AMIT AGARWAL, MUMBAI V. PRINCIPAL COMMISSIONER OF INCOME TAX - 28, MUMBAI

ITA 4050/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1759 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 06-06-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Question of law; Set aside
• Section: 143(3); 142(1); 54; 263; 10

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.4050/MUM/2018 ( / ASSESSMENT YEAR: 2013-14) AMIT AGARWAL C-607, PALM BEACH RESIDENCY SECTOR-04, NERUL NAVI MUMBAI-400 706. / VS. P R. C IT - 28 TOWER NO.06, VASHI NAVI MUMBAI-400 703. !' ./ ./PAN/GIR NO. AABPA-3472-H ( '$ /APPELLANT ) : ( %&'$ / RESPONDENT ) ASSESSEE BY : SHRI MANISH SHAH AND MS. NIYANTA MEHTA-LD. ARS REVEN UE B Y : SHRI ANADI VARMA-LD.CIT-DR / DATE OF HEARING : 08/04/2019 / DATE OF PRONOUNCEMENT : 06/06/2019 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER):- 1. BY WAY OF THIS APPEAL FOR ASSESSMENT YEAR [AY] 2 013-14, THE ASSESSEE HAS CONTESTED THE VALIDITY OF REVISIONAL J URISDICTION U/S 263 EXERCISED BY LD. PRINCIPAL COMMISSIONER OF INCOME-T AX-28 [PR.CIT], 2 MUMBAI VIDE ORDER DATED 26/03/2018. FOR THE SAME, T HE FOLLOWING GROUNDS HAVE BEEN RAISED BEFORE US: - GROUND NO. I: ORDER U/S 263 OF THE ACT IS VOID AB I NITIO AND BAD IN LAW: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. PR. CIT ERRED IN INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT AND SETTING AS IDE THE ORDER U/S 143(3) OF THE ACT PASSED BY THE ASST. COMMISSIONER OF INCOME TAX -28(1), MUMBAI ('THE AO') AND DIRECTING THE AO TO PASS A FRESH ORDER AFTER EXAMINATION OF THE FACTS OF THE CASE. 2. LD. PR. CIT FAILED TO APPRECIATE THAT: I. BOTH THE PRE-REQUISITES I.E. (A) THE ASSESSMENT ORDER BEING ERRONEOUS AND (B) THE ASSESSMENT ORDER BEING PREJUDICIAL TO THE INTEREST OF THE REVENUE, ARE NOT SATISFIED IN THE FACTS OF THE PRESENT CASE; II. THE AMENDMENT IN SECTION 54 BY FINANCE (NO. 2) ACT, 2014 LIMITING THE EXEMPTION TO ONE RESIDENTIAL HOUSE WAS EFFECTIVE ONLY FROM APRIL 1, 2015 RELEVANT TO ASSESSMENT YEAR 15- 16; III. THE AO HAS MADE ADEQUATE ENQUIRIES ON ISSUES I N RESPECT OF WHICH IMPUGNED ORDER HAS BEEN PASSED AND THE PLANS AS WELL AS LAYOUTS WERE P ART OF THE AGREEMENTS WHICH WERE SUBMITTED TO THE AO; IV. IN ANY CASE, MERE INADEQUATE ENQUIRY IS NOT A S UFFICIENT GROUND FOR REVISION U/S. 263 OF THE ACT; AND V. WHERE THE VIEW OF THE AO IS A POSSIBLE VIEW , REVISION U/S. 263 IS BAD IN LAW. 3. THE APPELLANT PRAYS THAT IT BE HELD THAT THE ASS ESSMENT ORDER PASSED BY THE AO IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENU E AND ACCORDINGLY THE ACTION OF THE LD. PR. CIT OF INVOKING PROVISIONS OF SECTION 263 OF THE ACT AN D DIRECTING THE AO TO VERIFY AND EXAMINE THE FACTS OF THE CASE AND TO PASS A FRESH ASSESSMENT OR DER BE HELD VOID AND BAD IN LAW. WITHOUT PREJUDICE TO GROUND NO. I: GROUND NO. II: DIRECTING THE AO TO VERIFY AS TO WHE THER THE 'NEW ACQUIRED FLATS ARE INDEPENDENT UNITS' AND RE-EXAMINING THE CLAIM OF TH E APPELLANT UNDER SECTION 54 OF THE ACT: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. PR. CIT ERRED IN EXERCISING JURISDICTION U/S 263 OF THE ACT AND DIRECTING THE A O TO RE-EXAMINE/FRESHLY EXAMINE AS TO WHETHER THE NEW FLATS PURCHASED WERE INDEPENDENT UNITS AND THEREAFTER, PASS ORDER IN ACCORDANCE WITH LAW IN RESPECT OF THE APPELLANT'S CLAIM UNDER SECTION 5 4 OF THE ACT. 2. THE LD. PR. CIT FAILED TO APPRECIATE THAT SECTIO N 54, PRIOR TO ITS AMENDMENT BY FINANCE (NO.2) ACT, 2014 W.E.F. APRIL 1, 2015, DID NOT LIMIT THE N UMBER OF UNITS TO BE PURCHASED OUT OF THE LONG- TERM CAPITAL GAINS ARISING FROM THE SALE A RESIDENT IAL HOUSE FOR CLAIM OF THE SAID EXEMPTION AND THEREFORE, WHETHER THE FLATS WERE INDEPENDENT UNITS OR NOT HAS NO BEARING ON THE CLAIM UNDER SECTION 54 OF THE ACT. 3. THE APPELLANT PRAYS THAT THE DIRECTION TO AO TO EXAMINE CLAIM UNDER SECTION 54 AFTER VERIFYING WHETHER THE NEWLY ACQUIRED UNITS WERE INDEPENDENT U NITS BE QUASHED. WITHOUT PREJUDICE TO GROUND NO. I AND II: GROUND NO. ILL: CLAIM UNDER SECTION 54 WAS VALID AS ADJACENT UNITS WERE PURCHASED TO BE USED AS SINGLE DWELLING UNIT 3 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. PR. CIT ERRED IN EXERCISING JURISDICTION U/S 263 OF THE ACT AND DIRECTING THE A O TO EXAMINE THE BUILDING PLANS TO DETERMINE WHETHER THE UNITS WERE INDEPENDENT UNITS. 2. LD. PR. CIT FAILED TO APPRECIATE AND OUGHT TO HAVE HELD THAT THE AO HAS DULY EXAMINED THE SAID ISSUE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3. LD. PR. CIT ERRED IN NOT APPRECIATING THAT THE LAYOUT AND PLANS WERE PART OF THE AGREEMENTS SUBMITTED TO THE AO AND THE UNITS BEING ADJACENT UN ITS WERE INTENDED TO BE USED AS A SINGLE DWELLING UNIT. 4. LD. PR. CIT FAILED TO APPRECIATE THAT THE AO AFTER EXAMINING THE AGREEMENTS AND THE LAYOUT AND PLAN CONTAINED THEREIN HAD RIGHTLY ALLOWED THE CLAI M OF THE APPELLANT. 5. THE APPELLANT PRAYS THAT THE DIRECTION TO RE- EXAMINE THE CLAIM UNDER SECTION 54 AFTER VERIFICATI ON OF THE LAYOUT AND BUILDING PLANS BE QUASHED. 2.1 FACTS AS EMANATING FROM THE RECORD ARE THAT THE ASSESSEE BEING RESIDENT INDIVIDUAL WAS ASSESSED FOR IMPUGNED AY IN SCRUTINY ASSESSMENT U/S 143(3) ON 02/02/2016 ACCEPTING THE RETURNED INC OME OF RS.50.21 LACS E-FILED BY THE ASSESSEE ON 28/09/2013. 2.2 SUBSEQUENTLY, THIS ORDER WAS SUBJECTED TO REVIS IONAL JURISDICTION U/S 263 BY LD. PR.CIT VIDE SHOW-CAUSE NOTICE DATED 12/09/2017, THE RELEVANT EXTRACT OF WHICH IS AS UNDER: - 2. THE ASSESSMENT IN YOUR CASE HAS BEEN COMPLETED U/S. 143(3) OF THE I.T. ACT, 1961 ON 02.02.2016, ACCEPTING THE RETURNED INCOME A T RS.50,21,020/-. 3. ON PERUSAL OF RECORDS, THE FOLLOWING ISSUES ARE NOTICED IN THE AFORESAID ORDER U/S. 143(3) OF THE INCOME TAX ACT, 1961 DATED 02.02.2016 . 3.1 IT IS SEEN FROM THE RECORDS THAT YOU HAVE SOLD TWO FLATS NOS. 501 & 502 IN SUN PALM VIEW BLDG, SANPADA ON 18/10 /2012 & 16/10/2012 RESPECTIVELY FOR SALE CONSIDERATION OF RS.1,12,50,0 00/- EACH. WHEREAS YOU HAVE SOLD FLAT NO.501 AND PURCHASED TWO FLATS 401 & 402 IN MONARCH IMPERIAL, KALAMBOLI AMOUNTING TO RS.40 LACS EACH. A GAINST THE SALE OF FLAT NO.502 YOU HAVE PURCHASED TWO MORE FLATS 302 & 303, MONARCH IMPERIAL, KALAMBOLI AMOUNTING TO RS.28 LACS PLUS RS.5 LACS (A DDITIONAL AMENITIES) EACH. IT IS OBSERVED THAT YOU HAVE CLAIMED EXEMPTIO N U/S. 54 OF THE I.T. ACT ON PURCHASE OF 4 FLATS AGAINST THE SALE OF 2 FLATS WHICH IS NOT PERMISSIBLE AS PER SECTION 54 OF THE I.T. ACT, 1961. 4. IN VIEW OF THE ABOVE, IT IS EVIDENT THAT THE AS SESSING OFFICER HAS NOT EXAMINED THE AFORESAID ISSUES AT ALL AND ALLOWED THE CLAIMS MADE BY YOU WITHOUT INQUIRING, VERIFICATION, RESULTING IN EXCESS CLAIMS BEING ALLO WED. THEREFORE, IT IS CONSIDERED THAT THE ORDER DATED 02.02.2016 U/S. 143(3) OF THE INCOME-TAX ACT, 1961 IS 4 ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF REVENUE WITHIN THE MEANING OF SEC. 263 OF THE INCOME-TAX ACT, 1961. 5. YOU ARE, THEREFORE, ALLOWED AN OPPORTUNITY OF B EING HEARD AND SHOW CAUSE AS TO WHY AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT OR CANCELLING THE ASSESSMENT AND DIRECTING A FRESH ASS ESSMENT WITHIN THE MEANING OF SECTION 263 OF THE INCOME TAX ACT, 1961 MAY NOT BE PASSED IN YOUR CASE. 2.3 IN RESPONSE, THE ASSESSEE VIDE LETTER DATED 04/ 10/2017, SUBMITTED THAT THE ASSESSEE SOLD TWO RESIDENTIAL HOUSE PROPERTY AN D AGAINST SALE OF EACH OF THE HOUSE PROPERTY, THE ASSESSEE HAD PURCHASED T WO ADJACENT FLATS INTENDED TO BE USED AS SINGLE DWELLING UNIT AND THE DEDUCTION U/S 54 WAS CLAIMED ON PURCHASE OF NEW FLATS. IT WAS SUBMITTED THAT THE DETAILS OF COMPUTATION OF THE CAPITAL GAINS OF THE SAID TRANSA CTIONS WAS CALLED FOR BY LD. AO DURING SCRUTINY ASSESSMENT PROCEEDINGS VIDE QUESTION NO. 26 OF NOTICE DATED 23/12/2015 AND AFTER CONSIDERING THE A SSESSEES REPLY, THE ASSESSEES CLAIM WAS ACCEPTED U/S 54. 