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Commissioner of Income Tax-18 Versus M/s. Gammon Rizzani Joint Venture

2015 (4) TMI 508 - BOMBAY HIGH COURT

Revision u/s 263 on the ground TDS Certificate receipts showed discrepancy - prejudicial and erroneous order - Notice u/s 263 on some ground - Final order u/s 263 is on different ground - Held that:- The show cause notice alleges debiting of expenses on account of stationary and auditor's remuneration to the extent of ₹ 14,725/-, which has not been examined by the Assessing Officer. It is only on these two grounds that the Assessing Officer's order was proposed to be set aside by t .....

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e of any lesser income over and above what has been referred by us.

In such circumstances, the Tribunal rightly came to a conclusion that there is a vital discrepancy in the show cause notice issued under section 263 of the Income Tax Act and the final order of the Commissioner and impugned in the Appeal before the Tribunal. This discrepancy cannot be termed as technical. If the Assessee had no notice of the issue proposed to be examined by the Commissioner, then, he should not have .....

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ash Shah ORDER This Appeal of the Revenue is challenging the order dated 25th July, 2012 of the Income Tax Appellate Tribunal, Mumbai Bench in Income Tax Appeal No. 3410/Mum/2008. The assessment year is 2003-04. 2. An order under section 263 of the Income Tax Act, 1961 (for short the "IT Act") was passed by the Commissioner of Income Tax Mumbai on 31st March, 2008. The Commissioner cancelled the assessment order dated 31st March, 2006 by holding that the same is erroneous and prejudici .....

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nor rendered any finding in its order under section 263 of the IT Act on this subject or issue. 4. The Tribunal found that there was no allegation in the show cause notice about the system of accounting and the Assessee receiving a sum of ₹ 91,41,31,695/- and therefore, disclosing lesser income. However, the show cause notice was silent on this and yet in the final order, these observations or findings have been rendered. That would vitiate the final order of the Commissioner under sectio .....

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ding that the assessment order is erroneous and prejudicial to the interest of the Revenue. Therefore, the order of the Commissioner could not have been set aside for want of notice to the Assessee. This was the subject or issue very much before the Assessing Officer and contested. In such circumstances, this Appeal would raise substantial questions of law. 6. On the other hand, Ms. Niyati Hakani appearing for the Assessee would support the Tribunal's order and submit that no substantial que .....

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in profit and loss account is at ₹ 84,73,84,584/-. There is thus a non disclosure of the income of ₹ 1,98,08,432/-. 7. Then, the show cause notice alleges debiting of expenses on account of stationary and auditor's remuneration to the extent of ₹ 14,725/-, which has not been examined by the Assessing Officer. It is only on these two grounds that the Assessing Officer's order was proposed to be set aside by terming it as erroneous and prejudicial to the interest of the R .....

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