ASSISTANT COMMISSIONER OF INCOME TAX, Jaipur V. SHRI RAHUL SHARMA, Jaipur

ITA 1051/JPR/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3251 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 29-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C GUPTA
• Assessee Lawyers: RAJNIKANT BATRA; S R SHARMA CAS DH R
• Keywords: Revision of order; Set aside
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S A, JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; ,OA JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA, AM & SHRI VIJAY PAL RAO, JM VK;DJ VIHY LA-@ ITA NO. 1051/JP/2017 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2011-12 A.C.I.T., CIRCLE-2, JAIPUR. C UKE VS. SHRI RAHUL SHARMA, 80/82, MADHYAM MARG, MANSAROVAR, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. BFMPS 6333 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY: SHRI K.C. GUPTA, (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJNIKANT BATRA & SHRI S.R. SHARMA (CAS) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19/11/2019 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 19/11/2019 VKNS'K@ ORDER PER: R.C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD.CIT(A)-I, JAIPUR DATED 16/10/2017 FOR THE A.Y. 2 011-12 IN THE MATTER OF ORDER PASSED U/S 143(3) R.W.S. 263 OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). 2. IN THIS APPEAL, THE REVENUE IS AGGRIEVED BY THE ORDER OF THE LD. CIT(A) FOR ALLOWING THE ASSESSEES APPEAL ON THE PL EA THAT THE ORDER PASSED BY THE LD. PR.CIT-I, JAIPUR U/S 263 OF THE A CT HAS BEEN QUASHED BY THE ITAT. ITA NO. 1051/JP/2017 ACIT VS SHRI RAHUL SHARMA 2 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. IN THIS CASE, THE LD. CIT(A) PASSED ORDER U/S 263 OF THE AC T SETTING ASIDE THE ORDER PASSED BY THE A.O. IN THE SET ASIDE PROCEEDIN GS, THE A.O. MADE ADDITIONS WHICH WAS DELETED BY THE LD. CIT(A) BY OB SERVING AS UNDER: 3.1.2 DETERMINATION: (I) I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE A PPELLANT AND THE MATERIAL PLACED ON RECORD. THE INSTANT APPEAL UNDER CONSIDERATION WAS FILED AGAINST THE ASSESSMENT ORDE R DATED 26.12.2016 PASSED BY THE DCIT, CIRCLE - 2, JAIPUR U /S 263/143(3) OF THE ACT IN PURSUANCE TO THE ORDER PASSED BY THE LD. PR. CIT-1, JAIPUR U/S 263 OF THE ACT ON 25.02.2016, WHEREIN TH E EARLIER ORDER PASSED U/S 143(3) OF THE ACT WAS SET ASIDE WI TH THE DIRECTION TO THE AO TO MAKE THE ASSESSMENT ORDER AF RESH. (II) THE APPELLANT HAS FILED AN APPEAL AGAINST THE ORDER U/S 263 PASSED BY LD. PR. CIT - I, JAIPUR BEFORE HON'BLE IT AT, JAIPUR AND VIDE ITS ORDER DATED 04.08.2017 IN ITA NO. 299/JP/2 018, THE HON'BLE ITAT, JAIPUR HAS CANCELLED THE AFORESAID OR DER PASSED U/S 263 OF THE ACT AND HAS RESTORED THE ORIGINAL AS SESSMENT ORDER PASSED U/S 143 (3) BY THE AO. IT WOULD BE APP ROPRIATE TO REPRODUCE HEREUNDER THE RELEVANT EXTRACTS OF THE OR DER OF HON'BLE ITAT, JAIPUR AS UNDER: 2.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE O RDER OF THE AUTHORITIES BELOW. THE BASIS OF REVISING THE ORDER AS PER THE LD. PR. CIT IS THAT THOUGH THE AO HAD OBTAI NED BASIC DETAILS SUCH AS BROKERS NOTE(S) SHOWING THE PURCHASE OF THE SHARES, D-MAT ACCOUNT STATEMENT AND BANK ACCOUNTS ETC. BUT FAILED TO VERIFY THEM. AS PE R SECTION 263 OF THE ACT, THE LD. PR. CIT IS EMPOWERE D TO CALL FOR EXAMINE THE RECORD OF ANY PROCEEDINGS UNDER THE INCOME-TAX ACT AND IF THE CONSIDERS THAT ANY ORDER PASSED ITA NO. 1051/JP/2017 ACIT VS SHRI RAHUL SHARMA 3 THEREON BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. T HEREFORE, THE CONDITION WHICH REQUIRES TO BE SATISFIED FOR TH E PURPOSE OF JURISDICTION U/S 263 ARE THAT THE ORDER OF THE ASSESSING OFFICER SHOULD BE ERRONEOUS AND PREJUDICI AL TO THE INTEREST OF REVENUE. MERELY BECAUSE THE ORDER I S ERRONEOUS WOULD NOT MEET THE REQUIREMENT OF LAW FOR INVOKING THE PROVISIONS OF SECTION 263. IN THE CASE IN HAND, IT IS STATED BY THE LD. COUNSEL FOR THE ASSES SEE THAT MUCH BEFORE THE DATE OF COMPLETION OF ASSESSMENT FO R THE AY 2011-12 THE DEPARTMENT HAD RAISED THE ISSUE OF S HARES HOLDING AND CAPITAL GAIN INCOME ON SALE OF SHARES A ND LAND. THE ASSESSEE VIDE HIS LETTERS DATED 11.11.201 3 (PB NO.5) AND 11.12.2013 (PB NO. 6) FILE ALL THE REQUIR ED DETAILS AND COPY OF D-MATE ACCOUNT HAVING ALL THE PARTICULARS/ DETAILS OF ALLOTMENT OF SHARES, ISSUE F BONUS SHARES AND SPLITTING OF SHARES (PB NO. 36) AND COPI ES OF AGREEMENT TO SALE OF PLOTS OF LAND. THE AO HAD APPL IED HIS MIND ON THE DETAILS SO FILED. THIS FACT IS NOT CONT ROVERTED BY THE REVENUE BY PLACING ANY CONTRARY MATERIAL ON RECORD. UNDER THESE FACTS, WE ARE OF THE CONSIDERED VIEW THAT IT IS NOT A FIT CASE OF INVOKING THE PROVISION S OF SECTION 263 OF THE ACT. THEREFORE, WE SET ASIDE THE ORDER OF THE LD. CIT AND RESTORE THE ASSESSMENT ORDER. IN THE LIGHT OF THE ABOVE DELIBERATIONS, THE APPEAL OF THE ASSESSEE IS ALLOWED.' (III) IN VIEW OF THE ABOVE ORDER OF HON'BLE ITAT, JAIPUR, THE VERY BASIS OF THIS FRESH ASSESSMENT ORDER PASSED U/ S 263/143(3) CEASES TO EXIST AND, THEREFORE, THE IMPU GNED ORDER PASSED BY THE AO CANNOT BE SUSTAINABLE IN LAW AND THUS HEREBY CANCELLED. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD AND FOUND THAT THE ORDER PASSED BY THE A.O. GIVING EFFECT TO THE ORDER PASSED BY THE LD. PR.CIT-I, JAIPUR U/S 263 OF THE ACT HAS NO LEGS TO STAND IN SO FAR AS THE ORDER PASSED BY THE LD. P R.CIT-I, JAIPUR U/S ITA NO. 1051/JP/2017 ACIT VS SHRI RAHUL SHARMA 4 263 OF THE ACT HAS BEEN QUASHED BY THE TRIBUNAL VID E ITS ORDER DATED 04/08/2017 PASSED IN ITA NO. 299/JP/2018. ACCORDING LY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) F OR SETTING ASIDE THE ORDER PASSED BY THE A.O. U/S 143(3) R.W.S. 263 OF T HE ACT. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH NOVEMBER, 2019. SD/- SD/- FOT; IKY JKO JES'K LH 'KEKZ (VIJAY PAL RAO) (RAMESH C SHARMA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 19 TH NOVEMBER, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE A.C.I.T., CIRCLE-2, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- SHRI RAHUL SHARMA, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 1051/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR