AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2021 (8) TMI 21
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.... providing an adequate opportunity of being heard to the appellant as per the ground stated in the order or otherwise. 2. The Appellant submits that the order U/s. 263 of the Act made by the Pr. Commissioner is bad in law, erroneous, invalid, void, in excess of and / or in want of jurisdiction and otherwise illegal. 3. On the facts and circumstances of the case and in law the Pr. Commissioner erred in holding that the assessment order passed by the Assessing Officer u/s. 143(3) r.w.s 147 of the Act was erroneous and / or prejudicial to the interests of the revenue within the meaning of the provisions of section 263 to the extent AO's action of not disallowing an amount of Rs. 59,28,094/- paid towards equipment hire charges, job work charges and labour charges as per the ground/s contained in the order or otherwise. 4. On the facts and circumstances of the case and in law the Pr. Commissioner failed to consider that the assessment as framed by the Assessing Officer was after due application of mind and after considering the detailed replies on various dates as filed before him during the course of assessment proceedings. 5. The Appellant craves leaves to add, to amend, a....
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....e culmination of the assessment proceedings the Pr. CIT called for the assessment records of the assessee. Observing that the assessee had in his profit & loss account debited expenses amounting to Rs. 59,28,094/-, without deducting tax at source which as per the mandate of law it was obligated to do, the Pr. CIT held a conviction that the A.O had erred in not disallowing the said expenses u/s 40(a)(ia) of the Act. Being of the view that the failure on the part of the A.O to disallow the aforesaid expenses u/s 40(a)(ia) of the Act had rendered the assessment order passed by him u/s 143(3) r.w.s 147, dated 25.03.2015 as erroneous in so far it was prejudicial to the interest of the revenue u/s 263 of the Act, the Pr. CIT issued a 'Show cause' notice ('SCN'), dated 20.02.2017 and called upon the assessee to explain as to why the assessment order passed by the A.O u/s 143(3) r.w.s 147, dated 25.03.2015 may not be revised for the said reason. As the reply filed by the assessee did not find favour with the Pr. CIT, therefore, vide his order passed u/s 263, dated 23.03.2017 he held the assessment order passed by the A.O u/s 143 (3) r.w.s 147, dated 25.03.2015 as erroneous in so far it was....
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....4858/Mum/2016, dated 21.08.2019; and (ii). M/s Platinum Properties Vs. The DCIT, ITA No. 2600/Mum/2012. It was submitted by the ld. A.R that in the case of Shri. Suresh G. Hundia (supra) a delay of 2017 days was condoned by the Tribunal. 5. Per contra, the ld. Departmental representative (for short 'D.R') objected to the seeking of condonation of delay involved in filing of the present appeal by the assessee. It was submitted by the ld. D.R that as the assessee had due to his negligent approach substantially delayed the filing of the appeal, therefore, his request for condonation of the delay therein involved did not merit acceptance. It was submitted by the ld. D.R that as the assessee was availing the services of a professional, it was, thus, beyond comprehension that he had remained unaware of the order passed by the Pr. CIT u/s 263 of the Act. In order to buttress his claim that in a case where inordinate delay is involved the same is not to be condoned the ld. D.R had relied on certain judicial pronouncements viz. (i). Vedabai & Vaijayanatabai Baburao Patil vs. Shantaram Baburao Patil, Civil Appeal No. 4494 of 2001, dated 20.07.2001; (ii). Basawaraj & Anr. Vs. The Spl. Land A....
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....ed by the PCIT. At this stage, we may herein observe that the fact that the assessee's wife at the relevant point of time, and also thereafter, was suffering from multiple medical issues cannot be lost sight of as the same lends credence to the explanation of the assessee as regards the bonafide failure on her part to deliver the impugned order to the assessee. We are of the considered view that as the assessee had came forth with a bonafide explanation as regards the delay in filing of the appeal before us, therefore, adopting a holistic approach, we are of a strong conviction that the request of the assessee for condonation of the delay in filing the present appeal merits acceptance. Before parting, we may herein observe that the ld. D.R except for harping on the fact that a substantial period of delay in filing of the present appeal was therein involved, has however, failed to place on record any material which could persuade us to conclude that the explanation of the assessee as regards the reasons leading to the delay in filing of the appeal was not to be accepted. We, thus, keeping in view the aforesaid facts condone the delay involved in filing of the present appeal. 7. We ....
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....wever, the CIT not finding favour with the estimation of the income of the assessee exercised his revisional jurisdiction u/s 263 and set-aside the assessment order. On appeal, the Tribunal observing that the CIT in exercise of his jurisdiction u/s 263 could not have sought substitution of his view as against that of the A.O, thus, set-aside his order. It was submitted by the ld. A.R, that, as in the present case the A.O had while framing the assessment u/s 143(3) r.w.s 147, dated 25.03.2017 taken a possible view which on the date of framing of the assessment by him was supported by the aforesaid judicial pronouncements, therefore, the Pr.CIT was divested from assuming jurisdiction and setting aside the assessment order in exercise of the powers vested with him u/s 263 of the Act. In support of his contention that where on the date of framing of assessment two views qua an issue were possible, and the A.O had taken one view with which the CIT does not agree, the order therein passed by the A.O cannot be treated as erroneous unless the view so taken is unsustainable in law, the ld. A.R had relied on the judgment of the Hon'ble Supreme Court in the case of CIT Vs. Max India Ltd. (200....
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....he reason that he had estimated the business income of the assessee not made an addition u/s 68 in respect of an unexplained cash credit, for which reason, the Pr. CIT had stepped in to revise his order u/s 263 of the Act. On the contrary, in the case before us the A.O had estimated the business income of the assessee by applying an 'average of the net profit rate' to his gross receipts, which the Pr. CIT had sought to dislodge, for the reason, that the A.O while framing the assessment had failed to disallow u/s 40(a)(ia) certain expenses which were debited in the profit & loss account despite the fact that the assessee had failed to deduct tax at source as regards the same. In our considered view, after estimation of the business income of the assessee, making of a separate disallowance of the expenses debited in the profit and loss account that had already rejected by the A.O would undeniably lead to distorted assessment of the assessee's income. Our aforesaid view that once the income of an assessee had been estimated, then, no separate disallowance can be made is supported by the judgment of the Hon'ble High Court of Allahabad in the case of CIT Vs. Banwarilal Bansidhar (1998) ....