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2014 (12) TMI 679 - AT - Income TaxValidity of revision u/s 263 Invocation of section by Commissioner Held that:- The AO has made an enquiry regarding the claim of depreciation on tangible asset and after considering the relevant agreement under which the assessee had acquired the right for revival of dormant subscribers of RCOM Ltd. - it is not a case of complete lack of enquiry on the part of the AO on the issue of allowing depreciation on intangible asset being business or commercial rights acquired under the agreement for revival of dormant subscribers of RCOM - once the AO has conducted the enquiry and after examination of relevant record as well as contention of the assessee has given a finding then the provisions of section 263 can be invoked by the Commissioner only if the view taken by the AO is not permissible under the law - when the matter was restored back to the file of AO for a fresh consideration after giving reasonable opportunity of hearing to the assessee then it is apparent that the Commissioner has not arrived to a concluding finding that the view taken by the AO is not permissible under the law. The issue of tangible asset being business or commercial right as per section 32(1)(ii) of the Act is a debatable issue - any business or commercial right which is obtained for carry on business with effectiveness is likely to fall or comes within the sweep meaning of tangible asset in AREVA T & D INDIA LTD. Versus THE DEPUTY COMMISSIONER OF INCOME-TAX [ 2012 (4) TMI 79 - DELHI HIGH COURT] it has been held that the term business or commercial right of similar nature has been additionally used under the category of intangible asset referred to section 32(1)(ii) clearly demonstrates that the legislature did not intend to provide for depreciation only in respect of specified intangible asset but also to other categories of intangible assets which were neither feasible nor possible to exhaustively enumerate - the expression any business or commercial rights cannot be restricted to only the six categories of the assets as mentioned in section 32(1)(ii) - it cannot be said that the claim of the assessee and view of the AO is absolutely contrary to law but the issue of allowability of depreciation on intangible asset being business or commercial rights is a debatable issue - once the AO has taken a possible view then the Commissioner is not permitted to invoke the provisions of section 263 merely because he did not agree with the view taken by the AO. Share application money and unsecured loan Held that:- The AO called for financial details of these companies and also examine the parties in order to satisfy himself about the genuineness of the transaction - on the basis of the record available before him, the Assessing Officer accepted the claim of the assessee the Commissioner has not found any fault with the details and records filed by the assessee in support of the claim but has cited the reasons that the Assessing Officer has not conducted the proper enquiry - the assessee has also filed the bank statements of these companies showing the transaction of payment of share premium as well as loans to the assessee - the Commissioner has travelled beyond the jurisdiction as prescribed u/s 263 and the revision order is not sustainable and is set aside Decided in favour of assessee.
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