MEHTA TRADING CORPORATION, MUMBAI V. CIT 20(2), MUMBAI

ITA 2838/MUM/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8230 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 08-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 12-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHA KALACIT DR
• Assessee Lawyers: ARVIND SONDE
• Keywords: Loose papers; Revised return
• Section: 143(3); 142(1); 133A; 263

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER ITA NO.2838/MUM/2013 (A.Y. 2009-10) M/S. MEHTA TRADING CORPORATION 301/302, A-WING, VERTEX VIKAS OPP. RAILWAY STN. ANDHERI(E) MUMBAI-400 069. / VS. CIT-20 PIRAMAL CHAMBERS MUMBAI . ( ! / // / APPELLANT) ( '# ! / RESPONDENT) P.A. NO.AAAFM 2829 F ! $ % $ % $ % $ % /APPELLANT BY : SHRI ARVIND SONDE '# ! $ % $ % $ % $ % /RESPONDENT BY : MS. ABHA KALA-CIT DR $ &'( / / / / DATE OF HEARING : 29.10.2014 )*+ $ &'( / DATE OF PRONOUNCEMENT : 31.10.2014 ,- ,- ,- ,- / / / / O R D E R PER JOGINDER SINGH (JM) : THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 15/3/2013 OF THE LD. CIT INVOKING REVISIONAL JURISD ICTION U/S. 263 OF THE INCOME TAX ACT, 1961 (THE ACT), DIRECTING TO MODIFY THE ORDER PASSED U/S. 143(3) OF THE ACT HOLDING THAT THE ASSESSMENT ORDER IS PREJUDICIAL TO THE INTEREST OF REVENUE MORE SPECIFICALLY WHEN THE NECE SSARY DETAILS AND ITA NO.2838/MUM/2013 2 EVIDENCES FOR THE CLAIMED BENEFIT WERE DULY FURNISH ED BEFORE THE ASSESSING OFFICER AND FURTHER EXAMINED BY HIM IN DE TAILS. 2. DURING HEARING OF THIS APPEAL, THE LD. COUNSEL F OR THE ASSESSEE SHRI ARVIND SONDE STRONGLY CHALLENGED INVO CATION OF REVISIONAL JURISDICTION U/S. 263 BY THE LD. COMMISSIONER BY SU BMITTING THAT EXACT ERROR HAS NOT BEEN POINT OUT BY THE COMMISSIONER IN THE ASSESSMENT ORDER AS TO HOW THE ORDER IS ERRONEOUS OR PRE-JUDIC IAL TO THE INTEREST OF REVENUE . OUR ATTENTION WAS INVITED TO THE NOTICE D ATED 25/7/2011, ISSUED TO THE ASSESSEE BY THE ASSESSING OFFICER ASK ING FOR CERTAIN DETAILS WHICH WAS RESPONDED VIDE COMMUNICATION DATED 8/8/20 11 IN WHICH EVERY DETAILS WERE PROVIDED TO THE ASSESSING OFFICE R. OUR ATTENTION WAS INVITED TO PAPER BOOK PAGES 17 AND 57. IT WAS PLEAD ED THAT AT PAGE 57 THE NECESSARY DETAILS AND ANALYSIS OF LOOSE PAPERS IS AVAILABLE ALONG WITH AT PAGES 67, 68 AND 71. IT WAS SPECIFICALLY POINTED OUT THAT A DETAILED ANALYSIS IS AT PAGE 71. IT WAS EXPLAINED THAT AGAIN NOTICE U/S. 142(1) OF THE ACT WAS ISSUED TO THE ASSESSEE ASKING THE ASSES SEE TO FURNISH VARIOUS DETAILS (PG-77 ONWARDS ) WHICH WAS ALSO RES PONDED VIDE COMMUNICATION DATED 27/12/2011 (PG-79 ONWARDS). THE LD. COUNSEL FOR THE ASSESSEE EXPLAINED THAT PURSUANT TO SPECIFIC DI RECTION ISSUED TO THE ASSESSEE BY THE ASSESSING OFFICER, THE ASSESSEE FUR NISHED THE DETAILS WITHIN THE TIME BOUND LIMIT. OUR ATTENTION WAS FURT HER INVITED TO THE ITA NO.2838/MUM/2013 3 ORDER SHEET OF THE ASSESSING OFFICER RUNNING INTO S IX PAGES CALLING FOR VARIOUS DETAILS. RELIANCE WAS PLACED UPON THE DECIS ION IN 203 ITR 108 (BOM.) REGARDING NON-APPLICATION OF MIND BY THE ASSESSING OFFICER . THE LD. COUNSEL FOR THE ASSESSEE EXPLAINED THAT A DETAI LED ENQUIRY WAS MADE BY THE ASSESSING OFFICER EXAMINING THE DOCUMENTS A ND THE RESPONSE TO THE QUERIES MADE BY THE ASSESSEE , THEREFORE, THERE WAS DUE APPLICATION OF MIND AND THE LD. COMMISSIONER WAS NOT EXPECTED T O THRUST HIS VIEW UPON THE ASSESSING OFFICER . RELIANCE WAS PLACED UP ON THE FOLLOWING DECISIONS:- I) CIT VS. ASHISH RAJPAL (320 ITR 674)(DEL.) II) CIT VS. EICHER LTD. (294 ITR 310) (DEL.) III) HARI IRON TRADING CO. VS. CIT (263 ITR 437) (P &H) IV) CIT VS. DEVELOPMENT CREDIT BANK LTD. (323 ITR 2 06) (BOM.) V) RCI LTD. VS. CIT (2010) 40 DTR MUM (TRB.) 186 VI) RELIANCE GAS TRANSPORTATION INFRASTRUCTURE LTD. VS. CIT(2014) (100 DTR 1)(MUM.)(TRB.) AND VII) CIT VS. ANIL KUMAR SHARMA 335 ITR 83(DEL.) 2.1 ON THE OTHER HAND THE LD. CIT-DR MS. ABHA KALA, STRONGLY DEFENDED THE CONCLUSION DRAWN BY THE LD. CIT, INVOK ING REVISIONAL JURISDICTION U/S. 263 OF THE ACT, BY SUBMITTING THA T A SHORT ORDER HAS BEEN FRAMED BY THE ASSESSING OFFICER, THEREFORE, IT IS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF AR E THAT THE ASSESSEE FILED ITA NO.2838/MUM/2013 4 E-RETURN DECLARING TOTAL INCOME AT RS.13,75,080/- O N 21/9/2009. SUBSEQUENTLY, THE ASSESSEE E-FILED THE REVISED RET URN DECLARING INCOME AT RS.1,58,75,078/-. LATER ON THE CASE WAS TAKEN UP FOR SCRUTINY, THEREFORE, NOTICE U/S. 142(1) ALONGWITH QUESTIONNAI RE WAS ISSUED AND SERVED UPON THE ASSESSEE . IN RESPONSE THE ASSESSEE ATTENDED THE ASSESSMENT PROCEEDINGS FROM TIME TO TIME AND FURNIS HED THE DETAILS, CALLED FOR BY THE ASSESSING OFFICER AND THE SAME WE RE PLACED ON RECORD. ON EXAMINATION OF THE DETAILS AND AFTER HAVING A DE TAILED DISCUSSION WITH THE ASSESSEE THE ASSESSMENT WAS COMPLETED U/S.143(3 ) OF THE ACT. 3.1 THE ASSESSMENT SO FRAMED U/S. 143(3) OF THE ACT WAS OPINED TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE BY THE LD.CIT, THEREFORE, A SHOW CAUSE NOTICE WAS ISSUED TO THE AS SESSEE WHICH WAS DULY RESPONDED BY THE ASSESSEE. THE INVOCATION OF R EVISIONAL JURISDICTION BY THE LD. CIT WAS CHALLENGED . THE REPLY OF THE AS SESSEE IS REPRODUCED HEREUNDER :- THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF TRADING IN FERROUS AND NON-FERROUS SCRAP. THE ASSESSEES ACCOUNTS ARE AUDITED U/S. 44AB OF THE IN COME TAX ACT (REFER PAGE NO.45 TO 55). THE ASSESSEE HAS FILED ITS RETURN OF INCOME ON 19/9/2009 DECLARING TOTAL INCOM E OF RS.13,75,080/- (REFER PAGE NO.56 TO 57) . THEREAFTER A SURVEY ACTION U/S. 133A OF THE ACT WAS UNDERTAKEN O N 5/3/2010 AT THE PREMISES OF THE ASSESSEE . SUBSEQUE NTLY THE ASSESSEE FILED A REVISED RETURN OF INCOME 23/4/ 2010 DECLARING TOTAL INCOME OF RS.1,58,75,078/- INCLUDIN G INCOME OF RS.1,45,00,000/- DECLARED DURING THE SURVEY ACTI ON (REFER PAGE NO.58 TO 61) . THE RETURN WAS PROCESSED U/S. 143(1) OF THE INCOME TAX ACT. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S. 143(2) OF THE INCOME TAX A CT, 1961 WERE ISSUED. ALL THE RELEVANT DETAILS WERE FILED DURING THE ITA NO.2838/MUM/2013 5 COURSE OF ASSESSMENT PROCEEDINGS . REGULAR ASSESSMENT U/S. 143(3) OF THE INCOME TAX ACT WAS COMPLETED BY THE DCIT 20(2)-MUMBAI(ASSESSING OFFICER) VIDE HIS ORDER DATED 29/12/2011 DETERMINING TOTAL TAXABLE INCOME AT RS.1,57,75,080/- (REFER PG. NO.106 TO 107) . NOW YOUR HONOUR HAS ISSUED ABOVE SHOW CAUSE NOTICE TO INITIA TE THE PROCEEDINGS U/S. 263 OF THE ACT. IN THIS CONNECTION WE AT THE OUTSET SUBMIT THAT THE PROCEEDINGS U./S. 263 OF THE ACT CAN BE INVOKED ONL Y IF THE ORDER OF THE AO IS ERRONEOUS IN SO FAR AS PREJUDICI AL TO THE INTEREST OF THE REVENUE . IT IS RESPECTFULLY SUBMIT TED THAT ALL THE DETAILS/EVIDENCES/SUPPORTING CONCERNING THE ISS UES CONSIDERED FOR INITIATING THE PROCEEDINGS U/S. 263 WERE BEORE THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS DELIBERATED AND DISCUSSED THE SAID ISSUES IN THE LI GHT OF THE MATERIAL AVAILABLE WITH HIM AND HAS THEN REACHED AT A FINDING FOR NON MAKING ANY ADDITION/DISALLOWANCES W ITH REGARD TO THE ISSUES CONSIDERED BY YOUR HONOUR FOR INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT. THE COURT HAVE TIME AND AGAIN HELD THAT THE SUPERVISORY JURISDICTION U/ S. 263 OF THE COMMISSIONER CANNOT BE EXERCISE IF THE ASSESSIN G OFFICER WHILE MAKING AN ASSESSMENT EXAMINES THE ACCOUNTS AN D THE MATERIAL ON RECORD, MAKES ENQUIRES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMI NES THE INCOME BY ACCEPTING SUCH ACCOUNTS AND MATERIAL ON R ECORD. WE FURTHER SUBMIT THAT THE PROVISIONS OF SECTION 26 3 OF THE ACT CANNOT BE INVOKED WHEN THE ASSESSING OFFICER AF TER DUE CONSIDERATION HAS TAKEN ONE OF THE POSSIBLE VIEWS, WHEN ON THE SAME SET OF FACTS TWO VIEW COULD BE POSSIBLE, A ND THE COMMISSIONER IS OF THE OTHER VIEW. WE, THEREFORE, RESPECTFULLY THAT THE INITIATION OF PROCEEDINGS U/S . 263 OF THE ACT IS NOT VALID IN LAW AS THE AO HAS APPLIED H IS MIND AND CONSIDERED THE MATERIAL ON RECORD WHILE MAKING THE ASSESSMENT U/S. 143(3) OF THE ACT AND HENCE, THE OR DER SOUGHT TO BE REVISED IS NEITHER ERRONEOUS SO AS TO BE PREJUDICIAL TO THE INTEREST OF THE REVENUE . 3.2 THE LD. CIT DID NOT AGREE WITH THE EXPLANATION OF THE ASSESSEE AND FINALLY DIRECTED THE ASSESSING OFFICER TO FRAME FRESH ASSESSMENT IN THE LIGHT OF THE DISCUSSION MADE BY HIM AFTER PROPE R VERIFICATION OF FACTS. IF THE ASSESSMENT ORDER FRAMED U/S. 143(3) OF THE A CT, REASONS FOR INVOKING REVISIONAL JURISDICTION U/S. 263 OF THE AC T BY THE LD. CIT, ITA NO.2838/MUM/2013 6 ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION, AND ANALYSED THERE IS NO DISPUTE TO THE FACT THAT A NOTICE DT.25/7/2011 ALONG WITH QUESTIONNAIRE WAS ISSUED TO THE ASSESSEE WHICH WAS DULY RESPONDED ALONG WITH EXPLANATION BY THE ASSESSEE VI DE RESPONSE DATED 8/8/2011 WHEREIN EVERY DETAIL WAS PROVIDED TO THE A SSESSING OFFICER. THE ASSESSEE FURNISHED DETAILED SUBMISSIONS/EXPLANA TION BEFORE THE ASSESSING OFFICER AS IS EVIDENT FROM THE PAPER BOOK FILED BEFORE US. THE LD. CIT OBSERVED THAT LOOSE PAPERS, FOUND DURING SU RVEY, WERE NOT ANALYSED BY THE ASSESSING OFFICER BUT FROM THE RECO RD WE FOUND THAT THIS OBSERVATION BY THE LD. CIT IS FACTUALLY INCORRECT A S IS EVIDENT FROM THE RECORD MADE AVAILABLE BY THE ASSESSEE . IT IS PERTI NENT TO MENTION HER THAT THE ASSESSING OFFICER AGAIN ISSUED A NOTICE U/ S. 142(1) DT.26/12/2011 (PG-77 OF THE PAPER BOOK) ASKING THE ASSESSEE TO FURNISH THE DETAILS REGARDING THE AMOUNT OF RS.1.45 CRORES, FILING OF REVISED INCOME AND LOOSE PAPER ETC. THE ASSESSEE WAS DIRECT ED VIDE PARA-3 OF THE SAID NOTICE WHICH IS REPRODUCED HEREUNDER :- 3. PLEASE NOTE THAT THE DATE AND TIME FIXED FOR YO UR COMPLIANCE TO THIS NOTICE IS 28/12/2011 AT 2.00 P.M . IN MY OFFICER AT ROOM NO.612, 6 TH FLOOR, PIRAMAL CHAMBER, PAREL, MUMBAI. 4. IT MAY PLEASE BE NOTED THAT FAILURE TO COMPLY WI TH THE REQUIREMENT OF THIS NOTICE ATTRACTS PENAL PROVISION S AS PER SECTIONS 271(1)(B) OF THE I.T. ACT. FURTHER IT MAY ALSO BE NOTED THAT IN CASE OF NON-SUBMISSION OF DETAILS REQ UIRED FOR COMPLETING THE ASSESSMENT U/S. 143(3), THE ASSESSME NT WILL BE COMPLETED ON THE BASIS OF DETAILS ON RECORD, WIT HOUT FURTHER REFERENCE IN THE MATTER. ITA NO.2838/MUM/2013 7 3.2.1 THE ASSESSEE, AS DIRECTED, DULY RESPONDED AN D FILED ITS REPLY VIDE COMMUNICATION DATED 27/12/2011, (PG-79 ONWARDS OF THE PAPER BOOK). WE HAVE NOTED THAT THROUGH THIS COMMUNICATI ON THE ASSESSEE EXPLAINED TO THE QUERIES VIDE ANNEX.-A (PG-81, 82) STATEMENT SHOWING UN-ACCOUNT CASH RECEIPT AND CASH PAYMENT AS PER ANN EX. C OF LOOSE PAPERS (PG-83, 84 OF THE PAPER BOOK). THE ASSESSEE VIDE COMMUNICATION DATED 15/11/2011, FURNISHED NON-CONFIRMATION OF PAR TIES (PGS 57 TO 98 OF THE PAPER BOOK), DETAILS OF INTEREST, PARTY-WISE , RATE OF INTEREST, GROSS AMOUNT, DEDUCTION OF TDS AND NET AMOUNT (PGS 99 TO 102 OF THE PAPER BOOK), COPY OF RENT AGREEMENT IN RESPECT OF RENT RE CEIVED FROM MTC BUSINESS PVT. LTD. AND SHAKTI ENTERPRISES (PGS.103 TO 108 OF THE PAPER BOOK) AND BOOKS OF ACCOUNTS WERE ALSO PRODUCED. ALL THESE DOCUMENTS WERE MADE AVAILABLE DURING ASSESSMENT PROCEEDINGS. IN VIEW OF THIS FACT THE OBSERVATION OF THE LD. CIT THAT NECESSARY ENQUI RIES WERE NOT MADE OR NECESSARY DETAILS WERE NOT FURNISHED BY THE ASSESSE E OR EXAMINATION OF THE SAME BY THE ASSESSING OFFICER IS NOT SUBSTANTIA TED. IT IS FURTHER SEEN THAT THE LD.CIT HAS NOT POINTED OUT ANY ERROR IN TH E ORDER AS TO HOW IT IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E . WE ARE SATISFIED THAT REQUISITE DETAILS WERE DULY FURNISHED BY THE A SSESSEE AND THE SAME WERE DULY EXAMINED BY THE ASSESSING OFFICER. WE ARE OF THE VIEW, THAT THERE IS A DISTINCTION BETWEEN LACK OF ENQUIRY AN D INADEQUATE ENQUIRY. IN THE PRESENT CASE THE ASSESSING OFFICER COLLECTED NECESSARY ITA NO.2838/MUM/2013 8 DETAILS, EXAMINED THE SAME AND THEN FRAMED THE ASSE SSMENT U/S. 143(3) OF THE ACT. THEREFORE, IN SUCH A SITUATION THE DECI SION FROM HON'BLE HIGH COURT OF DELHI IN CIT VS. ANIL KUMAR SHARMA (2011) 335 ITR 83 (DEL.)(SUPRA), CLEARLY COMES TO THE RESCUE OF THE ASSESSEE . THE H ON'BLE HIGH COURT HELD AS UNDER :- HELD, DISMISSING THE APPEAL, THAT THE PRESENT CAS E WOULD NOT BE ONE OF LACK OF ENQUIRY EVEN IF THE ENQUIRY WAS TERMED INADEQUATE. THE TRIBUNAL FOUND THAT COMPLETE DETAILS WERE FILED BEFORE THE ASSESSING OFFICER AND THAT HE APPLIED HIS MIND TO THE RELEVANT MATERIAL AND FACT, ALTHOUGH SUCH APPLICATION OF MIND WAS NOT DISCERNAB LE FROM THE ASSESSMENT ORDER . THE TRIBUNAL HELD THAT THE COMMISSIONER IN PROCEEDINGS U/S. 263 ALSO HAD ALL T HESE DETAILS AND MATERIALS AVAILABLE BEFORE HIM BUT HAD NOT BEEN ABLE TO POINT OUT DEFECTS CONCLUSIVELY IN THE MATER IAL, FOR ARRIVING AT A CONCLUSION THAT PARTICULAR INCOME HAD ESCAPED ASSESSMENT ON ACCOUNT OF NON-APPLICATION OF MIND BY THE ASSESSING OFFICER . THE TRIBUNAL WAS RIGHT AND THE ORDER OF REVISION WAS NOT VALID. 3.2.2 THE AFORESAID ORDER CLEARLY FITS INTO THE FA CTS BEFORE US . WHILE COMING TO THE AFORESAID CONCLUSION THE HON'BLE HIGH COURT DULY CONSIDERED THE DECISION IN CIT VS. SUNBEAM AUTO LTD. (2011) 332 ITR 167 (DEL.) (PARA-6 & 7). WE ARE EXPECTED TO ASCERTAIN WHETHER THE ASSESSING OFFICER HAD INVESTIGATED THE ISSUE AND APPLIED HIS MIND TOWARDS THE WHOLE RECORD MADE AVAILABLE BY THE ASSESSEE DURING ASSESSMENT PROCEEDINGS. UNCONTROVERTEDLY, NECESSARY DETAILS WE RE PRODUCED AND EXAMINED BY THE ASSESSING OFFICER, THEREFORE, IT IS NOT A CASE OF LACK OF ENQUIRY BY THE ASSESSING OFFICER. IDENTICAL RATIO W AS LAID DOWN BY THE TRIBUNAL IN THE CASE OF RELIANCE GAS TRANSPORTATION INFRASTRUCTURE LTD. ITA NO.2838/MUM/2013 9 VS. CIT (2014) 100 DTR (MUM.) (TRB.) 1 , ORDER DATED 10/1/2014, WHEREIN ONE OF US (LD. AM) IS SIGNATORY TO THE ORDER. IN AN OTHER CASE FROM HON'BLE JURISDICTIONAL HIGH COURT IN CIT VS. DEVELOPMENT CR EDIT BANK LIMITED (2010) 323 ITR 206 , ON IDENTICAL FACT WHEREIN ASSESSMENT ORDER WAS PASSED AFTER CONSIDERING ALL DETAILS CALLED FOR AND FURNISHED BY THE ASSESSEE. THE LD. COMMISSIONER INVOKED REVISIONAL J URISDICTION ON THE GROUND THAT ENQUIRY WAS NOT CONDUCTED, THE HON'BLE HIGH COURT HELD THAT THE LD. COMMISSIONER WAS NOT JUSTIFIED. IDENTI CAL IS THE SITUATION FROM HON'BLE HIGH COURT PUNJAB & HARYANA IN HARI IRON TR ADING COMPANY VS. CIT (263 ITR 437) ORDER DATED 23/5/2003 . THE HON'BLE HIGH COURT OF DELHI IN CIT VS. EICHER (294 ITR 310) (DEL.) WHEREIN THE ENTIRE MATERIAL WAS PLACED BY THE ASSESSEE BEFORE THE ASSESSING OFF ICER AT THE TIME OF ORIGINAL ASSESSMENT, THE ASSESSING OFFICER APPLIED HIS MIND TO THE MATERIAL AND ACCEPTED THE VIEW CANVASSED BY THE ASS ESSEE AND MERE FACT THAT HE DID NOT EXPRESS THIS IN THE ASSESSMENT ORDE R, CANNOT BE A GROUND TO CONCLUDE THAT INCOME HAS ESCAPED ASSESSME NT, FURTHER SUPPORTS THE CASE OF THE ASSESSEE . IDENTICALLY, TH E HON'BLE HIGH COURT OF DELHI IN CIT VS. ASHISH RAJPAL (320 ITR 674) VIDE ORDER DT.14/5/2009, DECIDED IN FAVOUR OF THE ASSESSEE . THE HON'BLE JURISDICTIONAL HIGH COURT IN CIT VS. GABRIEL INDIA LTD. (203 ITR 108) HELD THAT THERE MUST BE MATERIAL BEFORE THE COMMISSIONER TO SATISFY HIMSELF THAT TWO REQUISITE PROVIDED U/S. 263 ARE PRESENT, OTHERWISE POWER CANN OT BE EXERCISED AT ITA NO.2838/MUM/2013 10 THE WHIMS AND CAPRICE OF THE COMMISSIONER. WE HAVE ALSO SEEN THE ORDER SHEETS, WRITTEN BY THE ASSESSING OFFICER (RUN NING INTO SIX PAGES) BEFORE FRAMING THE ASSESSMENT U/S. 143(3) OF THE AC T AND ARE SATISFIED THAT HE ASKED THE ASSESSEE TO FURNISH THE NECESSARY DETAILS, THEREFORE, THE OBSERVATION MADE BY THE LD. COMMISSIONER IS NOT SUBSTANTIATED AS HAS BEEN ALLEGED IN THE REVISIONAL ORDER. 4. ADMITTEDLY, AN INCORRECT ASSUMPTION OF FACT OR A N INCORRECT APPLICATION OF LAW WOULD SATISFY THE REQUIREMENT OF ORDER BEING ERRONEOUS U/S. 263. THE PHRASE PREJUDICIAL TO THE INTEREST OF THE REVENUE U/S. 263, HAS TO BE READ IN CONJUNCTION WI TH THE EXPRESSION ERRONEOUS ORDER BY THE ASSESSING OFFICER . EVERY LOSS OF REVENUE AS A CONSEQUENCE OF ASSESSMENT ORDER CANNOT BE TERMED AS PREJUDICIAL TO THE INTEREST OF REVENUE . MEANING THEREBY PREJUDICE M UST BE PREJUDICE TO THE REVENUE ADMINISTRATION. AT THE SAME TIME, IF AN OTHER VIEW IS POSSIBLE REVISION IS NOT PERMISSIBLE. OUR VIEW IS F ORTIFIED BY THE DECISION FROM HIMACHAL PRADESH FINANCIAL CORPN. (186 TAXMANN 105) (HP), BISMILLAH TRADING CO. (248 ITR 292)(KER.) AND CIT V S. GREEN WORLD CORPN. (314 ITR 81)(SC) . FOR INVOKING REVISIONAL JURISDICTION U/S. 263 THE ASSESSMENT ORDER MUST CONTAIN GRIEVOUS ERROR WHICH IS SUBVERSIVE OF THE ADMINISTRATION OF REVENUE . FURTHER, EXACT ERROR MU ST BE DISCLOSED BY THE COMMISSIONER AS WAS HELD IN CIT VS. G.K. KABRA (211 ITR 336)(AP) . ITA NO.2838/MUM/2013 11 TOTALITY OF FACTS, CLEARLY INDICATES THAT ASSESSMEN T U/S. 143(3) OF THE ACT WAS FRAMED BY THE ASSESSING OFFICER AFTER OBTAINING NECESSARY DETAILS FROM THE ASSESSEE AND FURTHER THE SAME WERE EXAMINE D BY HIM. THEREFORE, EVEN IF, THE SAME HAS NOT BEEN SPELT ELA BORATELY IN THE ASSESSMENT ORDER IT CANNOT BE SAID THAT THERE IS A LACK OF ENQUIRY OR PREJUDICE HAS BEEN CAUSED TO THE REVENUE, AS WE HAV E DISCUSSED VARIOUS CASE LAWS IN EARLIER PART OF THIS ORDER WHICH ARE I DENTICAL TO THE FACTS BEFORE US. IN VIEW OF THESE FACTS AND THE JUDICIAL PRONOUNCEMENT FROM HON'BLE APEX COURT AND VARIOUS HON'BLE HIGH COURTS WE SET ASIDE THE ORDER OF THE LD. COMMISSIONER AND DECIDE THE APPEAL IN FAVOUR OF THE ASSESSEE . 5. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST OCT. , 2014. ,- $ )*+ .,/ 31.10.2014 * $ 6 SD/- SD/- (N.K. BILLAIYA) (JOGINDER SINGH) ( ,7 ( ,7 ( ,7 ( ,7 / ACCOUNTANT MEMBER ,7 ,7 ,7 ,7 / JUDICIAL MEMBER MUMBAI; ., DATED : 31 ST OCT. 2014. ../ JV, SR.PS . ITA NO.2838/MUM/2013 12 ,- $ '&8 98+& ,- $ '&8 98+& ,- $ '&8 98+& ,- $ '&8 98+&/ COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '# ! / THE RESPONDENT. 3. : ( ) / THE CIT, MUMBAI. 4. : / CIT(A)-13, MUMBAI 5. 8=6 '& , , / DR, ITAT, MUMBAI 6. 6> ? / GUARD FILE. ,- ,- ,- ,- / BY ORDER, #8& '& //TRUE COPY// @ @@ @/ // /A B A B A B A B (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI