N.Gangadhar Bose, Vijayawada V. THE ITO, Vijayawada

ITA 121/VIZ/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1132 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 16-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GOVINDA RAJAN
• Keywords: Rejection of books of accounts; Business income; Assessment record; Revised return; Reassessment proceedings
• Section: 143(3); 147; 148; 263; 63; 154

Judgement Text

ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . , $ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ./I.T.A.NO.121/VIZAG/2016 ( / ASSESSMENT YEAR: 2007-08) N. GANGADHAR BOSE VIJAYAWADA VS. I.T.O., VIJAYAWADA [PAN: ABHPN8149B ] ( % / APPELLANT) ( &'% / RESPONDENT) / APPELLANT BY : SHRI G.V.N. HARI, AR / RESPONDENT BY : SHRI GOVINDA RAJAN, DR / DATE OF HEARING : 04.05.2016 / DATE OF PRONOUNCEMENT : 27.05.2016 / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF CIT, VIJAYAWADA DATED 12.2.2016 U/S 263 OF THE INCO ME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) FOR THE A.Y. 2007 -08. ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 ON 31.7.2007 DECLARING TOTAL INCOME OF RS.93,965/-. THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT ON 17.2.2009. SUBSEQUENTLY, THE C ASE HAS BEEN SELECTED FOR SCRUTINY AND ACCORDINGLY, NOTICE U/S 1 43(2) OF THE ACT WAS ISSUED. IN RESPONSE TO THE NOTICE, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED FROM TIME TO TIME AND FURNISHED B OOKS OF ACCOUNTS, BILLS AND VOUCHERS AND OTHER INFORMATION CALLED FOR . THE A.O. AFTER VERIFICATION OF THE BOOKS OF ACCOUNTS, BILLS & VOUC HERS AND OTHER INFORMATION, COMPLETED THE ASSESSMENT U/S 143(3) OF THE ACT AND DETERMINED TOTAL INCOME OF RS.2,54,965/- BY MAKING ADDITIONS OF RS.1,61,000/- UNDER THE HEAD INCOME FROM BUSINESS , BEING INCOME EARNED FROM THE BUSINESS OF PISCI CULTURE. DURING T HE COURSE OF ASSESSMENT PROCEEDINGS, THE A.O. NOTICED THAT ASSES SEE HAS MAINTAINED SAVINGS BANK ACCOUNT AT ING VYSYA BANK LIMITED AND THE SAME BANK ACCOUNT WAS FOUND CREDITED WITH A CASH DEPOSIT OF R S.18,65,600/-. THEREFORE, ISSUED A SHOW CAUSE NOTICE AND ASKED TO EXPLAIN THE NATURE AND SOURCE OF CREDIT INTO THE BANK ACCOUNT. IN RES PONSE TO THE SHOW CAUSE NOTICE, THE ASSESSEE SUBMITTED THAT HE IS INT O THE BUSINESS OF PISCI CULTURE AND THE CASH DEPOSIT TO BANK ACCOUNT WAS AD VANCE RECEIVED FROM THE BUYERS OF FISH. SINCE HE HAS INCURRED THE LOSSES IN THE YEAR ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 3 FROM THE BUSINESS OF PISCI CULTURE, THE RESULTANT L OSS HAS NOT BEEN DECLARED IN THE RETURN OF INCOME, HOWEVER, FILED A REVISED STATEMENT OF TOTAL INCOME SHOWING THE LOSSES FROM THE BUSINESS O F PISCI CULTURE. THE A.O. AFTER CONSIDERING THE SUBMISSION FILED BY THE ASSESSEE REJECTED THE BOOKS OF ACCOUNTS AND ESTIMATED THE INCOME FROM PIS CI CULTURE OF RS.1,61,000/-. 3. SUBSEQUENTLY, THE CASE HAS BEEN REOPENED U/S 147 OF THE ACT BY ISSUING NOTICE U/S 148 OF THE ACT. THE A.O. ISSUED NOTICE U/S 148 OF THE ACT WITH A REASON THAT THE ASSESSEE NEITHER DECLARE D ANY BUSINESS INCOME/LOSS IN THE ORIGINAL RETURN NOR FILED ANY RE VISED RETURN COMPRISING BUSINESS INCOME/LOSS FROM PISCI CULTURE, HENCE, THE DETERMINATION OF BUSINESS INCOME IN THIS CASE WAS WITHOUT ANY CLAIM THOUGH APPROPRIATE RETURN OF INCOME IS FOUND TO BE PRIMA FACIE INCORRE CT IN TERMS OF THE FOLLOWING CASE LAWS I.E. GOPAL DAS PURUSHOTTAM DAS VS. CIT (1941) 9 ITR 130, GOETZ (INDIA) LTD. VS. CIT (2006) 157 TAXM AN 1 (SC). IN VIEW OF THE ABOVE, THE ASSESSMENT ORDER PASSED U/S 143(3 ) OF THE