2006 (11) TMI 164 - HC - Income Tax

Erroneous and Prejudicial Order - CIT, finding that inter-unit loss was not adjusted against the profit for the purpose of allowing deduction u/s 80-IA of the Act, issued a notice u/s 263 - HELD THAT - As held by the apex court in Malabar Industrial Co. Ltd.'s case 2000 (2) TMI 10 - SUPREME COURT , every loss of revenue as a consequence of an order of the Assessing Officer, cannot be treated as prejudicial to the interests of the Revenue, for example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue unless the view taken by the Income-tax Officer is unsustainable in law. In the instant case, the CIT, while exercising power u/s 263 of the Act, had not rendered an independent finding to the effect that the course adopted by the Assessing Officer is neither permissible, nor the view taken by the Assessing Officer resulted in the loss of revenue which is prejudicial to the interests of the Revenue. In the absence of any such finding, the Appellate Tribunal, in our considered opinion, is right in setting aside the order of the CIT. Even on the merits, on the point that inter-unit loss was not adjusted against the profit for the purpose of allowing deduction u/s 80-IA of the Act, there are two views possible; one in favour of the Revenue and the other in favour of the assessee. Therefore, on the facts of the case, when there are two views are possible and it is not the case of the Revenue that the view taken by the Assessing Officer is not permissible in law, the CIT is not justified in invoking the jurisdiction u/s 263 of the Act. Hence, we do not find any question of law, much less a substantial question of law that arises out of the order of the Appellate Tribunal. Accordingly, the tax case appeal stands dismissed.

Summary

Issues:
1. Jurisdiction of the Commissioner of Income-tax under section 263 of the Income-tax Act.
2. Correct application of law in determining deduction under section 80-IA of the Act.

Analysis:

Issue 1: Jurisdiction of the Commissioner of Income-tax under section 263 of the Income-tax Act:
The case involved an appeal against the order of the Income-tax Appellate Tribunal concerning the jurisdiction of the Commissioner of Income-tax under section 263 of the Income-tax Act. The Commissioner issued a notice under section 263 to the assessee regarding the adjustment of inter-unit loss against profit for deduction under section 80-IA of the Act. The Commissioner remitted the matter to the Assessing Officer for fresh assessment after considering the objection raised by the assessee. However, the Appellate Tribunal set aside the Commissioner's order, stating that the Commissioner did not render an independent finding to show that the Assessing Officer's course was impermissible or resulted in revenue loss prejudicial to the Revenue. The Tribunal held that in the absence of such a finding, the Commissioner's order was not justified under section 263. The Tribunal emphasized that the provision could not be invoked to correct every mistake by the Assessing Officer but only when the order was erroneous and prejudicial to the Revenue, as per the decision in Malabar Industrial Co. Ltd. v. CIT [2000] 243 ITR 83.

Issue 2: Correct application of law in determining deduction under section 80-IA of the Act:
Regarding the deduction under section 80-IA of the Act, the case presented two possible views on whether inter-unit loss should be adjusted against profit. One view favored the Revenue, citing cases like CIT v. Kotagiri Industrial Co-operative Tea Factory Ltd. [1997] 224 ITR 604 and CIT v. Sundaravel Match Industries P. Ltd. [2000] 245 ITR 605, emphasizing the need to set off losses against profits before allowing deductions. On the other hand, a view in favor of the assessee was supported by the decision in CIT v. Canara Workshops P. Ltd. [1986] 161 ITR 320, stating that profits and losses of different industries should not be offset against each other for specific deductions. The Court concluded that as there were two possible views and the Revenue did not establish that the Assessing Officer's view was legally impermissible, the Commissioner's invocation of jurisdiction under section 263 was not justified.

In summary, the High Court dismissed the tax case appeal, emphasizing that the Commissioner's order lacked the necessary findings to show error prejudicial to the Revenue and that there were valid legal interpretations supporting both the Revenue's and the assessee's positions regarding the deduction under section 80-IA of the Income-tax Act.