT WOULD NOT BY ITSELF GIVE OCCASION TO THE COMMISSIONER TO PASS ORDERS UNDER SEC.263 MERELY BECAUSE HE HAS A D OPINION IN THE MATTER; THAT IT IS ONLY IN CASES OF LACK OF INQUIRY THAT SUCH A COURSE OF ACTION WOULD BE OPEN; THAT AN ASSESSMENT ORDER MADE BY THE INCOME TAX OFFICER CANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE, 10 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE ORDER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PR EJUDICIAL TO THE INTERESTS OF THE REVENUE. FOR EXAMPLE, WHEN AN INCOME TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE; OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME TAX OFFICER HAS TAKEN ONE VIEW WITH WHIC COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE, UNLESS THE VIEW TAKEN BY THE INCOME TAX OFFICER IS UNSUSTAINABLE IN LAW. ON THE FACTS OF THAT CASE, SEC.80HHC(3) AS IT INTERPRETED BY THE ASSESSING OFFICER BUT THE REVENUE CONTENDED THAT IN VIEW OF THE 2005 AMENDMENT WHICH IS CLARIFICATORY AND RETROSPECTIVE IN NATURE, THE VIEW OF THE ASSESSING OFFICER WAS UNSUSTAINABLE IN LAW AND THE COMMISSIONER WAS CORRECT IN INVOKING S EC.263. BUT THE SUPREME COURT REJECTED THE SAID CONTENTION AND HELD THAT WHEN THE COMMISSIONER PASSED HIS ORDER DISAGREEING WITH THE VIEW OF THE ASSESSING OFFICER, THERE WERE TWO VIEWS ON THE WORD 'PROFITS' IN THAT SECTION; THAT THE SAID SECTION WAS AMENDE D ELEVEN TIMES; THAT DIFFERENT VIEWS EXISTED ON THE DAY WHEN THE COMMISSIONER PASSED HIS ORDER; THAT THE MECHANICS OF THE SECTION HAD BECOME SO COMPLICATED OVER THE YEARS THAT TWO VIEWS WERE INHERENTLY POSSIBLE; AND THEREFORE, THE SUBSEQUENT AMENDMENT IN 005 EVEN THOUGH RETROSPECTIVE WILL NOT ATTRACT THE PROVISION OF SEC.263. VIKAS POLYMERS (4 SUPRA), THE DELHI HIGH COURT HELD THAT THE POWER OF SUOMOTU REVISION EXERCISABLE BY THE COMMISSIONER UNDER THE PROVISIONS OF SEC.263 IS SUPERVISORY IN NATURE; THAT AN 'ERRONEOUS JUDGMENT' MEANS ONE WHICH IS NOT IN ACCORDANCE WITH LAW; THAT IF AN INCOME TAX OFFICER ACTING IN ACCORDANCE WITH LAW MAKES A CERTAIN ASSESSMENT, THE SAME CANNOT BE BRANDED AS 'ERRONEOUS' BY THE COMMISSIONER SIMPLY BECAUSE, ACCORDING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTEN DIFFERENTLY OR MORE ELABORATELY; THAT THE SECTION DOES NOT VISUALIZE THE SUBSTITUTION OF THE JUDGMENT OF THE COMMISSIONER FOR THAT OF THE INCOME TAX OFFICER, WHO PASSED THE ORDER UNLESS THE DECISION IS NOT IN ACCORDA LAW; THAT TO INVOKE SUOMOTU REVISIONAL POWERS TO REOPEN A CONCLUDED ASSESSMENT UNDER SEC.263, THE COMMISSIONER MUST GIVE REASONS; THAT A BARE REITERATION BY HIM THAT THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS AL TO THE INTERESTS OF THE REVENUE, WILL NOT SUFFICE; THAT THE REASONS MUST BE SUCH AS TO SHOW THAT THE ENHANCEMENT OR MODIFICATION OF THE ASSESSMENT OR CANCELLATION OF THE ASSESSMENT OR DIRECTIONS ISSUED FOR A FRESH ASSESSMENT WERE CALLED FOR, AND MUST IR RESISTIBLY LEAD TO THE CONCLUSION THAT THE ORDER OF THE INCOME TAX OFFICER WAS NOT ONLY ERRONEOUS BUT WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THUS, WHILE THE INCOME TAX OFFICER IS NOT CALLED UPON TO WRITE AN ELABORATE JUDGMENT GIVING DETAILED REAS ONS IN RESPECT OF EACH AND EVERY DISALLOWANCE, DEDUCTION, ETC., IT IS INCUMBENT UPON THE COMMISSIONER NOT TO EXERCISE HIS SUOMOTU REVISIONAL POWERS UNLESS SUPPORTED BY ADEQUATE REASONS FOR DOING SO; THAT IF A QUERY IS RAISED DURING THE COURSE OF THE SCRUTI ASSESSING OFFICER, WHICH WAS ANSWERED TO THE SATISFACTION OF THE ASSESSING OFFICER, BUT NEITHER THE QUERY NOR THE ANSWER WERE REFLECTED IN THE ASSESSMENT ORDER, THIS WOULD NOT BY ITSELF LEAD TO THE CONCLUSION THAT THE ORDER OF THE ASSESSING OFFIC CALLED FOR INTERFERENCE AND REVISION. SUNBEAM AUTO LTD. ( 5 SUPRA), THE DELHI HIGH COURT HELD THAT THE ASSESSING OFFICER IN THE ASSESSMENT ORDER IS NOT REQUIRED TO GIVE A DETAILED REASON IN RESPECT OF EACH AND EVERY ITEM OF DEDUCTION, ETC.; THAT W HETHER THERE WAS APPLICATION OF MIND BEFORE ALLOWING THE EXPENDITURE IN QUESTION HAS TO BE SEEN; THAT IF THERE WAS AN INQUIRY, EVEN INADEQUATE THAT WOULD NOT BY ITSELF GIVE OCCASION TO THE COMMISSIONER TO PASS ORDERS UNDER SEC.263 MERELY BECAUSE HE HAS A D