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2016 (7) TMI 408 - ALLAHABAD HIGH COURT

2016 (7) TMI 408 - ALLAHABAD HIGH COURT - TMI - Appeal admitted on following substantial questions of law to the following effect : - 1. Whether on the facts and circumstances of the case and is law, the Hon'ble ITAT was justified in quashing the order u/s 263 of the I.T. Act and confirming the order u/s 143(3) of the Income Tax Officer, 3(2) Lucknow? - 2. Whether on the facts and circumstances of the case and in law, the Hon'ble ITAT was justified in authenticating that the Development .....

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Tax Appeal No. 71 of 2016 - Dated:- 5-7-2016 - Hon'ble Amreshwar Pratap Sahi And Hon'ble Dr. Vijay Laxmi, JJ. For the Appellant : Alok Mathur ORDER Heard Sri Alok Mathur learned counsel for the appellant. He has relied on Apex Court judgment in the case of Malabar Industrial Co. Ltd. vs. Commissioner of Income Tax reported in 2000 Vol. 2 SCC page 718. Para nos. 6 to 10 of the said judgment is extracted herein under : 6. A bare reading of this provision makes it clear tha the prerequisit .....

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nue or if it is not erroneous but is prejudicial to the revenue- recourse cannot be had to section 263(1) of the Act. 7. There can be no doubt that the provision cannot be invoked to correct each and every type of mistake or error committed by the assessing officer, it is only when an order is erroneous that the section will be attracted. An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category fall orders .....

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17/1974 : [1975] 98 ITR 422 (KAR), the High Court of Bombay in CIT v. Gabriel India Ltd. MANU/MH/0220/1993 :[1993] 203 ITR 108 (Bom) and the High Court of Gujarat in CIT v. Smt. Minalben S. Parikh MANU/GJ/0177/1994 :[1995] 215 ITR 81 (Guj) treated loss of tax as prejudicial to the interests of the revenue. 9. Mr. Abraham relied on the judgment of the Division Bench of the High Court of Madras in Venkatakrishna Rice Company v. CIT MANU/TN/0138/1981 :[1987] 163 ITR 129 (Mad) interpreting "pre .....

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terpretation is too narrow to merit acceptance. The scheme of the Act is to levy and collect tax in accordance with the provisions of the Act and this task is entrusted it the revenue. If due to an erroneous order of the Income Tax Officer, the revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the revenue. 10. The phrase 'prejudicial to the interests of the revenue' has to be read in conjunction with an erroneous order passed by the .....

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he view taken by the Income Tax Officer is unsustainable in law. It has been held by this court that where a sumnot earned by a person is assessed as income in his hands on his so offering, the order passed by the assessing officer accepting the same as such will be erroneous and prejudicial to the interests of the revenue. Rampyari devi Saraogi v. CIT MANU/SC/0177/1967 :[1968] 67 ITR 84 (SC) and in Smt. Tara Devi Agarwal v. CIT MANU/SC/0339/1972 : [1973] 88 itr 323 (SC). Applying the aforesaid .....

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