SHRINGAR MARKETING PVT. LTD,KOLKATA vs. PCIT-4, KOLKATA

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘C’ BENCH, KOLKATA (Before Sri J. Sudhakar Reddy, Hon’ble Accountant Member & Sri Aby T. Varkey, Hon’ble Judicial Member) ITA No. 637/Kol/2020 Assessment Year: 2015-16 Shringar Marketing Pvt. Ltd........……………………..................................……………..…….............Appellant R.No. 3, 6th Floor 20B, Abdul Hamid Street Kolkata – 700 069 [PAN : AADCS 5701 J] Vs. Pr. Commissioner of Income Tax -4, Kolkata.............…..............................................…......Respondent Appearances by: Shri S.M. Surana, Advocate, appeared on behalf of the assessee. Mr. John Vincent Donkupar Langstieh, CIT, D/R, appearing on behalf of the Revenue. Date of concluding the hearing : April 7th, 2021 Date of pronouncing the order : April 30th, 2021 ORDER Per J. Sudhakar Reddy, AM :- This appeal filed by the assessee is directed against the order of the Learned Pr. Commissioner of Income Tax - 4, Kolkata (hereinafter the “ld. Pr. CIT”), passed u/s. 263 of the Income Tax Act, 1961 (the ‘Act’), dt. 03/03/2020, for the Assessment Year 2015- 16. There is a delay of 242 days in filing of this appeal by the assessee. The assessee has filed a condonation petition dt. 12/02/2021. On perusal of the same, we are convinced that the assessee was prevented by sufficient cause from filing of the appeal in time due the prevailing pandemic. Hence, we condone the delay and admit this appeal of the assessee. 2. The assessee is a company and had filed its return of income for the Assessment Year 2015-16 on 21/09/2015, disclosing total income of Rs.9,54,200/-. The company had issued shares at a premium during the year. The case was selected for scrutiny through CASS and issued notices u/s 143(2) and 142(1) of the Act. The A/R of the assessee appeared before the Assessing Officer and produced all the details and documents called for. The Assessing Officer concluded that all transactions of purchase and sale of shares wee genuine and no discrepancy was found in the transaction. The Assessing Officer completed the assessment on 27/07/2016, u/s 143(3) of the Act determining the total income of the assessee at Rs.9,88,330/- interalia making a disallowance u/s 14A r.w.r. 8D(2) of Rs.34,129/-. 3. The ld. Pr. CIT invoked his jurisdiction u/s 263 of the Act, and held as follows:-

2 ITA No. 637/Kol/2020 Assessment Year: 2015-16 Shringar Marketing Pvt. Ltd. “8. I have carefully considered and perused the material available on record and submission have carefully considered and perused the material available on record and submission have carefully considered and perused the material available on record and submission made during this proceedings and found that the issues pointed out in the show made during this proceedings and found that the issues pointed out in the show made during this proceedings and found that the issues pointed out in the show-cause need verification as merely accepting submission without calling for logically relev verification as merely accepting submission without calling for logically relev verification as merely accepting submission without calling for logically relevant material/evidences in order to have an overview of totality of facts and circumstances during material/evidences in order to have an overview of totality of facts and circumstances during material/evidences in order to have an overview of totality of facts and circumstances during the course of assessment proceedings, the A.O. failed to examine the above referred issues, the course of assessment proceedings, the A.O. failed to examine the above referred issues, the course of assessment proceedings, the A.O. failed to examine the above referred issues, rendering the assessment order erroneous on the ground of lack of rendering the assessment order erroneous on the ground of lack of enquiry. After having enquiry. After having considered the position of law and facts and circumstances of the instant case, I am of the considered the position of law and facts and circumstances of the instant case, I am of the considered the position of law and facts and circumstances of the instant case, I am of the considered opinion that the assessment order considered opinion that the assessment order passed by the A.O. is erroneous i passed by the A.O. is erroneous in so far as it is prejudicial to the interest of revenue in acco prejudicial to the interest of revenue in accordance with the Explanation 2 of section 263 (1) rdance with the Explanation 2 of section 263 (1) of the Act on the ground of lack of enquiry. Accordingly, the assessment dated 19.12.2017 of the Act on the ground of lack of enquiry. Accordingly, the assessment dated 19.12.2017 of the Act on the ground of lack of enquiry. Accordingly, the assessment dated 19.12.2017 passed u/s 143(3) is set aside de passed u/s 143(3) is set aside de-novo on specific issue as outlined in above para with a novo on specific issue as outlined in above para with a direction to Assessing Offi direction to Assessing Officer to cause adequate and effective enquiry. The A.O. is directed to cer to cause adequate and effective enquiry. The A.O. is directed to provide reasonable opportunity to the assessee company to produce documents & evidences provide reasonable opportunity to the assessee company to produce documents & evidences provide reasonable opportunity to the assessee company to produce documents & evidences which it may choose to rely upon for substantiating its claim and pass a fresh assessment which it may choose to rely upon for substantiating its claim and pass a fresh assessment which it may choose to rely upon for substantiating its claim and pass a fresh assessment order.” 4. Aggrieved the assessee is in appeal before us. Aggrieved the assessee is in appeal before us. 5. The ld. Counsel for the assessee submitted that, The ld. Counsel for the assessee submitted that, the revisional order passed by the the revisional order passed by the ld. Pr. CIT, is beyond the scope of Section 263 of the Act, as the ld. Pr. CIT, has failed to ld. Pr. CIT, is beyond the scope of Section 263 of the Act, as the ld. Pr. CIT, has failed to ld. Pr. CIT, is beyond the scope of Section 263 of the Act, as the ld. Pr. CIT, has failed to show that the impugned ass show that the impugned assessment order is erroneous and prejudicial to the interest of essment order is erroneous and prejudicial to the interest of the revenue. He submitted that he assessee has filed, during the course of original He submitted that he assessee has filed, during the course of original He submitted that he assessee has filed, during the course of original assessment proceedings, all the documents and evidences to show the genuineness of the assessment proceedings, all the documents and evidences to show the genuineness of the assessment proceedings, all the documents and evidences to show the genuineness of the purchase and sale of shares and profits earned. He took this Bench through each of the ares and profits earned. He took this Bench through each of the ares and profits earned. He took this Bench through each of the evidences and argued that the Assessing Officer has accepted the genuineness fo the evidences and argued that the Assessing Officer has accepted the genuineness fo the evidences and argued that the Assessing Officer has accepted the genuineness fo the transactions after due verification. transactions after due verification. He submitted that the case is squarely covered in He submitted that the case is squarely covered in favour of the assessee by the order of the Kolkata Bench of the ITAT, in the case of e by the order of the Kolkata Bench of the ITAT, in the case of e by the order of the Kolkata Bench of the ITAT, in the case of Khetawat Properties Ltd. vs. Pr. CIT in ITA No. 578/Kol/2019, order dt. 22/11/2019. Khetawat Properties Ltd. vs. Pr. CIT in ITA No. 578/Kol/2019, order dt. 22/11/2019. Khetawat Properties Ltd. vs. Pr. CIT in ITA No. 578/Kol/2019, order dt. 22/11/2019. 6. The ld. D/R, vehemently opposed the contentions of the ld. Counsel for the The ld. D/R, vehemently opposed the contentions of the ld. Counsel for the The ld. D/R, vehemently opposed the contentions of the ld. Counsel for the assessee and submitted that th assessee and submitted that the ld. Pr. CIT, has rightly invoked the jurisdiction u/s 263 of jurisdiction u/s 263 of the Act. He took this Bench through each para of the order u/s 263 of the Act and the Act. He took this Bench through each para of the order u/s 263 of the Act and the Act. He took this Bench through each para of the order u/s 263 of the Act and supported the same. He relied on the judicial precedent cited by the ld. Pr. CIT as well as relied on the judicial precedent cited by the ld. Pr. CIT as well as relied on the judicial precedent cited by the ld. Pr. CIT as well as the reasons given by the ld. Pr. CIT y the ld. Pr. CIT and submitted that the same may be upheld. and submitted that the same may be upheld. 7. We have heard rival contentions. On careful consideration of the facts and We have heard rival contentions. On careful consideration of the facts and We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities circumstances of the case, perusal of the papers on record, orders of the authorities circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited below as well as case law cited, we hold as follows:- 8. We find that while accepting the return of income filed by the assessee all the We find that while accepting the return of income filed by the assessee all the We find that while accepting the return of income filed by the assessee all the details and documents filed by the assessee, details and documents filed by the assessee, and satisfied himself with the genuineness of and satisfied himself with the genuineness of

3 ITA No. 637/Kol/2020 Assessment Year: 2015-16 Shringar Marketing Pvt. Ltd. the claims of the assessee. The the claims of the assessee. The Assessing Officer discharged his duties as an investigator Assessing Officer discharged his duties as an investigator as well as an adjudicator, as well as an adjudicator, and took a possible view. Such a view cannot be held as unsustainable in law. The Assessing Officer during the course of original assessment The Assessing Officer during the course of original assessment The Assessing Officer during the course of original assessment proceedings issued a notice proceedings issued a notice u/s 142(1) of the Act, 31/08/2017 and called for details and u/s 142(1) of the Act, 31/08/2017 and called for details and information. At Point No. 9 of this notice, he called for details of purchases/sales/stocks information. At Point No. 9 of this notice, he called for details of purchases/sales/stocks information. At Point No. 9 of this notice, he called for details of purchases/sales/stocks in a particular format. The assessee filed a reply on 09/11/2017. Demat Statements, for The assessee filed a reply on 09/11/2017. Demat Statements, for The assessee filed a reply on 09/11/2017. Demat Statements, for the period 01/04/2014 to 31/03/2015, were filed. Copy of contract notes, copies of B 4/2014 to 31/03/2015, were filed. Copy of contract notes, copies of B 4/2014 to 31/03/2015, were filed. Copy of contract notes, copies of Bank pass books, copies of ledger accounts of brokers etc. were filed. All the transactions were pass books, copies of ledger accounts of brokers etc. were filed. All the transactions were pass books, copies of ledger accounts of brokers etc. were filed. All the transactions were on the stock exchange platform. The Assessing Officer verified the same and he did not on the stock exchange platform. The Assessing Officer verified the same and he did not on the stock exchange platform. The Assessing Officer verified the same and he did not find anything adverse, in the claims. This is not a case of non anything adverse, in the claims. This is not a case of non-verification or non verification or non- application of mind. The ld. Pr. CIT, in his order passed u/s 263 of the Act, has failed to The ld. Pr. CIT, in his order passed u/s 263 of the Act, has failed to The ld. Pr. CIT, in his order passed u/s 263 of the Act, has failed to make out a case that the order of the Assessing Officer is erroneous as well as pre make out a case that the order of the Assessing Officer is erroneous as well as pre make out a case that the order of the Assessing Officer is erroneous as well as prejudicial to the interest of the revenue, which is a condition precedent for invoking jurisdiction u/s to the interest of the revenue, which is a condition precedent for invoking jurisdiction u/s to the interest of the revenue, which is a condition precedent for invoking jurisdiction u/s 263 of the Act. 9. This Bench of the Tribunal in the case of This Bench of the Tribunal in the case of Gitesh Tikmany & M/s. Gitsh Tikmani, HUF Gitesh Tikmany & M/s. Gitsh Tikmani, HUF vs. ITO in ITA No. 01-04/Kol/2019, order dt. 20/09/ 04/Kol/2019, order dt. 20/09/2019, under similar circumstances, , under similar circumstances, held as follows :-

“8. We have given our thoughtful consideration to rival contentions. The sole issue that 8. We have given our thoughtful consideration to rival contentions. The sole issue that 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 arises for our apt adjudication in facts of instant case is as to whether the PCIT has rightly 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 revision jurisdiction vested u/s 263 or not. There is no dispute that the revision jurisdiction vested u/s 263 or not. There is no dispute that the Assessing Officer accepted the assessee's LTCG as genuine as per his discussion in the Assessing Officer accepted the assessee's LTCG as genuine as per his discussion in the Assessing Officer accepted the assessee's LTCG as genuine as per his discussion in the assessment order that he had verified all necessary facts during the course of scrutiny. assessment order that he had verified all necessary facts during the course of scrutiny. assessment order that he had verified all necessary facts during the course of scrutiny. Suffice to say, the ITA Nos.01 e to say, the ITA Nos.01-05 & 13-15/Kol/2019 A.Y. 2014-15 Tikmani, HUF Vs. ITO 15 Tikmani, HUF Vs. ITO Wed-28(4) Kol. Page 14 same fact very much emerges not only from assessee's detailed 28(4) Kol. Page 14 same fact very much emerges not only from assessee's detailed 28(4) Kol. Page 14 same fact very much emerges not only from assessee's detailed paper book running into 98 pages but also from the relevant assessment notings forming paper book running into 98 pages but also from the relevant assessment notings forming paper book running into 98 pages but also from the relevant assessment notings forming part of record (supra). This tribunal's co of record (supra). This tribunal's co-ordinate bench's decision in case of ordinate bench's decision in case of M/s Saregama India Ltd. vs. CIT Saregama India Ltd. vs. CIT-1, Kolkata ITA No.1254/Kol/2014 decided on 20.09.2017 has .1254/Kol/2014 decided on 20.09.2017 has reiterated the following settled princ reiterated the following settled principles in case of sec. 263 revision jurisdiction: iples in case of sec. 263 revision jurisdiction:- "11. Now we shall discuss the propositions of law as laid down by various courts on the "11. Now we shall discuss the propositions of law as laid down by various courts on the "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 issue of revisionary jurisdiction of the Commissioner of Income Tax u/s 263 of the Act. The issue of revisionary jurisdiction of the Commissioner of Income Tax u/s 263 of the Act. The Hone'ble Andhra Pradesh H Hone'ble Andhra Pradesh High Court in the case of Spectra Shares and Scrips Pvt. Ltd. V igh 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 CIT (AP) 354 ITR 35 had considered a number of judgments on this issue of exercise of 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 jurisdiciton u/s 263 of the Act by the Principal Commissioner of Income Tax and culled out 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: aid down in the judgments as below: 24. In Malabar Industrial Co.Ltd. ( 2 Supra), the Supreme Court held that a bare reading of 24. In Malabar Industrial Co.Ltd. ( 2 Supra), the Supreme Court held that a bare reading of 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 Sec.263 makes it clear that the prerequisite for the exercise of jurisdiction by the Sec.263 makes it clear that the prerequisite for the exercise of jurisdiction by the Commissioner suo motu under it, is the ord Commissioner suo motu under it, is the order of the Income Tax Officer is erroneous in so er of the Income Tax Officer is erroneous in so

4 ITA No. 637/Kol/2020 Assessment Year: 2015-16 Shringar Marketing Pvt. Ltd. far as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied far as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied 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 of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it erroneous; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent 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 if the order of the Income Tax Officer is erroneous but is not prejudicial to the Revenue or if 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 it is not erroneous but it is prejudicial to the Revenue - recourse cannot be had to recourse cannot be had to Sec.263 (1) of the Act. It also held at pg (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 "The phrase "prejudicial to the interests of the Revenue" has to be read in conjunction with "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 of revenue as a consequence an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the of the Assessing Officer cannot be treated as prejudicial to the interests of the of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income Revenue. For example, when an Income-tax Officer adopted one of the courses permissible 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 in law and it has resulted in loss of Revenue: or where two views are possible and the 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 tax Officer has taken one view with which the Commissioner does not agree, it 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 cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income the view taken by the Income-tax Officer is unsustainable in law. It has been 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 Court that where a sum not earned by a person is assessed as income in his hands on his so 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 offering, the order passed by the Assessing Officer accepting the same as such will be offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the Revenue. erroneous and prejudicial to the interests of the Revenue. Rampyaridevi Saraogi v. CIT Rampyaridevi Saraogi v. CIT (1968) 67 ITR 84 (SC) and in (1968) 67 ITR 84 (SC) and in Smt. Tara Devi Aggarwal V. CIT (1973) 88 ITR 323 (SC)". (1973) 88 ITR 323 (SC)". 25. In Max India Ltd. (3 Supra), reiterated the view in Malabar Industrial Co.Ltd. (2 Supra) 25. In Max India Ltd. (3 Supra), reiterated the view in Malabar Industrial Co.Ltd. (2 Supra) 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 and observed that every loss of Revenue as a consequence of an order of the Assessing 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. Officer cannot be treated as prejudicial to the interests of the Revenue. 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 example, when an Income Tax Officer adopted one of the courses permissible in 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 law and it has resulted in loss of revenue; or where two views are possible and the 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 Income Tax Officer has taken one view with which the Commissioner does not Income Tax Officer has taken one view with which the Commissioner does not agree, it cannot b agree, it cannot be treated as an erroneous order prejudicial to the interests of the e 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. Revenue, unless the view taken by the Income Tax Officer is unsustainable in law. 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 On the facts of that case, Sec.80HHC(3) as it then stood was interpreted by the On the facts of that case, Sec.80HHC(3) as it then stood was interpreted by the Assessing Officer but the Assessing Officer but the Revenue contended that in view of the 2005 Amendment Revenue contended that in view of the 2005 Amendment which is clarificatory and retrospective in nature, the view of the Assessing Officer which is clarificatory and retrospective in nature, the view of the Assessing Officer 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. was unsustainable in law and the Commissioner was correct in invoking Sec.263. was unsustainable in law and the Commissioner was correct in invoking Sec.263. But the Supreme Court rejected the sai But the Supreme Court rejected the said contention and held that when the d contention and held that when the Commissioner passed his order disagreeing with the view of the Assessing Officer, Commissioner passed his order disagreeing with the view of the Assessing Officer, 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 there were two views on the word "profits" in that section; that the said section there were two views on the word "profits" in that section; that the said section was amended eleven times; that different views existed o was amended eleven times; that different views existed on the day when the n the day when the Commissioner passed his order; that the mechanics of the section had become so Commissioner passed his order; that the mechanics of the section had become so 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, complicated over the years that two views were inherently possible; and therefore, complicated over the years that two views were inherently possible; and therefore, the subsequent amendment in 2005 even though retrospective will not attract the subsequent amendment in 2005 even though retrospective will not attract the subsequent amendment in 2005 even though retrospective will not attract the provision of Sec.263. provision of Sec.263. 26. In Vikas Polymers (4 Supra), the Delhi High Court held that the power of suo 26. In Vikas Polymers (4 Supra), the Delhi High Court held that the power of suo 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 motu revision exercisable by the Commissioner under the provisions of Sec.263 is motu revision exercisable by the Commissioner under the provisions of Sec.263 is supervisory in nature; that an "erroneous judgment" means one whic supervisory in nature; that an "erroneous judgment" means one whic 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 accordance with law; that if an Income Tax Officer acting in accordance with law 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 makes a certain assessment, the same cannot be branded as "erroneous" by the makes a certain assessment, the same cannot be branded as "erroneous" by the Commissioner simply because, according to him, the order should have been Commissioner simply because, according to him, the order should have been Commissioner simply because, according to him, the order should have been written differently or more elaborately; that the section does not visualize the erently or more elaborately; that the section does not visualize the erently or more elaborately; that the section does not visualize the substitution of the judgment of the Commissioner for that of the Income Tax substitution of the judgment of the Commissioner for that of the Income Tax substitution of the judgment of the Commissioner for that of the Income Tax

