DOLPHIN OFFSHORE ENTERPRISES (I) LTD, MUMBAI V. ASST CIT (OSD) CIR 3(1), MUMBAI

ITA 667/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78670 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 24-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M V SUBRAMANIAN
• Section: 143(3); 37(1)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI . . , !' #$%& , !' () ! BEFORE SHRI H.L. KARWA, PRESIDENT AND SHRI N.K. BILLAIYA, AM ./I.T.A. NO.667/MUM/2013 ( * * * * / ASSESSMENT YEAR :2006-07 M/S. DOLPHIN OFFSHORE ENTERPRISES (I) LTD., 1001, RAHEJA CENTRE, 214, NARIMAN POINT, MUMBAI-400 021 THE ACIT (OSD), CIRCLE -3(1), MUMBAI )+ !' ./ ,- ./PAN/GIR NO. : AAACD 0522D ( +. /APPELLANT ) .. ( /0+. / RESPONDENT ) +. 1 ! / APPELLANT BY : ` SHRI M.V. SUBRAMANIAN /0+. 2 1 ! /RESPONDENT BY : SHRI SANJEEV JAIN 2 3' / DATE OF HEARING :15.04.2014 45* 2 3' / DATE OF PRONOUNCEMENT :15.04.2014 (!6 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST T HE ORDER OF THE LD. CIT(A)-6 DT NIL PERTAINING TO ASSESSMENT YEAR 2006- 07. 2. THE GRIEVANCE OF THE ASSESSEE RELATE TO UPHOLDIN G THE DISALLOWANCE OF FOREIGN CURRENCY CONVERTIBLE BONDS ISSUE EXPEN SES U/S. 37(1) OF THE ACT BY AN ORDER U/S. 143(3) R.W.S. 263 OF THE I .T. ACT, 1961. 3. IN THIS CASE, THE ORIGINAL ASSESSMENT WAS MADE B Y ORDER DT. 31.12.2008 U/S. 143(3) OF THE ACT BY WHICH THE TOTA L INCOME WAS DETERMINED AT RS. 13,65,27,036/-. SUBSEQUENTLY, TH E ASSESSMENT ORDER ITA NO.667/M/2013 2 WAS SET ASIDE BY THE CIT -3 MUMBAI VIDE ORDER U/S. 263 OF THE ACT DT. 28.3.2011. 4. THE ASSESSEE CHALLENGED THE ORDER OF THE CIT PAS SED U/S. 263 OF THE ACT BEFORE THE TRIBUNAL. THE TRIBUNAL IN ITA NO. 4 273/M/2011 DT. 28.6.2013 HAS HELD AS UNDER: THE SCOPE OF PROCEEDINGS U/S. 263 IS CONFINED TO C ASES IN WHICH THE ASSESSMENT ORDER IS NOT ONLY ERRONEOUS BU T ALSO PREJUDICIAL TO THE INTEREST OF THE REVENUE. IF AN ISSUE IS FOUND TO BE SETTLED IN ASSESSEES FAVOUR, THEN THE CIT CANNOT P ASS REVISIONAL ORDER. SIMILARLY IF AN ISSUE IS DEBATABLE, IN THE SENSE THAT TWO POSSIBLE VIEWS EXIST ON THE ISSUE AND THE AO HAS FO LLOWED ONE OF SUCH LEGALLY POSSIBLE VIEWS, THEN ALSO THE CIT CANN OT EXERCISE HIS JURISDICTION U/S. 263 ON THIS POINT. IN VIEW OF TH E AVAILABLE OF THE AFORESAID ORDER PASSED BY THE MUMBAI BENCH IN THE C ASE OF MAHINDRA & MAHINDRA VS DCIT 54 SOT 146(MUM), WE ARE OF THE CONSIDERED OPINION THAT THE LD. CIT WAS NOT CORRECT IN SETTING ASIDE THE ASSESSMENT ORDER BY HOLDING IT TO BE ERRO NEOUS. THE IMPUGNED ORDER IS, THEREFORE, VACATED. 5. AS THE ASSESSMENT ORDER UNDER CONSIDERATION BEFO RE US IS PURSUANT TO ORDER U/S. 263 OF THE ACT AND THE VERY BASIS FOR MAKING THE IMPUGNED ASSESSMENT ORDER HAS BEEN QUASHED BY THE TRIBUNAL ( SUPRA), THE ASSESSMENT ORDER UNDER CONSIDERATION BECOMES INVALI D MAKING THE FIRST APPELLATE ORDER ALSO INVALID. SINCE THE TRIB UNAL HAS VACATED THE ORDER U/S. 263 OF THE ACT SUBSEQUENT ORDER DO NOT S URVIVE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. (!6 2 5* '! 7 8( 9 15.04.2014 5 2 : SD/- SD/- (H.L. KARWA ) (N.K . BILLAIYA ) / PRESIDENT !' () / ACCOUNTANT MEMBER MUMBAI; 8( DATED 15.4.2014 . . ./ RJ , SR. PS ITA NO.667/M/2013 3 (!6 (!6 (!6 (!6 2 22 2 /3# /3# /3# /3# ;!#*3 ;!#*3 ;!#*3 ;!#*3 / COPY OF THE ORDER FORWARDED TO : 1. +. / THE APPELLANT 2. /0+. / THE RESPONDENT. 3. < ( ) / THE CIT(A)- 4. < / CIT 5. #=: /3 , , / DR, ITAT, MUMBAI 6. : > / GUARD FILE. (!6 (!6 (!6 (!6 / BY ORDER, 0#3 /3 //TRUE COPY// ? ?? ? / @ @ @ @ , , , , (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI