Geo Tech Construction Co. Ltd., Cochin V. ACIT, Cochin

ITA 268/COCH/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4596 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 25-01-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 13-05-2009
• Court: TRIBUNAL
• Department Lawyers: S C SONKAR
• Assessee Lawyers: A S NARAYANAMOORTHY CAAR
• Keywords: Depreciation; Question of law; Difference of opinion; Change of opinion
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BEN CH, COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN, JM AND SANJAY AR ORA, AM I.T.A. NO. 268/COCH/2009 ASSESSMENT YEAR : 2004-05 GEO TECH CONSTRUCTION CO. P.LTD., 8 TH FLOOR, KSHB OFFICE COMPLEX, PANAMPILLY NAGAR, KOCHI-682 036. [PAN: AABCG 1913A] VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1(2), RANGE-1, ERNAKULAM. (ASSESSEE -APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY SHRI A.S.NARAYANAMOORTHY, CA-AR REVENUE BY SHRI S.C.SONKAR, CIT-DR O R D E R PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE, CONTESTING THE O RDER BY THE COMMISSIONER OF INCOME- TAX, KOCHI (CIT FOR SHORT) DATED 12.3.2009 U/S. 2 63 OF THE INCOME-TAX ACT, 1961 ('THE ACT' HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 20 04-05. 2. CONSEQUENT TO ITS ASSESSMENT U/S. 143(3) VIDE OR DER DATED 21.12.2006, IT WAS OBSERVED BY THE LD. CIT, THE REVISIONARY AUTHORITY UNDER THE ACT, THAT THREE ISSUES HAD BEEN OMITTED TO BE EXAMINED BY THE ASSESSING OFFICE R (AO) WHILE FRAMING THE ASSESSMENT, AS: A) ASSESSEES CLAIM FOR LOSS ON REVALUATION OF ASS ETS AMOUNTING TO ` 1,52,976/- DEBITED TO THE P&L ACCOUNT UNDER THE HEAD: `ADMINISTRATIVE EXP ENSES; B) THE BALANCE-SHEET AS AT THE YEAR-END (31.3.2004) BEARS A PROVISION FOR EXPENSES AT ` 11,49,522/- AS AGAINST ` 38,546/- FOR THE IMMEDIATELY PRECEDING YEAR. THE AL LOWABLE AMOUNT OF PROVISION HAS NOT BEEN LOOKED INTO BY THE AO; AND C) SUNDRY DEBTORS AND ADVANCES INCLUDE ` 36.89 LAKHS DUE FROM FIRMS IN WHICH THE DIRECTORS ARE PARTNERS AND ANOTHER ` 8.31 LAKHS DUE FROM RELATIVES OF THE DIRECTORS. THE ITA NO. 268/COCH/2009 2 AMOUNT ADVANCED HAD NOT BEEN CONSIDERED BY THE AO W HILE ALLOWING THE ASSESSEES CLAIM FOR INTEREST ON BORROWED FUNDS. HE, ACCORDINGLY, RELYING ON THE DECISION IN THE CAS E OF CIT VS. ACTIVE TRADERS PVT. LTD ., 214 ITR 583 (CAL.) AND THALIBAI F. JAIN VS. ITO , 101 ITR 1 (KAR.), SET ASIDE THE ASSESSMENT, REQUIRING THE AO TO REDO THE SAME AFRES H AFTER TAKING INTO ACCOUNT THE ISSUES RAISED BY HIM. AGGRIEVED, THE ASSESSEE IS IN APPEA L. 3.1 BEFORE US, DETAILED ARGUMENTS WERE ADVANCED BY THE LD. AR, THE ASSESSEES COUNSEL, MAKING A POINT-WISE REPLY TO EACH OF THE I SSUES RAISED BY THE LD. CIT. THE ASSESSEES ACCOUNTING POLICIES FIND CLEAR MENTION P ER SCHEDULE 23 TO THE ANNUAL ACCOUNTS, SO THAT THE SAME SPECIFICALLY STATE THAT THE TOOLS ARE RE-VALUED ANNUALLY. ACCORDINGLY, `LOOSE TOOLS WERE VALUED, AND THE CLAIM OF LOSS OF ` 1.53 LAKHS IS ONLY ON THAT ACCOUNT. THE SAME BEING IN CONSISTENCE WITH THE REGULARLY FO LLOWED METHOD OF ACCOUNTING BY THE ASSESSEE, I.E., FROM YEAR TO YEAR, NO CAUSE FOR DIS ALLOWING THE SAME, ARISES. IN FACT, THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. MIDLAND RUBBER AND PRODUCE COMPANY LTD. , 182 ITR 493 (KER.) UPHELD THE TRIBUNALS FINDING THAT THE WRITE OFF OF LOSS ON REVALUATION OF LOOSE TOOLS IN PURSUANCE TO THE R EGULARLY FOLLOWED ACCOUNTING PRACTICE, DID NOT LEAD TO ANY QUESTION OF LAW. WITH REFERENCE TO THE BALANCE-SHEET AS AT THE RELEVANT YEAR-END ACCOMPANYING THE RETURN (SCHEDULE 23), DEL INEATING THE ACCOUNTING POLICIES (PB PG. 10); THE ASSESSEES LETTER DATED 27.9.2008 (PB PGS. 20-21) WHEREBY, VIDE PARA 8, DETAILS OF THE PROVISION FOR EXPENSES STOOD FURNISH ED IN THE COURSE OF ASSESSMENT PROCEEDINGS, HE WOULD FURTHER CONTEND THAT THE MATT ERS UNDER REFERENCE WERE ENQUIRED INTO, AND FINDING THE SAME SATISFACTORY, NO DISALLO WANCE/ADJUSTMENT WAS MADE BY THE AO, WHO IS NEITHER OBLIGED TO RECORD IN HIS ORDER ALL T HE MATTERS HE IS IN AGREEMENT WITH NOR COULD THE ASSESSEE BE POSSIBLY PUT TO HARDSHIP ON T HAT ACCOUNT. IN FACT, NO DISALLOWANCE IN RESPECT OF THE EXPENSES OBTAINS EVEN ON ASSESSMENT PURSUANT TO THE IMPUGNED ORDER. AS REGARDS THE THIRD ISSUE RAISED, THE APPLICATION OF INTEREST-BEARING FUNDS WHOLLY FOR BUSINESS PURPOSE IS APPARENT FROM THE FACE OF THE B ALANCE-SHEET (PB PGS. 2 TO 14) ON RECORD ITSELF, EVEN AS THE BANK STATEMENTS TO SUPPO RT THE CLAIM OF INTEREST WERE SUBMITTED VIDE LETTER DATED 27.9.2006 (REFER PARA 3 THEREOF). ITA NO. 268/COCH/2009 3 3.2 THE LD. DR, ON THE OTHER HAND, WOULD STATE THAT THE ISSUE IS NOT OF NON-APPLICATION OF MIND, BUT OF THE ASSESSMENT ORDER UNDER REFERENC E BEING ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. A MIST AKE OR ERROR COULD OCCUR NOT ONLY ACCOUNT OF OMISSION, BUT EVEN ON APPLICATION OF MIN D, SO THAT WHERE IT IS SHOWN THAT THERE IS A WRONG ASSUMPTION OF FACT(S) OR AN INCORRECT AP PLICATION OF LAW, REVISION U/S. 263 WOULD LIE. TO ILLUSTRATE, HE CONTINUED, THE ASSESSE E HAS CLASSIFIED LOOSE TOOLS AS A CURRENT ASSET, AND VALUED THE SAME AT THE LOWER OF COST OR MARKET VALUE. THE SAME IS ADMITTEDLY NOT THE ASSESSEES STOCK-IN-TRADE, SO THAT ITS CLA SSIFICATION AS AN ITEM OF INVENTORY, AND VALUATION PER THE STATED METHOD, I.E., THE NORM APP LICABLE TO CURRENT ASSETS, IS INCONSISTENT WITH THE ADMITTED FACTS AND THE BASIC ACCOUNTING PR INCIPLES. HOW COULD IT CLASSIFY `LOOSE TOOLS AN ITEM OF FIXED ASSETS AS A CURRENT ASS ET AND, FURTHER, VALUE IT AT MARKET PRICE, WHEN THE SAME ARE NOT TO BE SOLD, AND NEITHER IS TH ERE ANY READY MARKET FOR SUCH USED (SECOND-HAND) TOOLS. FURTHER, WHETHER THE MATTERS O N WHICH DUE INQUIRY HAS BEEN DIRECTED BY THE LD. CIT, HAVE RESULTED IN AN ADDITION OR DIS ALLOWANCE BEING EFFECTED IN THE SUBSEQUENT PROCEEDINGS, IS WHOLLY IMMATERIAL, AND I T WOULD BE IMPERMISSIBLE TO BE INFLUENCED THEREBY AT THIS STAGE; THE PREMISES OF H IS DIRECTION BEING THAT ASSESSMENT BE MADE IN ACCORDANCE WITH THE LAW ON A PROPER CONSIDE RATION OF FACTS. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERIAL ON RECORD. 4.1 THE FIRST ISSUE THAT WE NEED TO ADDRESS IS THAT OF JURISDICTION, AND FOR WHICH THE LD. AR, IN PURSUANCE TO THE ASSESSEES GROUND NO. 1, RE LIED ON THE DECISION IN THE CASE OF CIT VS. KELVINATOR OF INDIA LTD. , 256 ITR 1 (DELHI) (FB), HOLDING THAT WHERE AN ORD ER UNDER SECTION 143(3) OF THE ACT STANDS PASSED, I.E., FOLL OWING THE VERIFICATION PROCEDURE, IT IS PRESUMED TO HAVE BEEN PASSED ON DUE APPLICATION OF MIND. SECTION 114(E) OF THE INDIAN EVIDENCE ACT, 1872, RAISES A PRESUMPTION THAT ALL J UDICIAL AND OFFICIAL ACTS ARE REGULARLY PERFORMED. 4.2 THE LAW IN THE MATTER IS WELL-SETTLED. AS THE ASSESSMENT ORDER INDICATES, THERE HAS BEEN NO ENQUIRY ON ANY OF THE MATTERS SPECIFIED. A BSENCE OF ENQUIRY, WHERE PRIMA FACIE WARRANTED, GIVES RISE TO REVISION U/S. 263 [ CIT VS. MALABAR INDUSTRIAL CO. LTD., 243 ITR 83 (SC)]. THE QUESTION THAT ARISES FOR DETERMINATIO N IS WHETHER THERE HAS BEEN DUE ITA NO. 268/COCH/2009 4 APPLICATION OF MIND BY THE AO ON THE STATED MATTERS WHILE FRAMING THE ASSESSMENT, OR NOT, AND THE ISSUE OF `PROPER INQUIRY BY HIM IS RELEVAN T IN THIS CONTEXT ONLY. IF THERE HAS BEEN, WITH THE AO TAKING A POSSIBLE VIEW, CLEARLY NO REVI SION WOULD LIE. CONTINUING FURTHER, THE DETAILS CALLED FOR BY THE AO MAY LEAD TO THE TOTAL ACCEPTANCE OF THE MATTERS ON WHICH THE INFORMATION STOOD CALLED FOR OR SUGGEST FURTHER ENQ UIRY. IT IS IN THIS CONTEXT THAT THE HONBLE COURTS HAVE HELD THAT LACK OF PROPER ENQUIR Y; THE AO BEING OBLIGED TO NOT ONLY ADJUDICATE BUT ALSO TO INVESTIGATE, SO THAT HE CANN OT REMAIN PASSIVE IN FACE OF A RETURN, WHICH IS APPARENTLY IN ORDER BUT CALLS FOR FURTHER ENQUIRY IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WOULD ITSELF IMPLY PREJUDICE, AND THAT TH E WORD ERRONEOUS U/S. 263 WOULD INCLUDE THE FAILURE TO MAKE SUCH AN ENQUIRY. REFERE NCE IN THIS CONTEXT MAY BE MADE TO THE CLASSIC DECISION BY THE HONBLE DELHI HIGH COURT IN THE CASE OF GEE VEE ENTERPRISES VS. CIT (ADDL.) , 99 ITR 375 (DEL), RENDERED FOLLOWING TWO DECISION S BY THE APEX COURT, AS WELL ITS SUBSEQUENT DECISION IN DUGGAL & CO. VS. CIT , 220 ITR 456 (DEL.), BESIDES OTHERS, INCLUDING THE DECISIONS CITED BY THE LD. CIT(A) IN HIS ORDER, AND BY THE APEX COURT IN MALABAR INDUSTRIAL CO. LTD. (SUPRA). FURTHER, ENQUIRY, BY ITS VERY NATURE, BEI NG OF INDEFINITE SCOPE, HAS TO BE CONSIDERED AS QUALIFIED BY THE WORD PROPER, DUE OR SUFFICIENT, I.E., AS IS WARRANTED UNDER THE CIRCU MSTANCES, TO ENABLE ONE CHARGED WITH THE DUTY TO ASSESS, IS LED TO A REASONABLE BASIS FOR AR RIVING AT A DECISION, ONE WAY OR THE OTHER. 