Sri Pramod Kumar Gupta, Hyderabad V. Commissioner of Income Tax-(Central), Hyderabad

ITA 1103/HYD/2014

• Counselvise Citation: 110322514 RSA 2014
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-02-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 30-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D SUDHAKAR RAO
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Search and seizure
• Section: 143(3); 54F; 153A; 54; 263; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD BEFORE SHRI P. M. JAGTAP, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA.NO.1102 & 1103/HYD/2014 ASSESSMENT YEARS 2005-06 & 2006-07, MR. PRAMOD KUMAR GUPTA HYDERABAD 500 001 PAN AACHP4412P VS. COMMISSIONER OF INCOME TAX (CENTRAL), HYDERABAD. (APPELLANT) (RESPONDENT) FOR ASSESSEE : -NONE- FOR REVENUE : MR. D. SUDHAKAR RAO DATE OF HEARING : 18.02.2015 DATE OF PRONOUNCEMENT : 20.02.2015 ORDER PER P.M. JAGTAP, A.M. THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER PASSED BY LD. CIT UNDER SECTION 263, DATED 27.03.2014 FOR A.YS. 2005-06 AND 2006- 07. SINCE THE ISSUE INVOLVED IN THESE APPEALS IS CO MMON, THE SAME HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSE D OF BY A SINGLE CONSOLIDATED ORDER FOR THE SAKE OF CONVENIEN CE. 2. BRIEFLY STATED FACTS ARE, THE ASSESSEE IN THE P RESENT CASE IS AN INDIVIDUAL. A SEARCH AND SEIZURE ACTION UNDER SECTION 132 WAS CONDUCTED IN HIS CASE ON 11.03.2010 . CONSEQUENTLY, NOTICES UNDER SECTION 153A WERE ISSUE D BY THE A.O. ON 26.10.2010 IN RESPONSE TO WHICH, THE RETURN S OF INCOME FOR THE YEARS UNDER CONSIDERATION WERE FILED BY ASSESSEE ON 02.05.2011 DECLARING TOTAL INCOME OF RS .4,21,167 AND RS.19,05,214 FOR A.YS. 2005-06 AND 2006-07 RESP ECTIVELY. 2 ITA.NO.1102 & 1103/HYD/2014 MR. PRAMOD KUMAR GUPTA, HYDERABAD. IN THE ASSESSMENTS COMPLETED UNDER SECTION 143(3) R EAD WITH SECTION 153A VIDE ORDERS DATED 30.12.2011, THE TOT AL INCOME DECLARED BY THE ASSESSEE WAS ACCEPTED BY THE A.O. T HE RECORDS OF THE SAID ASSESSMENTS WERE SUBSEQUENTLY EXAMINED BY THE LD. CIT AND ON SUCH EXAMINATION, THE LD. CIT WAS OF THE OPINION THAT THE ASSESSMENTS MADE BY THE A.O. FOR B OTH THE YEARS UNDER CONSIDERATION SUFFERED FROM THE FOLLOWI NG ERRORS : A.Y.2005-06 THE ASSESSEE WITH 5 OTHERS EXECUTED A DEVELOPMENT AGREEMENT CUM GPA 0001-06-2004 FOR DEVELOPMENT OF 2915 SQ. YDS (3085 SQ. YDS. MINUS 175 SQ. YDS SURRENDERED TO MUNICIPALITY) OF LAND AT BEGUMPET, HYDERABAD.OUT OF THIS LAND THE ASSESSEE'S SHARE IS 693 SQ YDS. AS PER THE AGREEMENT CUM GPA FOR FOREGOING HIS LAND, THE ASSESSEE RECEIVED FLAT NO. 105 (50% SHARE ), FLAT NO. 405 AND FLAT NO. 505 (TOTAL SUPER BUILT AREA OF 5350 SQ FEET OF 3 OATS 104.84 SQ.YDS RESPECTIVELY. THERE WAS NO ENDORSEMENT OF REGISTRATION AUTHORITIES ON THE R EVERSE OF THE DEVELOPMENT AGREEMENT CUM GPA WHICH INDICATE THAT THE AGREEMENT ON THE REGISTERED IN THE ABSENCE OF WHICH THE COMPLIANCE TO SECTION 50 C OF IT ACT IS N OT ASSESSABLE. HOWEVER, AS THE DATE OF DEVELOPMENT AGREEMENT CUM GPA WAS ON 01-06-2004 (FY 2004-05 RELEVANT TO A.Y. 2005-06), THERE WAS TRANSFER DURIN G A Y 2005-06 AND CAPITAL GAINS NEEDS TO BE TAXED IN THE A.Y. 2005-06.THIS FACT WAS NOT VERIFIED DURING THE ASSES SMENT PROCEEDINGS. A.Y.2006-07 (I) IT IS SEEN FROM THE COMPUTATION OF THE ASSESSEE FOR THE AY 2006-07 THAT AN AMOUNT OF 34,77,500/- (CALCULATE D @ 650 PER SQ.FOOT COST OF CONSTRUCTION X 5350 SQ. FEE T AREA RECEIVED) WAS SHOWN AS RECEIVED FOR SURRENDERING 43 2.55 SQ. YDS OF LAND TO THE BUILDER. THE ASSESSEE SOLD F LAT NO. 405 AND RECEIVED 20,00,000/- OUT OF WHICH THE ASSESSEE EXHIBITED THE VALUE OF UN-DIVIDED SHARE OF LAND OF 104.18 SQ. YDS FOR 6,09,000/- WHICH WORKS OUT TO 5,845/- P ER SQ. YD. COMPLIANCE OF SEC.50C IS NOT VERIFIABLE AS THE DOCUMENT WAS NOT REGISTERED. IN A SIMILAR CASE OF S RI KAILASH CHAND GUPTA, THE RATE ADOPTED WAS RS. 14,48 5/- 3 ITA.NO.1102 & 1103/HYD/2014 MR. PRAMOD KUMAR GUPTA, HYDERABAD. PER SQ.YD. AT THIS RATE THE CAPITAL GAINS SHOULD WO RK OUT TO RS.62,66,395/- (432.55 SQ.YDS. SURRENDERED X 14,485/-). (II) ALSO, THE ASSESSEE CLAIMED EXEMPTION U/S 54F I N RESPECT OF FLAT NO. 505 ANDFLATNO.105. AS THE ASSES SEE IS ELIGIBLE FOR EXEMPTION FOR 1 FLAT ONLY U/S 54F THER E IS EXCESS ALLOWANCE OF CLAIM U/S S4F WHICH WAS ALLOWED TO THE ASSESSEE. THESE FACTS HAVE NOT BEEN VERIFIED DU RING THE ASSESSMENT PROCEEDINGS. 3. ACCORDINGLY, SHOW CAUSE NOTICES WERE ISSUED BY THE LD. CIT REQUIRING THE ASSESSEE TO EXPLAIN AS TO WHY THE ASSESSMENT ORDERS PASSED BY THE A.O. SHOULD NOT BE REVISED UNDER SECTION 263 OF THE ACT. IN REPLY TO THE SAID NOTICES, THE FOLLOWING EXPLANATION WAS OFFERED BY THE ASSESSEE I N WRITING. A. Y. 2005-06 ASSESSEE'S REPLY DATED 24.03.2014 IS AS UNDER: 'REGISTRATION OF DEVELOPMENT AGREEMENT: YOU MAY NOTE THAT THE ENDORSEMENT OF REGISTRATION B EHIND THE DEVELOPMENT AGREEMENT (AS PER THE SEIZED MATERI AL ON PAGE 352 OF ANNEXURE A/EBPL/OFF/01) IS VERY MUCH THERE. THIS INFORMATION WAS VERY MUCH AVAILABLE AND CONSIDERED BY A.O ALREADY. COMPUTATION OF CAPITAL GAINS AND REVISION U/S 263 