TMI Blog2015 (2) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... dings including the impugned payment of ₹ 1822206/- to the Australian party. It is evident from the letter dated 29/04/2011 by the assessee to the AO furnished all the details and evidences. The assessee has also filed all the evidences before us in the shape of small paper book along with case law supporting the argument advanced by the ld. Counsel for the assessee. We are of the considered view that where the assessee had made an enquiry before completion of assessment, the same could not be set aside for the reasons of inadequate enquiry. Ld. CIT has set aside the assessment of the assessee only for the reason that AO has not verified all the facts and evidences submitted by the assessee as well as material on record. In our con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nally made the addition of ₹ 1,86,147/- on account of non production of vouchers completed the assessment u/s 143(3) of the Act on 09/06/2011. 4. Ld. CIT, Delhi-VIII, New Delhi examined the accounts of the assessee and found that assessee had debited ₹ 21,91,329/- under the head sales commission . Out of this amount, TDS had been deducted on payment aggregating to ₹ 3,69,123/- made to five different parties. But balance commission amount of ₹ 18,22,206/- which had been paid to M/s XXXLUTX, GMBH, no TDS had been deducted as required u/s 195 of the Act. He is of the view that this amount should have been added back to the total taxable income of the assessee as per provision of section 40A(ia) of the Income Tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for various occasions. After examining all documentary evidence filed by the assessee the AO has completed the assessment on 09/06/2011 u/s 143(3) of the I.T. Act. But the ld. CIT has wrongly exercised his power u/s 263 of the I.T. Act as the assessment order is neither erroneous nor prejudicial to the interest of Revenue. He further stated that AO has made a detailed enquiry about sales commission subject to TDS during the course of assessment proceedings including impugned payment of ₹ 18,22,206/- to Australian party. Therefore, the impugned order u/s 263 of the Act may be declared as null and void in view of the various decisions rendered by the Hon ble High Courts. In support of his contention he filed a copy of judgment of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) Fabrication expenses d) Carpet fair expenses e) Subscription Fabric expenses 3. Details of Sale Commission paid TDS thereon. 4. Confirmation of sundry creditors 5. Copy of ledger account of purchase 6. Books of accounts with original bills and the case adjourned for 20.04.2011. 8. After filing the aforesaid details as well as the other documentary evidence the AO adjourn the case of the assessee for 29/04/2011 for filing the remaining details and on 29/04/2011 the assessee has also filed details and documents to the AO for the sake of convenience the contents of the letter dated 29/04/2011 filed by the assessee are reproduced as under: 29th April 2011 Income Tax Officer Ward 24(1), New Delhi Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with supported bills and vouchers are produced herewith for your verification. We will be pleased to submit further details and documents after hearing from you. Thanking you, For PRAKASH K. PRAKASH CHARTERED ACCOUNTANTS Sd/- (PRAKASH K. GUPTA) 9. The AO perused the profit and loss accounts and examined all the details of expenses along with original bill and vouchers debited to the profit and loss accounts and finally he found that there are some incomplete vouchers/bills and he disallowed 1/10th of the total expenses i.e. 186147/- of ₹ 1861466/- and completed the assessment at the total income at ₹ 891774/- on 09/06/2011 u/s 143(3) of the I.T. Act. 10. Keeping in view of the aforesaid discussion, we are of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd is not sustainable in the eye of law because as discussed above, the AO had made an enquiry before completion of assessment by calling the explanation along with documentary evidence on the issue in disputes from the assessee. Therefore, the impugned order is deserved to be cancelled in view of the decision of Hon ble Jurisdictional High Court in the case of CIT vs. Sunbeam Auto Ltd., 332 ITR 167 (Del.). The order of the AO cannot be termed as erroneous unless it is not in accordance with law if an Income Tax Officer acting in according with law make a certain assessment the same cannot be branded as erroneous by the Commissioner simply because according to him, the order should have been written more elaborately. This section does not v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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