Shri Sushil Kumar Bardia , Kolkata V. Pr.CIT-12, Kolkata

ITA 1142/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 8843 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 14-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI
• Keywords: Assessment record; Set aside
• Section: 142(1); 133(6); 143(2); 263

Judgement Text

1 ITA NO. 1142/KOL/2019 SUSHIL KUMAR BARDIA, AY- 2014- 15 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 1142/KOL/2019 ASSESSMENT YEAR: 2014-15 SUSHIL KUMAR BARDIA (PAN: ADXPB9014D) VS. PRINCIPAL COMMISSIONER OF INCOME-TAX- 12, KOLKATA APPELLANT RESPONDENT DATE OF HEARING 19.09.2019 DATE OF PRONOUNCEMENT 22.11.2019 FOR THE APPELLANT SHRI ANIL KOCHAR, ADVOCATE FOR THE RESPONDENT DR. P. K. SRIHARI, CIT, DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E REVISION ORDER OF THE LD. PR. CIT, KOLKATA-12, KOLKATA PASSED U/S. 263 OF THE INCOME-T AX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) DATED 18.03.2019 FOR AY 2014-15. 2. THE MAIN GRIEVANCE OF THE ASSESSEE IS AGAINST TH E ACTION OF THE LD. PR. CIT-12, KOLKATA IN PASSING THE IMPUGNED ORDER U/S. 263 OF T HE ACT WITHOUT SATISFYING THE CONDITION PRECEDENT AS LAID DOWN IN SEC. 263 OF THE ACT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL WHO HAS RETURNED INCOME OF RS.13,10,980/- FOR THE ASSESSMENT YEAR UNDER CON SIDERATION. LATER, THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY THROUGH CASS. T HEREAFTER, THE AO NOTED IN THE ASSESSMENT ORDER THAT THE ASSESSEE IS A BUSINESS MA N WHO HAD EARNED HIS INCOME FROM TRADING IN BALL-BEARING, MOTOR PARTS UNDER THE NAME OF HIS PROPRIETORSHIP CONCERN M/S. SHREE SHAKTI TRADERS. THE AO NOTES THAT DURING THE ASSES SMENT PROCEEDINGS THE ASSESSEE HAD PRODUCED RELEVANT DOCUMENTS FOR VERIFICATION WITH R EFERENCE TO THE RETURN OF INCOME FILED ALONG WITH THE P&L ACCOUNT, BALANCE SHEET, TAR, BAN K STATEMENT, COPY OF 26AS AND OTHER DETAILS AS PER HIS REQUISITION WHICH WERE TEST CHEC KED BY HIM. THEREAFTER, THE AO NOTES THAT 2 ITA NO. 1142/KOL/2019 SUSHIL KUMAR BARDIA, AY- 2014- 15 NOTICES U/S. 133(6) OF THE ACT WERE ALSO ISSUED TO VERIFY THE TRANSACTION OF THE ASSESSEE. THE AO ALSO STATES THAT THE CASE WAS DISCUSSED WITH THE ASSESSEE AND AFTER HEARING HIM HE HAD DISCUSSED THE ISSUES RELEVANT FOR DETERMINATION OF TOTAL INCOME AT PAGES 2 TO 8 OF HIS ASSESSMENT ORDER AND THEN MADE AN ADDITION OF RS.32 ,69,898/- AND THUS THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED AT RS.45,80,880/- VIDE AS SESSMENT ORDER DATED 30.12.2016. THIS ORDER WAS INTERFERED BY THE IMPUGNED ORDER OF THE L D. PR. CIT-12, KOLKATA VIDE ORDER DATED 18.03.2019 BY EXERCISING HIS REVISIONAL POWER U/S. 263 OF THE ACT. 4. THE LD. PR. CIT HAS FOUND FAULT WITH THE FRAMING OF ASSESSMENT. ACCORDING