Smt. Kavita Rani, Sangrur V. CIT, Patiala

ITA 1103/CHANDI/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6675 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-02-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 02-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI SARANGA L
• Keywords: Opportunity of being heard; Assessment record
• Section: 143(3); 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, A CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER & MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 1103/CHD/2013 ASSESSMENT YEAR: 2009-10 SMT. KAVITA RANI, VS. THE CIT, SANGRUR, PATIALA PAN NO. AITPR8646N (APPELLANT) (RESPONDENT) APPELLANT BY : SH. VIBHOR GARG RESPONDENT BY : SH. RAVI SARANGAL DATE OF HEARING : 10.08.2017 DATE OF PRONOUNCEMENT : 08.11.2017 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 14.10.2013 OF THE COMMISSIONER OF INCOM E TAX [HEREINAFTER REFERRED TO AS THE CIT] RELEVANT TO ASSESSMENT YEAR 2009-10, PASSED UNDER SECTION 263 OF THE ACT WHEREBY HE HAS SET ASIDE THE ASSESSMENT MADE U/S 143(3) OF THE ACT BY THE ASSESSING OFFICER (HEREINA FTER REFERRED TO AS THE AO) AND HAS DIRECTED THE AO TO MAKE AN ADDITION OF RS.69,54,500/-INTO THE INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED CA SH CREDITS. 2. THE FACTS IN BRIEF ARE THAT THE LD. CIT EXERCISI NG HIS REVISION JURISDICTION UNDER SECTION 263 OF THE I.T. ACT CALL ED FOR AND EXAMINED THE ASSESSMENT RECORDS. HE NOTED THAT DURING THE YEAR U NDER CONSIDERATION THE 2 ASSESSEE HAD DECLARED AN INCOME OF RS. 1,20,000/ FR OM BUSINESS OF PHOTOSTAT AND LAMINATION. DURING THE ASSESSMENT PRO CEEDINGS, THE ASSESSING OFFICER HAD CALLED FOR AN EXPLANATION REG ARDING THE DEPOSITS OF RS. 68,53,000/- IN CASH IN THE BANK ACCOUNT OF THE ASSESSEE, REGARDING WHICH THE ASSESSEE CLAIMED THAT THE ASSESSEE DURING THE YEAR HAS STARTED TRADING IN COMMODITY AS A SUB BROKER OF M/S SAI COM MODITIES AND M/S SHEVTA COMMODITIES TRADERS AND THAT THE SAID DEPOSI TS WERE FROM THE MONEY RECEIVED FROM THE VARIOUS CLIENTS TO INVEST T HE SAME IN COMMODITY MARKET. HE NOTED THAT THE ASSESSING OFFICER DID NOT INQUIRE INTO THE GENUINENESS OF THE CLAIM OF THE ASSESSEE HAVING ACT ED AS SUB BROKER. HE FURTHER OBSERVED THAT THE ASSESSING OFFICER WRONGLY NOTED FROM THE CASH FLOW STATEMENT THAT CASH TRANSACTIONS WERE WITH SEV EN PERSONS ONLY, OF WHOM THE ASSESSEE HAD FILED AFFIDAVITS CONFIRMING T HE PAYMENTS TO THE ASSESSEE, WHEREAS IN FACT CASH DEPOSIT OF THE AFORE SAID SEVEN PERSONS COVERED THE AMOUNT OF 32 LAKHS ONLY. THE BALANCE OF RS. 36,53,000/- HAD REMAIN UNEXPLAINED. FURTHER THE LD. CIT FOUND DISCR EPANCIES IN THE AFFIDAVITS OF THE SEVEN PERSONS AND OBSERVED THAT T HE EXPLANATIONS AND EVIDENCES FURNISHED BY THE ASSESSEE WERE NOT SATISF ACTORY. 