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2015 (8) TMI 1296 - ITAT CHANDIGARHRevision u/s 263 - tds non deductibility - inadequate v/s no inquiry - whether the arrangement between Appellant and the pre-paid distributors during the subject FY was on a 'principal to agent' basis and the Appellant had duly deducted tax u/s 194H of the Act on the commission paid to the pre-paid distributors? - Held that:- It would be a case of splitting of hair if we try to distinguish between the expression 'verified' used in the notice and 'dealt with' used in the revisionary order. The basic meaning of both the expressions is same and means that issue has not been examined by the Assessing Officer. No doubt it has been mentioned that it was noticed that person responsible of the assessee has not deducted the tax at source from the payments made towards commission/incentive on prepaid cards u/s 194H of the Act. It is not clear whether this observation is made with reference to the survey proceedings or proceedings u/s 201. However, the careful reading of the whole order clearly shows that no question has been asked with respect to non-deduction of tax on commission/incentive on prepaid cards. No reply seems to have been given. Assuming for arguments sake, that it is not necessary to mention everything in the order but nothing has been field before us to show that relevant question on this issue was asked by the Assessing Officer and replied were also given. Therefore, it is a clear case of non-enquiry in respect of this issue. The Ld. CIT-DR has correctly submitted that Assessing Officer has merely set up a preamble on this issue in the first para but has not made any enquiry in this respect. In this regard we may mention that mere non enquiry would also render a particular order passed by lower authority as erroneous and prejudicial to the interest of Revenue. No doubt that Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. (2000 (2) TMI 10 - SUPREME Court ) has held that if Assessing Officer has taken a particular view which is legally possible then such order cannot be held to be erroneous and prejudicial to the interest of Revenue. However, as we have seen above, this is a case of non-enquiry and, therefore, it cannot be said that Assessing Officer has taken a particular view.. In view of the above discussion, we uphold the revisionary order passed u/s 263 by Ld. Commissioner. - Decided against assessee
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