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TMI Blog2017 (9) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,892/- had been duly paid by the assessee to M/s. Sayan Shipping and Cleaning Agency Pvt. Ltd.. There cannot be any loss to the revenue in as much as the entire sum had been paid and was admittedly an allowable expenditure in connection with the business of the assessee. It cannot also be said that order of the AO was erroneous as the nature of error in the order of the AO has not been brought out in the order of the CIT. The CIT in the impugned order has not spelt out as what are the discrepancies between the ledger account statement of M/s. Sayan Shipping and Cleaning Agency Pvt. Ltd. and the bill numbers as furnished by the assessee. Without bringing material on record to show that the order of the AO was erroneous the CIT cannot invoke jurisdiction u/s.263 of the Act. - Decided in favour of assessee. - ITA No.1077/Kol/2017 - - - Dated:- 13-9-2017 - Hon ble Shri N.V.Vasudevan, JM And Shri Waseem Ahmed, AM For The Appellant : Shri S.K.Tulsiyan, Advocate For The Respondent : Shri G.Mallikarjuna, CIT(DR) ORDER PER N.V.VASUDEVAN, JM: This is an appeal by the assessee against the order dated 29.03.2017 passed by the Ld. Pr. Commissioner of Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d.' under this head. But information received from Sayan Shipping Cleaning Agency P. Ltd. reflected that the very company had earned ₹ 45,04,818/- from 'service charges'. So, the Assessee s claim of payment of ₹ 70,52,892/- to the said party was not correct. It was the further case of the CIT in the show cause notice that the Assessee had claimed excess deduction of ₹ 25,48,074/- [Rs.70,52,892 - Rs,45,04,818] under the head clearing and forwarding charges which should have been brought to tax. 5. In reply to the aforesaid show-cause notices, the assessee filed its written submission on 24.01.2017. In its reply the Assessee filed copies of all the 26 bills issued by M/s.Sayan Shipping Cleaning Agency P. Ltd., ledger account of the said party, bank statement of the assessee and a summary of the aforesaid bills showing head-wise expenses which reconciled with the amount declared in the books of account. These bills had been filed before the AO when the AO completed the Assessment proceedings. The Assessee further explained that each of the bill were distinctly divided in two parts - one part contained the basic amount inclusive of service tax and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forwarding charges and extra expenditure of ₹ 24,35,988/- separately incurred for reimbursement of CFS charges at the port on the basis of bills issued by the party and entry in the books. It was pointed out that the payments to the above gross figure of ₹ 70,52,892/- have been made through bank and duly recorded in the bank statement furnished before CIT. It was submitted that the CIT in the impugned order has held that there was a mismatch on cross-checking with the ledger account statement obtained from the party M/s. Sayan Shipping Cleaning Agency P. Ltd. u/s. 133(6) of the Act. It was submitted that the CIT did not confront the material on the basis of which he came to the above conclusion to the Assessee. It was submitted that neither in the notice u/s. 263 of the Act or order passed thereupon, there was any mention of any particular bill or transaction in which the C.I.T. found difference/mismatch in comparison to bills issued by the party and furnished by the assessee. It was therefore submitted that the CIT has exercised powers u/s.263 of the Act on surmise and conjecture and allowed to pass second round of assessment order on the same set of facts and evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. through banking channel and duly reflected in the assessee's bank statement. It was submitted that it was not the case of the C.I.T. that the said party denied to have received the said amount of ₹ 70,52,892/- through banking channel. It was submitted that M/s.Sayan Shipping Cleaning Agency P. Ltd. might have given only the figures of first part, which the C.I.T. has mentioned in his order. 10. The ld. Counsel for the assessee placed reliance on the decision in the case of CIT v. Gabriel India Ltd. reported in [1993] 203 ITR 108 (Bom) wherein the Hon'ble Court held that jurisdiction u/s.263 of the Act cannot be invoked to make a fishing or a roving enquiry. 11. In light of the aforesaid submissions, it was urged that the order of the CIT u/s 263 of the Act directing to frame the assessment order de novo as per direction/ guidelines contained in his order deserves to be quashed from all angles. 12. The ld. DR relied on the order of CIT and submitted that the assessment in the case of the assessee was completed u/s 144 of the Act and therefore there was no occasion for then AO to have considered all these aspects and therefore the order of CIT directing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cleaning Agency Pvt. Ltd.. There cannot be any loss to the revenue in as much as the entire sum had been paid and was admittedly an allowable expenditure in connection with the business of the assessee. It cannot also be said that order of the AO was erroneous as the nature of error in the order of the AO has not been brought out in the order of the CIT. The CIT in the impugned order has not spelt out as what are the discrepancies between the ledger account statement of M/s. Sayan Shipping and Cleaning Agency Pvt. Ltd. and the bill numbers as furnished by the assessee. Without bringing material on record to show that the order of the AO was erroneous the CIT cannot invoke jurisdiction u/s.263 of the Act. Without a clear finding of what is the error and what is the enquiry that the AO ought to have made, he cannot term the order of the AO as erroneous. The record shows that the Assessee has filed all the details before the AO when the assessment was completed and the AO has not drawn any adverse inference. The direction of the AO to make a fresh enquiry is nothing but a direction to the AO to make fishing or a roving enquiry which is not permissible by exercising jurisdiction u/s.26 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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