2.4 IN REPLY, THE ATTENTION WAS ALSO DRAWN TO THE J UDGMENT OF HONBLE DELHI HIGH COURT RENDERED IN GITA DUGGAL 257 CTR 208 TO SUBMIT THAT A RESIDENTIAL HOUSE SHOULD BE UNDERSTOOD IN THE SENSE THAT THE BUILDING SHOULD BE A RESIDENTIAL ONE AND THAT THE WORDS A WOULD NOT MEAN TO INDICATE A SINGULAR NUMBER. IT WAS FURTHER SUBMITTE D THAT THE WORDS A RESIDENTIAL HOUSE WERE REPLACED WITH ONE RESIDENT IAL HOUSE ONLY WITH EFFECT FROM 01/04/2015 AND ACCORDINGLY, THE AMENDMENT WOUL D NOT APPLY TO ASSESSMENT YEAR UNDER DISPUTE. RELIANCE WAS PLACED ON THE DECISION OF HONBLE MADRAS HIGH COURT RENDERED IN CIT VS V.R.KARPAGAM [373 ITR 127]. IT WAS ALSO SUBMITTED THAT AS PER THE DECISION OF THIS TRIBUNAL RENDERED IN RAJESH KESHAV PILLAI VS ITO [44 SOT 617 ], THERE WAS NO BAR ON 5 CLAIMING EXEMPTION ON SALE OF MULTIPLE HOUSES, PROV IDE THE REQUISITE CONDITIONS WERE SATISFIED. IN THE ABOVE BACKGROUND, IT WAS SUBMITTED THAT DEDUCTION WAS PERMISSIBLE UNDER LAW AND THE DECISIO N OF LD. AO WAS IN LINE WITH BINDING JUDICIAL PRECEDENTS AND THEREFORE NO R EVISION WAS WARRANTED. THE SUBMISSIONS WERE ALSO MADE THAT THE TWIN CONDIT IONS TO INVOKE SECTION 263 VIZ. ERRONEOUS AS WELL AS PREJUDICIAL TO THE IN TEREST OF THE REVENUE WERE NOT FULFILLED IN THE PRESENT CASE. RELIANCE WAS PLA CED ON THE DECISION OF HONBLE BOMBAY HIGH COURT RENDERED IN CIT VS GABRIE L INDIA LTD. [203 ITR 108]. THE SUBMISSIONS WERE ALSO MADE THAT LD. AO HA D ALREADY APPLIED HIS MIND ON THE STATED ISSUE BY ASKING AND SCRUTINIZING VARIOUS DETAILS AND ACCEPTED ASSESSEES CLAIM WITH DUE APPLICATION OF M IND. 2.5 HOWEVER, NOT SATISFIED WITH ASSESSEES SUBMISSI ONS, THE ORDER WAS SET ASIDE AFTER MAKING FOLLOWING OBSERVATIONS: - 6. THE SUBMISSION OF THE ASSESSEE IS DULY CONSIDER ED AND FOUND NOT TENABLE. THE ASSESSING OFFICER HAS NOT EXAMINED WHETHER THE NEW RESIDENTIAL FLATS PURCHASED BY THE ASSESSEE ARE 2 SEPARATE INDEPENDEN T UNITS & SOLD TO THE ASSESSEE BY THE DEVELOPER BY SEPARATE AGREEMENT. TH E AO SHOULD HAVE EXAMINED THE SANCTIONED APPROVED BUILDING PLAN TO ASCERTAIN WHETHER THE NEW ACQUIRED FLATS ARE INDEPENDENT UNITS. DURING THE ASSESSMENT PROCEE DINGS, THE ASSESSING OFFICER HAS NOT EXAMINED THE AFORESAID ISSUES AT ALL AND AL LOWED THE CLAIMS MADE WITHOUT VERIFICATION, RESULTING IN EXCESS CLAIMS BEING ALLO WED. 7. THEREFORE, IT IS HELD THAT THE ORDER DATED 02.0 2.2016 U/S. 143(3) OF THE INCOME TAX ACT, 1961 IS ERRONEOUS IN SO FAR AS IT IS PREJU DICIAL TO THE INTERESTS OF THE REVENUE WITHIN THE MEANING OF SEC.263 OF THE INCOME-TAX ACT , 1961 AND, AS THE ASSESSING OFFICER FAILED TO CONDUCT PROPER INQUIRIES, INVESTI GATION AND ENQUIRIES, THE ASSESSMENT ORDER IS SET ASIDE TO THE ASSESSING OFFI CER WITH THE DIRECTION TO VERIFY THE CLAIM OF THE ASSESSEE AFTER CONDUCTING PROPER I NQUIRIES, INVESTIGATION AND EXAMINATION AND PASS A FRESH ASSESSMENT ORDER IN AC CORDANCE WITH LAW AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE . THE ORDER SHALL BE PASSED UNDER THE SUPERVISION AND GUIDANCE OF THE JT.CIT-28 (1), MUMBAI. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 6 3. THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE R EITERATING THE SUBMISSIONS ADVANCED ARGUMENTS THAT THE STATED ISSU E WAS DULY SCRUTINIZED BY LD. AO DURING ORIGINAL ASSESSMENT PROCEEDINGS AN D ACCEPTED THE CLAIM WITH DUE APPLICATION OF MIND AND THEREFORE, THE SAM E WOULD NOT WARRANT REVISIONAL JURISDICTION U/S 263. PER CONTRA, LD. CIT-DR SUBMITTED THAT THE FAILURE ON THE PART OF LD. AO TO CARRY OUT INVESTIG ATIONS AS OBSERVED BY LD.PR.CIT WOULD JUSTIFY REVISION U/S 263. THE LD. A R HAS ALSO ADVANCED ARGUMENT ON MERITS OF THE CASE ALSO AND SUBMITTED T HAT THE ASSESSEE WAS ELIGIBLE TO CLAIM AFORESAID DEDUCTION U/S 54. 4.1 WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS A ND PERUSED RELEVANT MATERIAL ON RECORD INCLUDING QUESTION PUT TO ASSESS EE IN NOTICE U/S 142(1) DURING ORIGINAL ASSESSMENT FRAMED U/S143(3). 4.2 UPON PERUSAL OF NOTICE U/S 142(1) DATED 23/12/2 015 ISSUED AT THE TIME OF SCRUTINY ASSESSMENT, IT IS NOTED THAT A SPECIFIC QUESTION WAS PUT TO ASSESSEE WHICH READ AS FOLLOWS: - 26. GIVE COPY OF SALE DEED OF ALL PROPERTY RELATED WITH EXEMPT LTCG. ALSO GIVE DETAILED WORKING OF THE SAME. ALSO GIVE PROOF OF LTCG CALCUL ATION GIVEN BY YOU. IN RESPONSE, THE ASSESSEE, PROVIDED DETAILS OF THE SAME AND PROVIDED SEPARATE COMPUTATION OF CAPITAL GAINS EARNED ON FLA T NO. A-501 AND FLAT NO. A-502. SEPARATE DETAILS OF HOUSE PROPERTY PURCH ASED TO CLAIM EXEMPTION U/S 54 ON ACCOUNT OF PURCHASE OF FLAT NOS . 302 & 303 AND FLAT NOS 401 & 402 WAS ALSO PROVIDED TO LD. AO. ALONG WI TH THE SAME, THE COPIES OF SALE DEEDS AS WELL AS PURCHASE DEEDS EXEC UTED BY THE ASSESSEE WERE SUBMITTED IN SUPPORT OF THE COMPUTATIONS. IT I S OBSERVED THAT THE PROPERTIES HAVE BEEN SOLD AS WELL AS ACQUIRED BY TH E ASSESSEE BY WAY OF 7 SEPARATE DEEDS. THE LD.AO, AFTER APPRECIATING THE S AME, ACCEPTED THE CLAIM MADE BY THE ASSESSEE. 4.3 THE PERUSAL OF THESE SUBMISSIONS AND DOCUMENTS WOULD ESTABLISH THAT SPECIFIC QUERIES WERE RAISED BY LD.AO REGARDING ASS ESSEES ELIGIBILITY TO CLAIM EXEMPTION U/S 54 AND THE DOCUMENTS / INFORMAT ION WERE DULY SUPPLIED BY THE ASSESSEE. THEREFORE, WE FORM AN OPINION THAT LD. AO WITH DUE APPLICATION OF MIND, AFTER MAKING REQUISITE INQUIRI ES, ACCEPTED ASSESSEES CLAIM. THIS BEING SO, THE ACTION OF LD. PR.CIT COUL D NOT BE JUSTIFIED. NOTHING ON RECORD WOULD SUGGEST THAT THE ACTION OF LD.AO WA S NOT IN CONFORMITY WITH STATUTORY PROVISIONS OR NOT IN LINE WITH THE BINDIN G JUDICIAL PRECEDENTS PREVAILING AT THE TIME OF FRAMING ASSESSMENT U/S 14 3(3). AS PER EXTANT PROVISIONS OF SECTION 54 OF THE ACT AS INTERPRETED BY VARIOUS JUDICIAL AUTHORITIES, THE EXPRESSIONS A RESIDENTIAL HOUSE WOULD NOT MEAN TO INDICATE A SINGULAR NUMBER. THE SAME IS ALSO EVIDENT FROM TH E FACT THAT THE WORDS A RESIDENTIAL HOUSE WERE REPLACED WITH ONE RESIDENT IAL HOUSE ONLY WITH EFFECT FROM 01/04/2015 AND ACCORDINGLY, THE AMENDMENT WAS NOT APPLICABLE TO IMPUGNED AY. SIMPLY BECAUSE, LD. PR.CIT HOLD ADVERS E VIEW IN THE MATTER, IN OUR OPINION, WOULD NOT BE A GROUND TO INVOKE JUR ISDICTION U/S 263 UNLESS ANY PERVERSITY IS ESTABLISHED IN THE ORDER OF LD. A O. ONCE A PLAUSIBLE & LEGALLY SUSTAINABLE VIEW HAS BEEN TAKEN BY LD. AO I N THE MATTER, THE REVISIONAL JURISDICTION U/S 263 WOULD NOT BE WARRAN TED. 4.4 WE DRAW SUPPORT FROM THE DECISION OF HONBLE BO MBAY HIGH COURT RENDERED IN MOIL LTD. VS. CIT [81 TAXMANN.COM 420] WHEREIN HONBLE COURT HAS HELD AS UNDER: - 8 5. ON A PERUSAL OF THE ORDERS PASSED BY THE AUTHORITI ES, IT APPEARS THAT BEFORE THE ASSESSMENT ORDER WAS PASSED, A NOTICE WAS SERVED ON THE ASSESSEE UNDER SECTION 142 (1) OF THE ACT AND 20 QUERIES PERTAINING TO DIFFERE NT HEADS WERE MADE THEREIN. THE NINTH QUERY IN THE NOTICE UNDER SECTION 142 (1) OF THE AC T PERTAINS TO THE EXPENDITURE FOR THE CORPORATE SOCIAL RESPONSIBILITY. BY THE SAID QUERY, THE ASSESSEE WAS DIRECTED TO GIVE A DETAILED NOTE OF EXPENDITURE FOR THE CORPORATE SOCI AL RESPONSIBILITY ALONG WITH BIFURCATION OF THE EXPENSES UNDER DIFFERENT HEADS. AN EXHAUSTIVE REPLY WAS SUBMITTED BY THE ASSESSEE TO THE NOTICE UNDER SECTION 142 (1) OF THE ACT. IN PARAGRAPH 8 OF THE REPLY, THE ASSESSEE GAVE THE DETAILED NOTE PERTAINING TO T HE EXPENDITURE FOR THE CORPORATE SOCIAL RESPONSIBILITY UNDER DIFFERENT HEADS THAT RU NS INTO SEVERAL PAGES. THE HEADS UNDER WHICH THE EXPENSES WERE MADE TOWARDS THE CORP ORATE SOCIAL RESPONSIBILITY WERE SPECIFICALLY MENTIONED AS HEALTH, ENVIRONMENT, SPOR TS, EDUCATION ETC. AND FOR EACH OF THE DIFFERENT HEADS, PARTICULARS WERE GIVEN IN RESPECT OF EVERY MINOR OR MAJOR EXPENSES. A DETAILED NOTE ON THE EXPENDITURE ON THE CORPORATE S OCIAL RESPONSIBILITY CLAIM WAS GIVEN IN PARAGRAPH 8 WHICH RUNS INTO MORE THAN FIVE PAGES . IT IS NOT DISPUTED THAT THE APPELLANT - ASSESSEE IS A GOVERNMENT OF INDIA UNDERTAKING AND THE GOVERNMENT HAS A CONTROL OVER THE EXPENSES OF THE UNDERTAKING. IT IS PERTINE NT TO NOTE THAT DURING THE PREVIOUS ASSESSMENT YEARS, SIMILAR CLAIMS WERE MADE BY THE A SSESSEE - COMPANY AND THE ASSESSMENT ORDERS ALLOWING THE CLAIMS HAVE ATTAINED FINALITY. WE HAVE MINUTELY PERUSED THE ASSESSMENT ORDER. THE CLAIMS FOR DEDUCTIONS WER E MADE BY THE ASSESSEE AT LEAST UNDER 20 HEADS AND QUERIES WERE MADE IN THE NOTICE UNDER SECTION 142 (1) OF THE ACT TO THE ASSESSEE IN RESPECT OF NEARLY ALL OF THEM. WE, HOWEVER, FIND FROM THE ASSESSMENT ORDER THAT THE ASSESSING OFFICER HAS DEALT WITH NEA RLY NINE CLAIMS OF DEDUCTIONS. THESE CLAIMS HAVE BEEN SPECIFICALLY MENTIONED IN THE ASSE SSMENT ORDER AND THEY HAVE BEEN DISCUSSED THEREIN BECAUSE THE ASSESSING OFFICER APP EARS TO HAVE DISALLOWED THOSE CLAIMS EITHER PARTIALLY OR TOTALLY. IN RESPECT OF T HE CLAIM FOR THE CORPORATE SOCIAL RESPONSIBILITY AND SOME OTHER CLAIMS THAT WERE ALLO WED BY THE ASSESSING OFFICER, THE ASSESSING OFFICER HAS NOT MADE A SPECIFIC REFERENCE IN THE ASSESSMENT ORDER. IT IS APPARENT FROM THE ASSESSMENT ORDER THAT THE ASSESSI NG OFFICER HAS EXPRESSED IN DETAIL ABOUT THE CLAIMS THAT WERE DISALLOWABLE. WHERE THE CLAIMS WERE ALLOWABLE, AS WE FIND FROM THE READING OF THE ASSESSMENT ORDER, THE ASSES SING OFFICER HAS NOT REFERRED TO THOSE CLAIMS. THE CORPORATE SOCIAL RESPONSIBILITY C LAIM IS ONE OF THEM. IT IS APPARENT FROM THE NOTICE UNDER SECTION 142 (1) OF THE ACT TH AT A SPECIFIC QUERY IN REGARD TO THE CLAIM PERTAINING TO THE CORPORATE SOCIAL RESPONSIBI LITY WAS MADE AND A DETAILED NOTE AFTER GIVING BIFURCATION OF THE EXPENSES UNDER DIFF ERENT HEADS WAS SOUGHT. WE HAVE PERUSED THE RESPONSE IN RESPECT OF THIS QUERY WHICH IS EXHAUSTIVE. WE FIND THAT THE ASSESSEE HAS GIVEN THE DETAILS, AS ARE SOUGHT UNDER QUERY NO.9 IN THE NOTICE UNDER SECTION 142 (1) OF THE ACT. IF THAT IS SO, THE JUDG MENTS, REPORTED IN FINE JEWELLERY (INDIA) LTD. (SUPRA) AND NIRAV MODI (SUPRA) AND ON WHICH TH E LEARNED COUNSEL FOR THE ASSESSEE HAS PLACED GREAT RELIANCE WOULD COME INTO PLAY. IT IS HELD IN THE JUDGMENTS REFERRED TO HEREIN ABOVE BY RELYING ON THE JUDGMENT IN THE CASE OF IDEA CELLULAR LTD. (SUPRA) THAT IF A QUERY IS RAISED DURING THE ASSESSMENT PROCEEDINGS A ND THE QUERY IS RESPONDED TO BY THE ASSESSEE, THE MERE FACT THAT THE QUERY IS NOT D EALT WITH IN THE ASSESSMENT ORDER WOULD NOT LEAD TO A CONCLUSION THAT NO MIND HAS BEE N APPLIED TO IT. IN THE CASE OF FINE JEWELLERY (INDIA) LTD. (SUPRA) THIS COURT FOUND THA T FROM THE NATURE OF THE EXPENDITURE AS 9 EXPLAINED BY THE ASSESSEE IN THAT CASE THE ASSESSIN G OFFICER TOOK A POSSIBLE VIEW AND THEREFORE, IT WAS NOT A CASE WHERE THE PROVISIONS O F SECTION 263 OF THE ACT COULD HAVE BEEN RESORTED TO. CONSIDERING THE EXPLANATION OF TH E ASSESSEE IN THIS CASE, WE ARE ALSO OF THE VIEW THAT THE ASSESSING OFFICER HAD TAKEN A POSSIBLE VIEW. IN THE CASE OF NIRAV MODI (SUPRA) THIS COURT HELD THAT THE TRIBUNAL WAS JUSTIFIED IN THAT CASE IN CANCELLING THE ORDER UNDER SECTION 263 OF THE ACT AS THE ASSESSEE HAD RESPONDED TO THE QUERY MADE TO IT DURING THE ASSESSMENT PROCEEDINGS AND MERELY BECAUSE THE ASSESSMENT ORDER DID NOT MENTION THE SAME, IT WOULD NOT LEAD TO A CONCLU SION THAT THE ASSESSING OFFICER HAD NOT APPLIED HIS MIND TO THE CASE. IN THE INSTANT CA SE, WE FIND THAT THE ASSESSING OFFICER HAS APPLIED HIS MIND TO THE CLAIMS MADE BY THE ASSE SSEE AND WHEREVER THE CLAIMS WERE DISALLOWABLE THEY HAVE BEEN DISCUSSED IN THAT ASSES SMENT ORDER AND THERE IS NO DISCUSSION OR REFERENCE IN RESPECT OF THE CLAIMS TH AT WERE ALLOWED. IN VIEW OF THE LAW LAID DOWN IN THE JUDGMENTS IN THE CASE OF FINE JEWELLERY (INDIA) LTD. (SUPRA) AND NIRAV MODI (SUPRA) IT WOULD BE NECESSARY TO HOLD THAT IN THE C IRCUMSTANCES OF THE CASE, IT CANNOT BE SAID THAT MERELY