TMI Blog2012 (9) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order to indicate that the AO has applied his mind and has taken any view on the issue. When nothing has been recorded in the assessment order for addressing the issue in question on which the CIT has invoked the provisions of section 263, then, it cannot be said that the AO has taken any view on this issue. CIT has not finally decided the genuineness of purchases against the assessee because it requires a proper enquiry and verification of facts and record, therefore, the Commissioner is justified in setting aside the assessment order and directing the AO to re-do the same after conducting a proper enquiry - against assessee. - ITA No. 699/Hyd/2011 - - - Dated:- 22-6-2012 - SHRI CHANDRA POOJARI, AND SHRI VIJAY PAL RAO, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the return of income, purchases during the year work out to Rs.1,49,71,969/-. Hence the excess debit of Rs.1,53,05,647/-towards purchases needs to be disal lowed and brought to tax. In reply to the show cause notice, the assessee has explained that the total amount of Rs. 3.02 crores debited to the profit and loss account on account of purchases comprising 1.9 crores as per VAT returns and the balance amount of Rs. 1.53 crores pertaining to CST purchases which was not shown under VAT returns. The Commissioner of Income-tax has observed that since the AO has not made any enquiry, therefore, this fact is required to be examined to go into the genuineness of the purchase invoices. The CIT, accordingly, directed the AO to enquire into the ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication of mind on the part of the Assessing Officer. The learned DR has, thus, submitted that when the Assessing Officer has not applied his mind on the issue, then, the order is erroneous in so far as it is prejudicial to the interests of the revenue. In support of his contention the learned DR has also relied upon the decision of Hon ble Supreme Court in case of Malabar industries Ltd versus CIT (supra) 5. We have considered the rival submissions and carefully perused the relevant material on record. Though the assessment has been framed under section 143(3) of IT Act, however, the AO has not discussed anything in the assessment order and accepted the return of income as computed by the assessee. For the sake of ready reference we rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 263, then, it cannot be said that the AO has taken any view on this issue. Even otherwise the issue in question is not a claim which is allowable under the provisions of Income-tax Act and to say that the same involved any legal aspect where two views are possible. Rather the issue in the case in hand is more of a factual in nature which requires a proper verification and examination of facts and relevant material to find out the genuineness of the purchases as pointed out by the learned Commissioner. The decisions relied upon by the learned AR of the assessee are on the point that when two views are possible on an issue and particularly the claim of deduction under section 80 HHC or simi lar nature of claim and the assessing officer has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of absolutely lack of enquiry on the issue under consideration and, therefore, the order of the assessing officer is erroneous and prejudicial to the interests of revenue. 7. Moreover, the CIT has not finally decided the genuineness of purchases against the assessee because it requires a proper enquiry and verification of facts and record, therefore, in our view the Commissioner is justified in setting aside the assessment order and directing the AO to re-do the same after conducting a proper enquiry. Hence, we do not find any merit in the appeal of the assessee and the same is liable to be dismissed. 8. In the result the appeal of the assessee is dismissed. Order pronounced in the court on 22/06/2012. - - TaxTMI - TMITax - Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
