COMMISSIONER OF INCOME-TAX VS SOUTH INDIA SHIPPING CORPORATION LTD., 2000 PTD-MADRAS-HIGH-COURT-INDIA 1118 (1998)

(a) Income-tax---

----Revision---Powers of Commissioner---Commissioner finding that I.T.O allowing claim for weighted deduction without verifying nature of expenses and under what sub-clause of S.35B(1)(b) claim would fall---Commissioner coming to prima facie conclusion that order of I.T.O. prejudicial to interests of Revenue ---Commissioner debarred from exercising his revisional jurisdiction in the absence of his final conclusion in matter---Indian Income Tax Act, 1961, S. 263.

(b) Income-tax---

----Revision---Doctrine of merger---Powers of Commissioner---Order of I.T.O. subject-matter of revision before Commissioner---Order of I.T.O. did not merge with order of C.I.T. (Appeals) as subject-matter of appeal before C.I.T. (Appeals) was different ---C.I.T. trot barred from exercising revisional powers---Indian Income Tax Act, 1961, S. 263.

For the assessment year 1977-78, the assessee filed a return showing an income of Rs.1,63,72,720. The Income-tax Officer found that there was a variation between the income returned and the income proposed to be assessed which exceeded Rs.l lakh and, therefore, he forwarded the draft assessment order under section 144B of the Income Tax Act, 1961, to the Inspecting Assistant Commissioner calling upon the assessee to file its objections to the proposed order. The assessee did not furnish any reply and the Income-tax Officer completed the assessment under section 143(3) read with section 144E of the Act after granting relief of a sum of Rs.18,63,159 under section 35B of the Act. The assessee preferred an appeal to the Commissioner of Income-tax (Appeals) but the relief granted by the Income tax Officer under section 35B of the Act was not the subject-matter of the appeal before the Commissioner of Income-tax (Appeals). After the disposal of the appeal by the Commissioner of Income-tax (Appeals), the Commissioner of Income-tax having administrative control over the Income tax Officer in exercise of his powers under section 263 of the Act, held that (i) expenditure amounting to Rs.36,53,088 being commission and brokerage paid outside India to brokers, charterers and charterer's brokers through whom contracts were finalised, (ii) expenditure of Rs.20,732 on membership subscription to association and subscription to various magazines and purchase of booklets for obtaining information regarding markets outside India and (iii) expenditure of Rs.52,497 in respect of postage, telegrams, telephone expenses etc., incurred by the brokers in London, did not qualify for weighted deduction under section 3513, that the assessment had been completed by the Income-tax Officer without verifying the nature of the expenses and their eligibility for weighted deduction, that weighted deduction claimed by the assessee had been accepted by the Income-tax Officer without verifying the sub-clause of section 35B(1)(b) under which the claim would be admissible and, therefore, the assessment order was erroneous and prejudicial to the interest of the Revenue. Accordingly he set aside the assessment order with a direction to the Income-tax Officer to pass a fresh assessment order in accordance with law after giving an opportunity to the assessee. On further appeal the 'Tribunal held that the Commissioner of Income-tax did not have jurisdiction to pass the order under section 263 on the ground that the order of assessment merged with the order passed by the Commissioner of Income-tax (Appeals), that the Income-tax Officer had allowed the weighted deduction after examining the details of the expenditure, and that the Commissioner of Income-tax did not come to any belief that the allowance of deduction under section 35B was erroneous as he had merely set aside the order to be redone by the Assessing Officer afresh according to law. The Tribunal, therefore, allowed the appeal preferred by the assessee. On a reference:

Held, reversing the order of the Tribunal, (i) that it was not clear from the order of the Tribunal whether the Tribunal perused the records of assessment as was done by the Commissioner in exercise of his power of revision. A careful reading of the order of the Appellate Tribunal indicated that it had only gone through the order of assessment passed by the Income tax Officer. The Tribunal had not indicated the basis for its conclusion that the expenses claimed by the assessee were examined by the Income-tax Officer in detail, when the Commissioner, after the perusal of records of assessment, arrived at a finding that the claim of the assessee was allowed in a perfunctory manner or in a mechanical manner. The Tribunal overlooked the fact that the objection of the Commissioner was that the Income-tax Officer had not examined the question of allowability of the claim for weighted deduction, under which sub-clause of section 35B (1)(b) of the Act, the claim would fall. Even assuming that the Income-tax Officer had called for the particulars, which were also furnished by the assessee, if the Income tax Officer without probing into the matter further had allowed the claim of the assessee for weighted deduction arid if the Commissioner on the basis of materials formed an opinion that the grant of allowance made by the officer was erroneous had not warranted by law, the jurisdiction of the Commissioner under section 263 of the Act was not ousted. The Commissioner may not have recorded his final conclusion, but the question for exercising the power of revision by the Commissioner is whether the order of the Assessing Officer can be regarded as erroneous and prejudicial to the interests of the Revenue. It may be erroneous in law or in fact. It may be erroneous in the sense that the income-tax Officer had passed the order without properly conducting the inquiry in completion of the assessment and the order may also be erroneous when the expenditure allowed was against the provisions of law. Therefore, the view expressed by the Tribunal that the Income-tax Officer had allowed the clam after examining the records was inconsistent with the positive finding of the Commissioner of Income-tax who recorded the finding on perusal of the entire assessment records. When the Tribunal, on appeal, differed from the finding of fact of the Commissioner, it should have recorded its finding indicating the material on which it cane to such a conclusion.

(ii) That a reading of the order of the Commissioner of Income-tax showed that the Income-tax Officer allowed the weighted deduction on the commission paid to the brokers, charterers and charterers' brokers through whom the contracts were finalised, though the assessee in its reply stated that the payments were made to foreign brokers through whom information was obtained in respect of cargo availabilities and freight rates. The conflicting stand in the claim made before the Assessing Officer as well as before the Commissioner warranted a view that the expenses were allowed by the Income-tax Officer without properly verifying the claim. The Commissioner in exercise of his power of revision can pass such order as the circumstances of the case would justify including an order directing a fresh assessment.

(iii) That the order of the Income-tax Officer which was the subject-?matter of revision before the Commissioner of Income-tax under section 263 of the Act did not merge with the order of the first appellate authority as the subject-matter of appeal before the first appellate authority was different. Therefore, the Tribunal was not correct in holding that there was a merger of the order of the Income-tax Officer with the order of the Commissioner of Income-tax (Appeals) precluding the Commissioner from exercising his revisional powers.

CIT v. Shri Arbuda Mills Ltd. (1998) 231 ITR 50 (SC) and CIT v. Shree Manjunathesware Packing Products and Camphor Works (1998) 231 ITR 53 (SC) fol.

Venkatakrishina Rice Co. v. CIT (1987) 163 ITR 129 (Mad.) distinguished.

CIT v. Gariel India Ltd. (1995) 203 ITR 108 (Bom.); CIT v. Khambhatwala (M.M.) (1992) 198 ITR 144 (Guj.); Chief CIT v. Mysore Sales International Ltd. (1992) 195 ITR 457 (Kar.); Dawjee Dadabhoy & Co. v. Jain (S. P.) (1957) 31 ITR 872 (Cal.); Indian Textiles v. CIT (1986) 157 ITR 112 (Mad.). Ramaswamy Chettiar (K. A.) v. CIT (1996) 220 ITR 657 (Mad.) and Srivilas Cashew Co. v. CIT (1992) 196 ITR 887 (Ker.) ref.

C. V. Rajan for the Commissioner.

P.P. S. Janardhana Raja for Respondent.

JUDGMENT

N. V. BALASUBRAMANIAN, J.---Inpursuance of the directions of this Court in T. C. P. No. 330 of 1984, dated February 28, 1985, the Appellate Tribunal has stated a case and referred the following questions of law for the assessment year 1977-78 for our consideration:

"(i) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in cancelling the order of the Commissioner of Income-tax passed under section 263 in the assessee's case for the assessment year 1977-78?

(2) Whether the Appellate Tribunal's view that the order of the Income tax Officer got merged with the appellate order of the Commissioner of Income-tax (Appeals) and, therefore, the Commissioner had no jurisdiction to invoke the provisions of section 263 is sustainable in law especially when the point considered by the Commissioner of Income-tax (Appeals) was not the subject-matter of appeal at all?

(3) Whether, on the facts and in the circumstances of the case, the assessee was entitled to weighted deduction under section 35B in respect of the expenditure of Rs.37,26,317 detailed in the statement of the case?"

The assessee for the assessment year 1977-78 filed a return of income admitting the income of Rs.1,63,72,720. The Income-tax Officer called for the particulars under section 143(2) of the Act and the details submitted by the assessee were examined by the Income-tax Officer. The Income-tax Officer found that there was a variation between the income returned and the income proposed to be assessed which exceeded the figure of Rs.1,00,000 and, therefore, he forwarded the draft assessment order under section 144B of the Income Tax Act, 1961 (hereinafter to be .referred to as "the Act"), to the Inspecting Assistant Commissioner calling upon the assessee to file its objection to the proposed order. The assessee did not furnish any reply and the Income-tax Officer presumed that the assessee had not objection to offer and completed the assessment under section 143(3) read with section 144B of the Act. In the assessment made the Income-tax Officer, inter alia, granted a relief of a sum of Rs. 18,63,159 under section 35B of the Act and, after granting the deduction completed the assessment.

The assessee preferred an appeal to the Commissioner of Income-tax (Appeals) and it is relevant to mention here that the relief granted by the Income-tax Officer under section 35B of the Act was not the subject-matter of the appeal before the Commissioner of Income-tax (Appeals), and it is not necessary to refer to the appellate order passed by the Commissioner of Income-tax (Appeals) except to notice, for the purpose of this judgment that the relief granted under section 35B of the Act was not the subject-matter of appeal before the first appellate authority.

After the disposal of the appeal by the Commissioner of Income-tax (Appeals), the Commissioner of Income-tax, who is having administrative control over the Income-tax Officer, perused the order of the Income-tax Officer in exercise of his powers conferred upon him under section 263 of the Act. He was prima facie of the view that the Income-tax Officer has allowed weighted deduction under section 35B of the Act in respect of the following expenses incurred by the assessee:

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He was of the view that the aforesaid expenses did not qualify for weighted deduction under section 35B of the Act, and issued a show-cause notice to the assessee calling upon him to file objection as to why the assessment should not be modified. The assessee filed its detailed objections. The Commissioner went through the records, written submissions filed on behalf of the assessee and came to the conclusion that the payment of commission and brokerage did not fall under any specific sub-clause of section 35B(1)(b) of the Act. He also stated that the assessment has been complete by the Income-tax Officer in a perfunctory manner without verifying the nature of the expenses and their eligibility for weighted deduction. He was of the view that weighted deduction claimed by the assessee has been accepted by the Income-tax Officer without verifying as to the sub-clause of section 35B(1)(b) of the Act under which the claim would be admissible. He was, therefore, of the view that the matter should be restored to the Income-tax Officer for reconsideration and he held that the assessment order passed by the Income-tax Officer was erroneous and prejudicial to the interests of the Revenue and set aside the assessment order with a direction to the Income-tax Officer to pass a fresh assessment order in accordance with law after giving an opportunity to the assessee.

