M/s Sitaram J.Gavli, SILVASSA V. The Income tax Officer,Vapi Ward-3, Vapi

ITA 1337/AHD/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1948 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 10-12-2009
• Assessment Year: 2004-2005
• Appeal Filed On: 24-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R N VEPARI
• Keywords: Principle of natural justice; Difference of opinion; Assessment record; Prejudicial to interest; Change of opinion; Set aside
• Section: 143(3); 143(1); 143(2); 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HONBLE SH RI D.C. AGRAWAL, A.M.) I.T.A. NO. 1337/AHD./2009 ASSESSMENT YEAR : 2004-2005 M/S. SITARAM J. GAVLI, SILVASSA -VS.- INCOME TAX OFFICER, VAPI WARD-3, VAP I (P.A. NO. AFPPG 8833 F) (APPELLANT) (R ESPONDENT) APPELLANT BY : SHRI R.N. VEPARI RESPONDENT BY : SHRI ANIL KUMAR, CIT O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER :- THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER UNDER SECTION 263 DATED 16.03.2009 OF LEARNED COMMISSIONER OF INCOME TAX, VALSAD FOR THE ASSESSMENT YEAR 2004-05. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE I S AN INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER APPEAL, THE ASSESSEE FILED THE RETURN OF INCO ME ON 12.08.2004 DECLARING TOTAL INCOME OF RS.1,27,180/-. THIS RETURN OF INCOME INCLUDES AGRIC ULTURE INCOME OF RS.3,48,180/- AND WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX AC T ON 06.12.2004. THEREAFTER A NOTICE UNDER SECTION 143(2) WAS ISSUED ON 18.01.2005 AND ASSESSM ENT WAS COMPLETED UNDER SECTION 143(3) ON 20.09.2006 AT TOTAL INCOME OF RS.1,27,250/-. SUBSEQ UENTLY, THE LD. CIT, VALSAD ISSUED A SHOW- CAUSE NOTICE ON 21.11.2008 PROPOSING ACTION UNDER S ECTION 263 BECAUSE ACCORDING TO HIM AGRICULTURE EXPENSE OF RS.13,297/- IS INCURRED TO E ARN AGRICULTURAL INCOME OF RS.3,61,477/- REQUIRES A DETAILED VERIFICATION. 3. IN REPLY TO THE AFORESAID NOTICE, THE ASSESSEE V IDE LETTER DATED 18.12.2008 SUBMITTED AS UNDER :- WE HAD SUBMITTED ALL THE DETAILS RELATING TO AGRIC ULTURE INCOME AND AGRICULTURE EXPENSES ALONGWITH PROOF OF HOLDING OF AGRICULTURE LAND AND ON THIS BASIS ONLY THE ASSESSING OFFICER HAD COME T O CONCLUSION AND WHICH HAS BEEN STATED BY HIM IN THE BODY OF ASSESSMENT OR DER ITSELF ALL THIS FACT ARE APPARENT AND ON THE RECORD IN VIEW OF THIS WE R EQUEST YOU SIR NOT DISTURB THE ASSESSMENT ORDER PASSED BY THE ASSESSIN G OFFICER IN SUPPORT OF THIS WE RELY ON THE FOLLOWING DECISIONS :- 2 (1) CIT VS.- ARVIND JEWELERS (2003) 256 ITR 502 (GUJ.) ; (2) MANJUNATHESWARE PACKING PRODUCTS AND CAMPHOR WORKS. 4. ON RECEIPT OF AFORESAID REPLY, THE LD. CIT, VALD SAD VIDE ORDER DATED 16.03.2009 HELD THAT ASSESSMENT COMPLETED ON 20.09.2006 UNDER SECTION 14 3(3) OF THE ACT IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE FOR THE R EASONS GIVEN IN PARA 3 OF THE IMPUGNED ORDER, WHICH READS AS UNDER :- 3. ON PERUSAL OF RECORDS, IT WAS OBSERVED THAT A GRICULTURE EXPENSES OF RS. 13,297/- IS INCURRED TO EARN AGRICULTURAL INCOME OF RS. 3,6L,47 7/- WHICH IS FOUND TO BE VERY LOW AND NEEDS DETAILED VERIFICATION. II IS A KNOWN FACT WIT HIN THE KNOWLEDGE OF THE DEPARTMENT & EVEN FROM THE ANALYSIS RECEIVED FROM THE AGRICULTUR AL UNIVERSITY THAT THE EXPENDITURE FOR FARMING NORMALLY RANGES FROM 40% TO 50% OF THE GROS S AGRICULTURAL RECEIPTS. THIS VIEW IS SUPPORTED BY THE DECISION OF THE JTAT, AHMEDABAD IN THE CASE OF SHRI DHIRUHAI L NARULA & OTHERS V/S. ITO IN ITA NO.2190-2192/A'BAD/ 2004,DTD. 17.04.2004. THE AGRICULTURAL EXPENSES CLAIMED BY THE APPELLANT ARE EXTREMELY LOW AND THEREFORE THE A.O. SHOULD HAVE EXAMINED WHETHER THE ASSESSEE HAS INCURRED AGRICULTURAL EXPENSES OUTSIDE THE BOOKS. FROM A PERUSAL OF THE RECORDS IT IS CLEA R THAT THE A.O. HAS NOT APPLIED HIS MIND TO THIS ASPECT, AND HAS PASSED THE ASSESSMENT ORDER ON AN INCORRECT ASSUMPTION OF FACTS. THE A.O. SHOULD HAVE FOLLOWED THE REASONING GIVEN B Y THE JURISDICTIONAL TTAT IN THE ABOVE MENTIONED CASE OF DHIRUBHAI L. NARULA DTD. 17 .04 2004. ON PERUSAL OF THE ASSESSMENT RECORDS IT IS SEEN THA T THE ASSESSEE SHRI SITARAM BHAI JIVYABHAI GAVLI IS ALSO ENGAGED IN THE BUSINES S OF RUNNING A BAR CUM RESTAURANT IN THE NAME OF SAKARVAN TOURIST RESTAURANT, SILVASSA, FROM A PERUSAL OF THE TRADING AND PROFIT & LOSS ACCOUNT IT IS SEEN THAT THE ASSESSEE IS BARELY EAMING ANY NET PROFIT FROM THIS ACTIVITY. IN PERCENTAGE TERMS IT ONLY AMOUNTS TO 1. 29% OF THE TOTAL TURNOVER. THE A.O. HAS MADE DONE ANY ENQUIRIES INTO THIS ASPECT OF THE ASS ESSEE'S BUSINESS. HE HAS ACCEPTED THE PROFITS SHOWN WITHOUT ANY APPLICATION OF MIND. FROM THE BALANCE SHEET OF THE ASSESSEE IT IS SEEN T HAT THE ASSESSEE HAS A NUMBER OF INVESTMENTS IN LAND. NO VERIFICATION HAS BEEN DO NE TO FIND OUT WHEN THE PROPERTIES WERE PURCHASED & WHETHER THE CORRECT VALUE HAS BEEN SHOW N, II ALSO NEEDS TO BE EXAMINED WHETHER THE ASSESSEE IS LIABLE FOR WEALTH TAX. IN THE ASSESSMENT ORDER THE A.O HAS STATED THAT NEC ESSARY DETAILS IN RESPECT OF AGRICULTURAL EXPENSES HAVE BEEN FILED BY THE ASSESS EE. BUT VIDE ORDER SHEET ENTRY DATED.25,09.2006 THE 1TO. HAS WRITTEN THAT NO PROOF OF EXPENSES WAS SUBMITTED BY THE ASSESSEE AS IT WAS CONTENDED THAT SINCE THE EXPENSE S ON AGRICULTURE WERE VERY LESS NO VOUCHERS HAD BEEN PROCURED. IN THE OFFICE NOTE APPENDED TO THE ASSESSMENT ORDER THE ITO HAS MADE THE FOLLOWING OBSERVATIONS:- 'THE HOUSE-HOLD WITHDRAWAL SHOWN AMOUNTING TO RS. N IL BECAUSE HIS WIFE IS A TEACHER AND ENTIRE SALARY OF HER USED FOR HOUSEHOLD EXPENSES FOR THE FAMILY OF SIX MEMBERS IS FOUND TO BE REASONABLE, LOOKING TO T HE STANDARD OF LIVING OF THE ASSESSEE AS ALSO KEEPING IN MIND THE FACT THAT SOME OF THE BASIC 3 REQUIREMENT IS BEING MADE OUT OF THE AGRICULTURE AC TIVITIES CARRIED OUT BY THE ASSSSSEE,' THE A.O SEEMS TO BE SATISFIED THAT THE ASSESSEE HAS SHOWN NO WITHDRAWAL FOR HOUSEHOLD EXPENSES BECAUSE HE WAS SU PPORTED BY THE SALARY OF HIS WIFE. HE HAS ALSO WRITTEN THAT SOME OF THE BASI C REQUIREMENTS OF THE ASSESSEE'S FAMILY OF 6 MEMBERS IS MET OUT OF THE AG RICULTURAL ACTIVITIES CARRIED OUT BY THE ASSESSEE. HOWEVER, IT MAY BE POINTED OUT THAT THE SOURCE OF AGRICULTURAL INCOME FOR THE ASSESSEE IS FROM SUGARC ANE. HENCE, IT IS NOT UNDERSTOOD AS TO HOW SOME OF THE BASIC REQUIREMENTS OF THE FAMILY WERE BEING MET OUT OF THIS PRODUCTION. IT IS ALSO SEEN FROM THE RECORDS THAT A SALARY CERT IFICATE IN THE NAME OF SMT. S.S. BHOYA , ASSISTANT TEACHER, C.P.S. SILVASS A, DTD.25.09,2006 IS ALSO ON RECORD. THIS CERTIFICATE SIGNED BY THE EDUCATION OF FICER SHOWS THAT SMT. BHOYA DRAWS A GROSS MONTHLY SALARY OF RS.14,781/- OUT OF WHICH THERE IS A DEDUCTION OF RS.5500/- PER MONTH ON G.P.F & RS.30/- PER MONTH ON CGEIGS. AFTER THESE DEDUCTIONS THE NET AVAILABLE ANNUAL SALARY FOR SMT. BHOYA WOULD WORKOUT TO RS.1,11,012/- P.A. APPROXIMATELY. IN HIS LETTER DTD. 14.12.2005 THE ASSESSEE HAS GIVE N DETAILS OF THE EXPENSES INCURRED ON THREE CHILDREN OF THE ASSESSEE . FROM THESE DETAILS IT IS SEEN THAT A SUM OF RS.49,000/- WAS SPENT ON THE EDU CATION OF THE THREE CHILDREN ALONE AS ADMITTED BY THE ASSESSEE. THIS WO ULD LEAVE A SUM OF RS.61,000/- FOR ALL OTHER EXPENSES INCURRED BY THE ASSESSEE & HIS FAMILY OF 6 MEMBERS DURING THE ENTIRE YEAR, ,IF HIS WIFE DIDN'T SAVE ANY MONEY OUT OF HER SALARY. IT MAY ALSO BE POINTED OUT THAT THE ASSESSE E IS AN EX-MEMBER OF PARLIAMENT AN. IT IS VERY HARD TO BELIEVE THAT A FA MILY OF SIX MEMBERS COULD HAVE SURVIVED ON BARELY RS.5,000/- PER MONTH. IT IS ALSO SEEN THAT ONE OF THE CHILDREN I E.MS. JYOTIBEN WAS A STUDENT OF MBBS AT KOLA IN RAJASTHAN. SO, SHE MUST BE HAVING SOME EXPENSES ON HER BOARDING & LODGING ALSO. FROM WHERE THESE EXPENSES WERE MET HAS NOT BEEN LOOKED I NTO. AS A RESULT OF THE FOREGOING DISCUSSION I AM OF THE VIEW THAT THE A.O, HAS COMPLETED THIS ASSESSMENT WITHOUT DUE APPLICATION OF MIND IN THE CASE OF CIT VS, MANJUNATHESHWAR PACKING PROD UCTS & CAMPHOR WORKS (1993) 143 CTR (SC)406:( 1998)231 ITR 53(SC), THE HONOURABLE APEX COURT HAS HELD THAT AN INCORRECT AP PRECIATION OF FACTS OR AN INCORRECT APPLICATION OF LAW SATISFIES THE REQUIREM ENT OF THE ORDER BEING ERRONEOUS. 5. ON THE BASIS OF AFORESAID REASONING, THE LD. CIT SET ASIDE THE ASSESSMENT UNDER SECTION 263 AND RESTORED TO THE A.O. FOR THE PURPOSE OF RE- FRAMING THE ASSESSMENT AFTER ALLOWING OPPORTUNITY TO THE ASSESSEE AND EXAMINED THE FACTS IN DETAILS. AGGRIEVED BY THE ORDER OF LD. CIT UNDER SECTION 263, THE ASSESSEE IS IN APPEAL BEFORE US. 4 6. AT THE TIME OF HEARING, SHRI R.N. VEPARI, LD. CO UNSEL OF THE ASSESSEE APPEARED AND CONTENDED THAT THE IMPUGNED ORDER UNDER SECTION 263 IS CHALLENGED ON FOLLOWING TWO GROUNDS :- (1) AS REGARDS THE ISSUE DECIDED AGAINST THE ASSESS EE FOR WHICH THERE IS MENTION IN THE NOTICE, SINCE THE ISSUE HAS BEEN EXA MINED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER AND ASSESSING OFFIC ER THEREAFTER HAVING FORMED THE VIEW, HIS ORDER CANNOT BE CONSIDERED ERR ONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE U/S. 263 . (2) THERE ARE OTHER ISSUES DECIDED IN THE ORDER U/S. 26 3 FOR WHICH NO NOTICE U/S. 263 WAS GIVEN. 7. THE ASSESSEE FILED A PAPER BOOK CONTAINING 19 PA GES, WHICH INTER ALIA INCLUDES SHOW CAUSE NOTICE ISSUED, REPLY OF THE ASSESSEE AND DETA ILS OF AGRICULTURE EXPENSES AND AGRICULTURE INCOME, COPY OF THE LETTER DATED 14.12.2005 ADDRESS ED TO THE A.O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE LD. COUNSEL OF THE ASSE SSEE POINTED OUT THAT AS PER NOTICE UNDER SECTION 263 DATED 21.11.2008, IT IS CLEAR THAT PROC EEDINGS WERE INITIATED ONLY IN RESPECT OF DETAILED VERIFICATION OF AGRICULTURE EXPENSES OF RS .13,297/-, WHICH CAN BE SEEN WHAT IS MENTIONED IN THE SHOW-CAUSE NOTICE UNDER SECTION 263. IT WAS FURTHER SUBMITTED THAT THIS POINT WAS EXAMINED BY THE A.O, WHICH IS EVIDENT FROM THE LETTERS DATED 18.12.2008 AND 25.02.2009 TO THE LD. CIT, THE ASSESSEE HAD STATED AS UNDER :- 18.12.2008 'WE HAD SUBMITTED ALL THE DETAILS RELATING TO AGRIC ULTURE INCOME AND AGRICULTURE EXPENSES ALONG WITH PROOF OF HOLDING OF A GRICULTURE LAND AND ON THIS BASIS ONLY THE ASSESSING OFFICER HAD COME TO CONCLUSION AND WHICH HAS BEEN STALED BY HIM IN THE BODY OF ASSESSMENT ORDER ITSELF ALL THIS FACT ARE APPARENT AND ON THE RECORD IN VIEW OF THIS WE REQUEST YOU SIR NOT DISTURB THE ASSESSMENT ORDER PA SSED BY THE ASSESSING OFFICER IN SUPPORT OF THIS WE RELY ON FOLLOWING DECISIONS :- 25.02.2009 'SIR, WE HAD SUBMITTED ALL THE DETAILS RELATING TO AGRICULTURE INCOME AND AGRICULTURE EXPENSES ALONG WITH PROOF OF HOLDING OF AGRICULTURE LAND AND ON THIS BASIS ONLY THE ASSESSING OFFICER HAD COME TO CONCLUSION AND WHICH HAS BEEN STATED BY HIM IN THE BODY OF ASSESSMENT ORDER ITSELF SILL THIS FACT APPARENT AND ON THE RECORD. ' 8. THE LD. COUNSEL OF THE ASSESSEE FURTHER SUBMITTE D THAT IN THE ASSESSMENT ORDER, THERE IS A CLEAR MENTION ABOUT THE ABOVE EXAMINATION (PAGE 10 OF PAPER BOOK), WHICH READS AS UNDER :- 'DURING THE YEAR UNDER CONSIDERATION, THE ASSESEE E HAS DISCLOSED THE AGRICULTURE INCOME OF RS.3,43,180/- DURING THE COUR SE OF ASSESSMENT 5 PROCEEDINGS, THE ASSESSEE WAS ASKED TO PRODUCE THE PROOF OF AGRICULT URE HOLDING BY THE ASSESSEE SUCH AS DOCUMENTS 8A AND 7/12 AS ALSO THE DETAILS OF CROPS GROWN ON THE SAID AGRICULTURE LAND AND INCOME THERE FROM. THE ASSESSEE FILED ALL THE DETAILS RELATING TO THE AGRICULTURE INCOME SUPPORTED BUY THE DETAILS AND DOCUMENT VIDE 'WRITTEN SUBMISSION FILED ON RECORD. AS PER THE DETAILS SUBMITTED, THE ASSESSEE CARRIES ON THE AGRICULTURE ACTIVITIES. THE ACCOUNTS MAINTAINED FOR THE AGRICULTURE ACTIVITIES HAVE BEEN OBTAINED AND P LACED ON RECORDS AFTER VERIFICATION SUCH AS INCOME EXPENDITURE ACCOUNT, BA LANCE SHEET, MONTH WISE INCOME AND EXPENDITURE STATEMENT, BANK ACCOUNT OF M/S. SAKERVAN TOURIST RESTAURANT. THE MAIN PRODUCES GROWN BY BY ASSESSEE IS SUGARCANE. AS PER THE INCOME AND EXPENDITURE ACCOUNT OF AGRICULTURE ACTIV ITIES, OUT OF THE GROSS RECEIPT OF RS.3,61,477/-, AN EXPENDITURE OF RS.13,2 97/- HAS BEEN CLAIMED. NECESSARY DETAILS IN RESPECT OF AGRICULTURE EXPENSE S HAVE BEEN FILED BY THE ASSESSEE.' 9. ON THE BASIS OF THE ABOVE, THE LD. COUNSEL OF TH E ASSESSEE CONTENDED THAT THE A.O. HAD CALLED FOR THE DETAILS AND EXAMINED THE DETAILS OF EXPENSES. THE COMPLETE DETAILS OF ALL THE ASPECTS WERE FURNISHED SEPARATELY. SINCE THE DETAIL S WERE GIVEN AND EXAMINED BY THE A.O., THERE IS NO QUESTION OF LD. CIT HAVING JURISDICTION IN TH E ABOVE MATTER. IN SUPPORT OF THIS, RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS :- (A) IN THE CASE OF SAILESHBHAI SHAH REPORTED IN 98 TTJ 154 , THE HON'BLE ITAT, D BENCH, AHMEDABAD HELD THAT WHEN A.O. HAVING EXAMINE D ALL MATERIALS, THEREFORE, THE ORDER OF ASSESSING OFFICER CANNOT BE SAID TO BE ERR ONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. (B) IN THE CASE OF CHARAK PHARMACEUTICALS REPORTED IN 9 9 TTJ 1217 , THE HON'BLE ITAT, A BENCH, MUMBAI HELD THAT WHEN ASSESSING OF FICER HAVING CALLED FOR THE DETAILS AND EXPLANATIONS WITH REGARD TO THE CLAIM FOR FULL DEDUCTION OF EXPENSES DURING THE ASSESSMENT PROCEEDINGS AND ALLOWED THE SAME AFTER V ERIFYING THE DETAILS, EXPLANATIONS, DOCUMENTARY EVIDENCE, ETC., THEN HIS ASSESSMENT ORD ER CANNOT BE SAID TO BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. (C) IN THE CASE OF MRS. KHATIZA S. OOMEMRBHOY REPORTED IN 100 ITD 173 (MUM.)/ 101 TTJ 1097 ,THE HON'BLE ITAT, MUMBAI HELD THAT POWERS VESTED I N COMMISSIONER UNDER SECTION 263 ARE EXTRAORDINARY POWERS AND COMP LETED ASSESSMENT PROCEEDINGS CANNOT BE REOPENED UNLESS THERE IS SOME COGENT MATE RIAL TO SHOW THAT THERE IS TOTAL NON- 6 APPLICATION OF MIND ON PART OF ASSESSING OFFICER OR THAT ASSESSING OFFICER HAS COMMITTED ANY GLARING MISTAKE OF FACT OR LAW. (D) IN THE CASE OF BALRAM MANMANI REPORTED IN (2006) 7 SOT 368 (LUC.) , THE HON'BLE ITAT, LUCKNOW HELD THAT SINCE ASSESSMENT ORDER HAD BEEN PASSED BY ASSESSING OFFICER AFTER TAKING INTO ACCOUNT ASSESSEES SUBMISSIONS AS WELL AS EVIDENCE3 FURNISHED BY HIM AND NO MATERIAL WHATSOEVER HAD BEEN BROUGHT ON RECO RD BY COMMISSIONER WHICH SHOWED THAT THERE WAS ANY DISCREPANCY OR FALSITY IN EVIDEN CES FURNISHED BY ASSESSEE, ORDER PASSED BY THE ASSESSING OFFICER WAS NEITHER ERRONEOUS NOR PREJUDICIAL TO INTEREST OF REVENUE AND ACCORDINGLY ASSUMPTION OF JURISDICTION UNDER SECTIO N 263WAS ILLEGAL. (E) IN THE CASE OF ARVIND JEWELLERS REPORTED IN 290 ITR 689 (GUJ) , WHEREIN THE HON'BLE GUJARAT HIGH COURT HELD THAT IT WOULD AMOUN T TO TAKING ONE VIEW FROM THE MATERIAL AVAILABLE ON RECORD WITH WHICH THE COMMISS IONER DID NOT AGREE AND THIS BY ITSELF COULD NOT CONSTITUTE A VALID REASON FOR EXERCISE OF JURISDICTION UNDER SECTION 263. (F) IN THE CASE OF AHALYA TRADING PVT. LTD. REPORTED IN (2008) 22 SOT 68 (MUM.) , WHEREIN IT WAS HELD THAT IF ASSESSEE ESTABLISHES TH AT ASSESSING OFFICER HAS ENQUIRED INTO A PARTICULAR ISSUE BY ISSUANCE OF A SHOW-CAUSE NOTICE AND HE HAS SUPPLIED MATERIAL AND EXPLAINED ISSUE TO ASSESSING OFFICER AND ASSESSING OFFICER ON BEING SATISFIED DID NOT MAKE ADDITIONS/ DISALLOWANCE ON THAT ISSUE, IT SHOU LD NOT BE CONSTRUED THAT FOR WANT OF INVESTIGATION OR ANY ENQUIRY, ORDER OF ASSESSING OF FICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO INTERESTS OF REVENUE. (G) IN THE CASE OF GUJARAT GUARDIAN LTD. REPORTED IN 11 DTR 370 (DEL. H) , THE HON'BLE DELHI TRIBUNAL HELD THAT AFTER DULY CONSIDE RING DETAILED SUBMISSIONS MADE BY ASSESSEE, VIEW TAKEN BY ASSESSING OFFICER WAS ONE O F THE POSSIBLE VIEWS, HENCE NOT AMENDABLE TO REVISIONAL JURISDICTION OF CIT. THE LD. COUNSEL OF THE ASSESSEE FURTHER SUBMITTED T HAT THE LD. CIT IN ORDER TO UNDER SECTION 263 HAS REFERRED TO THE ANALYSIS RECEIVED FROM SOME AGR ICULTURE UNIVERSITY STATING THAT THE EXPENDITURE 7 FOR FARMING NORMALLY RANGES 40% TO 50% AND, THEREFO RE, ACCORDING TO HIM, AGRICULTURE EXPENSES CLAIMED ARE EXTREMELY LOW. WITH REGARD TO THIS, IT WAS SUBMITTED THAT THE LD. CIT HAS NOT MENTIONED THE NAME OF THE AGRICULTURE UNIVERSITY AN D ANALYSIS HAS NEVER BEEN COMMUNICATED IN THE COURSE OF PROCEEDINGS UNDER SECTION 263 OF THE ACT. THE PECULIAR FEATURES OF THIS LAND IS AS UNDER :-. (I) THIS WAS SECOND SUGARCANE CROP ON THE SAME SEEDS WH ICH IS REFERRED TO AS RATOON (LAM). FOR GROWING SUGARCANE SEEDS ARE SOWN AND AFTER THE FIRST CROP THE SUGARCANE IS CUT AND WITHOUT AGAIN SOWING SECOND CROP GROWS FROM THE SAM E ROOTS. THEREFORE, NO SUCH EXPENDITURE WAS INCURRED. (II) IN ALL SUGAR MILLS RUNS ON CO-OPERATIVE LINES, ATLE AST IN GUJARAT AS THE SUGAR MILLS ARE OWNED BY AGRICULTURIST MEMBERS THE SUGAR FACTORY IT SELF BEARS THE CUTTING AND TRANSPORTATION EXPENSES AND DEDUCTS A REASONABLE AM OUNT FROM THE SALE, PROCEEDS TO BE GIVEN TO FARMER-MEMBERS. IN THIS CASE, THEY ARE MEN TIONED ON PAGE 14 AND 15 OF SALE BILL AND THE AMOUNT INVOLVED IS RS.5040 + RS.670/- I.E. RS.6,010/-. THIS IS DEDUCTED FROM THE SALE BILL AS IT IS NOT INCURRED BY THE AGRICULTURIS TS. (III) IN UNION TERRITORY THE ADIVASIS GET SUBSIDY FROM 25 % TO 40% IN SEEDS AND FERTILIZERS. (IV) FROM DAMAN GANGA LIFT IRRIGATION PROJECT, WATER IS AVAILABLE AT A CONCESSIONAL RATE OF RS.30/- PER MONTH REGARDLESS OF THE QUANTITY TAKEN. 10. FROM THE ABOVE, IT CAN BE SEEN THAT IN RESPECT OF AGRICULTURE LAND OF THE ASSESSEE, HARDLY ANY EXPENDITURE WAS REQUIRED TO BE INCURRED. THE EX PENDITURE IN GROWING AGRICULTURE CROPS DIFFER ON THE BASIS OF IRRIGATION FACILITY, TYPE OF CROP, TYPE OF SOIL, ETC. THE A.O. HAVING TAKEN ONE VIEW ON EXAMINATION OF PARTICULARS, THERE IS NO QUESTION OF CIT TAKING ANOTHER VIEW. 11. CONTINUING HIS ARGUMENT, THE LD. COUNSEL OF THE ASSESSEE FURTHER CONTENDED THAT THE LD. CIT IN THE IMPUGNED ORDER HAS RAISED SEVERAL ISSUES ABOUT HOUSEHOLD EXPENSES, INCOME OF APPELLANT AS A TOURIST RESTAURANT BUSINESS ETC. FOR WHICH THERE WAS NO MENTION EARLIER AND NO NOTICE WAS GIVEN UNDER SECTION 263. THE LD. CIT UND ER SECTION 263 IS NOT EMPOWERED TO ISSUE DIRECTIONS OR PASS ORDERS IN RESPECT OF MATTERS FOR WHICH NO NOTICE WAS ISSUED. IN SUPPORT OF THIS, THE LD. COUNSEL OF THE ASSESSEE RELIED ON THE FOLLO WING FOUR JUDGMENTS :- (I) R.G. UMARANEE [262 ITR 507] (MAD.); (II) GULMOHAR FINANCE LTD. [6 DTR 327] (DELHI); (III) CONTIMETERS ELECTRICALS (P) LTD. [22 DTR 15 8]; (IV) AASHISH RAJPAL [23 DTR 266] (DELHI). 8 12. ON THE BASIS OF THE AFORESAID JUDGMENTS, THE LD . COUNSEL OF THE ASSESSEE PLEADED THAT IF A PARTICULAR ISSUE IS NOT MENTIONED IN THE NOTICE UND ER SECTION 263, THE LD. CIT COULD NOT ENLARGE THIS SCOPE OF REVISIONARY PROCEEDINGS BY INCLUDING THAT ISSUE IN HIS ORDER UNDER SECTION 263. 13. ON THE OTHER HAND, SHRI ANIL KUMAR, LD. DEPARTM ENTAL REPRESENTATIVE SUPPORTED THE ORDER OF LD. CIT. HE POINTED OUT THAT THE A.O. MADE THE A SSESSMENT WITHOUT NECESSARY ENQUIRY. THEREFORE, ASSESSMENT IS ERRONEOUS AND CAN BE REVIS ED UNDER SECTION 263. THE LD. D.R. FURTHER POINTED OUT THAT IN THE IMPUGNED ORDER, THE LD. CIT MERELY SET ASIDE THE ASSESSMENT WITH THE DIRECTION THAT THE A.O. SHOULD ALLOW AN OPPORTUNITY AND RE-FRAME THE ASSESSMENT. THUS NO PRINCIPLE OF NATURAL JUSTICE IS VIOLATED BECAUSE WH ILE REFRAMING THE ASSESSMENT THE A.O. WILL ALLOW OPPORTUNITY TO ASSESSEE AND WILL EXAMINE THE FACTS IN DETAIL. THEREFORE, THE ORDER PASSED BY THE LD. CIT UNDER SECTION 263 BE UPHELD. 14. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE FOUND CONSIDERABLE FORCE IN THE SUBMISSIO N MADE BY THE LD. COUNSEL OF THE ASSESSEE. IT IS PERTINENT TO NOTE THAT IN THE SHOW-CAUSE NOTICE ISSUED BEFORE PASSING THE IMPUGNED ORDER UNDER SECTION 263, THE LD. CIT CLEARLY MENTIONED THAT AGR ICULTURE EXPENSES OF RS.13,.297/- WHICH IS INCURRED TO EARN GROSS AGRICULTURE RECEIPTS OF RS.3 ,61,477/- REQUIRES DETAILS VERIFICATION. HOWEVER, IN THE IMPUGNED ORDER UNDER SECTION 263, THE LD. CI T OBSERVED THAT (1) O N PERUSAL OF THE ASSESSMENT RECORDS IT IS SEEN THAT THE ASSESSEE SHR I SITARAM BHAI JIVYABHAI GAVLI WAS ENGAGED IN THE BUSINESS OF RUNNING A BAR CUM RESTAURANT IN THE NAME OF SAKARVAN TOURIST RESTAURANT, SILVASSA. (2) FROM A PERUSAL OF THE TRADING AND PRO FIT & LOSS ACCOUNT IT IS SEEN THAT THE ASSESSEE IS BARELY EAMING ANY NET PROFIT FROM THIS ACTIVITY. IN PERCENTAGE TERMS IT ONLY AMOUNTS TO 1.29% OF THE TOTAL TURNOVER. THE A.O. HAS MADE DONE ANY E NQUIRIES INTO THIS ASPECT OF THE ASSESSEE'S BUSINESS. HE HAD ACCEPTED THE PROFITS SHOWN WITHOUT ANY APPLICATION OF MIND. (3) FROM THE BALANCE SHEET OF THE ASSESSEE IT IS SEEN THAT THE A SSESSEE HAD A NUMBER OF INVESTMENTS IN LAND. NO VERIFICATION HAS BEEN DONE TO FIND OUT WHEN THE PRO PERTIES WERE PURCHASED & WHETHER THE CORRECT VALUE HAS BEEN SHOWN, IT ALSO NEEDS TO BE EXAMINED WHETHER THE ASSESSEE IS LIABLE FOR WEALTH TAX. (4) IN THE ASSESSMENT ORDER, THE A.O. STATED THAT N ECESSARY DETAILS IN RESPECT OF AGRICULTURAL EXPENSES HAD BEEN FILED BY THE ASSESSEE. BUT VIDE O RDER SHEET ENTRY DATED 25.09.2006, THE A.O. 9 HAD WRITTEN THAT NO PROOF OF EXPENSES WAS SUBMITTED BY THE ASSESSEE AS IT WAS CONTENDED THAT SINCE THE EXPENSES ON AGRICULTURE WERE VERY LESS AN D NO VOUCHERS HAD BEEN PROCURED. 15. FROM THE REPLY TO SHOW CAUSE NOTICE SUBMITTED, IT CAN BE SEEN THAT WHILE FRAMING THE ASSESSMENT UNDER SECTION 143(3) ON 20.09.2006, THE A.O. HAS EXAMINED THE AGRICULTURAL INCOME AND EXPENSES. THE ALLEGATION OF LD. CIT THAT THE A. O. HAS NOT EXAMINED THE AGRICULTURAL INCOME AND EXPENSES AT THE TIME OF FRAMING THE ASSESSMENT UNDER SECTION 143(3) IS NOT CORRECT. THE A.O. IN THE ASSESSMENT FRAMED UNDER SECTION 143(3) HAS A CCEPTED THE AGRICULTURAL EXPENSES INCURRED. IT IS WELL SETTLED LAW THAT NO REVISION UNDER SECTION 263 CAN BE DONE ON CHANGE OF OPINION AS HELD BY THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS.- GABRIEL INDIA LTD. REPORTED IN 203 ITR 108 AND BY THE HON'BLE SUPREME COURT IN THE CAS E OF MALABAR INDUSTRIAL CO. LTD. VS.- CIT REPORTED IN 243 ITR 83. 16. IN VIEW OF THE FOREGOING, WE ARE CONVINCED THAT THE ASSESSMENT FRAMED BY THE A.O. WAS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST O F REVENUE. THEREFORE, THE IMPUGNED ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX UNDER SECTION 263 IS HEREBY CANCELLED. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. THE ORDER PRONOUNCED IN THE COURT ON 31.12.2009 SD/- SD/- (D.C. AGRAWAL) (T.K. SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 31 / 12 / 2009 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT 3) CIT(A) CONCERNED; (4) CIT CONCERNED, (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, AHMEDABAD LAHA/SR.P.S.