M/s JVL Agro Industries LTD., Varanasi V. CIT, Varanasi

ITA 81/ALLD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63357 (ITAT-ALLAHABAD)
• Duration Of Justice: 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 11-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAGDISH
• Assessee Lawyers: SHISHIR BAJPAI F
• Keywords: Business income; Opportunity of being heard; Period of limitation; Non-deduction of tax
• Section: 143(3); 14A; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD BENCH, ALLAHABAD BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO.81/A/2012 ASSESSMENT YEAR: 2007-08 M/S JVL AGRO INDUSTRIES LTD., VS. COMMISSIONER OF INCOME TAX,, JHUNJHUNWALA BHAWAN, VARANASI. NATI IMLI, VARANASI. (PAN : AAACJ 5704 B). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SHISHIR BAJPAI, F.C.A. RESPONDENT BY : SHRI JAGDISH, CIT - D.R. DATE OF HEARING : 30.10.2012 DATE OF PRONOUNCEMENT : 08.11.2012 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 06.03.2012 PASSED BY THE LD. CIT, VARANASI FOR THE ASSESSMENT YEAR 2007-08. 2. THE GROUNDS RAISED IN THE APPEAL RELATE TO CHALL ENGING THE ORDER OF LD.CIT UNDER SECTION 263 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER). ITA NO.81/A/2012 A.Y. 2007-08 2 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ORIGINA L ASSESSMENT OF THE ASSESSEE WAS COMPLETED UNDER SECTION 143(3) ON 23.12.2009. ON PERUSAL OF RECORDS, THE CIT FOUND THAT THE ORDER OF ASSESSING OFFICER IS ER RONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THE CIT, AFTER CONSIDERING TH E ASSESSEES SUBMISSION, FOUND THAT THE ASSESSING OFFICER HAS NOT EXAMINED THE PAY MENT OF COMMISSION. THE TOTAL PAYMENT OF COMMISSION WAS RS.1,17,67,000/- WHEREAS THE ASSESSEE HAS DEDUCTED TAX OF RS.12,33,970/- BEING 10% OF THE COMMISSION A ND BROKERAGE PAID. THE CIT NOTED THAT THE ASSESSEE DEDUCTED TAX AT SOURCE ONLY IN RESPECT OF PAYMENT MADE OF RS.1,23,39,700/- WHEREAS THE ASSESSEE HAS CLAIMED C OMMISSION EXPENSES OF RS.1,17,67,000/-. THE CIT FOUND THAT THE ASSESSEE DID NOT DEDUCT TAX AT SOURCE TO THE EXTENT OF RS.47,27,300/- ON PAYMENT OF COMMISSI ON/BROKERAGE. THE CIT FOUND THAT THE SAID AMOUNT IS DISALLOWABLE UNDER SECTION 40(A)(IA) OF THE ACT. THE CIT NOTED THAT THE ASSESSING OFFICER DID NOT EXAMINE TH IS ASPECT OF THE MATTER. IT HAS ALSO BEEN NOTED BY THE CIT THAT THE ASSESSEE HAS CL AIMED PROFIT ON SALE OF STT FOR A SUM OF RS.2,14,35,029/-. ON A PERUSAL OF RECORDS, THE CIT FOUND THAT SOME BILLS OF THE SAME HAVE BEEN PLACED ON RECORD BUT THE ASSESSI NG OFFICER DID NOT EXAMINE ALL THE BILLS. THE ASSESSING OFFICER HAS SIMPLY ACCEPT ED THE CONTENTION OF THE ASSESSEE WITHOUT ANY INVESTIGATION AT THE END OF THE ASSESSI NG OFFICER. FURTHER, THE SHARE PROFIT HAS NOT BEEN EXAMINED BY THE ASSESSING OFFIC ER. THE ISSUE IS REQUIRED TO BE INVESTIGATED BECAUSE NET PROFIT INCLUDES SOME PROFI T FROM THE SHARE TRANSACTION. ITA NO.81/A/2012 A.Y. 2007-08 3 THE CIT RELIED UPON A JUDGEMENT OF HON'BLE M.P. HIG H COURT IN THE CASE OF CIT VS. DEEPAK KUMAR GARGH, 212 CTR 152 (M.P.) AND HON' BLE ALLAHABAD HIGH COURT IN THE CASE OF JAGDISH KUMAR GULATI VS. CIT, 191 CT R 25 (ALL) AND FOUND THAT THE ASSESSING OFFICER MADE ASSESSMENT WITHOUT PROPER EN QUIRY. THE CIT SET ASIDE THE ORDER OF ASSESSING OFFICER AS THE SAME WAS FOUND ER RONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. 4. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES AND RECORDS PERUSED. THE ISSUE UNDER CONSIDERATION IS PERTAINI NG TO SECTION 263 OF THE ACT WHICH READS AS UNDER :- 263. (1) THE COMMISSIONER MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE [ASSESSING] OFFICER IS ERRONE OUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, HE MAY , AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTER MA KING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSARY, PASS SU CH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLING THE ASSE SSMENT AND DIRECTING A FRESH ASSESSMENT. [EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HERE BY DECLARED THAT, FOR THE PURPOSES OF THIS SUB-SECTION, (A) AN ORDER PASSED [ON OR BEFORE OR AFTER THE 1ST DAY OF JUNE, 1988] BY THE ASSESSING OFFICER SHALL INCLUDE (I) AN ORDER OF ASSESSMENT MADE BY THE ASSISTANT COMMISSIONER [OR DEPUTY COMMISSIONER] OR THE INCOME-TAX OFFICER ON T HE BASIS OF THE DIRECTIONS ISSUED BY THE [JOINT] COMMISSIONER UNDER SECTION 144A ; ITA NO.81/A/2012 A.Y. 2007-08 4 (II) AN ORDER MADE BY THE [JOINT] COMMISSIONER IN EXERCISE OF THE POWERS OR IN THE PERFORMANCE OF THE FUNCTIONS OF AN ASSESSING OFFICER CONFERRED ON, OR ASSIGNED TO, HIM UNDER THE ORDERS OR DIRECTIONS ISSUED BY THE BOARD OR BY THE CHIEF COMMISSIONER OR DIRECTOR GENERAL OR COMMISSIONER AUTHORIZED BY THE BOARD IN THIS BEHALF UNDER SECTION 120 ; (B) 'RECORD' [SHALL INCLUDE AND SHALL BE DEEMED AL WAYS TO HAVE INCLUDED] ALL RECORDS RELATING TO ANY PROCEEDING UN DER THIS ACT AVAILABLE AT THE TIME OF EXAMINATION BY THE COMMISS IONER; (C) WHERE ANY ORDER REFERRED TO IN THIS SUB-SECTIO N AND PASSED BY THE ASSESSING OFFICER HAD BEEN THE SUBJECT MATTER OF AN Y APPEAL [FILED ON OR BEFORE OR AFTER THE 1ST DAY OF JUNE, 1988], THE POWERS OF THE COMMISSIONER UNDER THIS SUB-SECTION SHALL EXTEND [A ND SHALL BE DEEMED ALWAYS TO HAVE EXTENDED] TO SUCH MATTERS AS HAD NOT BEEN CONSIDERED AND DECIDED IN SUCH APPEAL.] [(2) NO ORDER SHALL BE MADE UNDER SUB-SECTION (1) A FTER THE EXPIRY OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHI CH THE ORDER SOUGHT TO BE REVISED WAS PASSED.] (3) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTI ON (2), AN ORDER IN REVISION UNDER THIS SECTION MAY BE PASSED AT ANY TI ME IN THE CASE OF AN ORDER WHICH HAS BEEN PASSED IN CONSEQUENCE OF, OR T O GIVE EFFECT TO, ANY FINDING OR DIRECTION CONTAINED IN AN ORDER OF T HE APPELLATE TRIBUNAL, [NATIONAL TAX TRIBUNAL,] THE HIGH COURT O R THE SUPREME COURT. EXPLANATION.IN COMPUTING THE PERIOD OF LIMITATION FOR THE PURPOSES OF SUB-SECTION (2), THE TIME TAKEN IN GIVING AN OPP ORTUNITY TO THE ASSESSEE TO BE REHEARD UNDER THE PROVISO TO SECTION 129 AND ANY PERIOD DURING WHICH ANY PROCEEDING UNDER THIS SECTI ON IS STAYED BY AN ORDER OR INJUNCTION OF ANY COURT SHALL BE EXCLUDED. 5. FROM A PLAIN READING OF SUB-SECTION (1) OF SECTI ON 263, IT IS CLEAR THAT THE POWER OF SUO MOTU REVISION CAN BE EXERCISED BY THE COMMISSIONER ONLY IF, ON ITA NO.81/A/2012 A.Y. 2007-08 5 EXAMINATION OF THE RECORDS OF ANY PROCEEDINGS UNDER THIS ACT, HE CONSIDERS THAT AN ORDER PASSED THEREIN BY THE INCOME TAX OFFICE IS E RRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IT I S NOT AN ARBITRARY OR UNCHARTERED POWER. IT CAN BE EXERCISED ONLY ON FULFILLMENT OF THE REQUIREMENTS LAID DOWN IN SUB-SECTION (1). THE CONSIDERATION OF THE COMMISSI ONER AS TO WHETHER AN ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT ERESTS OF THE REVENUE, MUST BE BASED ON MATERIALS ON THE RECORD OF THE PROCEEDINGS CALLE D FOR BY HIM. IF THERE ARE NO MATERIALS ON RECORD ON THE BASIS OF WHICH IT CAN BE SAID THAT THE COMMISSIONER ACTING IN A REASONABLE MANNER COULD HAVE COME TO SU CH A CONCLUSION, THE VERY INITIATION OF PROCEEDINGS BY HIM WILL BE ILLEGAL AN D WITHOUT JURISDICTION. THE POWER OF SUO MOTU REVISION UNDER SUB-SECTION (1) IS IN THE NATURE OF SUPERVISORY JURISDICTION AND THE SAME CAN BE EXERCISED ONLY IF THE CIRCUMSTANCES SPECIFIED THEREIN EXIST. TWO CIRCUMSTANCES MUST EXIT TO ENAB LE THE COMMISSIONER TO EXERCISE POWER OF REVISION UNDER THIS SUB-SECTION, VIZ. (1) THE ORDER IS ERRONEOUS; (2) BY VIRTUE OF THE ORDER BEING ERRONEOUS PREJUDICE HAS B EEN CAUSED TO THE INTERESTS OF THE REVENUE. IT HAS, THEREFORE, TO BE CONSIDERED FIRST LY AS TO WHEN AN ORDER CAN BE SAID TO BE ERRONEOUS. WE FIND THAT THE EXPRESSION ERRO NEOUS, ERRONEOUS ASSESSMENT AND ERRONEOUS JUDGEMENT HAVE BEEN DEFINED IN BLAC KS LAW DICTIONARY. ACCORDING TO THE DEFINITION, ERRONEOUS MEANS INV OLVING ERROR; DEVIATING FROM THE LAW. ERRONEOUS ASSESSMENT REFERS TO AN ASSE SSMENT THAT DEVIATES FROM THE ITA NO.81/A/2012 A.Y. 2007-08 6 LAW AND IS, THEREFORE, INVALID, AND IS DEFECT THAT IS JURISDICTIONAL IN ITS NATURE, SIMILARLY, ERRONEOUS JUDGEMENT MEANS ONE RENDERE D ACCORDING TO COURSE AND PRACTICE OF COURT, BUT CONTRARY TO LAW, UPON MISTAK EN VIEW OF LAW, OR UPON ERRONEOUS APPLICATION OF LEGAL PRINCIPLES. 6. FROM THE ABOVE DISCUSSION, IT IS CLEAR THAT AN O RDER CANNOT BE TERMED AS ERRONEOUS UNLESS IT IS NOT IN ACCORDANCE WITH LAW. IF AN ASSESSING OFFICER ACTING IN ACCORDANCE WITH LAW AND MAKES CERTAIN ASSESSMENT, T HE SAME CANNOT BE BRANDED AS ERRONEOUS BY THE CIT SIMPLY BECAUSE, ACCORDING TO H IM, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY. THIS SECTION DOES N OT VISUALIZE A CASE OF THE SUBSTITUTION OF THE JUDGMENT OF THE CIT FOR THAT OF THE ASSESSING OFFICER, WHO PASSED THE ORDER, UNLESS THE DECISION IS HELD TO BE ERRONEOUS. CASES MAY BE VISUALIZED WHERE THE ASSESSING OFFICER WHILE MAKING THE ASSESSMENT EXAMINES