MEDICARE TPA SERVICE (I) PVT. LTD., ,KOLKATA vs. PRINCIPAL CIT, KOL - 4, KOLKATA , KOLKATA

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘A’ BENCH, KOLKATA [Before Sri J. Sudhakar Reddy, Accountant Member & Sri S.S. Viswanethra Ravi, Judicial Member] I.T.A. No. 1045/Kol/2018 Assessment Year: 2013-14 Medicare TPA Service (I) Pvt. Ltd………………………......…………………………………………Appellant 6B, Bishop Lefroy Road Ground Floor 10, 6B, Paul Mansion Bhowanipore Kolkata – 700 020 [PAN : AADCM 1682 L] Pr. Commissioner of Income Tax, Kolkata -4..................................................…..…......Respondent Appearances by: Shri Subash Agarwal, Adv., appeared on behalf of the assessee. Shri A.K. Nayak, CIT D/R, appearing on behalf of the Revenue. Date of concluding the hearing : April 22nd, 2019 Date of pronouncing the order : May 10th , 2019 O R D E R Per J. Sudhakar Reddy, AM :- This appeal filed by the assessee is directed against the order of the Learned Principal Commissioner of Income Tax, Kolkata - 4, (ld. Pr. CIT) passed u/s. 263 of the Income Tax Act, 1961, (the ‘Act’), dt. 27/02/2018, for the Assessment Year 2013-14. 2. At the outset we find that there is a delay of 13 days in filing of this appeal. After perusing the petition for condonation, we are convinced that the assessee was prevented by sufficient cause from filing the appeal on time. Hence the delay is condoned and the appeal is admitted. 3. The assessee is a company and is in the business of, health insurance claim processing etc. it filed its return of income on 30/09/2013, declaring income of Rs.4,80,10,710/-. The Assessing Officer completed assessment u/s 143(3) of the Act, determining the total income of the assessee at Rs.5,37,81,250/- under the normal provisions and at Rs.2,72,98,018/- as book profit u/s 115JB of the Act. The ld. Pr. CIT, issued a showcause notice dt. 04/2/2017 proposing revision of the assessment order passed u/s 143(3) of the Act on 04/12/2015, by invoking his powers u/s 263 of the Act,on the following points:-

2 I.T.A. No. 1045/Kol/2018 Assessment Year: 2013-14 Medicare TPA Service (I) Pvt. Ltd a) That the assessee company entered into a joint developer agreement (JDA) with the developer company M/s. Spardha Finance Pvt. Ltd. in May, 2012, in respect of a lease hold land measuring 114.95 Kottah / 87,764 sqft/ 1.90 acres, being plot no. A 302 Sector 2(c), Bidhannagar, Durgapur obtained by it on lease from the Govt. of West Bengal through a lease deed dt. 7th April, 2009 and that the capital gains arising out of this transaction has not been offered to taxation by the assessee and that the Assessing Officer has not applied his mind to the same b) That the Assessing Officer has failed to verify excess MAT credit of Rs.1,74,49,327/-. c) Interest u/s 244A of the Act of Rs.34,99,485/-, was paid on refund. 3.1. In this showcause notice, the ld. Pr. CIT referred to various clauses of the JDA, for arriving at a conclusion that there was transfer of a capital asset u/s 2(47) of the Act. The long term capital gain (LTCG) was arrived at Rs.11,74,50,170/- and it was concluded that non-consideration of LTCG during the assessment proceedings by the Assessing Officer resulted in under assessment of income. It was alleged that there was an error in the assessment order which is prejudicial to the revenue. 3.2. The assessee in reply submitted that the JDA is not a registered agreement (unregistered document). It was further submitted that the Govt. of West Bengal has cancelled the lease agreement for the said land on various grounds and that the JDA could not be executed and that the project got cancelled and hence there is no transfer of the asset in question. It was further submitted that both the deed of lease and the JDA were filed before the Assessing Officer and that he scrutinized the same during the assessment proceedings and had taken a possible view. It was pointed out that queries were raised and explanations given during the assessment proceedings and the decision taken was in accordance with the settled position of law. It was further submitted that there was no material before the ld. Pr. CIT to come to a conclusion that the order passed by the Assessing Officer could be termed as erroneous. It was also submitted that the order in question is not prejudicial to the interest of the revenue as there is no loss of revenue.

