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2016 (11) TMI 714 - BOMBAY HIGH COURTRevision u/s 263 - transfer of development rights and warranty expenses - Held that:- The impugned order of the ITAT records findings of Assessing Officer in detail from which it is evident that the Assessing Officer applied his mind to the above claim and on the basis of the facts before him, came to the conclusion that an amount of ₹ 5.86 Crores out of ₹ 41 Crores received could alone be subjected to the tax as income during the subject assessment year. The balance amount ₹ 35.14 Crores has to be treated as deposit as the same is subject to being refunded in the absence of the environmental clearance. Thus, we find that the Assessing Officer has taken a view/formed an opinion on the facts before him and such a opinion cannot be said to be an erroneous as it does not proceed on the incorrect assumption of facts or law and the view taken is a possible view. Therefore, as held by the Apex Court in Malabar Industrial Co. Ltd Vs. Commissioner of Income Tax, [2000 (2) TMI 10 - SUPREME Court ] where two views are possible and the Income Tax Officer has taken one view with which the Commissioner of the Income Tax does not agree, cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income Tax Officer is itself unsustainable in law. - Decided against revenue Warranty expenses claimed by the assessee - Held that:- It is clear that if the Assessing Officer is satisfied with the response of the assessee on the issue and drops the likely addition, it cannot be said to be non-application of mind to the issue arising before the Assessing Officer. In fact this issue was a subject matter of the consideration by this Court in the Commissioner of Income Tax-8 V/s. M/s. Fine Jewellery (India) Ltd. [2015 (2) TMI 732 - BOMBAY HIGH COURT ] an identical submission made on behalf of the Revenue was negatived in the context of exercising of power under Section 263 of the Act to hold that if a query is raised during the assessment proceedings and responded to by the assessee, the mere fact that it has not been dealt with in the assessment order would not lead to a conclusion that the Assessing Officer has not applied his mind to the issues.- Decided against revenue
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