Shri Ramesh Mittal, Panchkula V. CIT, Gurgaon

ITA 1009/CHANDI/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5183 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 23-03-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 17-11-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Gift; Search and seizure; Document seized; Opportunity of being heard; Principle of natural justice; Bonafide belief; Period of limitation; Assessment record; Time period of passing order; Condonation of delay; Documents seized; Bonafide mistake; Reassessment proceedings; Ignorance of law
• Section: 143(3); 142(1); 153A; 68; 263; 132

Judgement Text

ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH NEW D ELHI BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SMT. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NOS. 1009 TO1011/IND/2014 A.YS. 2005-06 TO 2007-08 RAMESH MITTAL PANCHKULA ::: APPELLANT VS COMMISSIONER OF INCOME TAX CENTRAL, GURGAON ::: RESPONDENT APPELLANT BY SHRI NEERAJ JAIN RESPONDENT BY SHRI SUSHIL KUMAR DATE OF HEARING 25.1.2017 PRONOUNCED ON 24.4.2017 O R D E R PER SHRI C.M. GARG, JM THESE APPEALS HAVE BEEN DIRECTED BY THE ASSESSEE A GAINST THE CONSOLIDATED ORDER OF THE LEARNED CIT (CENTRAL), GU RGAON, DATED 27.3.2014 PASSED UNDER SECTION 262 OF THE INCOME TA X ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 2 2. THERE IS A DELAY OF 174 DAYS IN FILING THESE APP EALS AND AS SUCH THESE APPEALS ARE BARRED BY LIMITATION. 3. BEFORE US, APPLICATIONS FOR CONDONATION OF DELAY IN FILING THESE APPEALS FOR THE ASSESSMENT YEARS, UNDER CONSIDERATI ON, HAVE BEEN FILED ON THE FOLLOWING COMMON GROUNDS :- I. THE NOTICE U/S 263 WAS ISSUED BY LD. CIT, CENTRA L, GURGAON, ON 21/22.01.2014 AND ORDER U/S 263 WAS PASSED VIDE ORDER DT. 28.03.2014. THE APPEAL U/S 26 3 WAS NOT FILED BY THE APPELLANT BEFORE THE HON'BLE I TAT, CHANDIGARH AS THE APPELLANT WAS NOT AWARE THAT THE APPEAL CAN BE FILED BEFORE THE HON'BLE ITAT AGAINST THE CITS ORDER U/S 263 OF THE ACT, AND ALSO THE LEGAL ADVISOR OF THE APPELLANT DID NOT ADVICE THE SAME. II. NOW THE APPELLANT HAS CHANGED THE COUNSEL FOR A PPEARING BEFORE THE LD. ACIT, CENTRAL CIRCLE II, CHANDIGARH FOR ASSESSMENT PROCEEDINGS IN PURSUANCE OF ORDER U/S 26 3 OF THE IT ACT AND THE COUNSEL HAS ADVISED THAT THE APP EAL AGAINST THE ORDER U/S 263 LIES BEFORE THE HON'BLE I TAT, CHANDIGARH BENCH, CHANDIGARH. ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 3 ON THE BASIS OF THE ABOVE, IT WAS SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT KEEPING IN VIEW THE IGNORANCE ON THE PART OF THE ASSESSEE AS ALSO THE PRINCIPLE OF NATURAL JUSTI CE, THE DELAY IN FILING THESE APPEALS MAY BE CONDONED AND THE APPEAL S MAY KINDLY BE ADMITTED FOR HEARING. 4. ON THE OTHER HAND, THE LEARNED DR STRONGLY OPPOS ED THE ABOVE PRAYER OF THE LEARNED COUNSEL FOR THE ASSESSEE WITH THE SUBMISSION THAT IGNORANCE CANNOT BE A GROUND FOR CONDONING THE DELAY IN FILING THESE APPEALS. HE FURTHER SUBMITTED THAT THERE IS I NORDINATE DELAY IN FILING OF THESE APPEALS AND AS SUCH THESE APPEAL S DESERVE TO BE DISMISSED HAVING BEEN FILED BEYOND THE PERIOD OF LI MITATION. 5. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF TH E PARTIES IN THE WAKE OF THE FACTS BROUGHT TO OUR NOTICE. FROM T HE IMPUGNED ORDER PASSED U/S 263 OF THE ACT, IT IS CLEAR THAT E ARLIER SHRI ASHOK MITTAL WAS APPEARING ON BEHALF OF THE ASSESSEE WHER EAS THESE APPEALS HAVE BEEN FILED ON THE INSTRUCTIONS OF SHRI NIRAJ JAIN, CA. TO THIS EFFECT, THE ASSESSEE HAS FILED AN AFFIDAVIT BEFORE US WHICH REMAINED UNREBUTTED AS THERE IS NO COUNTER-AFFIDAVI T BY THE ASSESSING OFFICER IN THIS REGARD. WE FIND THAT AN I DENTICAL ISSUE HAD ARISEN IN ITA NO. 3054/DEL/2012 IN THE CASE OF DAYA RAM MITTAL, AS ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 4 RELIED UPON BY THE LEARNED AR, WHEREIN VIDE ORDER D ATED 6.11.2015 B-BENCH OF ITAT, DELHI, HAS CONDONED THE DELAY BY O BSERVING AS UNDER :- 3. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDO NATION OF DELAY OF 533 DAYS BY STATING AS UNDER:- 3. THAT THE DOCUMENTS RELATING TO FILLING THE APPE AL WERE GIVEN TO THE COUNSEL WHO HAD EARLIER APPEARED BEFORE CIT (A) ON MY BEHALF. I WAS UNDER A BONAFIDE BELIEF THAT THE APPEAL HAS BEEN FI LED BY THE COUNSEL. HOWEVER, SUBSEQUENTLY, IN AND AROUND MARCH, 2012, I RECEIVED THE PENALTY ORDER U/S 271(1) (C). AT THAT TIME, I GOT THE KNOWL EDGE THAT THE QUANTUM APPEAL HAS NOT BEEN FILED BY THE EARLIER COUNSEL. T HEREAFTER, I COLLECTED MY RECORDS FROM THE OLD COUNSEL AND ENGAGED NEW COUNSE L AND CONSEQUENTLY THE APPEAL BEFORE HONBLE INCOME TAX APPELLATE TRIB UNAL WAS FILED. 4. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT OF SH. N. K. BANSAL, THE C.A WHO WAS NOTING AFTER THE CASE BEFORE THE LD. CIT(A) ALONG H IM SH. HIMANSHU GOEL, CA, STATING AS UNDER:- I, NARESH KUMAR BANSAL S/O SH. MANI RAM BANSAL R/OD -503, WEMBLEY E STATE, ROSEWOOD CITY, SECTOR-49, GURGOAN, HARYANA, CA BY PROFESSION DO HEREBY SOLEMNLY DECLARE AND AFFIRM AS UNDER:- 1. THAT I HAVE BEEN LOOKING AFTER THE INCOME TAX MATTE RS OF SH. DAYA RAM MITTAL S/O SH. BISHAMBER DAYAL MITTAL R/O HOUSE NO.77, BLOCK H- 4/5, SUVIDHA KUNJ PITAMPURA, NEW DE LHI. 2. THAT FOR THE A.Y. 2006-07, 1 HAD BEEN LOOKING AFTER THE INCOME TAX ASSESSMENT AND APPEAL MATTER BEFORE CIT(A) ALON G-WITH C.A. HIMANSHU GOEL. THAT AFTER THE CIT(A) ORDER, DU E TO INADVERTENCE, BONAFIDE OMISSION AND COMMUNICATION G AP, THE FURTHER APPEAL TO ITAT COULD NOT BE FILED. 5. THE LD. ASSESSEES REPRESENTATIVE (AR) SUBMITTED THAT THE ASSESSEE HAS ALSO FILED HIS AFFIDAVIT STATING THAT HE HAD GIVEN ALL T HE NECESSARY PAPERS FOR FILING APPEAL BEFORE TRIBUNAL AND HE WAS UNDER BONAFIDE BE LIEF THAT APPEAL HAS BEEN FILED. HE FURTHER STATED THAT SUBSEQUENTLY AROUND M ARCH 2012 HE RECEIVED PENALTY ORDER U/S 271 (1) (C) OF THE ACT, THEN HE CAME TO K NOW THAT THE APPEAL AGAINST QUANTUM ORDER OF THE LD. CIT(A) HAS NOT BEEN FILED BEFORE LD. CIT(A). THEREAFTER, HE COLLECTED HIS RECORDS FROM HIS OLD COUNSEL AND E NGAGED NEW COUNSEL AND CONSEQUENTLY THE APPEAL BEFORE ITAT WAS FILED BY 53 3 DAYS DELAY. THE LD. A.R ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 5 SUBMITTED THAT IN VIEW OF THE PROPOSITION LAID DOWN BY ITAT, MUMBAI IN THE ORDER DATED 7/1/2011 IN IT(SS) NO. 24/MUM/2009 FOR A.Y 20 02-03 AND OTHER RELATED APPEAL IN THE CASE OF M/S GREGORY & NICHOLAS VS ACI T, THE DELAY IN FILING APPEAL MAY BE CONDONED. 6. ON THE OTHER HAND, THE LD. DR PLACING RELIANCE O N THE ORDER OF THE ITAT A BENCH IN THE CASE OF DCIT V/S M/S BRIJWASI IMPEX PV T. LTD. IN ITA NO. 361/DEL/2011 DATED 3/9/2014 AND SUBMITTED THAT THE ASSESSEE CANNOT TAKE SHELTER OF IGNORANCE OF LAW OR FAILURE TO SEEK LEGA L ADVICE AND THESE ARE NOT SUFFICIENT AND GOOD CAUSES FOR CONDONATION OF DELAY . THE LD. DR STRONGLY OPPOSED THE PRAYER OF THE ASSESSEE FOR CONDONATION OF DELAY. 7. THE LD. AR ALSO PLACED REJOINDER TO ABOVE CONTEN TIONS OF THE LD. DR AND SUBMITTED THAT AS PER RATIO OF THE HONBLE APEX COU RT IN THE CASE OF COLLECTOR V/S MST. KATIJI & ORS 1987 AIR 1353 (SUPREME COURT), TH E LEGISLATURE HAS CONFERRED POWERS OF CONDONATION OF DELAY TO ENABLE THE COURT TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING MATTER ON MERITS AND TO ENSURE THAT THE CASES HAVING MERITS MAY NOT BE DISMISSED AT THE THRESHOLD MERELYBECAUSE THE APPEAL HAS BEEN FILED BEYOND PRESCRIBED TIME LIMIT BECAUSE OF NON-DELIBER ATE DELAY. THE LD. AR VEHEMENTLY CONTENDED THAT IN THE CASE OF BRIJMASI I MPEX (SUPRA), THE CAUSE WAS SHOWN AS THE EARLIER COUNSEL DID NOT PROPERLY GUID E BUT NO AFFIDAVIT WAS FILED EITHER BY THE ASSESSEE OR BY THE EARLIER COUNSEL BU T IN THE PRESENT CASE, THE ASSESSEE AND HIS EARLIER COUNSEL HAS FILED THEIR RE SPECTIVE AFFIDAVITS SUPPORTING THIS FACT THAT THE ASSESSEE HAS GIVEN ALL THE NECES SARY PAPERS FORFILING APPEAL BEFORE THE TRIBUNAL AND HE WAS UNDER BONAFIDE BELIE F THAT APPEAL HAS BEEN FILED AND THIS FACT CAME TO HIS NOTICE WHEN (THE ASSESSEE ) RECEIVED PENALTY ORDER U/S 271 (1) (C) OF THE ACT. 8. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSI ONS OF BOTH THE SIDES, WE ARE OF THE VIEW THAT THE PRAYER FOR CONDONATION OF DELA Y FALLS WITH THE AMBIT OF THE RATIO OF THE ORDER OF THE TRIBUNAL IN THE CASE OF GREGORY & NICHOLAS V/S ACIT (SUPRA) WHERE IN PARA 8, REFERRING TO THE ORDER OF THE ITAT MUMBAI IN THE CASE OF PRIYANKA CHOPRA VS ACIT IN ITA NO. 4045/MUM/2009 DA TED 10/12/2010, IT HAS BEEN NOTED THAT THE MISTAKE ON THE PART OF THE COUN SEL MAY IN CERTAIN CIRCUMSTANCES BE TAKEN INTO ACCOUNT IN DEALING IN D ELAY. 9. IN THE PRESENT CASE, THE ASSESSEE AS WELL AS HIS EARLIER COUNSEL HAVE FILED THEIR AFFIDAVITS SUPPORTING THE SUFFICIENT CAUSE AND NO R EBUTTAL HAVE BEEN FILED AGAINST THESE AFFIDAVITS, HENCE, FIRSTLY WE NOTE THAT THERE IS NO GENERAL PROPOSITION THAT MISTAKE OF COUNSEL ITSELF IS ALWAYS A SUFFICIENT CA USE. THIS QUESTION WHEN POSED TO THE COURTS IS ALWAYS A QUESTION WHETHER THE EXPL ANATION AND REASON FOR DELAY WAS BONAFIDE OR WAS A MERE DEVICE TO COVER ANULTERI OR PURPOSE SUCH AS WILLFUL OMISSION OR BONAFIDE MISTAKE OR DELIBERATENEGLIGENC E OR AN ATTEMPT TO FLOUT STATUTORY PROVISIONS OF LIMITATION IN AN UNDERHAND WAY. AT THE SAME TIME, WE CANNOT IGNORE THAT THE ASSESSEE HAS TO BELIEVE AND REPOSE FAITH IN THEIR COUNSEL HAVING SATISFIED HIS PROFESSIONAL REQUIREMENTS AND GIVEN NECESSARY PAPERS AND ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 6 DOCUMENTS ALONG WITH REQUISITE INSTRUCTIONS TO HIS COUNSEL. THEREAFTER, THE LITIGANT MAY BE JUSTIFIED IN BELIEVING THAT HIS COUNSEL WOUL D DISCHARGE HIS PROFESSIONAL FUNCTIONS AND OBLIGATIONS AS PER HIS (ASSESSEES) I NSTRUCTIONS. IN THESE CASES, WHERE IT IS BROUGHT ON RECORD THAT THE PARTY HAS DO NE EVERYTHING WITHIN HIS POWERS, CAPACITY AND ABILITY WHICH IS NECESSARY FOR INITIATION OF LEGAL PROCEEDINGS OR APPEAL BEFORE HIGHER FORUM, THE COURTS SHOULD BE LIBERAL IN CONSIDERING THE SUFFICIENCY OF THE CAUSE SHOWN BY THE ASSESSEE IN S UPPORT OF HIS PRAYER FOR CONDONATION OF DELAY AND SHOULD BE IN FAVOUR OF THE ASSESSEE. 10. IN VIEW OF ABOVE WELL SETTLED PROPOSITION WHEN WE ANALYZE THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE NOTE THAT THE ASSESSEE AND HIS EARLIER COUNSEL HAS DEPOSED ON AFFIDAVIT, WHICH REMAINED UN REBUTTEDBY THE REVENUE, BY COLLECTIVELY STATING THAT THE ASSESSEE HANDED OVER ALL NECESSARY PAPERS/DOCUMENTS WHICH WERE REQUIRED FOR FILING AN APPEAL BEFORE THIS TRIBUNAL AND SUBSEQUENTLY WHEN THE ASSESSEE RECEIVED PENALTY ORDER, HE CAME TO KNOW THAT THE COUNSEL HAS NOT FILED APPEAL AS PER HIS IN STRUCTIONS. THE COUNSEL OF THE ASSESSEE HAS ALSO SUPPORTED THIS EXPLANATION IN HIS UNREBUTTED AFFIDAVIT BY STATING THAT DUE TO INADVERTENCE, BONAFIDE OMISSION AND COMMUNICATION GAP, FURTHER APPEAL TO ITAT COULD NOT BE FILED. IN THIS SITUATION, IT CAN BE SAFELY INFERRED THAT THE ASSESSEE MADE ALL NECESSARY EFFORTS TO FIL E APPEAL WITHIN THE PRESCRIBED TIME BUT THE SAME COULD NOT BE FILED DUE TO BONAFID E OMISSION AND INADVERTENT MISTAKE OF HISCOUNSEL AND IT WOULD NOT BE JUSTIFIED TO DISMISS THE APPEAL OF THE ASSESSEE IN LIMINE MERELY BECAUSE THERE WAS DELAY I N FILING APPEAL DUE TO MISTAKE OF HIS COUNSEL. HENCE, WE REACH TO A FORTIF IED CONCLUSION THAT THE ASSESSEE HAS SUCCEEDED IN ESTABLISHING A BONAFIDE S UFFICIENT CAUSE WHICH CAUSED DELAY IN FILING APPEAL BEFORE TRIBUNAL WITHI N THE PRESCRIBED LIMITATION PERIOD AND THUS WE CONDONE THE SAID DELAY AND APPEA L OF THE ASSESSEE IS ADMITTED FOR HEARING ON MERITS. WE, THEREFORE, FOLLOWING THE ABOVE ORDER OF THE B-B ENCH OF THE DELHI TRIBUNAL, HOLD THAT THE ASSESSEE HAS SUCCEEDED IN E STABLISHING A BONAFIDE SUFFICIENT CAUSE AS A RESULT OF WHICH DELA Y WAS CAUSED IN FILING THESE APPEALS BEFORE THE TRIBUNAL WITHIN THE LIMITATION PERIOD. WE, THEREFORE, CONDONE THE DELAY INVOLVED IN THESE APPEALS AND ADMIT THE SAME FOR HEARING ON MERITS. 6. BEFORE US, BOTH THE PARTIES AGREED THAT ALL THE GROUNDS INVOLVED IN THESE APPEALS ARE IDENTICAL. WE, THEREF ORE, FOR THE SAKE OF ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 7 BREVITY, REPRODUCED GROUNDS OF APPEAL TAKEN BY THE ASSESSEE IN ITA NO. 1009/IND/2014 :- 1. THAT THE LD. CIT IS NOT JUSTIFIED IN NOT GIVING THE PROPER OPPORTUNITY OF HEARING, WHICH IS AGAINST THE NATURA L JUSTICE AND THE ORDER PASSED BY CIT BE QUASHED. 2. THAT THE LD. CIT IS NOT JUSTIFIED IN ISSUING THE NOTICE U/S 263 AND ALSO NOT JUSTIFIED IN PASSING THE ORDER U/S 263 3. THAT THE ASSESSMENT MADE BY LD. A.O. IS NOT ERRO NEOUS AND ALSO NOT PREJUDICIAL TO THE INTEREST OF THE REV ENUE AND THE ORDER PASSED BY LD. CIT U/S 263 IS BAD IN LAW. 7. BRIEFLY STATED, THE FACTS GIVING RISE TO THIS AP PEAL ARE THAT A SEARCH OPERATION UNDER SECTION 132 OF THE INCOME TA X ACT, 1961 (IN SHORT ACT) WAS CARRIED OUT AT THE RESIDENTIAL/BUS INESS REMISES OF M/S A.P. SHRESHTHA COLONISERS AND MITTAL GROUP OF C ASES ON 16.1.2009. THE ASSESSMENT ORDERS UNDER SECTION 153 A(1)(B) READ WITH SECTION 143(3) OF THE ACT FOR THE ASSESSMENT Y EARS 2005-06 TO 2007-08 WERE PASSED IN THE CASE OF THE ASSESSEE ON 25.8.2011. SUBSEQUENTLY, THE CIT (CENTRAL), GURGAON, (HEREINAF TER REFERRED TO AS COMMISSIONER) CALLED FOR THE ASSESSMENT RECORD AN D NOTED THAT DURING THE COURSE OF SEARCH PROCEEDINGS IN THE CASE OF SHRI ASHOK MITTAL CERTAIN, DOCUMENTS RELATING TO R.D. PROPERTY CONSULTANTS WERE FOUND. THESE DOCUMENTS WERE PRINT OUTS OF LEDG ER ACCOUNT AND ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 8 TRIAL BALANCE OF R.D. PROPERTY CONSULTANTS FOR THE PERIOD FROM 1.4.2004 TO 24.8.2006 PERTAINING TO THE PERIOD, UND ER CONSIDERATION, IN ALL THE THREE ASSESSMENT YEARS. I T WAS ALSO NOTED THAT DURING THE ASSESSMENT PROCEEDINGS IN THE CASE OF SHRI ASHOK MITTAL, HE DENIED TO HAVE ANY CONNECTION WITH THE S EIZED DOCUMENTS OR WITH R.D. PROPERTY CONSULTANTS. THE LEARNED CIT ALSO OBSERVED THAT IN RESPECT OF CREDIT ENTRY OF RS.3,19,14,006/- IN THE NAME OF DIMPLE IN THE TRIAL BALANCE OF R.D. PROPERTY CON SULTANT, IT WAS DISCOVERED THAT 'DIMPLE' IS ALIAS OF RAMESH MITTAL, THE ASSESSEE, WHOSE RESIDENCE, HOUSE NO. 515, SECTOR 16, PANCHKUL A, WAS ALSO COVERED DURING SEARCH OPERATION. THE ADDRESS OF 'DI MPLE' WAS GIVEN BY SHRI ASHOK MITTAL IN HIS WRITTEN SUBMISSIONS WHI CH ALSO HAPPENS TO BE THE RESIDENTIAL ADDRESS OF THE ASSESSEE CORRO BORATING THE STATEMENT GIVEN BY SHRI ASHOK MITTAL IN HIS WRITTEN SUBMISSION THAT 'DIMPLE' IS THE ALIAS OF SHRI RAMESH MITTAL, THE AS SESSEE. 8. ON THE BASIS OF THE ABOVE FACTS, THE COMMISSIONE R ISSUED NOTICE U/S 263 OF THE ACT TO THE ASSESSEE FOR ALL T HE THREE ASSESSMENT YEARS ON 21.1.2014 FIXING THE DATE FOR H EARING ON 11.2.2014. SUBSEQUENTLY, THE COMMISSIONER PASSED TH E IMPUGNED ORDER FOR ALL THE ASSESSMENT YEARS BY HOLDING THAT THE ORDER IS ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 9 ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE AND THE COMMISSIONER DIRECTED THE ASSESSING OFFICER TO RE-E XAMINE THE ISSUE OF IMPUGNED CREDIT ENTRY BY MAKING COMPREHENS IVE INQUIRIES REGARDING THE CONSTITUTION AND OWNERSHIP OF R.D. PR OPERTY CONSULTANTS AS WELL AS ENQUIRIES REGARDING THE CRED IT ENTRIES APPEARING IN ALIAS NAME OF THE ASSESSEE IN THE PRIN TOUTS OF THE LEDGER ACCOUNTS AND TRIAL BALANCE OF THE SAID CONCE RN SEIZED DURING THE SEARCH OPERATION FROM THE PREMISES OF SHRI ASHO K MITTAL. FINALLY, THE ASSESSMENT ORDERS FOR ALL THE THREE YE ARS DATED 25.8.2011 WERE SET ASIDE AND THE ASSESSMENTS FOR AL L THE THREE YEARS WERE RESTORED TO THE FILE OF THE ASSESSING OF FICER. NOW, THE AGGRIEVED ASSESSEE IS BEFORE THE TRIBUNAL WITH THE GROUNDS AS REPRODUCED HEREINABOVE. GROUND NO.1 9. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES A ND CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD OF T HE TRIBUNAL. THE LEARNED AR SUBMITTED THAT THE COMMISSIONER WAS NOT JUSTIFIED IN NOT GIVING PROPER OPPORTUNITY OF HEARING TO THE ASS ESSEE WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND, THERE FORE, THE ORDER PASSED BY THE COMMISSIONER BE QUASHED. REPLYING TO THE ABOVE, THE ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 10 LEARNED DR DREW OUR ATTENTION TO PARA 4 OF THE IMPU GNED ORDER AND SUBMITTED THAT ON 11.2.2014 THE ASSESSEE THROUGH HI S COUNSEL SOUGHT ADJOURNMENT WHICH WAS ALLOWED FOR 14.3.2011 AND ON THE DATE FIXED, NEITHER THE ASSESSEE NOR HIS AUTHORISED REPRESENTATIVE ATTENDED THE PROCEEDINGS NOR ANY WRITTEN SUBMISSION S OR APPLICATION FOR ADJOURNMENT WERE FILED. THEREFORE, THE COMMISSIONER WAS QUITE JUSTIFIED IN PASSING THE IMP UGNED ORDER AS THE CASE WAS GOING TO BE BARRED BY LIMITATION ON 31 .3.2014. THE LEARNED DR VEHEMENTLY CONTENDED THAT WHEN THE ASSES SEE IS NOT APPEARING TO EXPLAIN HIS STAND AND THE CASE DESPITE PROPER INFORMATION REGARDING THE DATE OF HEARING THEN THE COMMISSIONER HAD NO OPTION BUT TO DECIDE THE CASE ON MERITS ON T HE BASIS OF MATERIAL ON RECORD, WHICH CANNOT BE SAID TO BE VIOL ATION OF PRINCIPLES OF NATURAL JUSTICE. 10. ON CAREFUL CONSIDERATION OF THE ABOVE ARGUME NTS IN THE WAKE OF THE FACTS OF THE CASE, FROM PARA 4 OF THE IMPUGN ED ORDER OF THE COMMISSIONER IT IS VIVID THAT ON 11.2.2014 THE ASSE SSEE THROUGH HIS COUNSEL SOUGHT FOR ADJOURNMENT WHICH WAS ALLOWED FO R 14.3.2011 AND ON THAT DATE OF HEARING NEITHER THE ASSESSEE NO R HIS AUTHORISED REPRESENTATIVE ATTENDED THE PROCEEDINGS NOR ANY APP LICATION FOR ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 11 ADJOURNMENT OR WRITTEN SUBMISSIONS WERE FILED. THER EFORE, SINCE THE CASE WAS GOING TO BE TIME BARRED ON 31.3.2014, THE COMMISSIONER WAS QUITE CORRECT AND JUSTIFIED IN PROCEEDING TO PA SS FINAL ORDER ON 27.3.2014. IN THIS SITUATION, WE DECLINE TO ACCEPT THE CONTENTION OF THE LEARNED AR THAT THE ORDERS HAVE BEEN PASSED VIO LATING THE PRINCIPLES OF NATURAL JUSTICE EX-PARTY AND HENCE, G ROUND NO. 1 OF THE ASSESSEE BEING DE VOID OF ANY MERIT, IS DISMISSED. GROUND NOS. 2 & 3 11. APROPOS THESE GROUNDS, THE LEARNED COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO COPY OF NOTICE DATED 21.3.201 4 UNDER SECTION 263 OF THE ACT AND SUBMITTED THAT THE COMMISSIONER HIMSELF WAS NOT SURE WHETHER THE ISSUE OF CREDIT ENTRY WAS EITH ER NOT EXAMINED BY THE ASSESSING OFFICER OR IF EXAMINED, THE CONCLU SION, WHICH NATURALLY FLOWS ON THE FACTS AND CIRCUMSTANCES OF T HE CASE, HAS NOT BEEN DRAWN. THE LEARNED COUNSEL FOR THE ASSESSEE FU RTHER SUBMITTED THAT THE IMPUGNED ORDER HAS BEEN PASSED ON THE BASI S OF ASSESSMENT RECORD OF SHRI ASHOK MITTAL AS THE CASES OF THE ASSESSEE AND SHRI ASHOK MITTAL WERE CENTRALISED WITH THE SAM E ASSESSING OFFICER. THE LEARNED COUNSEL FOR THE ASSESSEE FURT HER SUBMITTED THAT DURING THE COURSE OF SEARCH PROCEEDINGS IN THE CASE OF SHRI ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 12 ASHOK MITTAL, DOCUMENTS RELATING TO R.D. PROPERTY C ONSULTANTS WERE FOUND WHICH WERE COPIES OF TRIAL BALANCE AND LEDGER ACCOUNTS AVAILABLE AT PAGES 38 TO 62 OF THE ASSESSEES PAPER BOOK. THE LEARNED AR FURTHER ELABORATED THAT AS PER TRIAL BAL ANCE (PAGE 38) CAPITAL ACCOUNTS OF SIX PERSONS WERE MENTIONED INCL UDING THE ACCOUNT IN THE NAME OF 'DIMPLE'. THE LEARNED COUNSE L FOR THE ASSESSEE FURTHER SUBMITTED THAT DURING THE ASSESSME NT PROCEEDINGS OF SHRI ASHOK MITTAL, THE CASE WAS REFERRED TO SPEC IAL AUDITOR WHO SUBMITTED HIS REPORT ON 25.6.2011 AFTER RAISING QUE RY WITH REGARD TO PAPERS OF R.D. PROPERTY CONSULTANTS TO SHRI ASHOK M ITTAL AND CONSIDERING HIS REPLY TO SUCH QUERY. IN THE REPLY FILED BY SHRI ASHOK MITTAL TO THE SPECIAL AUDITOR, HE STATED THAT HE HA S NO CONNECTION WITH SUCH ALLEGED PARTY, R.D. PROPERTY CONSULTANTS, AND HE PROVIDED THE ADDRESSES OF THE SAID SIX PERSONS AND THE ADDRESS OF 'DIMPLE' WAS THE SAME AS THAT OF SHRI RAMESH MITTAL I.E. HOUSE NO. 515, SECTOR 16, PANCHKULA. 12. THE LEARNED COUNSEL FOR THE ASSESSEE FURT HER SUBMITTED THAT SUBSEQUENTLY SHRI ASHOK MITTAL FILED AN APPLICATION BEFORE THE INCOME TAX SETTLEMENT COMMISSION ON 28.3.2011 AND A LLEGED PAPERS OF R.D. PROPERTY CONSULTANTS WERE DULY EXAMI NED IN THE CASE ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 13 OF SHRI ASHOK MITTAL BY THE ASSESSING OFFICER, SPEC IAL AUDITOR, INCOME TAX SETTLEMENT COMMISSION AND THE COMMISSION ER. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSING OFFICER ISSUED SUMMONS U/S 131(1) OF THE ACT TO 5 PERSONS, NAMELY, R.D. PROPERTY CONSULTANTS, 'DIMPLE ', RAJINDER, RAJIV KUMAR AND BUDH RAM. THE LEARNED COUNSEL FOR T HE ASSESSEE FURTHER SUBMITTED THAT IN THE CASE OF SHRI ASHOK MI TTAL REQUISITION U/S 142(1) OF THE ACT WAS ISSUED BY THE ACIT, CENTR AL-II, CHANDIGARH ON 25.7.2011 WHEREIN VIDE CLAUSE (VI) IT WAS SPECIFICALLY ASKED THAT AS PER THE PROVISIONS OF SECTION 269-C, THE ONUS IS ON SHRI ASHOK MITTAL TO EXPLAIN THE ENTRIES RECORDED I N THESE DOCUMENTS. THE ASSESSING OFFICER FURTHER ELABORATED THAT SINCE SHRI ASHOK MITTAL HAS FAILED TO DISCHARGE THE ONUS LAY U PON HIM, THEREFORE, HE WAS ASKED TO SHOW CAUSE AS TO WHY THE TOTAL CASH CREDITS OF RS.3,19,14,006/- APPEARING IN THE NAME O F 'DIMPLE', SHOULD NOT BE TREATED AS UNEXPLAINED CASH CREDIT UN DER SECTION 68 OF THE ACT. THE LEARNED COUNSEL FOR THE ASSESSEE VE HEMENTLY POINTED OUT THAT FROM THE COPY OF THE SAID NOTICE AVAILABLE AT PAGES 16 TO 19 OF THE ASSESSEES PAPER BOOK IT IS CLEAR THAT THE A SSESSING OFFICER APPLIED HIS MIND TO THE ALLEGED TRIAL BALANCE, ETC. DURING THE ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 14 ASSESSMENT PROCEEDINGS OF SHRI ASHOK MITTAL AND RAI SED QUERIES BY WAY OF NOTICE U/S 142(1) OF THE ACT DURING SCRUTINY ASSESSMENT PROCEEDINGS. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER POINTED OUT THAT DURING THE COURSE OF HEARING BEFORE THE IN COME TAX SETTLEMENT COMMISSION, THE COMMISSIONER DIRECTED TH E ASSESSING OFFICER TO EXAMINE 5 PERSONS WHOSE NAMES APPEARED I N THE TRIAL BALANCE OF R.D. PROPERTY CONSULTANTS AND AFTER VERI FICATION BY THE ASSESSING OFFICER, NO ADVERSE REPORT IN THIS REGARD HAS BEEN RECEIVED BY THE COMMISSIONER. HE DREW OUR ATTENTION TO ASSES SEES PAPER BOOK PAGES 29 TO 35 ESPECIALLY PARA 15.7 AND SUBMIT TED THAT THE SETTLEMENT COMMISSION, AFTER CONSIDERING THE REPORT OF SPECIAL AUDITOR, HELD THAT THE APPLICANT HAS DENIED ANY CON NECTION WITH R.D. PROPERTY CONSULTANTS OR TRIAL BALANCE, ETC. TH EREFORE, THE ALLEGED CREDITS INCLUDING THE IMPUGNED CREDIT IN TH E PRESENT CASE CANNOT BE ASSESSABLE IN THE HANDS OF SHRI ASHOK MIT TAL U/S 68 OF THE ACT. 13. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER EL ABORATED THE FACTS REGARDING EXAMINATION OF THE ISSUE BY THE SPE CIAL AUDITOR AND SUBMITTED THAT AS PER THE COPY OF THE RELEVANT PAPE RS OF SPECIAL AUDIT REPORT AVAILABLE AT PAGES 6 TO 15 OF THE ASSE SSEES PAPER BOOK ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 15 IT IS CLEAR THAT SPECIAL AUDITOR AFTER THOROUGHLY E XAMINING THE IMPUGNED DOCUMENTS ON ALL THE FOUR CORNERS HELD THA T IN THE ABSENCE OF INFORMATION SUCH AS BANK ACCOUNT, PAN, I NCOME TAX PARTICULARS, PARTNERSHIP DEED OR ANY OTHER RELEVANT DOCUMENT, THEY ARE NOT IN A POSITION TO FRAME THEIR OPINION ON THE CONSTITUTION OF R.D. PROPERTY CONSULTANTS. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER DREW OUR ATTENTION TO PARA 2 PAGES 14 AND 1 5 OF THE ASSESSEES PAPER BOOK AND SUBMITTED THAT AFTER VERI FICATION AND EXAMINATION OF THE RELEVANT DOCUMENTS FROM ALL ANGL ES IT WAS OPINED BY THE SPECIAL AUDITOR THAT TOTAL CASH CREDITS OF R S. 8,84,36,200/- IN THE TRIAL BALANCE ARE UNEXPLAINED CASH CREDITS CHAR GEABLE TO TAX UNDER SECTION 68 OF THE ACT. HOWEVER, THIS COMPUTAT ION OF UNDISCLOSED INCOME PERTAINS TO R.D. PROPERTY CONSUL TANTS AND THE SAME MAY BE ASSESSED IN THE CASE OF RELEVANT ASSESS EE AFTER FINDING OUT THE CONSTITUTION OF THIS FIRM I.E. R.D. PROPERT Y CONSULTANTS. 14. THE LEARNED COUNSEL FOR THE ASSESSEE STRENUOUSL Y POINTED OUT THAT THE COMMISSIONER DURING THE COURSE OF PROCEEDI NGS BEFORE THE INCOME TAX SETTLEMENT COMMISSION FILED THE REPORT U NDER RULE 9 OF INCOME TAX SETTLEMENT COMMISSION (PROCEDURE) RULES, 1997 ON 26.3.2012 IN WHICH THESE PAPERS OF R.D. PROPERTY CO NSULTANTS HAD ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 16 BEEN CONSIDERED. THE LEARNED COUNSEL FOR THE ASSESS EE FURTHER SUBMITTED THAT THE COMMISSIONER IN HIS REPORT SUBMI TTED TO THE SETTLEMENT COMMISSION URGED THAT THE TOTAL CASH CRE DITS AS APPEARING IN THE TRIAL BALANCE/BALANCE SHEET SHOULD BE TREATED AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE I.E. SHRI ASHOK MITTAL BUT THE SETTLEMENT COMMISSION HELD THAT NO ADVERSE VIEW IS TAKEN IN THE CASE OF SHRI ASHOK MITTAL. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT WHEN THE EXISTENCE AND CONSTITUTION OF R.D. PROPERTY CONSULTANTS COULD NOT BE DISCOVERED BY THE ASSESSING OFFICER, BY THE SPECIAL AUDITOR AND BY THE COMMISSI ONER HIMSELF THEN THE CONCLUSION DRAWN BY THE ASSESSING OFFICER CANNOT BE HELD AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THEREFORE, THE PROVISIONS OF SECTION 263 OF THE ACT CANNOT BE INVOKED IN THIS REGARD. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE COMMISSIONER HAS NOT DRAWN DEFIN ITE CONCLUSION WHETHER THESE DOCUMENTS WERE EXAMINED OR NOT BY THE ASSESSING OFFICER AND IF EXAMINED, THE CONCLUSION WHICH NATUR ALLY FLOWS, HAS NOT BEEN DRAWN IN THE ABSENCE OF THE SAME AND HE IS NOT JUSTIFIED IN HOLDING THAT THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 17 THE INTEREST OF THE REVENUE. PLACING RELIANCE ON TH E DECISION OF THE ITAT, DELHI BENCH, IN THE CASE OF BHARATI AIRTEL LI MITED; 44 CCH 95 (DEL TRI) THE LEARNED COUNSEL FOR THE ASSESSEE SUBM ITTED THAT WHERE THERE IS NO DEFINITE CONCLUSION OR OPINION OF THE C OMMISSIONER REGARDING THE ACTION OF THE ASSESSING OFFICER THEN THE PROVISIONS OF SECTION 263 OF THE ACT CANNOT BE INVOKED. 15. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER SU BMITTED THAT IT HAS BEEN STATED BY SHRI ASHOK MITTAL THAT THE NAME OF 'DIMPLE' APPEARING IN THE SEIZED LEDGER ACCOUNT AND TRIAL BA LANCE, IN FACT, IS ALIAS OF SHRI RAMESH MITTAL AND ON THE BASIS OF SUC H STATEMENT, THIS ACCOUNT WAS NEITHER PROPERLY INVESTIGATED NOR TAKEN INTO ACCOUNT IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE, SHRI AS HOK MITTAL. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT NOWHERE IN THE SPECIAL AUDITORS REPORT AND IN THE ORDER OF SE TTLEMENT COMMISSION IT HAS BEEN STATED BY SHRI ASHOK MITTAL THAT THE NAME OF 'DIMPLE' APPEARING IN THE SEIZED LEDGER ACCOUNT AND TRIAL ACCOUNT IS IN FACT ALIAS OF SHRI RAMESH MITTAL. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE IMPUGNED PAPERS VIZ. TRIAL BALANCE AND OTHER DOCUMENTS HAVE DULY BEEN EXAMINED IN THE CASE OF SHRI ASHOK MITTAL BY THE ASSESSING OFFICER OF TH E ASSESSEE AS BOTH ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 18 THE ASSESSING OFFICER ARE THE SAME, BY THE SPECIAL AUDITOR, BY THE COMMISSIONER IN HIS REPORT SUBMITTED TO THE SETTLEM ENT COMMISSION AND BY THE SETTLEMENT COMMISSION ALSO SE PARATELY. THEREFORE, IT CANNOT BE HELD THAT THE ASSESSING OFF ICER HAS NOT EXAMINED THE ISSUE PROPERLY. 16. ON THE ISSUE OF DIRECTIONS BY THE COMMISSIONER TO THE ASSESSING OFFICER IN THE CONCLUDING PART OF THE IMP UGNED ORDER, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT FRO M PARA 6 OF THE IMPUGNED ORDER IT IS CLEAR THAT IN THE OPINION OF T HE COMMISSIONER, THE SAID ISSUE HAS BEEN EXAMINED EARLIER AND NOW IT NEEDS TO BE RE- EXAMINED. THE LEARNED COUNSEL FOR THE ASSESSEE SUBM ITTED THAT EVEN AFTER PASSING THE IMPUGNED ORDER U/S 263 OF THE ACT , THE COMMISSIONER WAS NOT DEFINITE REGARDING THE OWNERSH IP AND CONSTITUTION OF R.D. PROPERTY CONSULTANTS AND FOR I NVOKING THE PROVISIONS OF SECTION 263 OF THE ACT. HE SUBMITTED THAT THE ERROR SHOULD NOT DEPEND UPON POSSIBILITY OR GUESS WORK BU T SHOULD BE ACTUALLY AN ERROR WHICH IS DISCERNIBLE FROM THE ASS ESSMENT RECORD AND THE ORDER UNDER REVISION. THE LEARNED COUNSEL F OR THE ASSESSEE FURTHER SUBMITTED THAT THAT IN THE TRIAL BALANCE OF R.D. PROPERTY CONSULTANTS AND LEDGER ACCOUNT OF 'DIMPLE' NEITHER IN THE BOOKS OF ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 19 R.D. PROPERTY CONSULTANTS, NAME OF THE ASSESSEE, SH RI RAMESH MITTAL HAS NOWHERE BEEN MENTIONED AND WITHOUT ANY E VIDENCE, THE ASSESSEE CANNOT BE LINKED WITH UNANIMOUS PERSONALIT Y NAMED AS 'DIMPLE', THAT TOO BY AN ENTITY WHOSE CONSTITUTION AND EXISTENCE COULD NOT BE DISCOVERED DESPITE SEVERAL EFFORTS OF THE ASSESSING OFFICER, SPECIAL AUDITOR AND SETTLEMENT COMMISSION. 17. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THESE DOCUMENTS WERE NOT FOUND FROM THE ASSESSMENT RECORD OF THE ASSESSEE BUT THESE WERE PART OF ASSESSMENT RECORD O F SHRI ASHOK MITTAL AND IN THE CASE OF SHRI ASHOK MITTAL THESE P APERS WERE DULY EXAMINED AND IF IT IS ALSO A PART OF ASSESSMENT REC ORD OF SHRI RAMESH MITTAL EVEN THEN IT IS CLEAR THAT THESE DOCU MENTS HAVE ALREADY BEEN EXAMINED BY THE SAME ASSESSING OFFICER WHO IS DEALING WITH THE CASES OF SHRI ASHOK MITTAL AND SHRI RAMESH MITTAL I.E. THE PRESENT ASSESSEE. THE LEARNED COUNSEL FOR THE ASSES SEE SUBMITTED THAT FOR INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT, THE COMMISSIONER IS REQUIRED TO REFER TO THE RECORDS OF THE ASSESSEE AND THE ALLEGED DOCUMENTS WHICH WERE SEIZED DURING SEAR CH AND SEIZURE OPERATION FROM SHRI ASHOK MITTAL WHICH WERE PART OF THE ASSESSMENT RECORD OF SHRI ASHOK MITTAL AND THE SAME CANNOT BE SAID TO BE A ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 20 PART OF THE ASSESSMENT RECORD OF THE ASSESSEE AND, THEREFORE, NO ADVERSE INFERENCE CAN BE DRAWN AGAINST THE ASSESSIN G OFFICER AS WHEN THE DOCUMENTS WERE NOT IN THE RECORD OF SHRI R AMESH MITTAL THEN THE ASSESSING OFFICER CANNOT BE EXPECTED TO EX AMINE THE SAME AS PER THE ORDER OF THE COMMISSIONER. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT WITHOUT PREJUDICE T O THE ABOVE CONTENTION, IF FOR THE SAKE OF ARGUMENTS, IT IS PRE SUMED THAT THE DOCUMENTS PERTAINING TO R.D. PROPERTY CONSULTANTS, WHICH WERE IN THE ASSESSMENT RECORD OF SHRI ASHOK MITTAL, COULD H AVE BEEN CONSIDERED BY THE ASSESSEE DURING THE ASSESSMENT PR OCEEDINGS OF THE PRESENT ASSESSEE AND, THEREFORE, THE SAME WERE IN THE AMBIT OF RECORD OF THE ASSESSEE WHICH WAS CALLED AND SEIZED BY THE COMMISSIONER BEFORE INVOKING THE PROVISIONS OF SECT ION 263 OF THE ACT THEN ALSO IF THE ASSESSING OFFICER, DURING THE ASSESSMENT PROCEEDINGS OF SHRI ASHOK MITTAL, HAD THOROUGHLY EX AMINED THE SAME BY WAY OF APPOINTING SPECIAL AUDITOR AND THERE WAS NOTHING ADVERSE IN THE SPECIAL AUDITORS REPORT, WHICH WAS ALSO CONSIDERED BY THE SETTLEMENT COMMISSION THEN IT CANNOT BE ALLE GED THAT THE ASSESSING OFFICER DID NOT CONDUCT ANY INQUIRY ON TH E ALLEGED DOCUMENTS RELATING TO R.D. PROPERTY CONSULTANTS. TH E LEARNED ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 21 COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THA T IF ALLEGED DOCUMENTS OF R.D. PROPERTY CONSULTANTS WERE PART OF THE ASSESSMENT RECORD OF SHRI ASHOK MITTAL THEN THE INQ UIRY CONDUCTED BY THE SAME ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS IN THE CASE OF SHRI ASHOK MITTAL WAS SUFFICIENT AND TH ERE WAS NO REQUIREMENT OF FURTHER INQUIRY DURING THE ASSESSMEN T PROCEEDINGS IN THE CASE OF THE PRESENT ASSESSEE I.E. SHRI RAMES H MITTAL. THE LEARNED COUNSEL FOR THE ASSESSEE VEHEMENTLY CONTEND ED THAT THE REVENUE CANNOT KILL THE ASSESSEE BY TWIN-EDGED SWOR D BY ALLEGING CONTRADICTORY ALLEGATION VIZ. FIRSTLY ALLEGING THAT THERE WAS NO INQUIRY BY THE ASSESSING OFFICER DURING THE ASSESSMENT PROC EEDINGS OF SHRI RAMESH MITTAL ON THE SEIZED DOCUMENTS PERTAINING TO R.D. PROPERTY CONSULTANTS AND SECONDLY BY ALLEGING THAT THE INQUI RIES CONDUCTED BY THE ASSESSING OFFICER IN THE CASE OF SHRI ASHOK MITTAL CANNOT BE TAKEN AS EXTENDED UP TO THE ASSESSMENT PROCEEDINGS OF SHRI RAMESH MITTAL ESPECIALLY WHEN THE ASSESSING OFFICER OF SHRI ASHOK MITTAL AND SHRI RAMESH MITTAL WAS THE SAME. THE LEA RNED COUNSEL VEHEMENTLY POINTED OUT THAT EVEN DECISION OF HONBL E BOMBAY HIGH COURT DATE 16.6.2016 IN THE CASE OF CIT VS. SHRI. N IRAV MODI IN ITA NO. 117 OF 2014 SINCE REPORTED AS (2016) 138 DTR (B OMBAY) 81, ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 22 DECISION OF HONBLE HIGH COURT IN THE CASE OF PCIT VS. HARMONY YARNS PRIVATE LIMITED DATED 21.6.2016 ALSO SUPPORTS THE CASE OF THE ASSESSEE THAT IF THE AO HAS CALLED FOR THE REPLY OF THE ASSESSEE WHO HAD GIVEN ELABORATE EXPLANATION ALONGWITH RELEVANT DOCUMENTARY EVIDENCE THEN THIS EXERCISE UNDERTAKEN BY THE AO IN THE REASSESSMENT PROCEEDINGS SHOWS ENDEAVOURS AND APPLI CATION OF MIND BY THE AO AND THE SATISFACTION OF THE AO ON TH E BASIS OF THE DOCUMENTS PRODUCED BY THE ASSESSEE AND SUCH ORDER O F THE AO CANNOT BE ALLEGED AS ERRONEOUS AND PREJUDICIAL TO T HE INTEREST OF THE REVENUE IN ABSENCE OF MAKING FURTHER INQUIRY BY THE CIT HIMSELF. HE ALSO CONTENDED THAT THE ALLEGATION OF INADEQUATE INQUIRY CANNOT BE MADE AGAINST THE AO AND ORDER CANNOT BE HELD AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE LEA RNED COUNSEL ALSO PLACED RELIANCE ON THE DECISION OF HONBLE JURISDIC TIONAL HIGH COURT OF DELHI IN THE CASE OF DIT VS. JYOTI FOUNDATION RE PORTED AS 357 ITR 358 (DELHI) AND SUBMITTED THAT IN CASES OF WRONG OP INION OR FINDINGS ON MERITS BY THE AO THE CIT HAS TO COME TO A CONCLUSION AND HIMSELF DECIDE THAT ORDER IS ERRONEOUS BY CONDU CTING NECESSARY INQUIRY, IF REQUIRED AND NECESSARY, BEFORE THE ORDE R UNDER SECTION 263 OF THE ACT IS PASSED. BUT IN THE PRESENT CASE, CIT HAS NOT ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 23 CONDUCTED ANY SUCH INQUIRY AS PER MANDATE OF SECTIO N 263 OF THE ACT TO SHOW THE ORDER AS HAVING WRONG OPINION OR FI NDINGS ON MERITS AND WITHOUT CONDUCTING ANY FURTHER INQUIRY BY THE C IT, ORDER OF THE AO CANNOT BE ALLEGED AS ERRONEOUS AND PREJUDICIAL T O THE INTEREST OF THE REVENUE. THE LEARNED COUNSEL HAS ALSO PLACED RE LIANCE ON THE DECISION OF HONBLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. DLF LIMITED 350 ITR 555 DELHI AND SUBMITTED THAT IT IS NOT MERE PREJUDICE TO THE REVENUE OR MERE ERRONEOUS VIEW WHI CH CAN BE REVISED UNDER SECTION 263 OF THE ACT BUT THERE SHOU LD BE THE ADDED ELEMENT OF UN-SUSTAINABILITY IN THE ORDER OF THE AO WHICH CLOTHES THE COMMISSIONER WITH VALID JURISDICTION TO ISSUE N OTICE AND PROCEED TO MAKE APPROPRIATE ORDERS. THE LEARNED COU NSEL ALSO POINTED OUT THAT THE HONBLE DELHI HIGH COURT IN TH E CASE OF ITO V.S D.G. HOUSING PROJECT LIMITED REPORTED AS 343 ITR 3 29 [DEL], IT WAS HELD THAT IF THERE IS NO FINDING THAT ORDER OF THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE BY WAY OF MA KING INDEPENDENT INQUIRY BY THE CIT, THE REVISION OF SUCH ORDER U/S 263 OF THE ACT ON THE BASIS OF BALD AND BASELESS ALLEGATIONS IS NOT P ERMITTED. THE LEARNED COUNSEL FURTHER SUBMITTED THAT THE ORDER OF HONBLE BOMBAY HIGH COURT IN THE CASE OF NIRAV MODI HAS ATTAINED F INALITY AS THE ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 24 SLP OF THE DEPARTMENT HAS BEEN DISMISSED BY HONBLE SUPREME COURT ON 14.12.2016 COPY OF THE SAID ORDER OF THE H ONBLE APEX NCOURT HAS ALSO BEEN PLACED ON RECORD. 18. THE LEARNED CIT DR REPLYING TO THE ABOVE SUBMIS SIONS SUBMITTED THAT FROM A BARE READING OF THE ASSESSMEN T ORDER DATED 25.8.2011 IT IS CLEAR THAT THE ASSESSING OFFICER HA S NOT MADE ANY EXAMINATION OR INQUIRY IN REGARD TO THE DOCUMENTS R ELATING TO R.D. PROPERTY CONSULTANTS WHICH WERE FOUND DURING THE CO URSE OF SEARCH PROCEEDINGS IN THE CASE OF SHRI ASHOK MITTAL. THE LEARNED CIT DR FURTHER SUBMITTED THAT THAT THESE DOCUMENTS WERE PR INT OUTS OF LEDGER ACCOUNT AND TRIAL BALANCE OF R.D. PROPERTY C ONSULTANTS FOR THE PERIOD 1.4.2004 TO 24.8.2006 PERTAINING TO THE ASSESSMENT YEARS 2005-06 TO 2007-08. THE LEARNED DR FURTHER E LABORATED THAT DURING THE ASSESSMENT PROCEEDINGS IN THE CASE OF SH RI ASHOK MITTAL, HE HAS DENIED TO HAVE ANY CONNECTION WITH THE SEIZE D DOCUMENTS OR WITH R.D. PROPERTY CONSULTANTS AND IN RESPECT OF CR EDIT ENTRY OF RS.3,19,14,006/- IN THE TRIAL BALANCE IN THE NAME O F ONE 'DIMPLE', IT WAS DISCOVERED THAT 'DIMPLE' IS ALIAS OF SHRI RAMES H MITTAL WHOSE RESIDENCE IS HOUSE NO. 515, SECTOR 16, PANCHKULA WH ICH WAS ALSO COVERED DURING SEARCH OPERATION. THE LEARNED DR FUR THER SUBMITTED ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 25 THAT THE ADDRESS OF 'DIMPLE' AS GIVEN BY SHRI ASHOK MITTAL WAS THE SAME WHICH WAS THE ADDRESS OF SHRI RAMESH MITTAL AN D SHRI ASHOK MITTAL IN HIS WRITTEN SUBMISSIONS STATED THAT 'DIMP LE' IS THE ALIAS OF SHRI RAMESH MITTAL I.E. THE ASSESSEE AND ON THIS IS SUE NO EXAMINATION OR INQUIRY WAS CONDUCTED BY THE ASSESSE E. THEREFORE, IT IS A CASE OF LACK OF INQUIRY AND THUS THE COMMISSIO NER WAS QUITE CORRECT AND JUSTIFIED IN HOLDING THE ASSESSMENT ORD ER AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE LEARNED DR VEHEMENTLY SUBMITTED THAT IT WAS A MAJOR ISSUE HAVI NG SUBSTANTIAL BEARING ON ASSESSMENT OF THE INCOME OF THE ASSESSEE FOR THREE YEARS. THEREFORE, THE COMMISSIONER WAS QUITE CORREC T AND JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 263 OF THE AC T BY ISSUING NOTICE AND BY PASSING THE IMPUGNED ORDER WHEREIN HE DIRECT ED THE ASSESSING OFFICER TO RE-EXAMINE THE ISSUE OF THE IM PUGNED CREDIT ENTRY BY MAKING COMPREHENSIVE INQUIRY REGARDING THE CONSTITUTION AND OWNERSHIP OF THE CONCERN R.D. PROPERTY CONSULTA NTS AS WELL AS INQUIRIES REGARDING CREDIT ENTIRES APPEARING IN THE ALIAS NAME OF THE ASSESSEE IN THE SEIZED DOCUMENTS VIZ. PRINT OUTS OF LEDGER ACCOUNT AND TRIAL BALANCE OF THE SAID CONCERN. THE LEARNED CIT DR FURTHER SUBMITTED THAT NO PREJUDICE HAS BEEN CAUSED TO THE ASSESSEE IF THE ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 26 ASSESSING OFFICER DRAWS A LOGICAL CONCLUSION IN RES PECT OF THE SAID CREDIT ENTRIES SEPARATELY IN RESPECT OF EACH ASSESS MENT YEAR AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSE E. THEREFORE, THE IMPUGNED ORDER MAY KINDLY BE SUSTAINED. 19. PLACING REJOINDER ON THE ABOVE SUBMISSIONS, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT AS PER THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF JYOTI FOUND ATION (SUPRA) WHEN THE CIT WITHOUT CONDUCTING ANY INQUIRY REGARDI NG ALLEGED WRONG OPINION AND FINDINGS ARRIVED BY THE A O ON MERITS DIRECTLY JUMPED TO A CONCLUSION AND HIMSELF DECIDE THAT THE ORDER IS ERRONEOUS THEN THE REVERSIONARY P OWER U/S 263 OF THE ACT CANNOT BE INVOKED AND THE CIT A IS DUTY BOUND TO CONDUCT NECESSARY INQUIRY BEFORE REVERSION ARY ORDER UNDER THE SAID PROVISION IS PASSED. THE LD. C OUNSEL VEHEMENTLY CONTENDED THAT IN THE PRESENT CASE WITHO UT MAKING ANY INQUIRY SUCH POWER U/S 263 OF THE ACT HA S BEEN INVOKED BY THE CIT WITHOUT ASSUMING VALID JURISDICTION TO REVISE THE REASSESSMENT ORDER PASSE D U/S 143(3) R.W.S 153A OF THE ACT, THEREFORE IMPUGNED OR DER OF ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 27 CIT AND CONSEQUENT PROCEEDINGS IN PURSUANCE THERETO MAY KINDLY BE QUASHED. 20. ON CAREFUL CONSIDERATION OF THE ABOVE RIVAL SUBMISSIONS AND AFTER RESPECTFUL AND DILIGENT CONSI DERATION OF ALL THE DECISIONS AND ORDERS, CITED AT BAR BY BO TH THE PARTIES, FIRST OF ALL, WE NOTE THAT THE CIT ISSUED FOLLOWING SHOW CAUSE NOTICE U/S 263 OF THE ACT ON 21.1.2014 ( COPY AT PAGES 36 AND 37 OF THE ASSESSEES PAPER BOOK) :- THE ASSESSMENT ORDER U/S 153A(1)(B) R.W.S. 143(3) O F I.T. ACT, 1961 DATED 25.08.2011 FOR A.Y. 2005-06 PASSED BY ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCL E_II, CHANDIGARH IN YOUR CASE WAS EXAMINED AND IT APPEARS THAT THE FOLLOWING ISSUES WERE EITHER NOT EXAMINED BY THE AS SESSING OFFICER OR IF EXAMINED, THE CONCLUSION WHICH NATURA LLY FLOWS IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE AVAILABLE MATERIAL ON RECORDS HAS NOT BEEN DRAWN_ FROM THE PERUSAL OF ASSESSMENT RECORDS, IT TRANSPIR ED THAT DURING THE COURSE OF SEARCH PROCEEDING IN THE CASE OF SH. ASHOK MITTAL, CERTAIN DOCUMENTS RELATING TO M/S R.D. PROP ERTY CONSULTANTS WERE FOUND. THESE ARE A PRINTOUT OF LED GER A/C AND ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 28 TRIAL BALANCE OF M/S R.D. PROPERTY CONSULTANTS FOR THE PERIOD 01.04.2004 TO 24.08.2006 (INCLUSIVE OF PERIOD UNDER CONSIDERATION). DURING ASSESSMENTS PROCEEDINGS IN T HE CASE OF SH. ASHOK MITTAL, HE HAS DENIED TO HAVE ANY CONNECT ION WITH THE SEIZED DOCUMENT OR WITH M/S R.D. PROPERTY CONSULTAN T. HOWEVER, IN RESPECT OF CREDIT ENTRY OF RS. 3,19,14, 006/- IN THE TRIAL BALANCE IN THE NAME OF ONE DIMPLE, IT WAS D ISCOVERED THAT DIMPLE IS AN ALIAS OF SH. RAMESH MITTAL WHOSE RE SIDENT, H.NO. 515, SECTOR-16, PANCHKULA WAS ALSO COVERED DU RING SEARCH OPERATION. THIS ADDRESS OF DIMPLE WAS GIVE N BY SH. ASHOK MITTAL IN HIS WRITTEN SUBMISSION WHICH ALSO H APPENS TO BE YOUR RESIDENTIAL ADDRESS CORROBORATING THE STATE MENT GIVEN BY SH. ASHOK MITTAL IN HIS WRITTEN SUBMISSION THAT DIMPLE IS THE ALIAS OF SH. RAMESH MITTAL, I.E. YOURSELF. HOWEVER, A PERUSAL OF THE ASSESSMENT ORDER PASSED U /S 153A(1)(B)/143(3) DATED 25.08.2011 IN YOUR CASE SHO WS THAT THE ISSUE OF THIS CREDIT ENTRY OF RS. 3,19,14,006/- IN YOUR ALIAS NAME DIMPLE AS EVIDENT FROM THE SEIZED MATERIAL F ROM THE RESIDENTIAL PREMISES OF SH. ASHOK MITTAL AS WELL AS HIS SUBMISSION DURING ASSESSMENT PROCEEDINGS IN HIS CAS E, HAS NOT ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 29 EXAMINED DURING ASSESSMENT PROCEEDINGS IN YOUR CASE FOR A.Y. 2005-06 TO 2007-08. SINCE, IT IS A MAJOR ISSUE HAVI NG A SUBSTANTIAL BEARING ON ASSESSMENT OF YOUR INCOME FO R A.Y. 2005-06 TO 2007-08, I AM SATISFIED THAT THE ORDER P ASSED BY ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCL E-II, CHANDIGARH FOR A.Y. 2005-06 DATED 28.05.2011 IS ERR ONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE WHIC H REQUIRES INTERVENTION AS PROVIDED U/S 263 OF THE I T ACT, 19 61. YOU ARE, THEREFORE, BEING GRANTED AN OPPORTUNITY OF BEING HEARD U/S 263(1) OF I.T. ACT, 1961 TO PRESENT YOUR EXPLANATION WITH REGARD TO THE PROPOSED ACTION. PLEASE NOTE THA T YOUR EXPLANATION MUST BE SUPPORTED BY SATISFACTORY DOCUM ENTARY EVIDENCES CORROBORATING YOUR CONTENTIONS. THE DATE OF COMPLIANCE IS FIXED FOR 11.02.2014, YO U MAY ATTEND MY OFFICE AT UDYOG VIHAR, PHASE-V, GURGAON W ITHER PERSONALLY OR THROUGH A REPRESENTATIVE DULY AUTHORI ZED BY YOU FOR THIS PURPOSE. ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 30 21. IT IS TRITE THAT AN ORDER CAN BE REVISED ONLY AND O NLY IF TWIN CONDITIONS OF ERROR IN THE ORDER AND PREJUDICE C AUSED TO THE REVENUE CO-EXIST. 22. THE SUBJECT OF REVISION UNDER SECTION 263 HAS BEE N VASTLY EXAMINED AND ANALYZED BY VARIOUS COURTS INCLUDING T HAT OF HONBLE APEX COURT. THE REVISIONAL POWER CONFERRED ON THE CIT VIDE SECTION 263 IS OF VIDE AMPLITUDE. IT ENABLES THE CIT TO CA LL FOR AND EXAMINE THE RECORDS OF ANY PROCEEDING UNDER THE ACT. IT EM POWERS THE CIT TO MAKE OR CAUSE TO BE MADE SUCH AN INQUIRY AS HE D EEMS NECESSARY IN ORDER TO FIND OUT IF ANY ORDER PASSED BY ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE ONLY LIMITATION ON HIS POWERS IS THAT HE MUST HAVE SOME MATERIAL(S) WHICH WOULD ENABLE HIM TO FOR M A PRIMA FACIE OPINION THAT THE ORDER PASSED BY THE ASSESSING OFFI CER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF T HE REVENUE. ONCE HE COMES TO THE ABOVE CONCLUSION ON THE BASIS OF THE MATERIAL THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND ALSO PREJUDICIAL TO THE INTERESTS OF THE REVENUE, THE CIT IS EMPOWER ED TO PASS AN ORDER AS THE CIRCUMSTANCES OF THE CASE MAY WARRANT. HE MAY PASS AN ORDER ENHANCING THE ASSESSMENT OR HE MAY MODIFY THE ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 31 ASSESSMENT. HE IS ALSO EMPOWERED TO CANCEL THE ASS ESSMENT AND DIRECT TO FRAME A FRESH ASSESSMENT. HE IS EMPOWERE D TO TAKE RECOURSE TO ANY OF THE THREE COURSES INDICATED IN S ECTION 263. SO, IT IS CLEAR THAT THE CIT DOES NOT HAVE UNFETTERED AND UNCHEQUERED DISCRETION TO REVISE AN ORDER. THE CIT IS REQUIRED TO EXERCISE REVISIONAL POWER WITHIN THE BOUNDS OF THE LAW AND H AS TO SATISFY THE NEED OF FAIRNESS IN ADMINISTRATIVE ACTION AND FAIR PLAY WITH DUE RESPECT TO THE PRINCIPLE OF AUDI ALTERAM PARTEM AS ENVISAGED IN THE CONSTITUTION OF INDIA AS WELL AS IN SECTION 263. AN ORDER CAN BE TREATED AS ERRONEOUS IF IT WAS PASSED IN UTTER IG NORANCE OR IN VIOLATION OF ANY LAW; OR PASSED WITHOUT TAKING INTO CONSIDERATION ALL THE RELEVANT FACTS OR BY TAKING INTO CONSIDERATION IRRELEVANT FACTS. THE PREJUDICE THAT IS CONTEMPLATED UNDER SECTION 263 IS THE PREJUDICE TO THE INCOME TAX ADMINISTRATION AS A WHO LE. THE REVISION HAS TO BE DONE FOR THE PURPOSE OF SETTING RIGHT DISTORTIONS AND PREJUDICES CAUSED TO THE REVENUE IN THE ABOVE C ONTEXT. THE FUNDAMENTAL PRINCIPLES WHICH EMERGE FROM THE SEVERA L CASES REGARDING THE POWERS OF THE CIT UNDER SECTION 263 M AY BE SUMMARIZED BELOW: ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 32 (I) THE CIT MUST RECORD SATISFACTION THAT THE ORDE R OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO T HE INTERESTS OF THE REVENUE. BOTH THE CONDITIONS MUST BE FULFILLED. (II) SECTION 263 CANNOT BE INVOKED TO CORRECT EAC H AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE ASSESSING OFFICER AND IT IS ONLY WHEN AN ORDER IS ERRONEOUS, THAT THE SECTION WILL BE ATTRACTED. (III) AN INCORRECT ASSUMPTION OF FACTS OR AN INCORR ECT APPLICATION OF LAW WILL SUFFICE FOR THE REQUIREME NT OR ORDER BEING ERRONEOUS. (IV) IF THE ORDER IS PASSED WITHOUT APPLICATION OF MIND, SUCH ORDER WILL FALL UNDER THE CATEGORY OF ERRONEOUS ORD ER. (V) EVERY LOSS OF REVENUE CANNOT BE TREATED AS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND IF THE ASSESSING OF FICER HAS ADOPTED ONE OF THE COURSES PERMISSIBLE UNDER LA W OR WHERE TWO VIEWS ARE POSSIBLE AND THE ASSESSING OFFICER HAS TAKEN ONE VIEW UNDER WITH WHICH THE CIT DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOU S ORDER, UNLESS THE VIEW TAKEN BY THE ASSESSING OFFIC ER IS UNSUSTAINABLE UNDER THE LAW. (VI) IF WHILE MAKING THE ASSESSMENT, THE ASSESSI NG OFFICER EXAMINES THE ACCOUNTS, MAKES ENQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 33 DETERMINES THE INCOME, THE CIT, WHILE EXERCISING HI S POWER UNDER SECTION 263, IS NOT PERMITTED TO SUBSTI TUTE HIS ESTIMATE OF INCOME IN PLACE OF THE INCOME ESTIM ATED BY THE ASSESSING OFFICER. (VII) THE ASSESSING OFFICER EXERCISE QUASI-JUDICIAL POWER VESTED IN HIM AND IF HE EXERCISE SUCH POWER IN ACCORDANCE WITH LAW AND ARRIVES AS A CONCLUSION, SU CH CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS SIMPLY BECAUSE THE CIT DOES NOT FEEL SATISFIED WITH THE CONCLUSION. (VIII) THE CIT, BEFORE EXERCISING HIS JURISDICTION UNDER SECTION 263, MUST HAVE MATERIAL ON RECORD TO ARRIVE AT A SATISFACTION. 23. IF THE ASSESSING OFFICER HAS MADE ENQUIRIES DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS ON THE RELEVANT ISSUES AN D THE ASSESSEE HAS GIVEN DETAILED EXPLANATION ALONGWITH RELEVANT E VIDENCE AND DOCUMENTS TO THE AO DURING THE ASSESSMENT OR REASSE SSMENT PROCEEDINGS AND THEREAFTER THE ASSESSING OFFICER AL LOWED THE CLAIM ON BEING SATISFIED WITH THE EXPLANATION OF THE ASSE SSEE, THE DECISION OF THE ASSESSING OFFICER CANNOT BE HELD TO BE ERRON EOUS SIMPLY BECAUSE IN HIS ORDER HE DOES NOT MAKE AN ELABORATE DISCUSSION IN THAT REGARD AS PER OPINION OR EXPECTATION OF THE CI T. ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 34 24. FROM A CAREFUL READING OF THE IMPUGNED NOTICE A ND THE ORDER OF THE COMMISSIONER PASSED UNDER SECTION 263 OF THE AC T WE OBSERVE THAT THE MAIN AND SOLE ALLEGATION OF THE COMMISSION ER FOR INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT IS THAT WH ILE FRAMING THE ASSESSING OFFICER WHILE FRAMING THE ASSESSMENT ORDE RS FOR THE ASSESSMENT YEARS 2005-06, 2006-07 AND 2007-08 EITHE R NOT EXAMINED OR IF EXAMINED, THE CONCLUSION WHICH NATUR ALLY FLOWS ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AVAI LABLE ON RECORD, HAS NOT BEEN DRAWN BY THE ASSESSING OFFICER . THE BASE OF THIS ALLEGATION IS THAT FROM THE ASSESSMENT RECORD OF SH RI ASHOK MITTAL IT WAS TRANSPIRED THAT DURING THE COURSE OF SEARCH PRO CEEDINGS IN THE CASE OF SHRI ASHOK MITTAL CERTAIN DOCUMENTS RELATIN G TO R.D. PROPERTY CONSULTANTS WERE FOUND WHICH WERE PRINT OU TS OF LEDGER ACCOUNT AND TRIAL BALANCE OF THE SAID FIRM FOR THE PERIOD 1.4.0224 TO 24.8.2006. THE COMMISSIONER FURTHER NOTED THAT DUR ING THE ASSESSMENT PROCEEDINGS IN THE CASE OF SHRI ASHOK MI TTAL HE DENIED TO HAVE ANY CONNECTION WITH THE SEIZED DOCUMENTS OR WITH R.D. PROPERTY CONSULTANTS. HOWEVER, IN RESPECT OF CRED IT ENTRY IN THE TRIAL BALANCE OF R.D. PROPERTY CONSULTANTS, THE NAM E OF 'DIMPLE' WAS SHOWN AND IT WAS DISCOVERED THAT 'DIMPLE' IS AL IAS OF SHRI ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 35 RAMESH MITTAL WHO IS THE PRESENT ASSESSEE WHOSE RES IDENCE WAS HOUSE NO. 515, SECTOR 16, PANCHKULA, WHICH WAS ALSO COVERED DURING SEARCH OPERATION IN THE CASE OF SHRI ASHOK M ITTAL GROUP. THE COMMISSIONER FURTHER NOTICED THAT THE ADDRESS OF 'D IMPLE' WAS GIVEN BY SHRI ASHOK MITTAL IN HIS WRITTEN SUBMISSIO NS WHICH ALSO HAPPENS TO BE RESIDENTIAL ADDRESS OF THE ASSESSEE A ND FURTHER ON PERUSAL OF THE ASSESSING OFFICER DATED 25.8.2011 PA SSED IN THE CASE OF THE PRESENT ASSESSEE, HE NOTICED THAT THE ISSUE OF IMPUGNED CREDIT ENTRY IN THE ALIAS NAME OF 'DIMPLE' HAS NOT BEEN EXAMINED BY THE ASSESSING OFFICER. THE COMMISSIONER FURTHER NOT ICED THAT IT WAS A MAJOR ISSUE HAVING SUBSTANTIAL BEARING ON THE ASS ESSMENT ORDER FOR THE THREE YEARS AND THEREAFTER HE HELD THAT THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE, WHICH REQUIRES INTERVENTION U/S 263 OF THE ACT. FROM THE RELEVANT OPERATIVE PART OF PARAS 5 AND 6 OF THE IMPUGNED ORD ER IT IS ALSO DISCERNIBLE THAT AFTER MENTIONING THE FACTS WHICH W ERE STATED IN THE NOTICE U/S 263 OF THE ACT AND WITHOUT MAKING ANY IN QUIRY HIMSELF, THE COMMISSIONER JUMPED TO THE CONCLUSION THAT ON T HE BASIS OF STATEMENT OF SHRI ASHOK MITTAL THE IMPUGNED AMOUNT OF CREDIT ENTRY WAS NEITHER PROPERLY INVESTIGATED NOR TAKEN INTO AC COUNT IN ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 36 COMPUTING THE TOTAL INCOME OF SHRI ASHOK MITTAL. T HE COMMISSIONER FURTHER HELD THAT FROM A PERUSAL OF AS SESSMENT RECORD OF THE ASSESSEE FOR THREE YEARS IT WAS ALSO TRANSPIRED THAT THE ISSUE WAS NOT EVEN CONFRONTED TO THE ASSESSEE AND S UCH AN OMISSION TO INQUIRE INTO SUBSTANTIAL ISSUE MAKES TH E ASSESSMENT ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, WHICH ISSUE WAS NEITHER INQUIRED INTO NOR ANY CONCL USION WAS DRAWN BY THE ASSESSING OFFICER IN RESPECT OF CREDIT ENTRIES IN THE NAME OF 'DIMPLE' WHICH WA ALIAS OF THE ASSESSEE. TH E COMMISSIONER WITHOUT MAKING ANY INQUIRY HIMSELF PROCEEDED TO HOL D THE ASSESSMENT ORDERS AS ERRONEOUS AND PREJUDICIAL TO T HE INTEREST OF THE REVENUE AND DIRECTED THE ASSESSING OFFICER TO R E-EXAMINE THE ISSUE OF CREDIT ENTRY BY MAKING COMPREHENSIVE INQUI RIES REGARDING THE CONSTITUTION AND OWNERSHIP OF R.D. PROPERTY CON SULTANTS AS WELL AS INQUIRIES REGARDING THE CREDIT ENTRIES APPEARING THE ALIAS NAME OF THE ASSESSEE IN THE SEIZED DOCUMENTS PERTAINING TO R.D. PROPERTY CONSULTANTS. 