3 I.T.A. No. 1045/Kol/2018 Assessment Year: 2013-14 Medicare TPA Service (I) Pvt. Ltd 3.3. The ld. Pr. CIT rejected these contentions of the assessee and held that the order of the Assessing Officer is erroneous and prejudicial to the interest of the revenue on the ground that the Assessing Officer has not made any enquiry on these aspects and that the issue requires further scrutiny. At para 6 of his order, he held as follows:- “6. I have carefully considered the material available on record and found that the issues pointed out in the show cause needs verification as merely accepting submission without calling for relevant material/evidences during the course of assessment proceedings the A.O. failed to examine the above referred issue. After having considered the position of law and facts and circumstances of the instant case, I am of the considered opinion that the assessment order passed by the A.O. is erroneous in so far as it is prejudicial to the interest of revenue in accordance with the Explanation 2(c) below section 263 (1) of the Act. Accordingly, the issue is set aside to the table of A.O on specific point mentioned in para 2 above. The A.O. is directed to provide reasonable opportunity to the assessee company to produce documents & evidences which it may choose to rely upon for substantiating its own claim. Thereafter a fresh assessment order may be passed in accordance with the relevant provisions of law.” 4. The ld. Counsel for the assessee submitted that the order passed by the ld. Pr. CIT is bad in law as it is contrary to the propositions of law laid down by the Hon’ble Supreme Court. He submitted that there was no transfer u/s 2(47) of the Act and hence no capital gain has arisen during the year. Reliance was placed on the judgment of the Hon’ble Supreme Court in the case of Commissioner Of Income Tax vs Balbir Singh Maini [2017] 398 ITR 531 (SC), wherein it was held that when a JDA is not registered, it shall not have the effect of law for the purpose of Section 53A of the Act and hence there is no transfer u/s 2(47) of the Act. He argued that as the document in question was an unregistered document, there cannot be any transfer u/s 2(47) of the Act. He further relied on this judgment for the proposition that, the income from capital gain on the transactions has never accrued/arisen as the transaction itself got cancelled and, is at best, hypothetical income which could not be brought to tax under the Act. He further relied on the decision of the Kolkata ‘A’ Bench of the Tribunal in the case of M/s. Castron Technologies Ltd. vs. ACIT in ITA No. 945/Kol/2017, Assessment Year 2012-13 order dt. 04/04/2018. He argued that the ld. Pr. CIT should follow the binding judgments of the Hon’ble Courts and when no tax can be levied when the ratio of these judgments are applied to the facts of the case, no prejudice is caused to the

4 I.T.A. No. 1045/Kol/2018 Assessment Year: 2013-14 Medicare TPA Service (I) Pvt. Ltd revenue was only revision u/s 263 of the Act. He relied on the decision of the Hon’ble Delhi High Court in the case of Income-tax Officer v. D.G. Housing Projects Ltd. [2012] 343 ITR 329 (Delhi), for the proposition that the Commissioner of Income Tax u/s 263 of the Act, cannot direct reconsideration of an issue by the Assessing Officer, without himself conducting an enquiry verification and then coming to a conclusion that the assessment order is erroneous. He further relied on the decision of the Hon’ble Supreme Court in the case of Malabar Industrial Co. Ltd. v. Commissioner of Income-tax [2000] 243 ITR 83 (SC), where the phrase “prejudicial to the interest of the revenue” was described as follows:- “The scheme of the Act is to levy and collect tax in accordance with the provisions of the Act and this task is entrusted to the revenue. If due to an erroneous order of the ITO the revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the revenue.” He argued that in this case there is no loss of revenue in this case on all three issues and that the ld. Pr. CIT was wrong in invoking his powers u/s 263 of the Act. On the other two issues also he submitted that, no MAT credit was claimed and hence there is no error and that the interest was paid is in accordance with law and that this is not an error. He prayed that the appeal be allowed. 4. The ld. D/R, Mr. A. K. Nayak, on the other hand, opposed the contentions of the assessee and contended that the Assessing Officer has not conducted any enquiry nor applied his mind to the fact, that the assessee had entered into a JDA. He submitted that it is true that the Hon’ble Supreme Court has in the case of Balbir Singh Maini (supra) has held that there is no transfer if the JDA has not been registered but submitted that, the fact whether the JDA was a registered document or an unregistered document, had to be examined by the Assessing Officer. On a query from the Bench, he submitted that a direction may be given to the Assessing Officer to examine the issue as to whether the JDA in question was a registered document or not and if it is found that it was an unregistered document, the decision in the case of Balbir Singh Maini (supra) may be directed to be applied and no tax be levied. He reiterated his argument that, non-application of mind and non

5 I.T.A. No. 1045/Kol/2018 Assessment Year: 2013-14 Medicare TPA Service (I) Pvt. Ltd verification of essential facts by the Assessing Officer on this issue has resulted in the assessment order being erroneous and prejudicial to the revenue. 5. 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 below as well as case law cited, we hold as follows:- 6. The assessee had made two substantive submissions before the ld. Pr. CIT. The first is that the JDA in question was not registered and hence there is no transfer u/s 2(47)(v) r.w.s. 53A of the Transfer of Property Act and second is that the transaction has not materialized as the Govt. of West Bengal terminated the lease vide reference no. Ref. No. ADDA/DGP/T-270/5261(H) and that no permissions were granted to the assessee by the Govt. of West Bengal and hence no income had accrued or arise during the year and that there was no prejudice caused to the revenue warranting invocation of powers u/s 263 of the Act. 6.1. In addition to these submissions it was argued that the Assessing Officer had raised an enquiry during the assessment proceedings on 10/09/2015 & 28/09/2015 and thereafter considered the JDA and other documents and had taken a plausible view and hence no revision lies u/s 263 of the Act. These submissions were made on the showcause notice issued by the ld. Pr. CIT that income from long term capital gains has escaped assessment, due to non- application of mind by the Assessing Officer. 6.2. The legal position on the issue whether there is a transfer u/s 2(47) of the Act when the JDA is an unregistered document and that no hypothetical income can be brought to tax when the JDA fails, is no more res-integra. 6.3. The Hon’ble Supreme Court of India in the case of CIT vs. Balbir Sing Maini (supra) has laid down binding proposition of law on the issue where there is transfer u/s 2(47) of the Act, when the JDA is an unregistered and also whether income accrues/arises under the Act, when the transaction does not materialise. We extract the portions of the order for ready reference:- “20. The effect of the aforesaid amendment is that, on and after the commencement of the Amendment Act of 2001, if an agreement, like the JDA

6 I.T.A. No. 1045/Kol/2018 Assessment Year: 2013-14 Medicare TPA Service (I) Pvt. Ltd in the present case, is not registered, then it shall have no effect in law for the purposes of Section 53A. In short, there is no agreement in the eyes of law which can be enforced under Section 53A of the Transfer of Property Act. This being the case, we are of the view that the High Court was right in stating that in order to qualify as a "transfer" of a capital asset under Section 2(47)(v) of the Act, there must be a "contract" which can be enforced in law under Section 53A of the Transfer of Property Act. A reading of Section 17(1A) and Section 49 of the Registration Act shows that in the eyes of law, there is no contract which can be taken cognizance of, for the purpose specified in Section 53A. The ITAT was not correct in referring to the expression "of the nature referred to in Section 53A" in Section 2(47)(v) in order to arrive at the opposite conclusion. This expression was used by the legislature ever since sub-section (v) was inserted by the Finance Act of 1987 w.e.f. 01.04.1988. All that is meant by this expression is to refer to the ingredients of applicability of Section 53A to the contracts mentioned therein. It is only where the contract contains all the six features mentioned in Shrimant Shamrao Suryavanshi (supra), that the Section applies, and this is what is meant by the expression "of the nature referred to in Section 53A". This expression cannot be stretched to refer to an amendment that was made years later in 2001, so as to then say that though registration of a contract is required by the Amendment Act of 2001, yet the aforesaid expression "of the nature referred to in Section 53A" would somehow refer only to the nature of contract mentioned in Section 53A, which would then in turn not require registration. As has been stated above, there is no contract in the eye of law in force under Section 53A after 2001 unless the said contract is registered. This being the case, and it being clear that the said JDA was never registered, since the JDA has no efficacy in the eye of law, obviously no "transfer" can be said to have taken place under the aforesaid document. Since we are deciding this case on this legal ground, it is unnecessary for us to go into the other questions decided by the High Court, namely, whether under the JDA possession was or was not taken; whether only a licence was granted to develop the property; and whether the developers were or were not ready and willing to carry out their part of the bargain. Since we are of the view that sub-clause (v) of Section 2(47) of the Act is not attracted on the facts of this case, we need not go into any other factual question. 24. The matter can also be viewed from a slightly different angle. Shri Vohra is right when he has referred to Sections 45 and 48 of the Income Tax Act and has then argued that some real income must "arise" on the assumption that there is transfer of a capital asset. This income must have been received or have "accrued" under Section 48 as a result of the transfer of the capital asset. 27. In the facts of the present case, it is clear that the income from capital gain on a transaction which never materialized is, at best, a hypothetical income. It is admitted that, for want of permissions, the entire transaction of development envisaged in the JDA fell through. In point of fact, income did not result at all for the aforesaid reason. This being the case, it is clear that there is no profit or gain which arises from the transfer of a capital asset, which

7 I.T.A. No. 1045/Kol/2018 Assessment Year: 2013-14 Medicare TPA Service (I) Pvt. Ltd could be brought to tax under Section 45 read with Section 48 of the Income Tax Act. 28. In the present case, the assessee did not acquire any right to receive income, inasmuch as such alleged right was dependent upon the necessary permissions being obtained. This being the case, in the circumstances, there was no debt owed to the assessees by the developers and therefore, the assessees have not acquired any right to receive income under the JDA. This being so, no profits or gains "arose" from the transfer of a capital asset so as to attract Sections 45 and 48 of the Income Tax Act. 6.4. When the assessee pleaded both the grounds and has furnished copy of the unregistered JDA before the ld. Pr. CIT and also furnished a copy of the showcause notice issued by the Asansol Durgapur Development Authority (ADDA) terminating the lease of the assessee, the duty of the ld. Pr. CIT, is to verify the claim and thereafter come to a conclusion whether the order is erroneous and prejudicial to the interest of the revenue. It is not difficult for the ld. Pr. CIT to verify the claim of the assessee that the JDA is not registered. This claim cannot be, without verification, remanded to the file of the Assessing Officer for verification by the ld. Pr. CIT u/s 263 of the Act. The law on this issue is also clear. The following case-law lay down the position:- DIRECTOR OF INCOME TAX vs. JYOTI FOUNDATION 357 ITR 388 (Delhi High Court ) It was held that revisionary power u/s 263 is conferred on the Commissioner/Director of Income Tax when an order passed by the lower authority is erroneous and prejudicial to the interest of the Revenue. Orders which are passed without inquiry or investigation are treated as erroneous and prejudicial to the interest of the Revenue, but orders which are passed after inquiry/investigation on the question/issue are not per se or normally treated as erroneous and prejudicial to the interest of the Revenue because the revisionary authority feels and opines that further inquiry/investigation was required or deeper or further scrutiny should be undertaken. (Emphasis ours) INCOME TAX OFFICER vs. DG HOUSING PROJECTS LTD343 ITR 329 (Delhi) Revenue does not have any right to appeal to the first appellate authority against an order passed by the Assessing Officer. S. 263 has been enacted to empower the CIT to exercise power of revision and revise any order passed by the Assessing Officer, if two cumulative conditions are satisfied. Firstly, the order sought to be revised should be erroneous and secondly, it should be prejudicial to the interest of the Revenue. The expression "prejudicial to the interest of the Revenue" is of wide import and is not confined to merely loss of tax. The term "erroneous" means a wrong/incorrect decision deviating from law. This expression postulates an error which makes an order unsustainable in law.

8 I.T.A. No. 1045/Kol/2018 Assessment Year: 2013-14 Medicare TPA Service (I) Pvt. Ltd The Assessing Officer is both an investigator and an adjudicator. If the Assessing Officer as an adjudicator decides a question or aspect and makes a wrong assessment which is unsustainable in law, it can be corrected by the Commissioner in exercise of revisionary power. As an investigator, it is incumbent upon the Assessing Officer to investigate the facts required to be examined and verified to compute the taxable income. If the Assessing Officer fails to conduct the said investigation, he commits an error and the word "erroneous" includes failure to make the enquiry. In such cases, the order becomes erroneous because enquiry or verification has not been made and not because a wrong order has been passed on merits. Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneous, by conducting necessary enquiry, if required and necessary, before the order under s. 263 is passed. In such cases, the order of the Assessing Officer will be erroneous because the order passed is not sustainable in law and the said finding must be recorded. CIT cannot remand the matter to the Assessing Officer to decide whether the findings recorded are erroneous. In cases where there is inadequate enquiry but not lack of enquiry, again the CIT must give and record a finding that the order/inquiry made is erroneous. This can happen if an enquiry and verification is conducted by the CIT and he is able to establish and show the error or mistake made by the Assessing Officer, making the order unsustainable in Law. In some cases possibly though rarely, the CIT can also show and establish that the facts on record or inferences drawn from facts on record per se justified and mandated further enquiry or investigation but the Assessing Officer had erroneously not undertaken the same. However, the said finding must be clear, unambiguous and not debatable. The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous. Finding that the order is erroneous is a condition or requirement which must be satisfied for exercise of jurisdiction under s. 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply and mean the CIT has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question. This distinction must be kept in mind by the CIT while exercising jurisdiction under s. 263 of the Act and in the absence of the finding that the order is erroneous and prejudicial to the interest of Revenue, exercise of jurisdiction under the said section is not sustainable. In most cases of alleged "inadequate investigation", it will be difficult to hold that the order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, is erroneous, without CIT conducting verification/inquiry. The order of the Assessing Officer may be or may not be wrong. CIT cannot direct reconsideration on this ground but only when the order is erroneous. An order of remit cannot be passed by the CIT to ask the Assessing Officer to decide whether the order was erroneous. This is not permissible. An order is not erroneous, unless the CIT hold and records reasons why it is erroneous. An order will not become erroneous because on remit, the Assessing Officer may decide that the order is erroneous. Therefore CIT must after recording reasons hold that the order is erroneous. The jurisdictional precondition stipulated is that the CIT must come to the conclusion that the order is erroneous and is unsustainable in law. It may be noticed that the material which the CIT can rely includes not only the record as it stands at the time

9 I.T.A. No. 1045/Kol/2018 Assessment Year: 2013-14 Medicare TPA Service (I) Pvt. Ltd when the order in question was passed by the Assessing Officer but also the record as it stands at the time of examination by the CIT. Nothing bars/prohibits the CIT from collecting and relying upon new/additional material/evidence to show and state that the order of the Assessing Officer is erroneous. (Emphasis Ours)

COMMISSIONER OF INCOME TAX vs. J. L. MORRISON (INDIA) LTD. 366 ITR As regard the submission on behalf of the Revenue that power under Section 263 of the Act can be exercised even in a case where the issue is debatable, it was held that the case of CIT vs. M. M. Khambhatwala was not applicable. The observation that the Commissioner can exercise power under Section 263 of the Act even in a case were the issue is debatable was a mere passing remark which is again contrary to the view taken by the Apex Court in thecase of Malabar Industrial Company Ltd. & Max India Ltd. If the Assessing Officer has taken a possible view, it cannot be said that the view taken by him is erroneous nor the order of the Assessing Officer in that case can be set aside in revision. It has to be shown unmistakably that the order of the Assessing Officer is unsustainable. Anything short of that would not clothe the CIT with jurisdiction to exercise power under Section 263 of the Act. CIT vs. M. M. Khambhatwala reported in 198 ITR 144; CIT vs. Ralson Industries Ltd. reported in 288 ITR 322 (SC), not applicable; Malabar Industrial Co. Ltd. v. CIT reported in 243 ITR 83, relied on. (Emphasis ours) As regard the third question as to whether the assessment order was passed by the Assessing Officer without application of mind, it was held that the Court has to start with the presumption that the assessment order was regularly passed. There is evidence to show that the assessing officer had required the assessee to answer 17 questions and to file documents in regard thereto. It is difficult to proceed on the basis that the 17 questions raised by him did not require application of mind. Without application of mind the questions raised by him in the annexure to notice under Section 142 (1) of the Act could not have been formulated. The Assessing Officer was required to examine the return filed by the assessee in order to ascertain his income and to levy appropriate tax on that basis. When the Assessing Officer was satisfied that the return, filed by the assessee, was in accordance with law, he was under no obligation to justify as to why was he satisfied. On the top of that the Assessing Officer by his order dated 28th March, 2008 did not adversely affect any right of the assessee nor was any civil right of the assessee prejudiced. He was as such under no obligation in law to give reasons. The fact, that all requisite papers were summoned and thereafter the matter was heard from time to time coupled with the fact that the view taken by him is not shown by the revenue to be erroneous and was also considered both by the Tribunal as also by us to be a possible view, strengthens the presumption under Clause (e) of Section 114 of the Evidence Act. A prima facie evidence, on the basis of the aforesaid presumption, is thus converted into a conclusive proof of the fact that the order was passed by the assessing officer after due application of mind. Meerut Roller Flour Mills Pvt. Ltd. vs. C.I.T., ITA No. 116 /Coch/ 2012; CIT vs. Infosys Technologies Ltd., 341 ITR 293 (Karnataka); S.N. Mukherjee vs.

10 I.T.A. No. 1045/Kol/2018 Assessment Year: 2013-14 Medicare TPA Service (I) Pvt. Ltd Union of India, AIR 1990 SC 1984; A. A. Doshi vs. JCIT, 256 ITR 685; Hindusthan Tin Works Ltd. Vs. CIT, 275 ITR 43 (Del), distinguished. (Paras 90-92, 102)

6.5. The propositions of law laid down in the above case-law is that, it is the duty of the Commissioner of Income Tax to conduct verification and enquiry into the factual position and then come to a conclusion that there is an error in the order passed by the Assessing Officer which has caused prejudice to the interest of the revenue. In this case, despite the assessee making the claims and furnishing documents, that the JDA in question is not a registered document the ld. Pr. CIT has failed to apply his mind and to verify this primary claim of the assessee. He has not conducted any enquiry as to whether the JDA in question was a registered agreement or not. Obviously the assessee could not prove the negative. If it was the case of the ld. Pr. CIT that the JDA was a registered document, evidence should be led by him in support of that contention. In this case, there is no allegation made by the revenue authorities that the JDA in question is a registered document. It is also not the case of the revenue that ADDA has not sought to terminate the lease. Even the ld. D/R does not take a stand that the document is registered. Hence it is clear that either way no income has accrued to the assessee. hence no prejudice is caused to the revenue. 6.6. Under these circumstances, we have to necessarily hold that the ld. Pr. CIT has failed in discharging his duty of verifying the documents furnished by the assessee and thus erred in applying the propositions of law laid down by the Hon’ble Supreme Court to the facts of this case. Thus we apply the propositions of law laid down by the Hon’ble Supreme Court in the case of Balbir Singh Maini (supra) to the facts of the case on hand and come to a conclusion that there is no transfer and hence there is no loss of revenue from long term capital gain in this case. When there is no loss of revenue, there is no prejudice caused to the revenue. The Hon’ble Supreme Court in the case of Malabar Industrial Co. Ltd. v. Commissioner of Income-tax [2000] 243 ITR 83 (SC) at para 9 held as follows:- “9. 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 of an order of the Assessing Officer cannot

11 I.T.A. No. 1045/Kol/2018 Assessment Year: 2013-14 Medicare TPA Service (I) Pvt. Ltd be treated as prejudicial to the interests of the revenue, for example, when an ITO adopted one of the courses permissible in law and it has resulted in loss of revenue; or where two views are possible and the ITO has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the ITO is unsustainable in law. It has been held by this Court that where a sum not earned by a person is assessed as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the revenue - Rampyari Devi Saraogi v. CIT [1968] 67 ITR 84 (SC) and in Smt. Tara Devi Aggarwal v. CIT [1973] 88 ITR 323 (SC). 6.6.1. As in this case, there is no prejudice caused to the revenue, in our view, the ld. Pr. CIT has wrongly invoked his jurisdiction u/s 263 of the Act, on this issue. 7. Coming to the other two issues, we find that the assessee has not claimed any MAT credit during the year. This being so, a revision made u/s 263 of the Act, on the ground that the Assessing Officer has failed to verify excess MAT credit is without application of mind. Thus, the order passed u/s 263 of the Act on this issue fails. Similarly, the interest paid u/s 244A of the Act is a consequential action. The ld. Pr. CIT has not stated as to what is the error in the Assessing Officer granting refund u/s 244A of the Act. When no error is pointed out, the question of invoking jurisdiction u/s 263 of the Act, does not arise. 8. In view of the above discussion, the order passed u/s 263 of the Act on all three issues, is not in accordance with law. Hence, the same is quashed and the appeal of the assessee is allowed. 9. In the result, appeal of the assessee is allowed. Kolkata, the 10th day of May, 2019. Sd/- Sd/- [S.S. Viswanethra Ravi] [J. Sudhakar Reddy] Judicial Member Accountant Member Dated : 10.05.2019 {SC SPS}

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Copy of the order forwarded to: 1. Medicare TPA Service (I) Pvt. Ltd 6B, Bishop Lefroy Road Ground Floor 10, 6B, Paul Mansion Bhowanipore Kolkata – 700 020 2. Pr. Commissioner of Income Tax, Kolkata -4 3. CIT(A)- 4. CIT- , 5. CIT(DR), Kolkata Benches, Kolkata.