Pr. Commissioner Of Income Tax v. Suresh

suresh IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.410 OF 2016 Pr. Commissioner of Income Tax-14,Mumbai-400 020Vs.M/s. Lupin Investments P. Ltd.,Mumbai-98 .... Appellant .... Respondent Mr. Suresh Kumar for the Appellant.Ms Vasanti B. Patel for the Respondent. CORAM: S.C. DHARMADHIKARI &B.P. COLABAWALLA, JJ. DATE : SEPTEMBER 03, 2018 P.C: 1.After having heard Mr. Suresh Kumar and Ms Patelat great length and perusing the order under appeal, we do notfind any fault, much less serious legal infirmities in thereasoning of the Tribunal when it sets aside the order of theCommissioner, dated 29-2-2012, and allows the assessee'sappeal there-against. That order was passed under Section 263 Page 1 of 3 suresh26-ITXA-410.2016.docof the Income Tax Act, 1961 and the Commissioner did not havethe aid and assistance of the amendment to the Sectionintroduced with effect from 1-6-2015, namely, the Explanation2. The reasoning in the Tribunal's order is that the AssessingOfficer raised a specific query (Question No.9) during the courseof the assessment. The assessee, on 31-8-2009, filed a detailedexplanation, but the Assessing Officer later on chose not to referto this explanation nor mentioned anything about the waiver ofloan of Rs.27,24,71,386/-. The Tribunal, following a bindingJudgment of this Court in the case of Commissioner of IncomeTax v. Gabriel India Ltd., reported in [1993] 203 ITR 108(Bom.), held that by this alone the Commissioner does notderive the authority and power in law to pass a revisional order.In such circumstances, the recourse to Section 263 of the IncomeTax Act, 1961 was impermissible. Such a finding based on thepeculiar factual position emerging from the record in relation tothe respondent/assessee does not raise any substantial questionof law. That is a possible conclusion and cannot be said to beperverse or vitiated by any error of law apparent on the face of Page 2 of 3 suresh 26-ITXA-410.2016.doc the record. The appeal is devoid of any merit and is dismissed, but without any order as to costs. (B.P. COLABAWALLA, J.) (S.C. DHARMADHIKARI, J.) Digitally signedSureshby SureshJagdishJagdishSajnawatDate:Sajnawat2018.09.0513:38:17 +0530 Page 3 of 3