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2016 (6) TMI 1283 - ITAT AMRITSARRevision u/s 263 - as per CIT-A order passed by the AO dropping the proceedings u/s 147 appeared to be erroneous and prejudicial to the interests of the Revenue - assessee claimed higher depreciation on the buses @ 30% as against the normal rate of 15% - Held that:- As held in 'Radhey Shyam Agarwal (HUF)' (2009 (3) TMI 649 - ITAT AGRA), the contention of the assessee having been accepted by the AO after due application of mind on the material available, CIT was not justified in invoking the provisions of section 263 regarding this issue. It goes without saying that it is not permissible in law for the Pri. CIT to step into the shoes of the AO and pass fresh assessment order after reassessing the case, as held in 'Ved Parkash Contractor v. CIT' [2015 (11) TMI 859 - ITAT CHANDIGARH] wherein also CIT herein also has reframed the assessment, not leaving any scope for the AO to re-do the assessment, or to pass a fresh assessment order. Therefore, as rightly contended, remanding the matter to the AO is of no consequence. Then, on merits also, as per 'Balakrishna Transports' (1996 (9) TMI 13 - KERALA High Court), 'Sarojini Transports (P.) Ltd.' (1986 (1) TMI 188 - ITAT MADRAS-A ) the assessee is entitled to a higher claim of depreciation @ 30% and not that @ 15%. - Decided in favour of assessee. Disallowance u/s 14A - Held that:- The proposition settled in 'DLF Ltd.' (2012 (9) TMI 626 - DELHI HIGH COURT) is that the powers u/s 263 of the Act cannot be invoked for making disallowance u/s 14A of the Act. While observing so, it was held that it is not mere prejudice to the revenue or a mere erroneous view, which can be revised u/s 263 of the Act and that there should exist the added element of sustainability in the order of the AO, which clothes the CIT (here, the Pri CIT) with jurisdiction to issue notice and proceed to make appropriate order. Before us, nothing is available either in the impugned orders, or by of any other material on record, to suggest that the assessment orders were unsustainable in law. Also as per section 14A(3), where an assessee claims that no expenditure has been incurred by him in relation to income which does not form part of the total income under the Act, the provisions of section 14A(2) shall not apply - Decided in favour of assessee
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