BECAUSE THE ASSESSING OFFICER HAD NOT SPECIFICALLY MENTIONED ABOUT THE CLAIM IN RESPECT OF THE CORPORATE SOCIAL RESPONSIBI LITY, THE ASSESSING OFFICER HAD PASSED THE ASSESSMENT ORDER WITHOUT MAKING ANY ENQU IRY IN RESPECT OF THE ALLOWABILITY OF THE CLAIM OF CORPORATE SOCIAL RESPONSIBILITY. IN OUR VIEW, THE PROVISIONS OF SECTION 263 OF THE ACT COULD NOT HAVE BEEN INVOKED BY THE C OMMISSIONER OF INCOME TAX IN THE CIRCUMSTANCES OF THIS CASE. THE TRIBUNAL WAS NOT JU STIFIED IN HOLDING THAT THE QUERY UNDER SECTION 142 (1) OF THE ACT WAS VERY GENERAL I N NATURE AND THE REPLY OF THE ASSESSEE WAS ALSO VERY GENERAL IN NATURE. IN OUR CO NSIDERED VIEW, THE QUERY PERTAINING TO CORPORATE SOCIAL RESPONSIBILITY WAS EXHAUSTIVELY ANSWERED AND THE APPELLANT - ASSESSEE HAD PROVIDED THE DATA PERTAINING TO THE EX PENDITURE UNDER EACH HEAD OF THE CLAIM IN RESPECT OF CORPORATE SOCIAL RESPONSIBILITY , IN DETAIL. THE TRIBUNAL WAS NOT JUSTIFIED IN HOLDING THAT THE REPLY/EXPLANATION OF THE ASSESSEE WAS NOT ELABORATE ENOUGH TO DECIDE WHETHER THE EXPENDITURE CLAIM WAS ADMISSI BLE UNDER THE PROVISIONS OF THE INCOME TAX ACT. THE ASSESSING OFFICER IS NOT EXPECT ED TO RAISE MORE QUERIES, IF THE ASSESSING OFFICER IS SATISFIED ABOUT THE ADMISSIBIL ITY OF CLAIM ON THE BASIS OF THE MATERIAL AND THE DETAILS SUPPLIED. IN THE FACTS AND CIRCUMST ANCES OF THE CASE, WE ANSWER THE QUESTION OF LAW IN THE NEGATIVE AND AGAINST THE REV ENUE. THE HONBLE BOMBAY HIGH COURT IN CIT VS. HINDUSTAN LEVER LTD. 19 TAXMAN.COM 56] FOLLOWING THE JUDGMENT IN CIT VS. GABRIEL INDIA LTD. [203 ITR 108] OBSERVED AS UNDER: - 9. BEFORE WE DEAL WITH THE GROUNDS ON WHICH THE COMMI SSIONER SOUGHT TO EXERCISE HIS JURISDICTION UNDER SECTION 263 AND THE DECISION OF THE TRIBUNAL IN APPEAL, IT WOULD, AT THE OUTSET, BE NECESSARY TO ADVERT TO THE PARAMETERS FO R THE EXERCISE OF THE JURISDICTION UNDER SECTION 263 OF THE ACT. SECTION 263 EMPOWERS THE COMMISSIONER TO CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING 'IF HE CONSIDE RS THAT ANY ORDER PASSED THEREIN BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE'. THE LANGUAGE OF SECTION 263 IMPOSES TWO R EQUIREMENTS, THE FIRST BEING THAT THE ORDER OF THE ASSESSING OFFICER MUST BE REGARDED AS BEING ERRONEOUS AND THE SECOND 10 THAT THE ORDER MUST BE PREJUDICIAL TO THE INTERESTS OF THE REVENUE. SIMILARLY, THE COMMISSIONER CANNOT EXERCISE HIS JURISDICTION UNDER SECTION 263 MERELY ON THE GROUND THAT THE INTERESTS OF THE REVENUE ARE PREJUDICED WI THOUT COMING TO THE CONCLUSION, IN ADDITION, THAT THE ORDER IN RESPECT OF WHICH HE EXE RCISES HIS REVISIONAL JURISDICTION IS ERRONEOUS. BOTH THE REQUIREMENT OF THE ORDER BEING ERRONEOUS AND BEING PREJUDICIAL TO THE INTERESTS OF THE REVENUE, MUST BE FULFILLED. 10. SEVERAL JUDGMENTS OF THE HIGH COURTS HAD CONSIDERE D THE AMBIT OF THE JURISDICTION UNDER SECTION 263 BEFORE THE ISSUE WAS COMPREHENSIV ELY DETERMINED BY THE SUPREME COURT IN MALABAR INDUSTRIAL CO. LTD. ( SUPRA ). A JUDGMENT OF A DIVISION BENCH OF THIS COURT IN CIT V. GABRIEL INDIA LTD. [1993] 203 ITR 108 / 71 TAXMAN 585 , HELD THAT AN ORDER CANNOT BE TERMED AS ERRONEOUS UNLESS IT IS NO T IN ACCORDANCE WITH LAW. MOREOVER, THE DIVISION BENCH HELD THAT IF THE ASSESSING OFFIC ER ACTING IN ACCORDANCE WITH THE LAW HAS MADE A CERTAIN ASSESSMENT, IT CANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE THE ORDER SHOULD HAVE B EEN WRITTEN MORE ELABORATELY OR BECAUSE THE COMMISSIONER IN SUBSTITUTION OF HIS OWN JUDGMENT FOR THAT OF THE ASSESSING OFFICER HOLDS THAT THE DECISION IS ERRONEOUS. THE D IVISION BENCH HELD THAT AN ORDER OF THE ASSESSING OFFICER TO BE ERRONEOUS MUST BE ONE W HICH IS NOT IN ACCORDANCE WITH LAW OR AN ORDER WHICH HAS BEEN PASSED WITHOUT MAKING AN ENQUIRY IN UNDUE HASTE. SIMILARLY, AN ORDER CANNOT BE SAID TO BE PREJUDICIAL TO THE IN TERESTS OF THE REVENUE, IF IT IS NOT IN ACCORDANCE WITH LAW IN CONSEQUENCE WHEREOF, THE LAW FUL REVENUE DUE TO THE GOVERNMENT HAS NOT BEEN REALISED OR CANNOT BE REALI SED. THE JUDGMENT OF THE DIVISION BENCH HAS BEEN FOLLOWED BY THE DELHI HIGH COURT IN CIT V. VIKAS POLYMERS [2010] 194 TAXMAN 57 . 11. NOW, IT MUST BE NOTED THAT SUBSEQUENT TO THE JUDGM ENT OF THE DIVISION BENCH OF THIS COURT IN GABRIEL INDIA LTD. ( SUPRA ), THE PROVISIONS OF SECTION 263 WERE INTERPRETED B Y THE SUPREME COURT IN THE DECISION IN MALABAR INDUSTRIAL CO. LTD. ( SUPRA ). IN THE CASE BEFORE THE SUPREME COURT, THE ASSESSEE HAD ENTERED INTO AN AGREEMENT FOR SALE OF A PLANTATION. THE PURCHASER NOT HAVING ADHERED TO THE SCHEDULE PRESCRIBED FOR PAYMENT BY INSTALMENTS, PARTIES AGREED TO THE EXTENSION OF TIME ON CONDITION OF PAYMENT OF COMPENSATION/DAMAGES. IN THE RETURN FILED BY THE AS SESSEE, THE AMOUNT WAS NOTED AS COMPENSATION AND DAMAGES FOR LOSS OF AGRICULTURAL I NCOME. THE ASSESSING OFFICER ACCEPTED THIS AND ENDORSED A NIL ASSESSMENT FOR THE ASSESSMENT YEAR. THE COMMISSIONER IN THE EXERCISE OF HIS JURISDICTION UN DER SECTION 263 CONCLUDED THAT THE AMOUNT WAS UNCONNECTED WITH ANY AGRICULTURAL OPERAT ION AND WAS LIABLE TO BE TAXED UNDER THE HEAD 'INCOME FROM OTHER SOURCES'. BOTH, T HE TRIBUNAL IN APPEAL AND THE HIGH COURT HELD AGAINST THE ASSESSEE. THE SUPREME COURT WHILE DISMISSING THE APPEAL CAME TO THE CONCLUSION THAT THE ORDER OF NIL ASSESSMENT BY THE INCOME TAX OFFICER WAS PASSED WITHOUT APPLICATION OF MIND. THERE WAS NO MA TERIAL TO SUPPORT THE CLAIM OF THE ASSESSEE THAT THE AMOUNT PAID REPRESENTED COMPENSAT ION FOR LOSS OF AGRICULTURAL INCOME. THE ASSESSING OFFICER, NOTED THE SUPREME CO URT, HAD ACCEPTED THE ENTRY IN THE STATEMENT OF ACCOUNT FILED BY THE ASSESSEE IN THE A BSENCE OF ANY SUPPORTING MATERIAL AND WITHOUT MAKING ANY ENQUIRY. ON THESE FACTS, THE CONCLUSION THAT THE ORDER OF THE INCOME TAX OFFICER WAS ERRONEOUS WAS HELD TO BE IRR ESISTIBLE AND THE JURISDICTION UNDER SECTION 263 WAS HELD TO BE A JUSTIFIABLE EXERCISE. 11 12. THE JUDGMENT OF THE DIVISION BENCH OF THIS COURT I N GABRIEL INDIA LTD. ( SUPRA ) HAD CONFINED THE CATEGORIES WITHIN WHICH THE JURISDICTI ON UNDER SECTION 263 COULD BE EXERCISED, TO A SITUATION IN WHICH THE ORDER OF THE ASSESSING OFFICER COULD BE REGARDED AS NOT BEING IN ACCORDANCE WITH LAW OR WHICH HAD BE EN PASSED WITHOUT MAKING AN ENQUIRY IN UNDUE HASTE. THE EXPOSITION OF LAW IN TH E JUDGMENT OF THE DIVISION BENCH, TO THE EXTENT TO WHICH IT CONFINED THE JURISDICTION UN DER SECTION 263 ONLY TO THESE CATEGORIES STANDS MODIFIED BY THE LAW LAID DOWN BY THE SUPREME COURT IN MALABAR INDUSTRIAL CO. LTD. ( SUPRA ). THE JUDGMENT OF THE SUPREME COURT CLEARLY DOES N OT WARRANT A RESTRICTION OF THE JURISDICTION UNDER SECTION 263 ONLY TO A SITUATION WHERE THE JUDGMENT OF THE ASSESSING OFFICER IS CONTRARY TO LAW OR WHER E THE ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY IN UNDUE HASTE. THE SUPREME COURT HAS I N MALABAR INDUSTRIAL CO. LTD. ( SUPRA ) OBSERVED THAT THE COMMISSIONER HAS TO BE SATISFIE D OF THE EXISTENCE OF TWO CONDITIONS, NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) THE ORDER OF THE ASSESSING OFFI CER IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THOSE REQUIREMENTS IS ABSENT, RE COURSE CANNOT BE HAD TO SECTION 263. MOREOVER, IT HAS BEEN HELD THAT EVERY KIND OF MISTA KE OR ERROR OF THE ASSESSING OFFICER CANNOT WARRANT THE EXERCISE OF JURISDICTION UNDER S ECTION 263 AND IT IS ONLY WHEN AN ORDER IS ERRONEOUS THAT THE SECTION WOULD BE ATTRAC TED. THE SUPREME COURT HELD THAT 'AN INCORRECT ASSUMPTION OF FACTS OR AN INCORRECT APPLI CATION OF LAW WILL SATISFY THE REQUIREMENT OF THE ORDER BEING ERRONEOUS.' IN THE S AME CATEGORY, ACCORDING TO THE SUPREME COURT, WOULD FALL ORDERS 'PASSED WITHOUT AP PLYING THE PRINCIPLES OF NATURAL JUSTICE OR WITHOUT APPLICATION OF MIND'. CONSEQUENT LY, IN VIEW OF THE AFFIRMATIVE PRINCIPLE OF LAW LAID DOWN BY THE