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2023 (3) TMI 756 - AT - Income Tax
Revision u/s 263 - income surrendered during the survey - As per CIT why u/s 115BBE a higher rate of tax should not be imposed on the surrendered income? - HELD THAT:- In the facts of the present case, information from the assessee on the queries raised by the AO have both moved to and fro through the ITBA portal and thus, what enquiries were raised by the AO and what responses were made by the assessee is a fact not open to manipulation and is available. On going through the submissions and the facts on record, we find that these queries raised and replies made were always available to the ld. PCIT also.
No case has been built referring to any material how the order can be said to be erroneous on facts. The Revisionary powers in the facts of the present case is clearly an attempt to re-look at the very same information. This action as per settled legal position is barred under the Revisionary powers. The view taken by the AO after carrying out due and relevant enquiries and considering the responses of the assessee is not shown to be an erroneous view.
There are many orders of the Co-ordinate Benches supporting the view taken by the AO. At this stage, to argue that this was not the business income of the assessee and was amenable to tax under the deeming head and thus, Section 115BBE de-hors facts cannot be accepted. On facts, a conscious and reasonable possible view has been taken by the AO. Thus, merely because the view is not to the liking of the ld. PCIT by itself cannot make the order passed by the AO as an erroneous order. We find that the reliance placed upon by the ld. CIT-DR on the decision of the jurisdictional High Court in the case of Kim Pharma (P) Ltd. (2013 (1) TMI 495 - PUNJAB AND HARYANA HIGH COURT] is misplaced.
On a consideration of the peculiar facts, circumstances and position of law, we find that the impugned order at best can be said to attempting to make out a case of a debatable view, however, even then the order cannot be upheld. Revenue has failed to point out the error in the order accepting the surrendered income under the stated heads and hence, no prejudice can be said to be caused in the absence of any error in the order pointed out. We may refer here to the decision in the case of PARASHURAM POTTERY WORKS CO. LIMITED 1976 (11) TMI 1 - SUPREME COURT] - The Revisionary Authority cannot seek to re-look at the very same information in order to arrive at a different view. The error and the prejudice caused has to be set out in the order. A valid order after due enquiries has been passed. The power cannot be exercised arbitrarily. The argument that the assessee is still free to argue before the AO in case the impugned order is upheld, we find cannot be accepted. Accordingly, we direct that the impugned order be quashed. Appeal of the assessee is allowed.