5 ITA No. 637/Kol/2020 Assessment Year: 2015-16 Shringar Marketing Pvt. Ltd. Officer, who passed the order unless the decision is not in accordance with the law; Officer, who passed the order unless the decision is not in accordance with the law; Officer, who passed the order unless the decision is not in accordance with the law; that to invoke suo motu re that to invoke suo motu revisional powers to reopen a concluded assessment under visional powers to reopen a concluded assessment under Sec.263, the Commissioner must give reasons; that a bare reiteration by him that Sec.263, the Commissioner must give reasons; that a bare reiteration by him that 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 the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will no interests of the Revenue, will not suffice; that the reasons must be such as to show t suffice; that the reasons must be such as to show that the enhancement or modification of the assessment or cancellation of the that the enhancement or modification of the assessment or cancellation of the 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 assessment or directions issued for a fresh assessment were called for, and must assessment or directions issued for a fresh assessment were called for, and must irresistibly lead to the conclusion that the irresistibly lead to the conclusion that the order of the Income Tax Officer was not order of the Income Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the only erroneous but was prejudicial to the interests of the Revenue. Thus, while the 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 Income Tax Officer is not called upon to write an elaborate judgment giving Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons in respect of each and every disallowan detailed reasons in respect of each and every disallowance, deduction, etc., it is ce, deduction, etc., it is incumbent upon the Commissioner not to exercise his suo motu revisional powers incumbent upon the Commissioner not to exercise his suo motu revisional powers 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 unless supported by adequate reasons for doing so; that if a query is raised during 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 ans the course of the scrutiny by the Assessing Officer, which was ans 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 satisfaction of the Assessing Officer, but neither the query nor the answer were 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 reflected in the assessment order, this would not by itself lead to the conclusion 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. that the order of the Assessing Officer called for interference and revision. 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 27. In Sunbeam Auto Ltd.( 5 Supra), the Delhi High Court held that the Assessing 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 Officer in the assessment order is not required to give a detailed reason in respect 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 of each and every item of deduction, etc.; that whether there was application of 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 re allowing the expenditure in question has to be seen; that if there was re 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 an inquiry, even inadequate that would not by itself give occasion to the 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 Commissioner to pass orders under Sec.263 merely because he has a different Commissioner to pass orders under Sec.263 merely because he has a different opinion in the matter; that it i opinion in the matter; that it is only in cases of lack of inquiry that such a course of s 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 action would be open; that an assessment order made by the Income Tax Officer 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 cannot be branded as erroneous by the Commissioner simply because, according to cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written m him, the order should have been written more elaborately; there must be some ore elaborately; there must be some prima facie material on record to show that the tax which was lawfully exigible prima facie material on record to show that the tax which was lawfully exigible 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 has not been imposed or that by the application of the relevant statute on an has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a lesser tax than what incorrect or incomplete interpretation, a lesser tax than what 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 imposed. In that case, the Delhi High Court held that the Commissioner in the 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 exercise of revisional power could not have objected to the finding of the Assessing 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 manufacture Officer that expenditure on tools and dies by the assessee, a manufacture 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 parts, is revenue expenditure where the said claim was allowed by the latter on 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 being satisfied with the explanation of the assessee and where the same accounting 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 practice followed by the assessee for number of years with the approval of the 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 e Tax Authorities. It held that the Assessing Officer had called for e 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 on the very item from the assessee and the assessee had furnished its 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 explanation. Merely because the Assessing Officer in his order did not make an explanation. Merely because the Assessing Officer in his order did not make an elaborate discussion in th elaborate discussion in that regard, his order cannot be termed as erroneous. The at regard, his order cannot be termed as erroneous. The opinion of the Assessing Officer is one of the possible views and there was no opinion of the Assessing Officer is one of the possible views and there was no 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. material before the Commissioner to vary that opinion and ask for fresh inquiry. material before the Commissioner to vary that opinion and ask for fresh inquiry. 28. In Gabriel India Ltd. (6 Supra), th 28. In Gabriel India Ltd. (6 Supra), the Bombay High Court held that a e Bombay High Court held that a consideration of the Commissioner as to whether an order is erroneous in so far as consideration of the Commissioner as to whether an order is erroneous in so far as 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 it is prejudicial to the interests of the Revenue, must be based on materials on the it is prejudicial to the interests of the Revenue, must be based on materials on the

6 ITA No. 637/Kol/2020 Assessment Year: 2015-16 Shringar Marketing Pvt. Ltd. record of the proceedings called for by him. If there ar record of the proceedings called for by him. If there are no materials on record on e no materials on record on the basis of which it can be said that the Commissioner acting in a reasonable the basis of which it can be said that the Commissioner acting in a reasonable 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 manner could have come to such a conclusion, the very initiation of proceedings by 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 Com him will be illegal and without jurisdiction. It held that the Com 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 initiate proceedings with a view to start fishing and roving inquiries in matters or 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 orders which are already concluded; that the department cannot be permitted to 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 begin fresh litigation because of new views they entertain on facts or new 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 which they present as to what should be the inference or proper inference either of 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, the facts disclosed or the weight of the circumstance; that if this is permitted, 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 litigation would have no end except when legal ingenuity is exhausted; that to do 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 so is to divide one argument into two and multiply the litigation. It held that cases 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 may be visualized where the Income Tax Officer while making an assessment may be visualized where the Income Tax Officer while making an assessment examines the accounts, makes inquiries, applies his mind to the facts and examines the accounts, makes inquiries, applies his mind to the facts and examines the accounts, makes inquiries, applies his mind to the facts and circumstances of the circumstances of the case and determines the income either by accepting the case and determines the income either by accepting the account or by making some estimate himself; that the Commissioner, on perusal of account or by making some estimate himself; that the Commissioner, on perusal of 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 the record, may be of the opinion that the estimate made by the Officer concerned the record, may be of the opinion that the estimate made by the Officer concerned was on the lower side and left to the was on the lower side and left to the Commissioner he would have estimated the Commissioner he would have estimated the income at a figure higher than the one determined by the Income Tax Officer; but income at a figure higher than the one determined by the Income Tax Officer; but 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 that would not vest the Commissioner with power to reexamine the accounts and that would not vest the Commissioner with power to reexamine the accounts and determine the income himself at a higher figure; there m determine the income himself at a higher figure; there must be material available ust be material available on the record called for by the Commissioner to satisfy him prima facie that the on the record called for by the Commissioner to satisfy him prima facie that the 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, order is both erroneous and prejudicial to the interests of the Revenue. Otherwise, order is both erroneous and prejudicial to the interests of the Revenue. Otherwise, it would amount to giving unbridled and arbitrary power to the re it would amount to giving unbridled and arbitrary power to the re it would amount to giving unbridled and arbitrary power to the revising authority to initiate proceedings for revision in every case and start re to initiate proceedings for revision in every case and start re to initiate proceedings for revision in every case and start re-examination and fresh inquiry in matters which have already been concluded under law. fresh inquiry in matters which have already been concluded under law. fresh inquiry in matters which have already been concluded under law. 29. In M.S. Raju (15 Supra), this Court has held that the power of the Commissioner 29. In M.S. Raju (15 Supra), this Court has held that the power of the Commissioner 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 r Sec.263(1) is not limited only to the material which was available before the r 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 Assessing Officer and, in order to protect the interests of the Revenue, 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 Commissioner is entitled to examine any other records which are available at the Commissioner is entitled to examine any other records which are available at the time of examinatio time of examination by him and to take into consideration even those events which n by him and to take into consideration even those events which arose subsequent to the order of assessment. arose subsequent to the order of assessment. 30. In Rampyari Devi Saraogi (21 Supra), the Commissioner in exercise of 30. In Rampyari Devi Saraogi (21 Supra), the Commissioner in exercise of 30. In Rampyari Devi Saraogi (21 Supra), the Commissioner in exercise of revisional powers cancelled assessee's assessment for the years 1952 revisional powers cancelled assessee's assessment for the years 1952 revisional powers cancelled assessee's assessment for the years 1952-1953 to 1960- 61 because he found that the income tax officer was not justified in accepting the 61 because he found that the income tax officer was not justified in accepting the 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., initial capital, the gift received and sale of jewellery, the income from business etc., 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 off without any enquiry or evidence whatsoever . He directed the income tax off 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 do fresh assessment after making proper enquiry and investigation in regard to the 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 jurisdiction. The assessee complained before the Supreme Court that no fair or 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 reasonable opportunity was given to her. Supreme Court held that there was ample 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; ial to show that the income tax officer made the assessments in undue hurry; ial 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 he had passed a short stereo typed assessment order for each assessment year; 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 that on the face of the record, the orders were pre-judicial to the interest of the judicial to the interest of the Revenue; and no prejudice was caused to the assessee on account of failure of the no prejudice was caused to the assessee on account of failure of the 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 Commissioner to indicate the results of the enquiry made by him, as she would have 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 a full opportunity for showing to the income tax officer whether he had jurisdiction a full opportunity for showing to the income tax officer whether he had jurisdiction

7 ITA No. 637/Kol/2020 Assessment Year: 2015-16 Shringar Marketing Pvt. Ltd. or not and whether or not and whether the income tax assessed in the assessment years which were the income tax assessed in the assessment years which were originally passed were correct or not" originally passed were correct or not" 31. From the above decisions, the following principles as to exercise of jurisdiction 31. From the above decisions, the following principles as to exercise of jurisdiction 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: 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 issioner has to be satisfied of twin conditions, namely, (i) the order of issioner 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 Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to 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 the interests of the Revenue. If erroneous but is not prejudicial to the Revenue or if 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 t erroneous but it is prejudicial to the Revenue - recourse cannot be had to recourse cannot be had to Sec.263 (1) of the Act. Sec.263 (1) of the Act. b) Every loss of revenue as a consequence of an order of the Assessing Officer b) Every loss of revenue as a consequence of an order of the Assessing Officer 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 examp cannot be treated as prejudicial to the interests of the Revenue. For examp 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 tax Officer adopted one of the courses permissible in law and it has 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 resulted in loss of Revenue: or where two views are possible and the Income tax 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 Officer has taken one view with which the Commissioner does not agree, it cannot 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 ted as an erroneous order prejudicial to the interests of the Revenue, unless ted as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income the view taken by the Income-tax Officer is unsustainable in law. tax Officer is unsustainable in law. c) To invoke suo motu c) To invoke suo motu revisional powers to reopen a concluded assessment under revisional powers to reopen a concluded assessment under Sec.263, the Commissioner must give reasons; that a bare reiteration by him that Sec.263, the Commissioner must give reasons; that a bare reiteration by him that 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 the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will interests of the Revenue, will not suffice; that the reasons must be such as to show 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 that the and must irresistibly lead to the conclusion that the order of the Income 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 Tax Officer was not only erroneous but was prejudicial to the interests of the Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Off Revenue. Thus, while the Income Tax Officer is not called upon to write an icer is not called upon to write an elaborate judgment giving detailed reasons in respect of each and every elaborate judgment giving detailed reasons in respect of each and every elaborate judgment giving detailed reasons in respect of each and every disallowance, deduction, etc., it is incumbent upon the Commissioner not to disallowance, deduction, etc., it is incumbent upon the Commissioner not to disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suo motu revisional powers unless supported by adequate rea exercise his suo motu revisional powers unless supported by adequate rea 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 doing so; that if a query is raised during the course of the scrutiny by the Assessing 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 Officer, which was answered to the satisfaction of the Assessing Officer, but neither 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 woul the query nor the answer were reflected in the assessment order, this woul 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 itself lead to the conclusion that the order of the Assessing Officer called for itself lead to the conclusion that the order of the Assessing Officer called for interference and revision. interference and revision. e) The Commissioner cannot initiate proceedings with a view to start fishing and e) The Commissioner cannot initiate proceedings with a view to start fishing and e) The Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already c roving inquiries in matters or orders which are already c roving inquiries in matters or orders which are already concluded; that the department cannot be permitted to begin fresh litigation because of new views department cannot be permitted to begin fresh litigation because of new views 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 they entertain on facts or new circumstance; that if this is permitted, litigation they entertain on facts or new circumstance; that if this is permitted, litigation would have no end except when legal ingenuity is exhausted would have no end except when legal ingenuity is exhausted f) Whether there f) Whether there was application of mind before allowing the expenditure in was application of mind before allowing the expenditure in question has to be seen; that if there was an inquiry, even inadequate that would question has to be seen; that if there was an inquiry, even inadequate that would 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 not by itself give occasion to the Commissioner to pass orders under Sec.263 merely not by itself give occasion to the Commissioner to pass orders under Sec.263 merely because he has a different opi because he has a different opinion in the matter; that it is only in cases of lack of nion 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 inquiry that such a course of action would be open; that an assessment order made 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 by the Income Tax Officer cannot be branded as erroneous by the Commissioner by the Income Tax Officer cannot be branded as erroneous by the Commissioner

8 ITA No. 637/Kol/2020 Assessment Year: 2015-16 Shringar Marketing Pvt. Ltd. simply because, according to him, the ord simply because, according to him, the order should have been written more er should have been written more elaborately; there must be some prima facie material on record to show that the elaborately; there must be some prima facie material on record to show that the 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 tax which was lawfully exigible has not been imposed or that by the application of tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpret the relevant statute on an incorrect or incomplete interpretation, a lesser tax than ation, a lesser tax than what was just, has been imposed. what was just, has been imposed. g) The power of the Commissioner under Sec.263 (1) is not Commissioner is g) The power of the Commissioner under Sec.263 (1) is not Commissioner is 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 entitled to examine any other records which are available at the time of entitled to examine any other records which are available at the time of examination by him and to take into consideration examination by him and to take into consideration even those events which arose even those events which arose subsequent to the order of assessment. subsequent to the order of assessment. We now examine the following judgments on this issue: We now examine the following judgments on this issue:- DIRECTOR OF INCOME TAX vs. JYOTI FOUNDATION DIRECTOR OF INCOME TAX vs. JYOTI FOUNDATION 357 ITR 388 (Delhi High 357 ITR 388 (Delhi High Court) It was held that revisionary power u/s 263 is conferred on the was held that revisionary power u/s 263 is conferred on the was held that revisionary power u/s 263 is conferred on the Commissioner/Director of Income Tax when an order passed by the lower Commissioner/Director of Income Tax when an order passed by the lower 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 authority is erroneous and prejudicial to the interest of the Revenue. Orders which authority is erroneous and prejudicial to the interest of the Revenue. Orders which are passed without inquiry or investigati are passed without inquiry or investigation are treated as erroneous and on are treated as erroneous and prejudicial to the interest of the Revenue, but orders which are passed after prejudicial to the interest of the Revenue, but orders which are passed after 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 inquiry/investigation on the question/issue are not per se or normally treated as inquiry/investigation on the question/issue are not per se or normally treated as erroneous and prejudicial to the interest of the Revenue because erroneous and prejudicial to the interest of the Revenue because erroneous and prejudicial to the interest of the Revenue because the revisionary authority feels and opines that further inquiry/investigation was required or authority feels and opines that further inquiry/investigation was required or authority feels and opines that further inquiry/investigation was required or deeper or further scrutiny should be undertaken. deeper or further scrutiny should be undertaken. INCOME TAX OFFICER vs. DG HOUSING PROJECTS LTD343 ITR INCOME TAX OFFICER vs. DG HOUSING PROJECTS LTD343 ITR 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 Revenue does not have any right to appeal to the first appellate authority against 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 an order passed by the Assessing Officer. S. 263 has been enacted to empower the 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 CIT to exercise power of revision and revise any order passed by the Assessing 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 cer, if two cumulative conditions are satisfied. Firstly, the order sought to be cer, 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 revised should be erroneous and secondly, it should be prejudicial to the interest of 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 the Revenue. The expression "prejudicial to the interest of the Revenue" is of wide 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 t and is not confined to merely loss of tax. The term "erroneous" means a t 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 wrong/incorrect decision deviating from law. This expression postulates an error wrong/incorrect decision deviating from law. This expression postulates an error which makes an order unsustainable in law. The Assessing Officer is both an which makes an order unsustainable in law. The Assessing Officer is both an which makes an order unsustainable in law. The Assessing Officer is both an investigator and an adjud investigator and an adjudicator. If the Assessing Officer as an adjudicator decides a icator. If the Assessing Officer as an adjudicator decides a question or aspect and makes a wrong assessment which is unsustainable in law, it question or aspect and makes a wrong assessment which is unsustainable in law, it 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 can be corrected by the Commissioner in exercise of revisionary power. As an can be corrected by the Commissioner in exercise of revisionary power. As an investigator, it is incumbent upon t investigator, it is incumbent upon the Assessing Officer to investigate the facts he Assessing Officer to investigate the facts required to be examined and verified to compute the taxable income. If the required to be examined and verified to compute the taxable income. If the 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 Assessing Officer fails to conduct the said investigation, he commits an error and Assessing Officer fails to conduct the said investigation, he commits an error and the word "erroneous" includes failure to make the en the word "erroneous" includes failure to make the enquiry. In such cases, the order quiry. In such cases, the order becomes erroneous because enquiry or verification has not been made and not becomes erroneous because enquiry or verification has not been made and not becomes erroneous because enquiry or verification has not been made and not because a wrong order has been passed on merits. because a wrong order has been passed on merits. Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and hi conclusion and himself decide that the order is erroneous, by conducting necessary mself decide that the order is erroneous, by conducting necessary enquiry, if required and necessary, before the order under enquiry, if required and necessary, before the order under s. 263 s. 263 is passed. In such cases, the order of the Assessing Officer will be err cases, the order of the Assessing Officer will be erroneous because the order passed oneous because the order passed

