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2019 (11) TMI 1179 - ITAT KOLKATARevision u/s 263 - AO had simply accepted the version of assessee and allowed deduction of provision which is an un-ascertained liability, as well as the same [un-ascertained liability] could not have been allowed by the AO while computing book-profit u/s 115JB - HELD THAT:- CIT has simply made an averment that the assessment order is not in accordance to Explanation 2(c) below Section 263 of the Act, without spelling out which order, direction of CBDT has not been followed by the AO. So we do not countenance such a bald finding of the Ld. Pr. CIT to bring in the deeming provision to hold that the assessment order is erroneous as well as prejudicial to the interest of the revenue. We note that the fault which the Ld. Pr. CIT noted was that the provision of ₹5.75 crores is based on estimation and whether there is any liability for the assessee to complete the flats and whether the liability is ascertained liability or not and since according to the Ld. Pr. CIT it is unascertained liability, ₹5.75 crores should have been added u/s 115JB of the Act. AO had taken note of the issue of provision of ₹5.75 crores claimed by the assessee as deduction and has raised queries and the assessee has duly replied and the AO has accepted the claim of the assessee. Since the provision the assessee claimed is an ascertained liability, there was no question that AO could have disallowed the same neither in the normal computation nor while computing book profit u/s 115JB of the Act. So the AO has discharged his duty as an investigator as well as an adjudicator and allowed the claim which is a plausible view, which cannot at any rate be called as an unsustainable view. So the Ld. Pr. CIT failed to make out a case that the order of AO is erroneous as well as prejudicial to the interest of the revenue, which was a condition precedent for invoking jurisdiction u/s 263 of the Act. Therefore the impugned order of Ld. Pr. CIT is without jurisdiction and null in eyes of law. - Decided in favour of assessee.
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