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TMI Blog2023 (8) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... d in setting aside the assessment order dated 30.03.2016 passed u/s 143(3) for making it a fresh holding it to be erroneous and prejudicial to the interest of revenue within the meaning of section 263 of the Income Tax Act, 1961 on the ground that:- a) The penalty u/s 271B should have been initiated in the assessment order passed by AO which was not done. b) The amount of loss on sale of towers at Jaipur project at Rs. 8069180/- which was debited to profit & loss account should have been disallowed being capital in nature. c) The amount of service tax at Rs. 2126345/- which was not paid before the due date of ITR should have been disallowed u/s 43B." 3. Briefly stated, in this case, ld. Pr.CIT issued notice to the assessee that followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (B)(9b) of tax audit report, statutory liabilities of Rs. 22,36,295/ - on account of service tax of Rs. 21,26,345/- and WCT of Rs. 22,194/- was not paid on or before due date of filing of return of income u/s 139(1) of the Act. Therefore, the statutory liabilities of Rs. 22,36,295/- not paid within the due date of filing of return of income u/s 139(1) of the Act cannot be allowed u/s 43B and is liable to be disallowed and be added to the income of assessee for A.Y 2013-14. However, the AO had allowed such deduction as claimed by the assessee, leading to passing of an erroneous order in so far as it was prejudicial to the interest of Revenue." 4. Ld. Pr. CIT was not satisfied with the response of the assessee and finally held that the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he referred to paper book page no.54 where this item was pointed out by the audit party as 'incorrect allowance of capital expenditure'. Ld. Counsel for the assessee in this regard referred to following case laws for the proposition that revision u/s 263 is not permissible on the basis of the objection of the audit party :- (i) CIT vs. Sohana Woollen Mills 296 ITR 0238 (P&H); (ii) Paramjit Sing vs. Pr. CIT (2018) 48 CCH 0199 (Chd) (iii) M/s. Refex Industries Ltd. vs. DCIT, ITA No.972/2014 dated 09.09.2014 (Chennai); (iv) Sartaj Singh vs. Pr. CIT (2016) 179 TTJ 0017 (ASR)(UO); (v) Jaswinder Singh vs. CIT (2012) 150 TTJ 0033 (Chd); (vi) Vikram Kaswan vs. CIT (2016) 46 CCH 0561 (Chd.) Furthermore, ld. Counsel of the assessee submi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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