9 ITA No. 637/Kol/2020 Assessment Year: 2015-16 Shringar Marketing Pvt. Ltd. is not sustainable in law and the said finding must be recorded. CIT cannot remand is not sustainable in law and the said finding must be recorded. CIT cannot remand 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 the matter to the Assessing Officer to decide whether the findings recorded are the matter to the Assessing Officer to decide whether the findings recorded are erroneous. In cases where there is inadequate enquiry but not erroneous. In cases where there is inadequate enquiry but not 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 again the CIT must give and record a finding that the order/inquiry made is 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 erroneous. This can happen if an enquiry and verification is conducted by the CIT 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 and he is able to establish and show the error or mistake made by the Assessing 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 Officer, making the order unsustainable in Law. In some cases possibly though 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 rarely, the CIT can also show and establish that the facts on record or inferences 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 drawn from facts on record per se justified and mandated further enquiry or drawn from facts on record per se justified and mandated further enquiry or investigation but t investigation but the Assessing Officer had erroneously not undertaken the same. he Assessing Officer had erroneously not undertaken the same. However, the said finding must be clear, unambiguous and not debatable. The However, the said finding must be clear, unambiguous and not debatable. The 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 matter cannot be remitted for a fresh decision to the Assessing Officer to conduct matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding further enquiries without a finding that the order is erroneous. Finding that the that the order is erroneous. Finding that the order is erroneous is a condition or requirement which must be satisfied for order is erroneous is a condition or requirement which must be satisfied for order is erroneous is a condition or requirement which must be satisfied for exercise of jurisdiction under exercise of jurisdiction under s. 263 of the Act. In such matters, to remand the of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply ITA Nos.01 matter/issue to the Assessing Officer would imply ITA Nos.01 matter/issue to the Assessing Officer would imply ITA Nos.01-05 & 13- 15/Kol/2019 A.Y. 2014 15/Kol/2019 A.Y. 2014-15 Tikmani, HUF Vs. ITO Wed-28(4) Kol. Page 19 and mean 28(4) Kol. Page 19 and mean the CIT has not examined and decided whether or not the order is erroneous but the CIT has not examined and decided whether or not the order is erroneous but the CIT has not examined and decided whether or not the order is erroneous but has directed the Assessing Of has directed the Assessing Officer to decide the aspect/question. This distinction ficer to decide the aspect/question. This distinction must be kept in mind by the CIT while exercising jurisdiction under must be kept in mind by the CIT while exercising jurisdiction under 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 an and in the absence of the finding that the order is erroneous an 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 interest of Revenue, exercise of jurisdiction under the said section is not interest of Revenue, exercise of jurisdiction under the said section is not sustainable. In most cases of alleged "inadequate investigation", it will be difficult sustainable. In most cases of alleged "inadequate investigation", it will be difficult sustainable. In most cases of alleged "inadequate investigation", it will be difficult to hold that the order of the Assessing Officer, who had conducted enqui to hold that the order of the Assessing Officer, who had conducted enqui to hold that the order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, is erroneous, without CIT conducting had acted as an investigator, is erroneous, without CIT conducting had acted as an investigator, is erroneous, without CIT conducting verification/inquiry. The order of the Assessing Officer may be or may not be verification/inquiry. The order of the Assessing Officer may be or may not be 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 wrong. CIT cannot direct reconsideration on this ground but only when the order is wrong. CIT cannot direct reconsideration on this ground but only when the order is erroneous. An order erroneous. An order of remit cannot be passed by the CIT to ask the Assessing 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 Officer to decide whether the order was erroneous. This is not permissible. An order 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 is not erroneous, unless the CIT hold and records reasons why it is erroneous. An is not erroneous, unless the CIT hold and records reasons why it is erroneous. An order will not become erroneou order will not become erroneous because on remit, the Assessing Officer may s because on remit, the Assessing Officer may decide that the order is erroneous. Therefore CIT must after recording reasons hold decide that the order is erroneous. Therefore CIT must after recording reasons hold 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 that the order is erroneous. The jurisdictional precondition stipulated is that the that the order is erroneous. The jurisdictional precondition stipulated is that the CIT must come to the conclusion that the o CIT must come to the conclusion that the order is erroneous and is unsustainable in rder is erroneous and is unsustainable in law. It may be noticed that the material which the CIT can rely includes not only law. It may be noticed that the material which the CIT can rely includes not only 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 the record as it stands at the time when the order in question was passed by the 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 Assessing Officer but also the record as it stands at the time of examination by the at the time of examination by the CIT. Nothing bars/prohibits the CIT from collecting and relying upon CIT. Nothing bars/prohibits the CIT from collecting and relying upon CIT. Nothing bars/prohibits the CIT from collecting and relying upon new/additional material/evidence to show and state that the order of the new/additional material/evidence to show and state that the order of the new/additional material/evidence to show and state that the order of the Assessing Officer is erroneous. Assessing Officer is erroneous. COMMISSIONER OF INCOME TAX vs. J. L. MORRISON (INDIA) LTD COMMISSIONER OF INCOME TAX vs. J. L. MORRISON (INDIA) LTD COMMISSIONER OF INCOME TAX vs. J. L. MORRISON (INDIA) LTD. 366 ITR As regard the submission on behalf of the Revenue that power under regard the submission on behalf of the Revenue that power under 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 the Act can be exercised even in a case where the issue is debatable, it was held issue is debatable, it was held that the case of that the case of CIT vs. M. M. Khambhatwala was not applicable. The observation was not applicable. The observation that the Commissioner can exercise power under 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 case were the issue is debatable was a mere passing remark which is again case were the issue is debatable was a mere passing remark which is again

10 ITA No. 637/Kol/2020 Assessment Year: 2015-16 Shringar Marketing Pvt. Ltd. contrary to the view taken by the Apex Court in the case of Malabar Industrial contrary to the view taken by the Apex Court in the case of Malabar Industrial 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 take Company Ltd. & Max India Ltd. If the Assessing Officer has take 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 cannot be said that the view taken by him is erroneous nor the order of the 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 Assessing Officer in that case can be set aside in revision. It has to be shown 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. Anythin unmistakably that the order of the Assessing Officer is unsustainable. Anythin 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 short of that would not clothe the CIT with jurisdiction to exercise power under short of that would not clothe the CIT with jurisdiction to exercise power under Section 263 of the Act. of the Act. CIT vs. M. M. Khambhatwala reported in 198 IT reported in 198 ITR 144; CIT vs. Raison Industries Ltd vs. Raison Industries Ltd. reported in 288 ITR 322 (SC), not applicable; . reported in 288 ITR 322 (SC), not applicable; Malabar Industrial Co. Ltd. v. CIT Industrial Co. Ltd. v. CIT reported in 243 ITR 83, relied on. (Para 72) As regard the 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 third question as to whether the assessment order was passed by the Assessing 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 Officer without application of mind, it was held that the Court has to start with the Officer without application of mind, it was held that the Court has to start with the presumption that the assessment presumption that the assessment order was regularly passed. There is evidence to order was regularly passed. There is evidence to show that the assessing officer had required the assessee to answer 17 questions show that the assessing officer had required the assessee to answer 17 questions 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 and to file documents in regard thereto. It is difficult to proceed on the basis that and to file documents in regard thereto. It is difficult to proceed on the basis that the 17 questions raised by him did not r the 17 questions raised by him did not require application of mind. Without equire application of mind. Without application of mind the questions raised by him in the annexure to notice under application of mind the questions raised by him in the annexure to notice under 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 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 ired to examine the return filed by the assessee in order to ascertain his ired 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 income and to levy appropriate tax on that basis. When the Assessing Officer was 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 satisfied that the return, filed by the assessee, was in accordance with law, he was satisfied that the return, filed by the assessee, was in accordance with law, he was under no obliga under no obligation to justify as to why was he satisfied. On the top of that the tion 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 Assessing Officer by his order dated 28th March, 2008 did not adversely affect any 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 right of the assessee nor was any civil right of the assessee prejudiced. He was as right of the assessee nor was any civil right of the assessee prejudiced. He was as such under no obligati such under no obligation in law to give reasons. The fact, that all requisite papers on in law to give reasons. The fact, that all requisite papers were summoned and thereafter the matter was heard from time to time coupled were summoned and thereafter the matter was heard from time to time coupled 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 with the fact that the view taken by him is not shown by the revenue to be with the fact that the view taken by him is not shown by the revenue to be erroneous and was also considered both by erroneous and was also considered both by the Tribunal as also by us to be a the Tribunal as also by us to be a possible view, strengthens the presumption under Clause (e) of possible view, strengthens the presumption under Clause (e) of 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 Evidence Act. A prima facie evidence, on the basis of the aforesaid presumption, is 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 converted into a conclusive proof of the fact that the order was passed by the converted into a conclusive proof of the fact that the order was passed by the assessing officer after due application of mind. assessing officer after due application of mind. Meerut Roller Flour Mills Pvt. Ltd. Meerut Roller Flour Mills Pvt. Ltd. vs. C.I.T., ITA No vs. C.I.T., ITA No. 116 /Coch/ 2012; CIT vs. Infosys Technologies Ltd CIT vs. Infosys Technologies Ltd., 341 ITR 293 (Karnataka); S.N. Mukherjee vs. Union of India S.N. Mukherjee vs. Union of India, AIR 1990 SC 1984; , AIR 1990 SC 1984; A. A. Doshi vs. JCIT, 256 ITR 685; Hindusthan Tin Works Ltd. Vs. CIT, 275 ITR 43 (Del), , 256 ITR 685; Hindusthan Tin Works Ltd. Vs. CIT, 275 ITR 43 (Del), , 256 ITR 685; Hindusthan Tin Works Ltd. Vs. CIT, 275 ITR 43 (Del), distinguished. (Paras 90 distinguished. (Paras 90-92, 102) COMMISSIONER OF INCOME TAX vs. SOHANA COMMISSIONER OF INCOME TAX vs. SOHANA WOOLLEN MILLS WOOLLEN MILLS 296 ITR 238 (P&H HC) A reference to the provisions of H HC) A reference to the provisions of s. 263 shows that jurisdiction thereunder can be exercised if the CIT finds that the order shows that jurisdiction thereunder can be exercised if the CIT finds that the order 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 a of the AO was erroneous and prejudicial to the interest of Revenue. Mere a 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 objection and merely because a different view could be taken, were not enough to 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 say that the order of the AO was erroneous or prejudicial to the interest of the 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 Revenue. The jurisdiction could be exercised if the CIT was satisfied that the basis 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 exercise of jurisdiction existed. No rigid rule could be laid down about the 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 situation when the jurisdiction can be exercised. Whether satisfaction of the CIT for 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 exercising jurisdiction was called for or not, has to be decided having regard to a 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 t situation. In the present case, the Tribunal has held that the assessee had t 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 disclosed that out of sale consideration, a sum of Rs. 1 lakh was to be received for disclosed that out of sale consideration, a sum of Rs. 1 lakh was to be received for

11 ITA No. 637/Kol/2020 Assessment Year: 2015-16 Shringar Marketing Pvt. Ltd. sale of permit. If that is so, there was no error in the view taken by the AO and no sale of permit. If that is so, there was no error in the view taken by the AO and no 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 made out for invoking jurisdiction under s. 263. COMMISSIONER OF INCOME TAX vs. LEISURE WEAR EXPORTS LTD COMMISSIONER OF INCOME TAX vs. LEISURE WEAR EXPORTS LTD COMMISSIONER OF INCOME TAX vs. LEISURE WEAR EXPORTS LTD. 341 ITR 166 (Del) The prerequisite to the ex (Del) The prerequisite to the exercise of suo motu jurisdiction under ercise 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 CIT is that the order of the AO is erroneous insofar as it is prejudicial to the interest 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 of the Revenue. Two conditions are to be satisfied, namely, (i) the order of the AO ) the order of the AO sought to be revised is erroneous; and (ii) the error committed by the AO in the sought to be revised is erroneous; and (ii) the error committed by the AO in the 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 order is prejudicial to the interest of the Revenue. Both these conditions are to be order is prejudicial to the interest of the Revenue. Both these conditions are to be satisfied simultaneously. It is also well satisfied simultaneously. It is also well-settled principle that pro settled principle that provisions of s. 263 would not be invoked merely to correct a mistake or error committed by the AO would not be invoked merely to correct a mistake or error committed by the AO 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 unless it has caused prejudice to the interest of the Revenue. If an order is based on unless it has caused prejudice to the interest of the Revenue. If an order is based on incorrect assumption incorrect assumption of facts or on incorrect application of law or without of facts or on incorrect application of law or without applying the principles of natural justice and without application of mind, it would applying the principles of natural justice and without application of mind, it would 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 be treated as erroneous. Likewise, the expression "prejudicial to the interest of the be treated as erroneous. Likewise, the expression "prejudicial to the interest of the Revenue" is of wide import and Revenue" is of wide import and is not confined to loss of tax. If due to an erroneous 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, it would be order of the AO the Revenue is losing tax lawfully payable by a person, it would be order of the AO the Revenue is losing tax lawfully payable by a person, it would be certainly prejudicial to the interest of the Revenue. The power of revision is not certainly prejudicial to the interest of the Revenue. The power of revision is not certainly prejudicial to the interest of the Revenue. The power of revision is not meant to be exercised for the pur meant to be exercised for the purpose of directing the AO to hold another pose of directing the AO to hold another investigation without describing as to how the order of the AO is erroneous. From investigation without describing as to how the order of the AO is erroneous. From 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 this it also follows that where the assessment order has been passed by the AO after this it also follows that where the assessment order has been passed by the AO after taking into account the assessee's submissions a taking into account the assessee's submissions and documents furnished by him nd documents furnished by him and no material whatsoever has been brought on record by the CIT which showed and no material whatsoever has been brought on record by the CIT which showed 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 that there was any discrepancy or falsity in evidences furnished by the assessee, the 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 on order of the AO cannot be set aside for making deep inquiry on 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 presumption and assumption that something new may come out. For making a presumption and assumption that something new may come out. For making a valid order under valid order under s. 263 it is essential that the CIT has to record an express finding it is essential that the CIT has to record an express finding to the effect that order passed by to the effect that order passed by the AO is erroneous which has caused loss to the the AO is erroneous which has caused loss to the Revenue. Furthermore, where acting in accordance with law the AO frames certain Revenue. Furthermore, where acting in accordance with law the AO frames certain Revenue. Furthermore, where acting in accordance with law the AO frames certain assessment order, same cannot be branded as erroneous simply because according assessment order, same cannot be branded as erroneous simply because according assessment order, same cannot be branded as erroneous simply because according to the CIT, the order should be written more el to the CIT, the order should be written more elaborately.--Malabar Industrial Co. Malabar Industrial Co. Ltd. vs. CIT (2000) 159 CTR (SC) 1 : (2000) 243 ITR 83 (SC), Gee Vee Enterprises vs. (2000) 159 CTR (SC) 1 : (2000) 243 ITR 83 (SC), Gee Vee Enterprises vs. (2000) 159 CTR (SC) 1 : (2000) 243 ITR 83 (SC), Gee Vee Enterprises vs. Addl. CIT 1975 CTR (Del) 61 : (1975) 99 ITR 375 ( Addl. CIT 1975 CTR (Del) 61 : (1975) 99 ITR 375 (Del), CIT vs. Seshasayee Paper & Del), CIT vs. Seshasayee Paper & Boards Ltd. (2000) 242 ITR ITA Nos.01 . (2000) 242 ITR ITA Nos.01-05 & 13-15/Kol/2019 A.Y. 2014 15/Kol/2019 A.Y. 2014-15 Tikmani, HUF Vs. ITO Wed Tikmani, HUF Vs. ITO Wed-28(4) Kol. Page 21 490 (Mad), CWT vs. Prithvi Raj & Co. 28(4) Kol. Page 21 490 (Mad), CWT vs. Prithvi Raj & Co. (1991) 98 CTR (Del) 21 (1991) 98 CTR (Del) 216 : (1993) 199 ITR 424 (Del) and J.P. Srivastava& Sons 6 : (1993) 199 ITR 424 (Del) and J.P. Srivastava& Sons (Kanpur) Ltd. vs. CIT (1978) 111 ITR 326 (All) relied on. (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 (Paras 6 & 7) In the entire order emphasis laid by the CIT is that in respect of four (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 A issues mentioned by him, no queries were raised by the AO. On this premise, though O. On this premise, though it is observed that there was no application of mind on the part of the AO and the it is observed that there was no application of mind on the part of the AO and the 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, AO has not recorded any reasons to justify the omission to consider the said facts, 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 the CIT does not take the said order to its logical conclusion which was the prime which was the prime duty of the CIT in order to justify exercise of power under duty of the CIT in order to justify exercise of power under s. 263 s. 263. There is not even a whisper that the order is erroneous. Even if it is inferred that non whisper that the order is erroneous. Even if it is inferred that non 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 s pointed out by the CIT would amount to an erroneous order, it is not s 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 stated as to how this order is prejudicial to the interest of the Revenue. The stated as to how this order is prejudicial to the interest of the Revenue. The

