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TMI Blog2012 (12) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... of Malabar Industrial Co. Ltd.V CIT [2000 (2) TMI 10 - SUPREME COURT] - in favour of assessee. - ITA No. 511 & 512/CHD/2011 - - - Dated:- 5-6-2012 - Ms. SUSHMA CHOWLA, AND SHRI MEHAR SINGH, JJ. Appellant by : Shri Navneet Sehtal Respondent : Smt. Jaishree Sharma ORDER PER MEHAR SINGH, AM The present appeals fi led by the same assessee, are directed against the order, dated 30.3.2011 passed by the ld. CIT u/s 263 of the Income-tax Act,1961 (in short 'the Act'). 2. The assessee has raised as many as 8 grounds of appeal, for the assessment year 2005-06. In substance, all the grounds of appeal, cumulatively challenge the order dated 30.03.2011, passed by the CIT u/s 263 of the Act. In these grounds of appeal, the assessee has challenged the issuance of notice, dated 15.3.2011, for the purpose of invoking provisions of Section 263 of the Act. The assessee has filed brief synopsis, which is relevant for the present appeal and the appeal in ITA No. 512/Chd/2011 for assessment year 2006-07, against the order of CIT dated 30.3.2011. 3. In the course of present appellate proceedings, the ld. 'AR' contended that the order, passed by the CIT u/s 263 of the Act is ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 128 The Hon'able Punjab Haryana Court has "Held, dismissing the appeal, that the view expressed by the Assessing Officer was in conformity with the view subsequently expressed by the various Benches of the Tribunal. The view expressed by the Assessing Officer was a possible view and since the assessing Officer had taken a possible view, the Commissioner had no jurisdiction to interfere by exercising his powers under section 263". Affirmed by the Apex Court in CIT vs Max India Ltd (2007) 295 ITR 282 The Hon'able Punjab Haryana High Court has held in CIT vs Munjal Castings (2008) 303 ITR 23 - "The phrase "prejudicial to the interests of the revenue" has to be in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the sake of record, it is mentioned that the Assessee had also not revealed any income from the Regd. Firm to the State Government]. In this view of the matter, the AO made error in allowing a part of Depreciation of Rs.1,73,098/- and erred equally in not allowing a part of Depreciation of Rs.34,612/-. In fact he should have disallowed the full claim being not admissible 8. Having regard to the fact-situation of the present case, and the conscious view taken by the AO, after appreciation of the submission f i led by the assessee, in the matter, the CIT is not competent u/s 263, to substitute his view in place of conscious and, legally permissible view, taken by the AO. This view is supported by several decisions of the High Courts and Hon'ble Supreme Court. However, the issue is squarely covered by the decision of the Hon'ble Supreme Court, in the case of Malabar Industrial Co. Ltd.V CIT, 243 ITR 83(S.C) . 9. The AO made an addition of Rs.17,533/-, treating the same as monetary perquisite, being interest free loan as the tax on the same as not exempt u/s 10(10CC) of the Act. The addition was made by the AO, on perusal of form No. 16A and on the basis of explanation, f i le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the set of facts is entirely different in the case of assessee. In the Assessment Order dated 31.07.2008 the Assessing Officer has added to total income of assessee Rs.1,67,466/- as tax on monetary benefit whereas the total paid by Govt. of Punjab, which is to be considered as income of the assessee is Rs.1.85.805/-.- The balance amount i.e. Rs.18.339/- (Rs.1,85,805 -1,67,466) has not been included in the income of the assessee. 10. The issue has been considered by the AO, in terms of the provisions of Section 10(10CC) and accordingly, took the view, on the basis of perusal of form No. 16A and the submission filed by the assessee, and an amount of Rs.17,533/- was treated as monetary perquisite and tax on the same, as not exempt u/s 10(10CC) of the Act. Consequently, the amount was added to the income of the assessee. 11. We have carefully perused the findings of both AO, as well as that of the CIT and the relevant records. It is evident that the AO, has taken a legally permissible view, in the matter, in terms of the provisions of Section 10(10CC) of the Act. The CIT has computed the income of Rs.18,339/- in respect of interest paid by the employer, as is evident from findi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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