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TMI Blog2014 (11) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the Act, the phrase "prejudicial to the interests of the revenue" u/s 263 has to be read in conjunction with the expression "erroneous" order passed by the AO - Every loss of revenue as a consequence of an order of the AO cannot be treated as prejudicial to the interest of the revenue - the mechanics of the section have become so complicated over the years that two views were inherently possible - Therefore, subsequent amendment in 2005 even though retrospective will not attract the provision of Section 263 - though the amendment is retrospective, in this case, the Revenue cannot have the benefit of the same while proceeding u/s 263 – Decided against revenue. - IT APPEAL NO. 699 OF 2008 - - - Dated:- 4-8-2014 - N. KUMAR AND MRS. RA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y adopted one view. The Commissioner could not have interfered in the order in view of the judgment of the Apex Court in the case of Malabar Industrial Co. Ltd. (supra). 3. Learned Counsel for the Revenue contends that in view of the amendment to Section 115 JB of the Act, by way of explanation (i) which was brought into the statute book on 01.04.2001 by the Finance (No.2) Act, 2009 even if Clause (c) is not attracted, Clause (i) is attracted and the order of the tribunal is erroneous. He also submits that the assessing authority has not considered the said question from that angle. He therefore submits that the impugned order passed by the tribunal requires to be set aside. 4. This appeal was admitted on 26.05.2009 to consider the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the revenue, unless the view taken by the Income-Tax Officer is unsustainable in law. According to the learned Additional Solicitor General on interpretation of the provision of Section 80HHC(3) as it then stood the view taken by the Assessing Office 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 2005 amendment which is clarificatory and retrospective in nature itself indicates that the view taken by the Assessing Officer at the relevant time was unsustainable in law. We find no merit in the said contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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