OF 1. T. ACT; 1961: WITH REGARD TO TAXATION OF CAPITAL GAINS IN A. Y 20 06-07, WE WOULD LIKE TO AFFIRM THAT ALL THE FACTS OF THE DEVELOPMENT AGREEMENT WERE CONSIDERED BY THE A. A IN PAST FOR WHICH EXPLANATIONS WERE SOUGHT BY HIM. WE HAD PROVIDED VALID EXPLANATIONS FOR ALL THE QUERIES RAI SED AND THEY WERE CONSIDERED BY THE A.O CORRECTLY. HENCE, T HE ORDER GIVEN BY THE A.O. U/S 143(3) R.W.S 153C DATED 26.12.2011 IS CORRECT. A. Y.2006-07 ASSESSEE'S REPLY DATED 21. 03.2014 IS AS UNDER: 4 ITA.NO.1102 & 1103/HYD/2014 MR. PRAMOD KUMAR GUPTA, HYDERABAD. REGISTRATION OF DEVELOPMENT AGREEMENT: YOU MAY NOTE THAT THE ENDORSEMENT OF REGISTRATION B EHIND THE DEVELOPMENT AGREEMENT (AS PER THE SEIZED MATERI AL ON PAGE 1 OF ANNEXURE AJEBPLLAFFJ01) IS VERY MUCH THER E. THIS INFORMATION WAS VERY MUCH AVAILABLE AND CONSID ERED BY A.O ALREADY. EXPLANATION W.R.T RATE ADOPTED FOR TRANSFER OF LAND : WITH REGARD TO YOUR CALCULATION IN THE NOTICE, ON T HE BASIS OF COST ASSIGNED TO UN-DIVIDED SHARE OF LAND OF 104 .18 SQ. YDS (RS. 6,09,000) WORKED OUT TO BE RS. 5,845/- PER SQYD, WE WOULD LIKE YOU TO NOTE THAT THE COST ASSIGNED IS ONLY A BALANCING FIGURE ARRIVED AFTER REDUCING COST OF BUI LT-UP AREA FROM THE TOTAL SALE CONSIDERATION OF THE FLAT (RS. 20,00,000) AND NOT ACTUAL COST OF THE LAND. TOTAL CONSIDERATION RS.20,00,000 LESS: COST OF BUILDING THE FLAT 405 (2140 SQ. FT. * RS.650/- PER SQ. FT. RS.13,91,000 COST OF UNDIVIDED SHARE IN LAND ADMEASURING 104.18 (BALANCING FIGURE). RS.6,09,000 YOU MAY NOTE THAT, AFTER CONSTRUCTION THE LAND IS ONLY AN UNDIVIDED PORTION AND THE SALE IS ALWAYS MADE NOT O N WHAT LAND COMES AS UNDIVIDED SHARE, BUT ON THE BASI S OF BUILT-UP AREA. HENCE, JUST FOR GIVING THE BREAK-UP AS REQUESTED BY THE DEPARTMENT, THE COST OF BUILDING W AS TAKEN ON THE BASIS OF CONSTRUCTION COST. NO ONE WOU LD SELL A BUILDING AT COST OF CONSTRUCTION. THE FLAT WAS SO LD FOR RS. 934.58/- PER SFT (RS. 934.58*2140 SFT= RS. 20,00000/-). YOU MAY NOTE THAT THE GOVERNMENT RATES FOR SALE OF FLAT IS ONLY ON THE COMPOSITE BASIS (LAND & BUILDING) AND NO CALCULATION OF LAND IS TAKEN, AS THIS IS HOW THE SA LE OF FLATS ARE DONE. WE REITERATE THAT THE FLAT WAS SOLD FOR R S. 934.58/- PER SFT ONLY AND THE AO HAS CORRECTLY TAKEN THE VALUE OF LAND ON DATE OF AGREEMENT. HENCE, THE COST SO ARRIVED (RS. 5,845 PER SQ. YD) CANNOT BE ASSIGNED TO THE LAND FOR DETERMINING THE SALE CONSIDERATION. 5 ITA.NO.1102 & 1103/HYD/2014 MR. PRAMOD KUMAR GUPTA, HYDERABAD. THE SALE CONSIDERATION ACTUALLY COMPUTED IS ON THE BASIS OF COST OF CONSTRUCTION (5350 SQ. FT* RS. 650/- PER SQTT) OF BUILT-UP AREA DEVELOPED AND RECEIVED BY THE ASSESSE E IN EXCHANGE OF LAND GIVEN FOR DEVELOPMENT. ALL THESE F ACTS HAVE BEEN CONSIDERED BY THE A.O AND HAVE BEEN CLARI FIED ALREADY AND ALL THE ABOVE WORKINGS WERE GIVEN IN DE TAIL. WITH RESPECT TO THE RATE ARRIVED (RS.1',485/- PER S Q.YD) IN CASE OF SRI KAILASH CHAND GUPTA, IT IS NOT A COMPAR ABLE SITUATION BECAUSE THE CONSIDERATION RECEIVED FOR TH E SALE OF FLAT (305) IN CASE OF SRI KAILASH CHAND GUPTA W AS RS.29,00,000/- AND HENCE THE COST OF UNDIVIDED SHAR E IN LAND ADMEASURING 104.18 (BALANCING FIGURE) WILL CER TAINLY BE HIGHER. EXPLANATION W.R.T EXEMPTION CLAIMED U/S.54F: AS PER SEC 54F OF INCOME TAX ACT, IF THE SALE CONSI DERATION OF THE LONG TERM ASSETS (OTHER THAN RESIDENTIAL HOU SE) IF INVESTED FOR PURCHASE / CONSTRUCTION OF A RESIDENTIAL HOUSE AND IF THE AMOUNT INVESTED IN RESIDENTIAL HOUSE IS EQUAL TO OR MORE THAN THE SALE CONSIDERATION IS LESS THAN TH E INVESTED IN RESIDENTIAL HOUSE THE CAPITAL GAIN SHAL L BE CHARGED PROPORTIONATELY. (SECTION EXTRACT IS ENCLOS ED AS ANNEXURE-I ) FURTHER THE ASSESSEE SHOULD NOT OWN MORE THAN ONE RESIDENTIAL HOUSE AS ON THE DATE OF TRANSFER. YOU M AY NOTE THAT HONOURABLE KARNATAKA HIGH COURT IN CIT VS. SMT . K.G.RUKMINIAMMA (COPY ENCLOSED AS ANNEXURE-IT HAS HELD THAT ALL THE FLATS ACQUIRED BY THE ASSESSEE IN ONE BUILDING UNDER DEVELOPMENT AGREEMENT IS CONSIDERED AS ONE RESIDENTIAL HOUSE FOR THE PURPOSE OF SECTION 54 . THE ASSESSEE WAS OWNER OF 733 SQ YDS OF LAND OF WHICH 40 SQ YDS WERE SURRENDERED TO MCH FOR ROAD ALIGNMENT. NOW OUT OF THE 693 SQ YDS AVAILABLE WITH HIM, THE ASSESSEE HAS ENTERED INTO DEVELOPMENT AGREEMENT AND HAS GOT FLATS (5350 SFT) CONSTRUCTED IN EXCHANGE OF 432.55 SQ YDS OF LAND. FOR THE PURPOSE OF CALCULATION OF C APITAL GAIN ON NOTIONAL SALE OF LAND, THE COST OF CONSTRUC TION OF FLATS (5350 STT) AS PER BUILDER CERTIFICATE IS TAKE N AS NOTIONAL SALE CONSIDERATION FOR THE SALE OF 432.55 YDS LAND. FURTHER AS THE ASSESSEE IS GETTING FLAT IN EX CHANGE OF LAND THE SALE CONSIDERATION IS AUTOMATICALLY INVEST ED IN A RESIDENTIAL HOUSE. 6 ITA.NO.1102 & 1103/HYD/2014 MR. PRAMOD KUMAR GUPTA, HYDERABAD. HENCE THE ASSESSEE IS ENTITLED TO CLAIM DEDUCTION U /S. 54F FOR THE INVESTMENT IN RESIDENTIAL PROPERTY WHILE CA LCULATING CAPITAL GAIN ON SALE OF LAND AS : 1. ASSESSEE IS AN INDIVIDUAL TRANSFERRING LONG TERM ASSETS I.E. LAND (OTHER THAN RESIDENTIAL HOUSE). 2. THE SALE CONSIDERATION IS INVESTED IN THE RESIDENTI AL HOUSE. 3. THE ASSESSEE DOES NOT OWN ANY OTHER RESIDENTIAL HOUSE ON THE DATE OF TRANSFER. FURTHER THE ASSESSEE HAS ALSO NOT CLAIMED DEDUCTION FOR INVESTMENT IN PART OF THE BUILDING FLAT NO.405) WHI CH IS SOLD DURING THE YEAR. EXPLANATION W.R.T REVISION U/S. 263 OF I.T. ACT, 1961: IN THIS REGARD WE WOULD LIKE TO AFFIRM THAT ALL THE ABOVE FACTS WERE CONSIDERED BY THE A.O IN SCRUTINY PROCEE DINGS FOR WHICH EXPLANATIONS WERE SOUGHT BY HIM. WE HAD PROVIDED VALID EXPLANATIONS FOR ALL THE QUERIES RAI SED AND THEY WERE CONSIDERED BY THE A.O. CORRECTLY. HENCE N OTICE U/S.263 IS NOT VALID. 4. LD. CIT, HOWEVER, FOUND NO MERIT IN THE EXPLANATION OFFERED BY THE ASSESSEE AND HELD THE OR DERS PASSED BY THE A.O. TO BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE FOR THE FOLLOWING REASONS GIVEN IN PARA 4 OF THE ORDER. 4. I HAVE GONE THROUGH THE SUBMISSION OF THE ASSESSEE. IT IS EVIDENT FROM THE ASSESSMENT ORDERS THAT THE ISSUES RAISED IN THE NOTICES FOR THE ABOVE REFE RRED ASSESSMENT YEARS WERE NOT EXAMINED BY THE ASSESSING OFFICER IN THE PROPER PERSPECTIVE AND THE ASSESSMEN T ORDERS WERE PASSED. IT WAS HELD IN NUMBER OF CASES THAT IT IS WELL ESTABLISHED THAT WHERE THE ASSESSING OFFICE R FAILS TO MAKE THE NECESSARY ENQUIRIES WHICH HE IS LEGALLY REQUIRED TO MAKE AND DECIDE THE ISSUES WITHOUT MAKI NG SUCH ENQUIRIES THEN THE ORDER OF THE ASSESSING OFFI CER WOULD BE ERRONEOUS IN LAW. THIS WAS SO HELD IN THE CASE OF DESAI BROTHERS LTD. VS. DCIT, PUNE TRIBUNAL. SIM ILAR VIEW WAS ALSO TAKEN BY MANY OTHER TRIBUNALS AND HIG H 7 ITA.NO.1102 & 1103/HYD/2014 MR. PRAMOD KUMAR GUPTA, HYDERABAD. COURTS WHEREIN IT WAS HELD THAT ON FAILURE OF ASSESSING OFFICER TO MAKE ENQUIRY AS EXPECTED, COMMISSIONER W AS JUSTIFIED IN INVOKING PROVISION OF SECTION 263 BECA USE THE ORDERS PASSED AS SUCH BY THE ASSESSING OFFICER WAS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE. REFERENCE IN THIS REGARD CAN ALSO BE MADE TO THE DECISION OF SPECIAL BENCH, !TAT, CHENNAI REPORTED I N 313 !TR (AT) 182, CHENNAI S8 WHEREIN IT WAS OBSERVED THAT IT IS NOT NECESSARY FOR THE COMMISSIONER OF INCOME-TAX IN REVISION TO MAKE FURTHER ENQUIRIES BEFORE CANCELLIN G THE ASSESSMENT ORDER OF THE A.O. THE COMMISSIONER OF INCOME-TAX CAN REGARD THE ORDER AS ERRONEOUS ON THE GROUND THAT IN THE CIRCUMSTANCES OF THE CASE, THE A .O. SHOULD HAVE MADE FURTHER ENQUIRIES BEFORE ACCEPTING THE STATEMENTS MADE BY THE ASSESSEE IN HIS RETURN. IT I S INCUMBENT ON THE A.O. TO INVESTIGATE THE FACTS STAT ED IN THE RETURN WHEN CIRCUMSTANCES WOULD MAKE SUCH AN ENQUIRY PRUDENT. THE WORD ERRONEOUS IN SEC.263 OF INCOME-TAX ACT, 1961 INCLUDES CASES WHER E THERE HAS BEEN FAILURE TO MAKE NECESSARY ENQUIRIES. CONSIDERING THE ABOVE, THE ORDER PASSED BY ASSESSIN G OFFICER WITHOUT EXAMINING THE ISSUES NARRATED ABOVE ARE DEFINITELY ERRONEOUS AND PREJUDICIAL TO THE INTERES T OF REVENUE. 5. FOR THE REASONS GIVEN ABOVE, THE ASSESSMENT ORDERS PASSED BY THE A.O. FOR BOTH THE YEARS UNDER CONSIDERATION WERE SET ASIDE BY THE LD. CIT WITH A DIRECTION TO HIM TO MAKE THE ASSESSMENTS AFRESH AFTER EXAMINING THE ISSUES IN PROPER PERSPECTIVE AND AFTER CONSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE DURING THE COUR SE OF REVISED PROCEEDINGS. AGGRIEVED BY THE ORDERS OF LD. CIT PASSED UNDER SECTION 263, ASSESSEE HAS PREFERRED THESE APP EALS BEFORE THE TRIBUNAL. 6. AT THE TIME OF HEARING BEFORE US, NONE HAS APPEARED ON BEHALF OF THE ASSESSEE. THESE APPEALS O F THE ASSESSEE THEREFORE ARE BEING DISPOSED OF EXPARTE AF TER CONSIDERING THE ARGUMENTS OF THE LEARNED D.R. AND P ERUSING THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THA T THE SOLITARY 8 ITA.NO.1102 & 1103/HYD/2014 MR. PRAMOD KUMAR GUPTA, HYDERABAD. GROUND RAISED BY THE ASSESSEE, WHICH IS IDENTICAL I N BOTH THE PRESENT APPEALS, READS AS UNDER : FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD. CIT ERRED IN NOT PASSING A SPEAKING ORDER AGAIN ST THE SUBMISSIONS OF THE APPELLANT. AS SUCH, THE ORDER PA SSED U/S. 263 AS VOID ABINITIO. THE ACTION OF THE LD. CI T WAS WHOLLY UNREASONABLE, UNCALLED FOR AND BAD IN LAW. 7. AS IS CLEARLY EVIDENT FROM THE COMMON GROUND RAISED BY THE ASSESSEE IN BOTH THE APPEALS, ASSESSE E IS MAINLY CHALLENGING THE IMPUGNED ORDERS OF THE LD. CIT ON T HE GROUND THAT THE SAME HAVE BEEN PASSED WITHOUT CONSIDERING THE EXPLANATION OFFERED DURING THE COURSE OF REVISION P ROCEEDINGS AND WITHOUT APPLYING HIS MIND IN THE MATTER. IN THI S REGARD, IT IS OBSERVED THAT CERTAIN ISSUES WERE RAISED BY THE LD. CIT IN THE NOTICES ISSUED UNDER SECTION 263 POINTING OUT T HAT THE SAME WERE NOT PROPERLY ENQUIRED INTO OR EXAMINED BY THE A.O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN REP LY TO THE SAID NOTICES, A DETAILED SUBMISSION WAS FILED BY TH E ASSESSEE EXPLAINING AS TO HOW THE ISSUES RAISED BY THE LD. C IT IN THE NOTICES ISSUED UNDER SECTION 263 WERE NOT RELEVANT FOR THE PURPOSE OF COMPLETING THE ASSESSMENTS IN THE CASE OF THE ASSESSEE FOR ALL THE FOUR YEARS UNDER CONSIDERATION . ON THE BASIS OF THIS EXPLANATION OFFERED IN RESPECT OF EAC H AND EVERY ISSUE, IT WAS CONTENDED ON BEHALF OF THE ASSESSEE B EFORE THE LD. CIT THAT IT WAS NOT THE CASE OF ASSESSMENTS HAVING BEEN COMPLETED BY THE A.O. WITHOUT MAKING PROPER AND ADE QUATE ENQUIRIES AS REQUIRED IN THE FACTS AND CIRCUMSTANCE S OF THE CASE. A PERUSAL OF THE OPERATIVE PORTION OF THE LD. CITS IMPUGNED ORDER HOWEVER SHOWS THAT HE HAS NEITHER CO NSIDERED THIS EXPLANATION OF THE ASSESSEE NOR MADE ANY COMME NT/ OBSERVATION THEREON POINTING OUT SPECIFICALLY THAT IT WAS STILL A 9 ITA.NO.1102 & 1103/HYD/2014 MR. PRAMOD KUMAR GUPTA, HYDERABAD. CASE OF FAILURE ON THE PART OF THE A.O. TO MAKE PRO PER AND ADEQUATE ENQUIRIES BEFORE COMPLETING THE ASSESSMENT S AS WERE REQUIRED IN THE FACTS AND CIRCUMSTANCES OF THE CASE . HE HAS NOT POINTED OUT SPECIFICALLY EVEN A SINGLE ENQUIRY WHIC H A.O. OUGHT TO HAVE MADE IN THE FACTS AND CIRCUMSTANCES OF THE CASE BUT HAS FAILED TO DO. WE, THEREFORE, FULLY AGREE WITH T HE STAND OF THE ASSESSEE THAT THE IMPUGNED ORDER HAS BEEN PASSED BY THE LD. CIT UNDER SECTION 263 WITHOUT CONSIDERING THE EXPLA NATION OFFERED BY THE ASSESSEE AND WITHOUT APPLYING HIS MI ND. IN OUR OPINION, THIS FAILURE OF THE LD. CIT, HOWEVER, DOES NOT CONSTITUTE ANY LEGAL INFIRMITY TO MAKE THE ORDER PA SSED BY HIM UNDER SECTION 263 INVALID OR VOID ABINITIO AS SOUGHT TO BE MADE OUT BY THE ASSESSEE IN THE GROUND RAISED IN THESE A PPEALS. WE ARE OF THE VIEW THAT IT WOULD BE JUST AND PROPER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, TO SET ASIDE THE IMPUGNE D ORDER OF THE LD. CIT PASSED UNDER SECTION 263 AND REMIT THE MATTER BACK TO HIM WITH A DIRECTION TO PASS FRESH ORDER UN DER SECTION 263 AFTER DULY TAKING INTO CONSIDERATION THE EXPLAN ATION OFFERED BY THE ASSESSEE AND AFTER APPLYING HIS MIND. NEEDLE SS TO OBSERVE THAT THE LD. CIT(A) SHALL PASS WELL DISCUSS ED AND WELL REASONED ORDER AFTER GIVING PROPER AND SUFFICIENT O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, APPEALS OF THE ASSESSEE ARE TREA TED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20.02.2015. SD/- SD/- (SAKTIJIT DEY) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED 20 TH FEBRUARY, 2015 VBP/- 10 ITA.NO.1102 & 1103/HYD/2014 MR. PRAMOD KUMAR GUPTA, HYDERABAD. COPY TO 1. MR. PRAMOD KUMAR GUPTA, 3-5-784/B & C NAGEENA BUILDING, KING KOTI ROAD, HYDERABAD 500 001. 2. COMMISSIONER OF INCOME TAX (CENTRAL), 7 TH FLOOR, AAYAKAR BHAVAN, HYDERABAD. 3. ADDL. CIT, C.R. 3, HYDERABAD 4. ASST. COMMISSIONER OF INCOME TAX, CC.8, HYDERABAD. 5. D.R. I.T.A.T. B BENCH, HYDERABAD.