12 ITA No. 637/Kol/2020 Assessment Year: 2015-16 Shringar Marketing Pvt. Ltd. penultimate paras of the order, at best, contain the observations that the AO was penultimate paras of the order, at best, contain the observations that the AO was penultimate paras of the order, at best, contain the observations that the AO was satisfied with making fl satisfied with making flimsy additions which were deleted by the CIT(A). There is imsy 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. not a whisper as to how this order was prejudicial to the interest of the Revenue. 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 That apart, the approach of the Tribunal in discarding the observation of the CIT That apart, the approach of the Tribunal in discarding the observation of the CIT about not making proper inquiries about not making proper inquiries in respect of the said four issues is also justified in respect of the said four issues is also justified and without blemish. and without blemish. (Paras 12 to 14) First comment of the CIT was in respect of finished goods in the (Paras 12 to 14) First comment of the CIT was in respect of finished goods in the (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. closing stock. The CIT found that these were to the tune of Rs. 5.28 crores. closing stock. The CIT found that these were to the tune of Rs. 5.28 crores. According to the CIT, According to the CIT, when the total turnover of the assessee was Rs. 6.13 crores, 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 the AO should have satisfied himself by calling for more details as to how there was 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 closing stock of such a magnitude of Rs. 5.28 crores. Thus, the CIT has not doubted closing stock of such a magnitude of Rs. 5.28 crores. Thus, the CIT has not doubted the statement of finished the statement of finished goods in the closing stock furnished by the assessee. He 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 has only remarked that there should have been a deeper probe by calling for more 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. details. This is neither here nor there, when one keeps in view the ingredients of s. details. This is neither here nor there, when one keeps in view the ingredients of s. 263. (Para 15) Insofar as the 263. (Para 15) Insofar as the insurance claim is concerned, the CIT observed that 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 the assessee had shown receivable on this account to the tune of Rs. 1.21 crores but 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 no details had been furnished. The AO had also not made any inquiries. In the no details had been furnished. The AO had also not made any inquiries. In the detailed discussion on this aspect, the T detailed discussion on this aspect, the Tribunal has observed that insurance claim ribunal has observed that insurance claim was lodged for the goods lost in transit. The assessee at that time had merely filed was lodged for the goods lost in transit. The assessee at that time had merely filed 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 a claim with the insurance company. This claim had not been approved as the a claim with the insurance company. This claim had not been approved as the insurance company had neither accepted the same nor g insurance company had neither accepted the same nor given any assurance for iven any assurance for making payment. Therefore, no income had "accrued" which could be taxed. The making payment. Therefore, no income had "accrued" which could be taxed. The 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 Tribunal rightly held that ordinarily the income is said to have accrued to a person 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 rig when he acquires the right to income and this should be enforceable rig 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 actual quantification or receipt may follow in due course. The mere claim to actual quantification or receipt may follow in due course. The mere claim to income without any enforceable right cannot be regarded as an accrued income income without any enforceable right cannot be regarded as an accrued income income without any enforceable right cannot be regarded as an accrued income for the purpose of for the purpose of IT Act. (Para 16) Coming to the claim under ming to the claim under s. 80HHC, it was totally uncalled for on the , it was totally uncalled for on the part of the CIT to say that the AO did not make requisite inquiries because of the part of the CIT to say that the AO did not make requisite inquiries because of 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 r simple reason that the AO had, in fact, declined and rejected this claim of the ejected this claim of the assessee. If the AO himself disallowed the deduction claimed by the assessee on this assessee. If the AO himself disallowed the deduction claimed by the assessee on this 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 account under s. 80HHC, one fails to understand what further inquiries were account under s. 80HHC, one fails to understand what further inquiries were needed by the AO. needed by the AO. (Para 17) Lastly, the observations of the CIT are (Para 17) Lastly, the observations of the CIT are in respect of the income of Rs. 1.61 in respect of the income of Rs. 1.61 crores shown by the assessee on account of variation in exchange rate. The CIT has crores shown by the assessee on account of variation in exchange rate. The CIT has 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 only observed that in the immediate previous year no such gain was shown and only observed that in the immediate previous year no such gain was shown and therefore, it needed examination by the AO. However, the mo therefore, it needed examination by the AO. However, the moot question would be ot question would be examination for what purpose ? It is an income shown by the assessee. Whether the examination for what purpose ? It is an income shown by the assessee. Whether the 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 CIT was of the opinion that there was no such income or he was nurturing an 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 impression that income on this account as shown was lesser ? There is no such 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 indication in the order. The CIT also does not at all state as to what was the reason 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 for doubting the income offered by the assessee. Even if it is found that part of such for doubting the income offered by the assessee. Even if it is found that part of such income was claimed as deduction under income was claimed as deduction under s. 80HHC, no benefit enured to the assessee , no benefit enured to the assessee on this account as claim under on this account as claim under s. 80HHC was fully disallowed by the AO. It is not at was fully disallowed by the AO. It is not at

13 ITA No. 637/Kol/2020 Assessment Year: 2015-16 Shringar Marketing Pvt. Ltd. all observed as to how the order of the AO on this account was erroneou all observed as to how the order of the AO on this account was erroneou 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 further as to how it was prejudicial to the interest of the Revenue. Thus, order of 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 ld. CIT finds the CIT was rightly set aside by the Tribunal. In the case on hand the ld. CIT finds the CIT was rightly set aside by the Tribunal. In the case on hand the ld. CIT finds fault with the AO for not invoking Rule 8D while making disallowance u/s 14A. The fault with the AO for not invoking Rule 8D while making disallowance u/s 14A. The fault with the AO for not invoking Rule 8D while making disallowance u/s 14A. The Hon'ble Delhi High Court in the case of Maxop Investments Ltd. Vs CIT (supra) held Hon'ble Delhi High Court in the case of Maxop Investments Ltd. Vs CIT (supra) held Hon'ble 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 that the AO cannot proceed to determine the amount of expenditure incurred in 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 relation to exempt income without recording a finding that he is not satisfied with 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 tness of the claim of the assessee. This is a condition precedent while tness 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 rejecting the claim of the assessee, with regard to incurring of expenditure or no 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 expenditure in relation to exempt income. The AO will have to indicate cogent expenditure in relation to exempt income. The AO will have to indicate cogent reasons for the same an reasons for the same and Rule 8D comes into play only when the AO records a d Rule 8D comes into play only when the AO records a finding that he is not satisfied with the assessee's method. In the case in hand the finding that he is not satisfied with the assessee's method. In the case in hand the finding that he is not satisfied with the assessee's method. In the case in hand the AO has not made any such recording of satisfaction and has accepted the AO has not made any such recording of satisfaction and has accepted the AO has not made any such recording of satisfaction and has accepted the disallowance made u/s 14A by the assessee. In disallowance made u/s 14A by the assessee. In such circumstances it is not open for such circumstances it is not open for the ld. CIT to come to a conclusion that the AO should have invoked Rule 8D, the ld. CIT to come to a conclusion that the AO should have invoked Rule 8D, the ld. 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 without himself recording the satisfaction that the calculation given by the without himself recording the satisfaction that the calculation given by the assessee in its disallowance made suo moto u/s 14A is not correc assessee in its disallowance made suo moto u/s 14A is not correc assessee in its disallowance made suo moto u/s 14A is not correct. Coming to the other expenses claimed, the ld. CIT has simply collected information after raising other expenses claimed, the ld. CIT has simply collected information after raising other expenses claimed, the ld. CIT has simply collected information after raising queries and has not given any finding whatsoever that there is an error made by queries and has not given any finding whatsoever that there is an error made by 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 fur the AO or that the circumstances was such that would require and warrant fur 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 inquiry or investigation. No error in the assessment order has been pointed out and 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 it is not stated as to how prejudice was caused to the revenue. The finding that the 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 AO had failed to properly scrutinise the above aspects does not give powers to the AO had failed to properly scrutinise the above aspects does not give powers to the ld. CIT to revise the assessment u/s 263 of the Act. Making rowing enquiries is not a ld. CIT to revise the assessment u/s 263 of the Act. Making rowing enquiries is not a ld. 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 finding of an error. Assessments cannot be set aside for fresh enquiries unless 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 specific error is pointed out at not making proper enquiry cannot be equated with 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 quiry. In view of the above we quash the order passed u/s 263 of the Act and quiry. In view of the above we quash the order passed u/s 263 of the Act and allow the appeal of the assessee. allow the appeal of the assessee. 12. In the result the appeal of the assessee is allowed" 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 Keeping in mind the foregoing detailed discussion that an assessment has to be both 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 erroneous as well as prejudicial in interest of the Revenue simultaneously before the same 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 is sought to be revised and it is not permissible for the CIT or the PCIT to exercise his 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 po revision jurisdiction in case the Assessing Officer has taken one of the po 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 proceed to deal with the relevant facts of the case. It has come on record that the Assessing 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 / notice to the M/s SHCL during the course of scrutiny Officer had issued sec. 133(6) letter / notice to the M/s SHCL during the course of scrutiny Officer had issued sec. 133(6) letter / notice to the M/s SHCL during the course of scrutiny which stood adequately replied in assessee's favour. which stood adequately replied in assessee's favour. Coupled with this, all the relevant Coupled with this, all the relevant factual details in support of the assessee's share purchase document, contract notes, bank factual details in support of the assessee's share purchase document, contract notes, bank factual details in support of the assessee's share purchase document, contract notes, bank statement, (supra) already in the case records. Coupled with this, Learned CIT statement, (supra) already in the case records. Coupled with this, Learned CIT statement, (supra) already in the case records. Coupled with this, Learned CIT-DR fails to rebut the clinching fact that although rebut the clinching fact that although the PCIT's detailed discussion extracted in the the PCIT's detailed discussion extracted in the preceding paragraphs has sought to make out a case of artificial price rigging between the preceding paragraphs has sought to make out a case of artificial price rigging between 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 Finance's letter assessee, promoters entry operators of the entity in light of Ministry of Finance's letter assessee, promoters entry operators of the entity in light of Ministry of Finance's letter dated 24.07.2015 figures, dated 24.07.2015 figures, there is not even an iota of material quoted against the assessee 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 to have been engaged in all the foregoing artificial price rigging. We are observing in view 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 assessee's LTCG of all these facts that the Assessing Officer had rightly accepted the assessee's LTCG of all these facts that the Assessing Officer had rightly accepted the assessee's LTCG keeping in making the overwhelming evidence forming part of records. This tribunal's co n making the overwhelming evidence forming part of records. This tribunal's co n making the overwhelming evidence forming part of records. This tribunal's co-

14 ITA No. 637/Kol/2020 Assessment Year: 2015-16 Shringar Marketing Pvt. Ltd. ordinate bench decision (supra) as well as hon'ble jurisdictional high court's decisions ordinate bench decision (supra) as well as hon'ble jurisdictional high court's decisions ordinate bench decision (supra) as well as hon'ble jurisdictional high court's decisions CIT vs. Ratan ITA No.105/2016, M/s Cl .105/2016, M/s Classic Growers Ltd vs. CIT ITA 129/ assic Growers Ltd vs. CIT ITA 129/2012, CIT vs. Lakshmargarh Estate & Trading Co. Ltd Lakshmargarh Estate & Trading Co. Ltd. (2013) 40 taxman 439 (Cal), CIT vs. Smt. . (2013) 40 taxman 439 (Cal), CIT vs. Smt. Shreyashi Ganguly ITA 196/ Shreyashi Ganguly ITA 196/2012, CIT vs. Bhagwati Prasad Agarwal 2012, CIT vs. Bhagwati Prasad Agarwal (2009/ TMI 34738/Cal in 22/2009 29.04.2009 have accepted genuineness of similar LTCG. Since the 34738/Cal in 22/2009 29.04.2009 have accepted genuineness of similar LTCG. Since the 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 issue is covered by all the foregoing decisions of hon'ble jurisdictional high court, we issue is covered by all the foregoing decisions of hon'ble jurisdictional high court, we observe that the Assessing Offic observe that the Assessing Officer had rightly treated the assessee's foregoing LTCG derived er had rightly treated the assessee's foregoing LTCG derived from sale of shares to be genuine. That being the case, we hold that PCIT's exercise of from sale of shares to be genuine. That being the case, we hold that PCIT's exercise of from sale of shares to be genuine. That being the case, we hold that PCIT's exercise of revision jurisdiction merely on suspicious circumstances by invoking in sec. 263 revision jurisdiction merely on suspicious circumstances by invoking in sec. 263 revision jurisdiction merely on suspicious circumstances by invoking in sec. 263 Explanation (supra) with e Explanation (supra) with effect from 01.06.2015 is not sustaining. We therefore reverse the ffect from 01.06.2015 is not sustaining. We therefore reverse the PCIT's order under challenge and restore the impugned assessment framed by the PCIT's order under challenge and restore the impugned assessment framed by the PCIT's 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 on 29.07.2016. It is made clear that we have dealt with an instance of Assessing Officer on 29.07.2016. It is made clear that we have dealt with an instance of Assessing Officer himself having accepted assessee's LTCG after examining all the relevant elf having accepted assessee's LTCG after examining all the relevant elf having accepted assessee's LTCG after examining all the relevant facts of the case. We therefore do not deem it appropriate to restore the very issue back to facts of the case. We therefore do not deem it appropriate to restore the very issue back to 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 assesse's sole substantive grievance as well as him for yet another round of assessment. The assesse's sole substantive grievance as well as him for yet another round of assessment. The assesse's sole substantive grievance as well as this "lead" appeal ITA No.01/Kol/2019 is accepted therefore. his "lead" appeal ITA No.01/Kol/2019 is accepted therefore. 9. Same order to follow in all remaining cases ITA No.02 9. Same order to follow in all remaining cases ITA No.02-05/Kol/2019 and 13 05/Kol/2019 and 13- 15/Kol/2019 in case of seven other assessees since it has come on record that they had also 15/Kol/2019 in case of seven other assessees since it has come on record that they had also 15/Kol/2019 in case of seven other assessees since it has come on record that they had also filed all the relevant evid filed all the relevant evidence in support of their respective LTCG during the course of ence in support of their respective LTCG during the course of assessment / which stood accepted by the Assessing Officer. assessment / which stood accepted by the Assessing Officer. 10. All these eight assessees' as many appeals are allowed in above terms. A copy of 10. All these eight assessees' as many appeals are allowed in above terms. A copy of 10. All these eight assessees' as many appeals are allowed in above terms. A copy of common order be placed in the respective case files.” common order be placed in the respective case fi 11. Similar view was taken by the Kolkata ‘A’ Bench of the Tribunal in the case of Similar view was taken by the Kolkata ‘A’ Bench of the Tribunal in the case of Similar view was taken by the Kolkata ‘A’ Bench of the Tribunal in the case of Usha Devi Modi vs. ITO in ITA No. 874/Kol/2019, order dt. 12/01/2021. Devi Modi vs. ITO in ITA No. 874/Kol/2019, order dt. 12/01/2021. Consistent with the view Consistent with the view taken therein and applying the propositions of law laid down in the taken therein and applying the propositions of law laid down in the above case above case-law to the facts of the case on hand, we have to necessarily quash the order passed u/s 263 of the facts of the case on hand, we have to necessarily quash the order passed u/s 263 of the facts of the case on hand, we have to necessarily quash the order passed u/s 263 of the Act. 12. In the result, appeal of the assessee is allowed. In the result, appeal of the assessee is allowed. Kolkata, the Kolkata, the 30th day of April, 2021.

Sd/- Sd/- J. Sudhakar Reddy] [Aby T. Varkey] [J. Sudhakar Reddy Judicial Member Accountant Member Accountant Member Dated: 30.04.2021 {SC SPS}

15 ITA No. 637/Kol/2020 Assessment Year: 2015-16 Shringar Marketing Pvt. Ltd.

Copy of the order forwarded to: 1. Shringar Marketing Pvt. Ltd Shringar Marketing Pvt. Ltd R.No. 3, 6th Floor 20B, Abdul Hamid Street Kolkata – 700 069