M/s. Akanksha Organisers Pvt. Ltd., Surat V. The CIT-I, Surat

ITA 1149/AHD/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85615 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 12-12-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 17-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T P KRISHNA KUMAR
• Keywords: Business income; Principle of natural justice; Deemed dividend; Competent authority; Assessment record
• Section: 143(3); 142(1); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL CHATURVEDI , A.M.) I. T. A. NO. 1149/AHD/2014 (A SSESSMENT YEAR: 2009 - 10 ) M/S. AKANKSHA ORGANISERS PVT. LTD., OFFICE 25, ASCON CITY, CITY LIGHT ROAD, SURAT, GUJARAT 395007 V/S COMMISSIONER OF INCOME TA X - 1, SURAT (APPELLANT) (RESPONDENT) PAN: AABCA 9583E APPELLANT BY : SHRI RAJ ESH SHAH, A.R. RESPONDENT BY : SHRI T.P. KRISHNAKUMAR CIT/D.R ( )/ ORDER DATE OF HEARING : 12 - 12 - 2014 DATE OF PRONOUNCEMENT : 23 - 01 - 2015 PER SHRI ANIL CHATURVEDI,A.M. 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT DATED 26.03.2014 FOR A.Y. 2009 - 10. 2. THE FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS A COMP ANY STATED TO BE ENGAGED IN THE BUSINESS OF CONSTRUCTION WORK. ASSESSEE ELECTRONICALLY FILED ITS RETURN OF INCOME FOR A.Y. 09 - 10 ON 10.09.2009 DECLARING TOTAL INCOME OF RS. 8,750/ - . THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAME D ON 27.12.2011 UNDER SECTION ITA NO 1149/AHD/2013 . A.Y. 2009 - 10 2 143 (3) OF THE ACT AND THE TOTAL INCOME WAS ALSO DETERMINED AT RS 8,750/ - BEING THE RETURNED INCOME . SUBSEQUENTLY, ON VERIFICATION O F THE ASSESSMENT RECORDS, LD. CIT NOTICED THAT THE CASE WAS HANDLED BY THE A.O WITHOUT VERIFY ING THE REQUIRED DETAILS AND CONDUCT ING THE NECESSARY ENQUIRIES. HE ALSO NOTICED THAT AS PER AIR INFORMATION , SALE OF IMMOVABLE PROPERTY VALUED AT RS. 21.99 CRORES HAS BEEN MADE BY ASSESSEE BUT NO INCOME ARISING FROM ITS SALE HAS BEEN SHOWN BY THE ASSESSE E E VEN THOUGH THE ASSESSEE WAS INVOLVED IN CONSTRUCTION ACTIVITIES AND FURTHER AS PER AIR, ASSESSEE HAD EARNED INCOME FROM SALE OF FLAT S . LD. CIT ALSO NOTICED THAT ASSESSEE HAD NOT PREPARED ANY PROFIT AND LOSS ACCOUNT AND WHEN MATTER WAS CONFRONTED TO THE ASSESSEE BY LD. CIT , IT WAS STATED THAT ASSESSEE COMPANY HAS BOOKED SHARE OF ALL THE FLATS TO ONE M/S. GLOBAL ENTERPRISE FOR THE REASON T HAT COMPANY WAS NOT HAVING FUNDS AND INFRASTRUCTURE FACILITY AND HENCE WAS NOT IN A POSITION TO TAKE BUSINESS RISK AND ALSO NOT IN A POSITION TO COMMENCE CONSTRUCTION ACTIVITY. IT WAS FURTHER SUBMITTED THAT ASSESSEE HAS BOOKED ALL THE FLATS TO GLOBAL ENTE RPRISE AT COST AND IN CASE ANY PROFIT AND LOSS A CCOUNT IS SEPARATELY PREPARED THEN THE POSITION WOULD REMAIN SAME SINCE GLOBAL ENTERPRISE HAS SHOWN THE PROFIT FROM THE PROJECT IN ITS BOOKS OF ACCOUNTS AND ALSO OFFERED IT TO TAX . LD. CIT NOTED THAT A.O HAS ACCEPTED THE EXPLANATION OF THE ASSESSEE WITHOUT ANY APPLICATION OF MIND WITH RESPECT TO THE PROFITS ARISING IN THE HAND S OF THE ASSESSEE. LD. CIT THEREAFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE AND FOR THE DETAILED REASON S GIVEN IN PARA 7 TO 7.8 O F HIS ORDER (ON PAGE 11 TO 16) CONCLUDED THAT THE ASSESSMENT ORDER FRAMED BY THE A.O U/S. 143(3) VIDE ORDER DATED 27.12.2 011 WAS NOT ONLY ERRONEOUS BUT WAS ALSO PREJUDICIAL TO THE INTEREST OF REVENUE. HE THEREFORE VIDE ORDER DATED 26.03.2014 , SET ASIDE THE ASSESSMENT ORDER DATED 27.12.2011 PASSED U/S. 143(3) AND DIRECTED THE A.O TO FRAME THE ASSESSMENT ORDER DE NOVO. AGGRIEV ED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS: - . 1. THE HON'BLE CIT - 1, HAS ERRED IN PASSING ORDER U/S 263 OF THE ACT AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. ITA NO 1149/AHD/2013 . A.Y. 2009 - 10 3 2. THE HON'BLE CIT - 1, HAS ERR ED IN PASSING ORDER U/S 263 OF THE ACT IN ABSENCE OF ANY FINDING THAT THERE IS LOSS OF REVENUE AND ALSO ADMITTED IN ORDER THAT THE OBJECTION IS REVENUE NEUTRAL EVEN THOUGH PASSED ORDER THAT ASSESSMENT U/S 143(3) OF THE ACT IS AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. 