Pushpa Devi Sonthalia , Kolkata V. Principal CIT, Kolkata - 2, Kolkata , Kolkata

ITA 958/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0794 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-01-2020
• Assessment Year: 2013-2014
• Appeal Filed On: 10-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM BILASH MEENA
• Assessee Lawyers: A K TIBREWAL
• Keywords: Gift; Audit objection; Principle of natural justice; Earning of tax free income; Corroborative evidences; Right to appeal; Revenue expenditure; Rule 8D; Set aside; Capital Gains
• Section: 142(1); 80HHC; 14A; 133(6); 143(1); 43; 13; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A, KOLKATA BEFORE SH. S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 958/KOL/2018 [ASSESSMENT YEAR: 2013-14 ] PUSHPA DEVI SONTHALIA , 4 TH FLOOR, ROOM NO. 291, R. N. MUKHERJEE ROAD, KOLKATA-700 001. PAN- ALCPS 0321 F VS PRINCIPAL COMMISSINER OF INCOME TAX, KOLKATA-2, AAYAKAR BHAWAN POORVA, 110, SHANTIPALLY, KOLKATA-700 107. (APPELLANT) (RESPONDENT) APPELLANT BY SH. A.K. TIBREWAL, FCA & SH. AMIT AGARWAL, ADV. RESPONDENT BY S H. RAM BILASH MEENA, CIT . DATE OF HEARING 15 . 01.2020 DATE OF PRONOUNCEMENT 10 .06.2020 ORDER PER SH. S.S.GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR AY 2013-14 ARISES AGAINST THE ORDER DATED 09.08.2017 PASSED BY THE PRINCIPAL COMMISSIONER OF INCOME TAX-12, KOLKATA IN APPEAL NO.PR.CIT-12/KOL/263/TECH/ALCPS0321F/2017-18/884 IN PROCEEDINGS U/S 263 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). HEARD BOTH THE PARTIES. CASE FILE(S) PERUSED. 2. THE ASSESSEE'S SOUL SUBSTANTIVE GRIEVANCE RAISED IN THE INSTANT LIS CHALLENGES CORRECTNESS OF THE PCIT'S REVISION ORDER UNDER CHALLENGE TERMING THE REGULAR ASSESSMENT IN QUESTION DATED 11.01.2016 FRAMED IN HER CASE AS AN ERRONEOUS ONE CAUSING PREJUDICE TO THE INTEREST OF THE REVENUE REGARDING THE ALLEGED NON-ENQUIRY QUA THE ISSUE OF LONG TERM CAPITAL GAINS AMOUNTING TO 2,54,60,132/- CLAIMED AS EXEMPT U/S 10(38) OF THE ACT. SUFFICE TO SAY, THE REVENUES STAND IN SUPPORT OF THE PCIT'S ACTION IS THAT SINCE THE AO HAD ITA NO. 958/KOL/2018 ASSESSMENT YEAR: 2013-14 PUSHPA DEVI SONTHALIA PAGE | 2 FAILED TO EXAMINE ALL FACTUAL ASPECTS PRIMA FACIE INDICATING LACK OF GENUINENESS IN ASSESSEE'S LONG TERM CAPITAL GAINS, THIS IS A FIT CASE ATTRACTING EXERCISE OF SECTION 263 REVISION JURISDICTION. 3. LD. AUTHORISED REPRESENTATIVE ON THE OTHER HAND HAS CHALLENGED JURISDICTION OF THE PCIT-12, KOLKATA. HE HAS PRODUCED DEPARTMENTAL RECORDS INDICATING THAT THE PCIT LACKED TERRITORIAL JURISDICTION AT THE TIME OF INVOKING SECTION 263 PROCEEDINGS. WE NOTICE THAT THIS ASSESSEE HAD FILED HER RETURN ON 29.09.2013 DECLARING TOTAL INCOME OF 15,83,340/- FOR THE IMPUGNED ASSESSMENT YEAR 2013-14. HER AO I.E. ACIT, CIRCLE-35, KOLKATA APPEARS TO HAVE ISSUED SECTION 142(1) NOTICE DATED 07.05.2015. THIS FOLLOWED CHANGE IN ASSESSMENT JURISDICTION FROM ACIT, CIRCLE-35, KOLKATA TO ITO, WARD-35(1), KOLKATA VIDE ORDER DATED 20.07.2015 FORMING PART OF RECORDS BEFORE US AT PAGE 20 IN PAPERBOOK. THE ASSESSEE THEREAFTER SUBMITTED HER REPLY DATED 02.09.2015 BEFORE THE NEWLY DESIGNATED AO HEREINABOVE. SHE ALSO PLACED ON RECORD ALL THE DETAILS ON 12.10.2015 REGARDING HER LONG TERM CAPITAL GAINS (PAGE 58-59). THIS FOLLOWED HER SIMILAR REPLY REGARDING SALE, PURCHASE OF SHARES IN M/S. CCL INTERNATIONAL LTD. AND JMP TELEFILM LTD. ON 08.01.2016. THE AO THEN FRAMED HIS REGULAR ASSESSMENT DATED 11.01.2016 FORMING SUBJECT MATTER OF SECTION 263 REVISION PROCEEDINGS. 4. WE FURTHER NOTICE FROM THE CASE FILE THAT THE DEPARTMENT ONCE AGAIN TRANSFERRED ASSESSEE'S ASSESSMENT JURISDICTION FROM ITO, WARD-35(1), KOLKATA TO DCIT, CENTRAL CIRCLE-2(2), KOLKATA VIDE ORDER DATED 21.05.2016. THE NEWLY DESIGNATED AO INITIATED SCRUTINY PROCEEDINGS AGAINST THE ASSESSEE FOR ASSESSMENT YEAR(S) 2014-15 ON 14.10.2016 AND COMPLETED REGULAR ASSESSMENT ON 28.12.2016. HE ALSO FRAMED SECTION 147/143(3) RE- ITA NO. 958/KOL/2018 ASSESSMENT YEAR: 2013-14 PUSHPA DEVI SONTHALIA PAGE | 3 ASSESSMENT FOR AY 2011-12. THE CPC BANGALORE HAS ALSO ISSUED SECTION 143(1) PROCESSING FOR AY 2018-19 INDICATING ASSESSEES JURISDICTION WITH THE DCIT, CENTRAL CIRCLE-2(2), KOLKATA ONLY. 5. THERE IS AGAIN NO DISPUTE BETWEEN THE PARTIES THAT THE PCIT HEREIN, THEREAFTER SOUGHT TO TREAT THE IMPUGNED REGULAR ASSESSMENT DATED 11.01.2016 AS AN ERRONEOUS ONE CAUSING PREJUDICE TO INTEREST OF THE REVENUE FOLLOWED BY HIS DIRECTIONS TO THE AO TO FRAME A FRESH ASSESSMENT UNDER CHALLENGE. THE ASSESSEE'S CASE ACCORDINGLY IS THAT AS PER THE JURISDICTION HISTORY OBTAINED FROM ITBA PORTAL, IT IS CLEAR THAT THE DCITS ASSESSMENTS ARE BEYOND THE TERRITORIAL SUPERVISION OF THE PCIT-12, KOLKATA. LD. COUNSEL HAS ALSO PLACED ON RECORD THE RELEVANT DETAILS TO THIS EFFECT THAT THE ASSESSEE'S JURISDICTION; ONCE TRANSFERRED TO CENTRAL CIRCLE, KOLKATA, DOES NOT COME UNDER THE PCIT-12, KOLKATA BUT LIES WITH THE PCIT, CENTRAL CIRCLE-1, KOLKATA. THIS CLINCHING ASPECT OF TERRITORIAL JURISDICTION WAS DULY CONFRONTED TO THE CIT(DR) WHO HAS TO DISPUTE ALL THESE FACTUAL DEVELOPMENTS IN ASSESSEE'S CASE. WE THUS, ARE OF THE VIEW THAT THE PCIT-12, KOLKATA HAS ERRED ON FACTS AND NOT LAW IN INVOKING HIS SECTION 263 REVISION JURISDICTION IN ASSESSEE'S CASE SINCE LACKING TERRITORIAL JURISDICTION. WE QUOTE HON'BLE JURISDICTIONAL HIGH COURT'S DECISION OF RAMSHILA ENTERPRISES PVT. LTD. VS. PCIT [2016] 68 TAXMANN.COM 270 (CAL) HOLDING SIMILAR REVISION ORDER BY A NON- JURISDICTION COMMISSIONER AS A NULLITY. WE ACCORDINGLY REVERSE THE PCIT-12, KOLKATA'S REVISION ORDER UNDER CHALLENGE AS NOT SUSTAINABLE FOR LACK OF TERRITORIAL JURISDICTION. 