2022 (8) TMI 1235

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.... I.T.A No.775/Kol/2015 for the assessment year 2009-2010. The revenue has raised the following substantial questions of law for consideration :- "Whether on the facts and circumstances of the case and in law, the learned Income Tax Appellate Tribunal "A" Bench erred in quashing the order of the Principal Commissioner of Income Tax -3, Kolkata passed under section 263 of the Income Tax Act, 1961 on the ground that the revisionary power were invoked by the Principal Commissioner of Income Tax-3, Kolkata merely on the ground of difference of opinion with the assessing officer in determining the nature of income of the settlement amount received by the assessee company from M/s. Danone Group, Singapore ?" We have heard Mr. Prithu Dudhoria, ....

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....e adjudicatory forums. In other words, neither Danone admitted to have committed any breach of trade mark of the assessee nor the assessee agreed to forego any of its rights in respect of the brand name and logo of 'TIGER'. 11. Taking strength from this factual position, Learned AR submitted it cannot be stated that either of the parties has given any concession to the other in consideration of which such payment was made by Danone to the assessee and only as a consideration for the assessee to give up their right to sue the Danone paid this amount. He further submitted that when the matter was argued before the Assessing Officer basing on facts and law, the Assessing Officer considered all these factors and has reached a view that the i....

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....ns raised by the assessee and while brushing aside their submissions in respect of the capital receipt and business income AO preferred to take the view that such an amount is to be taxed under the head capital gain. It could be seen from the submissions of the assessee before the AO, the assessee placed reliance on so many decisions in respect of their contentions to object the treatment of the amount either as business income or as capital gain. Having considered all these facts and also the law laid down in such decisions, the AO consciously reached a conclusion that the income is to be treated as capital gain but not as either capital receipt or business income. This is one of the probable views that could have validity be taken. By no ....

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....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 which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law." Further, the Hon'ble Supreme Court in the case of Pr. CIT vs. Canara Bank Securities Ltd., S.L.P.(C) No. 25651 of 2019, by order dated 14th Oct....