TMI Blog2015 (4) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... ed above, clearly shows that the issue involved in the present case as well as all the material facts relevant thereto are similar to the case of M/s. Shanti Transport decided by the Division Bench of this Tribunal, and this position is not disputed even by the Learned Departmental Representative. I therefore, respectfully follow the order of the Tribunal in the case of Shanti Transport [2015 (4) TMI 825 - ITAT HYDERABAD] and accordingly setting aside the impugned order passé by the learned Commissioner under S.263, restore the assessment order passed by the Assessing Officer under S.143(3). - Decided in favour of assessee. - ITA No.996/Hyd/14 - - - Dated:- 8-4-2015 - Shri P.M.Jagtap J. For the Appellant : Shri G.Manikya Prasad For the Respondent : Smt. G.Aparna Rao ORDE R This appeal filed by the assessee is directed against the order of the learned Commissioner of Income-tax, Vijayawada dated 27.3.2104 passed under S.263 of the Income Tax Act,1961. 2. The assessee in the present case is a partnership firm which is engaged in the business of transport contractor. The return of income for the year under consideration was filed by it on 20.9.2009 declaring t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce requiring the assessee to offer its explanation in respect of the above two issues. In reply, a letter dated 25.1.2014 was filed by the assessee offering its explanation as under- Domestic drawing o{the partners: It is submitted that the partners Sri Mohammed Raft and' Shaik Beebijan happened to be the couple and the aggregate drawings made by them amounted to ₹ 25,OOOI-. They got only one son. As per the confirmation letter filed by him his wife undertakes tailoring and earns about ₹ 80,OOO pa. In the circumstances, it is requested that the domestic drawings may be treated as reasonable. In relation to the other partner viz., Sri Abdul Azad Kalam, it is reported by Sri T.Md.Rafi that Azad Kalam is his own brother and that he earns a monthly salary of ₹ 10,OOO . In the circumstances, it is prayed that the drawings reported by him may be treated as adequate. In relation to the other partner, Sri P.Srinivasa Rao, he withdrew ₹ 15,OOO pa during the year from the above said firm and besides the same, he also earns about ₹ 10,OOO pm. Hence, his drawings may kindly be treated as adequate. In the relation to the other partner Sri P. Ven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cceptable by the learned Commissioner. According to him, the drawings shown by the partners of the assessee firm were not commensurate with the volume of the business carried on by the assessee as well as the cost of living that is justifiably required for persons running such volume of business. He held that the Assessing Officer however, failed to examine this aspect by calling the relevant details. In this regard, he also rejected the contention raised by the assessee that higher income of the firm estimated by the Assessing Officer was available to telescope the drawings allegedly shown by its partners. As regards the explanation offered by the assessee in respect of payments made to Shri Pitchaiah, Shri K.Srinivasa Rao, Vidyasagar, Sudhakar, Naveen etc. that the same constituted lorry freight charges made to group of persons in the transport business, the learned Commissioner of Income-tax did not accept the same in the absence of the relevant details filed by the assessee to support and substantiate it. He held that both these issues were not properly examined by the Assessing Officer by making proper and sufficient enquiries and this lack of enquiry made the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out various issues, which according to him was not examined by AO in course of assessment proceeding. However, when the books of account were found to be not reliable and rejected by AO and he invoked the provisions of section 145(3), it is not understood how and why AO M/s Shanti Transport, Kotha gude m should have gone into the specific issues on the basis of books of account. Further, CIT himself has observed in para 5.6 of the order that though AO has called upon assessee in his letter dated 06/01/11 to furnish various information but assessee did not comply to the same. In our view, that itself is reason enough for the AO to reject books of account and estimate the income. When assessee has failed to furnish informations/evidences to support the entries made in the books of account, there is no other course left open to AO, but, to compute the income of assessee on estimate basis. Once, AO rejected the books of account there is no need to again refer to the very same books of account for deciding the individual issues of expenditure/deduction claimed. Therefore, in our view, CIT was not justified to invoke power u/s 263 of the Act by holding the assessment order as er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted proper/adequate enquiry, then, he himself should have conducted enquiry to record a finding that the assessment order was erroneous. He should not have set aside the order and directed the AO to do the said enquiry. Further, in case of CIT Vs. Ramesh Sing, the Hon'ble MP High Court in judgment dated 24/04/2012, held that when the assessment order reveals that AO has conducted enquiry, it cannot be set aside/revised only because the CIT feels that enquiry conducted is not adequate. In the facts of the present case, there is no doubt that AO after examining the books of account and other materials on record has come to a definite conclusion that books of account are not reliable, hence, after rejecting the same has estimated the profit. .......Further, CIT while setting aside the assessment order has also not given any specific direction, but, has simply directed the M/s Shanti Transport, Kotha gude m AO to redo the assessment denovo after examining the issues. This, in our considered view, is nothing but in the nature of roving and fishing enquiry. ..... For this reason alone, revision order becomes vulnerable and can be held to be invalid. Therefore, considering totality o ..... 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