4. BEFORE US, LD. A.R. REITERATED TH E SUBMISSIONS MADE BEFORE LD. CIT AND FURTHER SUBMITTED THAT IN THE PRESENT CASE, THE PRE - REQUISITE CONDITIONS SPECIFIED U/S 263 ARE NOT SATISFIED. HE SUBMITTED THAT DURING THE COURSE OF ASSESSM ENT PROCEE DINGS, A.O HAD RAISED THE QUERY, T HE QUERY WAS REPLIED BY THE ASSESSEE AND ON BEING SATISFIED BY THE REPLY OF THE ASSESSEE. A.O HAD PASSED THE ASSESSMENT ORDER U/S. 143(3). HE FURTHER SUBMITTED THAT LD. CIT HAS NOT POINTED OUT ANY LOSS OF REVENUE. HE FURTHER SUBMITTED THAT ASSESSEE HAD EXPLAINED THE EFFECT OF THE TRANSACTION TO BE REVENUE NEUTRAL. HE ALSO POINTED TO THE VARIOUS REPLIES GIVEN BY THE ASSESSEE TO A.O IN SUPPORT OF HIS CONTENTION THAT THE NECESSARY ENQUIRIES WERE MADE BY THE A.O AND TH E SAME WERE REPLIED AND ON BEING SATISFIED WITH THE REPLY RECEIVED FROM ASSESSEE, THE ASSESSMENT WAS FRAMED. HE FURTHER PLACED RELIANCE ON THE DECISION IN THE CASE OF CIT VS. MAX INDIA LTD . (2007) 295 ITR 282 (SC), MALAB AR INDUSTRIES COMPANY LTD. VS. CIT ( 2000) 243 ITR 83 (SC). HE ALSO RELIED ON THE DECISION IN THE CASE OF CIT VS. GLAXO SMITHKLINE ASIA PVT. LTD. (2010) 236 CTR 113 (SC). 5. THE LD. D.R. ON THE OTHER HAND SUBMITTED THAT THE LD. CIT HAS BY A VERY DETAILED AND REASONED ORDER HAS RIGHTLY HELD THA T THE ORDER PASSED BY THE A.O WAS WITHOUT APPLICATION OF MIND AND WAS THEREFORE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. HE FURTHER SUBMITTED THAT THE PRESENT CASE WAS LACK OF ENQUIRY AND THEREFORE LD. CIT HAS RIGHTLY INVOKED THE PROVISIONS OF SECTION 263 OF THE ACT . HE ALSO PLACED RELIANCE ON THE DECISION OF KARNAT A KA HIGH COURT IN THE CASE OF CIT VS. INFOSYS TECHNOLOGY LTD. (2012) 341 293 (KARNATAKA). HE TH US SUPPORTED THE ORDER OF LD. CIT . ITA NO 1149/AHD/2013 . A.Y. 2009 - 10 4 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS ABOUT THE INVOKING OF THE PROVISIONS OF SECTION 263 BY THE LD. CIT. 7. S. 263(1) OF THE ACT, THE POWERS UNDER WHICH LD. CIT HAS ASSUMED POWER FOR REVISION READS AS UNDER: THE COMMISSIONER MAY CALL FOR A ND EXAMINE THE RECORD OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE ITO IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, HE MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEAR D AND AFTER MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLING THE ASSESSMENT AND DIRECTING A FRESH ASSE SSMENT. 8. THE READING OF THE ABOVE PROVISIONS MAKES IT VERY CLEAR THAT THE POWER OF SUO MOTU REVISION U/S 263(1) IS IN THE NATURE OF SUPERVISORY JURISDICTION AND THE SAME CAN BE EXERCISED ONLY IF THE CIRCUMSTANCES SPECIFIED THEREIN EXIST. TWO CIRCUMSTANCES MUST EXIST TO ENABLE THE COMMISSIONER TO EXERCISE POWER OF REVISION U/S 263, NAMELY (I) THE ORDER IS ERRONEOUS AND (II) BY VIRTUE OF BEING ERRONEOUS PREJUDICE HAS BEEN CAUSED TO THE INTERESTS OF THE REVENUE. 9. THE HON BLE APEX COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS. CIT (2000) 243 ITR 83 (SC) EXPLAINING THE PROVISIONS OF SECTION 263 HAS OBSERVED AS UNDER: - A BARE READING OF SECTION 263 OF THE I.T. ACT, 1961, MAKES IT CLEAR THAT THE PRE - REQUISITE FOR THE EXERCISE OF JURISDICTION BY THE CIT SUO MOTU UNDER IT, IS THAT THE ORDER OF THE ITO IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE CIT HAS TO BE SATISFIED OF TWIN CONDITIONS, NAMELY (I) THE ORDER OF THE AO SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS PREJUDI CED TO THE INTERESTS OF THE REVENUE. IF ONE OF THEM IS ABSENT - IF THE ORDER OF THE ITO IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IS PREJUDICIAL TO THE REVENUE - RECOURSE CANNOT BE LEAD TO SECTION 263(1) OF THE ACT. T HE PROVISION CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE A.O., IT IS ONLY WHEN AN ORDER IS ERRONEOUS, THAT THE SECTION WILL BE ATTRACTED. AN INCORRECT ASSUMPTION OF FACTS OR AN INCORRECT APPLICATION OF LAW WILL SA TISFY THE REQUIREMENT OF THE ORDER BEING ERRONEOUS. IN THE SAME CATEGORY FALL ORDERS PASSED WITHOUT APPLYING THE PRINCIPLES OF NATURAL JUSTICE OR WITHOUT APPLICATION OF MIND. THE PHRASE PREJUDICIAL TO THE INTEREST OF REVENUE IS NOT AN EXPRESSION OF ART AND IS NOT DEFINED IN THE ACT. UNDERSTOOD IN ITS ORDINARY MEANING IT IS OF WIDE IMPORT AND IS NOT CONFIRMED TO LOSS OF TAX .. ITA NO 1149/AHD/2013 . A.Y. 2009 - 10 5 10. IN THIS CONNECTION WE WOULD LIKE TO REFER TO THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF GEE VEE ENTERPRISES VS. ADDL CIT & ORS.(1975) 99 ITR 375 (DEL) WHERE THE H ON BLE HIGH COURT HAS OBSERVED AS UNDER: 'THE ITO IS NOT ONLY AN ADJUDICATOR BUT ALSO AN INVESTIGATOR. HE CANNOT REMAIN PASSIVE IN THE FACE OF A RETURN WHICH IS APPARENTLY IN ORDER BUT CALLS FOR FURTHER IN QUIRY. IT IS HIS DUTY TO ASCERTAIN THE TRUTH OF THE FACTS STATED IN THE RETURN WHEN THE CIRCUMSTANCES OF THE CASE ARE SUCH AS TO PROVOKE AN INQUIRY. THE MEANING TO BE GIVEN TO THE WORD 'ERRONEOUS' IN S. 263 EMERGES OUT OF THIS CONTEXT. IT IS BECAUSE IT IS INCUMBENT ON THE ITO TO FURTHER INVESTIGATE THE FACTS STATED IN THE RETURN WHEN CIRCUMSTANCES WOULD MAKE SUCH AN INQUIRY PRUDENT THAT THE WORD 'ERRONEOUS' IN S. 263 INCLUDES THE FAILURE TO MAKE SUCH AN INQUIRY. THE ORDER BECOMES ERRONEOUS BECAUSE SUCH AN I NQUIRY HAS NOT BEEN MADE AND NOT BECAUSE THERE IS ANYTHING WRONG WITH THE ORDER IF ALL THE FACTS STATED THEREIN ARE ASSUMED TO BE CORRECT' 11. H ON BLE HIGH COURT AFTER REFERRING TO THE DECISIONS OF SUPREME COURT IN THE CASE OF RAMPYARI DEVI SAROGI VS CIT (196 8) 67 ITR 84 (SC) AND TARA DEVI AGGARWAL VS CIT (1973) 88 ITR 323 ( SC) HAS FURTHER NOTED THAT THE C OMMISSIONER CAN REGARD THE ORDER ERRONEOUS ON THE GROUND THAT IN THE CIRCUMSTANCES OF THE CASE, THE ITO SHOULD HAVE MADE FURTHER INQUIRIES BEFORE ACCEPTING T HE STATEMENTS MADE BY THE ASSESSEE IN HIS RETURN. 12. IN THE CASE OF K.A. RAMASWAMY CHETTIAR & ANR. VS. CIT (1996) 220 ITR 657 (MAD) THE H ON BLE HIGH COURT AFTER RELYING ON THE DECISIONS IN THE CASE OF GEE VEE ENTERPRISES VS. ADDL. CIT (1975) 99 ITR 375 (DEL), SMT. TARA DEVI AGGARWAL VS. CIT (1973) 88 ITR 323 (SC) AND ADDL. CIT VS. MUKU R CORPORATION (1978) 111 ITR 312 (GUJ) HAS HELD THAT WHEN THE ITO IS EXPECTED TO MAKE AN ENQUIRY OF A PARTICULAR ITEM OF INCOME AND HE DOES NOT MAKE AN ENQUIRY AS EXPECTED, THAT WOULD BE A GROUND FOR THE CIT TO INTERFERE WITH THE ORDER PASSED BY THE ITO S INCE SUCH AN ORDER PASSED BY THE ITO IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. 13. IN THE CASE OF MEERUT ROLLER FLOUR MILLS LTD .V S . CIT [2013] 35 TAXMANN.COM 183 (ALL), THE H ON BLE HIGH COURT HAS HELD THAT THE COMMISSIONER MAY CONSIDER AN ORD ER OF THE AO TO BE ERRONEOUS NOT ONLY IF IT CONTAINS SOME APPARENT ERROR OF REASON OR LAW OR FACT ON THE FACE OF IT BUT ALSO BECAUSE IT IS STEROTYPE ORDER WHICH SIMPLY ACCEPTS WHAT THE ASSESSEE HAS STATED IN HIS REPORT AND FAILS TO MAKE INQUIRY WHICH ARE CALLED FOR IN THE CIRCUMSTANCES OF THE CASE. ITA NO 1149/AHD/2013 . A.Y. 2009 - 10 6 14. IN THE PRESENT CASE, BEFORE US IT IS LD. A.R. SUBMISSION THAT A.O HAD MADE ENQUIRIES DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AND THEREAFTER ON BEING SATISFIED WITH THE SUBMISSIONS OF THE ASSESSEE AND AFTER DUE APPLICATION OF MIND , HAD DECIDED THE ISSUE AND THEREFORE THE REVISIONARY PROCEEDINGS U/S. 263 CANNOT BE INITIATED IN THE PRESENT CASE. IN THE CONTEXT OF THE AFORESAID SUBMISSION OF ASSESSEE IT WOULD BE RELEVANT TO SEE THE RELEVANT QUERY RAISED BY THE A.O VIDE LETTER DATED 06 .09.2011( WHICH IS PLACED AT PAGE 14 OF THE PAPER BOOK) READS AS UNDER: - 4 IT IS SEEN FROM THE I.T RECORDS THAT YOU HAVE DURING THE FINANCIAL YEAR UNDER REFERENCE ENTERED INTO TRANSACTION OF SELLING IMMOVABLE PROPERTY AND EARNED CAPITAL GAIN OUT THE ABOVE TRANSACTION. ON VERIFICATION OF THE COMPUTATION OF INCOME FILED ALONG WITH THE RETURN FOR THE ABOVE ASSESSMENT YEAR, YOU HAVE NOT SHOWN ANY INCOME FROM CAPITAL GAIN OR OTHERWISE. YOU ARE, THEREFORE, REQUESTED TO FURNISH THE FOLL OWING: - 1) COPY OF REGISTERED DEED EXECUTED TO EFFECT THE SALE OF IMMOVABLE PROPERTY DURING THE PERIOD UNDER REFERENCE. 2) DETAILS OF PAYMENT INCLUDING BANK BOOK, BANK PASS BOOK 3) DETAILS OF ACQUISITION OF SAID PROPERTY ALONG WITH THE COPY OF REGISTERED PURCHASE DEED AND ITS PAYMENT DETAILS ETC. 15. IN REPLY TO THE QUERY OF THE A.O ASSESSEE VIDE LETTER DATED 14 TH SEPTEMBER 2011 , ( THE CO PY OF WHICH IS PLACE D AT PAGE 182 OF THE PAPER BOOK ) REPLIED AS UNDER: - IN THE SAID LETTER YOUR HONOUR HAS STATED THAT IT IS SEEN F ROM I.T. RECORDS, ASSESSEE COMPANY HAD DURING THE FINANCIAL YEAR UNDER REFERENCE ENTERED INTO TRANSACTION OF SELLING IMMOVABLE PROPERTY AND EARNED CAPITAL GAIN. IN THIS MATTER WE WOULD LIKE TO STATE THAT YOUR HONOUR HAS NOT GIVEN ANY DETAILS OF IMMOVABLE P ROPERTY SOLD DURING THE FINANCIAL YEAR. YOUR HONOUR HAS NOT MENTIONED THE DESCRIPTION OF PROPERTY, PARTY TO THE SALES, SALES CONSIDERATION ETC. YOUR HONOUR HAS FURTHER STATED THAT THE ASSESSEE EARNED CAPITAL GAIN BUT IT IS NOT DISCLOSED IN THE COMPUTATION OF TOTAL INCOME. THIS IS NOT CORRECT. IT IS WORTHWHILE TO MENTION HERE THAT IF THE PROPERTY IS PURCHASED AND HELD FOR THE PURPOSE OF BUSINESS OF SALE AND PURCHASE OF PROPERTY AND TREATED AS STOCK OR CURRENT ASSETS IN THE BOOKS THAN PROFIT OR LOSS FROM TRAN SFER OF SUCH PROPERTY, IF ANY, IS ASSESSED AS BUSINESS INCOME OR LOSS AND NOT AS INCOME FROM CAPITAL GAIN. IN THE CASE OF ASSESSEE THE ASSESSEE HAS NEITHER EARNED ANY BUSINESS INCOME NOR INCURRED ANY BUSINESS LOSS FOR THE YEAR UNDER CONSIDERATION FOR THE R EASON ALREADY STATED IN OUR EARLIER SUBMISSION. SINCE, NO DETAILS IN RESPECT OF INFORMATION AVAILABLE ON YOUR RECORD IS AVAILABLE WITH US, DIRECTORS OF THE ASSESSEE COMPANY HAS VERIFIED THE BOOKS OF ACCOUNT AND OTHER DOCUMENTS OF THE COMPANY AND ARE SUBMIT TING AS UNDER: ONE PROJECT NAMELY SURYA PALACE IS CONSTRUCTED ON LAND SITUATED IN CITY LIGHT AREA OF SURAT. THE LAND FOR THE SAID PROJECT WAS PURCHASED BY EIGHT DIFFERENT COMPANIES (EACH COMPANY PURCHASED SOME PORTION OF SAID LAND SEVERALLY). ALL THE EIGHT COMPANIES WERE NOT HAVING ANY FUND OR INFRASTRUCTURE FACILITY HENCE ENTERED INTO AN AGREEMENT WITH GLOBAL ENTERPRISES AND COPY OF SAID AGREEMENT IS ALREADY SUBMITTED WITH EARLIER SUBMISSION. THE PROPERTY IN THE NAME OF SURYA PALACE WAS CONSTRUCTED ON SAID LAND AND SOLD/BOOKED BY GLOBAL ENTERPRISES. THE SALE DEED IS EXECUTED IN FAVOUR OF PURCHASERS (FLAT/S IN SURYA PALACE) BY ALL THE EIGHT COMPANIES ALONG WITH GLOBAL ENTERPRISES. AS PER AGREEM ENT BETWEEN EIGHT COMPANIES AND GLOBAL ENTERPRISES THE ENTIRE AMO UNT IS COLLECTED BY THE GLOBAL ENTERPRISES FROM THE ITA NO 1149/AHD/2013 . A.Y. 2009 - 10 7 PURCHASERS AND RESPECTIVE AGREED AMOUNT IS PAID TO ALL THE EIGHT COMPANIES FROM TIME TO TIME. THE CONSIDERATION RECEIVED BY GLOBAL ENTERPRISES IS SHOWN UNDER SALE AND PAYMENTS MADE TO EIGHT COMPANIES ARE SHOWN AS EXPENSES. WE HAVE ALREADY SUBMITTED WITH EARLIER SUBMISSION, THE COPY OF AUDIT REPORT OF GLOBAL ENTERPRISES FOR ASST. YEAR 2008 - 09 & 2009 - 10 ALONG WITH ASSESSMENT ORDER FOR 2008 - 09 ASST. YEAR MADE U/S 143(3) OF THE ACT BY CENTRAL CIRCLE - 1, SURAT U NDER SEARCH ASSESSMENT. THE ASSESSEE COMPANY HAS RECEIVED THE AMOUNT FROM GLOBAL ENTERPRISES IS SHOWN IN THE BOOKS OF ACCOUNTS AND ADJUSTED AGAINST COST OF LAND AND CONSTRUCTION. THE FLATS OF THE PROJECT SURYA PALACE WERE SOLD UP TO F.Y. 2007 - 08 I.E. 2008 - 09 ASST. YEAR, THE ASSESSEE COMPANY HAS EXECUTED THE FOLLOWING DOCUMENTS IN FAVOUR OF PURCHASER ALONG WITH OTHER SEVEN LAND COMPANIES AND GLOBAL ENTERPRISES. 16. THUS FROM THE QUERY OF THE A.O AND REPLY OF ASSESSEE IT CAN BE SEEN THAT NO CLEAR REPLY TO THE QUERY RAISED BY A.O HAS BEEN GIVEN BY ASSESSEE . AT THIS MOMENT, IT WOULD BE ALSO RELEVANT TO CONSIDER THE FINDINGS OF LD. CI T WHICH READS AS UNDER: - DECISION: THE ASSESSEE M/S. AKANKSHA ORGANIZERS PVT. LTD. (HEREINAFTER REFERRED TO AS M/S AKANKSHA) IS A CO MPANY. M/S. GLOBAL ENTERPRISES (HEREINAFTER REFERRED TO AS M/S GLOBAL) IS A PARTNERSHIP FIRM. M/S, AKANKSHA AND M/S. GLOBAL ARE TWO SEPARATE DISTINCT PERSONS UNDER THE ACT. EACH IS OBLIGED TO DECLARE ITS INCOME CORRECTLY AND PAY ITS SHARE OF THE TAXES ON I TS INCOME. IN CASE THE INCOME IS NOT CORRECTLY DECLARED, THE A.O. IS REQUIRED TO DETERMINE THE CORRECT INCOME OF EACH SEPARATELY, ESPECIALLY WHEN THE TRANSACTION BETWEEN THEM IS SO ARRANGED AS TO TRANSFER PROFITS OF ONE TO THE OTHER. 7.2 M/S. AKANKSHA WAS THE OWNER OF LAND. THE LAND WAS HELD FOR BUSINESS PURPOSES. M/S. AKANKSHA ALONG WITH 7 OTHER PERSONS (ALL CORPORATE ENTITIES) OBTAINED NECESSARY PERMISSIONS TO DEVELOP A RESI DENTIAL PROJECT JOINTLY ON THE L ANDS OWNED BY THEM, SUBSEQUENTLY, THESE 8 PERSONS ENTERED INTO AN AGREEMENT WITH M/S. GLOBAL ACCORDING TO WHICH M/S. GLOBAL WOULD PROVIDE THE FUNDS AND INFRASTRUCTURE FOR THE PROJECT IN LIEU OF WHICH THE PURCHASABLE RIGHTS IN THE PROJECT WILL BE TRANSFERRED TO M/S. GLOBAL AT 'COST' BY ALL THE OWNERS OF LA ND. THE REASON FORWARDED FOR THIS IS THAT THE ENTITIES OWNING THE LAND WITH PERMISSION FOR DEVELOPMENT COULD NOT CARRY OUT THE PROJECT AS THEY NAD NO FUNDS/INFRASTRUCTURE. 7.3.1 IT WAS ARGUED THAT IT IS UNDER THIS AGREEMENT THAT THE CONSTRUCTED FLATS AND A LL RIGHTS HAVE BEEN TRANSFERRED TO M/S. GLOBAL INCLUDING THE LAND HELD BY M/S. AKANKSHA, AND THE ENTIRE PROFITS FROM THE PROJECT HAVE BEEN OFFERED AND ASSESSED IN THE HANDS OF M/S, GLOBAL AFTER DEDUCTION OF ALL EXPENSES INCLUDING LAND (AT HISTORICAL COST T O M/S. AKANKSHA) AND HENCE THE ORDER MADE UNDER SECTION 143(3) IN THE CASE OF M/S. AKANKSHA IS NOT ERRONEOUS. 7.3.2 IT WAS FURTHER ARGUED THAT THERE IS NO LEAKAGE OF REVENUE AS EVEN IF THE PROFIT FROM THE PROJECT WERE TO BE ASSESSED SEPARATELY - ON LAND IN THE HANDS OF M/S. AKANKSHA AND FROM THE DEVELOPMENT ACTIVITY IN THE HANDS OF M/S. GLOBAL - THE TOTAL PROFITS AND CONSEQUENTLY TAXES WOULD REMAIN SAME AND HENCE THE ORDER SOUGHT TO BE REVISED IS NOT PREJUDICIAL TO THE INTEREST OF REVENUE THERE BEING NO LEAK AGE OF TAX. IT WAS FURTHER SUBMITTED THAT THE ORDER NEEDS TO BE BOTH ERRONEOUS AND PREJUDICIAL TO THE REVENUE TO INVOKE THE JURISDICTION U/S. 263, WHICH NOT BEING THE CASE, THE ACTION U/S. 263 IS BAD IN LAW. 7.4 HOWEVER THE AGREEMENT DATED 04 - 01 - 2006 ON TH E BASIS OF WHICH THE PURCHASABLE RIGHTS IN THE PROJECT WERE TRANSFERRED BY M/S. AKANKSHA TO M/S. GLOBAL AT 'COST' ONLY REQUIRES M/S. GLOBAL TO MAKE AVAILABLE FUNDS AND PROVIDE INFRASTRUCTURE FOR THE PROJECT AND IT MENTIONS M/S. AKANKSHA AS THE LAND OWNER A ND PERSON RESPONSIBLE FOR CARRYING OUT THE DEVELOPMENT OF THE PROJECT. RELEVANT CLAUSES OF THE AGREEMEN T ARE REPRODUCED BELOW - 'NOW THEREFORE THIS INDENTURE WITNESSTH THAT: A. THE SAID LAND SHALL CONTINUE TO BE OWNED BY PARTY OF THE FIRST PART TO THE EXTENT A ND IN THE PROPORTION OF THEIR RESPECTIVE OWNERSHIP AS STIPULATED IN THE SALE DEED REGISTERED IN FAVOUR OF EACH OF THE COMPANY OF THE FIRST PART AND RESPECTIVE RIGHTS OF OWNERSHIP OF EACH COMPANY OF THE FIRST PART SHALL NOT BE AFFECTED OR CHANGED BY VIRTUE OF THESE PRESENTS. ITA NO 1149/AHD/2013 . A.Y. 2009 - 10 8 D. EACH COMPANY OF THE FIRST PART SHALL BE ENTITLED TO AND LIABLE FOR ITS SHARE IN THE RESIDENTIAL COMPLEX JOINTLY CARRIED OUT BY THEM ON THE SAID LAND. E. EACH COMPANY SHALL BE LIABLE ONLY FOR PROPORTIONATE COST OF THE PROJECT IN SUCH PROPORTION OF LAND AS RESPECTIVELY OWNED BY EACH OF THEM. G. COMPANIES OF THE FIRST PART SHALL APPOINT ARCHITECTS, CONSULTANTS, SUPERVISORS, ADVOCATES, TO PREPARE WORKING PLANS, DESIGNS SPECIFICATIONS, SCHEDULE OF WORK AND LEGAL DOCUMENTS FOR THE PURPOSE OF CARRYING OUT DEVELOPMENT WORK AND TO EXECUTE SALE DEEDS IN FAVOUR OF ULTIMATE BUYERS OF FLATS. ALL RESPONSIBILITIES OF PROJECT SHALL BE JOINT AND COLLECTIVE FOR PARTY OF THE FIRST PART AND PARTY OF SECOND PART SHALL NOT BE LIABLE OR ANSWERABLE FOR THE S AME IN ANY MANNER. H. AS ON DATE OR ANY TIME HEREAFTER, PARTY OF THE SECOND PART SHALL NOT HAVE ANY RIGHT OF OWNERSHIP OR POSSESSION IN THE SAID LAND, OR IN THE RESIDENTIAL FLATS TO BE DEVELOPED ON THE SAID LAND. NO RIGHT OF POSSESSION OR OWNERSHIP IN THE SAID LANDS OR FLATS TO BE DEVELOPED THEREON BY FIRST PARTY IS HEREBY CREATED OR TRANSFERRED OR SO INTENDED IN FAVOUR OF PARTY OF THE SECOND PART BY THESE PRESENTS. I. PARTY OF THE SECOND PART SHALL ARRANGE FOR FUNDS AS MAY BE REQUIRED FROM TIME TO TIME TO MEET WITH ACTUAL EXPENSES AND ACTIVITIES AT THE SITE ON THE SAID LAND AND RENDER FULL ACCOUNTS OF THE SAME TO FIRST PARTY FROM TIME TO TIME. J. THE COMPANIES OF THE FIRST PART IS OWNING PART OF LAND STIPULATED IN THE SCHEDULE STATED HEREUNDER. A RESIDENTI AL COMPLEX WILL BE DEVELOPED BY COMPANIES OF THE FIRST PART JOINTLY AMONGST THEMSELVES IN ACCORDANCE WITH PERMISSION GRANTED BY THE COMPETENT AUTHORITY IN RESPECT OF THE SAID LAND. SINCE THE COMPANIES OF THE FIRST PART ARE NOT IN A POSITION TO UNDERTAKE B USINESS ACTIVITIES ON ITS OWN, AS IT HAS NO FUND AND INFRASTRUCTURE FACILITY, THE FIRST PART HAS ENTERED INTO THIS PRESENT AGREEMENT WITH SECOND PARTY. THE SECOND PARTY SHALL PROVIDE REQUIRED FUND AND INFRASTRUCTURAL FACILITY AND IN TURN THE FIRST PARRY HA S AGREED TO GIVE LIEN OVER THE PROJECT WORK INCLUDING PURCHASABLE RIGHTS TO SECOND PARTY. THE FIRST PARTY SHALL BE ENTITLED ONLY FOR PROPORTIONATE COST OF THE PROJECT.' THE ABOVE LEAVES NO DOUBT ABOUT THE STATUS OF M/S AKANKSHA AND M/S. GLOBAL W.R.T. THE PROJECT BEING DEVELOPED. 7.5 THE PROFITS FROM THE DEVELOPMENT OF A PROJECT WOULD ARISE IN THE HANDS OF THE DEVELOPER/OWNER OF THE PROJECT. THE PERSONS PROVIDING THE FUNDS OR ANY INFRASTRUCTURE WOULD BE ENTITLED TO ONLY BENEFITS FROM DEPLOYMENT OF FUNDS AND FOR PROVIDING INFRASTRUCTURE. THEREFORE IN A NORMAL AGREEMENT OF THE TYPE ENTERED BETWEEN M/S. AKANKSHA AND M/S. GLOBAL, IT WOULD BE M/S. AKANKSHA WHO WOULD BE ENTITLED TO THE PROFITS FROM THE PROJECT BEING THE DEVELOPER & OWNER AND M/S. GLOBAL WOULD BE ENTITLED TO 'INTEREST' ON FUND DEPLOYED AND 'SERVICE CHARGES' FOR ANY INFRASTRUCTURE NEEDS MET BY THEM. AS AGAINST THIS, THE WHOLE PROJECT INCLUDING LAND HAS BEEN TAKEN OVER BY M/S. GLOBAL AT 'COST'. EVEN IF FOR A MINUTE IT IS ASSUMED THAT THE COST OF F UNDS AND INFRASTRUCTURE WAS THE RESULTANT ASSETS, THEN TOO M/S. GLOBAL WAS ENTITLED TO ONLY THE ASSET ARISING OUT OF THE FUNDS/HELP PROVIDED, I.E. THE CONSTRUCTION. M/S. AKANKSHA WAS ALREADY THE OWNER OF LAND AT THE TIME OF AGREEMENT WITH M/S. GLOBAL AND H AD THE REQUIRED PERMISSIONS FOR BUILDING ON THE LAND FROM THE COMPETENT AUTHORITIES AND WAS THEREFORE ENTITLED TO THE PROFIT ON ITS ASSETS (LAND) AND ITS EFFORT (PERMISSIONS), IN THE LEAST. EVEN THESE HAVE BEEN PASSED ON TO M/S. GLOBAL AT 'COST', BY WAY OF A QUESTIONABLE AGREEMENT (DISCUSSED LATER), THEREBY TRANSFERRING PROFITS WHICH WOULD NORMALLY ARISE IN THE HANDS OF M/S. AKANKSHA, AT THE LEAST ON ITS ASSETS (LAND AND ON PERMISSIONS), TO M/S. GLOBAL. IN FACT IT IS THE PROFITS FROM THE DEVELOPMENT OF THE PROJECT LESS INTEREST & SERVICE CHARGES PAYABLE TO M/S. GLOBAL FOR ANY FUNDS/SERVICES PROVIDED THAT HAVE BEEN DIVERTED FROM M/S. AKANKSHA TO M/S. GLOBAL. THEREFORE, THE ORDER MADE IN THE CASE OF M/S. AKANKSHA ORGANIZERS PVT. LTD. U/S. 143(3) DATED 27.12.20 11 FOR A.Y. 2009 - 10 IS ERRONEOUS AS THE PROPORTIONATE PROFITS FROM DEVELOPMENT ACTIVITY HAS REMAINED TO BE ASSESSED IN ITS (CORRECT) HANDS. IT IS TO BE REMEMBERED THAT M/S. AKANKSHA AND M/S. GLOBAL ARE DISTINCT ENTITIES AND INCOME ARISING TO EACH IS TO BE SEPARATELY ASSESSED IN RESPECTIVE HANDS ONLY. TO OFFER THE INCOME ARISING IN THE HANDS OF M/S. AKANKSHA IN THE HANDS OF M/S. GLOBAL MAKES THE ORDER ERRONEOUS EVEN IF THERE IS NO LEAKAGE OF REVENUE OVERALL AS CLAIMED BY THE ASSESSEE. CONTRARY TO THE CLA IMS OF THE ASSESSEE, THE SAID ORDER IS NOT ONLY ERRONEOUS; IT HAS CAUSED GRAVE PREJUDICE TO THE REVENUE. M/S. AKANKSHA IS A COMPANY. M/S. GLOBAL IS A PARTNERSHIP FIRM. BOTH ARE ASSESSED TO TAX @ 30%. THE TOTAL INCOME TO BE ASSESSED TO TAX OR RATHER THE TAX TO BE COLLECTED -- WHETHER FROM M/S. AKANKSHA OR FROM M/S. GLOBAL WOULD IN AGGREGATE BE THE SAME AND THEREFORE THE REVENUE IS NOT PREJUDICED. THE ARGUMENT SEEMS PERFECT TILL ONE LOOKS AT THE REAL PURPOSE OF THE AGREEMENT BETWEEN M/S. AKANKSHA AND M/S. G LOBAL AND THE AFFECT ON OVERALL TAX REVENUE DUE FROM AND TO BE COLLECTED FROM THE ITA NO 1149/AHD/2013 . A.Y. 2009 - 10 9 GROUP. THE MEMBERS OF M/S. AKANKSHA ARE THE PARTNERS IN M/S. GLOBAL OR AT LEAST THE BENEFICIARIES IN BOTH ARE THE SAME GROUP OF PEOPLE. THIS IS CLEAR FROM THE FOLLOWING - ALL THE 8 CORPORATE ENTITIES WHICH ENTERED INTO THE AGREEMENT WITH M/S. GLOBAL INCLUDING THE ASSESSEE, M/S. AKANKSHA, AND WHO HOLD THE LAND, HAD PERMISSIONS AND DEVELOPED THE PROJECT HAVE THEIR ADDRESS AS J - 18, JJ. A/C MARKET, RING ROAD, SURAT - 395002. M/S. G LOBAL ENTERPRISE, THE PARTNERSHIP FIRM HAS ITS ADDRESS AS J - 18, JJ. A/C MARKET, RING ROAD, SURAT - 395002. DIRECTORS OF 6 OF THE CORPORATE ENTITIES ARE MR. JAIPRAKASH KHANCHAND ASWANI AND OF THE REMAINING TWO IS MR. ASHOKKUMAR KHANCHAND ASWANI (BROTHERS). T HE PARTNER OF M/S. GLOBAL ENTERPRISES IS MR. JAIPRAKASH KHANCHAND ASWANI. THE AGREEMENT DATED 04.01.2006 ON BEHALF OF M/S. AKANKSHA AND ALL THE OTHER CO - OWNERS OF THE LAND (ALL CORPORATE ENTITIES) HAS BEEN SIGNED BY THE BROTHERS JAIPRAKASH & ASHOKKUMAR ASW ANI. THE AGREEMENT ON BEHALF OF M/S. GLOBAL HAS BEEN SIGNED BY MR. JAIPRAKASH ASWANI. 7.7 THEREFORE, IF THERE WAS TO BE SAME OVERALL PROFIT AND THERE WAS EQUIVALENCE BETWEEN MEMBERS OF M/S. AKANKSHA AND PARTNERS OF M/S. GLOBAL AND THE FUNDS WAS TO BE BROUG HT IN BY M/S. GLOBAL, THERE WAS NO OSTENSIBLE REASON FOR AN AGREEMENT OF THE NATURE ENTERED INTO BETWEEN M/S. AKANKSHA AND M/S. GLOBAL. THE ONLY REASON FOR SUCH AN ARRANGEMENT IS TO DEFRAUD THE REVENUE OF ITS RIGHTFUL SHARE OF DIVIDEND DISTRIBUTION TAX (DD T) AND/OR TAX ON INCOME OF THE NATURE OF DEEMED DIVIDEND IN THE HANDS OF M/S GLOBAL OR THE MEMBERS OF M/S AKANKSHA. 7.8 M/S. AKANKSHA IS A CORPORATE ENTITY AS ALSO ALL OTHER OWNERS OF THE LAND ON WHICH THE PROJECT IS DEVELOPED. ANY PROFIT FROM THE PROJECT ITSELF OR FROM THE TRANSFER OF THE PROJECT (I.E. LAND WITH PERMISSION) AT MARKET RATES TO M/S. GLOBAL WOULD REQUIRE PAYMENT OF DDT BEFORE IT COULD BE APPROPRIATED BY THE MEMBERS OF M/S. AKANKSHA. IF THE PROFITS WERE TO BE TRANSFERRED AS LOAN OR ADVANCE, I T RESULT IN THE SAME BEING CONSIDERED AS DEEMED DIVIDEND IN THE HANDS OF THE MEMBERS OF M/S. AKANKSHA OR THE FIRM M/S. GLOBAL, AS THE CASE MAYBE. HENCE, THE PROFITS OF M/S. AKANKSHA, A CORPORATE ENTITY WAS TRANSFERRED TO M/S. GLOBAL, A PARTNERSHIP FIRM BY WAY OF A MAKE BELIEVE AGREEMENT BETWEEN M/S. AKANKSHA AND M/S. GLOBAL - RIGHT AND L EFT HAND OF THE SAME GROUP OF PEOPLE. THE ONLY PURPOSE SERVED BY THE AGREEMENT IS TRANSFER OF PROFITS FROM THE MEMBERS OF CORPORATE ENTITY M/S. AKANKSHA TO PARTNERS OF M/S. GLOBAL WITHOUT PAYMENT OF DDT AS PARTNERS CAN WITHDRAW THE INCOME WITHOUT ANY TAX PAYMENT LIABILITY IN THE FORM OF DDT. THEREFORE THE ORDER ACCEPTING THE PROFIT IN THE HANDS OF M/S. GLOBAL ENTERPRISES AND NOT ASSESSING THE PROFITS CORRECTLY IN THE HANDS O F THE ASSESSEE, M/S. AKANKSHA ORGANIZERS PVT. LTD., IS DETRIMENTAL DAMAGING AND INJURIOUS TO THE REVENUE. 7.9 THE ASSESSMENT ORDER MADE U/S. 143(3) DATED 27.12.2011 FOR AY 2009 - 10 IS NOT ONLY ERRONEOUS; IT IS PREJUDICIAL TO THE INTEREST OF REVENUE. THE A SSESSMENT ORDER IS THEREFORE SET - ASIDE TO BE MADE AFRESH DE NOVO. THE A.O. WILL RE - ASSESS THE INCOME OF THE ASSESSEE KEEPING IN CONTEXT THE DISCUSSION ABOVE. IN DOING SO HE WILL ALSO VERIFY THE GENUINENESS OF THE COST OF CONSTRUCTION CLAIMED BY THE ASSESS EE FOR THE 'SURYA PALACE PROJECT' AS THE A.O. HAS NOT APPLIED HIS MIND TO THIS ASPECT WHILE MAKING THE ORIGINAL ASSESSMENT. HE WILL ALSO CONSIDER THE INCOMES DISCLOSED FROM THE 'SURYA PALACE PROJECT' BY M/S. GLOBAL ENTERPRISES, WHETHER IN THEIR RETURNS OF INCOME OR ADDITIONALLY DURING THE COURSE OF SEARCH. NEEDLESS TO SAY THE AO WILL PROVIDE REASONABLE OPPORTUNITY TO THE ASSESSEE BEFORE MAKING THE ASSESSMENT. 8. BEFORE WE PART, IT MAY BE MENTIONED THAT THE A.O. OF M/S. GLOBAL ACCEPTING THE INCOME FROM THE PROJECT IN THE HANDS OF M/S. GLOBAL ENTERPRISES DOES NOT MAKE THE ASSESSMENT ORDER MADE IN THE CASE OF THE ASSESSEE, M/S. AKANKSHA, ANY LESS ERRONEOUS NOR DOES IT LESSEN THE PREJUDICE CAUSED TO THE REVENUE. TO BORROW A PHRASE FROM THE ASSESSEE, THERE IS N O PREJUDICE CAUSED TO THE ASSESSEE GROUP OVERALL IF THE REVENUE GETS ITS DUE SHARE OF TAXES BY ASSESSING THE INCOMES IN CORRECT HANDS ESPECIALLY AS M/S. GLOBAL ENTERPRISE WOULD BE FREE TO SEEK ANY CONSEQUENTIAL RELIEF, IN CASE ANY ARISE, AS A RESULT OF TH E ASSESSMENT FRAMED IN CONSEQUENCE TO THIS ORDER. 17. BEFORE US, ONE OF THE ARGUMENT PUT FORTH BY THE LD. A.R. WAS THAT IT WOULD NOT NECESSARY FOR THE A.O TO NOT E IN THE ASSES SMENT ORDER OF THE QUERIES RAISED BY HIM AND REPLIES THERETO WHICH WERE RECEIVED FR OM THE ASSESSEE. IN THIS ITA NO 1149/AHD/2013 . A.Y. 2009 - 10 10 CONNECTION, IT WOULD BE RELEVANT TO REPRODUCE THE ENTIRE ASSESSMENT ORDER PASSED BY THE A.O U/S. 143(3) ON 27.12.2011 WHICH READS AS UNDER: - 1. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED ON 10/9/2009 THROUGH E - FIL ING VIDE ACK. NO.86756591100909 SHOWING TOTAL INCOME AT RS. 8750/ - . THE RETURN WAS PROCESSED ON 29.10.2010. THE RETURN WAS ACCOMPANIED WITH AUDIT REPORT IN FORM NO. 3 CA & 3CD, P&L ACCOUNT AND BALANCE SHEET. 2. THIS CASE WAS SELECTED UNDER CASS. NOTICE U/S. 143 (2) OF THE I.T. ACT WAS ISSUED ON 24 - 8 - 2010 AND THE SAME WAS SERVED UPON THE ASSESSEE ON 25/08/2010. FURTHER, A NOTICE U/S 142(1) OF THE ACT WAS ISSUED ON 28 - 6 - 2011 ALONG WITH THE QUESTIONNAIRE AND THE SAME WAS SERVED ON THE ASSESSEE. 3. THE ASSESSEE COMPANY DOING CONSTRUCTION WORK. 4. IN RESPONSE TO THE NOTICE MR. RAJESH SHAH, C.A. FROM SURENDRA SHAH & ASSOCIATES ATTENDED AND FURNISHED VARIOUS DETAILS BY ATTENDING THE OFFICE FROM TIME TO TIME AND FURNISHED THE INFORMATION IN CONNECTION WITH THE ASSESSMENT PROCE EDINGS. THE DETAILS FURNISHED ARE VERIFIED AND CASE WAS DISCUSSED WITH HIM. THE BOOKS OF ACCOUNTS ALONG WITH VOUCHERS, BANK STATEMENTS AND OTHER DOCUMENTS WERE CALLED FOR AND EXAMINED ON A TEST CHECK BASIS. 5. BASED ON THE DETAILS FILED AND THE FACTS OF THE C ASE, THE ASSESSEE'S TOTAL INCOME IS ACCEPTED AS PER RETURN OF INCOME: - TOTAL INCOME : RS. 8,750/ - ASSESSED UNDER SECTION 143(3) OF THE I.T. ACT, 1961. FILL IN ITNS 150. ISSUE D.N. ACCORDINGLY. 18. A LOOK AT THE ASSESSMENT ORDER PASSED U/S. 143 (3) FOR THE RELEVANT ASSESSMENT YEAR 2009 - 10 AS REPRODUCED HEREINABOVE WOULD SHOW THAT IT IS A BRIE F DOCUMENT AND CONSISTS OF FIVE PARAGRAPHS IN ALL AND THERE IS NO DISCUSSION ABOUT THE ISSUES POINTED BY LD. CIT. IN VIEW OF THE AFORESAID FACTS WE ARE OF TH E VIEW THAT AO HAD NOT MADE THE INQUIRIES NECESSARY ON THE ISSUES POINTED BY LD. CIT. CONSIDERING THE TOTALITY OF THE FACTS AND THE DECISIONS CITED HEREIN ABOVE WE ARE OF THE VIEW THAT THE A.O WHILE FRAMING THE ASSESSMENT U/S. 143(3) HAS NOT LOOKED INTO TH E POINTS RAISED BY LD. CIT AND THEREFORE LD. CIT HAS RIGHTLY EXERCISED THE POWERS BY INVOKING THE PROVISIONS OF SECTION 263 AND FOR WHICH WE ALSO FIND SUPPORT BY THE DECISION OF HON'BLE HIGH COURT OF HIMACHAL PRADESH IN THE CASE OF CIT VS. ALBORZ INDUSTRIE S REPORTED IN (2011) 56 DTR (HP) 334 : (2011) 198 TAXMAN 419 WHERE THE H ON ' BLE HIGH COURT HAS HELD THAT IT IS TRUE THAT THE AO IS NOT REQUIRED TO PASS A VERY DETAILED ORDER BUT HIS ORDER MUST SHOW THAT HE HAS DEALT WITH VARIOUS ASPECTS OF THE MATTER AND SH OULD NOT BE A GENER AL ORDER. IN VIEW OF THE FOREGOING AND THE VARIOUS DECISIONS CITED HEREINABOVE, WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT AND THUS NO INTERFERENCE IS CALLED IN HIS ORDER . ITA NO 1149/AHD/2013 . A.Y. 2009 - 10 11 20 . IN THE RESULT, THE APPEAL OF ASSESSEE IS DISMISSED. OR DER PRONOUNCED IN OPEN COURT ON 23 - 01 - 201 5 . SD/ - SD/ - (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR. , ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD