9911796707
TMI Blog2010 (7) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed by the Tribunal, by formulating the following substantial questions of law: "1. Whether on the facts and in the circumstances of the case, the Tribunal was justified in upholding the jurisdiction of the Commissioner of Income Tax u/s.263 of the Act, in revising the assessment order? 2. Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessment order is erroneous and prejudicial to the interests of the Revenue when the assessment was completed after considering the reply filed by the appellant in response to the query raised by the Assessing Officer?" 2. Facts in brief: i. An order of assessment was passed on 21.12.2006 for the assessment year 2004-2005. The said order was passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s available on record. The Commissioner of Income-tax has also taken into consideration of the further fact that in so far as the logo and royalty charges are concerned, the Assessing Officer has not taken into consideration of the earlier assessment order for the assessment year 2001-2002 wherein the same has been treated as capital. The said decision was made for the assessment year 2001-2002 by the Assessing Officer in the reassessment order while exercising the power under Section 147 of the Act. v. Challenging the same, the assessee filed a further appeal to the Tribunal. The Tribunal has in turn dismissed the appeal by holding that the assessment order in question is erroneous and prejudicial to the interests of the Revenue. Not sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are erroneous inasmuch as the earlier order passed by the Assessing Officer and the materials placed before him have not been considered for coming to such a conclusion and consequently the assessment order on those issues has been set aside and remanded back to the Assessing Officer for re-consideration. Therefore, the above facts would clearly indicate that the Commissioner of Income-tax has exercised the power under Section 263 of the Act, by holding that the assessment order is both erroneous and prejudicial to the interests of the Revenue. For passing an order of remand after holding that the order is erroneous, no specific finding will be required to show that the same is prejudicial to the interests of the Revenue. As observed earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hereunder: "... 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. ..." 6. Applying the ratio laid down by the Apex Court to the present case on hand, we do not find that any question of law that would arise for consideration. We do not find any i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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