TMI Blog2014 (6) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Act to set aside a possible view of the matter. It is not that the Tribunal was emphasizing anything on the merits of the claim or that the view taken in Sulzer's case was the one applicable in its entirety on merits. What the Tribunal was emphasizing is when the Assessing Officer has taken a possible view, then section 263 of the Act could not have been invoked and that is how the Tribunal proceeded to set aside the order impugned in the Assessee's Appeal. No attempt was made to show that the Assessing Officer's view was not a possible one. Even otherwise, there was enough material in law to indicate that the legal position is otherwise. In such circumstances, we would not permit Mr Ahuja to argue before us that the present Appeal shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antial question of law and hence Appeal under section 260A of the Act is is maintainable. 3. We are constrained to make the above observations in the light of the peculiar facts of the case. The Assessee before us is a Company incorporated and registered under the Indian Companies Act 1956. It availed of benefit of Sales Tax Deferment Scheme 1989 of the Government of Rajasthan. The Scheme provided for deferred payment of 50 % of Sales Tax liability under the Rajasthan Sales Tax Act upto a maximum period of 11 years. As on 31st January 2005, the Assessee availed deferred Sales Tax loan of ₹ 106.47 crores under the Scheme. The Government of Rajasthan gave option to the units availing benefit under the Scheme to prepay the loan lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal. 5. The Assessee submitted before the Tribunal that the view taken by the Assessing officer could not have been questioned and in the manner done by the Commissioner. The Assessee was essentially aggrieved by invocation of section 263 of the Income Tax Act by the Commissioner. The Assessee submitted that the Commissioner's order be quashed. To support the argument that the view taken by the Assessing Officer is a possible one, the Assessee relied before the Tribunal on an order passed by the special Bench in the case of Sulzer India Ltd. v/s Joint Commissioner of Income Tax, reported in (2010) 42 SOT 457 (Mum)(SB), (ITA Nos.2871 and 2944 of 2007) decided on 10th November 2010. In such circumstances, the Assessee c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Mr Ahuja that the finding of the Tribunal on applicability of section 263 of the Income Tax Act 1961 may be sustained but the Appeal still deserves admission on applicability of section 41(1) of the Act, we are unable to agree with Mr Ahuja. If the Tribunal's order is perused, the Tribunal merely emphasized on the Commissioner that he could not have invoked section 263 of the Income Tax Act in the given facts and circumstances but the Tribunal emphasized the fact that despite the authoritative pronouncement in the case of Malabar Industrial Co. Ltd., the Commissioner has proceeded to exercise his powers under section 263 of the Income Tax Act to set aside a possible view of the matter. It is not that the Tribunal was emphasizing any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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