TO HIM, THERE IS LACK OF ENQUIRY/VERIFICATION IN THE CASE O F SUNDRY CREDITORS. IN HIS OWN WORDS THE LD. PR. CIT-12, KOLKATA STATES AS UNDER: AFTER THE ASSESSMENT ORDER WAS PASSED, THE ASSESS MENT RECORD OF THE ASSESSEE WAS PICKED UP FOR EXAMINATION. CONSEQUENT UPON EXAMINATION OF AS SESSMENT RECORD IT WAS FOUND THAT THE ASSESSING OFFICE HAD COMPLETED THE ASSESSMENT WITHO UT MAKING INQUIRIES AND VERIFICATIONS IN RESPECT OF SUNDRY CREDITORS ALTHOUGH ONE OF THE CRI TERIA FOR SELECTION WAS VERIFICATION OF SUNDRY CREDITORS AMOUNTING TO RS.2,11,05,222.38 AS PER THE BALANCE SHEET. IT IS APT TO ADD HERE THAT FAILURE TO CONDUCT INQUIRIES AND INVESTIG ATIONS RENDERS AN ASSESSMENT ORDER ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE.{EMPHASIS GIVEN BY US] 5. THEREAFTER, THE LD. PR. CIT ISSUED SHOW CAUSE TO THE ASSESSEE AND AFTER GOING THROUGH THE REPLY OF THE ASSESSEE, THE LD. PR. CIT CONCLUDE S AS UNDER: 5. THE ASSERTIONS MADE BY THE ASSESSEE WERE GONE THROUGH AND METICULOUSLY EXAMINED. THE ASSESSEE REBUTTED THE ALLEGATIONS STATING THAT: A) THE ASSESSEE HAD COMPLIED WITH NOTICES U/S. 142(1) AND 143(2) OF THE ACT; B) IN COURSE OF PROCEEDINGS BOOKS OF ACCOUNTS HAD BEEN PRODUCED; C) COMPLETE LIST OF SUNDRY CREDITORS INVOLVING AMOUNT OF RS.2,11,05,222/- HAD BEEN RECORDED BY THE AO AND HAD BEEN EXAMINED BY MAKING ENQUIRIES U/S. 133(6) OF THE ACT ON TEST CHECK BASIS AS WAS EVIDENT FROM THE ASSESSMENT ORDE R AND THE RECORDS. HOWEVER, IT WAS ALSO DISCERNIBLE THAT THE ASSESSING OFFICER FAILED TO VE RIFY THE CREDITS APPEARING IN THE BOOKS OF THE ASSESSEE FOR AN AMOUNT OF RS.96,46,987/-. DURING T HE HEARING ALSO, THE ASSESSEE COULD NOT PRODUCE ANY EVIDENCE REGARDING THE IDENTITY AND GEN UINENESS OF THE CREDITORS. NO EXPLANATION WAS GIVEN BY THE ASSESSEES DURING 263 HEARING IN RE SPECT OF TWO PARTIES WHO FAILED TO RESPOND TO NOTICES ISSUED TO THEM UNDER SECTION 133(6) BY T HE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS ALSO. THE ASSESSEE MAINLY RELIED ON T HE SUBMISSIONS MADE BY IT DURING THE 263 HEARING. IN SUCH A SCENARIO, THE GENUINENESS OF CR EDITORS REMAINED UNVERIFIED TO THE ABOVE EXTENT. FOR THE SAID REASON THE ORDER IS SET ASIDE WITH A DIRECTION TO THE ASSESSING OFFICER TO VERIFY THE IDENTITY AND GENUINENESS INTER-ALIA OF T HE CREDITORS TO THE EXTENT OF RS.96,46,987/- AND PASS A FRESH ASSESSMENT ORDER RE-COMPUTING THE ASSESSEES INCOME TAKING INTO CONSIDERATION THE REASONS LEADING TO THE ACTION UND ER SECTION 263. THE ASSESSING OFFICER IS AT LIBERTY TO SET HIS OWN MONETARY CEILING FOR CARRYIN G OUT VERIFICATION OF THE CREDITORS. REASONABLE OPPORTUNITY OF HEARING SHALL BE GIVEN TO THE ASSESSEE. THOUGH THE AOS POWER IS 3 ITA NO. 1142/KOL/2019 SUSHIL KUMAR BARDIA, AY- 2014- 15 UNFETTERED, THE FACT MUST NOT BE LOST SIGHT OF THA T THE DISCRETION MUST BE EXERCISED LEGALLY AND NOT ABSOLUTELY.[EMPHASIS GIVEN BY US] 6. THUS, THE LD. PR. CIT WAS PLEASED TO SET ASIDE T HE ASSESSMENT ORDER PASSED BY THE AO DATED 30.12.2016 AND REMANDED IT BACK TO THE AO TO CARRY OUT VERIFICATION OF THE CREDITORS TO THE TUNE OF RS.96,46,987/- (2 CREDITORS) WITH THE L IBERTY TO SET HIS OWN (AO) MONETARY CEILING FOR CARRYING OUT VERIFICATION OF THE CREDIT ORS AND ALSO CAUTIONING HIM THAT THOUGH THE AOS POWER IS UNFETTERED, THE DISCRETION MUST BE EX ERCISED LEGALLY AND NOT ABSOLUTELY. AGGRIEVED BY THE AFORESAID ACTION OF THE LD. PR. CI T THE ASSESSEE IS BEFORE US CHALLENGING THE LEGAL ISSUE THAT THE LD. PR. CIT COULD NOT HAVE EXERCISED HIS REVISIONAL POWERS U/S. 263 WITHOUT SATISFYING THE CONDITION PRECEDENT THAT THE ASSESSMENT ORDER IS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. 7. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE LD. PR. CIT HAS FOUND FAULT WITH THE ACTION OF THE AO TO HAVE COMPLETED THE ASSESSMENT WITHOUT MAKING ENQUIRIES A ND VERIFICATION IN RESPECT OF SUNDRY CREDITORS ALTHOUGH ONE OF THE CRITERION OF SELECTI ON (FOR SCRUTINY BY CASS) WAS VERIFICATION OF SUNDRY CREDITORS AMOUNTING TO RS.2,11,05,222/- A S PER THE BALANCE SHEET. THUS ACCORDING TO LD. PR. CIT, FAILURE OF AO TO CONDUCT ENQUIRIES AND INVESTIGATIONS IN RESPECT OF RS 96,46,987/- RENDERED THE ASSESSMENT ORDER ERRONE OUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE. WE NOTE THAT THE ASSESSEE HAS POINTED O UT TO THE LD. PR. CIT THAT HIS ASSERTION THAT AO HAS NOT CONDUCTED ENQUIRY IN RESPECT OF SUN DRY CREDITORS IS MISPLACED AND NOT BORNE OUT OF RECORDS. DURING THE REVISIONAL PROCEEDINGS THE ASSESSEE HAD ASSERTED THE FOLLOWING FACTS TO ASSERT THAT AO IN FACT HAD CONDUCTED INVE STIGATION IN RESPECT OF SUNDRY CREDITORS: I) THE ASSESSEE HAD COMPLIED WITH NOTICES ISSUED BY AO U/S. 142(1) AND 143(2) OF THE ACT; II) IN COURSE OF PROCEEDINGS (ASSESSMENT) BOOKS OF ACCOUNT HAD BEEN PRODUCED BY THE ASSESSEE; III) COMPLETE LIST OF SUNDRY CREDITORS INVOLVING AM OUNT OF RS.2,11,05,222/- HAD BEEN RECORDED BY THE AO AND HAD BEEN EXAMINED BY MAKING ENQUIRIES U/S. 133(6) OF THE ACT ON TEST CHECK BASIS AND WHICH FACT IS EVIDENT FROM THE ASS ESSMENT ORDER AND THE RECORDS; 8. IN RESPECT OF THE AFORESAID ASSERTIONS MADE BY T HE ASSESSEE, THE LD. PR. CIT DOES NOT CONTRADICT THE SAME. HOWEVER, ACCORDING TO LD. PR. CIT, THE AO FAILED TO VERIFY THE CREDITS 4 ITA NO. 1142/KOL/2019 SUSHIL KUMAR BARDIA, AY- 2014- 15 APPEARING IN THE BOOKS OF ASSESSEE FOR AN AMOUNT OF RS.96,46,987/- OUT OF RS.2,11,05,222/- (TOTAL) AND THAT DURING THE HEARING BEFORE HIM, TH E ASSESSEE DID NOT PRODUCE ANY EVIDENCE REGARDING THE IDENTITY AND GENUINENESS OF THE CREDI TORS TO THE TUNE OF RS.96,46,987/- AND THAT THE ASSESSEE COULD NOT EXPLAIN DURING THE PROCEEDIN GS BEFORE HIM IN RESPECT OF TWO PARTIES WHO FAILED TO RESPOND TO NOTICE ISSUED U/S. 133(6) OF THE ACT BY THE AO DURING THE ASSESSMENT PROCEEDINGS. 