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TMI Blog2009 (6) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... ture ? Held that- the order was found to be erroneous by the revisional authority, but nowhere the finding was recorded that the order passed by Assessing Officer was prejudicial to the interests of the revenue, it was not open for the revisional authority to assume jurisdiction. The revision was not valid. - 194 of 2003 - - - Dated:- 15-6-2009 - DAGA V. C., DEVADHAR J. P. JJ J.D. Mistry with P.C. Tripathi instructed by Atul K. Jasani for the appellant. P.S. Sahadevan for the respondents JUDGMENT Heard learned counsel for the parties. This appeal was admitted on the following substantial questions of law : "1. Whether on the facts and in the circumstances of the case and in law the Income-tax Appellate Tribunal was jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derations. The assessee has not been able to substantiate the goodwill payment over and above the monthly rent vis-a-vis the benefits derived by it. A perusal of the records indicate that while making the assessment the Assessing Officer has not dealt with this issue in-depth and has allowed the payment of goodwill without ascertaining the exact nature of the payment and the commercial expediency for incurring such expenditure." 3. Section 263 of the Income-tax Act, 1961, has already been interpreted by the apex court in the case of Malabar Industrial Co. Ltd. v. CIT [2000] 243 ITR 83, wherein the apex court held that a bare reading of section 263 of the Income-tax Act, 1961, makes it clear that the pre-requisite for the exercise of juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it can-not 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. According to the learned Additional Solicitor General, on an interpretation of the provision of section 80HHC(3) as it then stood the view taken by the Assessing Officer was unsustainable in law and therefore the Commissioner was right in invoking section 263 of the Income-tax Act. In this connection, he has further submitted that in fact the 2005 amendment which is clarificatory and retrospective in nature itself indicates that the view taken by the Assessing Officer at the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he interests of the revenue. 6. In the absence of a positive finding that the order was not in the interests of the Revenue, it was not open for the revisional authority to assume jurisdiction. In this view of the matter, the impugned order invoking under section 263 of the Income-tax Act was erroneous. Consequently, the revisional authority was not justified in setting aside the order passed by the Assessing Officer. In view of the aforesaid finding we answer the first question in the negative, i.e., in favour of the assessee and against the Revenue. 7. In view of the findings recorded on the first question, the second question does not survive. The matter is remanded back to the Assessing Officer for the decision afresh on its own mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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