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2021 (8) TMI 21 - ITAT MUMBAIRevision u/s 263 - disallowance u/s 40(a)(ia) - HELD THAT:- Accounts of the assessee had made the assessment in the manner provided in Sec. 144, and thus, after rejecting the book results had applied the ‘average of the net profit rate’ of 8.17% to the gross receipts and assessed his income at an estimated figure. We, thus, are of the considered view, that as the A.O while assessing the income on an estimate basis had at no stage considered the assessee’s claim for deduction of the impugned expenses on which TDS is alleged by the Pr. CIT to have not been deducted, thus, no disallowance u/s 40(a)(ia) even otherwise could have been made. As the A.O vide his order passed u/s 143(3) r.w.s 147, dated 25.03.2015 had after estimating the assesee’s income not separately disallowed the aforementioned expenses u/s 40(a)(ia), thus, by so doing had taken a possible view which as on the date of passing of the assessment order was supported by the aforementioned orders of the Hon’ble High Courts and that of the coordinate benches of the Tribunal, therefore, the Pr. CIT was clearly divested of his jurisdiction to have revised the said order in exercise of the powers that were vested with him u/s 263 of the Act. Our aforesaid view that where on the date of framing of assessment two views qua an issue were possible, and the A.O had taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the revenue, unless the view taken by the A.O is unsustainable in law, is supported by the judgment in the case of CIT Vs. Max India Ltd. [2007 (11) TMI 12 - SUPREME COURT] - As such, not finding favour with the order passed by the Pr. CIT u/s 263 of the Act, dated 23.03.2017, we herein set-aside the same and restore the order passed by the A.O u/s 143(3) r.w.s 147, dated 25.03.2015.
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