9. AFTER MAKING THE AFORESAID FINDINGS THE LD. PR. CIT WAS OF THE OPINION THAT THE GENUINENESS OF THE CREDITORS REMAINED UNVERIFIED TO THE EXTENT OF RS.96,46,987/- AND HE WAS PLEASED TO SET ASIDE THE ORDER OF THE AO WITH A DIR ECTION TO THE AO TO VERIFY THE IDENTITY AND GENUINENESS, INTER-ALIA, OF THE CREDITORS TO THE EX TENT OF RS.96,46,987/- AND TO PASS A FRESH ASSESSMENT ORDER RECOMPUTING THE INCOME. THUS, WE NOTE THAT THE MAIN REASON GIVEN BY THE LD. PR. CIT TO INTERFERE WITH THE ASSESSMENT ORDER DATED 30.12.2016, WHILE ISSUING SCN PROPOSING TO INITIATE REVISIONAL JURISDICTION WAS S TARTED WITH THE ASSUMPTION OF FACT THAT THE AO WITHOUT MAKING ENQUIRIES AND VERIFICATION IN RE SPECT OF SUNDRY CREDITORS TO THE TUNE OF RS.2,11,05,222/- (AS PER THE BALANCE SHEET) HAS FRA MED THE ASSESSMENT ORDER AND HOWEVER, WHILE CONCLUDING THE LD. PR. CIT FOUND THAT THE VER IFICATION NEED TO BE RESTRICTED TO ONLY RS.96,46,987/- AFTER HEARING THE ASSESSEE DURING TH E REVISIONAL PROCEEDINGS. 10. ASSAILING THE ACTION OF THE LD. PR. CIT, THE LD . AR DREW OUR ATTENTION TO THE NOTICE ISSUED BY THE AO U/S. 142(1) OF THE ACT DATED 12.11 .2015 TO THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS WHEREIN HE CLEARLY ASKED THE ASSESSEE TO FURNISH THE FOLLOWING DETAILS: 6. KINDLY FILE COMPLETE PARTY-WISE DETAILS OF ALL PURCHASES AND SALES ABOVE RS.1,00,000/- MENTIONING COMPLETE POSTAL ADDRESSES AND PAN OF THE PARTIES INVOLVED. 7. KINDLY FILE COMPLETE PARTY-WISE DETAILS OF ALL S UNDRY DEBTORS AND CREDITORS MENTIONING COMPLETE POSTAL ADDRESSES AND PAN OF THE PARTIES IN VOLVED. 11. WE NOTE THAT THE LD. PR. CIT HAS CALLED FOR ENT IRE ASSESSMENT RECORD WHICH FACT THE LD. PR. CIT ACKNOWLEDGES AT PAGE 7 OF HIS ORDER THA T AFTER THE ASSESSMENT ORDER WAS PASSED, THE ASSESSMENT RECORD OF THE ASSESSEE WAS P ICKED UP FOR EXAMINATION. THEREAFTER, THE LD. PR. CIT HIMSELF RECORDS IN THE IMPUGNED ORD ER THE REBUTTAL OF THE ASSESSEE THAT 5 ITA NO. 1142/KOL/2019 SUSHIL KUMAR BARDIA, AY- 2014- 15 I) THE ASSESSEE HAD COMPLIED WITH NOTICES ISSUED BY AO U/S. 142(1) AND 14392) OF THE ACT; II) IN COURSE OF PROCEEDINGS (ASSESSMENT) BOOKS OF ACCOUNT HAD BEEN PRODUCED BY THE ASSESSEE; III) COMPLETE LIST OF SUNDRY CREDITORS INVOLVING AM OUNT OF RS.2,11,05,222/- HAD BEEN RECORDED BY THE AO AND HAD BEEN EXAMINED B Y MAKING ENQUIRIES U/S. 133(6) OF THE ACT ON TEST CHECK BASIS AND THAT THI S FACT IS EVIDENT FROM THE ASSESSMENT ORDER AND THE RECORDS; 12. THE AFORESAID ASSERTION OF THE ASSESSEE HAS BEE N RECORDED BY THE LD. PR. CIT IN THE IMPUGNED ORDER. HOWEVER, HE HAS NOT RECORDED ANY F INDINGS TO DISPROVE THE AVERMENTS MADE BY THE ASSESSEE BEFORE HIM, WHICH GOES ON TO S HOW THAT AO INFACT HAD DISCHARGED HIS ROLE OF AN INVESTIGATOR IN RESPECT OF SUNDRY CREDIT ORS. THEREAFTER, THE LD. PR. CIT FINDS FAULT WITH THE AOS ACTION BY STATING THAT THE AO FAILED TO VERIFY THE CREDITS APPEARING IN THE BOOKS OF ASSESSEE FOR AN AMOUNT OF RS.96,46,987/-. AND THAT DURING THE PROCEEDINGS BEFORE HIM, ALSO THE ASSESSEE DID NOT PRODUCE ANY EVIDENCE REGARDING THE IDENTITY AND GENUINENESS OF THE CREDITORS. AND THAT THE ASSESSEE COULD NOT EXPLAIN DURING THE PROCEEDINGS BEFORE HIM IN RESPECT OF TWO PARTIES WHO FAILED TO RESPOND TO NOTICE ISSUED U/S. 133(6) OF THE ACT BY THE AO DURING THE ASSESSMENT PROCEEDINGS. 13. FROM THE AFORESAID FACTUAL FINDING IT IS DISCER NED THAT DURING ASSESSMENT PROCEEDINGS PURSUANT TO THE NOTICE U/S. 142(1) OF THE ACT ISSUE D BY THE AO DATED 12.11.2015, THE ASSESSEE HAD FILED THE COMPLETE LIST OF SUNDRY CRED ITORS FOR AN AMOUNT OF RS.2,11,05,222/- AND THE LD. PR. CIT COULD NOT FIND FAULT WITH THE A SSESSEES ASSERTION THAT THE AO HAD EXAMINED THE SAME BY MAKING ENQUIRIES U/S. 133(6) O F THE ACT ON TEST CHECK BASIS, WHICH FACT IS EVIDENT FROM THE PERUSAL OF THE ASSESSMENT ORDER. THE ONLY ISSUE WHICH THE LD. PR. CIT FINDS FAULTS FINALLY IS THAT THE AO DID NOT VER IFY THE CREDITORS TO THE TUNE OF RS.96,46,987/- OUT OF RS.2,11,05,222/- AND THEREAFT ER HE OPINES THAT NO ENDEAVOR WAS MADE BY THE ASSESSEE TO PRODUCE EVIDENCE IN RESPECT OF S UNDRY CREDITORS BEFORE HIM AND ALSO THE ASSESSEE FAILED TO GIVE ANY EXPLANATION REGARDING T HE TWO PARTIES WHO FAILED TO RESPOND TO THE NOTICES ISSUED TO THEM U/S. 133(6) OF THE ACT B Y THE AO DURING ASSESSMENT PROCEEDINGS. ON THIS REASON HE HAS SET ASIDE THE ASSESSMENT ORDE R OF THE AO AND DIRECTED HIM TO VERIFY 6 ITA NO. 1142/KOL/2019 SUSHIL KUMAR BARDIA, AY- 2014- 15 THE IDENTITY AND GENUINENESS OF THE SUNDRY CREDITOR S TO THE EXTENT OF RS.96,46,987/- AND TO REFRAME THE ASSESSMENT AGAINST THE ASSESSEE. 14. THE LD. AR DREW OUR ATTENTION TO A SIMILAR CASE WHICH CAME UP BEFORE THE DELHI TRIBUNAL IN THE CASE OF SANDEEP KR. AGGARWAL VS. IT O IN ITA NO. 2321/DEL/2014 FOR AY 2009-10 WHEREIN A SIMILAR CASE THE TRIBUNAL AFTER T AKING NOTE OF THE HONBLE DELHI HIGH COURTS DECISION IN PR. CIT VS. DELHI AIRPORT METRO PVT. LTD. IN ITA NO. 705/2017 DATED 05.09.2017 WHEREIN THE HONBLE DELHI HIGH COURT HEL D THAT WHERE THE AO HAS MADE ENQUIRIES REGARDING THE ISSUE FOR WHICH THE REVISIO N HAS BEEN MADE BY THE LD. CIT, THE ASSESSMENT ORDER CANNOT BE TERMED AS ERRONEOUS (SIN CE ENQUIRY HAS BEEN DONE BY AO) UNLESS IT IS NOT IN ACCORDANCE WITH THE LAW. IT WAS FURTHER HELD THAT THE LD. CIT HAS NOT MADE ANY ENQUIRY HIMSELF ON THAT ISSUE ON WHICH THE AO H AS ALREADY ENQUIRED DURING ASSESSMENT PROCEEDINGS, WHICH EXERCISE IS NECESSARY FOR HIM TO ESTABLISH AND SHOW THE ERROR OR MISTAKE MADE BY THE AO. SO, WHEN THE AO DISCHARGES HIS DUT Y AS THAT OF THE INVESTIGATOR ON AN ISSUE AND MAKE ENQUIRIES AND THEREAFTER AS AN ADJUD ICATOR ACCEPTS THE CLAIM OF THE ASSESSEE, THEN THE LD. CIT CANNOT HOLD THE ACTION OF AO AS ER RONEOUS, UNLESS HE HIMSELF ENQUIRES AND RECORDS A FINDING THAT AOS SATISFACTION/FINDING IS UNSUSTAINABLE IN LAW AND SUCH FINDING OF LD. CIT MUST BE CLEAR, UNAMBIGUOUS AND NOT DEBATABL E. WE NOTE THAT IN THE PRESENT CASE IN HAND, THE AO HAD ISSUED NOTICE U/S. 142(1) DATED 12 .11.2015 WHEREIN HE HAS CALLED FOR COMPLETE PARTY-WISE DETAILS OF ALL PURCHASES AND SA LES ABOVE RS. 1 LAC AND THE COMPLETE POSTAL ADDRESS AND PAN OF THE PARTIES INVOLVED AS W ELL AS COMPLETE PARTY-WISE DETAILS INVOLVING SUNDRY DEBTORS AND CREDITORS MENTIONING C OMPLETE POSTAL ADDRESS AND PAN OF THE PARTIES AND PURSUANT TO WHICH THE ASSESSEE HAD FURN ISHED THE COMPLETE DETAILS OF THE SUNDRY CREDITORS INVOLVING NAME, AMOUNTING TO RS.2,11,05,2 22/- AND THE AO HAS RECORDED IN THE ASSESSMENT ORDER THAT HE HAS EXAMINED AND MADE ENQU IRIES U/S. 133(6) OF THE ACT ON TEST CHECK BASIS IN RESPECT OF THE TRANSACTIONS. THUS, ACCORDING TO US, IT IS NOT A CASE OF NO ENQUIRY CARRIED OUT BY THE AO DURING THE ASSESSMENT PROCEEDINGS. IT HAS TO BE KEPT IN MIND THAT THE AO HAS DUAL ROLE WHILE FRAMING THE ASSESSM ENT ORDER. HE HAS TO BE AN INVESTIGATOR AS WELL AS AN ADJUDICATOR. IN CASE, IF THE AO FAIL S IN ANY OF THESE ROLES THEN THE ORDER OF THE AO WOULD BE VITIATED AND WILL BE HELD TO BE ERRONEO US. THE HONBLE SUPREME COURT IN MALABAR INDUSTRIAL CO. LTD. VS. CIT (2000) 243 ITR 83 (SC) HAS HELD THE TWIN CONDITIONS 7 ITA NO. 1142/KOL/2019 SUSHIL KUMAR BARDIA, AY- 2014- 15 SHOULD BE SATISFIED BEFORE THE REVISIONAL JURISDICT ION U/S. 263 IS INVOKED BY THE LD. CIT I.E. THE AOS ORDER SHOULD BE ERRONEOUS AS WELL AS PREJU DICIAL TO THE INTEREST OF THE REVENUE WHICH CONDITION PRECEDENTS SHOULD BE SATISFIED, BEF ORE THE PR CIT USURP THE REVISIONARY JURISDICTION UNDER SECTION 263 OF THE ACT. THUS, WE NOTE THAT FROM THE FACTS DISCUSSED ABOVE THAT THIS IS NOT A CASE WHERE THE AO HAS NOT CARRIE D OUT ENQUIRY IN RESPECT OF THE SUNDRY CREDITORS. WE NOTE THAT DURING THE 263 PROCEEDINGS THE ASSESSEE HAD BROUGHT TO THE NOTICE OF THE LD. PR. CIT THAT ASSESSEE HAD COMPLIED WITH THE NOTICE ISSUED U/S. 142(1) AND PRODUCED ALL THE DOCUMENTS BEFORE THE AO FOR VERIFICATION AN D THE AO HAD VERIFIED THE RETURN OF INCOME FILED ALONG WITH THE P&L ACCOUNT, BALANCE S HEET, TAR, BANK STATEMENT ETC. AND THEREAFTER AFTER GOING THROUGH THE ENTIRE DETAILS I N RESPECT OF THE SUNDRY CREDITORS HAD EXAMINED AND ENQUIRED THE SAME BY ISSUING 133(6) N OTICE ON TEST CHECK BASIS HAS FRAMED THE ASSESSMENT ORDER WITHOUT ANY ADVERSE VIEW IN RE SPECT OF THE SUNDRY CREDITORS. IN SUCH A SCENARIO, THE AOS ACTION CANNOT BE TERMED AS A CAS E OF NON ENQUIRY. SO, WHEN THE LD. PR. CIT HIMSELF HAS MADE A FINDING OF FACT THAT OUT OF SUNDRY CREDITORS OF RS.2,11,05,222/- THE AO HAS NOT VERIFIED THE SUNDRY CREDITORS TO THE TUN E OF RS.96,46,987/- MEANS AO HAD VERIFIED ABOUT SUNDRY CREDITORS TO THE TUNE OF RS.1 ,14,58,235/-. THE SCRUTINY UNDER CASS WAS UNDERTAKEN AFTER NOTICING HUGE SUNDRY CREDITORS , SO AO CALLED FOR THE DETAILS WHICH ASSESSEE FURNISHED AND AO HAS ENQUIRED ON A TEST CH ECK BASIS THE VERACITY OF SUNDRY CREDITOR. SO, IF LD. PR. CIT WAS NOT SATISFIED WITH THE ENQUIRY CONDUCTED BY THE AO, THEN IT WAS DUTY BOUND UPON HIM TO HAVE ENQUIRED HIMSELF AB OUT THE VERACITY OF THE SUNDRY CREDITORS WHEN THE ENTIRE LIST AS WELL AS THE COMPL ETE ADDRESS AS WELL AS THE PAN OF THE SUNDRY CREDITORS WERE BEFORE HIM. MOREOVER, IT WAS BROUGHT TO OUR NOTICE THAT THE LD. PR. CIT HAS NEVER CONFRONTED THE ASSESSEE DURING THE RE VISIONAL PROCEEDINGS TO PRODUCE ANY PROOF REGARDING SUNDRY CREDITORS TO THE TUNE OF RS. 96,46,987/-. AT THE COST OF REPETITION WE NOTE THAT SINCE THE ASSESSEE HAD COMPLIED WITH THE QUERIES ON THE ISSUE AND FILED DETAILS OF SUNDRY CREDITORS AND THE AO HAS MADE ENQUIRIES IN R ESPECT OF THE SUNDRY CREDITORS THEN IN SUCH A SCENARIO, THE LD PR CIT IN ORDER TO FIND THA T THERE IS ANY FAULT/DEFICIENCY IN THE ENQUIRY CONDUCTED BY THE AO WHILE FRAMING ASSESSMENT ORDER, THEN IT WAS INCUMBENT UPON THE LD. PR. CIT TO HAVE CONDUCTED AN ENQUIRY BY HIMSELF ON THE ISSUE AND RECORD HIS FINDING OF FACT THAT COULD SHOW THAT AO ORDER IS UN-SUSTAINABLE IN LAW, WHICH HE DID NOT DO. SO, THE AOS ACTION/ENQUIRY IN RESPECT OF THE SUNDRY CREDITORS C ANNOT BE HELD TO BE ERRONEOUS AS WELL AS 8 ITA NO. 1142/KOL/2019 SUSHIL KUMAR BARDIA, AY- 2014- 15 PREJUDICIAL TO THE INTEREST OF THE REVENUE. FOR TH AT WE RELY ON THE ORDER OF THE HONBLE DELHI HIGH COURT IN THE CASE OF PR. CIT VS. DELHI AIRPORT METRO PVT. LTD. (SUPRA) AND, THEREFORE, RESPECTFULLY FOLLOWING THE RATIO OF THE HONBLE DE LHI HIGH COURT AND IN VIEW OF THE ENQUIRY MADE BY THE AO THE ORDER PASSED BY THE LD. PR. CIT U/S. 263 OF THE ACT CANNOT BE SUSTAINED AND QUASHED FOR WANT OF JURISDICTION. 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 22ND NOVEM BER, 2019 SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :22ND NOVEMBER, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI SUSHIL KUMAR BARDIA, 20, N. S. ROAD, KOLKATA-700 001. 2 RESPONDENT PR. CIT, KOL-12 , KOLKATA. 3. 4. ITO, WARD-36(2), KOLKATA. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR