TaxTMI 
TaxTMI 
2021 (2) TMI 670
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....ction 263 of the Act though provisions of S.263 are not applicable to the facts of the case and in law. 2. On the facts and circumstances of the case, the Principal CIT -25, Mumbai has wrongly held that the order is erroneous and prejudice to the interest of the revenue though the Assessing Officer has applied his mind and passed order after considering the full facts available on records. The Principal CIT- 25, Mumbai has no jurisdiction to pass an order on account of change of opinion only. 3. The Principal CIT-25, Mumbai, failed to appreciate that: a) Principal CIT - 25 has no power to revise order merely because Principal CIT is of other view or in his opinion order passed has different view than that of AO. b) Principal CIT - 25 cannot set aside order to carry out an enquiry/verification, he has to decide what is to be done. The Principal CIT cannot set aside the case to the Assessing Officer for further enquiries or to decide whether the findings recorded are erroneous without a finding that the order is erroneous and how that is so. A mere setting aside to the Assessing Officer implies that the CIT has not decided whether the order is erroneous but has directed the A....
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....om cooperative banks. The assessee is a cooperative society. The assessee, vide reply dated 16/08/2017, relying upon the decision of this Tribunal in Lands end Co- operative Housing Society Ltd. (ITA No.3566/Mum/2014 dated 15/01/2016), defended the deduction so claimed. The attention was drawn to the fact that the said decision already considered the decision of Hon'ble Apex Court rendered in Totgars Co-operative Sale Society Ltd. V/s ITO (2010 322 ITR 283) but the same was found to be rendered in the context of Sec.80P(2)(a)(i) and not in the context of Sec. 80P(2)(d) and hence distiniguishable. 5. However, vide letter dated 13/09/2017, the assessee was again show-caused as to why the interest so derived was not to be disallowed. The same was duly responded to by the assessee vide submissions dated 16/10/2017 wherein the stand as stated above was reiterated. After considering the assessee's replies and submissions, the assessment was framed on 08/11/2017 wherein Ld. AO chose to accept the returned income filed by the assessee. 6. Upon perusal of above factual matrix, it is quite evident that a specific query was raised by Ld. AO during original assessment proceedings regarding d....
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....hat the issues were not inquired to by Ld. AO which made the order erroneous as well as prejudicial to the interest of the revenue. Accordingly, the assessment order was set aside with a direction to Ld. AO to pass a fresh assessment order considering the issues raised in notice u/s 263. Aggrieved as aforesaid, the assessee is in further appeal before us assailing invocation of revisional jurisdiction u/s 263. 10. Upon careful consideration, as already noted by us in para-6 above, a specific query was raised by Ld. AO during original assessment proceedings regarding deduction claimed u/s 80P(2)(d) which was duly responded to by the assessee. The decision of this Tribunal rendered in Lands End Co-operative Housing Society Ltd. (ITA No.3566/Mum/2014 dated 15/01/2016) was brought to the notice of Ld. AO in support of the deduction. The Ld. AO was clinched with the issue of deduction u/s 80P(2)(d) and assessee's claim was allowed after due application of mind and a view was already taken in the matter. Therefore, the allegation of Ld. Pr. CIT that the deduction was allowed without verification and necessary inquires is bereft of any merits. We find that it not a case of 'no inquiry' b....
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....taken by Ld.AO was one of the possible view which could not be said to be contrary to law. Therefore, the assessment order could not be held to be erroneous and prejudicial to the interest of revenue which would require revision u/s 263. 14. The Hon'ble Supreme Court in Malabar Industrial Co. Ltd. V/s CIT (243 ITR 83 10/02/2000) has held that the phrase 'prejudicial to the interests of the revenue' has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the revenue. For example, 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 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. The said principal has been reiterated by Hon'ble Court in its subsequent judgment titled as CIT V/s Max India Ltd. (295 ITR 282). Similar principal ha....