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TMI Blog2014 (12) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... eds re-consideration, therefore, he was setting aside the issue and referring back to the table of the AO for re-consideration. Section 263 does not give any power whatsoever to the ld.CIT to remit the issue to the file of the AO without his finding that the order of the AO is erroneous insofar as it is prejudicial to the interest of the revenue - CIT's order passed u/s. 263 is not sustainable as the he has not given a finding that the order of the AO passed u/s. 143(3) of the Act is erroneous in so far as it is prejudicial to the interest of the revenue and had simply set aside the matter and referred back to the table of the AO for re-consideration. In our view this is not at all permissible u/s. 263 - Decided in favour of assessee - I.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, on examination of the assessment records, it is noticed that the assessee has not deducted TDS on an aggregate sum of ₹ 38,08,021/- i.e rent of ₹ 20,37,840/-, consultancy charges of ₹ 1,08,275/-, professional charges of ₹ 4,80,000/- and sales promotion charges of ₹ 11,81,906/-. Accordingly, the aggregate sum of ₹ 38,08,021/- should have been disallowed u/s. 40(a)(ia) of the IT Act, 1961. The order dated 19-12-2011 passed u/s. 147/143(3) of the Income Tax Act, 1961 is erroneous insofar as it is prejudicial to the interest of the revenue. 3. Notice U/s. 263 was issued on 20-03-14. In response of the notice Mr. Babul Bisewas, A.R of the assessee appeared and filed a written submission. The assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.T Act 1961 provides for the ld.CIT to pass an order of revision, if he considers that any order passed by the AO is erroneous in so far as it is prejudicial to the interest of the revenue. The Hon'ble Apex Court had an occasion to expound upon the provisions of section 263 in the case of M/s. Malabar Industrial Co. Ltd (supra). It was held that for assuming jurisdiction u/s. 263 the ld.CIT has to satisfy twin conditions namely, a) the order of the AO sought to be revised is erroneous and b) it is pre-judicial to the interest of the revenue. If any of them is absent i.e if the order of the ITO is erroneous, it is not prejudicial to the revenue, if it is not erroneous or pre-judicial to the revenue u/s. 263(1). It was further held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .CIT to remit the issue to the file of the AO without his finding that the order of the AO is erroneous insofar as it is prejudicial to the interest of the revenue. Accordingly, we are of the opinion that the ld.CIT's order passed u/s. 263 of the Act is not sustainable as the ld.CIT has not given a finding that the order of the AO passed u/s. 143(3) of the Act is erroneous in so far as it is prejudicial to the interest of the revenue. The ld.CIT has simply set aside the matter and referred back to the table of the AO for re-consideration. In our view this is not at all permissible u/s. 263 of the Act. Accordingly, we set aside the order passed by the ld.CIT u/s. 263 of the Act and decide the issue in favour of the assessee. 8. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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