OPINION IN THE MATTER; THAT IT IS ONLY IN CASES OF LACK OF INQUIRY THAT SUCH A COURSE OF ACTION WOULD BE OPEN; THAT AN ASSESSMENT ORDER MADE BY THE INCOME TAX OFFICER CANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE, ITA NO. 2643/KOL/2019 ASSESSMENT YEAR: 2016-17 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE EJUDICIAL TO THE INTERESTS OF THE REVENUE. FOR EXAMPLE, WHEN AN INCOME TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE; OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME TAX OFFICER HAS TAKEN ONE VIEW WITH WHIC H THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE, UNLESS THE VIEW TAKEN BY THE INCOME TAX OFFICER IS UNSUSTAINABLE IN LAW. ON THE FACTS OF THAT CASE, SEC.80HHC(3) AS IT INTERPRETED BY THE ASSESSING OFFICER BUT THE REVENUE CONTENDED THAT IN VIEW OF THE 2005 AMENDMENT WHICH IS CLARIFICATORY AND RETROSPECTIVE IN NATURE, THE VIEW OF THE ASSESSING OFFICER WAS UNSUSTAINABLE IN LAW AND THE EC.263. BUT THE SUPREME COURT REJECTED THE SAID CONTENTION AND HELD THAT WHEN THE COMMISSIONER PASSED HIS ORDER DISAGREEING WITH THE VIEW OF THE ASSESSING OFFICER, THERE WERE TWO VIEWS ON THE D ELEVEN TIMES; THAT DIFFERENT VIEWS EXISTED ON THE DAY WHEN THE COMMISSIONER PASSED HIS ORDER; THAT THE MECHANICS OF THE SECTION HAD BECOME SO COMPLICATED OVER THE YEARS THAT TWO VIEWS WERE INHERENTLY POSSIBLE; AND THEREFORE, THE SUBSEQUENT AMENDMENT IN 005 EVEN THOUGH RETROSPECTIVE WILL NOT ATTRACT THE PROVISION OF SEC.263. (4 SUPRA), THE DELHI HIGH COURT HELD THAT THE POWER OF SUOMOTU REVISION EXERCISABLE BY THE COMMISSIONER UNDER THE PROVISIONS OF SEC.263 THAT AN 'ERRONEOUS JUDGMENT' MEANS ONE WHICH IS NOT IN ACCORDANCE WITH LAW; THAT IF AN INCOME TAX OFFICER ACTING IN ACCORDANCE WITH LAW MAKES A CERTAIN ASSESSMENT, THE SAME CANNOT BE BRANDED AS 'ERRONEOUS' BY THE HIM, THE ORDER SHOULD HAVE BEEN WRITTEN DIFFERENTLY OR MORE ELABORATELY; THAT THE SECTION DOES NOT VISUALIZE THE SUBSTITUTION OF THE JUDGMENT OF THE COMMISSIONER FOR THAT OF THE INCOME TAX OFFICER, WHO PASSED THE ORDER UNLESS THE DECISION IS NOT IN ACCORDA NCE WITH THE LAW; THAT TO INVOKE SUOMOTU REVISIONAL POWERS TO REOPEN A CONCLUDED ASSESSMENT UNDER SEC.263, THE COMMISSIONER MUST GIVE REASONS; THAT A BARE REITERATION BY HIM THAT THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS AL TO THE INTERESTS OF THE REVENUE, WILL NOT SUFFICE; THAT THE REASONS MUST BE SUCH AS TO SHOW THAT THE ENHANCEMENT OR MODIFICATION OF THE ASSESSMENT OR CANCELLATION OF THE ASSESSMENT OR DIRECTIONS ISSUED FOR A FRESH ASSESSMENT WERE RESISTIBLY LEAD TO THE CONCLUSION THAT THE ORDER OF THE INCOME TAX OFFICER WAS NOT ONLY ERRONEOUS BUT WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THUS, WHILE THE INCOME TAX OFFICER IS NOT CALLED UPON TO WRITE AN ONS IN RESPECT OF EACH AND EVERY DISALLOWANCE, DEDUCTION, ETC., IT IS INCUMBENT UPON THE COMMISSIONER NOT TO EXERCISE HIS SUOMOTU REVISIONAL POWERS UNLESS SUPPORTED BY ADEQUATE REASONS FOR DOING SO; THAT IF A QUERY IS RAISED DURING THE COURSE OF THE SCRUTI NY BY THE ASSESSING OFFICER, WHICH WAS ANSWERED TO THE SATISFACTION OF THE ASSESSING OFFICER, BUT NEITHER THE QUERY NOR THE ANSWER WERE REFLECTED IN THE ASSESSMENT ORDER, THIS WOULD NOT BY ITSELF LEAD TO THE CONCLUSION THAT THE ORDER OF THE ASSESSING OFFIC ER ( 5 SUPRA), THE DELHI HIGH COURT HELD THAT THE ASSESSING OFFICER IN THE ASSESSMENT ORDER IS NOT REQUIRED TO GIVE A DETAILED REASON IN RESPECT HETHER THERE WAS APPLICATION OF MIND BEFORE ALLOWING THE EXPENDITURE IN QUESTION HAS TO BE SEEN; THAT IF THERE WAS AN INQUIRY, EVEN INADEQUATE THAT WOULD NOT BY ITSELF GIVE OCCASION TO THE COMMISSIONER TO PASS ORDERS UNDER SEC.263 MERELY BECAUSE HE HAS A D IFFERENT OPINION IN THE MATTER; THAT IT IS ONLY IN CASES OF LACK OF INQUIRY THAT SUCH A COURSE OF ACTION WOULD BE OPEN; THAT AN ASSESSMENT ORDER MADE BY THE INCOME TAX OFFICER CANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE, ACCORDING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY; THERE MUST BE SOME PRIMA FACIE MATERIAL ON RECORD TO SHOW THAT THE TAX WHICH WAS LAWFULLY EXIGIBLE HAS NOT BEEN IMPOSED OR THAT BY THE APPLICATION OF THE RELEVANT STATUTE ON AN INCORRECT OR INCOMPLE JUST, HAS BEEN IMPOSED. IN THAT CASE, THE DELHI HIGH COURT HELD THAT THE COMMISSIONER IN THE EXERCISE OF REVISIONAL POWER COULD NOT HAVE OBJECTED TO THE FINDING OF THE ASSESSING OFFICER THAT EXPENDITURE ON TOOL A MANUFACTURER OF CAR PARTS, IS REVENUE EXPENDITURE WHERE THE SAID CLAIM WAS ALLOWED BY THE LATTER ON BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE AND WHERE THE SAME ACCOUNTING PRACTICE FOLLOWED BY THE ASSESSEE FOR NUMBE WITH THE APPROVAL OF THE INCOME TAX AUTHORITIES. IT HELD THAT THE ASSESSING OFFICER HAD CALLED FOR EXPLANATION ON THE VERY ITEM FROM THE ASSESSEE AND THE ASSESSEE HAD FURNISHED ITS EXPLANATION. MERELY BECAUSE THE ASSESSING OFFICER IN HIS ORDER D ID NOT MAKE AN ELABORATE DISCUSSION IN THAT REGARD, HIS ORDER CANNOT BE TERMED AS ERRONEOUS. THE OPINION OF THE ASSESSING OFFICER IS ONE OF THE POSSIBLE VIEWS AND THERE WAS NO MATERIAL BEFORE THE COMMISSIONER TO VARY THAT OPINION AND ASK FOR FRESH INQUIRY. 28. IN GABRIEL INDIA LTD. CONSIDERATION OF THE COMMISSIONER AS TO WHETHER AN ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, MUST BE BASED ON MATERIALS ON THE RECORD OF THE PR RECORD ON THE BASIS OF WHICH IT CAN BE SAID THAT THE COMMISSIONER ACTING IN A REASONABLE MANNER COULD HAVE COME TO SUCH A CONCLUSION, THE VERY INITIATION OF PROCEEDINGS BY HIM WILL BE ILLEGAL AND WI COMMISSIONER CANNOT INITIATE PROCEEDINGS WITH A VIEW TO START FISHING AND ROVING INQUIRIES IN MATTERS OR ORDERS WHICH ARE ALREADY CONCLUDED; THAT THE DEPARTMENT CANNOT BE PERMITTED TO BEGIN FRESH LITIGATION BECAUSE OF N ON FACTS OR NEW VERSIONS WHICH THEY PRESENT AS TO WHAT SHOULD BE THE INFERENCE OR PROPER INFERENCE EITHER OF THE FACTS DISCLOSED OR THE WEIGHT OF THE CIRCUMSTANCE; THAT IF THIS IS PERMITTED, LITIGATION WOULD HAVE NO END EXCEPT WHEN IS EXHAUSTED; THAT TO DO SO IS TO DIVIDE ONE ARGUMENT INTO TWO AND MULTIPLY THE LITIGATION. IT HELD THAT CASES MAY BE VISUALIZED WHERE THE INCOME TAX OFFICER WHILE MAKING AN ASSESSMENT EXAMINES THE ACCOUNTS, MAKES INQUIRIES, APPLIES HIS MIN TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINES THE INCOME EITHER BY ACCEPTING THE ACCOUNT OR BY MAKING SOME ESTIMATE HIMSELF; THAT THE COMMISSIONER, ON PERUSAL OF THE RECORD, MAY BE OF THE OPINION THAT THE ESTIMATE MADE BY THE OFFICER CONCERNE HE WOULD HAVE ESTIMATED THE INCOME AT A FIGURE HIGHER THAN THE ONE DETERMINED BY THE INCOME TAX OFFICER; BUT THAT WOULD NOT VEST THE COMMISSIONER WITH POWER TO REEXAMINE THE ACCOUNTS AND DETERMINE THE IN THERE MUST BE MATERIAL AVAILABLE ON THE RECORD CALLED FOR BY THE COMMISSIONER TO SATISFY HIM PRIMA FACIE THAT THE ORDER IS BOTH ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. OTHERWISE, IT WOULD AMOUNT TO GIVING ARBITRARY POWER TO THE REVISING AUTHORITY TO INITIATE PROCEEDINGS FOR REVISION IN EVERY CASE AND START RE ALREADY BEEN CONCLUDED UNDER LAW. 29. IN M.S. RAJU (15 SUPRA), THIS COURT HAS HELD COMMISSIONER UNDER SEC.263 (1) IS NOT LIMITED ONLY TO THE MATERIAL WHICH WAS AVAILABLE BEFORE THE ASSESSING OFFICER AND, IN ORDER TO PROTECT THE INTERESTS OF THE REVENUE, THE COMMISSIONER IS ENTITLED TO EXAMINE ANY OTHER RECORDS WHICH AVAILABLE AT THE TIME OF EXAMINATION BY HIM AND TO TAKE INTO CONSIDERATION EVEN THOSE EVENTS WHICH AROSE SUBSEQUENT TO THE ORDER OF ASSESSMENT. 11 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE HIM, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY; THERE MUST BE SOME PRIMA FACIE MATERIAL ON RECORD TO SHOW THAT THE TAX WHICH WAS LAWFULLY EXIGIBLE HAS NOT BEEN IMPOSED OR THAT BY THE APPLICATION OF THE RELEVANT STATUTE ON AN INCORRECT OR INCOMPLE TE INTERPRETATION, A LESSER TAX THAN WHAT WAS JUST, HAS BEEN IMPOSED. IN THAT CASE, THE DELHI HIGH COURT HELD THAT THE COMMISSIONER IN THE EXERCISE OF REVISIONAL POWER COULD NOT HAVE OBJECTED TO THE FINDING OF THE ASSESSING OFFICER THAT EXPENDITURE ON TOOL S AND DIES BY THE ASSESSEE, A MANUFACTURER OF CAR PARTS, IS REVENUE EXPENDITURE WHERE THE SAID CLAIM WAS ALLOWED BY THE LATTER ON BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE AND WHERE THE SAME ACCOUNTING PRACTICE FOLLOWED BY THE ASSESSEE FOR NUMBE WITH THE APPROVAL OF THE INCOME TAX AUTHORITIES. IT HELD THAT THE ASSESSING OFFICER HAD CALLED FOR EXPLANATION ON THE VERY ITEM FROM THE ASSESSEE AND THE ASSESSEE HAD FURNISHED ITS EXPLANATION. MERELY BECAUSE THE ASSESSING OFFICER IN HIS ORDER ID NOT MAKE AN ELABORATE DISCUSSION IN THAT REGARD, HIS ORDER CANNOT BE TERMED AS ERRONEOUS. THE OPINION OF THE ASSESSING OFFICER IS ONE OF THE POSSIBLE VIEWS AND THERE WAS NO MATERIAL BEFORE THE COMMISSIONER TO VARY THAT OPINION AND ASK FOR GABRIEL INDIA LTD. (6 SUPRA), THE BOMBAY HIGH COURT HELD THAT A CONSIDERATION OF THE COMMISSIONER AS TO WHETHER AN ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, MUST BE BASED ON MATERIALS ON THE RECORD OF THE PR OCEEDINGS CALLED FOR BY HIM. IF THERE ARE NO MATERIALS ON RECORD ON THE BASIS OF WHICH IT CAN BE SAID THAT THE COMMISSIONER ACTING IN A REASONABLE MANNER COULD HAVE COME TO SUCH A CONCLUSION, THE VERY INITIATION OF PROCEEDINGS BY HIM WILL BE ILLEGAL AND WI THOUT JURISDICTION. IT HELD THAT THE COMMISSIONER CANNOT INITIATE PROCEEDINGS WITH A VIEW TO START FISHING AND ROVING INQUIRIES IN MATTERS OR ORDERS WHICH ARE ALREADY CONCLUDED; THAT THE DEPARTMENT CANNOT BE PERMITTED TO BEGIN FRESH LITIGATION BECAUSE OF N EW VIEWS THEY ENTERTAIN ON FACTS OR NEW VERSIONS WHICH THEY PRESENT AS TO WHAT SHOULD BE THE INFERENCE OR PROPER INFERENCE EITHER OF THE FACTS DISCLOSED OR THE WEIGHT OF THE CIRCUMSTANCE; THAT IF THIS IS PERMITTED, LITIGATION WOULD HAVE NO END EXCEPT WHEN LEGAL INGENUITY IS EXHAUSTED; THAT TO DO SO IS TO DIVIDE ONE ARGUMENT INTO TWO AND MULTIPLY THE LITIGATION. IT HELD THAT CASES MAY BE VISUALIZED WHERE THE INCOME TAX OFFICER WHILE MAKING AN ASSESSMENT EXAMINES THE ACCOUNTS, MAKES INQUIRIES, APPLIES HIS MIN TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINES THE INCOME EITHER BY ACCEPTING THE ACCOUNT OR BY MAKING SOME ESTIMATE HIMSELF; THAT THE COMMISSIONER, ON PERUSAL OF THE RECORD, MAY BE OF THE OPINION THAT THE ESTIMATE MADE BY THE OFFICER CONCERNE D WAS ON THE LOWER SIDE AND LEFT TO THE COMMISSIONER HE WOULD HAVE ESTIMATED THE INCOME AT A FIGURE HIGHER THAN THE ONE DETERMINED BY THE INCOME TAX OFFICER; BUT THAT WOULD NOT VEST THE COMMISSIONER WITH POWER TO REEXAMINE THE ACCOUNTS AND DETERMINE THE IN COME HIMSELF AT A HIGHER FIGURE; THERE MUST BE MATERIAL AVAILABLE ON THE RECORD CALLED FOR BY THE COMMISSIONER TO SATISFY HIM PRIMA FACIE THAT THE ORDER IS BOTH ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. OTHERWISE, IT WOULD AMOUNT TO GIVING UNBRIDLED AND ARBITRARY POWER TO THE REVISING AUTHORITY TO INITIATE PROCEEDINGS FOR REVISION IN EVERY CASE AND START RE - EXAMINATION AND FRESH INQUIRY IN MATTERS WHICH HAVE ALREADY BEEN CONCLUDED UNDER LAW. (15 SUPRA), THIS COURT HAS HELD THAT THE POWER OF THE COMMISSIONER UNDER SEC.263 (1) IS NOT LIMITED ONLY TO THE MATERIAL WHICH WAS AVAILABLE BEFORE THE ASSESSING OFFICER AND, IN ORDER TO PROTECT THE INTERESTS OF THE REVENUE, THE COMMISSIONER IS ENTITLED TO EXAMINE ANY OTHER RECORDS WHICH AVAILABLE AT THE TIME OF EXAMINATION BY HIM AND TO TAKE INTO CONSIDERATION EVEN THOSE EVENTS WHICH AROSE SUBSEQUENT TO THE ORDER OF ASSESSMENT. ITA NO. 2643/KOL/2019 ASSESSMENT YEAR: 2016-17 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE HIM, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY; THERE MUST BE SOME PRIMA FACIE MATERIAL ON RECORD TO SHOW THAT THE TAX WHICH WAS LAWFULLY EXIGIBLE HAS NOT BEEN IMPOSED OR THAT BY THE APPLICATION OF THE RELEVANT TE INTERPRETATION, A LESSER TAX THAN WHAT WAS JUST, HAS BEEN IMPOSED. IN THAT CASE, THE DELHI HIGH COURT HELD THAT THE COMMISSIONER IN THE EXERCISE OF REVISIONAL POWER COULD NOT HAVE OBJECTED TO THE S AND DIES BY THE ASSESSEE, A MANUFACTURER OF CAR PARTS, IS REVENUE EXPENDITURE WHERE THE SAID CLAIM WAS ALLOWED BY THE LATTER ON BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE AND WHERE THE SAME ACCOUNTING PRACTICE FOLLOWED BY THE ASSESSEE FOR NUMBE R OF YEARS WITH THE APPROVAL OF THE INCOME TAX AUTHORITIES. IT HELD THAT THE ASSESSING OFFICER HAD CALLED FOR EXPLANATION ON THE VERY ITEM FROM THE ASSESSEE AND THE ASSESSEE HAD FURNISHED ITS EXPLANATION. MERELY BECAUSE THE ASSESSING OFFICER IN HIS ORDER ID NOT MAKE AN ELABORATE DISCUSSION IN THAT REGARD, HIS ORDER CANNOT BE TERMED AS ERRONEOUS. THE OPINION OF THE ASSESSING OFFICER IS ONE OF THE POSSIBLE VIEWS AND THERE WAS NO MATERIAL BEFORE THE COMMISSIONER TO VARY THAT OPINION AND ASK FOR (6 SUPRA), THE BOMBAY HIGH COURT HELD THAT A CONSIDERATION OF THE COMMISSIONER AS TO WHETHER AN ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, MUST BE BASED ON MATERIALS ON OCEEDINGS CALLED FOR BY HIM. IF THERE ARE NO MATERIALS ON RECORD ON THE BASIS OF WHICH IT CAN BE SAID THAT THE COMMISSIONER ACTING IN A REASONABLE MANNER COULD HAVE COME TO SUCH A CONCLUSION, THE VERY INITIATION OF THOUT JURISDICTION. IT HELD THAT THE COMMISSIONER CANNOT INITIATE PROCEEDINGS WITH A VIEW TO START FISHING AND ROVING INQUIRIES IN MATTERS OR ORDERS WHICH ARE ALREADY CONCLUDED; THAT THE DEPARTMENT EW VIEWS THEY ENTERTAIN ON FACTS OR NEW VERSIONS WHICH THEY PRESENT AS TO WHAT SHOULD BE THE INFERENCE OR PROPER INFERENCE EITHER OF THE FACTS DISCLOSED OR THE WEIGHT OF THE CIRCUMSTANCE; LEGAL INGENUITY IS EXHAUSTED; THAT TO DO SO IS TO DIVIDE ONE ARGUMENT INTO TWO AND MULTIPLY THE LITIGATION. IT HELD THAT CASES MAY BE VISUALIZED WHERE THE INCOME TAX OFFICER WHILE MAKING AN ASSESSMENT EXAMINES THE ACCOUNTS, MAKES INQUIRIES, APPLIES HIS MIN D TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINES THE INCOME EITHER BY ACCEPTING THE ACCOUNT OR BY MAKING SOME ESTIMATE HIMSELF; THAT THE COMMISSIONER, ON PERUSAL OF THE RECORD, MAY BE OF THE OPINION THAT THE ESTIMATE D WAS ON THE LOWER SIDE AND LEFT TO THE COMMISSIONER HE WOULD HAVE ESTIMATED THE INCOME AT A FIGURE HIGHER THAN THE ONE DETERMINED BY THE INCOME TAX OFFICER; BUT THAT WOULD NOT VEST THE COMMISSIONER WITH POWER COME HIMSELF AT A HIGHER FIGURE; THERE MUST BE MATERIAL AVAILABLE ON THE RECORD CALLED FOR BY THE COMMISSIONER TO SATISFY HIM PRIMA FACIE THAT THE ORDER IS BOTH ERRONEOUS AND PREJUDICIAL TO THE UNBRIDLED AND ARBITRARY POWER TO THE REVISING AUTHORITY TO INITIATE PROCEEDINGS FOR REVISION IN EXAMINATION AND FRESH INQUIRY IN MATTERS WHICH HAVE THAT THE POWER OF THE COMMISSIONER UNDER SEC.263 (1) IS NOT LIMITED ONLY TO THE MATERIAL WHICH WAS AVAILABLE BEFORE THE ASSESSING OFFICER AND, IN ORDER TO PROTECT THE INTERESTS OF THE REVENUE, THE COMMISSIONER IS ENTITLED TO EXAMINE ANY OTHER RECORDS WHICH ARE AVAILABLE AT THE TIME OF EXAMINATION BY HIM AND TO TAKE INTO CONSIDERATION EVEN 30. IN RAMPYARI DEVI SARAOGI REVISIONAL POWERS CANCELLED ASSESSE 1960- 61 BECAUSE HE FOUND THAT THE INCOME TAX OFFICER WAS NOT JUSTIFIED IN ACCEPTING THE INITIAL CAPITAL, THE GIFT RECEIVED AND SALE OF JEWELLERY, THE INCOME FROM BUSINESS ETC., WITHOUT ANY ENQUIRY OR EVIDENCE WHATS INCOME TAX OFFICER TO DO FRESH ASSESSMENT AFTER MAKING PROPER ENQUIRY AND INVESTIGATION IN REGARD TO THE JURISDICTION. THE ASSESSEE COMPLAINED BEFORE THE SUPREME COURT THAT NO FAIR OR REASONABLE OPPORTUNITY WAS GIVEN TO HER. THE SUP REME COURT HELD THAT THERE WAS AMPLE MATERIAL TO SHOW THAT THE INCOME TAX OFFICER MADE THE ASSESSMENTS IN UNDUE HURRY; THAT HE HAD PASSED A SHORT STEREO TYPED ASSESSMENT ORDER FOR EACH ASSESSMENT YEAR; THAT ON THE FACE OF THE RECORD, THE ORDERS WERE PRE - CAUSED TO THE ASSESSEE ON ACCOUNT OF FAILURE OF THE COMMISSIONER TO INDICATE THE RESULTS OF THE ENQUIRY MADE BY HIM, AS SHE WOULD HAVE A FULL OPPORTUNITY FOR SHOWING TO THE INCOME TAX OFFICER WHET THE INCOME TAX ASSESSED IN THE ASSESSMENT YEARS WHICH WERE ORIGINALLY PASSED WERE CORRECT OR NOT' 31. FROM THE ABOVE DECISIONS, THE FOLLOWING PRINCIPLES AS TO EXERCISE OF JURISDICTION BY THE COMMISSIONER U/S.263 O A) THE COMMISSIONER HAS TO BE SATISFIED OF TWIN CONDITIONS, NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ERRONEOUS BUT IS NOT P OR IF IT IS NOT ERRONEOUS BUT IT IS PREJUDICIAL TO THE REVENUE HAD TO SEC.263 (1) OF THE ACT. B) EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO WHEN AN INCOME- TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE: OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISS CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE, UNLESS THE VIEW TAKEN BY THE INCOME C) TO INVOKE SUOMOTU REVISIONAL POWERS TO REOPEN A CONCLUDED ASSESSMENT U SEC.263, THE COMMISSIONER MUST GIVE REASONS; THAT A BARE REITERATION BY HIM THAT THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, WILL NOT SUFFICE; THAT THE REASONS MUST BE SUCH AS TO SHO THAT THE AND MUST IRRESISTIBLY LEAD TO THE CONCLUSION THAT THE ORDER OF THE INCOME TAX OFFICER WAS NOT ONLY ERRONEOUS BUT WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THUS, WHILE THE INCOME TAX OFFICER IS NOT CALLED UPON TO WRITE AN ELABORATE JUDGMEN T GIVING DETAILED REASONS IN RESPECT OF EACH AND EVERY DISALLOWANCE, DEDUCTION, ETC., IT IS INCUMBENT UPON THE COMMISSIONER NOT TO EXERCISE HIS SUOMOTU REVISIONAL POWERS UNLESS SUPPORTED BY ADEQUATE REASONS FOR DOING SO; THAT IF A QUERY IS RAISED DURING TH ASSESSING OFFICER, WHICH WAS ANSWERED TO THE SATISFACTION OF THE ASSESSING OFFICER, BUT NEITHER THE QUERY NOR THE ANSWER WERE REFLECTED IN THE ASSESSMENT ORDER, THIS WOULD NOT BY ITSELF LEAD TO THE CONCLUSION THAT THE ORDER CALLED FOR INTERFERENCE AND REVISION. E) THE COMMISSIONER CANNOT INITIATE PROCEEDINGS WITH A VIEW TO START FISHING AND ROVING INQUIRIES IN MATTERS OR ORDERS WHICH ARE ALREADY CONCLUDED; THAT THE DEPARTMENT CANNOT BE PERMITTED TO BE THEY ENTERTAIN ON FACTS OR NEW CIRCUMSTANCE; THAT IF THIS IS PERMITTED, LITIGATION WOULD HAVE NO END EXCEPT WHEN LEGAL INGENUITY IS EXHAUSTED F) WHETHER THERE WAS APPLICATION OF MIND BEFORE ALLOWING THE EXPENDITURE QUESTION HAS TO BE SEEN; THAT IF THERE WAS AN INQUIRY, EVEN INADEQUATE THAT WOULD 12 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE RAMPYARI DEVI SARAOGI (21 SUPRA), THE COMMISSIONER IN EXERCISE OF REVISIONAL POWERS CANCELLED ASSESSE ES ASSESSMENT FOR THE YEARS 1952 61 BECAUSE HE FOUND THAT THE INCOME TAX OFFICER WAS NOT JUSTIFIED IN ACCEPTING THE INITIAL CAPITAL, THE GIFT RECEIVED AND SALE OF JEWELLERY, THE INCOME FROM BUSINESS ETC., WITHOUT ANY ENQUIRY OR EVIDENCE WHATS OEVER . HE DIRECTED THE INCOME TAX OFFICER TO DO FRESH ASSESSMENT AFTER MAKING PROPER ENQUIRY AND INVESTIGATION IN REGARD TO THE JURISDICTION. THE ASSESSEE COMPLAINED BEFORE THE SUPREME COURT THAT NO FAIR OR REASONABLE OPPORTUNITY WAS GIVEN TO HER. THE REME COURT HELD THAT THERE WAS AMPLE MATERIAL TO SHOW THAT THE INCOME TAX OFFICER MADE THE ASSESSMENTS IN UNDUE HURRY; THAT HE HAD PASSED A SHORT STEREO TYPED ASSESSMENT ORDER FOR EACH ASSESSMENT YEAR; THAT ON THE FACE OF THE RECORD, - JU DICIAL TO THE INTEREST OF THE REVENUE; AND NO PREJUDICE WAS CAUSED TO THE ASSESSEE ON ACCOUNT OF FAILURE OF THE COMMISSIONER TO INDICATE THE RESULTS OF THE ENQUIRY MADE BY HIM, AS SHE WOULD HAVE A FULL OPPORTUNITY FOR SHOWING TO THE INCOME TAX OFFICER WHET HER HE HAD JURISDICTION OR NOT AND WHETHER THE INCOME TAX ASSESSED IN THE ASSESSMENT YEARS WHICH WERE ORIGINALLY PASSED WERE CORRECT OR NOT' 31. FROM THE ABOVE DECISIONS, THE FOLLOWING PRINCIPLES AS TO EXERCISE OF JURISDICTION BY THE COMMISSIONER U/S.263 O F THE ACT CAN BE CULLED OUT: A) THE COMMISSIONER HAS TO BE SATISFIED OF TWIN CONDITIONS, NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ERRONEOUS BUT IS NOT P REJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IT IS PREJUDICIAL TO THE REVENUE RECOURSE CANNOT BE HAD TO SEC.263 (1) OF THE ACT. B) EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. FOR EXAMPLE, TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE: OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISS IONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE, UNLESS THE VIEW TAKEN BY THE INCOME - TAX OFFICER IS UNSUSTAINABLE IN LAW. C) TO INVOKE SUOMOTU REVISIONAL POWERS TO REOPEN A CONCLUDED ASSESSMENT U SEC.263, THE COMMISSIONER MUST GIVE REASONS; THAT A BARE REITERATION BY HIM THAT THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, WILL NOT SUFFICE; THAT THE REASONS MUST BE SUCH AS TO SHO THAT THE AND MUST IRRESISTIBLY LEAD TO THE CONCLUSION THAT THE ORDER OF THE INCOME TAX OFFICER WAS NOT ONLY ERRONEOUS BUT WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THUS, WHILE THE INCOME TAX OFFICER IS NOT CALLED UPON TO WRITE AN T GIVING DETAILED REASONS IN RESPECT OF EACH AND EVERY DISALLOWANCE, DEDUCTION, ETC., IT IS INCUMBENT UPON THE COMMISSIONER NOT TO EXERCISE HIS SUOMOTU REVISIONAL POWERS UNLESS SUPPORTED BY ADEQUATE REASONS FOR DOING SO; THAT IF A QUERY IS RAISED DURING TH E COURSE OF THE SCRUTINY BY THE ASSESSING OFFICER, WHICH WAS ANSWERED TO THE SATISFACTION OF THE ASSESSING OFFICER, BUT NEITHER THE QUERY NOR THE ANSWER WERE REFLECTED IN THE ASSESSMENT ORDER, THIS WOULD NOT BY ITSELF LEAD TO THE CONCLUSION THAT THE ORDER OF THE ASSESSING OFFICER CALLED FOR INTERFERENCE AND REVISION. E) THE COMMISSIONER CANNOT INITIATE PROCEEDINGS WITH A VIEW TO START FISHING AND ROVING INQUIRIES IN MATTERS OR ORDERS WHICH ARE ALREADY CONCLUDED; THAT THE DEPARTMENT CANNOT BE PERMITTED TO BE GIN FRESH LITIGATION BECAUSE OF NEW VIEWS THEY ENTERTAIN ON FACTS OR NEW CIRCUMSTANCE; THAT IF THIS IS PERMITTED, LITIGATION WOULD HAVE NO END EXCEPT WHEN LEGAL INGENUITY IS EXHAUSTED F) WHETHER THERE WAS APPLICATION OF MIND BEFORE ALLOWING THE EXPENDITURE QUESTION HAS TO BE SEEN; THAT IF THERE WAS AN INQUIRY, EVEN INADEQUATE THAT WOULD ITA NO. 2643/KOL/2019 ASSESSMENT YEAR: 2016-17 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE (21 SUPRA), THE COMMISSIONER IN EXERCISE OF ES ASSESSMENT FOR THE YEARS 1952 -1953 TO 61 BECAUSE HE FOUND THAT THE INCOME TAX OFFICER WAS NOT JUSTIFIED IN ACCEPTING THE INITIAL CAPITAL, THE GIFT RECEIVED AND SALE OF JEWELLERY, THE INCOME OEVER . HE DIRECTED THE INCOME TAX OFFICER TO DO FRESH ASSESSMENT AFTER MAKING PROPER ENQUIRY AND INVESTIGATION IN REGARD TO THE JURISDICTION. THE ASSESSEE COMPLAINED BEFORE THE SUPREME COURT THAT NO FAIR OR REASONABLE OPPORTUNITY WAS GIVEN TO HER. THE REME COURT HELD THAT THERE WAS AMPLE MATERIAL TO SHOW THAT THE INCOME TAX OFFICER MADE THE ASSESSMENTS IN UNDUE HURRY; THAT HE HAD PASSED A SHORT STEREO TYPED ASSESSMENT ORDER FOR EACH ASSESSMENT YEAR; THAT ON THE FACE OF THE RECORD, DICIAL TO THE INTEREST OF THE REVENUE; AND NO PREJUDICE WAS CAUSED TO THE ASSESSEE ON ACCOUNT OF FAILURE OF THE COMMISSIONER TO INDICATE THE RESULTS OF THE ENQUIRY MADE BY HIM, AS SHE WOULD HAVE A FULL OPPORTUNITY FOR HER HE HAD JURISDICTION OR NOT AND WHETHER THE INCOME TAX ASSESSED IN THE ASSESSMENT YEARS WHICH WERE ORIGINALLY PASSED 31. FROM THE ABOVE DECISIONS, THE FOLLOWING PRINCIPLES AS TO EXERCISE OF JURISDICTION A) THE COMMISSIONER HAS TO BE SATISFIED OF TWIN CONDITIONS, NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS PREJUDICIAL REJUDICIAL TO THE REVENUE RECOURSE CANNOT BE B) EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER THE INTERESTS OF THE REVENUE. FOR EXAMPLE, TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE: OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME - IONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE TAX OFFICER IS UNSUSTAINABLE IN LAW. C) TO INVOKE SUOMOTU REVISIONAL POWERS TO REOPEN A CONCLUDED ASSESSMENT U NDER SEC.263, THE COMMISSIONER MUST GIVE REASONS; THAT A BARE REITERATION BY HIM THAT THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, WILL NOT SUFFICE; THAT THE REASONS MUST BE SUCH AS TO SHO W THAT THE AND MUST IRRESISTIBLY LEAD TO THE CONCLUSION THAT THE ORDER OF THE INCOME TAX OFFICER WAS NOT ONLY ERRONEOUS BUT WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THUS, WHILE THE INCOME TAX OFFICER IS NOT CALLED UPON TO WRITE AN T GIVING DETAILED REASONS IN RESPECT OF EACH AND EVERY DISALLOWANCE, DEDUCTION, ETC., IT IS INCUMBENT UPON THE COMMISSIONER NOT TO EXERCISE HIS SUOMOTU REVISIONAL POWERS UNLESS SUPPORTED BY ADEQUATE REASONS FOR E COURSE OF THE SCRUTINY BY THE ASSESSING OFFICER, WHICH WAS ANSWERED TO THE SATISFACTION OF THE ASSESSING OFFICER, BUT NEITHER THE QUERY NOR THE ANSWER WERE REFLECTED IN THE ASSESSMENT ORDER, THIS OF THE ASSESSING OFFICER E) THE COMMISSIONER CANNOT INITIATE PROCEEDINGS WITH A VIEW TO START FISHING AND ROVING INQUIRIES IN MATTERS OR ORDERS WHICH ARE ALREADY CONCLUDED; THAT THE GIN FRESH LITIGATION BECAUSE OF NEW VIEWS THEY ENTERTAIN ON FACTS OR NEW CIRCUMSTANCE; THAT IF THIS IS PERMITTED, LITIGATION F) WHETHER THERE WAS APPLICATION OF MIND BEFORE ALLOWING THE EXPENDITURE IN QUESTION HAS TO BE SEEN; THAT IF THERE WAS AN INQUIRY, EVEN INADEQUATE THAT WOULD NOT BY ITSELF GIVE OCCASION TO THE COMMISSIONER TO PASS ORDERS UNDER SEC.263 MERELY BECAUSE HE HAS A DIFFERENT OPINION IN THE MATTER; THAT IT IS ONLY IN CASES OF LACK OF INQUIRY THAT SUCH A COURSE OF ACTION WOULD BE OPEN; THAT AN ASSESSMENT ORDER MADE BY THE INCOME TAX OFFICER CANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE, ACCORDING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY; THERE MUST SHOW THAT THE TAX WHICH WAS LAWFULLY EXIGIBLE HAS NOT BEEN IMPOSED OR THAT BY THE APPLICATION OF THE RELEVANT STATUTE ON AN INCORRECT OR INCOMPLETE INTERPRETATION, A LESSER TAX THAN WHAT WAS JUST, HAS BEEN IMPOSED G) THE POWER OF THE COMMISSIONER UNDER SEC.263 (1) IS NOT COMMISSIONER IS ENTITLED TO EXAMINE ANY OTHER RECORDS WHICH ARE AVAILABLE AT THE TIME OF EXAMINATION BY HIM AND TO TAKE INTO CONSIDERATION EVEN THOSE EVENTS WHICH AROSE SUBSEQUENT TO THE ORDER OF 13. IN VIEW OF THE ABOVE DISCUSSION, LAID DOWN IN THE CASE- LAW CITED ABOVE, LAW AND WITHOUT JURISDICTION. HENCE WE QUASH THE ORDER OF THE LD. CIT(E APPEAL OF THE ASSESSEE. 14. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE SD/- [S.S. GODARA] JUDICIAL MEMBER DATED : 30.09.2020 {SC SPS} 13 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE NOT BY ITSELF GIVE OCCASION TO THE COMMISSIONER TO PASS ORDERS UNDER SEC.263 MERELY BECAUSE HE HAS A DIFFERENT OPINION IN THE MATTER; THAT IT IS ONLY IN CASES OF INQUIRY THAT SUCH A COURSE OF ACTION WOULD BE OPEN; THAT AN ASSESSMENT ORDER MADE BY THE INCOME TAX OFFICER CANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE, ACCORDING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY; THERE MUST BE SOME PRIMA FACIE MATERIAL ON RECORD TO SHOW THAT THE TAX WHICH WAS LAWFULLY EXIGIBLE HAS NOT BEEN IMPOSED OR THAT BY THE APPLICATION OF THE RELEVANT STATUTE ON AN INCORRECT OR INCOMPLETE INTERPRETATION, A LESSER TAX THAN WHAT WAS JUST, HAS BEEN IMPOSED . G) THE POWER OF THE COMMISSIONER UNDER SEC.263 (1) IS NOT COMMISSIONER IS ENTITLED TO EXAMINE ANY OTHER RECORDS WHICH ARE AVAILABLE AT THE TIME OF EXAMINATION BY HIM AND TO TAKE INTO CONSIDERATION EVEN THOSE EVENTS WHICH AROSE SUBSEQUENT TO THE ORDER OF ASSESSMENT. IN VIEW OF THE ABOVE DISCUSSION, APPLYING THE PRINCIPLES AND PROPOSITIONS OF LAW LAW CITED ABOVE, WE HOLD THAT THE ORDER PASSED U/S 263 IS BAD IN LAW AND WITHOUT JURISDICTION. HENCE WE QUASH THE ORDER OF THE LD. CIT(E IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 30 TH DAY OF SEPTEMBER, 2020. [J. SUDHAKAR REDDY] ACCOUNTANT MEMBER ITA NO. 2643/KOL/2019 ASSESSMENT YEAR: 2016-17 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE NOT BY ITSELF GIVE OCCASION TO THE COMMISSIONER TO PASS ORDERS UNDER SEC.263 MERELY BECAUSE HE HAS A DIFFERENT OPINION IN THE MATTER; THAT IT IS ONLY IN CASES OF INQUIRY THAT SUCH A COURSE OF ACTION WOULD BE OPEN; THAT AN ASSESSMENT ORDER MADE BY THE INCOME TAX OFFICER CANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE, ACCORDING TO HIM, THE ORDER SHOULD HAVE BEEN BE SOME PRIMA FACIE MATERIAL ON RECORD TO SHOW THAT THE TAX WHICH WAS LAWFULLY EXIGIBLE HAS NOT BEEN IMPOSED OR THAT BY THE APPLICATION OF THE RELEVANT STATUTE ON AN INCORRECT OR INCOMPLETE INTERPRETATION, A G) THE POWER OF THE COMMISSIONER UNDER SEC.263 (1) IS NOT COMMISSIONER IS ENTITLED TO EXAMINE ANY OTHER RECORDS WHICH ARE AVAILABLE AT THE TIME OF EXAMINATION BY HIM AND TO TAKE INTO CONSIDERATION EVEN THOSE EVENTS WHICH AROSE APPLYING THE PRINCIPLES AND PROPOSITIONS OF LAW WE HOLD THAT THE ORDER PASSED U/S 263 IS BAD IN LAW AND WITHOUT JURISDICTION. HENCE WE QUASH THE ORDER OF THE LD. CIT(E ) AND ALLOW THIS SD/- [J. SUDHAKAR REDDY] ACCOUNTANT MEMBER COPY OF THE ORDER FORWARDED TO: 1. THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE 12 LB BLOCK, NUJS BHAWAN SECTOR-3 SALT LAKE CITY KOLKATA 700 098 2. COMMISSIONER OF INCOME TAX 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 14 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE COMMISSIONER OF INCOME TAX (EXEMPTION), KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES ITA NO. 2643/KOL/2019 ASSESSMENT YEAR: 2016-17 THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCE TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES