TMI Blog2016 (11) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... vironmental clearance. Thus, we find that the Assessing Officer has taken a view/formed an opinion on the facts before him and such a opinion cannot be said to be an erroneous as it does not proceed on the incorrect assumption of facts or law and the view taken is a possible view. Therefore, as held by the Apex Court in Malabar Industrial Co. Ltd Vs. Commissioner of Income Tax, [2000 (2) TMI 10 - SUPREME Court ] where two views are possible and the Income Tax Officer has taken one view with which the Commissioner of the Income Tax does not agree, cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income Tax Officer is itself unsustainable in law. - Decided against revenue War ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. whether on the facts and on the circumstances of the case the ITAT is correct in setting aside the order passed by the Commissioner of Income Tax under section 263 of the IT Act, 1961 with regards to transfer of development rights and warranty expenses and holding that the order of AO is not erroneous and prejudicial to the interest of the Revenue with respect to the above item ? 3. For the assessment year 20072008, the respondentassessee filed its return of income declaring total income of ₹ 19.97 Crores. Amongst the issues which arose for consideration during the assessment proceedings were: i) whether the consideration of ₹ 41 Crores received on transfer of development right is to be taxed in the subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In these circumstances, he set aside the assessment order dated 29/12/2009 and directed the Assessing Officer to complete the assessment proceedings in accordance with law as discussed in his order. 5. Being aggrieved, the respondent assessee has carried the issue in appeal to ITAT. The grievance of the petitioner was to the order dated 31/10/2011 of the Commissioner of Income Tax holding that the order dated 29/12/2009 of the Assessing Officer is erroneous and prejudicial to the interest of the Revenue on the following three issues. (a) Consideration received as transfer of Development Right. (b) Warranty expenses and (c) Set off of short term capital loss. So far as issue (a) above is concerned, the impugned order repro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expenses is in appeal. 7. We have considered the rival submissions. With regard to issue (a) i.e. taxability of the transfer of development right, we find that the impugned order of the ITAT records findings of Assessing Officer in detail from which it is evident that the Assessing Officer applied his mind to the above claim and on the basis of the facts before him, came to the conclusion that an amount of ₹ 5.86 Crores out of ₹ 41 Crores received could alone be subjected to the tax as income during the subject assessment year. The balance amount ₹ 35.14 Crores has to be treated as deposit as the same is subject to being refunded in the absence of the environmental clearance. Thus, we find that the Assessing Officer ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onse of the assessee on the issue and drops the likely addition, it cannot be said to be non-application of mind to the issue arising before the Assessing Officer. In fact this issue was a subject matter of the consideration by this Court in the Commissioner of Income Tax-8 V/s. M/s. Fine Jewellery (India) Ltd., Income Tax Appeal No. 296 of 2013 rendered on 03rd February, 2015. In the above case, an identical submission made on behalf of the Revenue was negatived in the context of exercising of power under Section 263 of the Act to hold that if a query is raised during the assessment proceedings and responded to by the assessee, the mere fact that it has not been dealt with in the assessment order would not lead to a conclusion that the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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