25. IN VIEW OF THE ABOVE=NOTED FACTS, WE MAY POINT OUT THAT THE SCHEME OF SECTION 263 OF THE ACT PROVIDES THAT THE COMMISSIONER MAY CALL FOR AND EXAMINE THE RECORDS OF ANY PROCEED INGS UNDER THIS ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 37 ACT AND IF HE CONSIDERS THAT THE ORDER PASSED THERE IN BY THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO T HE INTEREST OF THE REVENUE THEN HE MAY, AFTER GIVING THE ASSESSEE AN O PPORTUNITY OF BEING HEARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSARY, PASS SUCH AN ORDER THEREON A S THE CIRCUMSTANCES OF THE CASE JUSTIFY INCLUDING AN ORDE R OF ASSESSMENT OR MODIFYING THE ASSESSMENT OR CANCELLING THE ASSES SMENT AND DIRECTING A FRESH ASSESSMENT. SO FAR AS THE QUESTI ON OF DEFINITION OF RECORDS IS CONCERNED, IN OUR HUMBLE UNDERSTANDING, THE LEGISLATURE HAS USED THE WORD RECORDS OF ANY PROCEEDINGS UNDER THIS ACT MEANING THEREBY FOR THE PURPOSE OF THE PRESENT CASE , THE ASSESSMENT RECORDS OF SHRI RAMESH MITTAL I.E. THE P RESENT ASSESSEE AND SHRI ASHOK MITTAL WERE TO BE CONSIDERED TOGETHE R BY THE COMMISSIONER FOR INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT. IN THE PRESENT CASE, IT IS A PECULIAR SITUATION THA T THERE IS NO IOTA OF EVIDENCE OR DOCUMENT IN THE ASSESSMENT RECORD OF TH E PRESENT ASSESSEE SHRI RAMESH MITTAL AND THE ENTIRE PROCEEDI NGS U/S 263 OF THE ACT ARE BASED ON THE ASSESSMENT RECORD OF SHRI ASHOK MITTAL WHEREIN PRINT OUTS OF TRIAL BALANCE AND BALANCE SHE ET FROM 1.4.2004 TO 24.8.2006 WERE FOUND DURING THE COURSE OF SEARCH AND SEIZURE ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 38 OPERATION IN THE CASE OF SHRI ASHOK MITTAL INCLUDIN G THE PRESENT ASSESSEE. HOWEVER, ON BEING ASKED BY THE BENCH, TH E LEARNED DR COULD NOT ASSIST US AS TO WHETHER THE REVENUE HAS T AKEN ANY ACTION U/S 153-C OF THE ACT AGAINST R.D. PROPERTY CONSULTA NTS. THUS, WE CAN SAFELY PRESUME THAT THE DEPARTMENT HAS NOT TAKE N ANY ACTION UNDER THE RELEVANT PROVISIONS OF SECTION 153C OF TH E ACT AGAINST THE SAID ENTITY R.D. PROPERTY CONSULTANTS IN REGARD TO THE SEIZED DOCUMENTS BELONGING OR PERTAINING TO THAT ENTITY. 26. AT THIS JUNCTURE, WE MAY POINT OUT THAT ADMITTE DLY AND UNDISPUTEDLY THE ASSESSING OFFICER OF SHRI ASHOK MI TTAL AND SHRI RAMESH MITTAL IS THE SAME WHO FRAMED THE ASSESSMENT ORDERS U/S 153A READ WITH SECTION 143(3) OF THE ACT FOR THE EN TIRE GROUP INCLUDING SHRI ASHOK MITTAL AND SHRI RAMESH MITTAL AS A RESULT OF THE OUTCOME OF SEARCH AND SEIZURE OPERATION. WE MAY POINT OUT THAT IF THE CONTENTION OF THE LEARNED DR IS ACCEPTED THA T THE COMMISSIONER IS VALIDLY ELIGIBLE TO SEE THE ASSESSM ENT RECORD OF SHRI ASHOK MITTAL AND SHRI RAMESH MITTAL WHILE INVO KING THE PROVISIONS OF SECTION 263 OF THE ACT THEN WE CANNOT NIGNORE THAT THE ASSESSING OFFICER MADE INQUIRIES REGARDING THE DOCU MENTS FOUND IN THE NAME OF R.D. PROPERTY CONSULTANTS. FR OM PAGES 1 TO 5 ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 39 OF THE ASSESSEES PAPER BOOK IT IS CLEAR THAT THE A SSESSING OFFICER ISSUED SUMMONS UNDER SECTION 131(1) OF THE ACT TO 5 PERSONS INCLUDING R.D. PROPERTY CONSULTANTS AND 'DIMPLE'. F URTHER FROM PAGES 16 TO 19 OF THE ASSESSEES PAPER BOOK IT IS A LSO DISCERNIBLE THAT THE ASSESSING OFFICER ISSUED REQUISITION U/S 1 42(1) OF THE ACT ON 25.7.2011 WHEREIN IN CLAUSE (VI) IT WAS SPECIFIC ALLY ASKED FROM SHRI ASHOK MITTAL THAT AS PER PROVISIONS OF SECTION 292-C OF THE ACT THE ONUS WAS ON THE NOTICEE SHRI ASHOK MITTAL TO EX PLAIN THE ENTRIES RECORDED IN THESE DOCUMENTS. THE ASSESSING OFFICER BY MAKING THE ABOVE ALLEGATION FURTHER STATED THAT SINCE SHRI ASH OK MITTAL HAS FAILED TO DISCHARGE HIS RESPONSIBILITY, THEREFORE, HE WAS ASKED TO SHOW CAUSE WHY TOTAL CASH CREDITS INCLUDING CREDIT OF RS. 3,19,14,006/- APPEARING IN THE NAME OF 'DIMPLE' SH OULD NOT BE TREATED AS UNEXPLAINED CASH CREDIT U/S 68 OF THE AC T. FURTHER DURING THE COURSE OF HEARING BEFORE THE INCOME TAX SETTLEMENT COMMISSION, THE BENCH DIRECTED THE ASSESSING OFFICE R TO EXAMINE THE AFORESAID FIVE PERSONS WHOSE NAMES WERE APPEARI NG IN THE TRIAL BALANCE OF R.D. PROPERTY CONSULTANTS BUT NO ADVERSE INFERENCE WAS RECEIVED BY THE SETTLEMENT COMMISSION. IN THIS REGA RD IT IS ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 40 PROFITABLE TO REFER PARA 15.7 AT PAGE 34 OF THE ASS ESSEES PAPER BOOK WHEREIN SETTLEMENT COMMISSION HELD AS FOLLOWS :- 15.7 IT IS AN ADMITTED FACT THAT PAGES 8 TO 71 OF ANNEXURE A-3 CONTAINED LEDGER ACCOUNTS OF M/S R.D. PROPERTY CONCERNS AND PAGE 72 CONTAINS THE TRIAL BALANCE OF THE SAID CONCERN. THE SPECIAL AUDITOR CAST A BALANCE SHEET FROM THE TRIAL BALANCE AS PER WHICH THE TOTAL OF CREDITS CAME TO RS.8,84,36,2 00/- WHICH FIGURE COMPRISES OF TOTAL CAPITAL RAISED BY VARIOUS PERSONS AT RS. 6,95,22,030/- AND RS.1,89,14,170/- FROM OTHER CREDI TORS. CIT HAS RELIED UPON SECTION 292(C) OF THE IT ACT AS WEL L SECTION 68 TO HOLD THAT THE TOTAL CREDITS OF RS.8,84,36,200/- ARE UNEXPLAINED CASH CREDITS FOR ASSESSMENT YEAR 2007-08 AND ASSESA BLE IN THE HANDS OF THE APPLICANT U/S 68 OF THE IT ACT. APPLIC ANT HAS DENIED ANY CONNECTION WITH M/S R.D. PROPERTIES CONS ULTANTS OR THE TRIAL BALANCE AND HAS CLAIMED THAT THE TOTAL CR EDITS OF RS. 8,84,36,200/- ARE NOT ASSESSABLE IN THE HANDS OF TH E APPLICANT. THE BENCH IN THE COURSE OF THE HEARING DIRECTED THE A.O. TO EXAMINE FIVE (5) PERSONS WHOSE NAMES APPEAR IN THE TRIAL BALANCE OF M/S R.D. PROPERTIES AND AFTER VERIFICAT ION BY A.O. NO ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 41 ADVERSE REPORT IN THIS REGARD HAS BEEN RECEIVED BY THE COMMISSION. IN VIEW OF THIS NO ADVERSE CONCLUSION I S DRAWN. IN VIEW OF THE ABOVE OBSERVATIONS OF THE SETTLEMENT COMMISSION IN THE CASE OF SHRI ASHOK MITTAL, WE CLEARLY OBSERVE T HAT ON THE DIRECTIONS OF SETTLEMENT COMMISSION, THE SPECIAL AU DITOR CASTED A BALANCE SHEET FROM THE TRIAL BALANCE AND ALSO CONSI DERED THE REPORT OF COMMISSIONER PLACED BEFORE THE COMMISSION UNDER RULE 9 OF SETTLEMENT COMMISSION RULES. AT THIS JUNCTURE, IT IS ALSO RELEVANT TO TAKE NOTE OF THE SPECIAL AUDIT REPORT FILED UNDE R SECTION 142(2A) OF THE ACT IN THE CASE OF SHRI ASHOK MITTAL (ASSESSEE S PAPER BOOK PAGES 6 TO 15). IT IS VIVID THAT THE SPECIAL AUDIT OR IN HIS REPORT AFTER DETAILED DELIBERATION SUBMITTED THE FOLLOWING FACTS :- 1. FIRST OF ALL, THE ASSESSEE HAS DENIED THE OWNER SHIP OF WHOLE OF THE DOCUMENTS AND TRIAL BALANCE SEIZED WHI CH REFERS TO A CONCERN M/S R.D. PROPERTY CONSULTANTS. FURTHER, W E ALSO CARRIED OUT VERIFICATION OF CONSTITUTION OF M/S R.D . PROPERTY CONSULTANTS. NO BANK ACCOUNTS, PAN CARD, INCOME TAX PARTICULARS, PARTNERSHIP DEED OR ANY OTHER RELEVANT DOCUMENT CAME TO OUR NOTICE. IN THE ABSENCE OF ALL THIS INFO RMATION, WE ARE NOT IN A POSITION TO FRAME OUR OPINION ON THE CONST ITUTION OF M/S. ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 42 R.D. PROPERTY CONSULTANTS. THE UNDISCLOSED INCOME O N ACCOUNT OF DOCUMENTS PERTAINING TO M/S R D PROPERTY CONSULT ANTS MAY BE ASSESSED IN THE HANDS OF RELEVANT ASSESSEE. 27. IN VIEW OF THE ABOVE, WE HAVE NO HESITATION TO HOLD THAT THE SPECIAL AUDITOR REPORTED THE SETTLEMENT COMMISSION THAT IN THE ABSENCE OF INFORMATION REGARDING BANK ACCOUNTS, PAN , INCOME TAX PARTICULARS, PARTNERSHIP DEED OR ANY OTHER RELEVANT DOCUMENT, THEY WERE NOT IN A POSITION TO FRAME THEIR OPINION ON TH E CONSTITUTION OF R.D. PROPERTY CONSULTANTS 28. IN VIEW OF THE ABOVE, WE HOLD THAT THERE WAS A DETAILED REPORT OF SPECIAL AUDITOR WHICH CLEARLY SHOWS THAT IN THE ABSENCE OF RELEVANT DETAILS REGARDING THE BANK ACCOUNTS, PAN, INCOME TAX PARTICULARS AND CONSTITUTION OF R.D. PROPERTY CONSU LTANTS, THE SPECIAL AUDITOR WAS NOT IN A POSITION TO FRAME ANY OPINION EVEN REGARDING THE CONSTITUTION OF R.D. PROPERTY CONSULT ANTS AND THIS REPORT WAS A PART OF ASSESSMENT RECORD WHICH WAS PE RUSED BY THE COMMISSIONER AT THE TIME OF INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT. AT THE COST OF REPETITION WE MAY POINT OUT THAT IN PARA 15.7 THE SETTLEMENT COMMISSION NOTED THAT IN THE CO URSE OF HEARING THE BENCH DIRECTED THE ASSESSING OFFICER TO EXAMINE 5 PERSONS ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 43 WHOSE NAMES APPEAR IN THE TRIAL BALANCE OF R.D. PRO PERTY CONSULTANTS AND AFTER VERIFICATION BY THE ASSESSING OFFICER, NO ADVERSE REPORT HAS BEEN FURNISHED. THESE OBSERVATIO NS SHOW THAT EVEN THE ASSESSING OFFICER HIMSELF CONDUCTED INQUIR Y BY WAY OF ISSUING SUMMONS UNDER SECTION 131(1) OF THE ACT TO 5 PERSONS INCLUDING R.D. PROPERTY CONSULTANTS AND 'DIMPLE' AN D AGAIN THE ASSESSING OFFICER ON THE DIRECTIONS OF THE SETTLEME NT COMMISSION, VERIFIED THESE 5 PERSONS AND NO ADVERSE REPORT WAS FURNISHED TO THE SETTLEMENT COMMISSION. 29. WE MAY ALSO POINT OUT THAT DURING THE COURSE OF SETTLEMENT PROCEEDINGS BEFORE THE SETTLEMENT COMMISSION THE CO MMISSIONER ALSO FILED REPORT UNDER RULE 9 OF THE SETTLEMENT CO MMISSION (PROCEDURE) RULES, 1997 ON 26.3.2012. THE COPY OF T HE RELEVANT PART OF THE REPORT IS AVAILABLE IN THE ASSESSEES PAPER BOOK AT PAGES 22 TO 28 WHEREIN COMMISSIONER RECOMMENDED THAT THE TOTAL CASH CREDIT OF RS.8,84,36,200/- INCLUDING THE IMPUGNED CREDIT E NTRY IN THE NAME OF 'DIMPLE' SHOULD BE TREATED AS UNEXPLAINED C ASH CREDIT U/S 68 OF THE ACT AND SHOULD BE ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE SHRI ASHOK MITTAL. HOWEVER, IN THE CASE OF SHRI ASHOK MITTAL SETTLEMENT COMMISSION DID NOT MAKE ANY ADDIT ION IN THIS ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 44 REGARD AND THIS FACT HAS NOT BEEN CONTROVERTED BY T HE COMMISSIONER IN THE IMPUGNED ORDER NOR BY THE LEARNED DR DURING THE COURSE OF ARGUMENTS BEFORE US. 30. DEFINITELY, AS PER THE RATIO OF THE DECISION OF HONBLE SUPREM E COURT IN THE CASE OF MALABAR INDUSTRIAL COMPANY LTD. VS. CIT ( SUPRA), AS RELIED UPON BY THE LEARNED COMMISSIONER, IN THE CASE OF NO INQUIRY OR LACK OF INQUIRY BY THE AO THE CIT IS VALIDLY EMPOWERED TO INVOKE PROVISION OF SECTION 263 OF THE ACT, BUT FOR ASSUMING VALID JURISDICTION THE CIT IS DUTY BOUN D TO SHOW THAT THERE WAS LACK OF INQUIRY OR NO INQUIRY BY THE AO. IN THE PRES ENT CASE THE CIT IS ALLEGING AGAINST THE AO THE ALLEGATIONS OF LACK OF INQUIRY B Y WAY OF EXPECTING FROM THE AO TO CONSIDER THE ASSESSMENT RECORDS OF SHRI ASHOK MITTAL WHEREIN THE SAME ASSESSING OFFICER HAS CONDUCTED INQUIRY ON THE ISSU E AND THE REPORT OF SPECIAL AUDITOR AND THE COMMISSIONER WHICH WAS SUBMITTED BE FORE THE SETTLEMENT COMMISSION WAS ALSO A PART OF THAT RECORD WHEREIN E VEN THE CONSTITUTION OF R.D. PROPERTY CONSULTANTS ENTITY COULD NOT BE DISCO VERED DESPITE SEVERAL EFFORTS AND THE SETTLEMENT COMMISSION DISMISSED AT THE THRE SHOLD THE RECOMMENDATION OF THE COMMISSIONER REQUESTING TO MA KE THE ADDITION U/S 68 OF THE ACT PERTAINING TO THE IMPUGNED CREDIT ENTRIE S SHOWN IN THE SEIZED DOCUMENTS IN THE NAME OF R.D. PROPERTY CONSULT ANTS. IN THIS SITUATION, IF THE CONTENTION OF THE LEARNED DR IS CONSIDERED THAT THE ASSESSMENT RECORD OF SHRI ASHOK MITTAL AND SHRI RAMESH MITTAL CAN BE PER USED WHILE INVOKING THE ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 45 PROVISIONS OF SECTION 263 OF THE ACT IN THE CASE OF SHRI RAMESH MITTAL THEN LOOKING TO THE INQUIRIES CONDUCTED BY THE ASSESSING OFFICER, SPECIAL AUDITOR AND THE SETTLEMENT COMMISSION WHEREIN THE COMMISSIONER HIMSELF FURNISHED A REPORT, WHICH WAS NOT ACCEPTED BY THE SETTLEMENT CO MMISSION, THE ALLEGATION OF LACK OF INQUIRY AGAINST THE SAME ASSESSING OFFIC ER CANNOT BE LEVELLED IN THE CASE OF THE ASSESSEE. SECONDLY, IF IT IS PRESUMED T HAT THE ASSESSMENT RECORD OF SHRI ASHOK MITTAL COULD NOT BE CALLED AND PERUSED W HILE INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT IN THE CASE OF SHRI RAMES H MITTAL, THEN ALSO, WHEN THESE DOCUMENTS WERE NOT PART OF THE ASSESSMENT REC ORD OF SHRI RAMESH MITTAL THEN THE ALLEGATION OF LACK OF INQUIRY ON SUCH DOCU MENTS, WHICH WERE PART OF ASSESSMENT RECORD OF ANOTHER ENTITY I.E. SHRI ASHOK MITTAL CANNOT BE ALLEGED AGAINST THE ASSESSING OFFICER. IN THIS SITUATION, WE , RESPECTFULLY HOLD THAT THE BENEFIT OF THE RATIO OF THE DECISION AS RELIED UPON BY THE LEARNED DR INCLUDING THE RATIO OF THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF MALABAR INDUSTRIES CO. LTD. (SUPRA) IS NOT AVAILABLE IN FAVO UR OF THE REVENUE. 31. IN THE CASE OF CIT VS. DLF LTD [SUPRA], AS RELIED BY THE LD. COUNSEL FOR THE ASSESSEE, WE OBSERVE THAT THEIR LORDSHIPS HELD THAT IT IS NOT MERE PREJUDICE TO THE REVENUE NOR A MERE ERRONEOUS VIEW WHICH CAN BE REVISED UNDER SECTION 263 OF THE ACT. THERE SHOULD BE THE ADDED ELEMENT OF U NSUSTAINABILITY IN THE ORDER OF THE AO, WHICH CLOTHES THE COMMISSIONER WIT H JURISDICTION TO ISSUE NOTICE AND PROCEED TO MAKE APPROPRIATE ORDERS. IN TH E PRESENT CASE, THE CIT HAS MADE BALD ALLEGATIONS WITHOUT MAKING ANY ENQUIR Y HIMSELF TO SHOW THE ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 46 ORDERS ERRONEOUS WHICH ARE NOT SUSTAINABLE. THEREFO RE, RATIO OF THIS DECISION STRONGLY SUPPORTS THE CASE OF THE ASSESSEE. 32. NOW WE PROCEED TO CONSIDER THE RATIO OF THE DECISION OF HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF NIRAV M ODI [SUPRA], WHICH HAS BEEN UPHELD BY HON'BLE SUPREME COURT BY D ISMISSING SLP OF THE REVENUE ORDER DATED 14.12.2016 [SUPRA] A S STRONGLY RELIED BY THE. LD. COUNSEL OF THE ASSESSEE WHEREIN PARAS 6 TO 10 IT WAS HELD THUS: 6. IT IS A SETTLED POSITION IN LAW THAT POWERS UN DER SECTION 263 OF THE ACT CAN BE EXERCISED BY THE CIT ON SATISFACT ION OF TWIN CONDITIONS VIZ. THE ASSESSMENT ORDER SHOULD BE ERRONEOUS AND PREJUDICIAL TO THE REVENUE. BY ERRONEOUS IS M EANT CONTRARY TO LAW. THUS, THIS POWER CANNOT BE EXERC ISED UNLESS THE CIT IS ABLE TO ESTABLISH THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO T HE REVENUE. THUS WHERE THERE ARE TWO POSSIBLE VIEWS AND THE ASS ESSING OFFICER HAS TAKEN ONE OF THE POSSIBLE VIEWS, NO OCC ASION TO EXERCISE POWERS OF REVISION, CAN ARISE. NOR CAN REV ISIONAL POWER BE EXERCISED FOR DIRECTING A FULLER INQUIRY TO FIND OUT IF THE VIEW TAKEN IS ERRONEOUS, WHEN A VIE W HAS ALREADY BEEN TAKEN AFTER INQUIRY. THIS POWER OF REVISION CA N BE EXERCISED ONLY WHERE NO INQUIRY AS REQUIRED UNDER T HE LAW IS DONE. IT IS NOT OPEN TO ENQUIRE IN CASES OF INADEQU ATE INQUIRY. ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 47 FIRSTLY, THE REVENUE CONTENDS THAT THE EXERCISE OF POWERS UNDER SECTION 263 OF THE ACT IS JUSTIFIED AS IN THIS CASE, AS NO INQUIRY IN RESPECT OF THE GIFTS RECEI VED DURING THE SUBJECT YEARS WAS DONE BY THE ASSESSING O FFICER FOR THE ASSESSMENT ORDERS FOR ASSESSMENT YEARS 200708 AND 2008- 09. THIS ACCORDING TO THE REVENUE IS EVIDENT FROM THE ASSESSMENT ORDERS DATED 31 DECEMBER, 2009 AND 30 TH DECEMBER, 2010 WHICH DOES NOT EVEN MAKE A MENTION OF THE GIFTS RECEIVED MUCH LESS DISCUSS A ND/OR DEAL WITH THE SAME. THIS ISSUE IS NO LONGER RES INTEGRA AS TH IS COURT IN IDEA CELLULAR LTD. V. DCIT REPORTED IN 301 ITR 407 HAS HELD THAT IF DURING ASSESSMENT PROCEEDINGS QUERIES WE RE RAISED AND THE ASESSEE RESPONDED TO THE SAME, THEN EVEN IF AN ASSESSMENT ORDER DOES NOT MENTION THE SAME, IT DOES NOT MEAN THAT THE ASSESSING OFFICER HAS NOT APPLIED HIS MIND TO THE ISSUES. IT WOULD BE WELL NIGH IMPOSSIBL E FOR AN ASSESSING OFFICER TO COMPLETE ALL ASSESSM ENTS ASSIGNED TO HIM UNDER SECTION 143(3) OF THE ACT IF HE IS REQUIRED TO DEAL WITH ALL ISSUES WHICH AROSE DURING THE ASSESS MENT PROCEEDINGS. THUS, THE ASSESSMENT ORDER PRI MARILY DEAL WITH ONLY THOSE ISSUES IN RESPECT OF WHICH THE ASSE SSEE HAS NOT BEEN ABLE TO SATISFY HIM AND GIVE REA SONS FOR HIS CONCLUSION. THIS WOULD ENABLE THE ASSESSEE TO CHA LLENGE THE SAME, IF AGGRIEVED. IN FACT THE GUJARAT HIGH COURT IN CIT V. NIRMA CHEMICAL WORKS LTD. REPORTED IN 309 ITR 67 HAS OBSERVED THAT IF AN ASSESSMENT ORDER WERE TO INCORP ORATE THE ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 48 REASONS FOR UPHOLDING THE CLAIM MADE BY AN ASSESEEE , THE RESULT WOULD BE AN EPIC TOME AND NOT AN ASSESSMENT ORDER. IN THIS CASE, DURING THE ASSESSMEN T PROCEEDINGS FOR BOTH THE ASSESSMENT YEARS, THE ASSE SSING OFFICER ISSUED A QUERY MEMOS TO THE ASSESSEE, CALLING UPON HIM TO JUSTIFY THE GENUINENESS OF THE GIFTS. THE RESPOND ENTASSESSEE RESPONDED TO THE SAME BY GIVING EVIDENCE OF THE COMMUNICATIONS RECEIVED FROM HIS FATHER AND HIS SIS TER I.E. THE DONORS OF THE GIFTS ALONG WITH THE STATEMENT OF THE IR BANK ACCOUNTS. ON PERUSAL, THE ASSESSING OFFICER WAS SAT ISFIED ABOUT THE IDENTITIES OF THE DONORS, THE SOURCE FROM WHERE THESE FUNDS HAVE COME AND ALSO THE CREDITWORTHINESS/ CA PACITY OF THE DONOR. ONCE THE ASSESSING OFFICER WAS SATIS FIED WITH REGARD TO THE SAME, THERE WAS NO FURT HER REQUIREMENT ON THE PART OF THE ASSESSING OFFICER TO DISCLOSE HIS SATISFACTION IN THE ASSESSMENT ORDER PASSED THEREON . THUS, THIS OBJECTION ON THE PART OF THE REVENUE, CANNOT BE ACC EPTED. 8 IT IS NEXT SUBMITTED THAT THE DONOR HAD NOT BEE N EXAMINED BY THE ASSESSING OFFICER. IT IS NOT IN EVERY CASE THAT EVERY EVIDENCE PRODUCED HAS TO BE TESTED BY CROSS EXAMINA TION OF THE PERSON GIVING THE EVIDENCE. IT IS ONLY IN CASES WHE RE THE EVIDENCE PRODUCED GIVES RISE TO SUSPICION ABOUT ITS VERACITY THAT FURTHER SCRUTINY IS CALLED FOR. IF THERE IS NOTHING ON RECORD TO INDICATE THAT THE EVIDENCE PRODUCED IS NOT RELIABLE AND THE ASSESSING OFFICER WAS SATISFIED WITH THE SAME, THEN IT IS NOT OPEN TO THE CIT TO EXERCISE HIS POWERS OF REVISION ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 49 WITHOUT THE CIT RECORDING HOW AND WHY THE ORDER IS ERRONEOUS DUE TO NOT EXAMINING THE DONO RS. THUS, THIS OBJECTION TO THE IMPUGNED ORDER BY THE REVENUE IS A LSO NOT SUSTAINABLE. IT WAS NEXT SUBMITTED THAT NO ENQUIRY WAS DONE BY THE ASSESSING OFFICER TO FIND OUT WHETHER THE DONOR MR DEEPAK MODI (FATHER) HAD RECEIVED MONEY FROM M/S. CHANG JI ANG AS CLAIMED. NOR ANY INQUIRY WAS DONE TO FIND OUT WHETH ER THE SISTER HAD IN FACT EARNED AMOUNTS ON ACCOUNT OF FOR EIGN EXCHANGE TRANSACTIONS AS CLAIMED BY HER. WE FIND TH AT THIS ENQUIRY OF A SOURCE OF SOURCE IS NOT THE REQUIREMEN T OF LAW. ONCE THE ASSESSING OFFICER IS SATISFIED WITH THE EXPLANA TION OFFERED ON INQUIRY, IT IS NOT OPEN TO THE CIT IN EXERCISE OF H IS REVSIONAL POWERS DIRECT THAT FURTHER ENQUIRY HAS TO BE DONE. AT THE VERY HIGHEST, THE CASE OF THE REVENUE IS THAT THIS IS A CASE OF INADEQUATE INQUIRY AND NOT OF NO ENQUIRY. IT IS W ELL SETTLED THAT THE JURISDICTION UNDER SECTION 263 OF THE ACT CAN B E EXERCISED BY THE CIT ONLY WHEN ITS A CASE LACK OF ENQUIRY AND N OT ONE OF INADEQUATE ENQUIRY. THIS VIEW HAS BEEN TAKEN BY THI S COURT IN THE MATTER OF CIT V/S. M/S. SHREEPATI HOLDINGS & F INANCE PVT. LTD., UNREPORTED (ITA 1879 OF 2013 DATED 5 OCTOBE R,2013), BY THE DELHI HIGH COURT IN CIT V/S. VIKAS POLYMERS 3 41 ITR 537 AND IN DG HOUSING PROJECTS(SUPRA). IN FACT THE DELHI HIGH COURT IN DG HOUSING PROJECTS (SUPRA) WHILE SO HOLDI NG PLACED RELIANCE UPON THE DECISION OF THIS COURT IN GABRIEL (INDIA) LTD., (SUPRA). IT IS VERY IMPORTANT TO NOTE THAT THE CIT IN HIS ORDER ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 50 UNDER SECTION 263 OF THE ACT HAS RECORDED THE FACT THAT THERE HAS BEEN NO ADEQUATE INQUIRY. THUS, THIS IS NOT A CASE OF NO INQUIRY, WARRANTING ORDER UNDER SECTION 263 O F THE ACT. THUS, THIS OBJECTION ON THE PART OF THE REV ENUE, IS ALSO NOT SUSTAINABLE. 10 THE REVENUE PLACED RELIANCE UPON THE DECISION OF THE DELHI HIGH COURT IN DG HOUSING PROJECTS LTD., (SUPRA) THAT AS THE ASSESSING OFFICER HAD NOT ENQUIRED INTO THE SOURCE OF THE SOURCE OF THE GIFTS RECEIVED BY THE ASSESSE E, THE ASSESSMENT ORDER IS ERRONEOUS. THE AFORES AID DECISION HOLDS THAT THE POWER OF REVISION UNDER SECTION 263 OF THE ACT WOULD NORMALLY BE EXERCISED IN CASE OF NO ENQUIRY AND NOT IN CASES OF INADEQUATE ENQUIRY. HOWEVER, EV EN IN CASE OF INADEQUATE ENQUIRY BY THE ASSESSING OFFICER, THE OR DER OF THE ASSESSING OFFICER COULD BE ERRONEOUS IN TWO CLASSES OF SITUATION. THE FIRST CLASS WOULD BE WHERE ORDERS PA SSED BY THE ASSESSING OFFICER ARE EXFACIE ERRONEOUS I .E. A DECISION RENDERED IGNORING A BINDING DECISION IN FAVOUR OF THE REVENUE OR WHERE ENQUIRY IS PERSE MANDATED ON THE BASIS OF THE RECORD AVAILABLE BEFORE THE ASSESSING OFFICER AND THAT IS NOT DONE. IN THE SECOND CLASS OF CASES, WHERE THE ORDER IS NOT E XFACIE ERRONEOUS, THEN THE CIT MUST HIMSELF CONDUCT AN ENQ UIRY AND DETERMINE IT TO BE SO. THE COURT HELD THAT IT IS NO T PERMISSIBLE TO THE CIT WHILE EXERCISING POWER UNDER SECTION 263 OF THE ACT TO REMIT THE ISSUE TO THE ASSESSING OFFICER TO REEXAMINE THE SAME AND FIND OUT WHETHER EARLIER ORDER OF ASSESSMENT IS ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 51 ERRONEOUS. IT IS THE CIT WHO MUST HOLD THAT THE ORD ER IS ERRONEOUS, DULY SUPPORTED BY REASONS. IN THE PRES ENT FACTS, THE CIT IN EXERCISE OF ITS POWERS UNDER SECTION 263 OF THE ACT HAS MERELY RESTORED THE ASSESSMENT TO THE ASS ESSING OFFICER TO DECIDE WHETHER THE GIFTS WERE GENUINE AND, IF NOT, THEN THE ASSESSMENT COULD BE COMPLETED ON APPLICATION OF SECTION 68 OF THE ACT. IN THIS CASE, THE ORDER PASSED BY THE A SSESSING OFFICER IS NOT PERSE ERRONEOUS AND FURTHER THE CIT HAS NOT GIVEN ANY REASONS TO CONCLUDE THAT THE ORDER IS ERRONEOUS . IN FACT, HE DIRECTS THE ASSESSING OFFICER TO FIND OUT WHETHER T HE ORDER IS ERRONEOUS BY MAKING FURTHER ENQUIRY. THIS THE DECIS ION OF THE DELHI HIGH COURT IN DG HOUSING PROJECTS LTD., (SUPR A), CLEARLY NEGATES. IN THE ABOVE VIEW, THE DECISION OF DELHI H IGH CURT IN DG HOUSING PROJECTS LTD., (SUPRA) WOULD NOT ASSIST THE REVENUE IN THE PRESENT FACTS. 33. IN VIEW OF ABOVE, IT IS THE DICTA OF HONBLE HI GH COURT OF BOMBAY, WHICH HAS BEEN UPHELD BY HON'BLE SUPREME CO URT, WHEREIN IT HAS BEEN HELD THAT THE AO HAVING RAISED QUERIES AND ON PERUSAL OF THE EVIDENCE FURNISHED, HE WAS SATISFIED WITH REGARD TO THE GENUINENESS OF THE GIFTS [AS PER FACTS OF THAT CASE], THEN REVISION BY THE CIT WAS NOT VALID, THEREFORE, THEIR LORDSHIP S HELD THAT POWER OF REVISION U/S 263 OF THE ACT CAN BE EXERCISED WHE RE NO ENQUIRY AS REQUIRED UNDER THE LAW IS DONE. IT WAS ALSO HELD T HAT IT IS NOT OPEN TO ENQUIRE IN CASES OF INADEQUATE ENQUIRY. IN THE PRESENT CASE, AS ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 52 WE HAVE NOTED ABOVE, IF THE ASSESSMENT RECORD OF SH RI ASHOK MITTAL IS TAKEN INTO THE AMBIT OF THE DEFINITION OF RECORD U/S 263 OF THE ACT THEN THERE WAS SUFFICIENT INQUIRY BY THE ASSESSING OFFICER, BY THE SPECIAL AUDITOR AND THE COMMISSIONER ON THE DIRECTI ONS OF SETTLEMENT COMMISSION ON THE ISSUE OF DOCUMENTS SEI ZED FROM SHRI ASHOK MITTAL PERTAINING TO R.D. PROPERTY CONSULTANT S AND THERE WAS SUFFICIENT INQUIRY IN THIS REGARD AND FINALLY THE S ETTLEMENT COMMISSION DISMISSED THE RECOMMENDATION OF THE COMM ISSIONER AND NO ADDITION U/S 68 OF THE ACT HAS BEEN MADE BY THE SETTLEMENT COMMISSION IN THE HANDS OF SHRI ASHOK MITTAL OR ANY OTHER ENTITY. THEREFORE, IN OUR HUMBLE UNDERSTANDING THE RATIO OF THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF NIRAV MODI ( SUPRA) SUPPORTS THE CASE OF THE ASSESSEE. 34. AT THIS JUNCTURE, WE ALSO FIND IT APPROPRIATE T O CONSIDER THE RATIO OF THE DECISION OF THE HON'BLE DELHI HIGH COU RT OF DELHI IN THE CASE OF SUNBEAM AUTO LTD.(SUPRA) WHEREIN IT WAS HEL D THAT WHEN THE AO HAVING MADE ENQUIRIES ELICITED REPLIES AND T HEREAFTER ALLOWED THE CLAIM OF THE ASSESSEE, THEN IT CANNO T BE SAID THAT IT IS A CASE OF LACK OF ENQUIRY AND THEREFORE, ASSESSMENT O RDER PASSED BY THE AO CANNOT BE REVISED U/S 263 OF THE ACT. IN THE PRESENT CASE, ON ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 53 THE FACTS AND CIRCUMSTANCES AS NOTED ABOVE IN THE E ARLIER PART OF THIS ORDER, THERE WAS SUFFICIENT INQUIRY PERTAINING TO DOCUMENTS SEIZED FROM SHRI ASHOK MITTAL IN THE NAME OF R.D. P ROPERTY CONSULTANTS BY THE ASSESSING OFFICER AND DURING THE PROCEEDINGS BEFORE THE SETTLEMENT COMMISSION, SPECIAL AUDITOR A ND THE COMMISSIONER HAD SUBMITTED THEIR REPORT THEREON, TH EREFORE, IF THE ASSESSMENT RECORD OF SHRI ASHOK MITTAL ALONG WITH T HE ASSESSMENT RECORD OF THE ASSESSEE, SHRI RAMESH MITTAL, IS TRAK EN TOGETHER THEN WE ARE INCLINED TO HOLD THAT THE COMMISSIONER HAS N OT ASSUMED VALID JURISDICTION TO REVISE THE ASSESSMENT ORDER U /S 263 OF THE ACT AND THE IMPUGNED ORDER IS NOT SUSTAINABLE IN THE EY ES OF LAW. 35. IN THE PRESENT CASE, FROM A CAREFUL READING OF THE IMPUGNED ORDER IT IS CLEAR THAT THE COMMISSIONER HAS NOT MAD E ANY INQUIRY REGARDING THE EXISTENCE AND CONSTITUTION OF R.D. PR OPERTY CONSULTANTS AND ON THE ISSUE WHETHER THE NAME OF 'D IMPLE' IS ALIAS OF THE PRESENT ASSESSEE SHRI RAMESH MITTAL. IN OUR HUMBLE OPINION, IF THE COMMISSIONER DID NOT AGREE WITH THE CONCLUSI ON DRAWN BY THE SAME ASSESSING OFFICER WHO WAS ALSO DEALING WITH TH E CASE OF SHRI ASHOK MITTAL AND THE PRESENT ASSESSEE THEN HE SHOUL D HAVE MADE INQUIRIES HIMSELF. FROM THE LAST OPERATIVE PARA 6 O F THE IMPUGNED ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 54 ORDER IT IS CLEAR THAT AFTER MAKING THE ALLEGATIONS ON THE BASIS OF ASSESSMENT RECORD OF SHRI ASHOK MITTAL AND IGNORING THE INQUIRY CONDUCTED BY THE ASSESSING OFFICER IN THAT CASE, TH E INQUIRY CONDUCTED BY THE SETTLEMENT COMMISSION BY WAY OF CA LLING SPECIAL AUDITOR REPORT AND THE REPORT FROM THE COMMISSIONER , THE COMMISSIONER PROCEEDED TO INVOKE THE PROVISIONS OF SECTION 263 OF THE ACT ONLY ON THE BASIS OF STATEMENT OF SHRI ASHO K MITTAL WITHOUT EXAMINING THE SAME HIMSELF. AS PER THE RATIO OF THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF JYOTI FOUND ATION (SUPRA) AS RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE , WHEREIN IT WAS HELD THAT IN CASES OF WRONG OPINION BY THE AO THE C IT HAS TO COME TO A CONCLUSION AND HIMSELF DECIDE THAT ORDER IS ER RONEOUS BY CONDUCTING NECESSARY INQUIRY, IF REQUIRED AND NECES SARY, BEFORE THE ORDER UNDER SECTION 263 OF THE ACT IS PASSED BUT IN THE PRESENT CASE, COMMISSIONER HAS NOT CONDUCTED ANY SUCH INQUI RY AS PER MANDATE OF SECTION 263 OF THE ACT TO SHOW THE ORDER OF THE ASSESSING OFFICER IS NOT SUSTAINABLE AND WITHOUT CO NDUCTING ANY FURTHER INQUIRY BY THE COMMISSIONER, THE ORDER OF T HE AO CANNOT BE ALLEGED AS ERRONEOUS AND PREJUDICIAL TO THE INTERES T OF THE REVENUE. AT THIS POINT IT IS ALSO PROFITABLE TO TAKE COGNIZA NCE OF THE RATIO OF ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 55 THE DECISION OF THE HON'BLE DELHI HIGH COURTR IN TH E CASE OF ITO VS. D.G. HOUSING PROJECT LIMITED REPORTED IN 343 ITR 3 29 [DEL], IT WAS HELD THAT IF THERE IS NO FINDING THAT ORDER OF THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE BY WAY OF MA KING INDEPENDENT INQUIRY BY THE CIT, THE REVISION OF SUCH ORDER U/S 263 OF THE ACT ON THE BASIS OF BALD AND BASELESS ALLEGATIONS IS NOT P ERMITTED. 36. IN THE PRESENT CASE, THE COMMISSIONER INVOKED T HE PROVISIONS OF SECTION 263 OF THE ACT AS HE WAS NOT SATISFIED W ITH THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WI THOUT MAKING ANY INQUIRY HIMSELF AND DISMISSING THE EXPLANATION OF THE ASSESSEE WITHOUT ANY REASONING AND THE COMMISSIONER JUMPED T O THE CONCLUSION THAT THE ASSESSING OFFICER EITHER FAILED TO CARRY OUT ANY INQUIRY OR THE CONCLUSION, WHICH NATURALLY FLOWS ON THE FACTS AND CIRCUMSTANCES OF THE CASE, HAS NOT BEEN DRAWN. THIS ALLEGATION IN THE NOTICE AS WELL AS IN THE IMPUGNED ORDER MAKES I T CLEAR THAT WHILE ISSUING NOTICE AND INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT EVEN THE COMMISSIONER HIMSELF WAS NOT SURE WHETHER IT IS A CASE OF NO INQUIRY OR INADEQUATE INQUIRY. IT IS A W ELL ACCEPTED PROPOSITION THAT IF THE COMMISSIONER HAS IGNORED TH E EXERCISE UNDERTAKEN BY THE ASSESSING OFFICER DURING THE ASSE SSMENT ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 56 PROCEEDINGS AND WITHOUT MAKING ANY INQUIRY, DISMISS ING THE EXPLANATION OF THE ASSESSEE AND JUMPED TO THE CONCL USION, THAT THE ASSESSING OFFICER FAILED TO CARRY OUT ANY INQUIRY, THEN THESE FINDINGS ARE NOT SUSTAINABLE IN THE LIGHT OF THE RA TIO OF THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASES OF JYO TI FOUNDATION (SUPRA) AND D.G. HOUSING PROJECTS LTD. (SUPRA). THU S, WE ARE INCLINED TO HOLD THAT THE COMMISSIONER HAS WRONGLY INVOKED THE PROVISIONS OF SECTION 263 OF THE ACT FO R ISSUING NOTICE AND PASSING THE IMPUGNED ORDER. THEREFORE, WE ARE INCLINED TO HOLD THAT THE NOTICE AND THE ORDER U/S 263 OF THE ACT ARE NOT SUSTAINABLE AS PER THE MANDATE OF S ECTION 263 OF THE ACT AND, HENCE, WE QUASH THE SAME AND AL L THE CONSEQUENTIAL ORDERS, IF ANY PASSED, IN PURSUANCE T HERETO. ACCORDINGLY, GROUND NOS. 2 AND 3 OF THE ASSESSEE AR E ALLOWED. ITA NOS. 1010 & 1011/CHD/2014 : A.YS.2006-07 & 2007 -08 37. SINCE AT THE BEGINNING OF THE ARGUMENTS BOTH TH E PARTIES AGREED TO THE FACT THAT THE FACTS AND CIRCUMSTANCES OF ALL THE THREE APPEALS ARE IDENTICAL AND SIMILAR, THEREFORE, OUR C ONCLUSION DRAWN IN ITA NO. 1009/CHD/2014 FOR THE ASSESSMENT YEAR 20 05-06 WOULD ITA NOS.1009 TO 1011/CHD/2014 SHRI RAMESH MITTAL 57 APPLY MUTATIS MUTANDIS TO OTHER TWO APPEALS PERTAIN ING TO THE ASSESSMENT YEARS 2006-07 AND 2007-08 AND CONSEQUENT LY WE QUASH THE SAME AND ALL CONSEQUENTLY ORDERS, IF ANY, PASSED IN PURSUANCE THERETO. 38. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE STAND PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24.04.2017. SD/- SD/- (ANNAPURNA GUPTA) (C.M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 24 TH APRIL, 2017 DN/-