2016 (3) TMI 1178 - AT - Income Tax

Tribunal Upholds Assessing Officer's Decision Overturning Commissioner's Order

The Tribunal found that the Commissioner's order invoking section 263 of the Act was neither erroneous nor prejudicial to revenue. The Tribunal emphasized ... Revision u/s 263 - Held that:- AO has taken a view which may be different from the view of the Ld. Commissioner and assuming that the view taken by the AO is a loss to the Revenue but the Hon'ble Supreme Court in Malabar Industrial Co. Ltd. (2000 (2) TMI 10 - SUPREME Court) has held that 'every loss of revenue as a consequence of an order of the AO cannot be treated as prejudicial to the interest of the Revenue,' for e.g. 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 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. 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. There is no error in the assessment order made u/s. 143(3) of the Act which can be said to be erroneous and prejudicial to the interest of the revenue. We, therefore set aside the order of the ld. CIT and restore that of the A.O, appeal filed by the assessee is accordingly allowed. Issues:Challenge to correctness of order made under section 263 of the Act.Detailed Analysis:The appellant challenged the jurisdiction of the Commissioner for invoking section 263 of the Act, arguing that the issues raised were already addressed by the Assessing Officer (A.O) during assessment proceedings. The appellant claimed that the directions by the Commissioner amounted to a change of opinion, as the A.O had conducted detailed inquiries before framing the assessment. On the contrary, the Departmental Representative (D.R.) supported the Commissioner's order, stating that the assessment under section 143(3) was erroneous and prejudicial to revenue, justifying the invocation of section 263.The Commissioner observed discrepancies in the appellant's income from labor job work and claimed deductions for labor charges. The balance sheet revealed a liability for sundry creditors related to labor expenses, exceeding the total labor expenses claimed. The A.O was criticized for not verifying the genuineness of labor charges paid to individual laborers, which was deemed necessary due to the appellant's claims and potential tax implications. The Commissioner intended to initiate proceedings under section 263 based on these findings.During the assessment proceedings, the A.O raised specific queries regarding income reconciliation, expenses exceeding a certain amount, details of sundry creditors, and tax returns. The appellant responded to these queries, providing necessary documents and explanations. The A.O, after thorough examination and discussions with the appellant's representative, concluded the assessment without finding any significant discrepancies.Citing legal precedents, the Tribunal emphasized that the Commissioner's intervention under section 263 required the order to be both erroneous and prejudicial to revenue. The Tribunal referenced judgments such as Malabar Industrial Co. Ltd. and Gabrial India Ltd., highlighting the distinction between an incorrect order and one prejudicial to revenue. Ultimately, the Tribunal concluded that the assessment order was neither erroneous nor prejudicial to revenue, setting aside the Commissioner's order and restoring that of the A.O under section 143(3).In light of the judicial decisions and the factual assessment, the Tribunal found no error in the A.O's order and deemed it not prejudicial to revenue, leading to the allowance of the appellant's appeal against the Commissioner's order under section 263.This comprehensive analysis of the judgment highlights the legal arguments, factual findings, and the application of relevant legal principles in determining the correctness and prejudicial nature of the assessment order under section 263 of the Act.