TMI Blog2013 (5) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... efore us, the A.R. has not brought any material on record to prove that the Assessing officer has examined the issue as to taxing the same under business income or under any other head. The decision relied by the A.R. is distinguishable on facts and cannot be applied to the facts of the present case. Thus CIT while setting aside the assessment has distinguished the decisions relied by Assessee and has given reasons for considering the order of A.O. to be erroneous and prejudicial to the interest of Revenue. Thus no reason to interfere with the order of the CIT (A) and therefore, dismiss appeal of Assessee. - ITA No. 1724 of 2010 - - - Dated:- 30-4-2013 - Shri G. C. Gupta And Shri Anil Chaturvedi, A.M.,JJ. For the Appellant : Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y expenses to partners of Rs.9,89,154/-, thus the Assessee had claimed excess deduction of Rs.8,03,686/- and, therefore, the assessment was considered to be erroneous and prejudicial to the interests of Revenue. He accordingly issued notice u/s 263 of the I.T. Act on 03.03.2010. In response to the notice, assessee interalia submitted that during the course of assessment the Assessing Officer considered the aspect of claim of remuneration paid to the partners and the Assessing Officer was of the view that the disclosure of Rs.20 lacs being unaccounted advances was in the nature of business income. It was submitted that additional income declared during the course of search had a direct nexus with the business of the assessee and the income w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no enquiry by the Assessing Officer. He further submitted that once the Assessing Officer has applied his mind to the issue, the order cannot be termed as erroneous and prejudicial to the interests of the Revenue. He thus urged the order of the Ld. CIT (A) be quashed. The Ld. A.R. further placed reliance on the decision of the Ahmedabad Bench in the case of Chokshi Hiralal Maganlal v. DCIT [2011] 45 SOT 349 (Ahd.). 6. The Ld. D.R., on the other hand, submitted that the order passed by the Assessing Officer is erroneous for the reason that the unexplained investment was to be considered as income u/s 69 and cannot be a business income. He further submitted that the Assessing Officer has not examined the issue and there is nothing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible on the question whether the assessee was entitled to weighted deduction under s. 35B. This is a strange view taken by the Tribunal and it is conceded that this view taken by the Tribunal is not supported by any provision of the Act or any decision. The CIT would be entitled to revise the order of the ITO if he is of the view that the order of the ITO is erroneous and prejudicial to the interests of the Revenue. The CIT can exercise the power under s.263 even in a case where the issue is debatable - T.S. Balaram, ITO Vs. Volkart Bros. (1971) 82 ITR 50 (SC) : TC 53R.165 distinguished. The Gujarat High Court in the case of Fakir Mohmed Haji Hasan v. CIT [2001] 247 ITR 290 has held as under:- "The Scheme of Sections 69, 69B and 69C of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are applicable to the incomes under any of these various heads, will not be attracted in the case of deemed incomes which are applicable to the incomes which are covered under the provisions of sections 69, 69A, 69B and 69C of the Act in view of the scheme of those provisio". 8. We find that CIT while setting aside the assessment has distinguished the decisions relied by Assessee and has given reasons for considering the order of A.O. to be erroneous and prejudicial to the interest of Revenue. Considering the totality of the aforesaid facts of the case, we find no reason to interfere with the order of the Ld. CIT (A) and therefore, dismiss this ground of appeal. 9. Thus the appeal of Assessee is dismissed. Order pronounced in Op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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