ASK Wealth Advisors Private Limited Vs PCIT (ITAT Mumbai)
Mumbai ITAT: Section 263 Cannot Be Invoked Merely Because SLP Against Jurisdictional Precedent Is Pending Before Supreme Court
The Mumbai ITAT quashed the revisionary order passed under section 263, holding that the mere pendency of an SLP before the Supreme Court against the Karnataka High Court’s decision in Biocon Ltd. does not render the assessment order erroneous and prejudicial to the interests of the Revenue. The Assessing Officer had specifically examined the assessee’s claim for deduction of ₹101.77 crore towards ESOP/ESAR expenditure, called for detailed explanations under section 142(1), considered the judicial precedents, including Biocon Ltd., and consciously allowed the claim.
The Tribunal observed that admission of an SLP does not dilute the binding or persuasive value of an existing judgment unless its operation is stayed or it is reversed by the Supreme Court. Since the Assessing Officer had conducted due enquiry and adopted a legally plausible view, the PCIT could not invoke section 263 merely because he preferred a different view or because the issue was pending before the Supreme Court. Such an exercise amounted to an impermissible change of opinion.
Relying on the Bombay High Court’s decision in Gabriel India Ltd. and the Mumbai ITAT’s ruling in AZB and Partners, the Tribunal held that revision under section 263 is not permissible where the Assessing Officer has made proper enquiries and taken a possible view. Accordingly, the order passed under section 263 was quashed and the original assessment was restored.
Cases Discussed
- AZB and Partners vs. PCIT (ITAT Mumbai), ITA No. 4105/Mum/2025, order dated 19.09.2025
- DCIT vs Avendus Capital P. Ltd. (ITAT Mumbai), ITA No. 6128/Mum/2025
- HDFC Bank Ltd vs DCIT-2(3) (ITAT Mumbai), ITA No. 1828/Mum/2025
- CIT Vs. Biocon Ltd. (SC), [131 taxmann.com 188 (SC)]
- CIT vs Biocon Ltd. (Karnataka HC), (2021) 430 ITR 151 (Karnataka)
- HDFC Bank Ltd. vs DCIT (ITAT Mumbai), (2015) 61 taxmann.com 361 (Mumbai-Trib.)
- PVR Ltd v. Commissioner of Income Tax (Delhi HC), ITA 564/2012
- M/s Kotak Mahindra Bank v. ACIT-2(3)(2) (ITAT Mumbai), ITA No. 698/Mum/2016
- DCIT 2(3)(2) v. M/s Kotak Mahindra Bank v. ACIT-2(3)(2) (ITAT Mumbai), ITA No. 698/Mum/2016
- M/s. India Infoline Limited (ITAT Mumbai), ITA Nos. 2490 and 2620/Mum/2013
- M/s. People Interactive India Private Limited (ITAT Mumbai), ITA Nos. 6990 and 6986/Mum/2013
- ACIT, Circle-7(2)(2), Mumbai v. M/s Network 18 Media & Investment (ITAT Mumbai), I.T.A. No.7501/Mum/2018
- Biocon Limited (ITAT Special Bench), 25 ITR 602
- Gabriel India Ltd. (Bombay HC), (1993) 203 ITR 108 (BOM)
FULL TEXT OF THE ORDER OF ITAT MUMBAI
The instant appeal of the assessee filed against the order of the Ld. Principal Commissioner of Income Tax, Mumbai-6 [for brevity “Ld. PCIT], order passed under Section 263 of the Act (for brevity ‘the Act’), date of order 03.02.2026 for Assessment Year 2022-23. The impugned order emanated from the order of the Assessment Unit Income Tax Department (for brevity ‘Ld. AO’) order passed under section 143(3) r.w.s. 144B of the Act, date of order 28.03.2024.
