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TMI Blog2013 (12) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer considered amounts not deductible under section 40A(3) for making addition of Rs. 66,424. On verification of the transport charges made to disallowance of expenses amounting to Rs. 22,200 and the income from trucks owned by the assessee were computed under section 44AE when depreciation thereon was also disallowed. The Assessing Officer also made addition of house property income when the claim of interest was disallowed and the investment in the house property was considered separately as income from other sources. This was appealed against before the first appellate authority and vide order dated August 17, 2011 was passed granting part relief to the assessee on the appeal instituted on December 15, 2009. Learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri v. CIT [1988] 173 ITR 280 (AP). He further argued that the impugned order is illegal because there is no finding in the order under section 263 as to how the order is erroneous and prejudicial to the interests of the Revenue. He further contended that question of liability to deduct tax at source under section 194C and under section 40(a)(ia) of the Income-tax Act will arise only if the assessee engages the transporters as sub-contractor, either to carry out the whole, or part of the whole of the transport contract. But the assessee had not employed any sub-contractor nor has made any payment in pursuance to any oral or written agreement. For this proposition, learned counsel for the assessee placed reliance on the decisions in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be complied due to communication gap between the assessee's lawyer and the learned Commissioner should have given further opportunity for compliance with the notice in the interest justice. An order without affording reasonable opportunity of being heard is against the principle of natural justice and hence is a nullity. The order under section 263 dated March 30, 2012 passed by the learned Commissioner of Income-tax is illegal as there is no finding that the order sought to be revised is erroneous and prejudicial to the interests of the Revenue. No material evidence have been brought on record to indicate to satisfy himself that the assessment is erroneous and prejudicial to the interests of the Revenue which is the primary requiremen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned orders of the authorities below. We are unable to satisfy ourselves to the linking of the show-cause notice to the order passed by the learned Commissioner of Income-tax under section 263 on March 30, 2012 being the impugned order before us. The learned Commissioner of Income-tax has observed that the Assessing Officer was to call the audited books of account for the impugned assessment year to examine the claim of transportation charges which the Assessing Officer had already seen and was appealed before the appellate authority in which part relief was granted by the learned Commissioner of Income-tax (Appeals). The learned Commissioner of Income-tax, vide his order under section 263 also directed the Assessing Officer to call for info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Commissioner of Income-tax (Appeals) was also sent to the concerned Commissioner of Income-tax (Administration). On our perusal of the same, we do find that assumption of jurisdiction has been on misinterpretation of facts and non-application of mind to the extent that the learned Commissioner of Income-tax himself has directed the Assessing Officer without pointing out any error prejudicial to the interests of the Revenue either to the assessee or to the Assessing Officer. Therefore, finding no merit in the order of the learned Commissioner of Income-tax and the learned Commissioner of Income-tax-Departmental representative has only supported the order without highlighting the nature of defect, if any, in the assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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