9911796707
TMI Blog1994 (5) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... is is an appeal by the assessee, which is directed against the revisional order of the Commissioner of Income-tax under section 263 of the Income-tax Act, 1961 dated 20-3-1989. 2. The assessee has raised a specific ground vide ground No. 1 challenging the jurisdiction of the Commissioner of income-tax and three other specific grounds challenging the merits of the revisional order of the Commissioner. 3. The assessee is a resident company. The assessment year involved is 1984-85 for which the accounting year ended on 30-6-1983. Against a loss of Rs. 74,631 returned by the assessee, the Assessing Officer determined the loss at Rs. 7,52,029. While completing the assessment, the Assessing Officer is said to have not properly enquired into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Income-tax set aside the assessment order and restored the matter to the file of the Assessing Officer for passing fresh order in accordance with law, after giving the assessee reasonable opportunity of being heard. 4. At the time of hearing, none appeared on behalf of the assessee nor any petition was filed for adjournment. Therefore, the appeal is decided ex parte on the basis of the record and submissions of the learned D.R. 5. The learned D.R. has vehemently supported the revisional order of the Commissioner of Income-tax both on jurisdiction and on merits of the case. 6. After due consideration of the record and the submissions of the learned D.R., we hold that the Commissioner of Income-tax was not justified in invoking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -tax even after initiating proceedings for revision and hearing the assessee could not say that the allowance of claim of the assessee was erroneous and that the expenditure was not Revenue expenditure but expenditure of capital nature. He simply asked the Assessing Officer to re-examine the matter which was not permissible in law. In the circumstances, the order of the Tribunal setting aside the order passed by the Commissioner of Income-tax under section 263 was approved by the High Court. 7. In the instant case, the revisional order of the Commissioner of Income-tax itself clearly shows that the conveyance expenses incurred were spent on engaging public taxis because the staff of the company visited various clients for which taxis were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n offered by the assessee requires to be cross-verified ignoring the legal provisions and the past practice of the business. In other words, instead of pointing out that the order passed by the Assessing Officer is erroneous in law or prejudicial to the interests of Revenue, he only wanted all the claims to be investigated and verified again. Therefore, prima facie, the order passed by the Commissioner of Income-tax is not justified because he simply asked the Assessing Officer to re-examine the matter afresh which is not permissible under section 263. Following respectfully, the dictum of the Bombay High Court in the case of Gabriel India Ltd., we hold that the Commissioner of Income-tax was not justified in invoking the jurisdiction and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d maintenance" are significant. In other words, the expenditure should be incurred both on "running" and "maintenance". This could be possible only in the eventuality of private motor cars are engaged on rental or lease basis whereby the running and maintenance expenditure are incurred thereon by the assessee. In the case of public taxis with yellow top, the question of maintenance expenses does not arise and could not have been contemplated by the statute. Therefore, the expenditure incurred on public taxis is not against law and as per clarification of law given above. 11. As regards payment of commission and brokerage, they cannot amount to sales promotion expenses per se. In any case, the Commissioner of Income-tax himself was not sure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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