THE ACCOUNTS, MAKES ENQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINES THE INCOME EITHER BY ACCEPTING THE ACCOUNTS OR BY MAKING SOME ESTIMATES HIMSELF. THE CIT, ON PERUSAL OF THE RECORDS, MAY BE OF THE OPINION THAT THE ESTIMATE MADE BY THE ASSESSING OFFICER CON CERNED WAS ON THE LOWER SIDE AND LEFT TO THE CIT HE WOULD HAVE ESTIMATED THE INC OME AT A HIGHER FIGURE THAN THE ONE DETERMINED BY THE ASSESSING OFFICER. THAT WOUL D NOT VEST THE CIT WITH POWER TO RE-EXAMINE THE ACCOUNTS AND DETERMINE THE INCOME BY HIMSELF AT A HIGHER FIGURE. ITA NO.81/A/2012 A.Y. 2007-08 7 THIS IS BECAUSE THE ASSESSING OFFICER HAS EXERCISED THE QUASI-JUDICIAL POWER VESTED IN HIM IN ACCORDANCE WITH LAW AND ARRIVED AT A CONC LUSION AND SUCH A CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS SIMPLY BECAUSE THE CIT DOES NOT FEEL SATISFIED WITH THE CONCLUSION. IT MAY BE SAID IN SUCH A CASE THAT IN THE OPINION OF THE CIT THE ORDER IN QUESTION IS PREJUDICIAL TO THE INTERES T OF THE REVENUE. BUT THAT BY ITSELF WOULD NOT BE ENOUGH TO VEST THE CIT WITH THE POWER OF SUO MOTU REVISION BECAUSE THE FIST REQUIREMENT, NAMELY, THAT THE ORDER IS ERR ONEOUS, IS ABSENT. FOR THE PURPOSE OF ABOVE DISCUSSION, ONE MAY RELY UPON THE JUDGMENT OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. GABRIEL INDIA LIMITED, 203 ITR 103 (BOMBAY). 7. WITH THE ABOVE BACK GROUND OF DISCUSSION, IF WE CONSIDER THE FACTS OF THE CASE UNDER CONSIDERATION, WE FIND THAT THE FIRST IS SUE ON WHICH THE CIT FOUND ERRONEOUS ORDER OF THE ASSESSING OFFICER THAT THE A SSESSING OFFICER DID NOT PROPERLY EXAMINED THE DISALLOWANCE UNDER SECTION 40 (A)(IA) OF THE ACT IN RESPECT OF NON-DEDUCTION OF TAX ON PAYMENT OF BREAKAGE AND COMMISSION. THE LEARNED AUTHORIZED REPRESENTATIVE WHILE REFERRING VARIOUS P AGES OF THE PAPER BOOK SUBMITTED THAT A COMPLETE RECONCILIATION OF TAX DED UCTED ON BROKERAGE AND COMMISSION WAS FURNISHED AT THE TIME OF ASSESSMENT PROCEEDINGS VIDE LETTER DATED 31.07.2009. THE DETAILS CONTAINED 786 NAMES AND RU NNING IN 40 PAGES. WHATEVER THE DIFFERENCES NOTED BY THE CIT HAS ALREADY BEEN E XAMINED BY THE ASSESSING ITA NO.81/A/2012 A.Y. 2007-08 8 OFFICER. THE LEARNED AUTHORIZED REPRESENTATIVE DRE W OUR ATTENTION AT PAGE NOS.128 TO 181. THE LEARNED AUTHORIZED REPRESENTATIVE HAS ALSO DEMONSTRATED THAT IN CERTAIN CASES THE ASSESSEE WAS NOT REQUIRED TO MAKE TDS AS THE ASSESSEE HAS OBTAINED CERTIFICATE UNDER SECTION 197(1) OF THE AC T. IN CASE OF PAYMENT PAYABLE IN THE NAME OF SHRI SURAJ MAL JAIN, THE ASSESSEE WAS N OT REQUIRED TO PAY TDS AS PER THE CERTIFICATE DATED 14.09.2006. A COPY OF THE CE RTIFICATE HAS BEEN PLACED AT PAGE NO.181 OF THE ASSESSEES PAPER BOOK. FOR THE PURPO SE OF READY REFERENCE, THE DIFFERENCE NOTED BY THE CIT HAS BEEN EXPLAINED BEFO RE THE ASSESSING OFFICER BY THE ASSESSEE AS UNDER :- (PAGE NO.62 OF PAPER BOOK NO.1 ) A) WORKING OF BROKERAGE AND COMMISSION PAID TOTAL BROKERAGE AND COMMISSION ON WHICH TDS DEDUCTED AS PER LIST SUBMITTED 