4.3 COMING BACK TO THE FACTS OF THE CASE, WE FI ND NO INQUIRY IN THE INSTANT CASE FOLLOWING THE SUBMISSION OF THE BALANCE-SHEET, OR T HE DETAILS PER LETTER DATED 27.9.2006, I.E., IN RESPECT OF THE FIRST TWO ISSUES AFOREMENTI ONED, I.E., QUA LOSS ON REVALUATION OF ASSETS AND `PROVISION FOR EXPENSES (WHICH WITNES SED AN INCREASE BY ABOUT THIRTY TIMES VIS-A-VIS THE IMMEDIATELY PRECEDING YEAR), FOR US T O HOLD THAT THERE WAS ANY MATERIAL AVAILABLE WITH THE AO TO FORM AN INFORMED OPINION I N THE MATTER. THE QUESTION OF PROPRIETARY OR OTHERWISE OF THE CONSISTENT METHOD O F VALUATION OF TOOLS, FOLLOWED BY THE VERACITY OF THE VALUATION AS ADOPTED, WOULD ARISE O NLY AFTER FIRST ANSWERING THE QUESTION IF THE LOOSE TOOLS ARE A PART OF THE FIXED ASSETS (PLA NT AND MACHINERY) OF THE ASSESSEE OR A CURRENT ASSET. THE DECISION RELIED UPON BY THE LD. AR IS NOT RELEVANT; FIRSTLY, IT IS IN RELATION TO THE AGRICULTURAL INCOME-TAX, THE PROVIS IONS AS TO DEPRECIATION AND `PLANT WHERE-UNDER MAY WELL BE DIFFERENT AND, SECONDLY, AL L IT SAYS IS THAT THE SAME DOES NOT ITA NO. 268/COCH/2009 5 RAISE ANY SUBSTANTIAL QUESTION OF LAW. AS REGARDS D IVERSION OF INTEREST-BEARING FUNDS, AGAIN, THERE IS NOTHING TO INDICATE THAT THERE HAS BEEN ANY APPLICATION OF MIND BY THE AO IN THE MATTER. THE SAME, IT NEEDS TO BE APPRECIATED , CANNOT BE A MATTER OF PRESUMPTION, BEING A MATTER OF FACT, WHICH WOULD REQUIRE A FINDI NG AS TO THE FACT/S, INCLUDING INFERENTIAL. OF COURSE, AT THE SAME TIME, IT MAY BE CLARIFIED THAT THERE MUST EXIST A REASON/S OR SUITABLE GROUND/S FOR MAKING ENQUIRY, AS OTHERWI SE THE REVISIONARY POWER COULD BE EXERCISED BY THE CIT ON MERE DOUBT OR SUSPICION, AN D WHICH IS NOT PERMISSIBLE. IN THIS REGARD WE THINK THAT THE VERY FACT OF THERE BEING I NTEREST-FREE ADVANCES TO SISTER CONCERNS, INCLUDING FIRMS IN WHICH THE DIRECTORS ARE PARTNERS , AND TO THEIR RELATIVES, IS REASON ENOUGH FOR THE AO TO HAVE INQUIRED INTO THE SOURCE OF THEI R FINANCING, EVEN AS, AGREEABLY, HE MAY, THOUGH PREFERABLE, NOT CONSIDER IT NECESSARY TO REC ORD HIS SATISFACTION IN ITS RESPECT. THE LD. AR HAS IN THIS CONTEXT REFERRED TO A SCHEDULE E XHIBITING A DECLINE IN THE RELEVANT PORTFOLIO, BOTH IN ABSOLUTE AS WELL AS IN RELATIVE (PERCENTAGE OF OWNED FUNDS) TERMS (PB PG. 27). HOWEVER, THE SAME WAS CLEARLY NOT BEFORE THE AO, SO THAT THE SAME ITSELF SUGGESTS ABSENCE OF DUE INQUIRY BY HIM. IF IT IS CO NSIDERED NECESSARY TO EXPLAIN THE POSITION BY RECASTING THE BALANCE-SHEET, AND BY ADV ERTING TO THE CASE LAW, WHY WOULD IT BE NOT SO IN THE FIRST INSTANCE. THE ASSESSEE MAY HAVE , AS CLAIMED, SUFFICIENT INTEREST-FREE FUNDS, BUT THE SAME HAVE TO BE EXAMINED WITH REFERE NCE TO THEIR SEPARATE SOURCES AND CORRESPONDING APPLICATIONS. VIZ. TRADE CREDITORS, B EING SPONTANEOUS LIABILITIES ARISING ON ACCOUNT OF PURCHASE OF GOODS AND SERVICES ON CREDIT , WOULD HAVE TO BE NECESSARILY CONSIDERED, THEREFORE, AS BEING APPLIED TOWARD INVE NTORIES; THE FIXED ASSETS AND OTHER LONG-TERM INVESTMENTS, LIKE-WISE, WOULD ONLY BE CON SIDERED AS FINANCED (I.E., UNLESS CONTRARY IS SHOWN) FROM OWN/LONG-TERM FUNDS OR LOAN S SECURED OR UNSECURED SPECIFICALLY CONTRACTED FOR THE PURPOSE; THE PROFIT S ARE REALIZED THROUGH DEBTORS, SO THAT WHERE THERE IS AN INCREASE IN THE DEBTOR PORTFOLIO, PROFITS TO THAT EXTENT CANNOT BE CONSIDERED AS HAVING BEEN REALIZED, AND SO ON. IN O THER WORDS, THE MATTER IS FACTUAL, REQUIRING PROFILING THE ASSETS AND LIABILITIES, EVE N AS SOUGHT TO BE DONE BEFORE US BY THE ASSESSEE (PB PG. 27). SO HOWEVER, IT IS NOT CLEAR A S TO WHY THE LD. CIT HAS INCLUDED `SUNDRY DEBTORS FOR THE PURPOSE. THIS IS AS THE SA ME, AS THE NAME ITSELF SUGGESTS, COMPRISE TRADE DEBTS, SO THAT THE SAME ONLY REPRESE NT A BUSINESS PURPOSE AND THE SOURCE OF ITS FINANCING WOULD BE IMMATERIAL. OF COURSE, THE P OSITION WOULD BE DIFFERENT IF THE SAME ITA NO. 268/COCH/2009 6 ARE ACTUALLY NOT SO, I.E., TRADE DEBTS, BUT ONLY SH OWN AS SUCH, OR WHERE THE MONIES DUE FROM RELATED PARTY DEBTORS ARE DELIBERATELY WITHHEL D, I.E., ARE ACTUALLY FINANCED, THOUGH CAMOUFLAGED AS TRADE DEBTS, IN WHICH CASE ONLY THE SOURCE OF THEIR FINANCING, ARISING OUT OF A NON-BUSINESS ACTIVITY, WOULD BE RELEVANT. HOWE VER, THERE IS NOTHING ON RECORD TO LEAD TO SUCH AN INFERENCE OR SUGGEST SO. AS SUCH, THE DI RECTION BY THE LD. CIT, INSOFAR AS IT RELATES TO TRADE DEBTORS DUE FROM RELATED PARTIES, IS NOTHING MORE THAN A ROVING INQUIRY, AND NOT ON ACCOUNT OF THE ORDER BEING ERRONEOUS AND , THUS, NOT SUSTAINABLE IN LAW. 4.4 WITH REGARD TO THE MERITS OF EACH OF THE ISSUES , WE FIND THAT THE LD. CIT HAS, AND ONLY RIGHTLY SO, NOT RENDERED ANY DEFINITE OR CONCL USIVE FINDING OF FACT, JUST INDICATING THE AREAS WHERE IN HIS VIEW NO PROPER INQUIRY STOOD MAD E WHILE FRAMING THE ASSESSMENT AND WHICH WE HAVE ENDORSED IN THE MAIN REQUIRING PROP ER CONSIDERATION OF THE MATTER AND DECISION IN ACCORDANCE WITH LAW. ALL THAT HE HAS SA ID AND WHICH FINDS OUR CONCURRENCE - IS THAT THE AO HAS NOT CONSIDERED THE STATED ASPECT S, REQUIRING HIM TO EXAMINE THE SAME AS PER THE PROVISIONS OF LAW. THE SAME DOES NOT CARRY ANY EXPRESSION OF OPINION ON THE MERITS OF THE CASE IN THIS REGARD NOR ANY DIRECTION FOR AN EFFECTIVE DISALLOWANCE, AND WHICH WOULD STAND TO BE DETERMINED ONLY ON A PROPER APPRECIATION OF FACTS AND IN ACCORDANCE WITH LAW. AS SUCH, WE FIND NO GROUND FOR INFERENCE WITH THE IMPUGNED ORDER, AND UPHOLD THE SAME EXCEPT IN RELATION TO TRADE DEB TS FROM RELATED PARTIES. FOR THE SAME REASON, WE FIND IT NOT RELEVANT OR NECESSARY TO DWE LL ON THE OTHER CITED CASES BY THE ASSESSEE ON MERITS OF ITS CASE; IT BEING AT LIBERTY TO ADVANCE ITS CASE BEFORE THE AO, RELYING ON ALL THE MATERIALS, INCLUDING THE CASE LAW, IT DE EMS FIT. WE FIND SUPPORT FOR OUR DECISION FROM THAT BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF AZHIMALA BEACH RESORTS PVT. LTD. VS. CIT , 325 ITR 419 (KER.). WE DECIDE ACCORDINGLY. 4.5 BEFORE PARTING WITH THE ORDER, WE MAY ALSO ADVE RT TO THE DECISION IN THE CASE OF CIT VS. KELVINATOR OF INDIA (SUPRA), RELIED UPON BY THE ASSESSEE IN STATING IT S CASE ON JURISDICTION. THE ASSESSMENT U/S. 143(3), IT IS TRI TE, DOES NOT PRECLUDE REVISION; THE PARAMETERS FOR WHICH STAND CLEARLY LAID DOWN PER A HOST OF DECISIONS. WHY, IN THAT CASE, THERE OUGHT TO BE NO PROVISION FOR APPEAL, WHICH IS ONLY A JUDICIAL REVIEW OF THE ORDER APPEALED AGAINST, I.E., IF THE ASSESSMENT U/S. 143( 3) IS FRAMED ONLY ON DUE APPLICATION OF ITA NO. 268/COCH/2009 7 MIND, REQUIRING NO INTERFERENCE, BEING A QUASI-JUDI CIAL AND OFFICIAL ACT. THE OBSERVATION BY THE HONBLE COURT STANDS MADE WITH REFERENCE TO REASSESSMENT PROCEEDING, AND IN THE CONTEXT OF A CHANGE OF OPINION, WHICH CANNOT ENTITL E REASSESSMENT AND, THEREFORE, HAS TO BE READ IN THAT CONTEXT ONLY. THE PRESUMPTION U/S. 114(E) OF THE EVIDENCE ACT IS A REBUTTABLE PRESUMPTION, SO THAT THE ONUS IS ON THE REVENUE TO SHOW THAT THERE HAS BEEN, IN FACT, LACK OF PROPER INQUIRY; A WRONG ASSUMPTION OF FACT(S); AN INCORRECT APPLICATION OF LAW, AS THE CASE MAY BE, TO ENTITLE REVISION U/S. 2 63, AND WHICH STANDS DEMONSTRATED IN THE PRESENT CASE. THERE HAS BEEN NO EXPRESSION OF OPINI ON BY THE ASSESSING AUTHORITY IN THE INSTANT CASE, SO THAT THE QUESTION OF SUBSTITUTING THE SAME BY/WITH HIS OWN OPINION BY THE LD. CIT, OR OF IT BEING A MERE CHANGE OF OPINION, D OES NOT ARISE. THERE IS NO INCONSISTENCE BETWEEN WHAT STANDS HELD PER THE CITED DECISION AND OUR DECISION IN THE PRESENT CASE, WHICH IS ONLY IN CONFORMITY WITH THE SETTLED LAW. 5. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY A LLOWED. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 19TH APRIL, 2011 GJ COPY TO: 1. GEO TECH CONSTRUCTION CO. P. LTD., 8 TH FLOOR, KSHB OFFICE COMPLEX, PANAMPILLY NAGAR, KOCHI - 682 036. 2. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE -1(2), RANGE-1, ERNAKULAM. 3. THE COMMISSIONER OF INCOME-TAX, KOCHI. 4. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 5. GUARD FILE. BY ORDER ASSIS TANT REGISTRAR) ITA NO. 268/COCH/2009 8