ACT IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. WITH THESE OBSERVATIONS, THE A.O. REOPENED THE ASSESSMENT U/S 147 OF THE ACT. IN RESPONSE TO NOTICE U/S 148 OF THE ACT, THE ASSESSEE HAS FILED REVISED RETURN IN FORM NO.ITR 4 ON 28.6.2013. SUBSEQUENTLY , THE CASE HAS BEEN ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 4 TAKEN UP FOR SCRUTINY ASSESSMENT AND ACCORDINGLY TH E A.O. ISSUED NOTICE U/S 143(2) OF THE ACT. DURING THE COURSE OF ASSESS MENT PROCEEDINGS, THE ASSESSEE HAS FURNISHED BOOKS OF ACCOUNTS AND OT HER RELEVANT DETAILS AS REQUIRED BY THE A.O. THE A.O. AFTER VERIFICATION OF THE BOOKS OF ACCOUNTS AND OTHER DETAILS FILED BY THE ASSESSEE, H ELD THAT THE CASH DEPOSITS INTO ING VYSYA BANK ACCOUNT HAVE BEEN VERI FIED WITH REFERENCE TO CASH BOOK AND IT IS FOUND THAT CASH BALANCES ARE AVAILABLE IN BOOKS TO MAKE DEPOSITS IN BANK. THE VERIFICATION OF THE CAS H BOOK SHOWS RECEIPTS OF ADVANCE FROM THE PROSPECTIVE BUYERS OF THE FISH IN THE EARLIER PREVIOUS YEAR, WHOSE LEDGER ACCOUNTS HAVE ALSO BEEN VERIFIED . THE CASH DEPOSIT IN BANK ACCOUNT IS CLAIMED TO BE NOTHING BUT RE-DEP OSITING OF SURPLUS LEFT OVER FROM EARLIER WITHDRAWAL AND ADVANCES RECEIVED FROM THE BUYERS DURING THE PREVIOUS YEAR. THUS, THE DEPOSITS IN SA VINGS BANK ACCOUNT SEEM TO BE EXPLAINED. SINCE ASSESSEE HAS FILED THE REVISED RETURN IN FORM NO.ITR 4 IN RESPONSE TO NOTICE U/S 147 OF THE ACT CLAIMING BUSINESS LOSS, THE ASSESSEES CLAIM FOR BUSINESS LOSS APPEAR S TO BE IN ORDER. WITH THESE OBSERVATIONS THE A.O. COMPLETED THE ASSESSMEN T U/S 143(3) R.W.S. 147 OF THE ACT AND DETERMINED TOTAL INCOME OF RS.2, 84,682/-. 4. THEREAFTER, THE A.O. ISSUED NOTICE U/S 154 OF TH E ACT DATED 26.12.2013 TO RECTIFY THE ASSESSMENT ORDER PASSED U /S 143(3) R.W.S. 147 ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 5 OF THE ACT. THE A.O. ISSUED NOTICE FOR THE REASON THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A LETTER FROM THE DY. DI RECTOR OF FISHERIES, KRISHNA DISTRICT, MACHILIPATNAM WAS OBTAINED IN WHI CH IT WAS STATED THAT THE YIELD AND INCOME PER ACRE OF FISH POND FOR THE REARING AND PRODUCTION OF FISH SPECIES FOR THE FINANCIAL YEAR 2 007-08 IS RS.20,000/-. HOWEVER, WHILE COMPLETING THE ASSESSMENT THE INCOME FROM PISCI CULTURE WAS ESTIMATED AT RS.11,500/- PER ACRE AS AGAINST TH E PROBABLE RATE OF INCOME OF RS.20,000/- PER ACRE. AS THE MISTAKE IS APPARENT FROM THE RECORD, THE SAME REQUIRED TO BE RECTIFIED U/S 154 O F THE ACT, THEREFORE, ISSUED A NOTICE U/S 154 OF THE ACT DATED 26.12.2013 . IN RESPONSE TO THE NOTICE, THE ASSESSEE VIDE HIS LETTER DATED 21.1.201 4 SUBMITTED THAT THE FISH PONDS ARE SITUATED IN GOKANAKONDA VILLAGE, GUN TUR DISTRICT. AS PER THE CERTIFICATE OBTAINED FROM THE DY. DIRECTOR OF F ISHERIES, GUNTUR DISTRICT THE GROSS INCOME PER ACRE OF PISCI CULTURE IS RS.15 ,000/-. THEREFORE, REQUESTED TO ADOPT NET PROFIT OF RS.15,000/- PER AC RE INSTEAD OF RS.20,000/- PER ACRE AS CERTIFIED BY THE DY DIRECTO R OF FISHERIES, MACHILIPATNAM. THE A.O. AFTER CONSIDERING THE EXPL ANATIONS FURNISHED BY THE ASSESSEE AND ALSO TAKING INTO ACCOUNT, THE CERT IFICATE ISSUED BY THE DY. DIRECTOR, FISHERIES, GUNTUR DISTRICT ESTIMATED THE INCOME OF RS.15,000/- PER ACRE. ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 6 5. THE CIT, VIJAYAWADA ISSUED A SHOW-CAUSE NOTICE D ATED 5.8.2015 AND ASKED TO EXPLAIN WHY THE ASSESSMENT ORDER SHALL NOT BE REVISED UNDER SEC. 263 OF THE ACT. THE CIT PROPOSED TO REVI SE THE ASSESSMENT ORDER FOR THE REASON THAT ON EXAMINATION OF ASSESSM ENT RECORDS, CERTAIN OMISSIONS AND COMMISSIONS WERE NOTICED, WHICH RENDE RED THE ASSESSMENT ORDER ERRONEOUS IN SO FAR AS IT IS PREJU DICIAL TO THE INTEREST OF THE REVENUE IN TERMS OF SECTION 263 OF THE ACT. TH E CIT IN THE SAID SHOW CAUSE NOTICE OBSERVED THAT THE ASSESSEE HAS FI LED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 IN FORM NO.I TR2 ADMITTING INCOME UNDER THE HEAD SALARY AND INCOME FROM OTHER SOURCES. AS PER THE AIR INFORMATION AVAILABLE WITH THE DEPARTMENT, IT SHOWS THAT THE ASSESSEE HAS MADE CASH DEPOSITS INTO HIS SAVINGS BA NK ACCOUNT MAINTAINED AT ING VYSYA BANK. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE CLAIMED THAT THE SOURCES FOR THE CASH DEPOSITS INTO BANK ACCOUNT IS OUT OF ADVANCE RECEIVED FROM B UYERS AND ALSO PART OF THE CASH DEPOSITS ARE FROM WITHDRAWAL FROM THE E ARLIER OCCASIONS. THE CIT FURTHER OBSERVED THAT THE ASSESSEE NEITHER DECLARED ANY BUSINESS INCOME/LOSS IN THE ORIGINAL RETURN, NOR FI LED ANY REVISED RETURN COMPRISING BUSINESS INCOME/LOSS FROM PISCI CULTURE. HENCE, THE DETERMINATION OF BUSINESS INCOME IN THIS CASE WITHO UT ANY CLAIM THROUGH APPROPRIATE RETURN OF INCOME IS FOUND TO BE PRIMA F ACIE INCORRECT IN ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 7 TERMS OF THE FOLLOWING CASE LAWS:GOPAL DAS PURUSHOT TAM DAS VS. CIT (1941) 9 ITR 130 AND GOETZE (INDIA) LTD. VS. CIT 15 7 TAXMAN 1 (SC). THE A.O. AT THE TIME OF COMPLETION OF ASSESSMENT HA S ALLOWED THE CLAIM OF THE ASSESSEE THAT THE SOURCES FOR THE CASH DEPOS IT INTO SAVINGS BANK ACCOUNT IS OUT OF ADVANCE RECEIVED FROM BUYERS IN R ESPECT OF PISCI CULTURE BUSINESS. THOUGH ASSESSEE CLAIMS TO HAVE R ECEIVED THE ADVANCE FROM THE CUSTOMERS, THE ASSESSEE HAS NOT DISCLOSED THE SAID BUSINESS IN HIS ORIGINAL RETURN OF INCOME. THE A.O. WITHOUT EXA MINING THE CORRECTNESS OF THE CLAIM SIMPLY ACCEPTED THE EXPLAN ATIONS FURNISHED BY THE ASSESSEE, WHICH RENDER THE ASSESSMENT ORDER ERR ONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. WITH THESE OBSERVATIONS, ISSUED A SHOW-CAUSE NOTICE DATED 5.8.2015 AND ASKED TO EXPLAIN WHY THE ASSESSMENT ORDER SHALL NOT BE SET ASIDE U/S 263 OF THE ACT. 6. IN RESPONSE TO THE SHOW CAUSE NOTICE, THE ASSESS EE SUBMITTED THAT THE ASSESSMENT ORDER PASSED BY THE A.O. U/S 143(3) OF THE ACT IS NOT ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF THE REVENUE, AS THE A.O. HAS EXAMINED THE ISSUE OF CASH DEPOSITS IN TO SAVINGS BANK ACCOUNT MAINTAINED AT ING VYSYA BANK. THE ASSESSEE FURTHER SUBMITTED THAT THE A.O. HAS EXAMINED THE ISSUE AT THE TIME OF COMPLETION OF ASSESSMENT U/S 143(3) OF THE ACT. SUBSEQUENTLY, THE CASE HAS BEEN ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 8 REOPENED U/S 147 OF THE ACT FOR THE SPECIFIC PURPOS E OF EXAMINING THE ISSUE OF CASH DEPOSITS INTO BANK ACCOUNT. DURING TH E REASSESSMENT PROCEEDINGS, THE A.O. AFTER CONSIDERING THE EXPLANA TIONS FURNISHED BY THE ASSESSEE HAS ACCEPTED THE EXPLANATIONS AND COMP LETED ASSESSMENT. IN YET ANOTHER PROCEEDINGS, THE A.O. HAS PASSED AN ORDER U/S 154 OF THE ACT AND ENHANCED THE INCOME FROM PISCI CULTURE FROM RS.11,500/- TO RS.15,000/-. THE ISSUE OF CASH DEPOSITS INTO BANK A CCOUNT HAS BEEN COMPLETELY EXAMINED IN ALL THE THREE PROCEEDINGS, T HEREFORE, THE ASSESSMENT ORDER PASSED BY THE A.O. U/S 143(3) OF T HE ACT IS NOT ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF THE REVENUE. 