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TMI Blog2015 (7) TMI 1351X X X X Extracts X X X X X X X X Extracts X X X X ..... it has resulted in loss of revenue or where two views are possible and the ITO has taken one view with which the Ld. Commissioner does not agree, it cannot be treated as an order which is erroneous or prejudicial to the interest of Revenue unless the view taken by the Income Tax Officer is unsustainable in law. The assessment order is neither erroneous nor prejudicial to the interest of the revenue. We, therefore, set aside the impugned order passed by the Ld. Commissioner u/s. 263 and restore that of the Assessing Officer passed u/s. 143(3) of the Act. - Decided in favour of assessee. - I.T.A. Nos.3374/Mum/2010, I.T.A. Nos.3375/Mum/2010 - - - Dated:- 3-7-2015 - Shri A.D. Jain, Judicial Member And Shri N.K. Billaiya, Accountant Memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l to the interest of the Revenue. The Ld. Counsel drew our attention to the show cause notice issued by the CIT u/s. 263 of the Act. It is the say of the Ld. Counsel that the reasons given by the CIT for issuing the notice are in variance to the findings of the CIT given in his order. Therefore, the order passed by the Ld. CIT is not as per the provisions of the law. In support of his contention, reliance was placed on the decision of the Tribunal Allahabad Bench in the case of Sharma Engineering Co. Vs ITO in ITA No. 523/Alld/85. The Ld. Counsel also drew our attention to the notice issued u/s. 142(1) of the Act during the course of the assessment proceedings and pointed out the relevant queries raised by the AO and the reply filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... htful consideration to the orders of the lower authorities. We have also carefully considered the show cause notice issued by the CIT u/s. 263 of the Act and the query letter issued by the AO u/s. 142(1) of the Act. We have also gone through the judicial decisions relied upon by both sides. The peculiar fact of the present case is that no assessment order giving effect to the directions of the CIT u/s. 263 of the Act has been made. The only order which has been passed is subsequent to the search operations carried on u/s. 132 of the Act and u/s. 153A of the Act. The original assessment order is dt. 30.8.2007. As per the query letter of the AO vide query No. 30, the AO has sought details from the assessee in respect of prior year expenses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 263 of the Act. The Hon ble Supreme Court in Malabar Industrial Co. Ltd. 243 ITR 83 has laid down the following ratio:- A bare reading of section 263 of the Income-tax Act, 1961, makes it clear that the prerequisite for the exercise of jurisdiction by the Commissioner suo motu under it, is that the order of the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous ; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent-if the order of the Income-tax Officer is erroneous but is not prejudicial to the Revenue or if it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ews are possible and the Income Tax Officer has taken one view with which the Ld. Commissioner does not agree, it cannot be treated as an order which is erroneous or prejudicial to the interest of Revenue unless the view taken by the Income Tax Officer is unsustainable in law. 7. The decisions relied upon by the Ld. DR are therefore clearly distinguishable on the facts of the present case. The Bombay High Court in CIT Vs Gabrial India Ltd., (1993) 203 ITR 108 has held that the decision of the Income Tax Officer could not be held to be erroneous simply because in his order, he did not make an elaborate discussion in that regard . Considering the facts in totality in the light of the judicial decisions discussed hereinabove, in our unders ..... X X X X Extracts X X X X X X X X Extracts X X X X
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