23414905 LESS: PROFESSIONAL CHARGE WRONGLY TAKEN IN BROKERAG E AND COMMISSION 611056 BALANCE 22803849 ADD: BROKERAGE AND COMMISSION PAID TO SURAJMAL JAIN WITHOUT DEDUCTION 277332 TOTAL 23081181 ======= B) BROKERAGE AND COMMISSION PAID ON SALE 1898162 7 ADD: BROKERAGE AND COMMISSION ON PURCHASE 40995 54 TOTAL 23081181 ====== 8. IN RESPECT OF SECOND OBSERVATION OF CIT, THE LEA RNED AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE LONG TERMER CAPIT AL GAIN ON SOME OF THE SHARES WHERE STT HAS BEEN DEDUCTED WAS FILED IN DETAIL BEF ORE THE ASSESSING OFFICER ON ITA NO.81/A/2012 A.Y. 2007-08 9 15.07.2009 ALONG WITH A FEW BILLS AND REST WAS PROD UCED BEFORE THE ASSESSING OFFICER FOR VERIFICATION. 9. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, RELIED UPON THE ORDER OF THE CIT. 10. WE FIND SUBSTANCE IN THE SUBMISSION OF THE ASSE SSEE AS NOTED ABOVE IN THE DETAILED SUBMISSION MADE BY THE LEARNED AUTHORIZED REPRESENTATIVE. AFTER CONSIDERING THE FACTS OF THE CASE UNDER CONSIDERATI ON, WE FIND THAT THE ASSESSING OFFICER HAS PASSED THE ASSESSMENT ORDER AFTER EXAMI NING THE RELEVANT BOOKS OF ACCOUNT AND AFTER MAKING RELEVANT QUERIES. THE CIT WANTS AN ELABORATE INVESTIGATION IN ACCORDANCE WITH WHAT THE CIT WANTS TO INVESTIGATE AND WANTS TO EXAMINE THE CASE. IN THE CASE UNDER CONSIDERATION, WE NOTICE THAT THE ASSESSING OFFICER MADE ASSESSMENT AFTER PROPER ENQUIRY AND TH E SAME HAS BEEN DEMONSTRATED BY THE ASSESSEE. IT IS NOT NECESSARY TO WRITE EACH AND EVERY AREA OF EXAMINATION AND INVESTIGATION DURING THE ASSESSMENT PROCEEDINGS WHEN THE ASSESSING OFFICER SATISFIED ABOUT THE EXPLANATION OF THE ASSESSEE. T HEREFORE, MERELY THE ASSESSING OFFICER DID NOT DISCUS THE ISSUE IN THE ORDER DOES NOT AMOUNT TO ERRONEOUS ORDER UNLESS ANY MATERIAL IS FOUND THAT THE ORDER MADE BY THE ASSESSING OFFICER WAS ERRONEOUS. HOWEVER, IN THE CASE UNDER CONSIDERATIO N, THE ASSESSMENT PROCEEDING ITA NO.81/A/2012 A.Y. 2007-08 10 WAS STARTED IN JANUARY, 2009 AND ASSESSMENT ORDER W AS PASSED ON 23.12.2009. BETWEEN THIS PERIOD, VARIOUS DATES OF HEARINGS WERE TOOK PLACE. THE ASSESSING OFFICER ASKED DETAILS AND CASE WAS DISCUSSED WITH T HE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE. IN SUPPORT OF THIS FACT, COPIES OF ORDER SHEET HAVE BEEN FILED WHICH ARE PLACED AT PAGE NOS.12 TO 15 OF THE ASSESSEES PAPER BOOK. IN PARAGRAPH NOS.2 & 3 OF ASSESSMENT ORDER, THE ASSESS ING OFFICER NOTED AS UNDER :- (ASSESSING OFFICERS ORDER PARAGRAPH NOS.2 & 3 PAPE R BOOK PAGE NO.1) 2. IN COMPLIANCE TO THE STATUTORY NOTICE UNDER SEC TION.142(1) OF THE INCOME TAX ACT SRI SHISHIR BAJPAI, FCA, AUTHORI SED REPRESENTATIVE OF THE ASSESSEE ATTENDED FROM TIME T O TIME AND SUBMITTED COPY OF AUDIT REPORT ALONG WITH OTHER DES IRED DETAILS FROM TIME TO TIME, PRODUCED BOOKS OF ACCOUNTS FOR VERIFI CATION. CASE WAS DISCUSSED WITH HIM. 3. THE ASSESSEE COMPANY IS ENGAGED IN MANUFACTURING AND TRADING OF VANASPATI OIL, HERBAL PRODUCTS, REFINED OIL, TIN PLASTIC CONTAINER, ETC. DURING THE YEAR UNDER CONSIDERATIO N, THE ASSESSEE HAS SHOWN TOTAL SALES TO THE TUNE OF RS.6,92,62,66,344. THE ASSESSEE COMPANY IS DERIVING PROFITS FROM ITS VARIOUS UNITS AND MAINTAINED SEPARATE BOOKS OF ACCOUNTS FOR EACH UNIT, WHICH WER E PRODUCED AND TEST CHECKED. THE ASSESSEE COMPANY HAS ALSO SHOWN LONG TERM CAPITAL GAIN FROM THE SALE OF SHARES HELD AS INVESTMENT IN THE PAST AND INTEREST INCOME. 11. AS REGARDS PROFIT FROM SHARES, THE ASSESSING OF FICER EXAMINED THE ISSUE AND DISCUSSION ALSO MADE IN ASSESSMENT ORDER IN PARAGRA PH NO.5 WHICH READS AS UNDER :- DURING THE COURSE OF VERIFICATION, IT HAS BEEN NOT ICED THAT THE ASSESSEE HAS CLAIMED RS.1,289 AS DIRECT EXPANSES ON EARNING OF LONG TERM CAPITAL GAINS TOWARDS ANNUAL D-MAT CHARGES. S INCE THIS EXPENDITURE HAS BEEN INCURRED ON EARNING OF SUCH IN COME WHICH IS NOT ITA NO.81/A/2012 A.Y. 2007-08 11 INCLUDIBLE IN THE TOTAL INCOME, HENCE AS PER SECTIO N 14A OF THE I.T. ACT, 1961, SAME IS NOT ALLOWABLE. THE ASSESSEE HAS ALSO VIDE LETTER DATED 07.10.2009 HAS GIVEN HIS CONSENT TO DISALLOW THE SAME. HENCE, SAME IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 12. FROM THE ABOVE DISCUSSION, WE FIND THAT THE ASS ESSING OFFICER HAS APPLIED HIS MIND BEFORE PASSING ASSESSMENT ORDER. IN SUPPO RT OF THIS VIEW, WE REFER A JUDGEMENT OF HON'BLE RAJASTHAN HIGH COURT IN THE CA SE OF CIT VS. GIRDHARI LAL, 258 ITR 331 (RAJ.) 13. AS REGARDS THE JUDGEMENTS IN THE CASE OF CIT VS . DEEPAK KUMAR GARGH (SUPRA) AND JAGDISH KUMAR GULATI VS. CIT (SUPRA), I N PRINCIPLE, WE AGREE WITH THE ABOVE JUDGMENTS BUT THE FACTS OF THOSE JUDGMENTS AN D THE CASE UNDER CONSIDERATION ARE DIFFERENT. IN THOSE CASES, THE ASSESSING OFFIC ER DID NOT MAKE PROPER ENQUIRY, THEREFORE, THE ORDERS OF ASSESSING OFFICER ARE ERRO NEOUS WHEREIN IN THE CASE UNDER CONSIDERATION THE ASSESSING OFFICER MADE ENQUIRY AN D THIS ASPECT OF THE CASE HAS BEEN DEMONSTRATED BY THE LEARNED AUTHORIZED REPRESE NTATIVE BEFORE US. IT IS ALSO RELEVANT TO STATE THAT THE ASSESSEE FURNISHED COMPL ETE DETAILS AND EXPLANATION BEFORE THE CIT ALSO BUT THE CIT FAILED TO GIVE HIS FINDING THAT HOW THE ORDER OF ASSESSING OFFICER WAS ERRONEOUS. THERE IS NO SUCH SPECIFIC F INDING OF CIT IN REGARD TO ERRONEOUS ORDER OF THE ASSESSING OFFICER. MERELY O N PRESUMPTION BASIS THE ORDER OF ASSESSING OFFICER CANNOT BE HELD ERRONEOUS. IN THIS REGARD, WE WOULD LIKE TO ITA NO.81/A/2012 A.Y. 2007-08 12 REFER A JUDGEMENT OF HON'BLE ALLAHABAD HIGH COURT I N THE CASE OF CIT VS. GOYAL PRIVATE FAMILY SPECIFIC TRUST, 171 ITR 698 (ALL). IN THE LIGHT OF THE FACT, WE ARE OF THE VIEW THAT THE ORDER OF THE ASSESSING OFFICER WA S NOT ERRONEOUS. SINCE IT IS NOT ERRONEOUS, THEREFORE, THE CIT CANNOT EXERCISE THE P OWER OF REVISION UNDER SECTION 263 OF THE ACT. ORDER OF THE CIT IS QUASHED. 14. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, ALLAHABAD BENCH, ALLAHABAD 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE T RIBUNAL, ALLAHABAD TRUE COPY