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2012 (6) TMI 543 - AT - Income TaxSetting aside the best judgment assessment by CIT(A) u/s 263 - directing the succeeding Assessing Authority to make another best judgment - tax audit report annexed to the return of income confirmed that the assessee had not deducted tax at source out of payment made on account of freight charges, loading & unloading and hiring charges - Held that:- The show cause notice issued u/s 263 were based on audit objection and there is no independent application of mind by the CIT - the assessee had not produced the books of account and the AO with application of his mind had completed the assessment under section 144 r.w.s. 143(3) and computed the income in view of the provisions of section 44AE of the Act, and the CIT sent back the matter to the AO to re-determine the income of the assessee by applying a rate other than the rate applied by the Assessing Officer, being without jurisdiction, is not tenable in law. The provisions of section 263 are clear and absolute that the power is to be exercised by the CIT from the examination of the records of the proceedings under the Act. The explanation under section 263 of the Act defines 'records' as all records relating to any proceedings under the Act available at the time of examination by the Commissioner and the audit objections under no circumstances can be called as record empowering the CIT to exercise jurisdiction under section 263 - set aside the order passed by the CIT - decided in favour of assessee.
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