The assessee filed an appeal to the Income-tax Appellate Tribunal against the order passed by the Commissioner of -Income-tax under section 263 of the Act. The Appellate Tribunal held that the Commissioner of Income-tax did not have any jurisdiction to pass the order under section .263 of the Act on the ground that the order of assessment was the subject-matter of appeal before the Commissioner of Income-tax (Appeals) and the order was also passed by the Commissioner of Income-tax (Appeals) resulting in the merger of the order of assessment with the appellate order. The Appellate Tribunal also held that the Income-tax Officer had allowed the weighted deduction after examining the details of the expenditure and the question of examining the claim for the weighted deduction under Explanation 2 to section 35B of the Act did not arise on the facts of the case. The view of the Appellate Tribunal was that the Income-tax Officer had applied his mind to the eligibility of the claim made by the assessee for weighted deduction and he has not mechanically allowed the claim. According to the Tribunal, the finality of an order of assessment should not be lightly disturbed, and the view of the Commissioner of Income-tax that the Income-tax Officer had mechanically or perfunctorily made the assessment without proper examination was incorrect. The Tribunal also came to the conclusion that the Commissioner did not come to any belief that the allowance of deduction under section 35B of the Act was erroneous as he has merely set aside the order to be redone by the Assessing Officer afresh according to law. In this view of the matter, the Appellate Tribunal allowed the appeal preferred by the assessee.

The Appellate Tribunal, on the basis of the directions of this Court, has stated a case and referred the questions of law set out supra.

Learned counsel for the Revenue submitted that the Tribunal was wrong in holding that there was a merger of the assessment with the appellate order passed by the Commissioner of Income-tax (Appeals). He further submitted that the Income-tax Officer was wrong in granting a relief under section 35B of the Act without properly verifying the nature of the expenditure and without holding under which clause the expenditure in question would fall. He also submitted that the Commissioner considered the matter and was of the prima facie view that the items claimed by the assessee would not fall under any one of the sub-clauses of section 35B(1)(b) of the Act. According to him, the view of the Appellate Tribunal that the Income tax Officer has applied his mind before granting dedi9tion is also not correct as the order of the Income-tax Officer does not indicate that he has applied his mind for the deduction in question as the expenditure incurred did not come under any specific provisions of section 35B of the Act.

Mr. Janarthana Raja, learned counsel for the assessee, on the other hand, submitted that the order of the Income-tax Officer clearly shows that the Assessing Officer called for the details and examined the same and the grant of deduction was not against any provision of Law. According to learned counsel for the assessee, the Commissioner of Income-tax had not applied his mind properly and in the absence of any finding that the order was erroneous and prejudicial to the interests of the Revenue, the Commissioner had no jurisdiction to revise the order of assessment. Learned counsel for the assessee submitted that the finding of the Appellate Tribunal that the Income-tax Officer had examined the matter in an elaborate manner is a finding of fact and, therefore, this Court should not interfere with the finding of fact. According to learned counsel for the assessee, the payments were made to foreign brokers through whom information was obtained in respect of cargo availabilities and freight rates and on the basis of the information furnished, the freight contracts were finalised and the expenditure was incurred for obtaining market information.

We have carefully considered the submissions of learned counsel. The order of the Commissioner of Income-tax discloses that he has gone through the records of assessment and on the basis of the assessment records, he recorded a finding that the assessment was completed by the Income-tax Officer in a perfunctory manner without verifying the nature of the expenditure and the eligibility of the claim for weighted deduction under _ _? Act. The Appellate Tribunal has recorded a finding that the Income-tax Officer called for certain clarification with regard to certain items of expenses for which the payments were made to the parties in India and only after examining the same, the Income-tax Officer allowed the deduction. It is not clear from the order of the Appellate Tribunal whether the Appellate Tribunal perused the records of assessment as was done by the Commissioner in exercise of his power of revision. A careful reading of the, order of the Appellate Tribunal indicates that it has only gone through the order of the assessment passed by the Income-tax Officer. The Tribunal has not indicated the basis for its conclusion that the expenses claimed by the assessee were examined by the Income-tax Officer in detail, when the Commissioner, after the perusal of records of assessment, arrived at a finding that the claim of the assessee was allowed in a perfunctory manner or in a mechanical manner. The Tribunal, no doubt, referred to the claim of deduction of the assessee under section 35B(1)(b)(ii) and (iv) of the Act. The Tribunal overlooked the fact that the objection of the Commissioner was that the Income-tax Officer had not examined the question of allowability of the claim for weighted deduction under which sub-clause of section 35B(1)(b) of the Act the claim would fall. We are of the view that even assuming that the Income-tax Officer had called for the particulars, which were also furnished by the assessee, if the Income-tax Officer without probing into the matter further had allowed the claim of the assessee for weighted deduction and if the Commissioner on the basis of materials forms an opinion that the grant of allowance made by the Officer was erroneous and not warranted by law, the jurisdiction of the Commissioner under section 263 of the Act is not ousted. The Commissioner may not have recorded his final conclusion, but the question for exercising the power of revision by the Commissioner is whether order of the Assessing Officer can be regarded as erroneous and prejudicial to the interests of the Revenue. It may be erroneous in law or in fact. It may be erroneous in the sense that the Income-tax Officer had passed the order without properly conducting the inquiry in completion of the assessment and the order may also be erroneous when the expenditure allowed was against the provisions of law. Therefore, the view expressed by the Appellate Tribunal that the Income-tax Officer had allowed the claim after examining the records is inconsistent with the positive finding of the Commissioner of Income-tax who recorded the finding on perusal of the entire assessment records. When the Appellate Tribunal, on appeal, differs from the finding of fact of the Commissioner, it should have recorded its finding indicating the material on which it came to such a conclusion.

Learned counsel for the assessee produced before us a copy of the reply sent by the assessee to the show-cause notice issued by the Commissioner of Income-tax under section 263 of the Act and according to the statement filed alongwith the show-cause notice which was apparently filed before the Income-tax Officer at the time of completion of assessment, the commission and brokerage on freight demurrage amounting to Rs.36,53,088 represented the payments made to the brokers, charterers and charterers' brokers through whom the contracts were finalised and in the reply to the show-cause notice, the assessee has stated that the expenditure was incurred for obtaining information regarding markets outside India as regards cargo availabilities and freight rates and the payments were made to foreign brokers through whom the information was obtained. The Commissioner in his order referred to the allowance made by the Income-tax Officer of Rs.36,53,088 being the expenditure incurred by way of Commission and brokerage paid outside India to brokers, charterers and charterers' brokers through whom the contracts were finalised. A reading of the order of the Commissioner shows that the Income-tax Officer allowed the weighted deduction on the commission paid to the brokers, charterers and charterers' brokers through whom the contracts were finalised, though the assessee in its reply stated that the payments were made to foreign brokers through whom information was obtained in respect of cargo availabilities and freight rates. The conflicting stand in the claim made before the Assessing Officer as well as before the Commissioner would warrant a view that the expenses were allowed by the Income-tax Officer without properly verifying the claim. Further, the Commissioner passed order of revision on two points; one, the expenditure in question did not appear to fall under any one of the specific sub-clauses of section 35B(1)(b) of the Act and further, the assessment was completed by the Income-tax Officer in a perfunctory manner. The Tribunal, in our view, was not correct in holding that the Commissioner has not properly examined the case and it is also not correct in its view that the Commissioner had not come to any conclusion on the basis of records that the allowance under section 35B of the Act was erroneous, but merely set aside the order as not in accordance with law. This view of the Appellate Tribunal is also not correct as the Commissioner in exercise of his power of revision can pass such orders as the circumstances of the case, would justify including an order enhancing or modifying the assessment or cancelling the assessment or directing a fresh assessment.

The Supreme Court in CIT v. Shree Manjunathesware Packing Products and Camphor Works (1998) 231 ITR 53, held that the revisional powers conferred on the Commissioner of Income-tax under section 263 of the Act are of wide amplitude enabling the Commissioner to call for and examine the records under any proceeding of the Act and empowering the Commissioner to make or cause to make such enquiry as he deems necessary in order to find out whether any order passed by the Assessing Officer was erroneous end prejudicial to the interests of the Revenue. Therefore, when the powers conferred upon the Commissioner of Income-tax are of wide amplitude enabling the Commissioner to pass any order, it is not necessary for the Commissioner to record his final conclusion regarding the allowability of the claim of the assessee under section 35B of the Act on the merits of the case. In our opinion, it would be sufficient if he comes to the conclusion on materials that the order of the Income-tax Officer was erroneous and prejudicial to the interests of the Revenue and if such a conclusion is arrived at on materials on record, it is not necessary for him to record his final conclusion on the merits of the case and it is open to the Commissioner to record his prima facie opinion in that matter and set aside the order of assessment and direct the Income-tax Officer to pass a fresh assessment order in accordance with law. The order of the Appellate Tribunal that the Commissioner should record his final conclusion on the question if accepted, would take away the powers conferred upon the Commissioner under section 263 of the Act to pass such order as the circumstances of the case would justify.

This Court in Indian Textiles v. CIT (1986) 157 ITR 112 has taken a view that where the Income-tax Officer had given relief without any proper verification then, such an order would be prejudicial to the interests of the Revenue and can be the subject-matter of revision. In K. A. Ramaswamy Chettiar v. CIT (1996) 220 ITR 657, another Bench of this Court held that when the Income-tax Officer is expected to make an enquiry of a particular item of income and if he does not make any enquiry as expected, that would be a ground for the Commissioner of Income-tax to interfere under section 263 of the Act with the order passed by the Income tax Officer as the order passed by the Income-tax Officer can be construed to be an order which is erroneous and prejudicial to the interests of the Revenue.

Furthermore, it was a claim for weighted deduction made by the assessee and when the Income-tax Officer allowed the claim for weighted deduction, he should have at least in a brief manner indicated whether the assessee was eligible to claim weighted deduction, under which subsection of section 35B of the Act the expenses claimed by the assessee would fall and whether the statutory conditions for allowing the weighted deduction were fulfilled. Even if the order is wholly silent, the records should indicate that the Income-tax Officer has satisfied himself that the statutory conditions were fulfilled. It is well-settled that there cannot be a blanket allowance of weighted deduction.

The statement filed by the assessee before the Income-tax Officer shows that the expenditure was incurred by way of brokerage and Commission paid, and the Commissioner was, therefore, justified in coming to the prima facie conclusion that the assessee was not entitled to claim weighted deduction under any one of the sub-clauses of clause (b) of section 35B(1) of the Act. The Commissioner has recorded a prima facie finding that the expenses incurred do not appear to come under any specific sub-clause of section 35B(1)(b) of the Act and the absence of his final conclusion in the matter by the Commissioner would not in any way debar him from exercising his revisional jurisdiction nor would it render the jurisdiction properly exercised by the Commissioner non est in law. Though the Appellate Tribunal referred to the claim of the assessee that the expenses would fall under sub-clauses (ii) and (iv) of section 35B(1)(b) of the Act, it has not recorded any finding that the view of the Commissioner that they do not come under any sub-clauses of section 35B(1)(b) of the Act was in any way erroneous. The Tribunal referred to the order in the case of Indian Hotel Limited, and it is not clear how the decision in Indian Hotel Limited is relevant in considering the question whether the expenses claimed would fall under any of the sub-clauses of section 35B(1)(b) of the Act.

The Gujarat High Court in CIT v. M. M. Khambhatwala (1992) 198 ITR 144 held that the Commissioner would be entitled to exercise his power of revision if he is of the view that the order of the Income-tax Officer is erroneous and prejudicial to the interests of the Revenue and it is open to the Commissioner to exercise the power even in a case where the issue is debatable. Therefore, the view of the Appellate Tribunal that the Commissioner should have finally determined the matter regarding the deduction under section 35B of the Act is not warranted on the plain terms of section 263 of the Act.

Learned counsel for the Revenue invited our attention to a decision of the Karnataka High Court in Chief CIT v. Mysore Sales International Ltd. (1992) 195 ITR 457, wherein the Karnataka High Court held that the maintenance of the agency should be for the promotion of sale and the commission paid for procuring a particular sale would not qualify for weighted deduction. In Srivilas Cashew Co. v. CIT (1992) 196 ITR 887, the the Kerala High Court has taken a view that the assessee would be entitled to weighted deduction on the commission paid to a local agent under section 35B of the Act. The decisions of the Karnataka and Kerala High Courts, in cur opinion, turn on the merits of the ease and it is not necessary to cypress any view on the merits of the case.

Learned counsel for the assessee strongly placed reliance on a decision of the Bombay High Court in CIT v. Gabriel India Ltd. (1993) 203 ITR 108, wherein the Bombay High Court was considering an order of the Commissioner of Income-tax cancelling the order of the Income-tax Officer. In that case, the Commissioner found that the order of the Income-tax Officer did not contain any discussion with regard to the allowability of the claim for deduction, which indicated the non-application of mind and, therefore, according to the Commissioner, the claim of the assessee required further examination as to whether the expenditure in question was revenue or capitalin nature. The Commissioner, therefore, cancelled the assessment order with a direction to the Income-tax Officer to, make a fresh assessment on the line indicated by him. The Bombay High Court in the above case accepted the tests laid down by the Calcutta High Court in Dawjee Dadabhoy & Co. v. Jain (S. P.) (1957) 31 ITR 872, wherein it was held that the words, "prejudicial to the interests of the Revenue" in section 263 of the Act should be construed to mean that the order of assessment challenged is such that it is not in accordance with law in consequence whereof the lawful revenue due to the State has not been realised or cannot be realised. The Bombay High Court held that there must be materials available on record for the Commissioner to satisfy himself, though prima facie, that the order of the Income-tax Officer was not in accordance with law in consequence whereof the lawful revenue due to the State has not been realised or cannot be realised. The Bombay High Court held that merely because the Income-tax Officer had not made an elaborate discussion about the allowance of the claim of the assessee would not render the order of the Income-tax Officer erroneous and prejudicial to the interests of the Revenue. It is significant to notice, in the case before the Bombay High Court, the Commissioner after invoking the revisional jurisdiction, has not recorded his prima facie view that the claim of the assessee was erroneous and that the expenditure was not revenue in nature, but was capital in nature, but, merely directed the Income tax Officer to re-examine the matter. However, in the instant case, the Commissioner, on examination of records, prima facie, came to the conclusion that payments of Commissioner and brokerage did not appear to come under any of the sub-clauses of section 35B(1)(b) of the Act and he also came to the conclusion that the Income-tax Officer had, in a perfunctory and mechanical manner, allowed the claim of the assessee and that the order was erroneous and prejudicial to the interest of the Revenue as the Income tax Officer allowed the claim without verifying under what sub-clause of section 35B(1)(b) of the Act, the claim would fall. Therefore, when the Commissioner prima facie came to the conclusion that the order passed by the Income-tax Officer was not in accordance with law and the assessment records disclose that the Income-tax Officer had not undertaken the enquiry which was expected of him before - allowing the claim of the assessee for weighted deduction, we hold that the Tribunal was not justified in holding that the Commissioner lacked the jurisdiction to exercise his power of revision.

