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TMI Blog2023 (12) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the Assessing Officer is unsustainable in law . Therefore, we are of the considered opinion that AO s order cannot be termed as erroneous as well as prejudicial to the interest of the revenue and therefore, jurisdictional condition precedent as prescribed by statute for invoking revisional jurisdiction is absent and therefore, we are inclined to quash the impugned order passed by ld PCIT under section 263 of the Act One has to keep in mind the distinction between lack of inquiry and inadequate inquiry . If there was any inquiry, even inadequate, that would not by itself, give occasion to the Commissioner to pass orders under section 263 of the Act, merely because he has different opinion in the matter. If an Income-tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately. Therefore, in the assessee`s case, it cannot be said that it is a case of 'lack of inquiry'. In view of the facts of the case and judicial pronouncements relied upon, it is well established that the impugned order passed u/s 143(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . These details were also furnished to the assessing officer. This fact has not taken into consideration while passing order u/s 263. 4) The PCIT has erred in passing order u/s 263 even though no error is committed by the Assessing Officer in accepting the submission of TDS compliance by the assessee during scrutiny assessment proceedings. TDS compliance were supported by receipt issued by CPC. If the same is not apparent technically on screen, it is not fault or lapse on the part of the assessee as these submissions are supported by valid receipts issued by CPC. These receipts must be accepted by the PCIT. 5) The learned PCIT has erred in considering the assessment order as erroneous as many ITAT has decided that in case of a payment is made to sub-contractor, mere because assessee did not file Form No.15-I/J provisional of section 40(a)(ia) should not attract to such a case and therefore simply for technical laps u/s 194(7) it is not appropriate to disallow the transporter expense. 6) The appellant may be permitted to raise new grounds of appeal or to amend, modify, rectify or to withdraw any grounds of appeal duly raised 2. The assessee has also raised additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- (30% of Rs.2,35,66,362/-) was required to be disallowed. As per ld PCIT, the details of the payment made to various entries where TDS on expenditure is not made, are as under: Sr.No. Name PAN Amount (in Rs) 1 Adarsh Roadlines APTPK6179A 300035 2 Anil B Kushwaha ACPPK1232K 249000 3 Babulal M Bishnoi AQFPB7084A 251150 4 Bhagwant Singh AVVPD2829J 75550 5 Bhikhu Desurbhai Khodbhaya Transport DGNPK4350R 31129 6 Bhuraram Ganesharam AMFPR9858N 250000 7 Chhanabhai R Vasava-transport AHDPV3139M 123725 8 Ganesh Jagamal Bharvad ATJPB5679G 2477161 9 Govin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 31 Shravansingh Rajpurohit ELSPS9384G 2280287 32 Shree Samarth Container BTGPG8539C 76500 33 Siddhivinayak Transporte AAZFS0365B 32415 34 Sudama Prasad Sahu CRWPS1317M 262000 35 Swastik Logistics AMPPS4949H 31000 36 Tejraj Singh Akharam DPAPS7461P 6017075 37 As per bank statement 1503167 38 Tuljaram J Prajapati AZFPP8632D 250000 39 Vasiullah Hakikullah Khan CONPK2282M 85675 40 Veerjeet Logistics AAMFV8955D 130000 41 Vishnu Carting AZPGS0091L 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... response to these notices, assessee has submitted the details regarding non-deduction of TDS and Form15-J and other details demanded by the assessing officer. Therefore, considering the factual position, the issue raised by ld PCIT in his revision order, has been examined by the Assessing Officer. The assessing officer has examined this issue during the assessment proceedings, that is, the list of persons with PAN to whom the freight were given without TDS (tax), has been examined by the assessing officer, which is placed at paper book page-20 of the assessee`s paper book. The assessee has submitted before the assessing officer, the list of persons/transporters in whose case TDS at source u/s 194C of the Act, was not made. In said list, item as per serial no-37, a sum of Rs.15,03,1697- is shown as per bank statement . These persons were hired transporters and not on contract basis. In the similar way, transporters to whom the payment during the year are shown at serial number 4,5,10,13,14,17,18,20,24,28,33,35, and 39, in these cases, receipt of each case is less than Rs. 1,00,000/-, hence TDS is not required to be deducted. These payments of carting in transporters are also hir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erests, commission, Rent, fees for professional services and transporters are attached as Annexure-6. 8. Details of the all payments made to contractors whose TDS is made u/s 194C, is attached herewith as Annexure-7. 14. The Ld. Counsel contended that with Annexure-6 and Annexure-7, submitted during assessment stage, the assessee submitted relevant Form No.15-J also. The Assessing Officer raised the query regarding non-deduction of TDS and in response to that the assessee submitted required documents along with submission before the Assessing Officer. After examination of all the documents and details, the assessing officer did not make addition. Therefore, the order of the Assessing Officer is neither erroneous nor prejudicial to the interest of Revenue. 15. We note that during the assessment proceedings the assessee submitted relevant copies of PAN number and declarations duly signed by the rest of transporters and the same were submitted, before the ld PCTT, during Revision proceedings, vide Page No. 33 to 98 of the Paper Bock. Needs always be arisen when transporter with whom contract is executed are not available for urgent delivery to customer and company is requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be termed as erroneous order. Coming next to the second limb, which is required to be examined as to whether the actions of the AO can be termed as prejudicial to the interest of Revenue. When this aspect is examined one has to understand what is prejudicial to the interest of the revenue. The Hon ble Supreme Court in the case of Malabar Industries (supra) held that this phrase i.e. prejudicial to the interest of the revenue has to be read in conjunction with an erroneous order passed by the Assessing Officer. Their Lordship held that it has to be remembered that every loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue. When the Assessing Officer adopted one of the courses permissible in law and it has resulted in loss to the revenue, or where two views are possible and the Assessing Officer has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the revenue unless the view taken by the Assessing Officer is unsustainable in law . Therefore, we are of the considered opinion that AO s order cannot be termed as erroneous as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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