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2010 (2) TMI 913 - AT - Income TaxJurisdiction power u/s 263 by CIT(A) - AO failed to investigate the international transaction with associate concerns - no whisper in the assessment order in respect of commission paid to the agent and the general expenses - Held that:- The first argument of the assessee that inquiry, in international transaction with associate concerns for the purpose of transfer pricing the value of international transaction should be more than Rs.5 crores is concerned, DR has rightly demonstrated that it is in respect of a reference to the TPO otherwise Assessing Officer can take cognizance under sec. 92-C. Except the issue in respect of brokerage all other issues have not been considered by the Assessing Officer. Learned Commissioner has not adjudicated the issue conclusively in the present proceedings. He has test-checked the assessment order prima-facie whether the Assessing Officer has accepted the accounting entry of the assessee without any inquiry or not. He has not made the addition. He simply set aside the issue to the Assessing Officer on a prima facie satisfaction that no inquiry was conducted by the Assessing Officer while framing the assessment order - if AO had taken a view permissible under the law and where two views are possible on that issue then the view of Assessing Officer even though not matching with the Learned Commissioner's views, Learned Commissioner would not be able to substitute his view by exercising powers under sec. 263. In the present case, there are no views expressed by the AO on the issues. The one of the issues which has been considered by the AO in respect of brokerage, which has been traveled in appeal before the Learned Commissioner, this cannot be taken up by the Learned Commissioner while exercising the powers under sec. 263 of the Act in view of clause (c) Explanation 1 appended to sec. 263. We modify the order of the Learned Commissioner to the extent and direct the Assessing Officer not to investigate the issue in respect of brokerage of Rs.11,52,195 - appeal of the assessee is partly allowed
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