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Elder IT Solutions Pvt. Ltd. 6, Ground Floor, Nr. Chakala Cigarette Factory, Mumbai 400007. Vs. Commissioner of Income Tax-4, Aayakar Bhavan, Mumbai.
December, 16th 2014
    IN THE INCOME TAX APPELLATE TRIBUNAL "E" BENCH, MUMBAI

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              BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND
                 SHRI B.R. BASKARAN, ACCOUNTANT MEMBER
                               ITA NO.3325/Mum/2014
                              Assessment year: - 2009-10

     Elder IT Solutions Pvt. Ltd.         V Commissioner of Income Tax
     6, Ground Floor,                     s. -4,
     Hanumanta Apartment,                 ` Aayakar Bhavan,
     Bamanwada,                              Mumbai.
     Nr. Chakala Cigarette Factory,
      Andheri (East)
     Mumbai ­ 400007.


     PAN:- AABCE9586F
     Appellant                                  Respondent

             Assessee By                 Shri Arvind Sonde and
                                         Shri Jitendra Sanghvi
             Revenue By                  Shri R. Manjunatha
                                         Swamy

               Date of hearing               12.11.2014
               Date of pronouncement         12-12-2014


                                  ORDER

Per Vijay Pal Rao, JM

     This appeal by the assessee is directed against the revision order
dated 28.3.2014 of Commissioner of Income Tax, passed u/s 263 of the
Income Tax Act for the A.Y. 2009-10. The assessee has raised following
grounds:-
                                            Elder IT Solutions Pvt. Ltd

    "GROUNDS OF APPEALS


    GROUND NO. I:

    l. On the facts and in the circumstances of the case and in law, the
    Hon'ble CIT erred in issuing show cause notice u/s. 263 of the Act
    and later in passing the order u/s. 263 in the name of "Elder
    Infotech Pvt. Ltd.', even though the company by the said name is no
    more in existence having been dissolved upon its amalgamation
    with the Appellant.

    2. The Appellant prays that the order passed in the name of an
    assessee not in existence be struck down and annulled as ab-initio or
    otherwise null and void.

    WITHOUT PREJUDICE TO GROUND NO.1:

    GROUND NO. II:

    1. The Hon'ble CIT further erred in holding that the Appellant had
    indicated that an assessment of Elder Infotech Pvt. Ltd. could be
    made in respect of the Assessment Year 2009-10 against the
    Appellant whereas the Appellant had submitted that the Assessment
    of Elder Infotech Pvt. Ltd. for the Assessment Year 2009-10 could
    not be made on any person (including the Appellant) and that there
    were no provisions in the Income Tax Act which would permit the
    making of such an Assessment or the recovery of any consequential
    demand.

    2. The Hon'ble CIT failed to appreciate and ought to have held that
    Elder Infotech Pvt. Ltd. was dissolved on August 23,2011 with effect
    from April 1,2010 and consequently, or otherwise in the absence of
    any enabling provision no proceeding relating to the determination
    of tax liability of Elder Infotech Pvt. Ltd. could be commenced under
    the Income-tax Act on Elder Infotech Pvt. Ltd. or on any other
    person including the Appellant.


    3. The Appellant prays that order passed under section 263 of the
    Act be struck down as authorities below-initio or otherwise, null
    and/or void and/or of no effect.

    WITHOUT PREJUDICE TO GROUND NO. 1/11:
2|Page
                                             Elder IT Solutions Pvt. Ltd


    GROUND NO. III:

    1. On the facts and in the circumstances of the case and in law, the
    Hon'ble CIT erred in invoking the provisions of section 263 of the
    Act and setting aside the assessment order passed under section
    143(3) of the Act restoring it back to the file of the A.O. for fresh
    consideration on the ground that the said assessment order was
    erroneous and prejudicial to the interest of revenue.

    WITHOUT PREJUDICE TO GROUND NO. I/II/III:

    GROUND NO. IV:

    1. On the facts and in the circumstances of the case and in law,
    Hon'ble CIT erred in setting aside the assessment order passed
    under section 143(3) of the Act by the AO on the ground that the AO
    had not examined the nature of rights (i.e. intangible asset)
    acquired by Agreement with Reliance Communications Limited and
    observing that on a prima facie basis Elder Infotech Pvt. Ltd. has
    not acquired any capital asset and does not own it fully or partially.

    2. The Appellant prays that it be held that, in the facts and in the
    circumstances of the case, the amount paid against acquiring the
    commercial rights is an 'intangible asset' and depreciation on the
    same is allowable under section 32(1) of the Act and has correctly
    been allowed after due verification in the assessment made under
    See 143(3) in the case of Elder Infotech Pvt. Ltd for the Assessment
    Year 2009-10 and that there is no warrant for setting aside the
    order on this count and that the order is neither erroneous nor
    prejudicial to the interest of the Revenue.


    GROUND NO. V:

    On the facts and in the circumstances of the case and in law, Hon'ble
    CIT erred in setting aside the assessment order passed under section
    143(3) of the Act by the AO on the ground that the AO had not
    adequately examined the amount received by Elder Infotech Pvt.
    Ltd. through issue of preference shares and by way of unsecured
    loan.

    The Appellant prays that it be held that in the facts and in the
    circumstances of the case, the amounts received by Elder Infotech
3|Page
                                               Elder IT Solutions Pvt. Ltd

     Pvt. Ltd. through issue of preference shares and unsecured loan
     have been duly examined by the AO in the assessment proceedings
     of that Company and that there is no warrant for setting aside the
     order on this count and that the order is neither erroneous nor
     prejudicial to the interest of the Revenue.

     3. Without prejudice the Hon'ble CIT erred in failing to appreciate
     that in the facts and circumstances of the case, the source of the
     funds received by way of application for Preference Shares and
     unsecured loans was adequately established and the nature of the
     transactions was confirmed by the counterparties and consequently
     or otherwise there was no case whatsoever for any addition to the
     income of Elder Infotech Pvt. Ltd.