6. COMING TO MERITS ALSO, WE SEE NO REASON TO ACCEPT THE REVENUE'S STAND THAT THE, AO HAD FAILED TO CARRY OUT NECESSARY ENQUIRIES ON THE GENUINENESS ITA NO. 958/KOL/2018 ASSESSMENT YEAR: 2013-14 PUSHPA DEVI SONTHALIA PAGE | 4 ASPECT OF ASSESSEE'S LONG TERM CAPITAL GAINS AMOUNTING TO 2,64,98,037/- FROM SHARES HELD IN M/S. CCL INTERNATIONAL LIMITED AND LOSS OF 10,37,905/- FROM SHARES IN M/S. JMD TELEFILMS LIMITED. LD. CIT(DR) FAILS TO REBUT THE CLINCHING FACT THAT THE ASSESSEE HAD FILED ALL NECESSARY DETAILS DURING SCRUTINY ON ACCOUNT OF SPECIFIC QUESTIONNAIRE COMING FROM THE AOS SIDE. THAT BEING THE CASE, WE FIND THAT THIS TRIBUNAL'S CO-ORDINATE BENCH ORDER IN ITA NOS. 1-5 AND 13-15/KOL/2019 IN CASE OF M/S. GITISH TIKMANI, HUF & ORS. VS. ITO DATED 20.09.2019 HAS REVERSED THE SIMILAR REVISION DIRECTIONS THEREBY RESTORING THE AO'S ACTION ACCEPTING THE CORRESPONDING LONG TERM CAPITAL GAINS/LOSSES AS GENUINE SINCE SUPPORTED BY ALL THE RELEVANT EVIDENCES. LD. CO-ORDINATE BENCH FINDINGS TO THIS EFFECT READS AS UNDER: 8. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RIVAL CONTENTIONS. THE SOLE ISSUE THAT ARISES FOR OUR APT ADJUDICATION IN FACTS OF INSTANT CASE IS AS TO WHETHER THE PCIT HAS RIGHTLY EXERCISED HIS REVISION JURISDICTION VESTED U/S 263 OR NOT. THERE IS NO DISPUTE THAT THE ASSESSING OFFICER ACCEPTED THE ASSESSEES LTCG AS GENUINE AS PER HIS DISCUSSION IN THE ASSESSMENT ORDER THAT HE HAD VERIFIED ALL NECESSARY FACTS DURING THE COURSE OF SCRUTINY. SUFFICE TO SAY, THE SAME FACT VERY MUCH EMERGES NOT ONLY FROM ASSESSEES DETAILED PAPER BOOK RUNNING INTO 98 PAGES BUT ALSO FROM THE RELEVANT ASSESSMENT NOTINGS FORMING PART OF RECORD (SUPRA). THIS TRIBUNALS CO- ORDINATE BENCHS DECISION IN CASE OF M/S SAREGAMA INDIA LTD. VS. CIT-1, KOLKATA ITA NO.1254/KOL/2014 DECIDED ON 20.09.2017 HAS REITERATED THE FOLLOWING SETTLED PRINCIPLES IN CASE OF SEC. 263 REVISION JURISDICTION:- 11. NOW WE SHALL DISCUSS THE PROPOSITIONS OF LAW AS LAID DOWN BY VARIOUS COURTS ON THE ISSUE OF REVISIONARY JURISDICTION OF THE COMMISSIONER OF INCOME TAX U/S 263 OF THE ACT. THE HONEBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF SPECTRA SHARES AND SCRIPS PVT. LTD. V CIT (AP) 354 ITR 35 HAD CONSIDERED A NUMBER OF JUDGMENTS ON THIS ISSUE OF EXERCISE OF JURISDICITON U/S 263 OF THE ACT BY THE PRINCIPAL COMMISSIONER OF INCOME TAX AND CULLED OUT THE PRINCIPLES LAID DOWN IN THE JUDGMENTS AS BELOW: 24. IN MALABAR INDUSTRIAL CO.LTD. ( 2 SUPRA), THE SUPREME COURT HELD THAT A BARE READING OF SEC.263 MAKES IT CLEAR THAT THE PREREQUISITE FOR THE EXERCISE OF JURISDICTION BY THE COMMISSIONER SUO MOTU UNDER IT, IS THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE COMMISSIONER HAS TO BE SATISFIED OF TWIN CONDITIONS, NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THEM IS ABSENT - IF THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IT IS PREJUDICIAL TO THE REVENUE - RECOURSE CANNOT BE HAD TO SEC.263 (1) OF THE ACT. IT ALSO HELD AT PG-88 AS FOLLOWS: 'THE PHRASE 'PREJUDICIAL TO THE INTERESTS OF THE REVENUE' HAS TO BE READ IN CONJUNCTION WITH AN ERRONEOUS ORDER PASSED BY THE ASSESSING OFFICER. EVERY LOSS ITA NO. 958/KOL/2018 ASSESSMENT YEAR: 2013-14 PUSHPA DEVI SONTHALIA PAGE | 5 OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. FOR EXAMPLE, WHEN AN INCOME-TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE: OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME-TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE, UNLESS THE VIEW TAKEN BY THE INCOME-TAX OFFICER IS UNSUSTAINABLE IN LAW. IT HAS BEEN HELD BY THIS COURT THAT WHERE A SUM NOT EARNED BY A PERSON IS ASSESSED AS INCOME IN HIS HANDS ON HIS SO OFFERING, THE ORDER PASSED BY THE ASSESSING OFFICER ACCEPTING THE SAME AS SUCH WILL BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. RAMPYARIDEVI SARAOGI V. CIT (1968) 67 ITR 84 (SC) AND IN SMT. TARA DEVI AGGARWAL V. CIT (1973) 88 ITR 323 (SC)'. 25. IN MAX INDIA LTD. (3 SUPRA), REITERATED THE VIEW IN MALABAR INDUSTRIAL CO.LTD. (2 SUPRA) AND OBSERVED THAT EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. FOR EXAMPLE, WHEN AN INCOME TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE; OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE, UNLESS THE VIEW TAKEN BY THE INCOME TAX OFFICER IS UNSUSTAINABLE IN LAW. ON THE FACTS OF THAT CASE, SEC.80HHC(3) AS IT THEN STOOD WAS INTERPRETED BY THE ASSESSING OFFICER BUT THE REVENUE CONTENDED THAT IN VIEW OF THE 2005 AMENDMENT WHICH IS CLARIFICATORY AND RETROSPECTIVE IN NATURE, THE VIEW OF THE ASSESSING OFFICER WAS UNSUSTAINABLE IN LAW AND THE COMMISSIONER WAS CORRECT IN INVOKING SEC.263. BUT THE SUPREME COURT REJECTED THE SAID CONTENTION AND HELD THAT WHEN THE COMMISSIONER PASSED HIS ORDER DISAGREEING WITH THE VIEW OF THE ASSESSING OFFICER, THERE WERE TWO VIEWS ON THE WORD 'PROFITS' IN THAT SECTION; THAT THE SAID SECTION WAS AMENDED ELEVEN TIMES; THAT DIFFERENT VIEWS EXISTED ON THE DAY WHEN THE COMMISSIONER PASSED HIS ORDER; THAT THE MECHANICS OF THE SECTION HAD BECOME SO COMPLICATED OVER THE YEARS THAT TWO VIEWS WERE INHERENTLY POSSIBLE; AND THEREFORE, THE SUBSEQUENT AMENDMENT IN 2005 EVEN THOUGH RETROSPECTIVE WILL NOT ATTRACT THE PROVISION OF SEC.263. 26. IN VIKAS POLYMERS (4 SUPRA), THE DELHI HIGH COURT HELD THAT THE POWER OF SUO MOTU REVISION EXERCISABLE BY THE COMMISSIONER UNDER THE PROVISIONS OF SEC.263 IS SUPERVISORY IN NATURE; THAT AN 'ERRONEOUS JUDGMENT' MEANS ONE WHICH IS NOT IN ACCORDANCE WITH LAW; THAT IF AN INCOME TAX OFFICER ACTING IN ACCORDANCE WITH LAW MAKES A CERTAIN ASSESSMENT, THE SAME CANNOT BE BRANDED AS 'ERRONEOUS' BY THE COMMISSIONER SIMPLY BECAUSE, ACCORDING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTEN DIFFERENTLY OR MORE ELABORATELY; THAT THE SECTION DOES NOT VISUALIZE THE SUBSTITUTION OF THE JUDGMENT OF THE COMMISSIONER FOR THAT OF THE INCOME TAX OFFICER, WHO PASSED THE ORDER UNLESS THE DECISION IS NOT IN ACCORDANCE WITH THE LAW; THAT TO INVOKE SUO MOTU REVISIONAL POWERS TO REOPEN A CONCLUDED ASSESSMENT UNDER SEC.263, THE COMMISSIONER MUST GIVE REASONS; THAT A BARE REITERATION BY HIM THAT THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, WILL NOT SUFFICE; THAT THE REASONS MUST BE SUCH AS TO SHOW THAT THE ENHANCEMENT OR MODIFICATION OF THE ASSESSMENT OR CANCELLATION OF THE ASSESSMENT OR DIRECTIONS ISSUED FOR A FRESH ASSESSMENT WERE CALLED FOR, AND MUST IRRESISTIBLY LEAD TO THE CONCLUSION THAT THE ORDER OF THE INCOME TAX OFFICER WAS NOT ONLY ERRONEOUS BUT WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THUS, WHILE THE INCOME TAX OFFICER IS NOT CALLED UPON TO WRITE AN ELABORATE JUDGMENT GIVING DETAILED REASONS IN RESPECT OF EACH AND EVERY DISALLOWANCE, DEDUCTION, ETC., IT IS INCUMBENT UPON THE COMMISSIONER NOT TO EXERCISE HIS SUO MOTU REVISIONAL POWERS UNLESS SUPPORTED BY ADEQUATE REASONS FOR DOING SO; THAT IF A QUERY IS RAISED DURING THE COURSE OF THE SCRUTINY BY THE ASSESSING OFFICER, WHICH WAS ANSWERED TO THE SATISFACTION OF THE ASSESSING OFFICER, BUT NEITHER THE QUERY NOR THE ANSWER WERE REFLECTED IN THE ASSESSMENT ITA NO. 958/KOL/2018 ASSESSMENT YEAR: 2013-14 PUSHPA DEVI SONTHALIA PAGE | 6 ORDER, THIS WOULD NOT BY ITSELF LEAD TO THE CONCLUSION THAT THE ORDER OF THE ASSESSING OFFICER CALLED FOR INTERFERENCE AND REVISION. 27. IN SUNBEAM AUTO LTD.( 5 SUPRA), THE DELHI HIGH COURT HELD THAT THE ASSESSING OFFICER IN THE ASSESSMENT ORDER IS NOT REQUIRED TO GIVE A DETAILED REASON IN RESPECT OF EACH AND EVERY ITEM OF DEDUCTION, ETC.; THAT WHETHER THERE WAS APPLICATION OF MIND BEFORE ALLOWING THE EXPENDITURE IN QUESTION HAS TO BE SEEN; THAT IF THERE WAS AN INQUIRY, EVEN INADEQUATE THAT WOULD NOT BY ITSELF GIVE OCCASION TO THE COMMISSIONER TO PASS ORDERS UNDER SEC.263 MERELY BECAUSE HE HAS A DIFFERENT OPINION IN THE MATTER; THAT IT IS ONLY IN CASES OF LACK OF INQUIRY THAT SUCH A COURSE OF ACTION WOULD BE OPEN; THAT AN ASSESSMENT ORDER MADE BY THE INCOME TAX OFFICER CANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE, ACCORDING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY; THERE MUST BE SOME PRIMA FACIE MATERIAL ON RECORD TO SHOW THAT THE TAX WHICH WAS LAWFULLY EXIGIBLE HAS NOT BEEN IMPOSED OR THAT BY THE APPLICATION OF THE RELEVANT STATUTE ON AN INCORRECT OR INCOMPLETE INTERPRETATION, A LESSER TAX THAN WHAT WAS JUST, HAS BEEN IMPOSED. IN THAT CASE, THE DELHI HIGH COURT HELD THAT THE COMMISSIONER IN THE EXERCISE OF REVISIONAL POWER COULD NOT HAVE OBJECTED TO THE FINDING OF THE ASSESSING OFFICER THAT EXPENDITURE ON TOOLS AND DIES BY THE ASSESSEE, A MANUFACTURER OF CAR PARTS, IS REVENUE EXPENDITURE WHERE THE SAID CLAIM WAS ALLOWED BY THE LATTER ON BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE AND WHERE THE SAME ACCOUNTING PRACTICE FOLLOWED BY THE ASSESSEE FOR NUMBER OF YEARS WITH THE APPROVAL OF THE INCOME TAX AUTHORITIES. IT HELD THAT THE ASSESSING OFFICER HAD CALLED FOR EXPLANATION ON THE VERY ITEM FROM THE ASSESSEE AND THE ASSESSEE HAD FURNISHED ITS EXPLANATION. MERELY BECAUSE THE ASSESSING OFFICER IN HIS ORDER DID NOT MAKE AN ELABORATE DISCUSSION IN THAT REGARD, HIS ORDER CANNOT BE TERMED AS ERRONEOUS. THE OPINION OF THE ASSESSING OFFICER IS ONE OF THE POSSIBLE VIEWS AND THERE WAS NO MATERIAL BEFORE THE COMMISSIONER TO VARY THAT OPINION AND ASK FOR FRESH INQUIRY. 28. IN GABRIEL INDIA LTD. (6 SUPRA), THE BOMBAY HIGH COURT HELD THAT A CONSIDERATION OF THE COMMISSIONER AS TO WHETHER AN ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, MUST BE BASED ON MATERIALS ON THE RECORD OF THE PROCEEDINGS CALLED 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 SUCH A CONCLUSION, THE VERY INITIATION OF PROCEEDINGS BY HIM WILL BE ILLEGAL AND WITHOUT JURISDICTION. IT HELD THAT THE COMMISSIONER CANNOT INITIATE PROCEEDINGS WITH A VIEW TO START FISHING AND ROVING INQUIRIES IN MATTERS OR ORDERS WHICH ARE ALREADY CONCLUDED; THAT THE DEPARTMENT CANNOT BE PERMITTED TO BEGIN FRESH LITIGATION BECAUSE OF NEW VIEWS THEY ENTERTAIN ON FACTS OR NEW VERSIONS WHICH THEY PRESENT AS TO WHAT SHOULD BE THE INFERENCE OR PROPER INFERENCE EITHER OF THE FACTS DISCLOSED OR THE WEIGHT OF THE CIRCUMSTANCE; THAT IF THIS IS PERMITTED, LITIGATION WOULD HAVE NO END EXCEPT WHEN LEGAL INGENUITY IS EXHAUSTED; THAT TO DO SO IS TO DIVIDE ONE ARGUMENT INTO TWO AND MULTIPLY THE LITIGATION. IT HELD THAT CASES MAY BE VISUALIZED WHERE THE INCOME TAX OFFICER WHILE MAKING AN ASSESSMENT EXAMINES THE ACCOUNTS, MAKES INQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINES THE INCOME EITHER BY ACCEPTING THE ACCOUNT OR BY MAKING SOME ESTIMATE HIMSELF; THAT THE COMMISSIONER, ON PERUSAL OF THE RECORD, MAY BE OF THE OPINION THAT THE ESTIMATE MADE BY THE OFFICER CONCERNED WAS ON THE LOWER SIDE AND LEFT TO THE COMMISSIONER HE WOULD HAVE ESTIMATED THE INCOME AT A FIGURE HIGHER THAN THE ONE DETERMINED BY THE INCOME TAX OFFICER; BUT THAT WOULD NOT VEST THE COMMISSIONER WITH POWER TO REEXAMINE THE ACCOUNTS AND DETERMINE THE INCOME HIMSELF AT A HIGHER FIGURE; THERE MUST BE MATERIAL AVAILABLE ON THE RECORD CALLED FOR BY THE COMMISSIONER TO SATISFY HIM PRIMA FACIE THAT THE ORDER IS BOTH ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. OTHERWISE, IT WOULD AMOUNT TO GIVING UNBRIDLED AND ARBITRARY POWER TO THE REVISING AUTHORITY TO INITIATE PROCEEDINGS FOR REVISION IN EVERY CASE AND START RE-EXAMINATION AND FRESH INQUIRY IN MATTERS WHICH HAVE ALREADY BEEN CONCLUDED UNDER LAW. ITA NO. 958/KOL/2018 ASSESSMENT YEAR: 2013-14 PUSHPA DEVI SONTHALIA PAGE | 7 29. IN M.S. RAJU (15 SUPRA), THIS COURT HAS HELD THAT THE POWER OF THE COMMISSIONER UNDER SEC.263(1) IS NOT LIMITED ONLY TO THE MATERIAL WHICH WAS AVAILABLE BEFORE THE ASSESSING OFFICER AND, IN ORDER TO PROTECT THE INTERESTS OF THE REVENUE, THE COMMISSIONER IS ENTITLED TO EXAMINE ANY OTHER RECORDS WHICH ARE AVAILABLE AT THE TIME OF EXAMINATION BY HIM AND TO TAKE INTO CONSIDERATION EVEN THOSE EVENTS WHICH AROSE SUBSEQUENT TO THE ORDER OF ASSESSMENT. 30. IN RAMPYARI DEVI SARAOGI (21 SUPRA), THE COMMISSIONER IN EXERCISE OF REVISIONAL POWERS CANCELLED ASSESSEES ASSESSMENT FOR THE YEARS 1952-1953 TO 1960-61 BECAUSE HE FOUND THAT THE INCOME TAX OFFICER WAS NOT JUSTIFIED IN ACCEPTING THE INITIAL CAPITAL, THE GIFT RECEIVED AND SALE OF JEWELLERY, THE INCOME FROM BUSINESS ETC., WITHOUT ANY ENQUIRY OR EVIDENCE WHATSOEVER. HE DIRECTED THE INCOME TAX OFFICER TO DO FRESH ASSESSMENT AFTER MAKING PROPER ENQUIRY AND INVESTIGATION IN REGARD TO THE JURISDICTION. THE ASSESSEE COMPLAINED BEFORE THE SUPREME COURT THAT NO FAIR OR REASONABLE OPPORTUNITY WAS GIVEN TO HER. SUPREME COURT HELD THAT THERE WAS AMPLE MATERIAL TO SHOW THAT THE INCOME TAX OFFICER MADE THE ASSESSMENTS IN UNDUE HURRY; THAT HE HAD PASSED A SHORT STEREO TYPED ASSESSMENT ORDER FOR EACH ASSESSMENT YEAR; THAT ON THE FACE OF THE RECORD, THE ORDERS WERE PRE-JUDICIAL TO THE INTEREST OF THE REVENUE; AND NO PREJUDICE WAS CAUSED TO THE ASSESSEE ON ACCOUNT OF FAILURE OF THE COMMISSIONER TO INDICATE THE RESULTS OF THE ENQUIRY MADE BY HIM, AS SHE WOULD HAVE A FULL OPPORTUNITY FOR SHOWING TO THE INCOME TAX OFFICER WHETHER HE HAD JURISDICTION OR NOT AND WHETHER THE INCOME TAX ASSESSED IN THE ASSESSMENT YEARS WHICH WERE ORIGINALLY PASSED WERE CORRECT OR NOT' 31. FROM THE ABOVE DECISIONS, THE FOLLOWING PRINCIPLES AS TO EXERCISE OF JURISDICTION BY THE COMMISSIONER U/S.263 OF THE ACT CAN BE CULLED OUT: A) THE COMMISSIONER HAS TO BE SATISFIED OF TWIN CONDITIONS, NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IT IS PREJUDICIAL TO THE REVENUE - RECOURSE CANNOT BE HAD TO SEC.263 (1) OF THE ACT. B) EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. FOR EXAMPLE, WHEN AN INCOME-TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE: OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE, UNLESS THE VIEW TAKEN BY THE INCOME-TAX OFFICER IS UNSUSTAINABLE IN LAW. C) TO INVOKE SUO MOTU REVISIONAL POWERS TO REOPEN A CONCLUDED ASSESSMENT UNDER SEC.263, THE COMMISSIONER MUST GIVE REASONS; THAT A BARE REITERATION BY HIM THAT THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, WILL NOT SUFFICE; THAT THE REASONS MUST BE SUCH AS TO SHOW THAT THE AND MUST IRRESISTIBLY LEAD TO THE CONCLUSION THAT THE ORDER OF THE INCOME TAX OFFICER WAS NOT ONLY ERRONEOUS BUT WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THUS, WHILE THE INCOME TAX OFFICER IS NOT CALLED UPON TO WRITE AN ELABORATE JUDGMENT GIVING DETAILED REASONS IN RESPECT OF EACH AND EVERY DISALLOWANCE, DEDUCTION, ETC., IT IS INCUMBENT UPON THE COMMISSIONER NOT TO EXERCISE HIS SUO MOTU REVISIONAL POWERS UNLESS SUPPORTED BY ADEQUATE REASONS FOR DOING SO; THAT IF A QUERY IS RAISED DURING THE COURSE OF THE SCRUTINY BY THE ASSESSING OFFICER, WHICH WAS ANSWERED TO THE SATISFACTION OF THE ASSESSING OFFICER, BUT NEITHER THE QUERY NOR THE ANSWER WERE REFLECTED IN THE ASSESSMENT ORDER, THIS WOULD NOT BY ITSELF LEAD TO THE CONCLUSION THAT THE ORDER OF THE ASSESSING OFFICER CALLED FOR INTERFERENCE AND REVISION. ITA NO. 958/KOL/2018 ASSESSMENT YEAR: 2013-14 PUSHPA DEVI SONTHALIA PAGE | 8 E) THE COMMISSIONER CANNOT INITIATE PROCEEDINGS WITH A VIEW TO START FISHING AND ROVING INQUIRIES IN MATTERS OR ORDERS WHICH ARE ALREADY CONCLUDED; THAT THE DEPARTMENT CANNOT BE PERMITTED TO BEGIN FRESH LITIGATION BECAUSE OF NEW VIEWS THEY ENTERTAIN ON FACTS OR NEW CIRCUMSTANCE; THAT IF THIS IS PERMITTED, LITIGATION WOULD HAVE NO END EXCEPT WHEN LEGAL INGENUITY IS EXHAUSTED F) WHETHER THERE WAS APPLICATION OF MIND BEFORE ALLOWING THE EXPENDITURE IN QUESTION HAS TO BE SEEN; THAT IF THERE WAS AN INQUIRY, EVEN INADEQUATE THAT WOULD NOT BY ITSELF GIVE OCCASION TO THE COMMISSIONER TO PASS ORDERS UNDER SEC.263 MERELY BECAUSE HE HAS A DIFFERENT OPINION IN THE MATTER; THAT IT IS ONLY IN CASES OF LACK OF INQUIRY THAT SUCH A COURSE OF ACTION WOULD BE OPEN; THAT AN ASSESSMENT ORDER MADE BY THE INCOME TAX OFFICER CANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE, ACCORDING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY; THERE MUST BE SOME PRIMA FACIE MATERIAL ON RECORD TO SHOW THAT THE TAX WHICH WAS LAWFULLY EXIGIBLE HAS NOT BEEN IMPOSED OR THAT BY THE APPLICATION OF THE RELEVANT STATUTE ON AN INCORRECT OR INCOMPLETE INTERPRETATION, A LESSER TAX THAN WHAT WAS JUST, HAS BEEN IMPOSED. G) THE POWER OF THE COMMISSIONER UNDER SEC.263 (1) IS NOT COMMISSIONER IS ENTITLED TO EXAMINE ANY OTHER RECORDS WHICH ARE AVAILABLE AT THE TIME OF EXAMINATION BY HIM AND TO TAKE INTO CONSIDERATION EVEN THOSE EVENTS WHICH AROSE SUBSEQUENT TO THE ORDER OF ASSESSMENT. WE NOW EXAMINE THE FOLLOWING JUDGMENTS ON THIS ISSUE:- DIRECTOR OF INCOME TAX VS. JYOTI FOUNDATION 357 ITR 388 (DELHI HIGH COURT) IT WAS HELD THAT REVISIONARY POWER U/S 263 IS CONFERRED ON THE COMMISSIONER/DIRECTOR OF INCOME TAX WHEN AN ORDER PASSED BY THE LOWER AUTHORITY IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. ORDERS WHICH ARE PASSED WITHOUT INQUIRY OR INVESTIGATION ARE TREATED AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, BUT ORDERS WHICH ARE PASSED AFTER INQUIRY/INVESTIGATION ON THE QUESTION/ISSUE ARE NOT PER SE OR NORMALLY TREATED AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE BECAUSE THE REVISIONARY AUTHORITY FEELS AND OPINES THAT FURTHER INQUIRY/INVESTIGATION WAS REQUIRED OR DEEPER OR FURTHER SCRUTINY SHOULD BE UNDERTAKEN. INCOME TAX OFFICER VS. DG HOUSING PROJECTS LTD343 ITR 329 (DELHI) REVENUE DOES NOT HAVE ANY RIGHT TO APPEAL TO THE FIRST APPELLATE AUTHORITY AGAINST AN ORDER PASSED BY THE ASSESSING OFFICER. S. 263 HAS BEEN ENACTED TO EMPOWER THE CIT TO EXERCISE POWER OF REVISION AND REVISE ANY ORDER PASSED BY THE ASSESSING OFFICER, IF TWO CUMULATIVE CONDITIONS ARE SATISFIED. FIRSTLY, THE ORDER SOUGHT TO BE REVISED SHOULD BE ERRONEOUS AND SECONDLY, IT SHOULD BE PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE EXPRESSION 'PREJUDICIAL TO THE INTEREST OF THE REVENUE' IS OF WIDE IMPORT AND IS NOT CONFINED TO MERELY LOSS OF TAX. THE TERM 'ERRONEOUS' MEANS A WRONG/INCORRECT DECISION DEVIATING FROM LAW. THIS EXPRESSION POSTULATES AN ERROR WHICH MAKES AN ORDER UNSUSTAINABLE IN LAW. THE ASSESSING OFFICER IS BOTH AN INVESTIGATOR AND AN ADJUDICATOR. IF THE ASSESSING OFFICER AS AN ADJUDICATOR DECIDES A QUESTION OR ASPECT AND MAKES A WRONG ASSESSMENT WHICH IS UNSUSTAINABLE IN LAW, IT CAN BE CORRECTED BY THE COMMISSIONER IN EXERCISE OF REVISIONARY POWER. AS AN INVESTIGATOR, IT IS INCUMBENT UPON THE ASSESSING OFFICER TO INVESTIGATE THE FACTS REQUIRED TO BE EXAMINED AND VERIFIED TO COMPUTE THE TAXABLE INCOME. IF THE ASSESSING OFFICER FAILS TO CONDUCT THE SAID INVESTIGATION, HE COMMITS AN ERROR AND THE WORD 'ERRONEOUS' INCLUDES FAILURE TO MAKE THE ENQUIRY. IN SUCH CASES, THE ORDER BECOMES ERRONEOUS BECAUSE ENQUIRY OR VERIFICATION HAS NOT BEEN MADE AND NOT BECAUSE A WRONG ORDER HAS BEEN PASSED ON MERITS. ITA NO. 958/KOL/2018 ASSESSMENT YEAR: 2013-14 PUSHPA DEVI SONTHALIA PAGE | 9 THUS, IN CASES OF WRONG OPINION OR FINDING ON MERITS, THE CIT HAS TO COME TO THE CONCLUSION AND HIMSELF DECIDE THAT THE ORDER IS ERRONEOUS, BY CONDUCTING NECESSARY ENQUIRY, IF REQUIRED AND NECESSARY, BEFORE THE ORDER UNDER S. 263 IS PASSED. IN SUCH CASES, THE ORDER OF THE ASSESSING OFFICER WILL BE ERRONEOUS BECAUSE THE ORDER PASSED IS NOT SUSTAINABLE IN LAW AND THE SAID FINDING MUST BE RECORDED. CIT CANNOT REMAND THE MATTER TO THE ASSESSING OFFICER TO DECIDE WHETHER THE FINDINGS RECORDED ARE ERRONEOUS. IN CASES WHERE THERE IS INADEQUATE ENQUIRY BUT NOT LACK OF ENQUIRY, AGAIN THE CIT MUST GIVE AND RECORD A FINDING THAT THE ORDER/INQUIRY MADE IS ERRONEOUS. THIS CAN HAPPEN IF AN ENQUIRY AND VERIFICATION IS CONDUCTED BY THE CIT AND HE IS ABLE TO ESTABLISH AND SHOW THE ERROR OR MISTAKE MADE BY THE ASSESSING OFFICER, MAKING THE ORDER UNSUSTAINABLE IN LAW. IN SOME CASES POSSIBLY THOUGH RARELY, THE CIT CAN ALSO SHOW AND ESTABLISH THAT THE FACTS ON RECORD OR INFERENCES DRAWN FROM FACTS ON RECORD PER SE JUSTIFIED AND MANDATED FURTHER ENQUIRY OR INVESTIGATION BUT THE ASSESSING OFFICER HAD ERRONEOUSLY NOT UNDERTAKEN THE SAME. HOWEVER, THE SAID FINDING MUST BE CLEAR, UNAMBIGUOUS AND NOT DEBATABLE. THE MATTER CANNOT BE REMITTED FOR A FRESH DECISION TO THE ASSESSING OFFICER TO CONDUCT FURTHER ENQUIRIES WITHOUT A FINDING THAT THE ORDER IS ERRONEOUS. FINDING THAT THE ORDER IS ERRONEOUS IS A CONDITION OR REQUIREMENT WHICH MUST BE SATISFIED FOR EXERCISE OF JURISDICTION UNDER S. 263 OF THE ACT. IN SUCH MATTERS, TO REMAND THE MATTER/ISSUE TO THE ASSESSING OFFICER WOULD IMPLY AND MEAN THE CIT HAS NOT EXAMINED AND DECIDED WHETHER OR NOT THE ORDER IS ERRONEOUS BUT HAS DIRECTED THE ASSESSING OFFICER TO DECIDE THE ASPECT/QUESTION. THIS DISTINCTION MUST BE KEPT IN MIND BY THE CIT WHILE EXERCISING JURISDICTION UNDER S. 263 OF THE ACT AND IN THE ABSENCE OF THE FINDING THAT THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE, EXERCISE OF JURISDICTION UNDER THE SAID SECTION IS NOT SUSTAINABLE. IN MOST CASES OF ALLEGED 'INADEQUATE INVESTIGATION', IT WILL BE DIFFICULT TO HOLD THAT THE ORDER OF THE ASSESSING OFFICER, WHO HAD CONDUCTED ENQUIRIES AND HAD ACTED AS AN INVESTIGATOR, IS ERRONEOUS, WITHOUT CIT CONDUCTING VERIFICATION/INQUIRY. THE ORDER OF THE ASSESSING OFFICER MAY BE OR MAY NOT BE WRONG. CIT CANNOT DIRECT RECONSIDERATION ON THIS GROUND BUT ONLY WHEN THE ORDER IS ERRONEOUS. AN ORDER OF REMIT CANNOT BE PASSED BY THE CIT TO ASK THE ASSESSING OFFICER TO DECIDE WHETHER THE ORDER WAS ERRONEOUS. THIS IS NOT PERMISSIBLE. AN ORDER IS NOT ERRONEOUS, UNLESS THE CIT HOLD AND RECORDS REASONS WHY IT IS ERRONEOUS. AN ORDER WILL NOT BECOME ERRONEOUS BECAUSE ON REMIT, THE ASSESSING OFFICER MAY DECIDE THAT THE ORDER IS ERRONEOUS. THEREFORE CIT MUST AFTER RECORDING REASONS HOLD THAT THE ORDER IS ERRONEOUS. THE JURISDICTIONAL PRECONDITION STIPULATED IS THAT THE CIT MUST COME TO THE CONCLUSION THAT THE ORDER IS ERRONEOUS AND IS UNSUSTAINABLE IN LAW. IT MAY BE NOTICED THAT THE MATERIAL WHICH THE CIT CAN RELY INCLUDES NOT ONLY THE RECORD AS IT STANDS AT THE TIME WHEN THE ORDER IN QUESTION WAS PASSED BY THE ASSESSING OFFICER BUT ALSO THE RECORD AS IT STANDS AT THE TIME OF EXAMINATION BY THE CIT. NOTHING BARS/PROHIBITS THE CIT FROM COLLECTING AND RELYING UPON NEW/ADDITIONAL MATERIAL/EVIDENCE TO SHOW AND STATE THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS. COMMISSIONER OF INCOME TAX VS. J. L. MORRISON (INDIA) LTD. 366 ITR AS REGARD THE SUBMISSION ON BEHALF OF THE REVENUE THAT POWER UNDER SECTION 263 OF THE ACT CAN BE EXERCISED EVEN IN A CASE WHERE THE ISSUE IS DEBATABLE, IT WAS HELD THAT THE CASE OF CIT VS. M. M. KHAMBHATWALA WAS NOT APPLICABLE. THE OBSERVATION THAT THE COMMISSIONER CAN EXERCISE POWER UNDER SECTION 263 OF THE ACT EVEN IN A CASE WERE THE ISSUE IS DEBATABLE WAS A MERE PASSING REMARK WHICH IS AGAIN CONTRARY TO THE VIEW TAKEN BY THE APEX COURT IN THE CASE OF MALABAR INDUSTRIAL COMPANY LTD. & MAX INDIA LTD. IF THE ASSESSING OFFICER HAS TAKEN A POSSIBLE VIEW, IT CANNOT BE SAID THAT THE VIEW TAKEN BY HIM IS ERRONEOUS NOR THE ORDER OF THE ASSESSING OFFICER IN THAT CASE CAN BE SET ASIDE IN REVISION. IT HAS TO BE SHOWN UNMISTAKABLY THAT THE ORDER OF THE ASSESSING OFFICER IS UNSUSTAINABLE. ANYTHING SHORT OF THAT WOULD NOT CLOTHE THE CIT WITH JURISDICTION TO EXERCISE POWER UNDER SECTION 263 OF THE ACT. CIT VS. M. M. KHAMBHATWALA REPORTED IN 198 ITR 144; CIT ITA NO. 958/KOL/2018 ASSESSMENT YEAR: 2013-14 PUSHPA DEVI SONTHALIA PAGE | 10 VS. RAISON INDUSTRIES LTD. REPORTED IN 288 ITR 322 (SC), NOT APPLICABLE; MALABAR INDUSTRIAL CO. LTD. V. CIT REPORTED IN 243 ITR 83, RELIED ON. (PARA 72) AS REGARD THE THIRD QUESTION AS TO WHETHER THE ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER WITHOUT APPLICATION OF MIND, IT WAS HELD THAT THE COURT HAS TO START WITH THE PRESUMPTION THAT THE ASSESSMENT ORDER WAS REGULARLY PASSED. THERE IS EVIDENCE TO SHOW THAT THE ASSESSING OFFICER HAD REQUIRED THE ASSESSEE TO ANSWER 17 QUESTIONS AND TO FILE DOCUMENTS IN REGARD THERETO. IT IS DIFFICULT TO PROCEED ON THE BASIS THAT THE 17 QUESTIONS RAISED BY HIM DID NOT REQUIRE APPLICATION OF MIND. WITHOUT APPLICATION OF MIND THE QUESTIONS RAISED BY HIM IN THE ANNEXURE TO NOTICE UNDER SECTION 142(1) OF THE ACT COULD NOT HAVE BEEN FORMULATED. THE ASSESSING OFFICER WAS REQUIRED TO EXAMINE THE RETURN FILED BY THE ASSESSEE IN ORDER TO ASCERTAIN HIS INCOME AND TO LEVY APPROPRIATE TAX ON THAT BASIS. WHEN THE ASSESSING OFFICER WAS SATISFIED THAT THE RETURN, FILED BY THE ASSESSEE, WAS IN ACCORDANCE WITH LAW, HE WAS UNDER NO OBLIGATION TO JUSTIFY AS TO WHY WAS HE SATISFIED. ON THE TOP OF THAT THE ASSESSING OFFICER BY HIS ORDER DATED 28TH MARCH, 2008 DID NOT ADVERSELY AFFECT ANY RIGHT OF THE ASSESSEE NOR WAS ANY CIVIL RIGHT OF THE ASSESSEE PREJUDICED. HE WAS AS SUCH UNDER NO OBLIGATION IN LAW TO GIVE REASONS. THE FACT, THAT ALL REQUISITE PAPERS WERE SUMMONED AND THEREAFTER THE MATTER WAS HEARD FROM TIME TO TIME COUPLED WITH THE FACT THAT THE VIEW TAKEN BY HIM IS NOT SHOWN BY THE REVENUE TO BE ERRONEOUS AND WAS ALSO CONSIDERED BOTH BY THE TRIBUNAL AS ALSO BY US TO BE A POSSIBLE VIEW, STRENGTHENS THE PRESUMPTION UNDER CLAUSE (E) OF SECTION 114 OF THE EVIDENCE ACT. A PRIMA FACIE EVIDENCE, ON THE BASIS OF THE AFORESAID PRESUMPTION, IS THUS CONVERTED INTO A CONCLUSIVE PROOF OF THE FACT THAT THE ORDER WAS PASSED BY THE ASSESSING OFFICER AFTER DUE APPLICATION OF MIND. MEERUT ROLLER FLOUR MILLS PVT. LTD. VS. C.I.T., ITA NO. 116/COCH/2012; CIT VS. INFOSYS TECHNOLOGIES LTD., 341 ITR 293 (KARNATAKA); S.N. MUKHERJEE VS. UNION OF INDIA, AIR 1990 SC 1984; A. A. DOSHI VS. JCIT, 256 ITR 685; HINDUSTHAN TIN WORKS LTD. VS. CIT, 275 ITR 43 (DEL), DISTINGUISHED. (PARAS 90-92, 102) COMMISSIONER OF INCOME TAX VS. SOHANA WOOLLEN MILLS 296 ITR 238 (P&H HC) A REFERENCE TO THE PROVISIONS OF S. 263 SHOWS THAT JURISDICTION THEREUNDER CAN BE EXERCISED IF THE CIT FINDS THAT THE ORDER OF THE AO WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. MERE AUDIT OBJECTION AND MERELY BECAUSE A DIFFERENT VIEW COULD BE TAKEN, WERE NOT ENOUGH TO SAY THAT THE ORDER OF THE AO WAS ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE JURISDICTION COULD BE EXERCISED IF THE CIT WAS SATISFIED THAT THE BASIS FOR EXERCISE OF JURISDICTION EXISTED. NO RIGID RULE COULD BE LAID DOWN ABOUT THE SITUATION WHEN THE JURISDICTION CAN BE EXERCISED. WHETHER SATISFACTION OF THE CIT FOR EXERCISING JURISDICTION WAS CALLED FOR OR NOT, HAS TO BE DECIDED HAVING REGARD TO A GIVEN FACT SITUATION. IN THE PRESENT CASE, THE TRIBUNAL HAS HELD THAT THE ASSESSEE HAD DISCLOSED THAT OUT OF SALE CONSIDERATION, A SUM OF RS. 1 LAKH WAS TO BE RECEIVED FOR SALE OF PERMIT. IF THAT IS SO, THERE WAS NO ERROR IN THE VIEW TAKEN BY THE AO AND NO CASE WAS MADE OUT FOR INVOKING JURISDICTION UNDER S. 263. COMMISSIONER OF INCOME TAX VS. LEISURE WEAR EXPORTS LTD. 341 ITR 166 (DEL) THE PREREQUISITE TO THE EXERCISE OF SUO MOTU JURISDICTION UNDER S. 263 BY THE CIT IS THAT THE ORDER OF THE AO IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. TWO CONDITIONS ARE TO BE SATISFIED, NAMELY, (I) THE ORDER OF THE AO SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) THE ERROR COMMITTED BY THE AO IN THE ORDER IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. BOTH THESE CONDITIONS ARE TO BE SATISFIED SIMULTANEOUSLY. IT IS ALSO WELL-SETTLED PRINCIPLE THAT PROVISIONS OF S. 263 WOULD NOT BE INVOKED MERELY TO CORRECT A MISTAKE OR ERROR COMMITTED BY THE AO UNLESS IT HAS CAUSED PREJUDICE TO THE INTEREST OF THE REVENUE. IF AN ORDER IS BASED ON INCORRECT ASSUMPTION OF FACTS OR ON INCORRECT APPLICATION OF LAW OR WITHOUT APPLYING THE PRINCIPLES OF NATURAL JUSTICE AND WITHOUT APPLICATION OF MIND, IT WOULD BE TREATED AS ERRONEOUS. LIKEWISE, THE EXPRESSION 'PREJUDICIAL TO THE INTEREST OF THE REVENUE' IS OF WIDE IMPORT AND IS NOT CONFINED TO LOSS OF TAX. IF DUE TO AN ERRONEOUS ORDER OF THE AO THE REVENUE IS LOSING TAX LAWFULLY PAYABLE BY A PERSON, ITA NO. 958/KOL/2018 ASSESSMENT YEAR: 2013-14 PUSHPA DEVI SONTHALIA PAGE | 11 IT WOULD BE CERTAINLY PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE POWER OF REVISION IS NOT MEANT TO BE EXERCISED FOR THE PURPOSE OF DIRECTING THE AO TO HOLD ANOTHER INVESTIGATION WITHOUT DESCRIBING AS TO HOW THE ORDER OF THE AO IS ERRONEOUS. FROM THIS IT ALSO FOLLOWS THAT WHERE THE ASSESSMENT ORDER HAS BEEN PASSED BY THE AO AFTER TAKING INTO ACCOUNT THE ASSESSEE'S SUBMISSIONS AND DOCUMENTS FURNISHED BY HIM AND NO MATERIAL WHATSOEVER HAS BEEN BROUGHT ON RECORD BY THE CIT WHICH SHOWED THAT THERE WAS ANY DISCREPANCY OR FALSITY IN EVIDENCES FURNISHED BY THE ASSESSEE, THE ORDER OF THE AO CANNOT BE SET ASIDE FOR MAKING DEEP INQUIRY ONLY ON THE PRESUMPTION AND ASSUMPTION THAT SOMETHING NEW MAY COME OUT. FOR MAKING A VALID ORDER UNDER S. 263 IT IS ESSENTIAL THAT THE CIT HAS TO RECORD AN EXPRESS FINDING TO THE EFFECT THAT ORDER PASSED BY THE AO IS ERRONEOUS WHICH HAS CAUSED LOSS TO THE REVENUE. FURTHERMORE, WHERE ACTING IN ACCORDANCE WITH LAW THE AO FRAMES CERTAIN ASSESSMENT ORDER, SAME CANNOT BE BRANDED AS ERRONEOUS SIMPLY BECAUSE ACCORDING TO THE CIT, THE ORDER SHOULD BE WRITTEN MORE ELABORATELY.MALABAR INDUSTRIAL CO. LTD. VS. CIT (2000) 159 CTR (SC) 1 : (2000) 243 ITR 83 (SC), GEE VEE ENTERPRISES VS. ADDL. CIT 1975 CTR (DEL) 61 : (1975) 99 ITR 375 (DEL), CIT VS. SESHASAYEE PAPER & BOARDS LTD. (2000) 242 ITR 490 (MAD), CWT VS. PRITHVI RAJ & CO. (1991) 98 CTR (DEL) 216 : (1993) 199 ITR 424 (DEL) AND J.P. SRIVASTAVA& SONS (KANPUR) LTD. VS. CIT (1978) 111 ITR 326 (ALL) RELIED ON. (PARAS 6 & 7) IN THE ENTIRE ORDER EMPHASIS LAID BY THE CIT IS THAT IN RESPECT OF FOUR ISSUES MENTIONED BY HIM, NO QUERIES WERE RAISED BY THE AO. ON THIS PREMISE, THOUGH IT IS OBSERVED THAT THERE WAS NO APPLICATION OF MIND ON THE PART OF THE AO AND THE AO HAS NOT RECORDED ANY REASONS TO JUSTIFY THE OMISSION TO CONSIDER THE SAID FACTS, THE CIT DOES NOT TAKE THE SAID ORDER TO ITS LOGICAL CONCLUSION WHICH WAS THE PRIME DUTY OF THE CIT IN ORDER TO JUSTIFY EXERCISE OF POWER UNDER S. 263. THERE IS NOT EVEN A WHISPER THAT THE ORDER IS ERRONEOUS. EVEN IF IT IS INFERRED THAT NON- CONSIDERATION OF THE ISSUES POINTED OUT BY THE CIT WOULD AMOUNT TO AN ERRONEOUS ORDER, IT IS NOT STATED AS TO HOW THIS ORDER IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE PENULTIMATE PARAS OF THE ORDER, AT BEST, CONTAIN THE OBSERVATIONS THAT THE AO WAS SATISFIED WITH MAKING FLIMSY ADDITIONS WHICH WERE DELETED BY THE CIT(A). THERE IS NOT A WHISPER AS TO HOW THIS ORDER WAS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THAT APART, THE APPROACH OF THE TRIBUNAL IN DISCARDING THE OBSERVATION OF THE CIT ABOUT NOT MAKING PROPER INQUIRIES IN RESPECT OF THE SAID FOUR ISSUES IS ALSO JUSTIFIED AND WITHOUT BLEMISH. (PARAS 12 TO 14) FIRST COMMENT OF THE CIT WAS IN RESPECT OF FINISHED GOODS IN THE CLOSING STOCK. THE CIT FOUND THAT THESE WERE TO THE TUNE OF RS. 5.28 CRORES. ACCORDING TO THE CIT, WHEN THE TOTAL TURNOVER OF THE ASSESSEE WAS RS. 6.13 CRORES, THE AO SHOULD HAVE SATISFIED HIMSELF BY CALLING FOR MORE DETAILS AS TO HOW THERE WAS CLOSING STOCK OF SUCH A MAGNITUDE OF RS. 5.28 CRORES. THUS, THE CIT HAS NOT DOUBTED THE STATEMENT OF FINISHED GOODS IN THE CLOSING STOCK FURNISHED BY THE ASSESSEE. HE HAS ONLY REMARKED THAT THERE SHOULD HAVE BEEN A DEEPER PROBE BY CALLING FOR MORE DETAILS. THIS IS NEITHER HERE NOR THERE, WHEN ONE KEEPS IN VIEW THE INGREDIENTS OF S. 263. (PARA 15) INSOFAR AS THE INSURANCE CLAIM IS CONCERNED, THE CIT OBSERVED THAT THE ASSESSEE HAD SHOWN RECEIVABLE ON THIS ACCOUNT TO THE TUNE OF RS. 1.21 CRORES BUT NO DETAILS HAD BEEN FURNISHED. THE AO HAD ALSO NOT MADE ANY INQUIRIES. IN THE DETAILED DISCUSSION ON THIS ASPECT, THE TRIBUNAL HAS OBSERVED THAT INSURANCE CLAIM WAS LODGED FOR THE GOODS LOST IN TRANSIT. THE ASSESSEE AT THAT TIME HAD MERELY FILED A CLAIM WITH THE INSURANCE COMPANY. THIS CLAIM HAD NOT BEEN APPROVED AS THE INSURANCE COMPANY HAD NEITHER ACCEPTED THE SAME NOR GIVEN ANY ASSURANCE FOR MAKING PAYMENT. THEREFORE, NO INCOME HAD 'ACCRUED' WHICH COULD BE TAXED. THE TRIBUNAL RIGHTLY HELD THAT ORDINARILY THE INCOME IS SAID TO HAVE ACCRUED TO A PERSON WHEN HE ACQUIRES THE RIGHT TO INCOME AND THIS SHOULD BE ENFORCEABLE RIGHT, THOUGH ACTUAL QUANTIFICATION OR RECEIPT MAY FOLLOW IN DUE COURSE. THE MERE CLAIM TO ITA NO. 958/KOL/2018 ASSESSMENT YEAR: 2013-14 PUSHPA DEVI SONTHALIA PAGE | 12 INCOME WITHOUT ANY ENFORCEABLE RIGHT CANNOT BE REGARDED AS AN ACCRUED INCOME FOR THE PURPOSE OF IT ACT. (PARA 16) COMING TO THE CLAIM UNDER S. 80HHC, IT WAS TOTALLY UNCALLED FOR ON THE PART OF THE CIT TO SAY THAT THE AO DID NOT MAKE REQUISITE INQUIRIES BECAUSE OF THE SIMPLE REASON THAT THE AO HAD, IN FACT, DECLINED AND REJECTED THIS CLAIM OF THE ASSESSEE. IF THE AO HIMSELF DISALLOWED THE DEDUCTION CLAIMED BY THE ASSESSEE ON THIS ACCOUNT UNDER S. 80HHC, ONE FAILS TO UNDERSTAND WHAT FURTHER INQUIRIES WERE NEEDED BY THE AO. (PARA 17) LASTLY, THE OBSERVATIONS OF THE CIT ARE IN RESPECT OF THE INCOME OF RS. 1.61 CRORES SHOWN BY THE ASSESSEE ON ACCOUNT OF VARIATION IN EXCHANGE RATE. THE CIT HAS ONLY OBSERVED THAT IN THE IMMEDIATE PREVIOUS YEAR NO SUCH GAIN WAS SHOWN AND THEREFORE, IT NEEDED EXAMINATION BY THE AO. HOWEVER, THE MOOT QUESTION WOULD BE EXAMINATION FOR WHAT PURPOSE? IT IS AN INCOME SHOWN BY THE ASSESSEE. WHETHER THE CIT WAS OF THE OPINION THAT THERE WAS NO SUCH INCOME OR HE WAS NURTURING AN IMPRESSION THAT INCOME ON THIS ACCOUNT AS SHOWN WAS LESSER ? THERE IS NO SUCH INDICATION IN THE ORDER. THE CIT ALSO DOES NOT AT ALL STATE AS TO WHAT WAS THE REASON FOR DOUBTING THE INCOME OFFERED BY THE ASSESSEE. EVEN IF IT IS FOUND THAT PART OF SUCH INCOME WAS CLAIMED AS DEDUCTION UNDER S. 80HHC, NO BENEFIT ENURED TO THE ASSESSEE ON THIS ACCOUNT AS CLAIM UNDER S. 80HHC WAS FULLY DISALLOWED BY THE AO. IT IS NOT AT ALL OBSERVED AS TO HOW THE ORDER OF THE AO ON THIS ACCOUNT WAS ERRONEOUS AND FURTHER AS TO HOW IT WAS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THUS, ORDER OF THE CIT WAS RIGHTLY SET ASIDE BY THE TRIBUNAL. IN THE CASE ON HAND THE ID. CIT FINDS FAULT WITH THE AO FOR NOT INVOKING RULE 8D WHILE MAKING DISALLOWANCE U/S 14A. THE HONBLE DELHI HIGH COURT IN THE CASE OF MAXOP INVESTMENTS LTD. VS CIT (SUPRA) HELD THAT THE AO CANNOT PROCEED TO DETERMINE THE AMOUNT OF EXPENDITURE INCURRED IN RELATION TO EXEMPT INCOME WITHOUT RECORDING A FINDING THAT HE IS NOT SATISFIED WITH THE CORRECTNESS OF THE CLAIM OF THE ASSESSEE. THIS IS A CONDITION PRECEDENT WHILE REJECTING THE CLAIM OF THE ASSESSEE, WITH REGARD TO INCURRING OF EXPENDITURE OR NO EXPENDITURE IN RELATION TO EXEMPT INCOME. THE AO WILL HAVE TO INDICATE COGENT REASONS FOR THE SAME AND RULE 8D COMES INTO PLAY ONLY WHEN THE AO RECORDS A FINDING THAT HE IS NOT SATISFIED WITH THE ASSESSEES METHOD. IN THE CASE IN HAND THE AO HAS NOT MADE ANY SUCH RECORDING OF SATISFACTION AND HAS ACCEPTED THE DISALLOWANCE MADE U/S 14A BY THE ASSESSEE. IN SUCH CIRCUMSTANCES IT IS NOT OPEN FOR THE ID. CIT TO COME TO A CONCLUSION THAT THE AO SHOULD HAVE INVOKED RULE 8D, WITHOUT HIMSELF RECORDING THE SATISFACTION THAT THE CALCULATION GIVEN BY THE ASSESSEE IN ITS DISALLOWANCE MADE SUO MOTO U/S 14A IS NOT CORRECT. COMING TO THE OTHER EXPENSES CLAIMED, THE ID. CIT HAS SIMPLY COLLECTED INFORMATION AFTER RAISING QUERIES AND HAS NOT GIVEN ANY FINDING WHATSOEVER THAT THERE IS AN ERROR MADE BY THE AO OR THAT THE CIRCUMSTANCES WAS SUCH THAT WOULD REQUIRE AND WARRANT FURTHER INQUIRY OR INVESTIGATION. NO ERROR IN THE ASSESSMENT ORDER HAS BEEN POINTED OUT AND IT IS NOT STATED AS TO HOW PREJUDICE WAS CAUSED TO THE REVENUE. THE FINDING THAT THE AO HAD FAILED TO PROPERLY SCRUTINISE THE ABOVE ASPECTS DOES NOT GIVE POWERS TO THE ID. CIT TO REVISE THE ASSESSMENT U/S 263 OF THE ACT. MAKING ROWING ENQUIRIES IS NOT A FINDING OF AN ERROR. ASSESSMENTS CANNOT BE SET ASIDE FOR FRESH ENQUIRIES UNLESS A SPECIFIC ERROR IS POINTED OUT AT NOT MAKING PROPER ENQUIRY CANNOT BE EQUATED WITH NO ENQUIRY. IN VIEW OF THE ABOVE WE QUASH THE ORDER PASSED U/S 263 OF THE ACT AND ALLOW THE APPEAL OF THE ASSESSEE. 12. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED KEEPING IN MIND THE FOREGOING DETAILED DISCUSSION THAT AN ASSESSMENT HAS TO BE BOTH ERRONEOUS AS WELL AS PREJUDICIAL IN INTEREST OF THE REVENUE SIMULTANEOUSLY BEFORE THE SAME IS SOUGHT TO BE REVISED AND IT IS NOT PERMISSIBLE FOR THE CIT OR THE PCIT TO EXERCISE HIS REVISION JURISDICTION IN CASE THE ASSESSING OFFICER HAS TAKEN ONE OF THE POSSIBLE VIEW, WE PROCEED TO DEAL WITH THE RELEVANT FACTS OF THE CASE. IT HAS COME ON RECORD THAT THE ASSESSING OFFICER HAD ISSUED SEC. 133(6) LETTER / ITA NO. 958/KOL/2018 ASSESSMENT YEAR: 2013-14 PUSHPA DEVI SONTHALIA PAGE | 13 NOTICE TO THE M/S SHCL DURING THE COURSE OF SCRUTINY WHICH STOOD ADEQUATELY REPLIED IN ASSESSEES FAVOUR. COUPLED WITH THIS, ALL THE RELEVANT FACTUAL DETAILS IN SUPPORT OF THE ASSESSEES SHARE PURCHASE DOCUMENT, CONTRACT NOTES, BANK STATEMENT, (SUPRA) ALREADY IN THE CASE RECORDS. COUPLED WITH THIS, LEARNED CIT-DR FAILS TO REBUT THE CLINCHING FACT THAT ALTHOUGH THE PCITS DETAILED DISCUSSION EXTRACTED IN THE PRECEDING PARAGRAPHS HAS SOUGHT TO MAKE OUT A CASE OF ARTIFICIAL PRICE RIGGING BETWEEN THE ASSESSEE, PROMOTERS ENTRY OPERATORS OF THE ENTITY IN LIGHT OF MINISTRY OF FINANCES LETTER DATED 24.07.2015 FIGURES, THERE IS NOT EVEN AN IOTA OF MATERIAL QUOTED AGAINST THE ASSESSEE TO HAVE BEEN ENGAGED IN ALL THE FOREGOING ARTIFICIAL PRICE RIGGING. WE ARE OBSERVING IN VIEW OF ALL THESE FACTS THAT THE ASSESSING OFFICER HAD RIGHTLY ACCEPTED THE ASSESSEES LTCG KEEPING IN MAKING THE OVERWHELMING EVIDENCE FORMING PART OF RECORDS. THIS TRIBUNALS CO-ORDINATE BENCH DECISION (SUPRA) AS WELL AS HON'BLE JURISDICTIONAL HIGH COURTS DECISIONS CIT VS. RATAN ITA NO. 105/2016, M/S CLASSIC GROWERS LTD VS. CIT ITA 129/2012, CIT VS. LAKSHMARGARH ESTATE & TRADING CO. LTD. (2013) 40 TAXMAN 439 (CAL), CIT VS. SMT. SHREYASHI GANGULY ITA 196/2012, CIT VS. BHAGWATI PRASAD AGARWAL (2009/ TMI 34738/CAL IN 22/2009 29.04.2009 HAVE ACCEPTED GENUINENESS OF SIMILAR LTCG. SINCE THE ISSUE IS COVERED BY ALL THE FOREGOING DECISIONS OF HON'BLE JURISDICTIONAL HIGH COURT, WE OBSERVE THAT THE ASSESSING OFFICER HAD RIGHTLY TREATED THE ASSESSEES FOREGOING LTCG DERIVED FROM SALE OF SHARES TO BE GENUINE. THAT BEING THE CASE, WE HOLD THAT PCITS EXERCISE OF REVISION JURISDICTION MERELY ON SUSPICIOUS CIRCUMSTANCES BY INVOKING IN SEC. 263 EXPLANATION (SUPRA) WITH EFFECT FROM 01.06.2015 IS NOT SUSTAINING. WE THEREFORE REVERSE THE PCITS ORDER UNDER CHALLENGE AND RESTORE THE IMPUGNED ASSESSMENT FRAMED BY THE ASSESSING OFFICER ON 29.07.2016. IT IS MADE CLEAR THAT WE HAVE DEALT WITH AN INSTANCE OF ASSESSING OFFICER HIMSELF HAVING ACCEPTED ASSESSEES LTCG AFTER EXAMINING ALL THE RELEVANT FACTS OF THE CASE. WE THEREFORE DO NOT DEEM IT APPROPRIATE TO RESTORE THE VERY ISSUE BACK TO HIM FOR YET ANOTHER ROUND OF ASSESSMENT. THE ASSESSES SOLE SUBSTANTIVE GRIEVANCE AS WELL AS THIS LEAD APPEAL ITA NO.01/KOL/2019 IS ACCEPTED THEREFORE. 7. WE ADOPT THE FOREGOING DETAILED DISCUSSION OF M/S. GITISH TIKMANI, HUF & ORS.(SUPRA) MUTATIS MUTANDIS AND HOLD THAT PCIT HAS ERRED HEREIN WHILST DOUBTING GENUINENESS OF THE ASSESSEE'S LONG TERM CAPITAL GAINS BASED ON ALL THE SUPPORTING EVIDENCES. THE PCIT'S REVISION DIRECTIONS UNDER CHALLENGE ARE THEREFORE REVERSED ON MERITS AS WELL. THE AO'S REGULAR ASSESSMENT DATED 11.01.2016 STANDS RESTORED AS A NECESSARY COROLLARY. 8. BEFORE PARTING, IT IS NOTED THAT THE ORDER IS BEING PRONOUNCED AFTER NINETY DAYS OF HEARING. HOWEVER, TAKING NOTE OF THE EXTRAORDINARY SITUATION IN THE LIGHT OF THE COVID-19 PANDEMIC AND LOCKDOWN, THE FOREGOING PERIOD NEEDS TO BE EXCLUDED. FOR COMING TO SUCH A CONCLUSION, WE RELY UPON THE DECISION OF THE CO-ORDINATE BENCH OF THE MUMBAI TRIBUNAL IN THE CASE OF ITA NO. 958/KOL/2018 ASSESSMENT YEAR: 2013-14 PUSHPA DEVI SONTHALIA PAGE | 14 DCIT VS. JSW LIMITED IN ITA NO. 6264/MUM/2018 & 6103/MUM/2018, ASSESSMENT YEAR 2013-14, ORDER DATED 14 TH MAY, 2020 . 9. THIS ASSESSEE'S APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10.06.2020. SD/- SD/- (A.L. SAINI) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 10.06.2020 BIDHAN COPY FORWARDED TO: 1. APPELLANT - PUSHPA DEVI SONTHALIA, 4 TH FLOOR, ROOM NO. 291, R. N. MUKHERJEE ROAD, KOLKATA-700 001. 2. RESPONDENT - PRINCIPAL COMMISSINER OF INCOME TAX, KOLKATA-2, AAYAKAR BHAWAN POORVA, 110, SHANTIPALLY, KOLKATA-700 107. 3. CIT(A)- 4. CIT- 5. CIT(DR), KOLKATA BENCHES, KOLKATA. (SENT THROUGH E-MAIL). TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES