9911796707
TMI Blog2014 (1) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 (6) TMI 510 - ITAT, KOLKATA] - disallowance to be made whether could be considered in isolation but without importing in other provisions of Income tax Act, in so far as, the cart cannot be put before the horse - The proceeding should begin on the basis of assessment records available which are the facts brought on record by the AO on such order when the disallowance having been made cannot be further deliberated upon by the CIT to give a direction to disallow the claim either u/s 40(a)(ia) of the Act and if not u/s 40A(3) of the Act. The AO after having carried out adequate enquiries and having verified the claim of expenditure under the provision of section 40(a)(ia) of the Act had partly disallowed which disallowance have been appealed before the First Appellate Authority cannot be thrust upon the AO for re-consideration in the line of holding a view which view as per the show cause notice and as per the deliberation in the order differ – order u/s 263 set aside – Decided in favour of Assessee. - ITA No.632/Kol/2012 - - - Dated:- 19-4-2013 - K K Gupta and Mahavir Singh , JJ. ORDER:- PER : K K Gupta This appeal by the assessee is on the ld. C.I.T. assuming ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid without seeking supporting evidence or submissions from the assessee and without examining TDS liability under provision of Sec.194C of the Act, the AO has rendered the assessment order both erroneous and prejudicial to the interest of Revenue. 3. However, on having found no specific defects or matters erroneous and prejudicial to the interest of the Revenue the ld. CIT in his order has tried to reconsider the option to the AO, in so far as, after having established that the facts of the assessee s case clearly indicate invoking the provision of chapter XVII B whether could proceed with the consequent disallowance u/s 40(a)(ia) of the Act was deliberated upon by the ld. CIT in the impugned order when the ld. CIT has tried to justify the assuming of the jurisdiction u/s 263 of the Act by him by holding a view that the AO never ever considered to have combined the committing of error as well as loss to the revenue. The ld. CIT quoted several directions without distinguishing the facts, in so far as, the show cause notice indicated that he was to revisit the disallowance of expenses whether could be considered as a combined deliberation of invoking the provision of section 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd remitted the matter to the file of the ld.Assessing Officer for further re-examination and re-verification of all the facts and to frame the assessment fresh. It is an admitted fact that the impugned proceedings u/s 263 of the Act was conceived for disallowing the payments under the head Hire Charges and Carriage for not examining the scope of the provision of s.194C of the Income Tax Act, 1961. whereas, the impugned conclusions reached by the Ld.Commissioner in his order passed u/s 263 of the Act clearly portrays the findings which are materially different that the reasons for which revision proceedings were originally initiated. The Ld. Commissioner in his impugned order passed u/s 263 of the Act has abandoned his original stand conceived during the initiation of the impugned proceedings and as such, the findings reached by him show a patently illegal approach in as much as no part of the order assailed was proved to be erroneous and prejudicial to the interest of revenue. Where a plain reading of the impugned revision order clearly shows that the conclusions drawn in the revision proceedings, are materially different than the reasons for which revision proceedings were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard. 5. For this proposition he has filed a copy of the order of the ITAT B Bench reported in 25 Taxmann.com 425 (Kol) in the case of Vesuvius India Limited vs CIT which is directly on the issue that a reasoning whether could be thrust upon the AO was to be material for assuming jurisdiction u/s 263 of the Act for the purpose of holding the order erroneous and should be adjudicated as prejudicial to the interest of the Revenue was different in so far as the AO had also considered the same without actually adjudicating on it in a detailed manner. However the ld. Counsel has filed the Paper Book enclosing all the details filed before the AO were part of the assessment records perused by the ld. CIT u/s 263. 6. The ld. DR supported the order of the ld. CIT in so far as the ld. CIT in his order has justified the invoking the provision of Chapter XVIIB and in the interest of natural justice directed the AO to further re-examine and re-verify in the lines of what he considered whether could be considered if not u./s 40(a)(ia) of the Act or 40A(3) of the Act. 7. We have heard the rival contentions and carefully perused the material available on record. On careful perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