2.   The assessee challenged the validity of revision order passed u/s 263
on various grounds. First we will consider the issue on which the
Commissioner has invoked the provisions of section 263 as raised in
ground no. 3 to 5 in this appeal. The assessee filed its return of income for
A.Y. under consideration on 30.09.2009 declaring a net loss of Rs.
19,82,57,889/-. The assessment was completed u/s 143(3) on 9.12.2011 at
nil income against the loss of Rs. 19,82,57,889/-. Subsequently, on
verification of the assessment records, the CIT found that during the year
under consideration, the assessee was having commission income of Rs.
6.06 crore from the services rendered to Reliance Communication Ltd.,
with a view to create the potential to revive the relationship with such
dormant    subscribers   and   to   augment    the   revenue   to   Reliance
Communication Ltd, the assessee had debited in its P&L account, a sum of
Rs. 25.89 crores on account of purchase of Dormant subscribers. The
assessee paid a sum of Rs. 517.94 cores to Reliance Communication Ltd. in
the nature of purchase of intangible asset and claimed depreciation on the
said amount at the rate of 25% for 73 days amounting to Rs. 25.90 crores.
The depreciation claimed by the assessee on the rights being purchase of
dormant subscribers. The Assessing Officer restricted the claim of the
assessee to the extent of commission income earned by it in pursuant to the

4|Page
                                              Elder IT Solutions Pvt. Ltd

agreement of revival of dormant subscribers. The Commissioner was of the
view that the Assessing Officer while examining the details has not
considered whether the revival of the dormant subscribers is a commercial
right or not for the purpose of allowing depreciation u/s 32(1)(ii). The
second claim which was found by the CIT(A) as wrongly allowed by the
Assessing Officer is regarding the preference share application money of
Rs. 139.86 crore and Rs. 4,87,55,68,401/- as unsecured loan. Accordingly,
the Commissioner issued a show cause notice dated 20.03.2014 u/s 263
and asked the assessee as to why the order passed by the Assessing Officer
should not be revised being erroneous and prejudicial to the interest of
revenue. The grounds for invoking the provisions of section 263 as stated
in the show cause notice is that these two issues have not been examined
by the Assessing Officer while passing the order for the A.Y. 2009-10. The
assessee submitted its reply to show cause notice and raised various
objections including a technical legal objection that the company Elder
Infotech got merged with the Elder IT solutions Pvt. Ltd. w.e.f 1.4.2010
and, therefore, as per the provisions of section 170(2), the assessment of
income of the previous year shall be made on successor and not on the
Elder Infotech solutions Pvt. Ltd. The assessee also raised the objection on
jurisdiction to revise the assessment u/s 263 of the Income Tax Act., on the
ground that when the Assessing Officer has examined the issue and taken
a possible view. It was contended by the assessee that the entire material
was available before the Assessing Officer during the course of assessment
proceedings and the Assessing Officer after examination of the relevant
material restricted the claim of depreciation and allowed the share
application money against the preferential shares of Elder Infotech Pvt.
Ltd.. as well as the unsecured loans. The Commissioner did not accept the
contention of the assessee. As regards the issue of depreciation on
commercial right, the Commissioner observed that the assessee has to


5|Page
                                                 Elder IT Solutions Pvt. Ltd

specify that either they are covered under the specific business asset as
described u/s 32(1)(ii) of the Act., or       having similar nature. He has
expressed his disagreement in accepting the payment made by the assessee
to Reliance Communication for any commercial right of similar nature as
provided u/s 32(1)(ii) and 32(1)(iii). The Commissioner concluded that the
agreement for revival of dormant subscribers is not commercial asset and
the payment made by the assessee company is not for acquiring the capital
asset.


3.       On the second issue of share premium money and unsecured loan,
the Commissioner held that the order of the Assessing Officer suffers from
several defects as the Assessing Officer has not raised any question while
recording the statement with respect to the credentials of the applicant
companies. The statement recorded in stereo type and no question has
been asked by the Assessing Officer with respect to the capacity of
companies       who have given the loan to the assessee. Thus the
Commissioner has questioned the justification of payment of premium of
Rs. 999 on a face value of Rs. 1 per share when the assessee company does
not have any credentials in the market to attract the huge premium on its
preferential share. Accordingly, the commissioner held that the order
passed by the Assessing Officer is erroneous and prejudicial to the interest
of revenue with respect to the claim of depreciation on revival of dormant
subscribers and acceptance of unsecure loans of Rs. 487.55 crores and
preference share of Rs. 139.86 crores. Therefore, the Commissioner set
aside the assessment order and remanded the matter back to the file of
Assessing Officer for a fresh consideration after giving reasonable
opportunity to the assessee of being heard.




6|Page
                                               Elder IT Solutions Pvt. Ltd

4.   Before us, the Ld. Authorized Representative of the assessee had
advanced the arguments at length and referred the voluminous records
filed before the Assessing Officer. On the issue of depreciation on
commercial rights being an intangible asset, the Ld. Authorized
Representative has submitted that the payment in question has been made
by the assessee under the agreement dated 1.8.2008 for revival of dormant
subscribers as identified by Reliance Communication. The assessee
acquired the right to revive the dormant subscribers of Reliance
Communication under the said agreement and made one time payment of
Rs. 320.04 crores towards the payment of EITPL as an Exclusive Reviving
Agent of RCOM and further Rs. 199 per subscriber inclusive of applicable
taxes and levies, if any, payable under the law. Thus the Ld. Authorized
Representative has submitted that as per clause 3.1 and 3.2, the business
right to revive the dormant subscribers of RCOM was acquired by the
assessee against the payment of Rs. 517.09 crores for doing the business of
providing the services of revival and generating the income in the shape of
service charges as provided under the terms of the agreement. He has
referred the assessment order and submitted that the Assessing Officer in
the scrutiny assessment has examined the issue and restricted the claim of
depreciation on the said amount to the extent of commission income
earned by the assessee during the year against the services provided for
revival of dormant subscribers. Thus the Assessing Officer restricted the
claim of depreciation from Rs. 25.9 crores to 6.06 crores and made the
addition on account of disallowance amounting to Rs. 19,82,57,889/-. The
Ld. Authorized Representative has submitted that the Commissioner has
revised the order of Assessing Officer on the ground that the assessee has
not acquired any capital asset in the nature of business or commercial
right and, therefore, the Assessing Officer has wrongly allowed the claim of
the assessee even to the extent of Rs. 6.06 croes as depreciation on


7|Page
                                               Elder IT Solutions Pvt. Ltd

intangible assets. He has referred the decision of Hon'ble Supreme Court in
the case of Techno Shares and Stock Ltd.              (327 ITR 323) and
submitted that the issue of commercial right has been discussed by the
Apex Court and it has been held that the right of a membership which
allowed the non-defaulting member to participate in the trading season on
the floor of the exchange is a business or commercial right conferred by the
Rule of BSE on such member. The right to participate in the market had an
economic and money value. It was an expense incurred by the assessee
which satisfied the test of being a `licence' or `any other business or
commercial right of similar nature' in terms of S. 32(1)(ii) as held by the
Hon'ble Supreme Court. Without the right in the agreement, the assessee
could not approach the dormant subscribers for revival and collect the
revival subscription and consequently in the absence of such right the
assessee could not do its business activity of revival of subscribers earning
income. Thus the Ld. Authorized Representative submitted that the right
acquired by the assessee under the agreement is in the nature of business
or commercial right for doing their specific business activity. In support of
his contention he has relied upon the decision of Hon'ble Kerala High
Court in the case of B. Raveendran Pillai Vs. CIT (332 ITR 531),
wherein, the question fell for consideration of Hon'ble High Court was
whether the purchase of Hospital by assessee with its name and trademark
as a going concern involves any purchase of good-will. The Hon'ble High
Court held that the purpose of purchasing a business concern whether it be
hospital or hotel, is to ensure continuity of business with the same
reputation. The name of the hospital is the most important after purchase
by the assessee continued to be run in the very same building in the very
same name. Therefore, the purpose of being paying a huge amount of
good-will for maintaining a continued reputation of hospital is for ensuring
the retention and continue business in the hospital and it is certainly for


8|Page
                                                 Elder IT Solutions Pvt. Ltd

acquiring the business or commercial right comparable with trade mark,
franchise, copyright etc. The Ld. Authorized Representative then referred
the judgment of Hon'ble Delhi High Court in the case of CIT Vs.
Hindustan Coco Cola Beverages P. Ltd. (331 ITR 192) and
submitted that the Hon'ble High Court has considered the meaning of
business or commercial rights of similar nature in terms of section 32(1)(ii)
of the Act., that any right which is obtained for carry on business with
effectiveness is likely to fall or comes within the sweep meaning of
intangible asset. He has then referred the Judgment of Hon'ble Delhi High
Court in the case of Areva T & D India Limited v DCIT (345 ITR 421)
(Delhi HC), wherein, a similar view was taken by the High Court while
considering the issue of depreciation on the amount paid over and above
the book value of net tangible asset.





5.    On the issue of share application money and cash credits, the Ld.
Authorized Representative has submitted that the assessee furnished all
the relevant material before the Assessing Officer during the assessment
proceedings and the Assessing Officer after considering the relevant
evidence allowed the claim as correct and genuine. He has referred the
relevant part of the revision order wherein the Commissioner has recorded
the financial details of all these share applicant companies and also
recorded the fact that the Assessing Officer called for the financial details of
all these companies but no examination of accounts of these companies has
been done by the Assessing Officer. Therefore, the assessment order to the
extent of share application was treated as erroneous and prejudicial to the
interest of revenue only on the suspicion and justification of payment of
share premium. He has contended that when all the relevant material was
available with the Assessing Officer as it was produced during the
assessment proceedings, then accepting the share premium by the


9|Page
                                                Elder IT Solutions Pvt. Ltd

Assessing Officer does not suffer from any error. The Commissioner cannot
initiate proceedings with a view to start fishing and roving enquiries in the
matter or orders which already concluded. When the Assessing Officer has
allowed the claim after considering the relevant evidence and materials
filed by the assessee then the commissioner cannot held the order
erroneous simply because according to him the matter should have been
written more elaborately. It is a clear case where the Assessing Officer has
made enquiries and satisfied himself about the correctness and
genuineness of the claim. In support of his contention he has relied upon
the decision of Hon'ble Jurisdictional High Court in the case of
Commissioner Of Income-Tax vs Gabriel India Ltd. He has
referred the financial accounts of these companies who has paid the share
premium as well as loan to the assessee and submitted that the assessee
has placed on record the bank statements of those companies showing the
payment from the bank accounts and source of payment. He has also
referred the return of income filed by these companies showing these
transactions therein. Therefore, when these companies have shown all
these transactions in their return of income then the question of not
accepting the claim of the premium paid to the assessee for want of source
is contrary to the well settled principle on this point. If the revenue doubts
the capacity of these companies then the issue has to be considered in their
assessment and not in the assessment of the assessee. In support of his
contention he has relied upon the decision of Hon'ble Supreme Court in the
case of Lovely Exports and submitted that when the assessee has prima
facie proved the identity of the creditors and genuineness of the
transactions through the banking channel and the creditworthiness of the
creditors/subscribers by furnishing the details of addresses, PAN nos.,
bank statements as well as return of income where the transaction is duly
reflected then if the Assessing Officer has the doubt of legitimacy of any of


10 | P a g e
                                               Elder IT Solutions Pvt. Ltd

the creditors, he is free to carry out thorough investigation in the case of
the creditors. He has relied upon the following decisions:-


        (i)     Hari Iron Trading Co. Vs. CIT ( 263 ITR 437)
        (ii)    Commissioner of Income-Tax. Vs. Eicher Limited
                (294 ITR 310)
        (iii)   CIT. vs. Development Credit Bank Limited. (323 ITR
                167)
        (iv)    CIT Vs. Sunbeam Auto Ltd., (2011) 332 ITR 167 (Del.)
        (v)     CIT Vs. Anil Kumar Sharma, 335 ITR 83


6.      On the other hand. The Ld. DR has submitted that the Assessing
Officer has not examined the issue whether the assessee had acquired any
capital asset in the agreement for revival of dormant subscribers of the
RCOM. He has referred the relevant finding of he Commissioner in the
impugned order and submitted that the Commissioner has given a finding
that the assessee has not acquired any capital asset or owned any capital
asset uder the agreement, therefore, no depreciation is allowable. The
Assessing Officer has not made any enquiry on this issue, therefore, there is
a lack of application of mind on the part of the Assessing Officer which
renders the order erroneous so far as prejudicial to the interest of revenue.
In support of his contention he has relied upon the order of Hon'ble
Karnataka High Court in the case of CIT Vs. Infosys Technologies (341
ITR 293) that in the absence of any discussion either in the assessment
order or in the computation claim to the extent of relief claimed by the
assessee, the order is erroneous and prejudicial and in such a situation the
Commissioner has the jurisdiction to exercise the power u/s 263. He has
further submitted that the issue is not at all examined by the Assessing
Officer, therefore, the Commissioner can direct the assessing authorities


11 | P a g e
                                               Elder IT Solutions Pvt. Ltd

to compute or re-compute the same. He has then relied upon the decision
of Hon'ble Jurisdictional High Court in the case of CIT Vs. Hindustan
Liver (343 ITR 161) and submitted that an excess allowance by the
Assessing Officer by over looking the fact, the research expenditure
incurred by the inextricably linked with the business of the assessee
including business in those produces which are manufactured in the unit
entitled for deduction u/s 80I, 80IA and 80HH. Therefore, only an
appropriate part of the expenditure would have to be allocated to the
eligible unit for the purpose of aforesaid deduction. The Hon'ble High
Court held that the Commissioner was justified in setting aside the order as
erroneous and prejudicial to the interest of revenue. The Ld. DR then relied
upon the decision of Delhi Benches of this Tribunal in the case of Frick
India Ltd. Vs/. DCIT 6 ITR (Trib.) 82 (Del) and submitted that the
order of the Assessing Officer allowing deduction was erroneous and
prejudicial to the interest of revenue on the ground that the Assessing
Officer has failed to consider the assessment of the earlier years wherein a
technical know how fee was included in intangible asset and depreciation
was allowed. Thus the Ld. DR has submitted that even if the Assessing
Officer has examined the issue but when he failed to consider the decision
taken in the assessment order for earlier year, the order was considered to
be erroneous and prejudicial to the interest of revenue He has then relied
upon the decision of Hon'ble Jurisdictional High Court in the case of
Major Metals Ltd. Vs. Union of India ( 359 ITR 450) and submitted
that the Hon'ble Hon'ble Jurisdictional High Court after considering the
judgment of Hon'ble Delhi High Court as well as the judgment of Hon'ble
Supreme Court in the case of Lovely Exports has confirmed the finding of
settlement commission in respect of the addition u/s 68 of Income Tax Act
on account of cash credit of Rs. 6 crore against which the shares were
issued by the assessee at a huge premium. The Ld. DR then relied upon the


12 | P a g e
                                                Elder IT Solutions Pvt. Ltd

decision of Hon'ble Supreme Court in the case of Malabar Industrial
Co. Ltd Vs. CIT (243 ITR 83) and submitted that when the Assessing
Officer accepted the claim of the assessee without any supporting material
and without making any enquiry, the Commissioner is justified in
exercising the jurisdiction u/s 263. The Assessing Officer has not applied
his mind while allowing the claim of the assessee in respect of share
application money as well as loan received from these companies. He has
forcefully contended that the Commissioner has discussed the fact as to
how the Assessing Officer has not made any enquiry on the issues which
are subject matter of revision. He has referred the decision of Hon'ble
Supreme Court in the case of South India Steel Rolling Mills v CIT
[1997] 224 ITR 654 and submitted that the exercise of power conferred
u/s 263 by the Commissioner was held to be justified when the Assessing
Officer while granting the benefit of development rebate u/s 33(1A), failed
to note that the condition provided u/s 34(3)(A) were not fulfilled by the
assessee as the firm was dissolved and ceased to exist before the expiry of
period of eight years. Thus the Ld. DR has strongly supported the revision
order and submitted that the Commissioner was justified in revising the
assessment order when the Assessing Officer has not applied its mind on
the issues in question.


7.      In rebuttal, the ld. Authorized Representative has submitted that the
share applicant companies are NBFC registered with RBI, therefore, there
is no question of doubting the identity and availability of funds with the
share applicant companies.


8.      We have considered the rival submissions as well as relevant material
on record.     The assessment in this case was completed u/s 143(3) on



13 | P a g e
                                                Elder IT Solutions Pvt. Ltd

9.12.2011. Subsequently, the Commissioner has issue a show cause notice
dated 20.03.2014 u/s 263 as under:-


        "The assessee company i.e. M/s Elder Infotech Pvt. Ltd. has filed its
        return of income on 30.09.2009 declaring a net loss of rs.
        19,82,57,889/- for A.Y. 2009-10. Thereafter, the said company i.e.
        M/s Elder Infotech got merged with Elder IT solutions Pvt. Ltd., 6
        ground floor, Shree Hanuman Apt, Bamanwada, Nr. Chakala
        Cigarette Factory, Andheri (E) Mumbai ­ 400 009. During the year
        under consideration i.e. A.Y. 2009-10 (F.Y. 2008-09), the assessee
        was having the commission income of Rs. 25.89 crores on account of
        purchase of dormant subscribers. The assessee company has paid to
        Reliance Communication Ltd. an amount of Rs. 517.94 crores in the
        nature of purchase of intangible asset. The assessee company has
        provided depreciation @ 25% for 73 days amounting to Rs. 25.90
        crores. The assessee company has claimed the depreciation on
        commercial rights from the period 01.04.2009 to 28.05.2009
        amounting to Rs. 25.90 crores. This has been claimed on the instant
        that the assessee has paid to Reliance Communication Ltd., a sum
        amounting to Rs. 517.94 crores in the nature of purchase of
        intangible assets. The assessee company has claimed the
        depreciation for 6 months amounting to Rs. 64.74 crores but
        claimed only Rs. 25.90 crores. The Assessing Officer has considered
        this aspect and restricted the claim of the assessee to the extent of
        commission income earned by it in pursuance of the aforesaid
        agreement of revival. The Assessing Officer has not considered
        whether the revival of dormant subscribers is a commercial right or
        not. The substantive aspect of the depreciation prescribed u/s
        32(1)(ii) which says that depreciation will be allowed on know-how,
        patents, copyrights, trade mark, licences, franchises or any other
        business or commercial right of similar nature being intangible
        assets acquired on or after the 1st day of April, 1998 has not been
        examined by the Assessing Officer. There is nothing on record that
        verification of the assessee's technical capabilities or the
        infrastructure required to carry out the alleged revival was ever
        done.

        The second issue in this case is with respect to share application
        money and unsecured loans for the year ending 31.03.2010. The
        assessee company, M/s Elder IT solutions Pvt. Ltd has received the
        unsecured loan of Rs. 48,75,56,8401/- and share application money
        of Rs. 1,39,86,00,000/-.

14 | P a g e
                                                 Elder IT Solutions Pvt. Ltd

        The above two issues have not been examined by the Assessing
        Officer while passing the order of Elder Infotech Pvt. Ltd. for A.Y.
        2009-10.

        On the issues as stated above a show cause is being given to you as
        to why the order passed by JCIT (OSD)-Cir. 8(1), Mumbai dtd
        09.12.2011 should not be revised u/s 263 of the Act being order
        erroneous one ad prejudicial to the interest of revenue. Please
        submit your reply either in person or through authorize
        representative on 25.03.2014 at 11.30 A.M."


9.      The Commissioner proposed to revise the assessment order dated
9.12.2011 in respect of these two issues on the ground that the Assessing
Officer has not examined these issues while passing the order for the A.Y.
under consideration. There may be two broad scenario in which section
263 can be invoked. Firstly, in a case where the claim of the assessee
needed inquiry and examination but the Assessing Officer failed to conduct
any inquiry. Such a case would fall under the category of lack of enquiry
and consequentially non application of mind on the part of the Assessing
Officer, renders the order erroneous so far as prejudicial to the interest of
revenue. Secondly, in a case where despite the inquiry the view of the
Assessing Officer is not permissible due to non consideration of crucial
relevant facts or legal provisions of law on the point. The failure on the part
of the Assessing Officer to consider the crucial facts, provisions of law or
settled legal precedent on the point renders the order erroneous and
prejudicial to the interest of revenue. However, in a case where the
Assessing Officer conducted an inquiry may be inadequate and allow the
claim by taking a view on the issue having two possible views then the CIT
cannot invoke the provisions of section 263 merely on the ground that he
does not agree with the view taken by Assessing Officer.. This position has
been settled by the Hon'ble Supreme Court in the case of Malabar
Industrial Co. Ltd. Vs. CIT (supra) as under:-


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        "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 passed without
        applying the principles of natural justice or without application of
        mind.

         The phrase `prejudicial to the interests of the revenue' has to be read
        in conjunction with an erroneous order passed by the Assessing
        Officer. Every loss of revenue as a consequence of an order of the
        Assessing Officer cannot be treated as prejudicial to the interests of
        the revenue, for example, 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 the ITO has taken one view with which
        the Commissioner 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. It has been held by
        this Court that where a sum not 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 [1968] 67 ITR 84 (SC) and inSmt. Tara Devi
        Aggarwal v. CIT [1973] 88 ITR 323 (SC)."


10.     In the case in hand, the Assessing Officer has made an enquiry
regarding the claim of depreciation on tangible asset and after considering
the relevant agreement under which the assessee had acquired the right for
revival of dormant subscribers of RCOM Ltd., has decided the issue in para
3.3 of the assessment order as under:-


        "3.3 The submissions of the assessee have been considered but the
        same are not acceptable. The assessee furnished the ledger account
        of advance towards purchase of subscribers', perusal of which
        shows that during the year the assessee has given advance of Rs
        402,44,00,000/- on 23.10.2008 and Rs.115,50,OO,OOO/- on
        20.01.2009 to Reliance Communication Limited on account of

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        purchase of subscribers. Thus, during the year, the assessee has -
        paid a sum of Rs. 517,94,OO,OOO/- to Reliance Communication
        Limited on account of 'purchase of subscribers'. However, at the end
        of the year itself i.e. on 31st March, 2009, the assessee has written
        off a sum of Rs.25,89,70,OOO/- being 5% of the amount of 'advance
        towards purchase or subscribers'. To substantiate the aforesaid
        transaction, the assessee has furnished a Reliance Communications
        Limited. During the year, the assessee has earned income by way of
        commission of Rs.6,06,61,421/- from Reliance Communication
        Limited due to revival of certain subscriber contracts. The assessee
        also earned income in the copy of Agreement for Revival of
        Dormant Subscribers dated 01.08.2008 with form of consultancy
        fees. However, the assessee has not clearly justified the logic of
        claiming 5% of the total amount of subscriber contracts against the
        aforesaid income. Even, the perusal of Profit & Loss Account reveals
        that there is no other expenditure incurred to earn this income such
        as legal and professional charges, salary & wages, etc. In view of
        the same, it would be in the interest of justice to restrict the claim of
        assessee to the extent of commission income earned by the assessee
        in pursuance of the aforesaid Agreement of Revival and the balance
        stands disallowed."


11.     Thus it is clear that it is not a case of complete lack of enquiry on the
part of the Assessing Officer on the issue of allowing depreciation on
intangible asset being business or commercial rights acquired under the
agreement for revival of dormant subscribers of RCOM. Once the Assessing
Officer has conducted the enquiry and after examination of relevant record
as well as contention of the assessee has given a finding then the provisions
of section 263 can be invoked by the Commissioner only if the view taken
by the Assessing Officer is not permissible under the law.                   The
Commissioner in this case though has given the reasons for not accepting
the view of the Assessing Officer, however, at the same time he has again
left the issue to be decided by the Assessing Officer afresh in the concluding
para as under:-




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        "Subject to the above discussion, I wish to conclude that the order passed
        by the Assessing Officer is erroneous and prejudicial to the interest of
        revenue , with respect to the claim of depreciation on revival of dormant
        subscribers as a commercial asset (intangibles) made by assessee
        company and accetance of unsecured loan of Rs. 4,87,55,68,401/- and
        preference share of Rs. 13,98,60,000/-. Therefore, the order is set aside
        and matter is resorted to the file of Assessing Officer for a fresh
        consideration after giving reasonable opportunity of being heard to the
        assessee."

12.     When the matter was restored back to the file of Assessing Officer for
a fresh consideration after giving reasonable opportunity of hearing to the
assessee then it is apparent that the Commissioner has not arrived to a
concluding finding that the view taken by the Assessing Officer is not
permissible under the law. Moreover, the issue of tangible asset being
business or commercial right as per section 32(1)(ii) of the Act., is a
debatable issue in view of the various judgments including the judgment of
Hon'ble Supreme Court in the case of Techno Shares & Stocks (supra),
referred by assessee wherein, the stock exchange membership was
considered as a right akin to a license which is one of the item which falls
under section 32(1)(ii) of the Income Tax Act. The Hon'ble Supreme Court
has observed that right to practice in market has an economic and money
value. It was an expense incurred by the assessee which satisfied the test of
being a `licence' or `any other business or commercial right of similar
nature' in terms of S. 32(1)(ii) of the Income Tax Act. In the case of         B.
Raveendran Pillai Vs. CIT (supra), the Hon'ble Kerala High Court has
discussed the allowability of depreciation on very huge amount paid for
good will and held that it is certainly for acquiring a business or
commercial right and also comparable with the trade mark, franchise,
copyright etc,. referred to in the first part of sub clause (ii) of section 32(1).
In the case of CIT Vs. Hindustan Coco Cola (supra), the Hon'ble Delhi
High Court on the issue of depreciation on intangible asset u/s 32(1)(ii)
held that the asset which are in the definition of intangible asset includes

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along with other things any other business or commercial right of similar
nature. The meaning of business or commercial rights of similar nature
has been discussed in para 24 as under:-


        "24. It is worth noting that the meaning of business or commercial
        rights of similar nature has to be understood in the backdrop of
        section 32(1)(ii) of the Act. Commercial rights are such rights which
        are obtained for effectively carrying on the business and commerce,
        as is understood, is a wider term which encompasses in its fold
        many a facet. Studied in this background, any right which is
        obtained for carrying on the business with effectiveness is likely to
        fall or come within the sweep of meaning of intangible asset. The
        dictionary clause clearly stipulates that business or commercial
        rights should be of similar nature as know-how, patents, copyrights,
        trademarks, licences, franchises, etc. and all these assets which are
        not manufactured or produced overnight but are brought into
        existence by experience and reputation. They gain significance in
        the commercial world as they represent a particular benefit or
        advantage or reputation built over a certain span of time and the
        customers associate with such assets. Goodwill, when appositely
        understood, does convey a positive reputation built by a
        person/company/business concern over a period of time. Regard
        being had to the wider expansion of the definition after the
        amendment of section 32 by the Finance (No. 2) Act, 1998 and the
        auditor's report and the explanation offered before the Assessing
        Officer, we are of the considered opinion that the Tribunal is
        justified in holding that if two views were possible and when the
        Assessing Officer had accepted one view which is a plausible one, it
        was not appropriate on the part of the Commissioner to exercise his
        power under section 263 solely on the ground that in the books of
        account it was mentioned as `goodwill' and nothing else. As has been
        held by the Apex Court in Malabar Industrial Co. Ltd.'s case
        (supra), Max India Ltd.'s case ( supra) and CIT v. Vimgi Investment
        (P.) Ltd. [2007] 290 ITR 505 (Delhi) once a plausible view is taken,
        it is not open to the Commissioner to exercise the power under
        section 263 of the Act."

13.     The meaning as understood by the Hon'ble High Court that any
business or commercial right which is obtained for carry on business with
effectiveness is likely to fall or comes within the sweep meaning of tangible

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asset. Similarly in the case of AREVA T&D India Ltd. (Supra), the
Hon'ble Delhi High Court has held that the term business or commercial
right of similar nature has been additionally used under the category of
intangible asset referred to section 32(1)(ii) clearly demonstrates that the
legislature did not intend to provide for depreciation only in respect of
specified intangible asset but also to other categories of intangible assets
which were neither feasible nor possible to exhaustively enumerate.
Therefore, the expression any business or commercial rights cannot be
restricted to only the six categories of the assets as mentioned in section
32(1)(ii). The Hon'ble High court has clearly foreseen the non feasible
impossibility to enumerate the intangible asset under the category of
business or commercial rights.        In view of the above said decisions it
cannot be said that the claim of the assessee and view of he Assessing
Officer is absolutely contrary to law but the issue of allowability of
depreciation on intangible asset being business or commercial rights is a
debatable issue. Once the Assessing Officer has taken a possible view then
the Commissioner is not permitted to invoke the provisions of section 263
merely because he did not agree with the view taken by the Assessing
Officer.


14.     Now we take up the second issue of share application money and
unsecured loan. The Commissioner has given the details of preferential
share holder of the assessee at page 9 of the impugned order as under:-


Sr.    Name                       Face value   Premium         Amount
no.                                                            received

1.     Mindtree Industrial Finance 3,50,000    34,96,50,000    35,00,00,000
       Ltd.
       Address: 60-B, 4th Floor, 9,
       Bhupen Chamber, Dalal
       Street, Fort, Mumbai ­
       400001.

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       PAN : AACV1614N
2      Pearl    Housing    Finance 3,50,000     34,96,50,000     35,00,00,000
       (India) Ltd.
       Address: 60-B, 4th Floor, 9,
       Bhupen     Chamer,    Dalal
       Street, Fort, Mumbai ­
       400001

       PAN: AAACP6331J
3      VB Desai Securities and 3,50,000         34,96,50,000     35,00,00,000
       Finance Ltd.
       Address: 60-B, 4th Floor, 9,
       Bhupen     Chamer,    Dalal
       Street, Fort, Mumbai -
       400001
       PAN: AAACV3592M
4      Vishvakarma      Equipment 3,50,000      34,96,50,000     35,00,00,000
       Finance (India) Ltd.
       Address: 60-B, 4th Floor, 9,
       Bhupen     Chamer,    Dalal
       Street, Fort, Mumbai ­
       400001
       PAN: AAACV4286N
       Total                        14,00,000   1,39,86,00,000   1,40,00,00,000





15.     One of the reasons for proposing the revision on this issue by
Commissioner is the justification of huge premium paid by these share
applicant companies. The Commissioner has stated in the order that the
source of applicant company is also the share premium and loan generated
by them and the Assessing Officer while finalizing the assessment order has
not examined the credentials of these companies and how they have
generated fund to give the assessee under consideration.                    The
Commissioner has further recorded at page no. 10 of the impugned order
as under:-
        "The above companies' financial details have been called for by the AO
        but no examination of the accounts of these companies have been done
        when it is required by the AO to examine the transaction pertaining to
        these companies because these companies do not have any operational
        income and creating entries in their books of accounts by way of loans
        and premium on issue of shares. The AO has recorded the statement of
        some of the persons but the statement recorded by the AO was also
        stereotype and no worthwhile question has been asked while recording
        the statement of the concerned parties. Al the statement recorded by the
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        AO is stereotype. Even the confirmation filed by the parties who have
        given money to the assessee has not been examined by the AO with
        respect to source of money of depositors. In the background of above
        stated facts, it needs to be discussed the requirement of Sec.263 of the Act.
        The section 263 of the I.T. Act, 1961 speaks two things:
               (i)    Order should be prejudicial to the interest of the revenue
               (ii)   Order should be erroneous one.


16.     The Commissioner has not disputed the fact as recorded in the
impugned order that the above companies financial details have been
called for by the Assessing Officer but no examination of accounts of these
companies have been done when it is required by the Assessing Officer to
examine the transaction pertaining to these companies in view of the fact
that these companies do not have any operational income. It is further
recorded that the Assessing Officer has recorded the statement of some of
the persons but the statement so recorded by the Assessing Officer are
stereo type and no worthwhile questions have been asked. Thus the reason
for doubting the genuineness of the transaction of preferential shares
issued at premium as well as unsecured loans is that the Assessing Officer
has not properly conducted the enquiry. It is pertinent to mention that
when the Assessing Officer has called for all the relevant details including
financial details as well as parties for examination of genuineness of the
transaction then it is not a case of lack of enquiry or non application of
mind on the part of the Assessing Officer. The Commissioner was not
pleased with the manner in which the enquiry was conducted by the
Assessing Officer.            The facts recorded by the Commissioner also
demonstrate the source of application money and loan given to the
assessee is against the share application money received by these
companies as well as certain loans generated by them. Therefore, the facts
as far as availability of source is concerned, the same is admitted by the
Commissioner but the reason for not accepting the transaction is non

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examination of the transaction of money received by the share applicant
companies. It is not the case of the Commissioner that these companies
were not having funds but since the Assessing Officer has not examined the
source of source, therefore, this issue was again restored back to the
Assessing Officer for fresh consideration. In the case of CIT Vs. Gabriel
India (supra), the Hon'ble High Court has recorded the reasons on which
the order of Assessing Officer was held as erroneous by the Commissioner
at page 112 and then held as under:-


        "The Commissioner, however, did not accept the contention of the
        assessee. He observed that the order of the ITO did not contain
        discussion in regard to the allowability of the claim for deduction
        which indicated non-application of mind. According to the
        Commissioner, the claim of the assessee required examination as to
        whether the expenditure in question was a revenue or capital
        expenditure. In that view of the matter, he cancelled the order of the
        ITO in this regard and directed him to make a fresh assessment on
        the lines indicated by him.

                                      *******************
                                      *******************

        From a reading of sub-section 1 of section 263, it is clear that the
        power of suo motu revision can be exercised by the Commissioner
        only if, on examination of the records of any proceedings under this
        Act, he considers that any order passed therein by the ITO is
        'erroneous insofar as it is prejudicial to the interests of the revenue'.
        It is not an arbitrary or unchartered power. It can be exercised only
        on fulfilment of the requirements laid down in sub-section (1). The
        consideration of the Commissioner as to whether an order is
        erroneous insofar as it is prejudicial to the interests of the revenue,
        must be based on materials on the record of the proceedings called
        for by him. If there are no materials on record on the basis of which
        it can be said that the Commissioner acting in a reasonable manner
        could have come to such a conclusion, the very initiation of
        proceedings by him will be illegal and without jurisdiction. The
        Commissioner cannot initiate proceedings with a view to starting
        fishing and roving enquiries in matters or orders which are already
        concluded. Such action will be against the well-accepted policy of
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        law that there must be a point of finality in all legal proceedings,
        that stale issues should not be reactivated beyond a particular stage
        and that lapse of time must induce repose in and set at rest judicial
        and quasi-judicial controversies as it must in other spheres of
        human       activity-   [SeeParashuram       Pottery   Works      Co.
        Ltd. v. ITO [1977] 106 ITR 1 (SC), at page 10]."

17.     As it was held that the Commissioner cannot initiate proceedings
with a view to start fishing and roving enquiries in the matter or orders
which are already concluded. The order cannot be termed as erroneous
unless it is not in accordance with law. If the Assessing Officer is acting in
accordance with law and made certain assessment, the same cannot be said
erroneous by the Commissioner simply because according to him matter
should have been written more elaborately. Similar view has been taken by
the Hon'ble Delhi High Court in the case of Hari Iron Trading Vs. CIT
(supra) and observed at page 442 and 449 s under:-


        ". In the light of the above factual background, we have not been
        able to appreciate as to how the Commissioner has recorded a
        finding that the assessment had been framed without application of
        mind or that difference in stock has not been properly examined.
        Unfortunately, his order is totally non-speaking and it does not
        convey as to what according to him should have been the proper
        examination by the Assessing Officer. The assessee had filed a
        detailed reply to his notice under section 263(1) of the Act which has
        been rejected without giving any reasons whatsoever. The
        Commissioner does not appear to have either perused the records or
        applied his mind to the detailed reply filed by the assessee. He has
        not discussed even a single contention raised therein. We have
        referred to the assessment recorded and find that the Assessing
        Officer had issued various notices on these points and had, satisfied
        himself that the addition of Rs. 10 lacs on account of discrepancy in
        stock was not called for as there was no discrepancy in stock. The
        Tribunal has done no better.

        A bare perusal of the aforesaid provision shows that the
        Commissioner can exercise powers under sub-section (1) of
        section 263 of the Act only after examining "the record of any
        proceedings under the Act". The expression `record' has also been
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        defined in clause (b) of theExplanation so as to include all records
        relating to any proceedings available at the time of examination by
        the Commissioner. Thus, it is not only the assessment order but the
        entire record which has to be examined before arriving at a
        conclusion as to whether the Assessing Officer had examined any
        issue or not. The assessee has no control over the way an assessment
        order is drafted. The assessee on its part had produced enough
        material on record to show that the matter had been discussed in
        detail by the Assessing Officer. The least that the Tribunal could
        have done was to refer to the assessment record to verify the
        contentions of the assessee. Instead of doing that, the Tribunal has
        merely been swayed by the fact that the Assessing Officer has not
        mentioned anything in the assessment order. During the course of
        assessment proceedings, the Assessing Officer examines numerous
        issues. Generally, the issues which are accepted do not find mention
        in the assessment order and only such points are taken note of on
        which the assessee's explanations are rejected and additions/
        disallowances are made. As already observed, we have examined
        the records of the case and find that the Assessing Officer had made
        full inquiries before accepting the claim of the Assessing
        Officer qua the amount of Rs. 10 lacs on account of discrepancy in
        stock. Not only this, he has even gone a step further and appended
        an office note with the assessment order to explain why the addition
        for allegation discrepancy in stock was not being made. In the
        absence of any suggestion by the Commissioner as to how the
        inquiry was not proper, we are unable to uphold the action taken by
        him under section 263 of the Act."

18.     In the case in hand, there is no dispute that the Assessing Officer
called for financial details of these companies and also examine the parties
in order to satisfy himself about the genuineness of the transaction.
Therefore, on the basis of the record available before him, the Assessing
Officer accepted the claim of the assessee. The Commissioner has not
found any fault with the details and records filed by the assessee in support
of the claim but has cited the reasons that the Assessing Officer has not
conducted the proper enquiry. When the entire record was available with
the Commissioner then he ought to have given a concluding finding that
the view taken by the Assessing Officer is contrary to the law as well as


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facts emerging from the records. However, the Commissioner has not given
any such finding and restored the matter to the record of the Assessing
Officer which is not permissible as per the provisions of section 263 when
the Assessing Officer has conducted the enquiry and allowed the claim of
the assessee on the basis of the examination of the record as well a the
parties in person. We further note that the assessee has also filed the bank
statements of these companies showing the transaction of payment of
share premium as well as loans to the assessee. The transactions were also
reflected in the return of income filed by these companies, therefore, in any
case if the department has any doubt about the genuineness of arranging
the funds by these share applicant companies, the enquiry and
investigation should have been conducted in those cases as held by the
Hon'ble Delhi High Court in the case of Lovely Exports (299 ITR 268)
which has been confirmed by the Hon'ble Supreme Court by dismissing the
SLP filed by the department.


19.     One more reasons for setting aside the assessment order in respect of
the share premium is the justification of payment of huge premium in
comparison to the prospective earnings of the assessee. It is pertinent to
note that as per the provisions of section 68, the addition can be made if
the transaction of cash credit is not properly explained by the assessee by
establishing the identity of the creditor and the capacity of the creditor and
genuineness of the transactions to the satisfaction of the Assessing Officer.
Therefore, the justification of payment cannot be a sole ground for addition
u/s 68. Though the same may be the reason for enquiry and investigation
by the assessing authorities to find out the genuineness of the transactions.
There is not dispute about the identity of the parties as it was also not
disputed by the Commissioner, the source and capacity of these parties
were prima facie established by the assessee by producing their financial


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statements and bank accounts etc. The Commissioner has also found from
record the source of payment of share premium as the share application
money and loan generated by these companies, therefore, the availability
of fund was not disputed by the Commissioner but how that fund was
generated by these companies is the only reason for revising the
assessment order on this issue. The Commissioner himself has not given a
concluding finding about the genuineness of the transactions, therefore,
the enquiry of source of source is not warranted when the identity and
source as well as transaction through banking channel has already been
established by the assessee in view of the decision in the case of Lovely
Exports. The Commissioner has also not brought out any fact or material to
suggest or cast any doubt about the genuineness of the transaction,
accordingly, the setting aside of the assessment order and restoring back to
the file of Assessing Officer for fresh consideration is beyond the
jurisdiction u/s 263.


18.     The judgment in the case of CIT Vs. Infosys Technologies (supra) as
relied upon by the Ld. DR will not help the case of the revenue as in the
said case the issue was allowability of deduction u/s DTAA with Canada
and Thailand which were not examined by the Assessing Officer while
passing the order. The Hon'ble High Court has observed that it is the duty
of the assessing authorities to do the computation in accordance with the
relevant Articles of DTAA and if it had failed in that, more so in extending a
tax relief to the assessee, the order definitely constitutes an order not
merely erroneous but also prejudicial to the interest of the Revenue.
Therefore, it was a glaring case of ignoring the mandatory provisions under
the DTAA on the part of the Assessing Officer. In the case of CIT Vs.
Hindustan Liver (supra), the Assessing Officer has completely missed
out the head office expenses to be apportioned to determine the quantum


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of profit derived from industrial undertaking. Therefore, in the said case
the point of apportionment of Head Quarter expenses was totally ignored
due to non application of mind on the part of the Assessing Officer. It was
a case of missing a crucial fact on the part of the Assessing Officer,
therefore, the said decision cannot be applied in the facts of the present
case. In the case of Frick India, Vs. DCIT (supra), the Tribunal has noted
the fact that the Assessing Officer allowed the deduction without
considering the earlier assessment orders, wherein, the said deduction was
disallowed. Thus it was clear case of overlooking a mandatory aspect of the
assessment and the fact that the deduction was earlier disallowed. The
Assessing Officer failed to consider the earlier assessment orders and,
therefore, the action of the Assessing Officer was absolutely not permissible
under law. The said case is entirely distinguishable         on fact and not
applicable in the facts of the present case. In the case of Major Metals Ltd.
Vs. Union of India (supra), is a judgment of the Hon'ble High Court against
the finding of the settlement commission, which was based on the material
and evidence on record. Therefore, the said analogy cannot be applied in
the case of revision order passed u/s 263. It was purely a finding of fact and
hence have no applicability in the facts of the present case.


19.      In view of the above, facts and circumstances of the case as well as
above discussion , we are of the view that the Commissioner has travelled
beyond the jurisdiction as prescribed u/s 263 and accordingly, the
impugned revision order is not sustainable and, therefore, the same is set
aside.


20.      The assessee has also raised the ground no. 1 and 2 regarding validity
of the revision order passed in the name of a person who is not in existence
but amalgamated with the assessee. Since we have already set aside the


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revision order on the other grounds, therefore, this ground of assessee's
appeal becomes academic in nature. Further we note that the
Commissioner has passed the impugned order in the name of Elder
Infotech Pvt. Ltd., merged with Elder IT Solutions Pvt., Ltd., accordingly,
we do not find any error or illegality in writing the name of the assessee
along with erstwhile company being merged with the assessee. Hence, this
ground of the assessee's appeal is dismissed


21.     In the result appeal of the assessee is allowed.

        Order pronounced in the open court on                         12th    Day of November
        2014

                                  Sd/-                                               Sd/-

                         (B.R.Baskaran)                                      (Vijay Pal Rao)
           (Accountant Member/ys[kk lnL;)                        (Judicial Member/U;kf;d lnL;)

        Mumbai dated                   12-12-2014
        SKS Sr. P.S,

Copy to:
               1.   The Appellant
               2.   The Respondent
               3.   The concerned CIT(A)
               4.   The concerned CIT
               5.   The DR, "E" Bench, ITAT, Mumbai
                                                      By Order

                                              Assistant Registrar
                                          Income Tax Appellate Tribunal,
                                            Mumbai Benches, MUMBAI




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