TMI Blog2010 (9) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... quiry and without applying the correct legal provisions. In view of Max India Ltd. (2007 (11) TMI 12 - Supreme Court of India) and Malabar Industrial Co. Ltd. (2000 (2) TMI 10 - SUPREME Court) when an ITO adopted one of the courses permissible in law and it has resulted in loss of revenue or where two views are possible and ITO has taken one view with which the learned CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the ITO is unsustainable in law. In favour of assessee. - ITA Nos. 325 TO 330(JP.) OF 2010 - - - Dated:- 16-9-2010 - SHRI I.C. SUDHIR, AND SHRI N.L. KALRA, JJ. Appearances by: Shri Rajeev Sogani for the Appellant. Smt. Irina Garg for the Respondent. ORDER Shri I.C. Sudhir, Judicial Member - In all these appeals the assessee has questioned revisional order passed under section 263 of the Act setting aside the assessment order framed under section 153A and 143(3) wherein the AO has accepted the genuineness of the claimed gifts. 2. We have heard and considered the arguments advanced by the parties in view of orders of the lower authorities, material availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from real elder brother Shri Radhey Lal Gupta and cousin brother Shri Gopal Ram Gupta. Copies of gift deeds executed by these donors were produced before the AO. Affirming the gift Shri Radhey Lal Gupta also filed affidavit. Shri Radhey Lal Gupta also filed pension papers to explain the source of gift. He was also summoned under section 131 and appeared before the AO. His statements were recorded by the AO wherein he has accepted the claimed gift. Copy of capital account of assessee reflecting the receipt of gift was also furnished. The learned Authorised Representative submitted that Shri Gopal Ram Gupta died before the assessment proceedings but copy of gift deed executed by him was filed before the AO. His death certificate was also furnished before the lower authorities. In support he referred pp. 1 to 13 of the paper book wherein copies of these documents have been made available. The learned Authorised Representative submitted that during the asst. yr. 2001 02 gift of Rs. 1 lac was received from Shri Gopal Ram Gupta. Gift deed executed by him was furnished before the AO. In this regard he referred pp. 1 and 2 of the paper book. The learned Authorised Representative submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the claimed gift, the assessee had furnished before the AO the copy of gift deed (p. 2 of paper book), affidavit of donor confirming the gift (p. 3 of paper book) and his bank statements (p. 5 of paper book). The learned Authorised Representative submitted further that copy of capital account of assessee reflecting the gift received (p. 7 of paper book) was also furnished. Thus the AO was provided with all the evidence by way of copies of gift deeds, affidavits and bank statements of the donors in support of the claimed gifts and the AO after conducting necessary enquiry have accepted the genuineness of the claimed gifts being satisfied with the submissions of the assessee. Thus it is wrong on the part of the learned CIT to say that AO had not conducted proper enquiry before accepting the genuineness of the claimed gifts to invoke the provisions of section 263 of the Act. He submitted that when two views on a matter are possible and the AO adopts one possible view, then even if there is loss of revenue, the assessment order cannot be said to be erroneous. The learned Authorised Representative submitted further that in respect of gifts no incriminating documents were found durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been done in the present case as has been rightly noted by the learned CIT in her order. The assessment has thus rightly been held by the learned CIT as erroneous insofar as it is prejudicial to the interests of Revenue. The learned Departmental Representative placed reliance on the following decisions : (i) Duggal Co. v. CIT [1996] 220 ITR 456 (Delhi); (ii) CIT v. Active Traders (P.) Ltd. [1995] 214 ITR 583 (Cal.); (iii) Gee Vee Enterprises v. Addl. CIT [1975] 99 ITR 375 (Delhi); (iv) K.A. Ramaswamy Chettiar v. CIT [1996] 220 ITR 657 (Mad.); (v) CIT v. Export House [2002] 256 ITR 603 (P H); (vi) CIT v. Kohinoor Tobacco Products (P.) Ltd. [1998] 234 ITR 557 (MP); (vii) CIT v. South India Shipping Corpn. Ltd. [1998] 233 ITR 546 (Mad.). 7. Having gone through the above decisions in view of the orders of the lower authorities and submissions made by the parties, we find that provisions laid down under s. 263 of the Act can be invoked only if the learned CIT on examination of the record of any proceedings finds that any order passed therein by the AO is erroneous insofar as it is prejudicial to the interests of Revenue. Under the provisions, a CIT after givin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and some have furnished pension papers to support their source of gifts, their relations with the assessee also not in dispute. Under these circumstances, we do not find reason to agree with the allegation of the learned CIT against the AO that AO has completed the assessment on issue without making proper enquiry and without applying the correct legal provisions. The Hon'ble Supreme Court in the cases of Max India Ltd. (supra) and Malabar Industrial Co. Ltd. (supra) has been pleased to hold that when an ITO adopted one of the courses permissible in law and it has resulted in loss of revenue or where two views are possible and ITO has taken one view with which the learned CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the ITO is unsustainable in law. The Hon'ble Bombay High Court in the case of Gabrial India Ltd. (supra) has been pleased to hold that a decision of an AO cannot be erroneous simply because in his order he did not make an elaborate discussion on an issue. In the case of Kanhaialal Jangid (supra) before the Hon'ble Rajasthan High Court, the assessee had filed confirmations of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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