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2015 (5) TMI 745 - AT - Income TaxValidity of Revision of assessment order - Set-off of losses against income enhanced vide TPO order u/s 92CA(3) of IT Act - Income under Double Taxation between India and United Kingdom - Applicability of Surcharge & Education cess on income covered under DTAA - Held that:- As far as the first objection of the Ld. Commissioner about the correct method of the computation of assessed income is concerned, since other authority of the Revenue Department i.e. DRP has already held that the benefit of set offcarry forward of losses are to be computed as per the regular provisions of the Act, therefore, we hereby hold that there was no legal sanctity on the part of Ld. Commissioner to direct the AO to verity and decide afresh this issue. Further, we hereby hold that the decision of Hon’ble Delhi High Court pronounced in the case of DG Housing Project Ltd. [2012 (3) TMI 227 - DELHI HIGH COURT] is applicable wherein it was held that the Ld. Commissioner again remitting the matter for a fresh decision to the AO to conduct further inquiries without a finding that the order of the AO is erroneous is not sustainable. Therefore, we are of the view that the manner in which the Ld. Commissioner has given direction to the AO are not in line with several decisions of Hon’ble courts namely, Arvind Jewellers [2005 (7) TMI 90 - GUJARAT High Court]. About the second issue raised by Ld. Commissioner, we hereby hold that firstly the AO has examined that issue on those relevant facts hence cannot be said to have committed an error and secondly the issue can not be said to be controversial because in the case of DIC Asia Pacific Lt. [2012 (6) TMI 686 - ITAT, KOLKATA], it was held that Surcharge and education cess is not applicable on income covered under DTAA . Moreover,We have noted that Ld. Commissioner has not demonstrated any breach of law or procedure by the AO to allege that the impugned order of the AO was prejudicial to the interest of the revenue. Rather the direction of Ld. Commissioner appears to be general in nature asking the AO to verify the facts again afresh. In the absence of any independent finding and leaving the AO to start a fresh investigation is not within the powers assigned us. 263 of the IT Act. We therefore hold that the order us. 263 is not sustainable in the eyes of law. - Decided in favour of assessee.
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