TMI Blog2007 (10) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 260A of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), is directed against the order dated April 21, 2006, passed by the Income-tax Appellate Tribunal, Delhi Bench "G", New Delhi (for short, "the ITAT"), in I. T. A. No. 1975/D/2005 pertaining to the assessment year 2001-02 by which the Tribunal has allowed the appeal of the respondent/assessee. 2. The following substantial questions of law have been raised in the memo of appeal for consideration by this court: "1. Whether the learned Income-tax Appellate Tribunal was legally correct in law and on facts in setting aside the order under section 263 dated February 21, 2005, passed by the Commissioner of Income-tax, Dehradun, holding that the assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Sri Arvind Vashistha, learned standing counsel for the Department, as well as Sri O. P. Sapra, learned counsel appearing for the assessee and perused the record. 6. The Income-tax Appellate Tribunal has recorded a clear cut finding in paragraphs 13 and 14, which are reproduced as under "13. Further, it is not in dispute in this case, that the assessee has maintained vouchers, etc., which would have enabled the Assessing Officer to compute its income as per the provisions of the Act. The said vouchers, etc., were also produced before the Assessing Officer and the same were also examined by the Assessing Officer. It is not in dispute that along with the return, the assessee filed the audit report in the prescribed form signed by P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee for the year under consideration cannot be legally computed as per the provisions of sections 28 to 43C. It has been admitted that sub-section (3) of section 44BB is clarificatory in nature. The issue of non-proper filing of the audit report and consequentially the resulting assessment being erroneous has also been decided by the Income-tax Appellate Tribunal, Delhi "C", Bench, in the case of Saipem U. K. Ltd. NRC v. CIT. Dehradun I. T. A. No. 853/Del/05 for the same assessment year 2001-02 copy of which is placed at pages 135-141 of the paper book. At page 139 (internal page 5), wherein it was held as under: 'Moreover, for non-filing of tax audit report, penalty under section 271B can be imposed but the assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omes quite clear that the Assessing Officer had not only verified the correctness of the contract payments made by ONGC and Cairn Energy India Pvt. Ltd., but had also examined and verified the expenses incurred by the assessee-company. The facts deposed by Mr. Adrian Cook, Chief Finance Officer of the assessee-company, in his affidavit dated September 23, 2004, filed before the Commissioner of Income-tax, copy placed at pages 33-42 of the paper book could not be controverted or rebutted by the Commissioner of Income-tax in the impugned order passed under section 263 of the Income-tax Act. The Assessing Officer had also sent his draft assessment order to the Additional Commissioner of Income-tax, Range-I, Dehradun, for approval on August 18, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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