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2007 (10) TMI 634 - ITAT AHMEDABADShort payment of Tribunal fee payable - No nexus of income between the order passed u/s 263 and the assessed income u/s 143(3) - CIT order does not relate to the computation of income - order passed by AO is erroneous and prejudicial to the interest of Revenue - HELD THAT:- The finding given in the order passed u/s 263 is not based on the computation of total income by the AO. Therefore, we are of the view that the objection raised by the Registry is not sustainable and the assessee has paid the fees in accordance with clause (d) of section 253(6) of the Act which was rightly applicable in the case of the assessee. In our considered opinion this cannot be a sufficient ground for setting aside of the assessments. While making the assessment order, it is the satisfaction of the AO who made enquiry and it should be the touchstone to base the validity of the assessment order passed by him. The CIT cannot substitute his subjective view in place of the findings of the AO until and unless the view taken by the AO is unsustainable in law. No cogent material evidence was brought to our knowledge by the ld DR which may prove that the decision taken by the AO not to make the addition on both the issues in the case of the assessee was unsustainable in law. We do not agree with the submission of the ld DR that no prejudice is caused to the assessee as the assessment order has been set aside on both the issues to be made de novo and the assessee will have another chance to agitate these issues again. If the action of the CIT is illegal, the order passed by CIT cannot be sustained. All the subsequent actions carried out on the illegal order are void. The AO in the impugned case has decided not to make the addition on both the issues. The view taken by the AO was one of the possible views and cannot be regarded to be the view unsustainable in the law. By passing the impugned order CIT tried to impose his view on the AO. This tantamount to be the change of opinion, which is not permissible u/s 263. We are therefore, of the view that the case of the assessee is duly covered by the decision of the Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. v. CIT [2000 (2) TMI 10 - SUPREME COURT]. Respectfully following the same, we annul the order passed by the CIT u/s 263 by holding that the CIT was not correct in law in taking action u/s 263 and the order passed is illegal. Since, we have already annulled the order passed by CIT u/s 263, we, therefore, are of the view that the other ground whether the addition can be made on merit or not become academic does not require adjudication. In the result, the appeal filed by the assessee stands allowed.
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