TaxTMI 
TaxTMI 
2015 (4) TMI 324
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....e revenue. 3. On the facts and in the circumstances of the case, the learned CIT erred in cancelling the assessment order passed by the Assessing Officer on 24th February, 2012 u/s.143(3) of the I.T. Act and directing the Assessing Officer to make a fresh assessment." 2. CIT called for and examined the assessment proceedings for A.Y. 2008-09 in assessee's case and observed that assessment order passed u/s. 143(3) r.w.s. 144C of the Act on 24.02.2012 by Additional CIT determining total income at Rs. 1,36,99,26,007/- was erroneous in so far as it was prejudicial to the interest of Revenue on following grounds: "The assessee had charged the P&L account with Rs. 6,04,00,000/- which is currency Swap Loss on account of hedging of Rupee loan with Dollar loan through OTC contracts with Banks. Thus, the loss incurred on such hedging activity was speculative in nature [not excluded as per clause (d) to section 43(5) and was not allowable against income from non-speculative business." Accordingly, a notice dated 10.03.2014 was issued and whereby assessee was asked to explain as to why appropriate order u/s. 263(1) of the Act should not be passed. In response to same, Learned Autho....
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....of the Act. (iii) Section 43(5) is only applicable to contract for purchase or sale of a commodity and hence the provisions of section 43(5) cannot be applied to currency and accordingly, hedging transaction cannot be regarded as speculative transaction. (iv) The ITAT Chennai Bench in the case of Patersons Securities Pvt. Ltd. (127 ITD 386) has held that derivatives are not a contract for purchase or sale of any physical commodity and therefore cannot be treated as speculative transaction u/s 43(5). In the case of Friends & Friends Shipping Pvt. Ltd., the Gujarat High Court has held that loss incurred due to fluctuation in foreign exchange while implementing the export contracts which could not be executed is to be treated as business expenses. Hence, exception to clause (d) will apply to Currency Swap Loss and the said loss is deductible as business expenditure." 2.2 With regard to enquiry conducted by Assessing Officer, CIT observed that no such inquiries have been conducted by Assessing Officer. Assessing Officer has simply accepted the claims of assessee and failed to make any enquiry which was called in the circumstances of the case. At the same time CIT observed that....
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....ve has raised various contentions. Learned Authorized Representative submitted that CIT erred in assuming his jurisdiction u/s.263 of the Act, whereas mandatory conditions for assuming such jurisdiction was totally absent, with the result that impugned order passed u/s. 263 is bad in law. On the facts and circumstances of the case, CIT erred in arriving at a conclusion without any basis whatsoever to the effect that the assessment order passed by Assessing Officer was erroneous as well as prejudicial to the interest of Revenue. Learned Authorized Representative mainly relied on the statement of facts-cum-synopsis filed before CIT running into 49 pages, wherein various contentions have been raised on issue at hand which will be dealt by us at appropriate place in this order. Learned Authorized Representative took us to the various factual and legal submissions filed before Assessing Officer to impress upon us that order of the Assessing Officer is neither erroneous so as to be prejudicial to the interest of revenue so as to invoke provisions of Section 263. Accordingly, same should be set aside. On other hand, learned Departmental Representative made detailed factual and legal submi....
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....r prejudicial to the interest of revenue which will be dealt by us while deciding this issue in later para of this order. 4.3 On the point of inquiry, Learned Authorized Representative submitted that Assessing Officer has issued noticed dated 23.08.2001 u/s.142(1) as compiled on page 1 to 5 of the paper book filed on behalf of assessee and certified to be filed before Assessing Officer, which reads as under: "You are requested to furnish the following information/details. This letter is part of the Notice U/s.142(1) of the I.T. Act, and to be treated as such. 1. Please give year wise details of 'import entitlement licenses' of all types due to the company and state as to which of these were accounted and offered to tax in earlier years. 2. You have claimed Rs. 18,11,52,776 as deduction under 80IA of the Act for the year. In this regard please give following information. a) Which undertaking/enterprise is claiming the deduction, its location and address, what is the 'eligible business' of undertaking, give a detailed note. b) Give the copy of agreement the enterprise entered with the authorities referred in s. 80IA(4)(b) c) Give infrastructure fa....
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....urpose of 115JB working. 9. Dividend from M/s Adani Global Ltd Rs. 4559363 has not been offered to tax. Explain as to how the dividend received from non-resident company is exempt from tax in India. 10.Company received Rs. 141.61 crores on redemption of investments which include Rs. 710445 towards exchange rate difference (gain). Please explain as to why this amount should not be added to income. If it has already been accounted, please give details. 11.You have disallowed only Rs. 16855490 out of total prior period expenses of Rs. 2,19,15,076. Explain as to why the remaining amount of Rs. 5353722 should not be disallowed and added to income as this expenditure also does not relate to the present year. 12.What is Currency Swap. You have charged Rs. 6.04 crores of Currency Swap losses to P & L account. Please explain as to why the amount should not be disallowed and added to income. 13.Please see annexure XI to 3CD report. Following amount covered by section are unpaid Bonus unpaid Rs. 382978 Interest on buyers credit Rs.349685 Interest on LC Rs.209599 Please explain as to why these amounts should not be disallowed and added to income un....
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.... the purchases. 22.Company has received Rs. 116.52 crore as interest from the loans advanced to Adani Infrastructure and Developers Pvt Ltd but no interest was received from Vyom Trade Link Pvt Ltd and Adani Retail Ltd. Please give rate of interest charged from Adani Infrastructure and Developers Pvt Ltd. Also give account statements of Adani Infrastructure and Developers pvt Ltd and Vyom Trade Link Pvt Ltd in your books. 23.Please give details foreign exchange received and foreign exchange paid and gross foreign exchange gain/loss. Please give exchange rate fluctuation which is adjusted against any assets during the year. Also give details of exchange rate fluctuation charged to P & L account. Please give details of interest paid outside India on any LC/loan and tax deducted thereon as per section 195 of the Act. 24.Please give details of shareholdings of directors having more than 10% voting rights and give their ledger account for the year. 25.Please give details of term loans and working capital loans (7166.36 cr) taken like bank (branch, loan account number, address) nature of loan, copy of the loan sanction letter and the details of the securities offered to the b....
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....ket rates. 37.Please clarify whether all the disallowances quantified by the auditor in various columns of form 3CD and Annexures A to G of form 3CD of Audit Report have been disallowed by you in computation. If not please give details and reasons. 38.Please give details of premium paid, losses on settlements, and provision for losses for cash flow hedges in respect of derivative contracts which have been charged to P & L account, prefer notes A(t)] 39.Please give details of all brought forward losses available for set off as per your claim made in the returns and as per assessments completed by the department in the relevant years. 40.Please give following on a CD or DVD. a) all ledger accounts of income and expenditure in excel format b) all quarterly returns in forms 26Q and 27Q (and form 27A for each quarterly return in hard copy)" Learned Authorized Representative before us drew specific attention to the page no.2 of said compilation, wherein Assessing Officer vide query no.12 made certain enquiry touching issue at hand, which reads as under: "12. What is Currency Swap. You have charged Rs. 6.04 crores of Currency Swap losses to P&L account. Please expl....
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....nly in case the enterprise is having underlying as foreign currency denominated loans both at the time of entering into transaction as well as at the time of maturity of transaction. (Emphasis provided) To summarise, the company has entered into swap contracts for the underlying being foreign currency denominated loans taken for the purpose of global trading business of the assessee company as is evident on perusal of sample copies of contracts with banks and notes forming part of Schedule - Secured loans being part of the Balance sheet. Since, the assessee company has entered into currency swap contracts for working capital loans which is pre-requisite for the dynamic business of export and import of commodities, the loss of Rs. 6.04 Crores being incurred in respect of circulating/working capital is an allowable expense u/s 37 of the IT Act as is held in various judicial pronouncements. The assessee company places reliance on the landmark decision in this context of the Hon'ble Supreme Court in the case of Sutlej Cotton Mills Ltd Vs C1T reported in 116 ITR 1 (SC).The relevant part of head note of the said decision reads as under: "Whether where profit or loss arises to a....
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....- Whether an enterprise has to report outstanding liability relating to import of raw material using closing rate of foreign exchange and any difference, loss or gain, arising on conversion of said liability at closing rate should be recognized in profit and loss account for reporting period -Held, yes" Further, the loss of Rs. 1.23 Crores is incurred in, respect of hedging transactions in commodity derivatives entered into on commodity exchanges. On perusal of details submitted to your good self and Annexure XVII of the Tax Audit Report, it is evident that the assessee company deals in various agro products viz pulses, rice, sugar, soyabean oil etc and to hedge against the fluctuation in the price of agro products, the assessee company entered into commodity derivatives transactions in the year under consideration. Since, the loss of Rs. 1.23 Crores is incurred on derivative contracts to hedge against the fluctuation in the price of agro products which is traded by the assessee company, the said hedging loss being realized trading expenditure is allowable u/s 37 of the IT Act in view of various judicial pronouncements. (17) The assessee company has incurred Rs. 2,36,124 towa....
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....ous banks along with nature of loan/credit facility is submitted herewith. (Annexure-5) The e-TDS returns evidencing TDS deducted u/s 195 of the IT Act on said loan/credit facility is already submitted vide point no 40 of our earlier submission. (25) In continuation of details submitted in respect of interest on term loans, we submit herewith the various dates of payment of interest on buyers's credit and local LC. We may submit that the assessee company has already disallowed, the said interest expense as disclosed in Annexure XI of the tax audit report, in the return of income. (Annexure-6) (26) The block of asset wise vouchers and invoices evidencing addition/acquisition to fixed assets are submitted herewith for your good selfs verification (Annexure-7) On perusal of the said details, it is evident that the major addition is in the block of vehicles, computers, furniture fixtures etc which is put to use as soon as they are acquired as is evident on perusal of the details submitted herewith. Further, the assessee company submits that it is having an in house internal audit department and external auditors who do statutory audit as well as tax audit and therefore, the d....
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.... submitting herewith the invoices raised by MPSEZ on the asssessee company along with invoice raised by MPSEZL on Hindustan Zinc Ltd and PEC Ltd as comparables. Further, the assessee company has entered into transactions for purchase of ground nut oil and purchase of soyabean meal. We are submitting herewith invoice raised by AWL on the assessee company along with ledger account of vendor of AWL who has raised invoice on AWL evidencing back to back purchase price for the said prices. Further, the assessee company has purchased cut & polished diamonds from Aditya Corpex Pvt Ltd. Please find attached herewith the invoice raised by Aditya Corpex Pvt Ltd on the assessee company and invoice raised on Anand Trade Movers (Guj) Pvt Ltd by Aditya Corpex Pvt Ltd as a comparable transaction. (Annexure-10) On perusal of above transactions coupled with party wise comparables provided by us, it is evident that the assessee has entered into transactions with its related parties at prevalent market price. (38) The details of loss in respect of cash flow hedges in respect of derivative contracts as referred to in Note no A(t) are already submitted vide point 23 herein above and hence, the sam....
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....T while passing the order has not properly appreciated the facts and law and concluded that no such inquiry has been conducted by Assessing Officer. According to him Assessing Officer simply accepted the claim of assessee and failed to make any inquiry. So far as the inquiry on the issue involved made by Assessing Officer is concerned, Assessing Officer made enquiries vide its letter dated 23.08.2001 u/s.142(1) as discussed above. Assessee has replied the same in detail vide its reply dated 29/11/2011 as discussed above. So it is not appropriate to allege that Assessing Officer has made no enquiry or insufficient enquiry. We find that Hon'ble Gujarat High Court in case of Commissioner of Income tax-I vs. Amit Corpn. (2012) 21 Taxman.com 64 (Guj.) has held that Assessing Officer while framing assessment order is supposed to call all record of the assessee and having perusing the same order is passed then assessment order could not be revised in exercise of revisional power u/s.263. Even in case before us, we find that notice dated 23.08.2011 issued by the Assessing Officer u/s. 142(1), wherein Assessing Officer has almost raised 40 issues and on each of the issue, assessee has repli....
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....wable expense u/s. 37 of the Act as held in various judicial pronouncements. Hon'ble Supreme Court in the case of Sutlej Cotton Mills Ltd Vs C1T reported in (1979) 116 ITR 1 (SC).The relevant part of head note of the said decision reads as under: "Whether where profit or loss arises to an assessee on account of appreciation or depreciation in value of foreign currency held by him, on conversion into another currency, such profit or loss would ordinarily be trading profit or loss if foreign currency is held by assessee on revenue account or as a trading asset or as part of circulating capital embarked in business - Held, yes - Whether, however, if foreign currency is held as a capital asset or as fixed capital, such profit or loss would be of capital nature - Held, yes " 4.7 As stated above, complete details and break-up of aforesaid Currency Swap Loss alongwith a sample contract with Barclays Capital formed part of Annexure-I to the aforesaid letter dated 29th November, 2011. The Assessing Officer considered all the relevant issues during course of assessment proceedings and various replies and explanations filed on behalf of assessee-company and having duly considered vi....
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....eculative transaction" means a transaction in which a contract for the purchase or sale of any commodity, including stocks and shares, is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity or scrips: Provided that for the purposes of this clause- (a) a contract in respect of raw materials or merchandise entered into by a person in the course of his manufacturing or merchanting business to guard against loss through future price fluctuations in respect of his contracts for actual delivery of goods manufactured by him or merchandise sold by him; or (b) a contract in respect of stocks and shares entered into by a dealer or investor therein to guard against loss in his holdings of stocks and shares through price fluctuations; or (c) a contract entered into by a member of a forward market or a stock exchange in the course of any transaction in the nature of jobbing or arbitrage to guard against loss which may arise in the ordinary course of his business as such member; o] (d) an eligible transaction in respect of trading in derivatives referred to in clause 35[(ac)] of section 236 of the Securities Contracts (Regulation) ....
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....aid proviso does not contain anything to provide for an exception on account of hedging contracts in respect of currencies whereas it specially covers raw material, merchandise, stock and shares. It shows that legislature was clear in its mind that since the word "commodity" itself cannot take in any currency as such, there can be no question for providing an exception in that regard in the proviso. 4.11 We find that ITAT Chennai Bench in case of DCIT vs. Patersons Securities Pvt, Ltd. (127 ITD 386) has held as under: "3. We have heard the rival submissions, the available material on record and have also carefully treated through the relevant provisions of the Act and related precedents thereof. Before we venture to decide the controversial issue, we have to understand as to what exactly derivative means and what is exact meaning of transaction in respect of trading in derivative insofar as income-tax is concerned. After clearly understanding the actual legal meaning of the derivative trading vis-a-vis the speculative transaction, we cannot resist ourselves to arrive at the same conclusion on which the Learned CIT(A) has actually arrived. A derivative is a financial instrumen....
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....on of the Bombay High Court, the assessee was in the business of export of cotton. The assessee had entered into forward contract with banks in respect of foreign exchange. Some of these contracts could not be honoured for which the assessee had to pay Rs. 13.50 lacs which was debited to the profit and loss account. The assessee claimed the sum as business loss. Revenue was of the opinion that the loss was speculative in nature. Bombay High Court following the decision of the Calcutta High Court in the case of Soorajmull Nagarmull [supra) held that the expenditure would not be covered under section 43 [5) of the Act as speculative transaction. It was observed as under: "The assessee was not a dealer in foreign exchange. The assessee was a cotton exporter. The assessee was an export house. Therefore, foreign exchange contracts were booked only as incidental to the assessee's regular course of business. The Tribunal has recorded a categorical finding to this effect in its order. The Assessing Officer has not considered these facts. Under section 43(5) of the Income-tax Act, "speculative transaction" has been defined to mean a transaction in which a contract for the purchase or....
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....o does not apply to transactions by way of currency swap in foreign currency. In the result, loss on account of such contracts, entered into for the purpose of hedging, is deductible as business expenditure. According to us, Assessing Officer has adopted legally tenable view in its facts and circumstances though not discussed specifically. 4.13 The normal practice with department is that assessment order contains detailed discussion only on such issues which are decided against assessee and issue which are decided in assessee's favour do not contain any much discussion or any discussion in the assessment order. In such situation, it is not appropriate for Commissioner to invoke his jurisdiction u/s. 263 of the Income Tax Act, with a view to reverse the completed assessment order on alleged ground that such assessment was erroneous and prejudicial to the interest of revenue. To sum up, we find that assessment order was passed after thorough scrutiny and after due application of mind on relevant issues on the point. Claim of currency swap loss of Rs. 6,04,00,000/- was specifically inquired into during the course of the assessment proceedings and Assessing Officer raised all releva....
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....to the interests of the Revenue unless the view taken by the Income-tax Officer is unsustainable in law. The assessee-firm had filed its return of income disclosing a net loss of Rs. 2,777 in the business of purchase and sale of ornaments and jewellery. The Income-tax Officer issued notices under sections 143 (2) and 142(1) of the Income-tax Act along with the requirement letter. After considering the material produced by the assessee and the explanation offered, the Income-tax Officer framed the assessment determining the total income at Rs. 32,900. The Commissioner of Income-tax held that the order was erroneous and prejudicial to the interests of the Revenue, in so far as the Income-tax Officer had not carried out any investigation either while adding certain amounts in the total income or while accepting the assessee's explanations on the various points. The Tribunal set aside the order of the Commissioner of Income-tax. On a reference: Held, that the finding of fact by the Tribunal was that the assessee had produced relevant material and offered explanations in pursuance of the notices issued under section 142(1) as well as section 143(2) of the Act and after conside....
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.... mind to the relevant material and facts, although such application of mind was not discernible from the assessment order. The Tribunal held that the Commissioner in proceedings under section 263 also had all these details and material available before him, but had not been able to point out defects conclusively in the material, for arriving at a conclusion that particular income had escaped assessment on account of non application of mind by the Assessing Officer. The Tribunal was right and the order of revision was not valid." In above case, the Hon'ble Delhi High Court has relied on its earlier decision in case of CIT vs. Sunbeam Auto Ltd., 332 ITR 167 has observed as under: ". . . . As noted above, the submission of learned counsel for the Revenue was that while passing the assessment order, the Assessing Officer did not consider this aspect specifically whether the expenditure in question was revenue or capital expenditure. This argument predicates on the assessment order, which apparently does not give any reasons while allowing the entire expenditure as revenue expenditure. However, that by itself would not be indicative of the fact that the Assessing Officer had n....
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....r and above the capital account balance was taxable as long term capital gain in the hands of the assessee. The CIT in para 13 of his order has stated that the assessee is liable to pay capital gain on the amount received by her. 6.2 According to the concerned CIT, the contention of the assessee that the amount received by her is towards her share in the assets of the firm including the goodwill was not found correct. The CIT has mentioned that firstly the entire transaction has been routed in a manner to avoid tax. It was pointed out that M/s. Lesma Ltd., a company incorporated in Cyprus invested Rs. 67.09 Crs. in a company called Sanghavi Foods Pvt. Ltd. The share capital of Sanghavi Foods Pvt. Ltd. was increased from Rs. 1.33 Crs. to Rs. 2.66 Crs. and the shares were issued at a premium of Rs. 67.09 Crs. Later on, Sanghavi Foods Pvt. Ltd. invested Rs. 52.42 Crs. in M/s. Deepak Foods and out of the said amount Rs. 21.52 Crs. was withdrawn by the assessee which is subject matter of tax as dealt by the concerned CIT above. 6.3 The CIT has stated that the amount of goodwill has been decided on an arbitrary basis without recognizing the principles of natural justice. He has ref....
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....us partnership firms , retired from the partnership firm M/s Raviraj Associates w.e.f. 31.3.2007, relevant to the assessment year 2007-08, vide deed of retirement of the same date. He was a partner to the extent of 37.5% of the shares and was paid Rs. 54,59,0837- over and above the balance in his capital account. The assessee claimed this amount as capital receipts not liable to tax. The Assessing Officer, however, taxed the said amount as long term capital gain. The Assessing Officer derived support from a decision of the Pune Bench of the Tribunal in the case of Shevantibhai C. Mehta v. ITO 83 TTJ 542 (Pune). The assessee took up the matter in appeal before the Commissioner of Income-tax (Appeals). 3. Before the Commissioner of Income-tax (Appeals), assessee relied on a subsequent decision of our coordinate Bench in the case of Mr Riyaz A Shaikh v. ITO vide ITA No 352/PN/06 dated 29.10.2010, wherein the Tribunal held that amounts received by the partner on his retirement are exempt from capital gains tax. The Commissioner of Income-tax (Appeals) has since deleted the impugned addition and against this decision, the Revenue is in appeal before us. 4. The learned departmental....
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....der section 45 of the Act. Further, the learned counsel for the appellant has correctly pointed out that the decision of the Hon'ble Bombay High Court in Tribhuvandas G Patil (supra) followed in the case of NA Mody (supra) has been reversed by the Hon 'ble Supreme court in the case of Tribhuvandas G Patel reported in 236 ITR 515 (SC) on this aspect of the matter. In fact, the Hon'ble Bombay High Court in a recent decision in the case of Prashant S Joshi (supra) has noted the aforesaid legal position. In this circumstances the reliance placed by the authorities below on the judgment of the Hon 'ble Bombay High Court in the case of Prashant S Joshi (supra) has also noted the omission of section 47(ii) of the Act and insertion of section 45(4) of the Act with effect from 1.4.1988. Considering the entirety of the legal position, it has been affirmed by the Hon'ble High Court that amounts received by the partner on his retirement, are exempt from capital gains tax. In this view of the matter, we find it appropriate to allow the claim of the assessee and accordingly the order of the CIT(A) is set aside. The AO is directed to delete the impugned addition. Thus, in Grou....
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....in the proposed question of law'' Again, nothing contrary was brought to our knowledge on behalf of revenue with regard to development on the issue. We find that the claim made by the assessee is correct. The CIT has relied upon the decision in the case of Shevantibhai C. Mehta (supra) which was considered in the case of Rajnish Bhandari (supra) inter alia held that the amount received on retirement from partnership is not taxable. Secondly, the Hon'ble Bombay High Court in the case of Riyaz Shaikh (supra) has also affirmed that the amount received by a partner at the time of retirement is not taxable. Thus, considering the recent decisions of Jurisdictional Bombay High Court and ITAT, Pune as discussed above, the order of Assessing Officer cannot be said to be erroneous as to be prejudicial to the interest of revenue to invoke the provisions of section 263 of Act. 6.7 Regarding the contention of CIT that the entire transaction was an arranged transaction. According to him, the amount received by the assessee as goodwill was not correct since the goodwill of M/s. Deepak Foods was much less. The copy of the balance sheet of Deepak Foods for F.Y. 2007-08 has been placed....
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.... income from other sources, simply because a receipt is not a capital gain chargeable to tax u/s.45. One should not jump to the conclusion that the receipt in question is not a capital receipt at all. There can be capital receipts which are not chargeable to tax u/s.45 of Act. Merely because the receipt in question is not taxable as a capital gain it could not be concluded that the impugned receipt is a revenue receipt chargeable to tax as income from other sources. This view is fortified by the decisions Mumbai Bench in the case of Niyati B Yodh [4 SOT 941 (Mum)], wherein, the payment received by legal heir of tenant under a tripartite agreement between such legal heirs, landlord and purchaser for handing over peaceful possession to the purchaser being capital receipt could not be brought to tax as income from other sources. The similar view has been expressed in the case of CIT Vs. Smt. T.P. Sidhwa (1982) 133 ITR 840 (Bom), wherein it was held that the income from house property earned by one who was not owner was held not assessable under the head income from other sources. The mere fact that rent received in the absence of ownership could not be brought to charge u/s.9 would no....
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....y by Assessing Officer. Even then CIT has taken adverse view. According to CIT, view adopted by Assessing Officer does not suit to him CIT which is not justified. We also find that Hon'ble Gujarat High Court CIT vs. R.K. Construction Co. 313 ITR 65 (Guj.) has held as under: "Held, dismissing the appeal, that since all the necessary details were furnished to the Assessing Officer, there was no reason for the Commissioner to invoke the revisional jurisdiction under section 263 of the Act. The Assessing Officer had taken a particular view on the basis of the evidence produced before him. On the basis of the evidence before the Assessing Officer and materials which were collected by the Commissioner in revisional proceedings, the Commissioner had taken a different view. However, in the revisional proceedings under section 263. it was not open for the Commissioner to take such a different view. There was nothing on record to suggest that the view taken by the Assessing Officer was unsustainable in law." Hon'ble Delhi High Court in case of CIT vs. DLF Ltd., 350 ITR 555 (Del.). held that It is not mere prejudicial to the Revenue or a mere erroneous view which can be revised, under s....
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.... with respect to the issue under consideration and the same were also replied by the assessee and on receipt of the replies accepted the claim of the assessee. We further find that H'ble Apex Court in the case of CIT vs. Max India Ltd. (2007) 295 ITR 282 (SC) has held that where two views are possible and the ITO has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of Revenue, unless the view taken by the ITO is unsustainable in law. It is a generally noticed that during the course of assessment proceedings, the AO examines numerous issues and generally, the issues which are accepted do not find mention in the assessment order and only such points are taken note of on which the assessee's explanations are rejected and additions/disallowances are made. In such a situation, we are of the view that provisions of s. 263 cannot be resorted to and for which we draw support by the decision of H'ble Bombay*High Court in the case of Gabriel India Ltd (supra). We also draw support from the decision of H'ble Delhi High Court in the case of CIT vs. Honda Sial Power 333 ITR 547 (Del), where it has been held ....