2013 (12) TMI 645 - AT - Income Tax

Revision of order u/s 263 Whether revision of order on the ground that rebate u/s 88E requires more careful examination is valid or not - Held that - Following CIT Vs Max India Ltd. 2007 (11) TMI 12 - Supreme Court of India The CIT should have valid reason to exercise his revisionary powers The CIT has no plausible reason to review the case - It is only in cases of lack of inquiry the Commissioner is empowered to exercise his revisional powers by calling for and examining the records of any proceedings Decided in favour of assessee.

Summary

Issues:
Challenge to order u/s. 263 on grounds of correctness, Allocation of expenses for rebate u/s. 88E, Doctrine of merger applicability, Validity of CIT's direction for denovo assessment.

Analysis:
1. Challenge to order u/s. 263:
The assessee appealed against the order of the Ld. CIT-4, Mumbai under section 263 of the Income Tax Act, 1961 for the assessment year 2007-08. The appeal contested the correctness of the CIT's order, arguing that the assessment order by the Assessing Officer was not erroneous or prejudicial to the Revenue's interest.

2. Allocation of expenses for rebate u/s. 88E:
The Commissioner issued a show cause notice under section 263, questioning the allocation of expenses by the Assessing Officer for determining the rebate under section 88E. The Commissioner found the method of allocating expenses as prejudicial to the Revenue's interest and directed a denovo assessment. The assessee contended that the assessment was correct, and the order had been merged with previous appeal orders.

3. Doctrine of merger applicability:
The assessee argued that the doctrine of merger applied to the case, even though the ground questioning the rebate u/s. 88E was withdrawn. The counsel emphasized that the AO's order had been merged with the CIT(A) order, and the CIT erred in invoking section 263 based on a different view.

4. Validity of CIT's direction for denovo assessment:
The ITAT examined the CIT's order under section 263 and found that the CIT did not provide a sufficient basis for directing a denovo assessment. The ITAT held that the assessment order was based on a scientific allocation of expenses, which was a proper view. Citing relevant case law, the ITAT concluded that the CIT's order lacked justification and quashed the order under section 263.

In conclusion, the ITAT allowed the appeal filed by the assessee, emphasizing that the CIT's direction for denovo assessment lacked a proper basis and the assessment order was based on a valid allocation of expenses. The ITAT also addressed the doctrine of merger proposition, stating it was of academic interest due to the quashing of the CIT's order.