Sh. Anil Kumar Gupta, Dabra V. CIT, Gwalior

ITA 535/AGR/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6967 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-04-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 15-04-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 28-07-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARCHANA RANJAN
• Keywords: Gift; Revenue expenditure; Set aside
• Section: 147; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER AND SHRI P.K. BANSAL, ACCOUNTANT MEMBER ITA NO.535/AGR/2008 ASST. YEAR: 2002-03 SHRI ANIL KUMAR GUPTA, VS. C.I.T., GWALIOR. PROP. M/S. DHARMENDRA TRADERS, KRISHNA PURA, DABRA. (PAN : ACLPG 8965 H) (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY: SMT. ARCHANA RANJAN, CIT-D.R. ORDER PER P.K. BANSAL, A.M.: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT DATED 28.03.2008 PASSED UNDER SECTION 263 OF THE INCOME-TAX ACT, 196 1 (THE ACT HEREINAFTER). 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. WE, TH EREFORE, DECIDED TO DISPOSE OF THE APPEAL AFTER HEARING THE LD CIT D.R. 3. THE APPEAL IS DELAYED BY 55 DAYS. THE DELAY IS CONDONED. THE APPEAL IS DULY COVERED BY THE DECISION DATED 31.0-3.2009 OF THIS TRIBUNAL IN ITA NO.399/AGR/2008 & OTHERS IN THE CASE OF RADHEY SHYAM AGARWAL HUF VS. CIT DATED 31.0 3.2009 IN WHICH UNDER IDENTICAL GROUNDS, THE TRIBUNAL HAS QUASHED THE ORDER, COPY O F WHICH IS AVAILABLE ON RECORD. 2 4. THE LD. CIT - D.R. DID NOT DISPUTE THE FACT THAT THE FACTS INVOLVED IN THIS CASE ARE SIMILAR TO THE FACTS INVOLVED IN THE CASE OF RADHEY SHYAM A GARWAL HUF VS. CIT (SUPRA). 5. WE HAVE HEARD THE LD. CIT - D.R. AND PERUSED THE MATERIAL ON RECORD. WE HAVE ALSO GONE THROUGH THE ORDER OF THIS TRIBUNAL IN THE CASE OF RADHEY SHYAM AGARWAL HUF VS. CIT (SUPRA) AND NOTED THAT IN THAT CASE ALSO THE ASSESS EE HAS RECEIVED GIFTS AND THE ASSESSMENT UNDER SECTION 143 READ WITH SECTION 147 WAS CARRIED OUT A ND NO ADDITION IN RESPECT OF THE GIFT WAS MADE. SUBSEQUENTLY, THE CIT INVOKED SECTION 263 OF THE ACT AND TOOK THE VIEW THAT THE ORDER PASSED BY THE A.O. WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. WHEN THE MATTER WENT BEFORE THE TRIBUNAL, THE TRIBUNAL ALLOW ED THE APPEAL OF THE ASSESSEE AND SET ASIDE THE ORDER OF THE CIT IN ALL THESE CASES. IN THE CA SE BEFORE US ALSO, THE A.O. HAS NOT MADE ANY ADDITION IN RESPECT OF THE GIFT RECEIVED BY THE ASS ESSEE IN THE ASSESSMENT COMPLETED UNDER SECTION 143 READ WITH SECTION 147 OF THE ACT. MERE LY THAT THE A.O. HAS NOT MENTIONED IN THE ASSESSMENT ORDER THE DETAILS OF EVIDENCES PRODUCED BY THE ASSESSEE DOES NOT MEAN THAT THE A.O. HAS NOT EXAMINED THE EVIDENCES SUBMITTED BY THE ASS ESSEE. THE ASSESSEE, IN OUR OPINION, CANNOT DIRECT THE A.O. HOW HE SHOULD WRITE THE ORDE R. IF THE A.O. HAS TAKEN ONE OF THE VIEWS, IF THAT VIEW IS NOT UNSUSTAINABLE IN LAW, IT CANNOT BE SAID THAT THE ORDER PASSED BY THE A.O. IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. THE ONUS, IN OUR OPINION, LIES ON THE REVENUE TO PROVE THAT THE ORDER PASSED BY THE A.O. IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. UNLESS AND UNTIL BOTH THE CONDITIO NS THAT THE ORDER PASSED IS ERRONEOUS AND IS ALSO PREJUDICIAL TO THE INTEREST ARE NOT SATISFIED, THE CIT CANNOT EXERCISE HIS JURISDICTION UNDER SECTION 263. THE HONBLE ALLAHABAD HIGH COURT HAS GONE EVEN TO THE EXTENT OF HOLDING THAT 3 EVEN IF THE ORDER OF A.O. IS CRYPTIC, THIS CANNOT BE REVISED. IT WAS SO HELD IN THE CASE OF CIT VS. MAHENDRA KUMAR BANSAL, 297 ITR 99 (ALLD) THAT MERELY BECAUSE THE ITO HAD NOT WRITTEN A LENGTHY ORDER IT WOULD NOT ESTABLISH WITHOUT BRIN GING ON RECORD SPECIFIC INSTANCES THAT THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3)/148 OF THE ACT IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 6. SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE MUMBA I HIGH COURT IN THE CASE OF CIT VS. GABRIEL INDIA LIMITED, 203 ITR 108 (MUMBAI) IN WHIC H IT WAS HELD :- 'HELD, THAT THE INCOME-TAX OFFICER IN THIS CASE HAD MADE ENQUIRIES IN REGARD TO THE NATURE OF THE EXPENDITURE INCURRED BY THE ASSESSEE. THE ASSESSEE HAD GIVEN A DETAILED EXPLANATION IN THAT REGARD BY A LETTER IN WRITING. ALL THESE WERE PART OF THE RECORD OF THE CASE. EVIDENTLY, THE CLAIM WAS ALLOWED BY THE INCOM E-TAX OFFICER ON BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE. THIS DECISION OF THE INCOME-TAX OFFICER COULD NOT BE HELD TO BE 'ERRONEOUS' SIMPLY BECAUSE IN HIS ORD ER HE DID NOT MAKE AN ELABORATE DISCUSSION IN THAT REGARD. MOREOVER, IN THE INSTANT CASE, THE COMMISSIONER HIMSELF, EVEN AFTER INITIATING PROCEEDINGS FOR REVISION AND HEARING THE ASSESSEE, COULD NOT SAY THAT THE ALLOWANCE OF THE CLAIM OF THE ASSESSEE WAS ERRONEOUS AND THAT THE EXPENDITURE WAS NOT REVENUE EXPENDITURE BUT AN EXPENDITURE OF C APITAL NATURE. HE SIMPLY ASKED THE INCOME-TAX OFFICER TO RE-EXAMINE THE MATTER. THAT W AS NOT PERMISSIBLE. THE TRIBUNAL WAS JUSTIFIED IN SETTING ASIDE THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX UNDER SECTION 263.' 7. IN VIEW OF THE AFORESAID DISCUSSIONS, WE QUASH T HE ORDER PASSED UNDER SECTION 263 OF THE ACT. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . (ORDER PRONOUNCED IN THE OPEN COURT ON 15.04.2010) . SD/- SD/- (R.K. GUPTA) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 15 TH APRIL, 2010. PBN/* COPY OF THE ORDER FORWARDED TO: 4 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY