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2016 (10) TMI 893 - ITAT VISAKHAPATNAMRevision u/s 263 - as per CIT(a) A.O. has completed the assessment without examining the issue of applicability of TDS provisions u/s 194C on hire charges paid by the assessee - Held that:- It is true that the issue involved in revision proceedings i.e. disallowance of hire charges u/s 40(a)(ia) of the Act is covered by the special bench decision of ITAT, Visakhapatnam in the case of Merilyn Shipping & Transports Vs. ACIT ( 2012 (4) TMI 290 - ITAT VISAKHAPATNAM ). Although, no prejudice is caused to the revenue as pointed out by the Ld. A.R., the assessee failed to offer any explanation why he could not appear before the Principal CIT and explained the fact that the question raised by the Principal CIT is considered by the A.O. and also the provisions of section 194C of the Act are not applicable, as the impugned amount has been paid before the end of the relevant financial year. It is also an admitted fact that the A.O. has not examined the issue at the time of completion of assessment, however, there is no revenue loss is caused to the exchequer because the issue is covered by the decision of ITAT, special bench (SB), wherein the ITAT held that no disallowance can be made u/s 40(a)(ia) of the Act, on the amounts paid within the end of the financial year. Since, the assessee failed to appear before the CIT, we are of the opinion that the CIT cannot presume things which is in the minds of assessee, as such opined that CIT has rightly assumed his jurisdiction to revise the assessment order based on the information available on record and his order is upheld. Thus we deem it appropriate to modify the directions given by the CIT to disallow impugned expenditure and set aside the assessment order passed by the A.O. u/s 143(3) and direct the A.O. to re-do the assessment afresh in the light of above discussion in accordance with law, after affording an opportunity of hearing to the assessee. - Decided partly in favour of assessee
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