7. THE CIT, AFTER CONSIDERING THE EXPLANATIONS OF T HE ASSESSEE HELD THAT THE ASSESSMENT ORDER PASSED BY THE A.O. U/S 14 3(3) OF THE ACT IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF THE REVENUE. THE CIT FURTHER HELD THAT THE ASSESSMENT FOR THE YEAR 2 008-09 WAS SET ASIDE BY HIS PREDECESSOR COMMISSIONER U/S 263 OF THE ACT DATED 5.2.2013 ON THE SIMILAR LINES I.E. CASH DEPOSIT INTO THE BANK A CCOUNT. THE A.O. AFTER CONDUCTING DUE ENQUIRIES NOT GOT SATISFIED WITH THE EXPLANATIONS OF THE ASSESSEE AND THEREFORE, ASSESSED THE CASH DEPOSITS MADE IN THE BANK ACCOUNT AS INCOME FROM OTHER SOURCES. THE EXPLANA TIONS OFFERED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2008-09 ALSO ARE O F SIMILAR IN NATURE, ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 9 THEREFORE, THERE CANNOT BE TWO DIFFERENT OPINIONS O N THE SIMILAR ISSUE IN TWO DIFFERENT ASSESSMENTS OF THE ASSESSEE. THERE S HOULD BE UNIFORM DECISION ON THE SAME ISSUE, EVEN THOUGH THE ASSESSM ENT ORDERS ARE DIFFERENT. THEREFORE, BY FOLLOWING HIS PREDECESSOR DECISION, THE ASSESSMENT ORDER PASSED BY THE A.O. U/S 154 OF THE ACT HAS BEEN SET ASIDE AND DIRECTED THE A.O. TO REDO THE ASSESSMENT DENOVO AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEAR D. AGGRIEVED BY THE CIT ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 8. THE LD. A.R. SUBMITTED THAT THE CIT WAS ERRED IN REVISION OF ASSESSMENT ORDER U/S 263 OF THE ACT, AS THE ORDER D ATED 27.1.2014 PASSED BY THE A.O. IS NEITHER ERRONEOUS NOR PREJUDI CIAL TO THE INTEREST OF THE REVENUE. THE A.R. FURTHER SUBMITTED THAT THE CI T WAS NOT JUSTIFIED IN DIRECTING THE A.O. TO ASSESS THE CASH DEPOSIT INTO THE SAVINGS BANK ACCOUNT UNDER THE HEAD INCOME FROM OTHER SOURCES. IT IS FURTHER SUBMITTED THAT THE A.O. AT THE TIME OF COMPLETION O F ASSESSMENT U/S 143(3) OF THE ACT HAS VERIFIED THE ISSUE OF CASH DE POSIT INTO SAVINGS BANK ACCOUNT AND AFTER VERIFICATION OF THE DETAILS FILED BY THE ASSESSEE HAS ACCEPTED THE EXPLANATIONS AND ASSESSED THE INCOME U NDER THE HEAD INCOME FROM BUSINESS. THE A.R. FURTHER SUBMITTED THAT THE COMMISSIONER OUGHT TO HAVE APPRECIATED THE FACT THA T THE A.O. HAS ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 10 INITIATED ENQUIRIES IN RESPECT OF ABOVE ISSUE AND A S SUCH IT IS NOT A CASE OF LACK OF ENQUIRY TO ENABLE THE COMMISSIONER TO IN VOKE THE PROVISIONS OF SECTION 263 OF THE ACT. THE CIT WAS COMPLETELY ERRED IN HOLDING THAT THE ASSESSMENT FOR THE IMPUGNED YEAR HAS TO BE DONE IN THE SAME MANNER AS DONE IN THE ASSESSMENT YEAR 2008-09 STATI NG THAT THE ISSUES ARE SIMILAR AND THAT THERE CANNOT BE TWO OPINIONS O N THE SAME ISSUE, THEREFORE, REQUESTED TO SET ASIDE THE ORDER PASSED BY THE COMMISSIONER U/S 263 OF THE ACT. 9. ON THE OTHER HAND, THE LD. D.R. STRONGLY SUPPORT ED THE ORDER OF THE CIT. THE LD. D.R. FURTHER SUBMITTED THAT THE C IT RIGHTLY ASSUMED THE JURISDICTION TO REVISE THE ASSESSMENT ORDER AS THERE WERE OMISSIONS AND COMMISSIONS IN THE ASSESSMENT ORDER WHICH CAUSE D PREJUDICE TO THE INTEREST OF THE REVENUE. THE A.O. AT THE TIME OF C OMPLETION OF ASSESSMENT U/S 143(3) OF THE ACT HAS ACCEPTED THE E XPLANATIONS FURNISHED BY THE ASSESSEE WITHOUT EXAMINING THE ISS UE WHETHER THE ASSESSEE HAS CARRIED OUT THE BUSINESS OF PISCI CULT URE, IN CASE THE ASSESSEE HAS CARRIED OUT THE BUSINESS OF PISCI CULT URE WHY HE COULD NOT DISCLOSE THE SAME IN THE ORIGINAL RETURN FILED FOR THE ASSESSMENT YEAR. THE LD. D.R. FURTHER SUBMITTED THAT THE ASSESSMENT ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF T HE REVENUE AS THE ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 11 ASSESSING OFFICER PASSED THE ORDER WITHOUT CONDUCTI NG PROPER ENQUIRY IN RELATION TO THE CASH DEPOSITS INTO BANK ACCOUNT. T HE ASSESSEE NEITHER DISCLOSED THE BUSINESS IN THE ORIGINAL RETURN FILED FOR THE RELEVANT ASSESSMENT YEAR NOR FILED ANY REVISED RETURN DISCLO SING THE SAID ACTIVITY. THE ASSESSEE SIMPLY FILED A REVISED STATEMENT OF TO TAL INCOME AT THE TIME OF ASSESSMENT PROCEEDINGS WHICH WAS ACCEPTED BY THE A.O. THE D.R. FURTHER ARGUED THAT IT IS A CLEAR CASE OF NON APPLI CATION OF MIND AND LACK OF ENQUIRY BY THE A.O. AS THERE WAS NO IOTA OF EVID ENCE IN THE ASSESSMENT RECORDS FOR HAVING DONE ANY KIND OF VERI FICATION BEFORE COMPLETION OF ASSESSMENT. THE ASSESSMENT ORDER PAS SED BY THE A.O. IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF THE REVENUE, THEREFORE THE CIT HAS RIGHTLY ASSUMED THE JURISDICT ION TO REVISE THE ASSESSMENT ORDER AND HIS ORDER SHOULD BE UPHELD. 10. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATE RIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. THE CIT ASSUMED THE JURISDICTION TO REVISE THE ASSE SSMENT ORDER FOR THE REASON THAT THE A.O. HAS NOT CONDUCTED PROPER ENQUI RY BEFORE COMPLETION OF ASSESSMENT, THEREBY, THE ASSESSMENT O RDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF T HE REVENUE. THE CIT HAS REVISED THE ASSESSMENT ORDER FOR THE SOLE REASON TH AT THE A.O. HAS ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 12 ACCEPTED THE EXPLANATIONS FURNISHED BY THE ASSESSEE WITH REGARD TO THE CASH DEPOSITS FOUND IN THE BANK ACCOUNT. ON PERUSA L OF THE SHOW CAUSE NOTICE ISSUED BY THE CIT, THE ASSESSMENT ORDER AND PAPER BOOK FILED BY THE ASSESSEE, WE FIND THAT THE ISSUE RAISED BY THE CIT IN THE PROCEEDINGS WAS ALREADY EXAMINED BY THE A.O. IN THE ASSESSMENT PROCEEDINGS. THE A.R. FILED A PAPER BOOK CONTAINING DETAILS FILED BE FORE THE A.O. AT THE TIME OF ASSESSMENT PROCEEDINGS. ON PERUSAL OF THE PAPER BOOK, IT WAS NOTICED THAT THE A.O. ISSUED A QUESTIONNAIRE WHEREI N HE HAS RAISED QUESTIONS ABOUT CASH DEPOSITS FOUND IN THE SAVINGS BANK ACCOUNT MAINTAINED AT ING VYSYA BANK. THE A.O. AFTER CONSID ERING THE EXPLANATIONS FURNISHED BY THE ASSESSEE HAS ACCEPTED THE EXPLANATIONS AND ASSESSED THE INCOME FROM PISCI CULTURE. THEREF ORE, THE CIT WAS NOT CORRECT IN COMING TO THE CONCLUSION THAT THE A.O. H AS NOT CONDUCTED PROPER ENQUIRY OF THE ISSUES BEFORE COMPLETION OF A SSESSMENTS. 11. THE CIT ASSUMED THE JURISDICTION TO REVISE THE ASSESSMENT ORDER ON THE SOLE GROUND THAT THERE IS LACK OF ENQUIRY ON THE PART OF A.O. IN EXAMINING THE ISSUE REFERRED TO IN HIS SHOW CAUSE N OTICE. THE CIT QUESTIONED THE ISSUE OF CASH DEPOSITS INTO THE SAVI NGS BANK ACCOUNT. THE ASSESSEE CONTENDED THAT THE SOURCE FOR THE CASH DEPOSITS WAS OUT OF THE ADVANCE RECEIVED FROM THE CUSTOMERS. THE AS SESSEE FURTHER ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 13 CONTENDED THAT HE IS INTO THE BUSINESS OF PISCI CUL TURE AND THE ADVANCE RECEIVED FROM THE CUSTOMERS HAS BEEN DEPOSITED INTO HIS BANK ACCOUNT. SINCE HE HAS INCURRED LOSSES FOR THE RELEVANT PERIO D, THE SAME HAS NOT BEEN DISCLOSED IN THE REGULAR RETURN FILED IN THE R ELEVANT ASSESSMENT YEAR. HOWEVER, HE HAD FILED THE REVISED STATEMENT O F TOTAL INCOME WHEREIN DISCLOSED THE LOSS FROM THE ACTIVITY OF PIS CI CULTURE. THE A.O. AFTER EXAMINING THE DETAILS FILED BY THE ASSESSEE H AS ACCEPTED THE EXPLANATIONS AND ASSESSED THE INCOME BY ESTIMATING INCOME OF RS.11,500/- PER ACRE FOR PISCI CULTURE. THE A.O. H AS EXAMINED THE ISSUE AND AFTER EXAMINATION OF THE DETAILS FURNISHED BY T HE ASSESSEE COME TO THE CONCLUSION THAT THE CLAIM OF THE ASSESSEE IS CO RRECT. ONCE THE ISSUE IS EXAMINED AND CONSIDERED BY THE A.O., THE CIT HAS NO