TaxTMI 
TaxTMI 
2020 (9) TMI 245
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....w are proposed by the Revenue as the substantial questions of law in the appeal memo: [A] Whether Appellate Tribunal has right in law and on facts by quashing the order passed by the CIT u/s.263 of the Act even though it has clearly been brought out that the order of the Assessing Officer is erroneous in so far as prejudicial to the interest of revenue? [B] Whether Appellate Tribunal has right in law and on facts by quashing the order passed u/s.263 of the Act holding that the issue has been examined at the original assessment stage without appreciating that the issue(s) was never examined by the Assessing Officer during the original assessment proceedings stage? 3. The facts giving rise to this appeal may be summarized as under:3.1 Th....
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....36). (ii) Provision of Rs. 19,94,560/for non achievement of targets and needs to be disallowed. (iii) Sum of Rs. 14,52,503/needs to be disallowed u/s.40(a)(i) since assessee fail to deduct tax at source u/s.195 of the Act." 3.3 In response to the show cause notice, respondent assessee filed reply on 28th March, 2016 explaining that the presumption of the Revenue that income should also be in direct proportion to the amount of TDS is not correct because at times there are some timing difference between Revenue recognition and deduction of tax at source. It was submitted by the assessee that deductor has effected TDS on account of service tax to the tune of Rs. 2,46,96,942/which is included in the invoice whereas service tax collected by....
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....as under:- 4. Heard the respective parties and perused the relevant materials available on record. It appears from the records that the case of the assessee is this that the service tax calculated by the service provider since not the income of the assessee it is not been reflected in the P&L account. Similarly, TDS effected on "reimbursement" of expenses of Rs. 1,46,78,806/is neither the income of the assessee, hence not reflected in P&L account. So far as the difference on account of timing difference of Rs. 2,32,16,538/is concerned, we find that reconciliation statement of difference between service income as per P&L account and as worked out on the basis of the TDS was also furnished before the appellate authority but the same was not....
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.... order passed by the Assessing Officer would not lead to a conclusion that the order of Learned AO calls for interference by the Learned CIT u/s.263 of the Act. The alternative submission made by the Learned assessee's counsel is this respect that when two views are possible as regards a particular issue and the AO adopts either of two such views then jurisdiction u/s.263 cannot be invoked by the Learned CIT is also acceptable. We take inspiration from the judgment passed in the matter of Malabar Industrial Co. Ltd. as been relied upon in this respect. Hence, we find that order impugned u/s.263 of Act cannot satisfy any of the conditions envisaged in the provision of law as discussed above. Fulfillment of two conditions so as to the cla....