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TMI Blog2019 (3) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court in the case of Malabar Industrial Company Ltd vs CIT (2000 (2) TMI 10 - SUPREME COURT), revisionary jurisdiction u/s 263 cannot be invoked by the CIT-A - Decided in favour of assessee. - I. T. A No. 62/Kol/2016 - - - Dated:- 1-8-2018 - Shri Aby. T. Varkey, JM And Shri M. Balaganesh, AM For The Appellant : Shri J. P. Khaitan, Sr. Counsel For The Respondent : Shri Goulean Hangshing, CIT DR ORDER Per M . Balaganesh, AM 1. This appeal by the assessee arises out of the order of the Learned Principal Commissioner of Income Tax (IT TP), Kolkata [in short the ld. CIT] in Memo no. CIT(IT TP) KOL/AAFCP4438D/263/2015-16/2730-33 dated 02.11.2015 passed u/s 263 of the Act against the order passed by the DDIT-2(1), Kolkata [in short the ld. AO] under section 143(3) of the Income Tax Act, 1961 [in short the Act ] dated 10.03.2014 for the Assessment year 2011-12. 2. The assessee has agitated the validity of invoking revisionary jurisdiction by the ld CIT u/s 263 of the Act in the instant case by raising several grounds. The brief facts of this case are that the assessee is a foreign company engaged in rendering consultancy services and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed return marked in separate annexure. c) Copy of income tax computation along with the list of invoices marked in separate annexure. d) Copy of invoices marked as separate annexure. e) Copy of agreement in support of invoices treated as non-taxable in the return of income marked as separate annexure. It was also clarified before the ld AO that no personnel from the assessee company had rendered services in India. 5. The ld AO on verification of the aforesaid particulars with documents completed the assessment u/s 143(3) of the Act on 10.3.2014 by observing as under:- In response to above notice, authorized representative of the assessee, Sri Bikash Chanda appeared from time to time and submitted necessary particulars, which were considered. The case was discussed and heard with him. The assessee, PWC SP ZOO, a non-resident foreign company established under the laws of Poland, is having its registered office in Warszawa. It carried on the business of providing professional services. In view of above, total income of the assessee is accepted as per return. In the tax computation sheet, the ld AO adopted the income returned as per the original retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see as far as non-taxable services are concerned. However, the currency in which the invoices were raised in the original return was in Poland Currency and in the revised return was Euro Currency. This has led to minor difference in value of ₹ 81,253/- ( 24,82,739 -24,01,486). With regard to taxable services, though the income is increased in the revised return, the same had been fully subjected to deduction of tax at source and assessee had also made good the deficit in tax by paying self assessment tax of ₹ 5,815/- on 28.9.2012 before filing the revised return. We find that the assessee had duly disclosed under which section, the exemption is claimed in respect of non-taxable services portion in the return of income itself. Later the hard copy of the revised return was also filed by the assessee together with the note for claiming exemption which is enclosed in page 6 of the paper book reproduced supra. Moreover, the assessee had also brought all these facts before the ld CIT in response to show cause notice issued u/s 263 of the Act vide separate written submissions dated 15.10.2015 which are enclosed in pages 95 to 100 of the paper book. Hence even though there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nquiry on the part of the ld AO on the list of taxable and non-taxable services disclosed by the assessee. We hold that the twin conditions precedent for invoking revisionary jurisdiction u/s 263 of the Act is conspicuously absent in the instant case and accordingly by placing reliance on the decision of the Hon ble Supreme Court in the case of Malabar Industrial Company Ltd vs CIT reported in 243 ITR 83 (SC) , revisionary jurisdiction u/s 263 of the Act cannot be invoked by the ld CIT. We also find that the Hon ble Jurisdictional High Court had considered all the aspects that are relevant to the case before us in CIT vs J.L.Morrison (India) Ltd reported in 366 ITR 593 (Cal) wherein it was held as under:- 86. Whether the assessment order dated 28th March, 2008 was passed without application of mind is basically a question of fact. The learned Tribunal has held that the assessment order was not passed without application of mind. The records of the assessment including the order sheets go to show that appropriate enquiry was made and the assessee was heard from time to time. In deciding the question Court has to bear in mind the presumption in law laid down in Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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