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2015 (11) TMI 1131 - AT - Income TaxRevision u/s 263 - Non deduction of TDS - applicability of section 40(a)(i) on data link charges and insurance charges - Held that:- In the period under consideration as per the details in 17f of the Form 3CD Report, the assessee has debited an amount on account of data link charges and insurance charges paid/payable to parties outside India, which it has claimed as not chargeable to tax in India based on the decision of Wipro Ltd., Vs. ITO (2004 (12) TMI 304 - ITAT BANGALORE-B ) and, that therefore the provisions of sec. 40(a)(i) are not attracted in its case. - the assessing officer has neither examined and nor verified this issue nor that he has applied his mind to the matter. Passing the order of assessment is the prerogative of the assessing officer and assessee has no control over the officer for passing the order of assessment in a specific manner. However, if the examination of the specific issue is not discernable from the order of assessment, then the higher forum can go through the show cause notice, if any, issued to the assessee and the reply thereto which would indicate that though the order of assessment is silent on the issue, it must have been discussed during the assessment proceedings. No such material is available before us, even in the assessee’s reply to the show cause notice issued by the learned CIT in revisionary proceedings u/s 263. The Hon’ble Apex Court in the case of Malabar Industries Co. Vs CIT reported in [2000 (2) TMI 10 - SUPREME Court ] has observed that the acceptance of accounting entries as it is without causing enquiries by the Assessing Officer would render the order of assessment erroneous and prejudicial to the interest of revenue. In the light of the facts and circumstances of the case as discussed above, we are of the view that the learned CIT has rightly considered all these aspects before taking action u/s 263 of the Act. - Decided against assessee.
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