Sh. Sanjeev Singh, Karnal vs Pr. Cit, Karnal on 24 April, 2019
(iii) Anil Aggarwal vs. DCIT (2004) 90 TTJ 0946 (Chd.);
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Anil Kumar Agarwal , Ghaziabad vs Dcit (International Taxation), Noida on 13 February, 2017
Sh. Gaurav Bhatia, Kotdwar vs Cit, Dehradun on 13 April, 2017
22. The various other decisions relied on by the ld. Counsel of the
assessee also support the above view. So far as the issue relating to
violation of provisions of section 40A(3) of the Act is concerned, it is an
admitted fact that notice u/s 263 of the Act does not contain any such
violation. However, in the order passed u/s 263 of the Act, the ld. CIT has
considered this possible violation on the part of the assessee as one of the
ground for cancelling the assessment by invoking power u/s 263 of the Act.
It is held in various decisions that an order u/s 263 of the Act passed on the
ground not taken in notice as invalid [Anil Aggarwal Vs. DCIT 90 TTJ
946(CHD-B)]. Since the assessee in the instant case has filed adequate
details regarding sundry creditors and the A.O after examining such details
has accepted such sundry creditors as genuine, therefore, merely because
the A.O has not conducted enquiry in a particular way as per the desire of
the ld. CIT cannot be a ground to invoke jurisdiction u/s 263 of the Act.
This is a case of inadequate enquiry, but it cannot be said that no enquiry
has been conducted by the A.O. In this view of the matter, we are of the
considered opinion that the ld. CIT was not justified in invoking the
provisions of section 263 of the Act. The various decisions relied on by the
ld. DR are distinguishable and not applicable to the facts of the present
case. In view of the above, we set aside the order passed u/s 263 of the Act
by the ld. CIT and grounds raised by the assessee are allowed.
Coastal Gujarat Power Ltd, Mumbai vs Ito 6(2)(1), Mumbai on 15 March, 2017
We further find that in the set aside proceeding , the AO allowed the claim of
the assessee and now issue stands settled in favour of the assessee. The facts
of the present case are materially same as in the case referred to above and
therefore following the same, we set aside the order of the ld. CIT(A) and direct
the AO to allow expenses. This ground of assessee is also allowed.
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