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2009 (2) TMI 245 - AT - Income TaxRevision by Commissioner u/s 263 - CIT failed to record a finding as to how the order of the AO is erroneous and Prejudicial Order - HELD THAT:- The Tribunal in the case of Mrs. Khatiza S. Oomerbhoy vs. ITO [2006 (2) TMI 201 - ITAT BOMBAY-H] analyzed in detail various authoritative pronouncements including the decision of Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. vs. CIT [2000 (2) TMI 10 - SUPREME COURT] as well as in the case of Gabriel India Ltd. [1993 (4) TMI 55 - BOMBAY HIGH COURT] and has propounded the fundamental principle to Judge the action of CIT taken u/s. 263. In the light of above proposition, if we examine the facts of the present case, the assessee has submitted the details as called for by AO. The ld CIT has not pointed out any specific defect in those details. The assessee has submitted the construction account in the paper book and has produced from where funds have been procured. The ld CIT without pointing out any discrepancy in these facts and circumstances put the assessee in the second round of litigation. Similar are the facts with regard to the other issues. The CIT was of the opinion that instead of disallowing sum from telephone expenses etc. it should have been something more. These are not the issues which are required to be rectified in a proceeding u/s. 263. The assessee has debited sum towards mobile phone expenses and telephone expenses. Out of these expenses, AO disallowed the sum. Because there is no straitjacket formula to measure the personal user of such facility. The element of guesswork in quantifying the disallowance would always be there. AO has taken one of the possible views, it is not completely illegal. The ld CIT did not record a finding as to how the order of the AO is erroneous. Thus, we allow the appeal of the assessee and quash the order passed u/s. 263.
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