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2014 (1) TMI 928 - ITAT KOLKATARevision of order u/s 263 of the Act – Assessment revised u/s 143(3) r.w section 153A of the Act – Term loan treated as deemed dividend u/s 2(22)(e) of the Act – Held that:- The details of loans advanced were available before the AO and he has examined these details during those assessments - the AO has not expressed the acceptance of these loan details in so many words in the assessment order or search assessment order, that does not make any difference that the AO has not gone into the details of these loans - the CIT order passed u/s. 263 of the Act wants to change the opinion and this is not permissible in law as decided by the Supreme Court in the case of Malabar Industrial Co. Ltd. v. CIT [2000 (2) TMI 10 - SUPREME Court] - An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous - In the same category fall orders passed without applying the principles of natural justice or without application of mind - The phrase ''prejudicial to the interests of the Revenue'' is not an expression of art and is not defined in the Act. The scheme of the Act is to levy and collect tax in accordance with the provisions of the Act and this task is entrusted to the Revenue - If due to an erroneous order of the Income-tax Officer, the Revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the Revenue - 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 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 interests of the Revenue unless the view taken by the Income-tax Officer is unsustainable in law – the order of Revision u/s 263 set aside – Decided in favour of Assessee.
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