9911796707
TMI Blog2012 (3) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... e same. In view of the statement made we condone the delay in refiling. ITA 558/2010 Having heard the counsel for the parties, we have frame the following substantial question of law: "Whether the Income Tax Appellate Tribunal was right in setting aside the order of the Commissioner of Income Tax under Section 263 of the Income Tax Act, 1961?" 2. During the course of hearing it is stated that after the Commissioner of Income Tax had passed the order dated 21.2.2005 under Section 263 of the Income Tax Act, 1961 ("Act", for short), which has been set aside by the impugned order passed by the Income Tax Appellate Tribunal ("Tribunal", for short) on 28.2.2007, only two additions were made by the Assessing Officer. We will only record th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income Tax Vs. Vikram Aditya and Associates P. Ltd. (2006) 287 ITR 268 and Commissioner of Income Tax Vs. Vimgi Investment P. Ltd. (2007) 290 ITR 505 directly on the issue. In these two cases, it has been held that order of the Assessing Officer cannot be treated as erroneous and therefore revisable under Section 263 of the Act, as Section 94(7) relating to dividend stripping became a part of the statute and is applicable from Assessment Year 2002-03 onwards and is not applicable to earlier assessment years. It would be appropriate to reproduce the observations of this Court in Vimgi Investment P. Ltd. (supra) wherein the order under Section 263 was set aside after noticing that the assessee therein had received dividend of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue/ question of dividend stripping. 5. The second aspect relates to failure of the Assessing Officer to invoke Section 40A (2)(b) in respect of Rs.2,37,500/- paid to Rajesh Mehta, CA, who is also a director of the respondent-assessee. The Commissioner of Income Tax in the order under Section 263 held that the Assessing Officer had not made any enquiry. The precise and only observation recorded by the Commissioner of Income Tax is that the payment was allowed without any examination. 6. The Tribunal, on the other hand, has given a factual finding and have held as under: "So far as point 'C'- relating to payments made to Shri Mehta is concerned, the assessee had written letter dated 2-3-2000 which is available at page 13 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
