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TMI Blog2011 (6) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer, though it has been considered to be inadequate by the CIT, recourse under section 263 cannot be made - Decided in favour of the assessee - IT APPEAL NO. 3238 (DELHI) OF 2009 - - - Dated:- 24-6-2011 - A.D. JAIN, SHAMIM YAHYA, JJ. Salil Kappor and Sanat Kapoor for the Appellant. Ms. Reena Puri for the Respondent. ORDER Shamim Yahya, Accountant Member. This appeal by the Assessee is directed against the order of the ld. Commissioner of Income-tax (Appeals) dated 30-3-2009 pertaining to assessment year 2004-05. 2. The grounds raised read as under : "On the facts and circumstances of the case and in law, the ld. Commissioner of Income-tax-IV, New Delhi (hereinafter referred to as the Learned CIT) erred in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds stamp duty under bank charges and guarantee commission, which is capital in nature and should have been disallowed. 3.1 The ld. Commissioner of Income-tax noted that due to inadvertent error wrong narration in respect of amount of Rs. 3,10,22,106 was mentioned in notice dated 10-2-2009. The correct narration being expenditure of Rs. 3,10,22,106 towards loan arrangements and guarantee commission was communicated to the assessee vide this Official letter dated 24-3-2009. Ld. Commissioner of Income-tax noted that assessee has made the following submissions : (i) The assessee has submitted that as per the terms of license agreement with the Department of Telecommunication, in terms of migration of National Telecom Policy 1999, effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance has been placed on several decisions including India Cements Ltd. v. CIT [1966] 60 ITR 52 (SC), Jeewanlal Ltd. v. CIT [1969] 74 ITR 753 (SC). In addition to objections on merits the assessee company has also objected to assumption of jurisdiction under section 263 on legal grounds claiming that : (a) The Assessing Officer had duly sought details and replies were given and then only after due application of mind the order was passed, therefore, action under section 263 is not legally tenable. (b) In case two views are possible and Assessing Officer has taken one view then CIT cannot substitute the view of the Assessing Officer for its own. (c) Various case laws have been relied upon including Malabar Industrial Co. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and this lack of enquiry renders the assessment order passed as erroneous and prejudicial to the interest of the revenue as held by the Hon'ble Jurisdictional High Court in the case of Gee Vee Enterprises v. Addl. CIT [1975] 99 ITR 375 (Delhi). Accordingly, CIT held that assessment order dated 29-12-2006 was held to be erroneous and prejudicial to the interest of the revenue and the same are set aside on limited issues discussed in the order. 4. Against the above order the assessee is in appeal before us. 5. We have heard the rival contentions in light of the material produced and precedent relied upon. Ld. counsel of the assessee contended that Assessing Officer has duly issued questionnaire and sought information with regard to all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 75-76 in this regard. Details were inter alia sought from the assessee, regarding other regulatory fee, circle wise, bank charges and guarantee commission. Assessee has given reply in this regard to the Assessing Officer as emanating from page Nos. 84 to 114. The detailed break-up of these expenditure was duly given. No further enquiry was made by the Assessing Officer . In this regard, the assessee's contention is that if Assessing Officer had made enquiries and the enquiries are not adequate, the order cannot be said to be erroneous or prejudicial to the interest of revenue. In this regard, Hon'ble Apex Court decision in the case of Sunbeam Auto Ltd. (supra) is relevant wherein it has been held as under (Heads Notes Only) : "Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enduring nature - It does not enhance the life of the existing machine or increase its production capacity - Therefore, the view taken by the Assessing Officer was one of the possible views and the assessment order passed by the Assessing Officer could not be held to be prejudicial to the revenue." 6.1 Considering the present case on the anvil of the aforesaid case law, we find that Assessing Officer did enquire on all the three items and assessee responded by giving the breakup of expenditure. Though, assessment order does not give reason for allowing the expenditure and Assessing Officer did not make further enquiry, it cannot be said there was lack of enquiry in this case. In this view of the matter, the ratio from the Hon'ble Jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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