JURISDICTION TO ENTERTAIN FRESH ENQUIRY ON THE SAME ISSUE, BECAUSE HE HAS A DIFFERENT OPINION ON THE ISSUE. IN OUR CONSIDERED VIEW, THE ISSUE OF CASH DEPOSIT INTO BANK ACCOUNT HAS BEEN CONSIDERED BY THE A.O. I N THE PROCEEDINGS BEFORE HIM. THE A.O. HAS EXAMINED THE ISSUE OF CAS H DEPOSITS IN THE PROCEEDINGS U/S 143(3) OF THE ACT AND ALSO DURING T HE COURSE OF REASSESSMENT PROCEEDINGS U/S 147 OF THE ACT. THE R EASSESSMENT WAS INITIATED MAINLY FOR THE REASON TO VERIFY THE CASH DEPOSITS FOUND IN THE BANK ACCOUNT. THE A.O. AFTER EXAMINING THE DETAILS HAS ACCEPTED THE EXPLANATIONS, THEREFORE, THE CIT WAS NOT CORRECT IN COMING TO THE ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 14 CONCLUSION THAT THE A.O. HAS NOT EXAMINED THE ISSUE S, THEREFORE, THE ORDER PASSED BY THE A.O. IS NOT ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. 12. THE CIT HAS POWER TO REVISE THE ASSESSMENT ORDE R, BUT TO INVOKE THE PROVISIONS OF SECTION 263 OF THE ACT THE TWIN C ONDITION MUST BE SATISFIED I.E. THE ORDER OF THE A.O. IS ERRONEOUS A ND FURTHER IT MUST BE PREJUDICIAL TO THE INTEREST OF THE REVENUE. UNLESS BOTH THE CONDITIONS ARE SATISFIED, THE CIT CANNOT ASSUME JURISDICTION U/S 2 63 OF THE ACT. IT IS NOT NECESSARY THAT EVERY ORDER WHICH IS ERRONEOUS MAY N OT BE PREJUDICIAL TO THE INTEREST OF THE REVENUE OR VICE VERSA. UNLESS THE A.O. ORDER IS ERRONEOUS, NO ACTION CAN BE TAKEN BY THE CIT U/S 26 3 OF THE ACT, THIS IS BECAUSE THE TWIN CONDITIONS I.E. 1) THE ORDER IS ER RONEOUS AND 2) THE SAME IS ALSO PREJUDICIAL TO THE INTEREST OF THE REV ENUE ARE CO-EXISTS. IN THE PRESENT CASE ON HAND, THE A.O. HAS CONDUCTED DE TAILED ENQUIRY AND ALSO EXAMINED THE ISSUE OF CASH DEPOSIT, WHICH WAS THE MAIN REASON FOR REVISION OF ASSESSMENT ORDER U/S 263 OF THE ACT. T HE ASSESSING OFFICER AFTER VERIFICATION OF BOOKS OF ACCOUNTS AND RELEVAN T DETAILS FURNISHED BY THE ASSESSEE HAS CONSIDERED CLAIM OF THE ASSESSEE. THE CONTENTION OF THE CIT WAS THAT THE A.O. HAS NOT CONDUCTED PROPER ENQUIRY AND ALSO NOT APPLIED HIS MIND BEFORE ALLOWING THE CLAIM OF T HE ASSESSEE. WE DO ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 15 NOT AGREE WITH THE CIT FOR THE REASON THAT THERE IS A DISTINCTION BETWEEN LACK OF ENQUIRY AND INADEQUATE ENQUIRY. IF THERE IS INADEQUATE ENQUIRY THAT WOULD NOT BY ITSELF GIVE OCCASION TO THE CIT T O ASSUME JURISDICTION U/S 263 OF THE ACT, MERELY BECAUSE HE HAS A DIFFERE NT OPINION IN THE MATTER. THE CIT CAN DO THIS WHEN THERE IS A LACK O F ENQUIRY BY THE A.O. IN THE PRESENT CASE, THE ASSESSMENT ORDER IS DETAIL ED ONE AND ALSO THE A.O. HAS PASSED A REMARK IN THE ASSESSMENT ORDER ON THE ISSUE RAISED BY THE CIT. ACCORDING TO THE CIT, THE A.O. HAS CON DUCTED ENQUIRY BUT IT IS INADEQUATE, THEREFORE, HE WANTED FURTHER ENQUIRY AND THIS FACT WAS NOT DISPUTED BY THE REVENUE. THE COMMISSIONER CANN OT INITIATE REVISION PROCEEDINGS WITH A VIEW TO CONDUCT FISHING AND REVO LVING ENQUIRY ON THE ISSUES WHICH ARE ALREADY EXAMINED BY THE A.O. 13. THE LD. A.R. FOR THE ASSESSEE SUBMITTED THAT TH E A.O. EXAMINED THE ISSUE WHICH LEADS TO THE REVISION OF ASSESSMENT ORDER U/S 263 OF THE ACT. HE FURTHER SUBMITTED THAT THE CASE WAS INITIA LLY SUBJECT TO SCRUTINY ASSESSMENT U/S 143(3) OF THE ACT. SUBSEQUENTLY, THE CASE HAS BEEN REOPENED U/S 147 OF THE ACT MAINLY FOR THE REASON O F VERIFYING THE CASH DEPOSITS FOUND IN THE SAVINGS BANK ACCOUNTS. THERE AFTER, THE A.O. HAS PASSED ORDER U/S 154 OF THE ACT. IN ALL THE PROCEE DINGS, THE MAIN ISSUE BEFORE THE LOWER AUTHORITIES WAS CASH DEPOSITS FOUN D IN THE BANK ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 16 ACCOUNT. THE ASSESSEE EXPLAINED THE SOURCE FOR THE CASH DEPOSITS WHICH WAS OUT OF THE ADVANCES RECEIVED FROM THE CUSTOMERS . THE A.O. AFTER CONSIDERING THE EXPLANATIONS FURNISHED BY THE ASSES SEE ACCEPTED THE CLAIM OF THE ASSESSEE AND ESTIMATED THE INCOME FROM PISCI CULTURE. WE FIND THAT THE CASE WAS SUBJECTED TO PROCEEDINGS UND ER SEC. 143(3), 147 AND 154 OF THE ACT. IN ALL THE PROCEEDINGS, THE MAI N ISSUE WAS CASH DEPOSITS INTO THE BANK ACCOUNT, WHICH WAS EXAMINED DURING THE PROCEEDINGS. THEREFORE, WE ARE OF THE VIEW THAT THE CIT CANNOT ASSUME JURISDICTION TO REVISE THE ASSESSMENT ORDER FOR THE SAME REASON WHICH WAS ALREADY CONSIDERED BY THE A.O. IN THE PROCEEDIN GS BEFORE HIM. 14. COMING TO THE CASE LAWS RELIED UPON BY THE ASSE SSEE. THE ASSESSEE RELIED UPON COORDINATE BENCH DECISION OF V ISAKHAPATNAM ITAT IN THE CASE OF SRI SAI CONTRACTORS VS. ITO IN ITA N O.109/VIZAG/2012. WE HAVE GONE THROUGH THE CASE LAW RELIED UPON BY THE A SSESSEE IN THE LIGHT OF THE FACTS OF THE PRESENT CASE. THE COORDINATE B ENCH OF THIS TRIBUNAL, UNDER SIMILAR CIRCUMSTANCES HELD THAT ONCE THE A.O. EXAMINED THE ISSUES, THE CIT CANNOT ASSUME JURISDICTION ON THE S AME ISSUES WHICH IS ALREADY CONSIDERED BY THE A.O. ON THE GUISE OF REVI SION BY STATING THAT THE A.O. HAS CONDUCTED INADEQUATE ENQUIRY OR THERE IS A LACK OF ENQUIRY. THE RELEVANT PORTION IS REPRODUCED HEREUNDER: ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 17 10. TO INVOKE THE PROVISIONS OF SECTION 263 OF THE ACT, THE TWIN CONDITIONS MUST BE SATISFIED I.E. THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND FURTHER IT MUST BE PREJUDICIAL TO THE INTEREST OF THE REVENUE. UNLESS BOTH CONDITIONS ARE SATISFIED, THE CIT CANNO T ASSUME JURISDICTION TO PASS ORDER U/S 263 OF THE ACT. IT IS NOT NECESSARY THAT EVERY ORDER WHICH IS PREJUDICIAL TO THE INTEREST OF REVENUE IS ALSO E RRONEOUS. UNLESS THE A.OS ORDER IS NOT ERRONEOUS, NO ACTION CAN BE TAKEN BY T HE CIT U/S 263 OF THE ACT, THIS IS BECAUSE THE TWIN CONDITIONS I.E. (1) T HE ORDER IS ERRONEOUS AND (2) THE SAME IS ALSO PREJUDICIAL TO THE INTEREST OF THE REVENUE ARE NOT CO- EXISTS. IN THE PRESENT CASE, THE A.O. HAS CONDUCTE D ENQUIRY BEFORE ALLOWING DEDUCTION TOWARDS WAGES AND CENTERING EXPE NSES AND ALSO EXAMINED THE POINTS ON WHICH THE CIT WANTS FURTHER VERIFICATION. THE ASSESSING OFFICER AFTER CAREFULLY EXAMINED THE BOOK S OF ACCOUNTS AND RELEVANT VOUCHERS FURNISHED BY THE ASSESSEE PASSED THE ASSESSMENT ORDER AS INDICATED IN HIS ORDER, WHICH IS CLEARLY EVIDENT FROM THE ASSESSMENT ORDER. THE CONTENTION OF THE CIT WAS THAT THE A.O. HAS NOT CONDUCTED PROPER ENQUIRY AND ALSO NOT APPLIED HIS MIND BEFORE ALLOWING THE DEDUCTION. BUT, WE DO NOT AGREE WITH THE CIT FOR T HE REASON THAT THERE IS A DISTINCTION BETWEEN LACK OF ENQUIRY AND INADEQUAT E ENQUIRY. IF THERE IS AN INADEQUATE ENQUIRY THAT WOULD NOT BY ITSELF GIVE OCCASION TO THE CIT TO ASSUME JURISDICTION U/S 263 OF THE ACT, MERELY BECA USE HE HAS A DIFFERENT OPINION IN THE MATTER. THE CIT CAN DO THIS ONLY, W HEN THERE IS A LACK OF ENQUIRY BY THE ASSESSING OFFICER. IN THE PRESENT CA SE, THE ASSESSMENT ORDER IS DETAILED ONE AND ALSO, THE A.O. HAS PASSED A REMARKS IN THE ASSESSMENT ORDER ON TWO ISSUES, ON WHICH THE CIT AS SUMED JURISDICTION, I.E. DISALLOWANCE OF ROUND SOME EXPENDITURE OF RS. 1,00,000/- UNDER THE HEAD WAGES AND CENTERING CHARGES AND ALSO PARTNERS CAPITAL ACCOUNTS, WHERE THE ADDITION WAS RS. 66,825/-.THE A.O. HAD CA LLED FOR EXPLANATION AND THE ASSESSEE HAS FURNISHED ITS EXPLANATION. BU T, THE CIT WAS OF THE OPINION THAT THE ASSESSING OFFICER COULD HAVE DO WE LL TO EXPLORE THE POSSIBILITY OF REJECTING THE BOOKS OF ACCOUNTS AND ESTIMATE THE PROFIT. ACCORDING TO CIT, THE ASSESSING OFFICER HAS CONDUCT ED ENQUIRY BUT, IN ADEQUATE, THEREFORE HE WANTED FURTHER ENQUIRY ON TH E ISSUE ON WHICH HE ASSUMED JURISDICTION. THIS FACT HAD NOT BEEN DISPUT ED BY THE REVENUE. THE COMMISSIONER CANNOT INITIATE REVISION PROCEEDINGS, WITH A VIEW TO CONDUCT FISHING AND REVOLVING ENQUIRY IN THE MATTERS WHICH ARE ALREADY EXAMINED BY THE A.O. THE DEPARTMENT CANNOT DO FRESH ASSESSME NT IN THE GUISE OF REVISION ON THE MATTERS WHICH ARE EXAMINED AND CONC LUDED BY THE A.O. THE A.O. BEING A QUASI JUDICIAL AUTHORITY, SHALL HA VE THE AUTHORITY TO EXERCISE RIGHT JUDGEMENT AND DISCRETION ON THE BASI S OF INFORMATION AVAILABLE BEFORE HIM. IN THE PRESENT CASE ON HAND, THE ASSESSING OFFICER AFTER CONSIDERING VOUCHERS, MADE AN ROUND SOME ADDI TION OF RS.1,00,000/- WHICH IS ONE OF THE POSSIBLE VIEW AVAILABLE FOR HIM , WHICH THE CIT SHALL NOT TERM IT AS LACK OF ENQUIRY OR NON APPLICATION OF MI ND. THUS, IT CANNOT BE SAID THAT IT IS A CASE OF LACK OF ENQUIRY OR NON AP PLICATION OF MIND. ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 18 15. IN THE PRESENT CASE ON HAND, THE ASSESSEE HAD F URNISHED DETAILED EXPLANATIONS WITH REGARD TO THE CASH DEPOSITS FOUND IN THE SAVINGS BANK ACCOUNT. THE ASSESSEE EXPLAINED THAT HE IS INTO TH E BUSINESS OF THE PISCI CULTURE AND THE SOURCE FOR THE CASH DEPOSITS WAS OU T OF THE ADVANCE RECEIVED FROM THE CUSTOMERS. THE A.O. AFTER EXAMIN ING THE DETAILS FILED BY THE ASSESSEE HAS ACCEPTED THE CLAIM. FROM THE R ECORDS, IT IS CLEAR THAT THE A.O. HAS MADE THE REQUISITE ENQUIRIES BEFO RE FRAMING THE ASSESSMENT ORDER FOR THE YEAR UNDER CONSIDERATION. IN OUR CONSIDERED VIEW, THE A.O. WAS SATISFIED WITH THE DETAILS FURNI SHED BY THE ASSESSEE WITH REGARD TO THE ISSUE RAISED BY THE COMMISSIONER . THE LD. COMMISSIONER INITIATED THE PROCEEDINGS BY POINTING OUT WHAT HE HAD SEEN IS A GLARING IRREGULARITIES IN THE ASSESSMENT ORDER WHICH WAS SUBJECT TO REVISION PROCEEDINGS, BUT WHAT HE CONCLUDED WAS THAT SAID ASSESSMENT ORDER WAS PASSED WITHOUT MAKING PROPER E NQUIRIES. THE COMMISSIONER REVISED THE ORDER FOR WANT OF PROPER A ND DESIRED ENQUIRIES, WHICH IS NOT PERMISSIBLE UNDER THE PROVI SIONS OF LAW. AS WE HAVE ALREADY OBSERVED IN THE PRECEDING PARAGRAPH TH AT THE ORDER OF THE A.O. IS DETAILED ONE AND THE A.O. HAS DISCUSSED THE ISSUE OF CASH DEPOSIT IN THE ASSESSMENT ORDER. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSMENT ORDER PASSED BY THE A.O. IS NOT ERRONEOU S IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. HENCE, WE SET ASIDE THE ORDER ITA NO.121/VIZAG/2016 N. GAGADHAR BOSE, VIJAYAWADA 19 PASSED BY THE CIT U/S 263 OF THE ACT AND RESTORE TH E ASSESSMENT ORDER PASSED BY THE A.O. 16. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED . THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 27 TH MAY16. SD/- SD/- ( . ) ( . ) (V. DURGA RAO) (G. MANJUNATHA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER # /VISAKHAPATNAM: ' /DATED : 27.05.2016 VG/SPS )# *# /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT SHRI N. GANGADHAR BOSE, D.NO.27- 38-61, M.G. ROAD, VIJAYAWADA 2. / THE RESPONDENT THE ITO, WARD-2(1), VIJAYAWADA. 3. + / THE CIT, VIJAYAWADA 4. + ( ) / THE CIT (A), VIJAYAWADA 5. # . , . , # / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // 12 . (SR.PRIVATE SECRETARY) . , # / ITAT, VISAKHAPATNAM