2022 (4) TMI 1056

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....rt "the Tribunal"] u/s 253. 2. The short issue under appeal is that, the appellant challenges the revisionary action of the Ld PCIT directing the Ld AO to revise and modify the regular assessment order culminated u/s 143(3). 3. The appellant upstretched both legal grounds as well grounds of merit in the appeal, however before proceeding to adjudication, it is essential to reproduce grounds challenged by the appellant assessee, which are as under; "1. Under the facts and in the circumstances of the case the Learned Commissioner of Income Tax not justified in making an addition of Rs. 1,87,01,808/- through assessee itself made an addition of Rs. 83,44,403/- in computation of income being amount inadmissible to which no consideration was g....

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.... (para 4.12 of CIT's order)" particularly in the circumstances that in most of the decisions higher authorities have followed the instruction." 4. The facts as accentuated from the records of the case pithily are; 4.1 The assessee is a registered commercial co-operative bank, engaged in the business of banking, had for the assessment year [for short "AY"] 2012-2013 filed its e-return on 29/09/2012 declaring the total income of Rs. 14,49,92,887/-. The case of the appellant was selected for scrutiny under CASS and the assessment u/s 143(3) was completed on 21/01/2015 with an addition of Rs. 25,00,000/- dislodging the claim of loss of investment u/s 37(1). 4.2 Not concurring with the action of assessing officer, Ld PCIT invoked the revision....

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....d detailed submissions including the copy of audit report obtained u/s 44AB of the Act and audited financial statement duly accompanied by the requisite explanation in reply to the questionnaire raised by the Ld AO. On a specific query, the appellant also made available the copies of investment valuation, details of amount transferred to Investment Depreciation Reserve Fund [for short "IDRF"], detailed chart of amortisation of premium pertaining to change in investment category etc. Considering those evidential material placed on record and after conducting an enquiry into the claim of the assessee in respect of provision for loss, provisions carried out to IDRF including that of provision for diminution in the value of investment ascended ....

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....Ld departmental representative [for short "DR"] supported the 263 order and by way of alternate submission intreated for reminding back the file to the Ld AO for de-nova consideration for the limited purpose. 6.6 At this juncture, without going into the merits of the case, we a shall first deal with the ground number 4 of the appeals and if the appellant succeeds, then the residual meritorious grounds shall become academic and infructuous. 7. To hit the ball on the head, it will be apt to reproduce the provision of section 263(1)in verbatim as it stood and applicable to the AY under consideration; 7.1 "263. Revision of orders prejudicial to revenue - (1) The Commissioner may call for and examine the record of any proceeding under this....

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....gs without obeying additional dual riders such as;(i) making or causing to be made such enquiry as necessary and(ii) according an opportunity of being heard to the assessee following the principle of natural justice. 7.4 In the light of provision of law, it is of paramount importance to note that, an incorrect assumption of facts or an incorrect application of law or passing an order without application of mind or without applying the principle of natural justice, shall discretely be sufficient to hold the order being erroneous. Albeit the term prejudicial to the interests of the revenue is not at all defined in the Act, but is needs to be understood in its ordinary meaning and it is of wide import and is not confined to mere loss to ex-ch....

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.... principle of natural justice. 8. In the instance appeal, considering the facts of the case extenso, we concede with the contention of the Ld AR that, in support of appellant claim as expounded herein before at para 6, there was indeed unvarying and indistinguishable material placed before both these tax authorities during the course of regular assessment vis-à-vis revisionary proceeding, which in turn demonstrates that, the Ld AO considering the same submission of the assessee carried out enquiry with respect to eligibility of claim, basis of claim and compliance relating thereto(if any) and then finalized the assessment taking one of the plausible view in the light of settled legal position in allowing the deduction u/s 36(1)(viia....