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2019 (11) TMI 1354 - AT - Income TaxRevision u/s 263 - allowing the amounts contributed towards Settlement Guarantee Fund and Investor Service Fund - HELD THAT - What has been emphasized MALABAR INDUSTRIAL CO. LTD. VERSUS COMMISSIONER OF INCOME-TAX 2000 (2) TMI 10 - SUPREME COURT is that every loss of revenue as a consequence of an order of the AO cannot be construed to be prejudicial to the interests of the revenue, unless it can be established that the assessment order is erroneous in as much as the same is unsustainable in law. We are also of the view that in order to set aside an order u/s 263 there must exist two circumstances to enable your honor to exercise the power of revision, viz; the order passed by the AO has to be erroneous and by virtue of the order being erroneous should be prejudicial to the interest of the revenue. From the facts as stated in the earlier paragraphs, it is very well established that the AO has not only applied his mind after proper enquiries but has examined and considered various details submitted during the course of assessment. Hence, the order passed by the AO is neither erroneous nor prejudicial to the interest of revenue i.e. involving any error or it is deviating from law. (as defined in Black's Law Dictionary). Since, the AO has acted in accordance with law and passed the assessment order, the same cannot be considered as erroneous and prejudicial to revenue, simply because AO has not elaborated various things in the body of the assessment order. Hence, we quash the revision order passed by PCIT and allow the appeal of the assessee on this issue - Appeal of the assessee is allowed
Issues Involved:
1. Legality of initiating revision proceedings under section 263 of the Income Tax Act, 1961. 2. Whether the assessment order passed by the Assessing Officer (AO) was erroneous and prejudicial to the interest of the revenue. 3. Whether the Principal Commissioner of Income Tax (PCIT) was justified in directing the AO to disallow contributions towards the Settlement Guarantee Fund (SGF) and Investor Service Fund (ISF). Issue-wise Detailed Analysis: 1. Legality of Initiating Revision Proceedings under Section 263: The appellant argued that the initiation of proceedings under section 263 was illegal and bad in law. The PCIT initiated revision proceedings, claiming that the AO's assessment order was erroneous and prejudicial to the interest of the revenue. The appellant contended that the AO had made specific inquiries regarding the contributions to the SGF and ISF, and after due application of mind, accepted the claims. Therefore, the assessment order was neither erroneous nor prejudicial to the revenue. 2. Erroneous and Prejudicial Nature of the Assessment Order: The PCIT observed that the AO's order was erroneous and prejudicial due to two main reasons: - Contribution to SGF: ?25,78,84,501/- was reduced while computing taxable income. - Contribution to ISF: ?6.75 Crore was debited to the Profit & Loss account. The PCIT noted that these contributions were in the nature of deposits or contingency reserves, which could not be allowed as business expenditures. The PCIT argued that the AO had not made adequate inquiries or verifications before allowing these deductions. 3. Justification for Disallowing Contributions to SGF and ISF: The appellant provided detailed responses to the AO's inquiries during the assessment proceedings. For the SGF, the appellant explained that the contribution was mandated by SEBI to protect investors' interests and ensure the settlement of trades. This contribution was not a deposit or contingency reserve but a statutory payment necessary for business operations, thus allowable under section 37 of the Act. The appellant also highlighted that the AO had raised specific queries and received detailed explanations, making the assessment order neither erroneous nor prejudicial. For the ISF, the appellant explained that SEBI required setting aside a portion of the Annual Listing Fees to an Investor Services Account. This practice had been in place since 1992 and consistently allowed as a business expense under section 37. The appellant argued that the department had accepted this treatment in previous years, and there was no change in facts or circumstances to justify a different view. Conclusion: The tribunal noted that the AO had conducted a detailed inquiry into both contributions and made an informed decision. The contributions to SGF and ISF were statutory and necessary for business operations, thus allowable as business expenditures. The tribunal emphasized that an order cannot be considered erroneous simply because the PCIT disagrees with the AO's conclusions. Citing precedents, the tribunal concluded that the AO's order was neither erroneous nor prejudicial to the revenue. Consequently, the revision order under section 263 was quashed, and the appeal of the assessee was allowed. Result: The appeal of the assessee is allowed, and the revision order passed by the PCIT is quashed. The assessment order by the AO stands as it is.
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