3. IN VIEW OF THE ABOVE, THE LD. CIT ISSUED SHOW CA USE NOTICE ON 28.12.2012 TO THE ASSESSEE ASKING HIM TO SUBMIT AN EXPLANATION AS TO WHY NOT THE ORDER PASSED BY THE ASSESSING OFFICER BE NO T REVISED/SET ASIDE AS PER PROVISIONS OF SECTION 263 OF THE ACT. IN COMPLIANC E TO THE SAID NOTICE, THE ASSESSEE FILED WRITTEN SUBMISSIONS AND EXPLAINED TH AT THE ENTIRE ISSUE HAS BEEN THOROUGHLY EXAMINED BY THE ASSESSING OFFICER. IT WAS SUBMITTED THAT IN RESPONSE TO THE QUERIES RAISED BY THE ASSESSING OFFICER, IT WAS EXPLAINED THAT THE DEPOSITS WERE NOT THE INVESTMENTS OF THE A SSESSEE RATHER THE SAME 3 WAS FROM THE AMOUNT RECEIVED BY THE ASSESSEE FROM T HE CLIENTS IN THE BUSINESS OF SHARE BROKER. SINCE THERE WAS A DOWNFAL L IN THE MARKET, NO INCOME WAS EARNED FROM THE SAID ACTIVITY. CASH FLOW STATEMENT GIVING DETAILS OF DAY TO DAY RECEIPTS, DEPOSITS IN THE BAN K ACCOUNT AND CASH IN HAND WAS FILED BEFORE THE ASSESSING OFFICER WHICH WAS TEST CHECKED BY THE ASSESSING OFFICER. THE DETAILS OF ALL THE PARTIES F ROM WHOM THE CASH WAS RECEIVED WAS FILED, OUT OF WHICH THE ASSESSING OFFI CER ASKED THE ASSESSEE TO LEAD EVIDENCE IN RESPECT OF PARTIES WHO MADE THE LARGER INVESTMENTS. ACCORDINGLY, AFFIDAVITS OF SEVEN PERSONS WERE FILED WHO NOT ONLY CONFIRMED THE PAYMENTS BUT ALSO THE SOURCE OF THERE OF. TO FURTHER CHECK THE VERSION OF THE ASSESSEE, THE AO RECORDED STATEM ENTS OF TWO PERSONS WHO CONFIRMED THE PAYMENTS. THERE WERE CERTAIN TYPOGRAP HICAL MISTAKES IN THE AFFIDAVITS WHICH WERE CORRECTED BY HAND DURING THEI R EXAMINATION BEFORE THE ASSESSING OFFICER. IT WAS THEREFORE CONTENDED T HAT THE ORDER OF THE ASSESSING OFFICER WAS NEITHER ERRONEOUS NOR PREJUDI CIAL TO THE INTEREST OF THE REVENUE. THE ASSESSEE UNDER THE CIRCUMSTANCES O BJECTED TO THE INVOCATION OF THE PROVISIONS OF SECTION 263 OF THE ACT. 4. THE LD. CIT, AFTER CONSIDERING THE SUBMISSIONS M ADE BY THE LD. A.R. OF THE ASSESSEE, OBSERVED THAT THE ASSESSING OFFICE R HAD NOT MADE PROPER VERIFICATION OF THE CLAIMS MADE BY THE ASSESSEE IN THE RETURN OF INCOME IN RELATION TO THE ABOVE STATED ISSUE. HE NOTED THAT T HE ASSESSEE RESPONDED VERY LATE TO THE VARIOUS NOTICES ISSUED BY THE ASSE SSING OFFICER. HE AFFIRMED HIS VIEW THAT PROPER INQUIRY REGARDING THE CLAIM OF THE ASSESSEE WAS NOT MADE BY THE AO. HE OBSERVED THAT THE ASSESSEE HAD FAILED TO 4 EXPLAIN THE ENTIRE DEPOSITS. THAT THE DISCREPANCIE S IN THE AFFIDAVITS OF THE SEVEN PERSONS HAD REMAINED UNEXPLAINED. HE, THEREFO RE, TREATED THE ASSESSMENT MADE BY THE ASSESSING OFFICER AS ERRONEO US IN SO FAR AS IT WAS PREJUDICIAL TO THE INTEREST OF REVENUE. HE ACCORDI NGLY SET ASIDE THE ASSESSMENT WITH A DIRECTION TO MAKE AN ADDITION OF RS.69,54,500/-INTO THE INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED CA SH CREDITS. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT, THE ASSESSEE HAS COME IN APPEAL BEFORE US. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE ALS O GONE THROUGH THE RECORDS. TO ARRIVE AT THE CORRECT CONCLUSION OF TH E CASE, WE DEEM IT NECESSARY TO REPRODUCE THE RELEVANT PROVISIONS OF S ECTION 263 OF THE ACT. SECTION 263(1) IN THE INCOME- TAX ACT: (1) THE COMMISSIONER MAY CALL FOR AND EXAMINE THE R ECORD OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE 2 ASSESSING] OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, HE, MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BE ING HEARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THEREON AS THE CIR CUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORDER ENHANCING O R MODIFYING THE ASSESSMENT, OR CANCELLING THE ASSESSMENT AND DI RECTING A FRESH ASSESSMENT. 6. THE SUM AND SUBSTANCE OF THE ABOVE REPRODUCED SE CTION 263(1) CAN BE SUMMARIZED IN THE FOLLOWING POINTS: 1) THE COMMISSIONER MAY CALL FOR AND EXAMINE THE RE CORD OF ANY PROCEEDING UNDER THE ACT; 2) IF HE CONSIDERS THAT THE ORDER PASSED BY THE AO IS (I) ERRONEOUS; AND (II) IS PREJUDICIAL TO THE INTEREST OF REVENUE; 5 3) HE HAS TO GIVE AN OPPORTUNITY OF HEARING IN THIS RESPECT TO THE ASSESSEE; AND 4) HE HAS TO MAKE OR CAUSE TO MAKE SUCH ENQUIRY AS HE DEEMS NECESSARY; 5) HE MAY PASS SUCH ORDER THEREON AS THE CIRCUMSTAN CES OF THE CASE JUSTIFY INCLUDING, (I) AN ORDER ENHANCING OR, (II) MODIFYING THE ASSESSMENT OR (III) CANCELLING THE ASSESSMENT AND DIRECTING A FRE SH ASSESSMENT. 7. NOW IN THE LIGHT OF ABOVE PROVISIONS, WE HAVE TO EXAMINE AS TO WHETHER THE ORDER OF THE LD. CIT IS A VALID ORDER S USTAINABLE IN THE EYES OF LAW. IN PARA 4 OF THE IMPUGNED ORDER, THE LD. CIT, HIMSELF HAS GIVEN THE DETAILS OF VARIOUS LETTERS ISSUED BY THE ASSESSING OFFICER RAISING QUERIES, ASKING THE ASSESSEE TO FURNISH DETAILS AND SOURCE O F DEPOSITS IN HER ACCOUNTS. THOUGH THE ASSESSEE RESPONDED LATE, BUT I T HAS BEEN AFFIRMED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER THAT THE ASSESSEE HAD FILED REPLY ALONG WITH BANK STATEMENT AND EXPLANATION WIT H REGARD TO THE CASH DEPOSITS WHICH HAS BEEN EXPLAINED. IT HAS ALSO BEEN MENTIONED IN THE ASSESSMENT ORDER THAT THE CONTENTION OF THE ASSESSE E HAS BEEN TEST CHECKED WITH THE BANK STATEMENT AND CASH FLOW STATEMENT OF THE ASSESSEE. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT FROM TIME TO TIME, THE ASSESSING OFFICER RAISED VARIOUS QUERIES WHICH WERE DULY REP LIED AND THE RELEVANT EXPLANATION ALONG WITH DOCUMENTARY EVIDENCE WAS GIV EN TO THE ASSESSING OFFICER. AFTER DULY EXAMINING THE RECORDS OF THE A SSESSEE, THE AO PROCEEDED TO PASS THE ASSESSMENT ORDER. THE LD. A.R. HAS FURTHER INVITED OUR ATTENTION TO T HE OBSERVATIONS OF THE LD. CIT MADE IN PARA 8 OF THE IMPUGNED ORDER WH EREIN HE HAS NOTED, 6 A CURSORY READING OF THE ASSESSMENT ORDER WOULD LE AD TO A CONCLUSION THAT AO HAD CONDUCTED ALL THE NECESSARY INQUIRIES IN RES PECT OF THE MATTER UNDER CONSIDERATION. THE LD. COUNSEL HAS FURTHER SUBMITT ED THAT THE ENHANCEMENT/ADDITIONS HAVE BEEN DIRECTED TO BE MADE BY THE LD. CIT ONLY OBSERVING THAT THE AO SHOULD HAVE MADE FURTHER DEEP INQUIRIES INTO THE MATTER, WHICH WAS NOT JUSTIFIABLE. 8. IN OUR VIEW, AS PER THE PROVISIONS OF SECTION 26 3 AS ENUMERATED ABOVE, AFTER GETTING THE EXPLANATION FROM THE ASSES SEE, THE LD. CIT WAS SUPPOSED TO EXAMINE THE CONTENTION OF THE ASSESSEE. BEFORE PASSING AN ORDER OF MODIFYING, ENHANCING OR CANCELLING THE ASS ESSMENT, HE WAS SUPPOSED EITHER TO HIMSELF MAKE OR CAUSE TO MAKE SU CH AN ENQUIRY AS HE DEEMS NECESSARY. THE WORDS AS HE DEEMS NECESSARY , IN OUR VIEW, DO NOT MEAN THAT THE LD. CIT IS LEFT WITH A CHOICE EITHER TO MAKE OR NOT TO MAKE AN ENQUIRY. AS PER THE RELEVANT PROVISIONS OF SECT ION 263, IT WAS INCUMBENT UPON THE LD. CIT TO MAKE OR CAUSE TO MAKE AN ENQUIRY. SO FAR AS THE WORDS AS HE DEEMS NECESSARY ARE CONCERNED, THE SAID WORDS SUGGEST THAT THE ENQUIRIES WHICH ARE NECESSARY TO F ORM A VIEW AS TO WHETHER THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AN D PREJUDICIAL TO THE INTEREST OF REVENUE OR NOT? THE LD. CIT HAD ASKED T HE ASSESSEE ABOUT THE GENUINENESS/VALIDITY OF THE CLAIM TO WHICH THE ASSE SSEE HAD GIVEN A DETAILED REPLY. ONCE A POINT WISE REPLY WAS GIVEN BY THE ASSESSEE, THEN A DUTY WAS CAST UPON THE LD. CIT TO EXAMINE THE REPLY OF THE ASSESSEE AND TO MAKE OR CAUSE TO MAKE NECESSARY INQUIRES TO REACH T O THE CONCLUSION THAT THE ORDER OF THE ASSESSING OFFICER WAS ERRONEOUS SO FAR AS IT WAS PREJUDICIAL TO THE INTEREST OF REVENUE. ADMITTEDLY, IN THIS CA SE, THE LD. CIT DID NOT CALL FOR ANY EVIDENCES OR DETAILS FROM THE ASSESSEE BEFORE HOLDING THAT THE 7 DEPOSITS FOUND IN THE BANK ACCOUNT OF THE ASSESSEE WERE UNEXPLAINED AND WITHOUT FURTHER MAKING ANY INQUIRY DIRECTED THE AO TO MAKE ADDITION OF THE SAME INTO THE INCOME OF THE ASSESSEE. 9. IT IS PERTINENT TO MENTION HERE THAT A DEEMING FICTION HAS BEEN CREATED IN SECTION 263 OF THE ACT BY THE AMENDMENT MADE BY FINANCE ACT, 2015 W.E.F. 01.06.15 WHEREIN IT HAS BEEN MENTIONED THAT WHERE THE COMMISSIONER IS OF THE OPINION THAT THE ASSESSING O FFICER HAD PASSED THE ORDER WITHOUT MAKING ENQUIRIES OR A CLAIM HAS BEEN ALLOWED WITHOUT ENQUIRING INTO THE CLAIM OR THAT THE SAME IS NOT IN ACCORDANCE WITH ANY ORDER OR DIRECTION OR INSTRUCTION ISSUED BY CBDT, T HAT SHALL BE DEEMED TO BE ERRONEOUS IN SO FAR AS ITS PREJUDICIAL TO THE IN TEREST OF REVENUE. THE SAID DEEMING PROVISIONS, IN OUR VIEW, ARE NOT APPLI CABLE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. 10. IN OUR VIEW, WHEN THE ASSESSEE SHOWS FROM THE R ECORD THAT THE NECESSARY ENQUIRIES WERE MADE BY THE ASSESSING OFFI CER AND THE ASSESSING OFFICER HAD APPLIED HIS MIND AND THE VIEW ADOPTED BY HIM WAS ONE OF THE POSSIBLE VIEWS, THEN IT CANNOT BE SAID THAT THE ORD ER OF THE ASSESSING OFFICER IS ERRONEOUS. MERELY BECAUSE, THE ASSESSM ENT ORDER IN QUESTION IS NOT A DETAILED ORDER AND THE ASSESSING OFFICER HAS NOT MENTIONED ITEM WISE FINDINGS REGARDING THE CLAIMS OF THE ASSESSEE, THAT ITSELF, DOES NOT MEAN THAT THE ASSESSING OFFICER HAD NOT MADE ENQUIRIES IN THIS RESPECT. AS PER THE RELEVANT PROVISIONS AS THEY STOOD DURING THE RE LEVANT PERIOD, WHATEVER REQUIRED BY THE ASSESSING OFFICER WAS TO LOOK INTO THE CLAIM OF THE ASSESSEE. ADMITTEDLY, THE ASSESSING OFFICER ASKED THE ASSESSEE TO FURNISH THE NECESSARY DETAILS FROM TIME TO TIME WHICH WERE DULY FURNISHED BY THE 8 ASSESSEE AND AFTER CONSIDERING THE SAME THE ASSESSI NG OFFICER PASSED THE ASSESSMENT ORDER. 11. NOW COMING TO THE VARIOUS CASE LAWS RELIED UPON BY BOTH THE PARTIES. 12. THE LD. D.R. HAS STRESSED THAT IF THE COMMISSIO NER FINDS THAT THERE WAS A LACK OF ENQUIRY ON THE PART OF THE AO REGARDI NG THE CLAIM MADE BY THE ASSESSEE, THE ORDER CAN BE TREATED AS ERRONEOUS AND THE COMMISSIONER EXERCISING HIS POWERS UNDER SECTION 263 CAN DIRECT THE ASSESSING OFFICER TO MAKE APPROPRIATE ENQUIRIES/VERIFICATIONS ETC. HE IN THUS RESPECT HAS RELIED UPON THE DECISION OF THE HONBLE KARNATAKA HIGH COU RT IN THE CASE OF CIT VS. INFOSYS TECHNOLOGIES LTD. (2012) 17 TAXMANN.CO M 203 . 13. THE LD. A.R., ON THE OTHER HAND, HAS RELIED UPO N THE FOLLOWING AUTHORITIES TO STRESS THAT THERE IS A DIFFERENCE BE TWEEN LACK OF ENQUIRIES AND INADEQUATE ENQUIRIES. THE COMMISSIONER MUST GIVE A FINDING OF FACT OR OF LAW THAT THE ORDER IS ERRONEOUS SO FAR AS IT IS PRE JUDICIAL TO THE INTEREST OF REVENUE BY MAKING PROPER ENQUIRIES AFTER SEEKING EX PLANATION FROM THE ASSESSEE. (I) CIT VS. SUNBEAM AUTO LTD. 227 CTR 133 (DELHI HC) (II) CIT VS. VIKAS POLYMERS (2010) 194 TAXMAN 57 ( DELHI HC) (III) CIT VS. GUPTA SPINNING MILLS LTD. ITA NO.410 OF 2003 DATED 13.09.2013 (IV) CIT VS. AMIT CORPORATION (2013) 213 TAXMAN 19 (MAG) (GUJARAT- HC) (V) M/S AXIND SOFTWARE DEVELOPMENT SERVICES PVT. LT D. VS CIT ITA NO.555/CHD/2012 VIDE ORDER DATED 13.9.2013 (CHD. TRIBUNAL) 14. THE LD. A.R. HAS FURTHER RELIED UPON THE FOLLOW ING CASE LAWS TO STRESS THAT WHERE THE ASSESSING OFFICER HAS APPLIED HIS M IND AND THE VIEW TAKEN 9 BY HIM IS ONE OF THE POSSIBLE VIEWS, THEN THE ORDER CANNOT BE SAID TO BE ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE , EVEN, IF THE COMMISSIONER HAS A DIFFERENT VIEW FROM THAT OF THE ASSESSING OFFICER; WHERE THE AO HAS MADE ENQUIRIES IN RESPECT OF THE C LAIM OF THE ASSESSEE, ORDER CANNOT BE SAID TO BE ERRONEOUS EVEN IF THE DE TAILS OF ENQUIRIES MADE DO NOT FIND MENTION IN THE ASSESSMENT ORDER. (I) CIT VS. FINE JEWELLERY (I) LTD. (2015) 372 ITR 303 (MUMBAI- HC) (II) CIT VS. ASHISH RAJPAL (2010) 320 ITR 674 (DEL HI-HC) (III) CIT VS. SUNBEAM AUTO LTD. (2011) 332 ITR 167 (DELHI-HC) (IV) CIT VS. GABRIEL INDIA (1993) 203 ITR 108 (BOM BAY-HC) (I) GRASIM IND. LTD. VS. CIT (2010) 321 ITR 92 (BOMBAY- HC) (II) CIT VS. MALABAR INDUSTRIES (1993) 203 ITR 108 (BOMB AY-HC) (III) MALABAR INDUSTRIAL CO. LTD. VS. CIT (2000) 109 TAXM AN 66 (SC) (IV) CIT VS. ARVIND JEWELLERS (2002) 124 TAXMAN 615 (GUJ .-HC) (V) CIT VS. VIKAS POLYMERS (2010) 194 TAXMAN 57 (DELHI HC) (VI) ITO VS. DG HOUSING PROJECTS LTD. (2012) 343 ITR 329 (DELHI HC) (VII) CIT VS. GOETZ (I) LTD. 2014 361 ITR 505 (DELHI HC ) 15. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE AL SO GONE THROUGH THE RELEVANT CASE LAWS SUBMITTED BY THE LD. REPRESENTAT IVES OF THE PARTIES. THERE IS NO DOUBT THAT THE HONBLE KARNATAKA HIGH C OURT IN THE CASE OF INFOSYS TECHNOLOGY (SUPRA) HAS HELD THAT WHERE TH E ASSESSING OFFICER HAS NOT MADE IT EXPLICIT AS TO THE ENTITLEMENT OF A CLAIM OF THE ASSESSEE, THE COMMISSIONER HAS THE JURISDICTION IN DIRECTING THE AO TO MAKE ENQUIRIES IN THE MATTER AND GIVE A SPECIFIC FINDING IN THIS RESP ECT. HOWEVER, THE HONBLE DELHI HIGH COURT IN THE CASE OF SUNBEAM AU TO LTD. (SUPRA) HAS HELD THAT THERE IS A DISTINCTION BETWEEN LACK OF EN QUIRY AND INADEQUATE ENQUIRY. IF THERE IS AN ENQUIRY EVEN INADEQUATE TH AT WOULD NOT BY ITSELF GIVE OCCASION TO THE CIT TO PASS ORDER UNDER SECTIO N 263 MERELY BECAUSE HE 10 HAS A DIFFERENT OPINION IN THE MATTER. THE ASSESSI NG OFFICER IS NOT REQUIRED TO GIVE DETAILED REASONING IN RESPECT OF E ACH AND EVERY ITEM OF DEDUCTION IN THE ASSESSMENT ORDER. WHERE THE ASSES SING OFFICER HAD CALLED FOR AN EXPLANATION REGARDING THE CLAIM MADE BY THE ASSESSEE AND THE ASSESSEE HAD FURNISHED ITS EXPLANATION, THEN IT CAN NOT BE SAID TO BE A CASE OF LACK OF ENQUIRY. IN THE CASE OF VIKAS POLYMERS (SUPRA) THE HONBLE DELHI HIGH COURT HAS HELD THAT FOR EXERCISING POWERS UNDER SEC TION 263, IT IS PRE- REQUISITE THAT COMMISSIONER MUST GIVE REASONS TO JU STIFY EXERCISE OF REVISIONAL POWERS UNDER SECTION 263 TO REOPEN A CON CLUDED ASSESSMENT. THE EXERCISE OF THE POWER BEING QUASI-JUDICIAL IN N ATURE, THE REASONS MUST BE SUCH AS TO SHOW THAT THE ENHANCEMENT OR MODIFICA TION OF THE ASSESSMENT OR CANCELLATION OF THE ASSESSMENT OR DIRECTIONS ISS UED FOR A FRESH ASSESSMENT WAS CALLED FOR AND MUST IRRESISTIBLY LEA D TO THE CONCLUSION THAT THE ORDER OF THE AO WAS NOT ONLY ERRONEOUS BUT WAS ALSO PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE HONBLE HIGH COURT HA S OBSERVED THAT THE PROVISIONS OF SECTION 263 WHEN READ AS A COMPOSITE WHOLE MAKE IT INCUMBENT UPON THE COMMISSIONER BEFORE EXERCISING R EVISIONAL POWERS TO (I) CALL FOR AND EXAMINE THE RECORD AND (II) GIVE T HE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND THEREAFTER, TO MAKE OR CAUSE TO MAKE SUCH AN ENQUIRY AS HE DEEMS NECESSARY. IT IS ONLY ON FULFILLMENT OF T HESE TWIN CONDITIONS THAT THE COMMISSIONER MAY PASS AN ORDER EXERCISING POWER S OF REVISION, THE ASSESSEE MUST BE CALLED FOR, HIS EXPLANATION SOUGHT FOR AND EXAMINATION BY THE COMMISSIONER AND THEREAFTER IF THE COMMISSIONER STILL FEELS THAT THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE THEN HE MAY PASS THE REVISIONAL ORDERS. 11 THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GABRI EL INDIA LTD. (SUPRA) HAS HELD THAT THE COMMISSIONER CANNOT INITI ATE PROCEEDINGS WITH A VIEW TO STARTING FISHING AND ROWING ENQUIRIES IN MA TTERS OR ORDERS WHICH ARE ALREADY CONCLUDED. THERE MUST BE MATERIAL ON R ECORD TO SHOW THAT TAX WHICH WAS LAWFULLY EXIGIBLE HAS NOT BEEN IMPOSED IF THE CLAIM WAS ALLOWED BY THE INCOME TAX OFFICER (ITO). ON BEING SATISFIE D WITH THE EXPLANATION OF THE ASSESSEE, SUCH DECISION OF THE ITO CANNOT BE HELD TO BE ERRONEOUS SIMPLY BECAUSE IN HIS ORDER HE DID NOT MAKE AN ELAB ORATE DISCUSSION IN THAT RECORD. ALMOST SIMILAR PROPOSITION HAS BEEN LAID DO WN IN THE CASE OF GUPTA SPINNING MILLS LTD. (SUPRA) AND AMIT CORPO RATION (SUPRA) THAT COMMISSIONER HAS TO GIVE A DEFINITE FINDING THAT TH E ORDER OF THE AO IS ERRONEOUS AND THAT INADEQUATE ENQUIRIES BY ITSELF W ILL NOT MAKE THE ORDER AS ERRONEOUS. 16. WE FIND THAT THE HONBLE DELHI HIGH COURT IN TH E CASE OF CIT VS. GOETZ (I) LTD. (SUPRA) HAS ELABORATELY DISCUSSED T HE VARIOUS CASE LAWS REGARDING THE POWERS OF THE COMMISSIONER UNDER SECT ION 263 INCLUDING CIT VS. NAGESH KNITWARS PVT. LTD. (2012) 345 ITR 135 (DELHI HC) AND OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GA BRIEL INDIA LTD. (SUPRA) AND ALSO OF THE HONBLE DELHI HIGH COURT IN THE CASE OF SUNBEAM AUTO LTD. (SUPRA) AND HAS REACHED TO THE CONCLUSIO N THAT THE COMMISSIONER SHOULD BE ABLE DEMONSTRATE THAT THE V IEW TAKEN BY THE AO WAS NOT POSSIBLE BEING LEGALLY UNSUSTAINABLE AND IN CORRECT AND THIS FINDING MUST BE RECORDED. THE COMMISSIONER CANNOT REMAND T HE MATTER TO THE AO TO DECIDE WHETHER THE FINDINGS RECORDED ARE ERRONEO US. IN CASES WHERE THERE IS INADEQUATE ENQUIRY BUT NOT LACK OF ENQUIRY , THE COMMISSIONER MUST GIVE AND RECORD A FINDING THAT THE ORDER/ENQUIRY MA DE IS ERRONEOUS. THIS 12 CAN HAPPEN IF AN ENQUIRY AND VERIFICATION IS CONDUC TED BY THE COMMISSIONER AND HE IS ABLE TO ESTABLISH AND SHOW T HE ERROR OR MISTAKE MADE BY THE AO MAKING THE ORDER UNSUSTAINABLE IN LA W. THE MATTER CANNOT BE REMITTED FOR A FRESH DECISION TO THE AO TO CONDU CT FURTHER ENQUIRIES WITHOUT A FINDING THAT THE ORDER IS ERRONEOUS AND T HE COMMISSIONER FURTHER MUST ALSO SATISFY THE SECOND LIMB OF THE PROVISION THAT THE ORDER IS ALSO PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE HO NBLE SUPREME COURT IN THE CASE OF CIT VS. G.M. MITTAL STAINLESS STEEL (P ) LTD. (2003) 263 ITR 255 HAS OBSERVED THAT THE SATISFACTION BY THE COMMI SSIONER MUST BE ONE OBJECTIVELY JUSTIFIABLE AND BASED ON MATERIAL EITHE R LEGAL OR FACTUAL WHEN AVAILABLE, IT CANNOT BE MERE IPSE DIXIT OF THE COMM ISSIONER. 17. IN VIEW OF THE ABOVE DISCUSSION OF THE VARIOUS CASE LAWS, WE FIND THAT EXCEPT IN THE LONE DECISION OF THE HONBLE KARNATAK A HIGH COURT IN THE CASE OF INFOSYS TECHNOLOGY ( SUPRA), THE HONBLE SUPREME COURT AND VARIOUS OTHER HIGH COURTS INCLUDING OUR JURISDICTIO NAL HIGH COURT HAVE BEEN ALMOST UNANIMOUS IN HOLDING THAT BEFORE ENHAN CING OR ANNULLING OR MODIFYING OR CANCELLING THE ASSESSMENT WHILE EXERCI SING HIS POWERS UNDER SECTION 263 OF THE ACT, THE COMMISSIONER MUST RECOR D A FINDING OF FACT OR OF LAW THAT THE ORDER OF THE AO IS ERRONEOUS AND IS ALSO PREJUDICIAL TO THE INTEREST OF REVENUE AS DISCUSSED ABOVE. IN THE CAS E IN HAND, AS DISCUSSED ABOVE, THIS PREREQUISITE CONDITION HAS NOT BEEN SAT ISFIED AS THE COMMISSIONER AFTER CALLING FOR THE EXPLANATION FROM THE ASSESSEE HAS FAILED TO MAKE NECESSARY EXERCISE IN EXAMINING OR CAUSE TO EXAMINE THE EXPLANATION/DETAILS SUBMITTED BY THE ASSESSEE FOR T HE JUSTIFICATION OF ITS CLAIM AND EVEN WITHOUT ANY FURTHER ENQUIRY, DIRECTE D THE AO TOP MAKE ADDITIONS OF THE ENTIRE DEPOSITS INTO THE INCOME OF THE ASSESSEE. HENCE, IN 13 THE LIGHT OF THE VARIOUS CASE LAWS AS ANALYZED ABOV E, THE ORDER OF THE COMMISSIONER EXERCISING JURISDICTION UNDER SECTION 263 OF THE ACT CANNOT BE HELD TO BE SUSTAINABLE IN LAW AND THE SAME IS AC CORDINGLY SET ASIDE. 18. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HE REBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08.11.2017 SD/- SD/- ( ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 8 TH NOV., 2017 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR