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TMI Blog2012 (12) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... arding the nature and character of the one-time regulatory fee paid by it as well as the bank and stamp duty charges. A detailed explanation in the form of statements and other documents required of by the Assessing Officer were produced at the stage of original assessment. Clearly this was not a case of “No Enquiry”. The lack of any discussion on this cannot lead to the assumption that the Assessing Officer did not apply his mind. The proceeding in fact shows that Assessing Officer directed his mind specifically on this aspect and then concluded that the expenditure was in the revenue field. Under these circumstances, the Commissioner could not have validly exercised his supervisory or revisionary power under Section 263. As far as the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 35,81,30,408 on account of regulatory fee and Rs. 34,92,168/- towards stamp duty, by the assessment order dated 22.12.2006. The Commissioner of Income Tax sought to exercise his jurisdiction under Section 263 of the Act and issued notice on 10.02.2009, stating that the license fee was, in fact, capital expenditure. The CIT also formed the opinion that loan arrangement charges and stamp duty under the bank guarantee were capital expenditure. The assessee's contentions were rejected and an order was made by the CIT on 30.03.2009. The assessee carried the matter in appeal to the ITAT; that Tribunal by the impugned order allowed the appeal. 3. Counsel for the Revenue contended that the impugned order is in error, over-looking that regulatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel emphasized that once this Tribunal ruling as well as the ruling of the another Delhi Bench of the Tribunal in MTNL Vs. CIT (100 TTJ 1) decided on 25th June, 2007 existed and was available, the CIT ought to have dropped the proceedings. 5. Learned counsel next relied on the judgment of the Supreme Court in Malabar Industrial Co Ltd. Vs. Commissioner of Income Tax (2000) 243 ITR 83 (SC) = (2002-TIOL-491-SC-IT), where it was held that where two views are possible, the power under Section 263 cannot be exercised. To the same effect, the judgment reported as CIT Vs. G.M. Mittal Stainless Steel (P) Ltd. (2003) 263 ITR 255 was relied upon. 6. This Court has considered the submissions as well as the record. The assessee during the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the one-time regulatory fee. This fee had to be paid because of a change in the Telecom policy. The Revenue's contention is that the lack of any discussion in Assessing Officer's order is an obvious error, justifying invocation of the power and jurisdiction under Section 263. This clearly amounted to lapse on the part of the Assessing Officer authorizing the Commissioner to re-open /exercise his revisional power. 9. Section 263 authorizes the Commissioner to look into an order or complete the assessment provided the jurisdictional conditions are satisfied i.e. the order in question is erroneous and it is prejudicial to the interest of revenue. The decision in Gee Vee Enterprises Vs. Addl. CIT & Ors. (1975) 99 ITR 375 is an authority for s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he can form another opinion. It was emphasized here that the notice and questionnaire given to the assessee which were duly replied, were evidence of full and due enquiry about this expenditure. After satisfying himself that they were in fact revenue expenditure, the assessee„s claim was upheld under Section 37. The Court in Sunbeam Auto (supra) held as follows : "Learned counsel for the assessee is right in his submission that one has to keep in mind the distinction between "lack of inquiry" and inadequate inquiry". If there was any inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Section 263 of the Act, merely because he has a different opinion in the matter. It is only in c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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