SUPREME COURT, THE EXERCISE OF THE JURISDICTION UNDER SECTION 263 CANNOT BE CONFINED ONLY TO THOSE CASES WHERE IT CAN BE HELD THAT THE ORDER OF THE ASSESSING OFFICER IS NOT IN ACCORDANCE WITH LAW IN THE RESTRICTED SENSE IN WHICH THAT EXPRESSION HAS BEEN USED IN GABRIEL INDIA LTD. ( SUPRA ). AS REGARDS THE ORDER BEING PREJUDICIAL TO THE INTERESTS OF THE REVENUE, THE JU DGMENT IN MALABAR INDUSTRIAL CO. LTD. ( SUPRA ) ADVERTS TO THE DECISIONS OF THE KARNATAKA AND GUJ ARAT HIGH COURTS AND OF THE VIEW OF THE DIVISION BENCH IN GABRIEL INDIA LTD. ( SUPRA ), ACCORDING TO WHICH, A LOSS OF TAX HAS BEEN REGARDED AS PREJUDICIAL TO THE INTERESTS O F THE REVENUE. THE SUPREME COURT HAS HELD THAT IF DUE TO AN ERRONEOUS ORDER OF THE I NCOME TAX OFFICER, THE REVENUE IS LOSING TAX LAWFULLY PAYABLE BY A PERSON, IT WOULD C ERTAINLY BE PREJUDICIAL TO THE INTERESTS OF THE REVENUE. EVERY LOSS OF REVENUE AS A CONSEQUE NCE OF AN ORDER OF THE ASSESSING OFFICER, CANNOT BE TREATED AS PREJUDICIAL TO THE IN TERESTS OF THE REVENUE. FOR INSTANCE, WHERE THE ASSESSING OFFICER ADOPTED ONE OF SEVERAL COURSES PERMISSIBLE IN LAW OR WHERE TWO VIEWS ARE POSSIBLE AND THE ASSESSING OFFI CER HAS ADOPTED ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT HAS BEEN HELD THAT IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE UNLESS THE VIEW TAKEN IS UNSUSTAINABLE IN LAW. WE FIND THE RATIO OF ABOVE DECISIONS APPLICABLE TO THE FACTS OF PRESENT CASE. 12 4.5 THE REVENUE HAS PLACED RELIANCE ON THE DECISION OF HONBLE BOMBAY HIGH COURT RENDERED IN SHORELINE HOTELS (P) LTD. VS CIT [ITA NO. 332 OF 2016 DATED 11/09/2018]. HOWEVER, UPON STUDY, WE FIND THE SAME TO BE INAPPLICABLE IN VIEW OF THE FACT THAT IN THAT CASE, THERE WAS CLEAR FAILURE ON THE PART OF LD. AO TO ABIDE BY THE STATUTORY MANDAT E AND LD. AO ACCEPTED VAGUE AND GENERAL EXPLANATION OF THE ASSESSEE, WHIC H MADE THE ORDER ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. HOWEVER, IN THE PRESENT CASE, THE ACTION OF LD. AO WAS IN LINE WITH THE BINDING JUDICIAL PRECEDENTS AND THERE WAS NO FAILURE ON THE PART OF LD. AO TO ABIDE BY THE STATUTORY MANDATE WHICH IS EVIDENT FROM THE FACT TH AT SUITABLE AMENDMENTS WERE MADE BY THE LEGISLATURES IN SECTION 54 W.E.F. 01/04/2015. SIMILAR IS THE CASE LAW OF HONBLE BOMBAY HIGH COUR T RENDERED IN CIT VS BALLARPUR INDUSTRIES LTD. [85 TAXMANN.COM 10] WHEREIN IT WAS FOUND THAT THE CLAIM OF DEDUCTION WAS ALLOWED BY LD. AO WITHOU T DUE VERIFICATION AS AGAINST THE FACT OF THE PRESENT CASE WHEREIN WE FIN D THAT THE CLAIM WAS DULY EXAMINED BY LD. AO DURING ASSESSMENT PROCEEDINGS. SIMILARLY, IN THE DECISION OF HONBLE DELHI HIGH CO URT RENDERED IN CIT VS. ASHOKA LOGANI [ITA NO. 553 OF 2010 & OTHERS DATED 1 1/05/2011], THERE WAS NO PROPER CONSIDERATION OF THE ISSUE BY LD. AO AND THE ISSUES WERE NOT PROPERLY ADJUDICATED. SIMILAR ARE THE FACTS IN OTHE R CASE LAWS BEING RELIED UPON BY THE REVENUE. 4.6 KEEPING IN VIEW THE ENTIRETY OF FACTS AND CIRCU MSTANCES, WE ARE OF THE CONSIDERED OPINION THAT REVISIONAL JURISDICTION U/S 263 AS EXERCISED BY LD. PR.CIT COULD NOT BE HELD AS SUSTAINABLE UNDER LAW. BY QUASHING THE SAME, 13 WE RESTORE THE ORIGINAL ORDER FRAMED BY LD. AO U/S 143(3). GROUND NO. 1 STANDS ALLOWED. 4.7 THE LD. AR HAS ALSO CONTESTED THE ISSUE ON MERI TS. HOWEVER, IN THE PRESENT APPEAL WE ARE CONCERNED ONLY WITH DETERMINI NG THE VALIDITY OF PROCEEDINGS U/S 263 AND THEREFORE, REFRAIN FROM DEL VING INTO THE SAME. GROUND NOS. 2 & 3 STANDS DISMISSED IN LIMINE. 5. THE APPEAL STANDS PARTLY ALLOWED IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH JUNE, 2019. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 06/06/2019 SR.PS:-JAISY VARGHESE ! / COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. %&'$ / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. ) *%+ , + , / DR, ITAT, MUMBAI 6. * -./ / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.