TMI Blog2010 (9) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... be made u/s 40A(3) or any other provision as held by Hon'ble Allahabad High Court in the case of Banwarilal Banshidhar [1997 -TMI - 17366 - ALLAHABAD High Court]- Therefore, in our considered view, there was no reason to set aside the order of Assessing Officer at the end of learned CIT by holding the same erroneous and prejudicial to the interest of revenue - initiation of proceedings u/s 263 was not justified - Accordingly set aside the order of learned CIT and restore the order of Assessing Officer passed originally. - IT APPEAL NO. 393 (JP.) OF 2010 - - - Dated:- 3-9-2010 - R.K. GUPTA, M.L. GUSIA, JJ. Mahendra Gargieya for the Appellant. Smt. Irina Garg for the Respondent. ORDER R.K. Gupta, Judicial Member. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Banna Lal Jat v. Dy. CIT [2004] 1 SOT 573 (Jodh.), J.K. Construction Co. v. ITO [2007] 100 TTJ (Jd) 110/162 Taxman 46 (Mag.), India Seed House v. Asstt. CIT [2000] 69 TTJ (Delhi) 241/[2001] 116 Taxman 40 (Mag.), Asstt. CIT v. Padam Chand Bhansali [2004] 85 TTJ (Jd) 215/[2005] 149 Taxman 35 (Mag.). The learned CIT after considering submissions and perusing the material held that the decision of Hon'ble Allahabad High Court in the case of Banwarilal Banshidhar (supra) is not applicable as the same is not a decision of Hon'ble jurisdictional High Court. In this decision it has been held that where net profit rate is applied by invoking provisions of section 145(3), no further disallowance can be made under section 40A(3). The learned CIT has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer, copy of which is placed on the paper book. It was further submitted that assessee has filed reply in respect to this query and attention of the Bench was drawn on copy of reply placed on record. It was further submitted after considering all the details and submissions of the assessee, the Assessing Officer found that provisions of section 145(3) are applicable and, therefore, he applied GP rate and after allowing the deduction on account of depreciation and interest the assessment was completed. The Assessing Officer was of the considered view that while applying GP rate no further disallowance can be made and therefore, no disallowance can be made under section 40A(3). However, this issue is covered by the decision of Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d view, there was no reason to set aside the order of Assessing Officer at the end of learned CIT by holding the same erroneous and prejudicial to the interest of revenue. Even for a moment if it can be held that the Assessing Officer has not made a proper enquiry as he has not discussed about the disallowance under section 40A(3) in the fresh assessment, the Assessing Officer may have disallowed the disallowance in view of provisions of section 40A(3) but the same has to be allowed in view of the decision of Banwarilal Banshidhar (supra) and in view of various other decisions of Tribunal. Therefore, for this reason also we hold that holding of order of Assessing Officer as erroneous and prejudicial to the interest of revenue is academic in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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