9911796707
TMI Blog2011 (2) TMI 1578X X X X Extracts X X X X X X X X Extracts X X X X ..... aised various grounds of appeal but the present appeal is being disposed of on the basis of preliminary objection raised by the assessee vide ground No.1. The case of the assessee is that the return of income filed on 31.3.2008 has been subjected to the scrutiny assessment u/s 143(3) of the Act in violation of the CBDT guidelines and as such the plea of the assessee is that the order passed in the case is illegal, arbitrary and unjustified. 3. The Ld. AR for the assessee drew our attention to page 1 of the assessment order wherein the Assessing Officer has observed that subsequently the case was selected into scrutiny as per Board s guidelines for the year 2008-09, as the assessee has claimed deduction u/s 54B / 54D exceeding ₹ 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under which as per clause (7), wherein deduction claimed under sections 54 B / 54D / 54E / 54 EC / 54G / 54GA exceeds ₹ 25 lacs, is to be selected for scrutiny. 4. We have heard the rival contentions and perused the records. The preliminary contention raised by the assessee is against the assessment completed in the case being bad in law because of the failure on the part of the Assessing Officer in picking up the return of income for assessment in violation of CBDT guidelines. Similar issue relating to the vesting of jurisdiction in Assessing Officer on the basis of the selection procedure for cases under scrutiny was addressed by the Chandigarh Bench of the Tribunal in Bhani Chand Vs. ITO (supra) and as per paras 5 6, it has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase where the return of income has been selected for security assessment in violation of the relevant CBDT guidelines. To the similar effect is the decision of the Bilaspur Bench of the Tribunal in the case of Sunita Finlease Limited (supra). 6. In this background we may now examine the factual position in this case. There is no dispute that clause (xv) of para 2 of the circular, which reads as under (xv) All cases of contractors (excluding transporters) whose gross contractual receipt exceed ₹ 1 crore if total income declared from contract work is less than 5% of gross contractual receipts. has been invoked by the Assessing Officer to select assessee s return of income for scrutiny assessment. According to said guideline a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment in violation of the CBDT guidelines, is correct. Accordingly, the impugned assessment is rendered bad in the eyes of law. In the result, the orders of the authorities below are set-aside, being bad in law. The Assessing Officer is directed to accept the returned income as such. 5. In the above said background the factual aspects of the present case are that the Assessing Officer had selected the return of income filed by the assessee for scrutiny for the alleged reasons that the assessee had claimed deduction u/s 54B / 54D exceeding ₹ 25 lacs. According to the guidelines issued by CBDT for selection of cases for scrutiny during 2008-09, clause (7) under ITR 2 and 3 reads as under:- (7). Total deduction claimed u/s 75 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be exercised by the Assessing Officer in line with the guidelines issued by the Board for the year 2008-09. As observed by us in the paras hereinabove, that the selection of the case of scrutiny was in violation of the CBDT guidelines and accordingly the impugned assessment is bad in law. In the result, the orders of the authorities below are set aside being bad in law. The Assessing Officer is directed to accept the returned income as such. 7. In the result Ground No. 1 raised by the assessee is allowed. 8. Since the assessment has been set-aside being in violation of law, the other Grounds raised by the assessee relating to the merits of the various additions/disallowances are rendered academic in nature, and are therefore not b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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