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TMI Blog2012 (11) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order passed on the directions of the Administrative commissioner - held that:- it was not shown to us that the Ld CIT(A) has considered issues which have attained finality in the earlier proceeding. - the assessment order passed u/s 143(3) r.w.s. 263 can very well be appealed before the Ld CIT(A) in respect of the issues which have not already been decided by the appellate authority. - Decided in favor of revenue. Unaccounted Payments - rebuttable presumption u/s 132(4A) - Held that:- Considering the quantum of work undertaken by the company and the position of the officials, it would be reasonable, AO was justified in making the addition of Rs.30,25,850/-. Accordingly, we set aside the order of Ld CIT(A) on this issue and restore the addition made by the AO. Illegal payments - held that:- payments made to the officials of NHAI amounting to Rs.57.50 lakhs are illegal - no infirmity in the decision of CIT(A) in confirming the addition of Rs.57.50 lakhs. - it is seen that the assessee did not explain the entries found in the incriminating documents except stating that they have not made such payments. In this kind of situation the presumption provided u/s 132(4A) comes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any proceedings under the Act and, if he considers that any order passed therein, by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, to pass an order upon hearing the assessee and after an enquiry as is necessary, enhancing or modifying the assessment or cancelling the assessment and directing a fresh assessment. The key words that are used by section 263 are that the order must be considered by the Commissioner to be erroneous in so far as it is prejudicial to the interests of the Revenue . This provision has been interpreted by the Supreme Court in several judgments to which it is now necessary to turn. In Malabar Industrial Co. Ltd. v. CIT [2000] 243 ITR 83, the Supreme Court held that the provision cannot be invoked to correct each and every type of mistake or error committed by the Assessing Officer and it is only when an order is erroneous that the section will be attracted . The Supreme Court held that an incorrect assumption of fact or an incorrect application of law, will satisfy the requirement of the order being erroneous. An order passed in violation of the principles of natural justice or without application of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the assessment order passed on the directions of the Administrative commission would fall outside the jurisdiction of Ld CIT(A). The contentions raised by the revenue, in our view, are not in accordance with the scheme of the Act. The revenue has not adduced any authority to the contentions so raised by it. It can be noticed that the Administrative Commissioner only directs the AO to examine certain issues and it is the exclusive right and prerogative of the AO to take a view in accordance with law after the examining the issues that were set aside to him by the Administrative Commissioner. There cannot be any dispute that the view taken by the AO cannot be taken as the view of the Administrative Commissioner. It is also well settled proposition of law that the Administrative Commissioner cannot impose his views on the Assessing officer. It is apposite here to extract the following observations made by Hon ble Bombay High Court in the case of Hardilla Chemicals Ltd Vs.CIT (221 ITR 194):- In our opinion, though the appeal is maintainable from the fresh order passed by the Income tax officer to give effect to a revisional order or an appellate order, only such issues can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anup Kumar Shah should have been considered as the owner of the cash as per the presumption provided u/s 132(4A) of the Act. 8. We have heard the parties on this issue and perused the record. There cannot be any dispute that the presumption provided u/s 132(4A) is a rebuttable presumption. Though the cash was seized from Shri Anup Kumar Shah, he has explained that the same was handed over to him by Shri S.K.Jain, the Vice President of the company. The AO has taken statements from Shri S.K.Jain and he has accepted that he has given an amount of Rs.15.00 lakhs to Shri Anup Kumar shah and he further stated that the said cash was sent through a person named Shri Ashok Kumar Singh. Shri S.K.Jain has also stated that the cash belong to the assessee-company herein. The AO has taken statement from the carrier Shri Ashok Kumar Singh also, who has also confirmed that the amount that was handed over to Shri Anup Kumar Shah, was received by him from shri S.K.Jain. The statements taken from the three persons clearly show that the amount of Rs.15.00 lakhs belonged to the assessee-company herein. The statement of Shri S.K.Jain, who was holding the responsible position of Vice President has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee, having failed to rebut the presumption, in our view, the AO was justified in making the addition of Rs.30,25,850/-. Accordingly, we set aside the order of Ld CIT(A) on this issue and restore the addition made by ld CIT(A). 10. We shall now take up the appeal filed by the assessee which is numbered as IT(SS)A 57/C/2008. This appeal is preferred against the order dated 24.10.2008 passed by Ld CIT(A)-II, Kochi against the assessment order passed u/s 143(3) r.w.s. 263 of the Act. The assessee is assailing the decision of ld CIT(A) in confirming the following additions made by the AO. (a) Illegal payments made to the officials of NHAI - Rs.57.50 lakhs. (b) Payments not accounted in the books - Rs.12.50 lakhs 11. The first issue relates to the illegal payments made to the officials of NHAI amounting to Rs.57.50 lakhs. We have discussed identical issue in para 9 supra. For the reasons stated in that paragraph, we do not find any infirmity in the decision of Ld CIT(A) in confirming the addition of Rs.57.50 lakhs. 12. The next issue relates to the addition of Rs.12.50 lakhs. The AO made an addition of Rs.40.50 lakhs as the vouchers pertaining thereto were not found acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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