2016 (2) TMI 920 - AT - Income Tax

Revision u/s 263 - Held that - The assessee furnished breakup of investment and copy of fresh computation. We also find that the copies of breakup furnished during the course of the assessment proceedings are exhibited at Page Nos. 70 & 71 of the paper book. The details of payment of brokerage commission and interest are exhibited at Page Nos. 72 & 73 of the paper book. The computation of short term capital gain is exhibited at Page No. 75 of the paper book and all these documents were filed during the course of the assessment proceedings which have been examined by the A.O before completing the assessment. A perusal of the documentary evidences qua the observations of the Commissioner show that there is no failure on the part of the A.O to examine the impugned transactions and, therefore, in our considered opinion, there is no error in the assessment order which can be said to be pre-judicial to the interest of revenue. The AO has taken a view which may be different from the view of the Ld. Commissioner and assuming that the view taken by the AO is a loss to the Revenue but the Hon ble Supreme Court in Malabar Industrial Co. Ltd. (2000 (2) TMI 10 - SUPREME Court ) has held that every loss of revenue as a consequence of an order of the AO cannot be treated as prejudicial to the interest of the Revenue, for e.g. 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 Ld. Commissioner does not agree, it cannot be treated as an order which is erroneous or prejudicial to the interest of Revenue unless the view taken by the Income Tax Officer is unsustainable in law. - Decided in favour of assessee

Summary

Issues:
Challenge to validity of order of ld. CIT-II invoking powers under section 263 of the Act for A.Y. 2010-2011.

Analysis:
The appellant challenged the jurisdiction of the Commissioner, arguing that the assessment order was not erroneous or prejudicial to revenue. The Commissioner believed the assessment was erroneous as the AO accepted claims without proper inquiry, resulting in underassessment of capital gains. The appellant contended that specific queries were answered with documentary evidence during assessment. The Tribunal reviewed the assessment order, Commissioner's order, and relevant evidence. Referring to the Malabar Industrial Co. Ltd. case, the Tribunal assessed if the AO's order was erroneous and prejudicial to revenue.

The Tribunal examined the specific queries raised by the AO during assessment and the appellant's responses, finding that detailed information was provided. The Tribunal noted that all documents were submitted during assessment and examined by the AO. It concluded that there was no failure on the AO's part to scrutinize the transactions, and hence, no error in the assessment order prejudicial to revenue. Citing legal precedents, the Tribunal emphasized that a difference in opinion between the AO and Commissioner does not necessarily make the order erroneous or prejudicial to revenue unless the AO's view is unsustainable in law.

Ultimately, the Tribunal held that the assessment order was neither erroneous nor prejudicial to revenue. It set aside the Commissioner's order under section 263 and reinstated the AO's order under section 143(3) of the Act. The Tribunal referenced a similar decision by the Gujarat High Court in Nirma Chemicals Works P. Ltd. case. Consequently, the appeal by the assessee was allowed, and the order was pronounced in open court on 19.2.2016.