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TMI Blog2010 (1) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... as for the Department to have preferred an appeal before the Tribunal if they were really aggrieved of such deletion rather than the assumption of jurisdiction by the learned Commissioner under section 263 of the Act, which is legally wholly untenable - The Commissioner, whether administrative or appellate, does not have any second appeal powers which vest only in the Appellate Tribunal by virtue of section 253 Regarding genuineness of the security deposits - The assessing authority further found that the amount so deposited was returned back to them after the contract was over and the confirmatory letters were filed by the salesmen - It may be that the inquiry, according to the Commissioner of Income-tax, was not a detailed inquiry which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest of the revenue. He held so on the ground that the Assessing Officer has not given any reason for arriving at the conclusion that the gross profit rate disclosed at 9.9 per cent was considered to be reasonable. According to learned CIT, neither any detailed enquiry through notice under section 143(3) was made nor the assessee was required through order-sheet entry to prove the trading results. It was further held that the Assessing Officer committed a gross error in accepting the book results without making proper enquiry and without bringing out the material on record. The learned CIT also observed that as the assessee had not produced cash memo for verification of sales, the order of the Assessing Officer was not a proper order and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer along with the trading result. Even at the cost of repetition, it may be stated that the non-issue of cash memos of retail sales was explained by the assessee and the method adopted finds support from the decision of the jurisdictional High Court in the case of Ramjilal and Sons, referred to supra. The law applied by the learned Commissioner in the case of Awadesh Pratap Singh is also found to be distinguishable. In the circumstances, it appears difficult for us to say that the order rendered by the Assessing Officer on the point of gross profit is erroneous. No legal error could be pointed out. For arriving at a legal error, there must be some prima facie material shown to exist whereby it could be said that the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to the provisions of section 263(1)(c) do not help the Department as they refer only to such matters as have not been considered and decided in an appeal preferred by the assessee. It is only then and then alone that the powers of the Commissioner shall extend to such aspect of the matter. We would not like to make comments on the observations made by the learned Commissioner that the Assessing Officer failed to scrutinise the item of expenses and made only lump sum disallowances, deleted by the learned CIT(A). It was for the Department to have preferred an appeal before the Tribunal if they were really aggrieved of such deletion rather than the assumption of jurisdiction by the learned Commissioner under section 263 of the Act, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment order also went to say that confirmation from the salesmen had been filed as required by the Assessing Officer and placed on record. We feel that even on this score there is nothing, which appears, could be unusual, much less warranting any action under section 263 of the Act. If the security deposits by the salesmen were found at the beginning of the accounting period and the taking of such deposits was customary in the relevant period, which deposits were eventually returned, what else the assessee could have done except filing confirmatory letters from the salesmen, which he did. There also appears to be some force in the contention raised that if any addition could have been made, the same could be in the hands of a particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly, wherein salesmen were appointed to carry out the sales of the country liquor. It was found that it was customary in this business that the salesmen are required to deposit security money with the firm. The assessing authority further found that the amount so deposited was returned back to them after the contract was over and the confirmatory letters were filed by the salesmen. Therefore, it cannot be said that in respect of the deposits made by salesmen, the assessing authority has not applied his mind and has not made any enquiry. It may be that the inquiry, according to the Commissioner of Income-tax, was not a detailed inquiry which ought to have been done but that will not make the order erroneous. This Court in the case of CIT v. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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