Learned counsel for the assessee strongly placed reliance on a decision of this Court in Venkatakrishna Rice Company v CIT (1987) 163 ITR 129, wherein-this Court held as under (page 137):

"In our judgment, the expression 'prejudicial to the interests of the Revenue' is not to be construed in a petty-fogging manner, but must be given a dignified construction. It may be noticed that the use of the expression 'Revenue', in our opinion, is significant. It denotes some kind of abstraction or symbol in the same sense, in which the expression 'crown' is used to distinguish it from any person enthroned. The interests of the Revenue are not to be equated to rupees and poise, merely. There is a biblical saying that we do not live by bread alone. Varying this saying, it may be said that the Revenue does not live by tax alone. In this sense, therefore, the interests of the Revenue are not tied up merely with, realising as much revenue as possible, wily nilly, merely looking to the productivity aspect of taxation. The jurisdiction of the Commissioner under section 263 is undoubtedly a supervisory jurisdiction. It is intended .for interference in special cases to counteract orders which are erroneous as well .as prejudicial to the interests of the Revenue. In this context, therefore, the expression 'prejudicial to .the interests of the Revenue' must be regarded as involving a conception of acts or orders which are subversive of the administration of revenue. There must be some grievous error in the order passed by the Income-tax Officer, which might seta bad trend or, pattern for similar assessment, which on a broad reckoning, the Commissioner might think to be prejudicial to the interests of the Revenue administration. There might be cases where the Commissioner might wish to interfere with an order of the Income-tax Officer in order to safeguard the fair name and reputation of the Income-tax Department without arty thought of going into the particular aspects of the assessment. Assessments which .are mala fide, politically and communally motivated may be, however, set aside as 'being prejudicial to the interests of the Revenue. It is unnecessary, for us to illustrate the' point arty further. All that we wish to observe is that the scope of the interference under this section is not to set aside merely unfavourable orders and bring to tax some more money to the treasury. Nor is the section meant to get at sheer escapement of revenue which, as is well known., is taken carp of by provisions elsewhere in the Act such, for instance:, as section 147 of the Act. The prejudice must be prejudice to the Revenue administration."

The above decision is distinguishable on the facts of the case as the Commissioner in the instant case has come to a prima facie view that the order was not in accordance with law and, such, it is prejudicial to the interest of the Revenue. Therefore, in our opinion, the Tribunal was not correct in holding that the Commissioner lacked the jurisdiction and the Tribunal was also not correct in holding that the Commissioner was not justified in exercising his powers of revision. Accordingly, we answer the first question of law in the negative, in favour of the Revenue and against the assessee.

In so far as the second question of law is concerned, it relates to the question of merger. In our view, the order of the Income-tax Officer which was the subject-matter of revision before the Commissioner under section 263 of the Act did not merge with the order of the first appellate authority as the subject-matter of appeal before the first appellate authority was different. Therefore; on the basis of the decision of the Supreme Court in the case of CIT v. Shri Arbuda Mills Ltd. (1998) 231- ITR 50 and CIT v. Shree Manjunathesware Packing Products and Comphor Works (1998) 231 ITR 53, the Tribunal was not correct in holding that there was a merger of -the order of the Income-tax Officer with the order of the Commissioner of Income-tax (Appeals) precluding the Commissioner from exercising his revisional powers. Our answer to the second question of law also is in the negative and in favour of the Revenue.

In so far as the third question is concerned, it relates to the claim of the assessee on the merits of the case. We have seen that the Commissioner in exercising his power of revision has not finally decided the question of allowability of deduction on the merits of the case The Tribunal also has not considered the question on the merits of the case. Therefore, it would not be proper or appropriate at this juncture to render our answer to the third question of law. Since we are upholding the order of the' Commissioner of Income-tax on the question of jurisdiction, we are not answering the third question of law referred to us and we deem fit that it will be proper for the Tribunal to consider the question on the merits. It is made clear that it will be open to the Tribunal to- consider the claim or remit the matter to the Income-tax Officer to consider the question on the merits of the claim. Hence, we are riot answering the third question of law.

Accordingly, the questions referred to us are answered in the following manner:

1st question: It is answered in the negative and 'in favour of the Revenue.

2nd question: It is answered in the negative and to favour of the Revenue

3rd question: The question is not answered:

The Revenue will be entitled to the, costs of the reference of a sum, 500.

M.B.A./3365/FC???????????????????????????????????????????????????????????????????????????????? Order accordingly.