Radhe Developers (India) Ltd., Ahmedabad V. The Dy.CIT, Central Circle-1(3), Ahmedabad

ITA 1360/AHD/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8452 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 28-06-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 15-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VASUNDHAR UPMANYA
• Assessee Lawyers: S N SOPARKAR VARTIK CHOKSHI
• Keywords: Gift; Revision of order; Principle of natural justice
• Section: 263

Judgement Text

, MH MHMH MH IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , EKUHK CKSJM EKUHK CKSJM EKUHK CKSJM EKUHK CKSJM , BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI, MANISH BORAD, ACCOUNTANT MEMBER ITA NO. 1360 /AHD/201 5 ( / ASSESSMENT YEAR: 2010-11) RADHE DEVLOPERS [INDIA] LTD., 1 ST FLOOR, CHUNIBHAI CHAMBERS, B/H, CITY GOLD CINEMA, OFF: ASHRAM ROAD, AHMEDABAD 380 009 / VS. DCIT, CENTRAL CIRCLE 1(3), AHMEDABAD 380 009. !' ./ $% !' ./ PAN/GIR NO. : AAACR 9177 L ( & / APPELLANT) .. ( '(& / RESPONDENT) & ) ! / APPELLANT BY : SHRI S.N. SOPARKAR, VARTIK CHOKSHI & PARIN SHAH, A.R. '(& * ) ! / RESPONDENT BY : SHRI VASUNDHAR UPMANYA, CIT - DR ! + , * - / DATE OF HEARING 05/04/2018 ./ * - / DATE OF PRONOUNCEMENT 13 /04 /2018 0 / O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER : THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE APPELLATE ORDER OF THE PR. COM MISSIONER OF INCOME TAX(CENTRAL)- AHMEDABAD [CIT(A) IN SHORT] DA TED 30/03/2015 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED T O AS 'THE ACT') DATED 30/03/2013 RELEVANT TO ASSESSMENT YEAR (AY) 2 010-11. ITA NO.1360/AHD/2015 RADHE DEVELOPERS [INDIA] LTD. VS. DCIT ASST.YEAR 2010-11 - 2 - 2. THE SUBSTANTIVE GRIEVANCE OF THE ASSESSEE READS AS UNDER:- 1. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF T HE APPELLANT'S CASE, THE IMPUGNED ORDER PASSED U/S. 263 IS VOID AN D DESERVES TO BE CANCELLED BECAUSE IT HAS BEEN PASSED WITHOUT JURISDICTION THE LEARNED PRINCIPAL COMMISSIONER OF INCOME- TAX (PCIT) OUGHT TO HAVE APPRECIATED THAT THE ASSES SMENT ORDER FOR THE PRESENT ASSESSMENT YEAR PASSED U/S. 1 43(3) OF THE INCOME-TAX ACT, 1961 WAS NOT ERRONEOUS AND PREJUDIC IAL TO THE INTERESTS OF THE REVENUE, INTER ALIA, FOR THE FOLLOWING REASONS: (A) FOR THE REASON THAT MERELY BECAUSE THE ASSESSI NG OFFICER HAD NOT MADE A PARTICULAR INQUIRY [BEFORE PASSING AN ASSESSMENT ORDER U/S. 143(3)] WHICH THE LEARNED PCIT WOULD HAVE LIKED HIM TO DO IN RETROSPECT DID NOT MAKE THE ASSESSMENT ORDER ERRONEOUS; THAT THIS IS CONCLUSIVELY SHOWN BY THE ENABLING PROVISION IN THE FORM OF EXPLANATION 2 BELOW SECTIO N 263(1) WHICH IS SOUGHT TO BE INSERTED PROSPECTIVELY WITH E FFECT FROM 1.6.2015 BY THE FINANCE BILL, 2015 (WHICH IS YET TO BE ENACTED INTO AN ACT OF PARLIAMENT); (B) FOR THE REASON THAT, IN ANY CASE, THE INQUIRY REPORT ALLEGEDLY RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTM ENT, WHICH WAS THE VERY BASIS FOR THE LEARNED PCIT TO IS SUE HIS NOTICE U/S. 263, WAS NOT WITH THE LEARNED ASSESSING OFFICER WHEN HE PASSED THE ASSESSMENT ORDER ON 30.3.2013 AN D, THEREFORE, THERE IS NO BASIS FOR SUGGESTING THAT THE ASSESSING OFFICER DID NOT DO SOMETHING WHICH HE OUG HT TO HAVE DONE BEFORE PASSING THAT ASSESSMENT ORDER; (C) THAT, IN ANY CASE, THE VERY SUGGESTION, VIDE PARA 2 OF THE NOTICE U/S. 263 ISSUED BY THE LEARNED PCIT, THAT AN AMOUNT OF RS.24.3 CRORE WAS REQUIRED TO BE ADDED TO THE RETURNED INCOME OF THE APPELLANT WAS ENTIRELY UNWARRANTED SINCE, CONSIDERI NG THAT THE SAID AMOUNT HAS BEEN STATED TO HAVE BEEN DEPOSITED IN CASH IN BANK ACCOUNTS OF THREE COMPANIES WHICH HAD IN TURN MADE PAYMENTS THROUGH THE BANKING CHANNEL TO SEVEN PERSO NS WHO HAD MADE PAYMENTS TO THE APPELLANT WAS TOO FARFETCHED CONSIDERING THE WELL SETTLED LAW IN THIS BEHALF (SO URCE'S SOURCE'S SOURCE), TO ENTITLE THE LEARNED PRINCIPAL COMMISSIO NER OF ITA NO.1360/AHD/2015 RADHE DEVELOPERS [INDIA] LTD. VS. DCIT ASST.YEAR 2010-11 - 3 - INCOME-TAX TO MAKE IT IN THE FORM OF A POSITIVE MANDATE IN HIS NOTICE U/S. 263 ITSELF AND BASED THEREON TO CONCLUD E THAT THE ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO T HE INTERESTS OF THE REVENUE FOR THE REASON THAT THE AS SESSING OFFICER HAD NOT MADE THAT ADDITION OF RS.24.3 CRORE THEREIN. (D) THAT THE APPELLANT HAD SUBMITTED AND FURNISHED ALL THE DETAILS/INFORMATION AND HAD DISCHARGED ITS ONUS DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS UNDER SECTION 143( 3) OF THE ACT. 2 WITHOUT PREJUDICE TO THE FOREGOING, IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE, THE IMPU GNED ORDER DIRECTING THE LEARNED ASSESSING OFFICER TO MAKE THE APPELLANT'S ASSESSMENT FOR THE PRESENT ASSESSMENT YEAR AGAIN AF TER MAKING APPROPRIATE INQUIRY REGARDING THE SOURCE OF THE IMP UGNED AMOUNT OF RS.24.3 CRORE IS VOID AND DESERVES TO BE CANCELLED ALSO BECAUSE IT HAS BEEN PASSED IN TOTAL DISREGARD OF ELEMENTARY PRINCIPLES OF NATURAL JUSTICE INASMUCH A S THE APPELLANT WAS NOT GIVEN ANY OPPORTUNITY WHATSOEVER TO MEET WITH WHATEVER THE LEARNED PCIT'S CASE WAS BY EITHER PROVIDING A COPY OF THE REPORT OF THE INVESTIGATION WING WHICH FORMED THE VERY BASIS FOR HIM TO ISSUE THE NOTICE U/S . 263 AND OF THE STATEMENT OF SHRI PRATIK R. SHAH, A DIRE CTOR OF THE THREE COMPANIES IN QUESTION, ABOUT WHICH THE APPELL ANT LEARNT FOR THE FIRST TIME ONLY WHEN IT RECEIVED THE IMPUGN ED ORDER, AND THIS, IN SPITE OF THE FACT THAT THE APPELLANT HAD, IN RESPONSE TO THE NOTICE U/S 263, CATEGORICALLY REQUESTED AS UNDER: '1. ..IN THIS REGARD, THE ASSESSEE SUBMITS THA T THERE IS NO EVIDENTIARY PROOF IN THE REASONS REGARDING THE D ETAILS ON THE BASIS OF WHICH YOUR HONOUR HAS STARTED THE REVISION PROCEEDINGS. ACCORDINGLY, YOUR HONOUR IS REQUESTED TO PROVIDE THE ASSESSEE THE DETAILS RELYING ON WHICH YOUR HONOUR HAS INITIATED THE REVISION PROCEEDINGS TO ENABLE THE ASSESSEE TO PREPARE A DETAILED SUBMISSION IN THIS RESPECT. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND AN D/OR ALTER THE GROUND OR GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. ITA NO.1360/AHD/2015 RADHE DEVELOPERS [INDIA] LTD. VS. DCIT ASST.YEAR 2010-11 - 4 - 3. THE BRIEF FACTS OF THE CASE ARE THAT IN THIS CAS E, AN ENQUIRY REPORT WAS RECEIVED FROM INVESTIGATION WING THAT CA SH AMOUNTING TO RS.24.3 CRORES WERE DEPOSITED IN THE BANK ACCOUNT O F THE FOLLOWING CONCERNS:- 1) SHEETAL BIO AGROTECH LTD. 2] PLATINUM CORPORATION LTD. 3) AAGAM INFRASTRUCTURE PVT. LTD. THEREAFTER, MONEY WAS TRANSFERRED THROUGH CHEQUE TO THE BANK ACCOUNT OF 7 PERSONS. SUBSEQUENTLY, THEY HAVE TRANS FERRED THE AMOUNT TO THE BANK ACCOUNT OF MS. RADHE DEVELOPER S INDIA LTD. FOR PURCHASE OF CONVERTIBLE PREFERENTIAL WARRANT. HOWEVER, ON PERUSAL OF THE ASSESSMENT ORDER PASSED U/S.143(3) OF THE ACT DATED 30/03/2013, IT IS NOTIC ED BY PR.CIT THAT NO ENQUIRY WAS MADE BY THE ASSESSING OFFICER REGARD ING SOURCE OF SUCH AMOUNTS RECEIVED BY ASSESSEE WHILE FINALIZING THE ASSESSMENT ORDER. 3.1 THEREAFTER, PR. CIT(CENTRAL) ISSUED A NOTICE U/ S.263 OF THE ACT, SAME IS REPRODUCED AS UNDER: YOU HAVE FILED RETURN OF INCOME FOR ASSESSMENT YEA R 2010-11 DECLARING TOTAL INCOME AT RS.(-) 7,43,637/-. ASSESSMENT U/S.1 43(3) OF THE ACT, WAS FINALIZED ON 30/03/2013. 2. AS PER THE REPORT RECEIVED FROM THE INVESTIGATIO N WING OF THE DEPARTMENT CASH AMOUNTING TO RS.24.3 CRORES WAS DEP OSITED IN THE BANK ACCOUNT OF THE 3 COMPANIES VIZ, (1) SHEETAL BIO AGR OTECH LTD. (2) PLATINUM CORPORATION LTD. (3) AAGAM INFRASTRUCTURES PVT. LTD. AND THE SAME CASH WAS TRANSFERRED TO THE BANK ACCOUNT OF 7 PERSONS ON THE SAME DATE AND SUBSEQUENTLY THEY HAVE TRANSFERRED THE AMO UNT IN TO THE BANK ACCOUNT OF M/S. RADHE DEVELOPERS INDIA LTD. THEREFO RE, THE SUBSTANTIVE ADDITION OF SUCH CASH DEPOSITS WAS REQUIRED TO BE M ADE IN YOUR CASE. ITA NO.1360/AHD/2015 RADHE DEVELOPERS [INDIA] LTD. VS. DCIT ASST.YEAR 2010-11 - 5 - 3. HOWEVER, ON PERUSAL OF THE ASSESSMENT ORDER PASS ED U/S.143(3) OF THE ACT DTD. 30/03/2013, IT IS NOTICED THAT NO SUCH ADD ITION WAS MADE BY THE ASSESSING OFFICER. 4. IN VIEW OF THE ABOVE FACTS, THE ASSESSMENT ORDER PASSED U/S.143(3) DATED 30/03/2013 PASSED BY THE ASSESSING OFFICER IS PRIMA FACIE ERRONEOUS AS ALSO PREJUDICIAL TO THE INTEREST OF TH E REVENUE AND THEREFORE, I INTEND TO REVISE THE SAID ORDER U/S.26 3 OF THE IT ACT. 3.2 IN RESPONSE TO THE ABOVE SAID NOTICE APPELLANT FILED RETURN SUBMISSION AND SAME IS REPRODUCED AS UNDER: KINDLY REFER TO THE ABOVE. WITH REFERENCE TO THE A BOVE CAPTIONED SUBJECT THE ASSESSEE IS IN RECEIPT OF YOUR NOTICE NO. PR.CIT(C)/ITO(TECH)/2014-15, DATED 14.03.2015, IN W HICH YOUR HONOUR HAS PROPOSED TO TAKE AN ACTION UNDER SECTION 263 OF THE ACT FOR 2010-11: 1. THE ASSESSEE SUBMITS THAT YOUR HONOUR HAS STATED IN THE REASONS FOR INITIATING REVISION PROCEEDINGS THAT A REPORT H AS BEEN RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTMENT THAT CASH WAS DEPOSITED IN THE BANK ACCOUNT OF 3 COMPANIES MENTIO NED IN THE NOTICE WHICH WAS TRANSFERRED TO THE BANK ACCOUNT OF 7 PERS ONS AND SUBSEQUENTLY THEY HAVE TRANSFERRED THE AMOUNT INTO THE BANK ACCOUNT OF ASSESSEE COMPANY AND THEREFORE SUBSTANTIVE ADDIT ION OF SUCH CASH DEPOSIT IS REQUIRED TO BE MADE. IN THIS REGARDS, TH E ASSESSEE SUBMITS THAT THERE IS NO EVIDENTIARY PROOF IN THE REASONS R EGARDING THE DETAILS ON THE BASIS OF WHICH YOUR HONOUR HAS STARTED THE R EVISION PROCEEDINGS. ACCORDINGLY, YOUR HONOUR IS REQUESTED TO PROVIDE THE ASSESSEE THE DETAILS RELYING ON WHICH YOUR HONOUR H AS INITIATED THE REVISION PROCEEDINGS TO ENABLE THE ASSESSEE TO PREP ARE A DETAILED SUBMISSION IN THIS RESPECT. 2. KINDLY TREAT THIS AS DUE COMPLIANCE TO YOUR NO TICE, HOWEVER IF YOUR HONOUR REQUIRE ANY FURTHER DETAILS REGARDING ANY OF THE ISSUES PLEASE PROVIDE ASSESSEE A SPECIFIC OPPORTUNITY OF BEING HE ARD AND OBLIGE. 3.3 RETURN SUBMISSION FILED BY THE APPELLANT WERE C ONSIDERED BUT HELD THAT THE VERY REASON FOR REVISION OF ORDER OF AO IS THAT HE DID NOT ITA NO.1360/AHD/2015 RADHE DEVELOPERS [INDIA] LTD. VS. DCIT ASST.YEAR 2010-11 - 6 - CONSIDER THE REPORT OF INVESTIGATION WING WITH RESP ECT TO CASH DEPOSITED IN AFORESAID THREE COMPANIES AND SIMULTAN EOUSLY TRANSFERRED TO THE ASSESSEE COMPANY THROUGH DIFFERE NT PERSONS. 3.4 THEREAFTER PR. CIT CANCELLED THE ASSESSMENT ORD ER AND DIRECTED THE AO TO AGAIN COMPLETE THE ASSESSMENT AFTER MAKIN G APPROPRIATE ENQUIRY REGARDING THE SOURCE OF RS.24.3 CRORES TRAN SFERRED TO THE BANK ACCOUNT OF THE APPELLANT THROUGH SEVEN PERSONS . 4. AGAINST THE SAID ORDER ASSESSEE/APPELLANT PREFER RED APPEAL BEFORE US. 5. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER AND HEARD RIVAL CONTENTION. APPELLANT IS A BU ILDER AND DEVELOPER AND AN INFORMATION RECEIVED FROM THE INVE STIGATION WING AMOUNTING TO RS.24.3 CRORES WAS DEPOSITED IN THE NA ME OF 3 PERSONS AND THEREAFTER, SAME MONEY WAS TRANSFERRED TO BANK ACCOUNT OF 7 PERSONS AND THOSE 7 PERSONS WERE ALLOTTED EQUITY SH ARES AS FOLLOWS: LIST OF ALLOTMENT OF EQUITY SHARES AS ON 02-07.2009 SR NO. DATE OF ALLOTMENT; NAME & ADDRESS & OCCUPATION OF THE ALLOT TEES EQUITY SHARES 1. 02.07.2009 MRS. JHANAVI A. PATEL VITHALBHAI PATEL COLONY, NR. SARDAR PATEL COLONY, STADIUM ROAD, AHMEDABAD - 380 014. GUJARAT OCCUPATION : HOUSE WIFE 4500000 2 02.07.2009 MR. UDAYBHAI D. BHATT A-301 GALAXY COMPLEX, NATIONAL-HIGHWAY NO.8, OPP. GALAXY CINEMA, NARODA. AHMEDABAD- 382 330. GUJARAT OCCUPATION : BUSINESS 2100000 ITA NO.1360/AHD/2015 RADHE DEVELOPERS [INDIA] LTD. VS. DCIT ASST.YEAR 2010-11 - 7 - 3 02.07.2009 MRS. SHITAL P.SHAH 403, RAJ PALACE FLAT, 56, PRITAM NAGAR SOCIETY, ELLISBRIDGE, AHMEDABAD - 380 006. GUJARAT OCCUPATION : BUSINESS 2100000 4 02.07.009 MR. SAURABH K. SHAH A/102, VASUPUJYA APARTMENT, NR. ST. XAVIERS HIGH SCHOOL, NARANPURA, AHMEDABAD - 380 013, GUJARAT OCCUPATION : BUSINESS 2100000 5 02.07.009 MR. PRATHMESH G. BABOO A/5, SITA TOWER, NR. RACHNA SOCIETY, SATELLITE ROAD, AHMEDABAD - 380 015. GUJARAT. OCCUPATION : BUSINESS 2100000 6 02.07.009 MR. NAIMESH Y. PATEL 10/A SAURASHTRA SOCIETY, DHUMKETU MARG, PALDI, AHMEDABAD - 380 071. GUJARAT. OCCUPATION : BUSINESS 1000000 7 02.07.009 MR. RAJENDRASINGH S. RATHOD F-94, TIRTHDHAM, NR, SUREL APARTMENT, NR. SATYAGRAH CHAVNI, BODAKDEV, AHMEDABAD - 380 054. GUJARAT OCCUPATION : BUSINESS 1100000 TOTAL 1100000 6. WITH REGARD TO THESE 7 PERSONS, LD. AO IN PROCEE DING U/S.143(3) ISSUED A QUESTIONNAIRE U/S.142(1) OF INC OME TAX ACT AND SAME IS PART OF PAPER BOOK AT PAGE NO.14 TO 19. AT PAGE NO.17, LD. AO SPECIFICALLY ASKED FOR DETAILS OF SHARE HOLDERS. IN RESPONSE TO THAT APPELLANT FURNISHED DETAIL OF SHARE HOLDERS OF NEW SHARES ALLOTTED DURING THE YEAR IN THIS RESPONSE, SAME WAS PART OF ANNEXURE-2 OF REPLY FILED BY THE APPELLANT. IN THIS REGARD, A COP Y OF LEDGER ACCOUNT IN BOOKS OF OTHER CONCERN WAS ALSO SUBMITTED ALONG WIT H DETAILS OF BENEFICIAL OWNERS OF SHARES. ITA NO.1360/AHD/2015 RADHE DEVELOPERS [INDIA] LTD. VS. DCIT ASST.YEAR 2010-11 - 8 - 7. IN SUPPORT OF ITS CONTENTION, LD. AR CITED A JUD GMENT OF BOMBAY HIGH COURT IN THE MATTER OF CIT VS. NIRAV MODI. IN THIS CASE, HONBLE HIGH COURT HAS HELD WHERE ASSESSING OFFICER AFTER MAKING PROPER AND DETAILED ENQUIRES, TOOK A VIEW THAT AMOUNT WAS RECEIVED BY ASSESSEE AS GIFT FROM HIS RELATIVES WAS A GENUINE T RANSACTION, IMPUGNED REVISIONAL ORDER PASSED BY COMMISSIONER DI RECTING ASSESSING OFFICER TO ENQUIRE INTO CAPACITY OF DONOR S AND TO DECIDE ABOUT GENUINENESS OF GIFT AFRESH, WAS NOT SUSTAINAB LE. IT WAS SUBMITTED THAT NO ENQUIRY WAS DONE BY THE A SSESSING OFFICER TO FIND OUT WHETHER THE DONOR MR. DEEPAK MO DI (FATHER) HAD RECEIVED MONEY FROM M/S. CHANG JIANG AS CLAIMED. NO R ANY INQUIRY WAS DONE TO FIND OUT WHETHER THE SISTER HAD IN FACT EARNED AMOUNTS ON ACCOUNT OF FOREIGN EXCHANGE TRANSACTIONS AS CLAI MED BY HER. AS PER HONBLE HIGH COURT HELD THAT WE FIND THAT ENQUI RY OF A SOURCE OF SOURCE IS NOT THE REQUIREMENT OF LAW. SAME IS NOT P ERMISSIBLE. ONCE THE ASSESSING OFFICER WAS SATISFIED WITH THE EXPLAN ATION OFFERED ON INQUIRY, IT IS NOT OPEN TO THE CIT IN EXERCISE OF H IS REVSIONAL POWERS DIRECT THAT FURTHER ENQUIRY HAS TO BE DONE. AT THE VERY HIGHEST, THE CASE OF THE REVENUE IS THAT THIS IS A CASE OF INADE QUATE INQUIRY AND NOT OF NO ENQUIRY. IT IS WELL SETTLED THAT THE JU RISDICTION UNDER SECTION 263 OF THE ACT CAN BE EXERCISE BY THE CIT B Y THE COURT IN THE MATTER OF CIT VS. SHREEPATI HOLDINGS AND FINANCIAL (P.) LTD. [ITA 1879 OF 2013 DATED 5 TH OCTOBER, 2013], BY THE DELHI HIGH COURT IN CIT VS. VIKAS POLYMERS [2012] 341 ITR 537/194 TAXMAN 57 AND IN D.G. HOUSING PROJECTS (SUPRA). IN FACT THE DELHI HIGH CO URT IN D.G. HOUSING PROJECTS (SUPRA) WHILE SO HOLDING PLACED RELIANCE U PON THE DECISION OF THIS COURT IN GABRIEL (INDIA) LTD. (SUPRA). IT I S VERY IMPORTANT TO NOTE THAT THE CIT IN IS ORDER UNDER SECTION 263 OF THE ACT HAS RECORDED THE FACT THAT THERE HAS BEEN NO ADEQUATE I NQUIRY. THUS, THIS IS NOT A CASE OF NO INQUIRY, WARRANTING ORDER UNDER SECTION 263 OF THE ITA NO.1360/AHD/2015 RADHE DEVELOPERS [INDIA] LTD. VS. DCIT ASST.YEAR 2010-11 - 9 - ACT. THEREFORE, OBJECTION ON THIS PART OF REVENUE W AS NOT SUSTAINABLE IN THE EYES OF THE LAW. 8. LD. AR ALSO CITED AN ORDER OF OUR CO-ORDINATE BE NCH IN ITA NO.1454/AHD/2015 FOR ASST. YEAR 2010-11, IN THIS CA SE, IT HAS BEEN HELD AS UNDER: IT IS A SETTLED POSITION OF LAW THAT POWERS U/S 26 3 OF THE ACT CAN BE EXERCISED BY THE COMMISSIONER ON SATISFACTION OF TW IN CONDITIONS, I.E., THE ASSESSMENT ORDER SHOULD BE ERRONEOUS AND PREJUD ICIAL TO THE INTEREST OF THE REVENUE. BY 'ERRONEOUS' IS MEANT CO NTRARY TO LAW. THUS, THIS POWER CANNOT BE EXERCISED UNLESS THE COMMISSIO NER IS ABLE TO ESTABLISH THAT THE ORDER OF THE ASSESSING OFFICER I S ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THUS, W HERE THERE ARE TWO POSSIBLE VIEWS AND THE ASSESSING OFFICER HAS TAKEN ONE OF THE POSSIBLE VIEWS, NO ACTION TO EXERCISE POWERS OF REVISION CAN ARISE, NOR CAN REVISIONAL POWER BE EXERCISED FOR DIRECTING A FULLE R ENQUIRY TO FIND OUT IF THE VIEW TAKEN IS ERRONEOUS, WHEN A VIEW HAS ALR EADY BEEN TAKEN AFTER ENQUIRY. THIS POWER OF REVISION CAN BE EXERCI SED ONLY WHERE NO ENQUIRY, AS REQUIRED UNDER THE LAW, IS DONE. IT IS NOT OPEN TO ENQUIRE IN CASE OF INADEQUATE INQUIRY. 9. AS WE CAN SEE IN THIS CASE, ENQUIRY WAS MADE BY THE ASSESSING OFFICER AND ALL THE DETAILS WERE FURNISHED BY THE A PPELLANT AT PAGE NO.17. LD. ASSESSING OFFICER WAS SATISFIED WITH THE CONSEQUENT TO MAKING ENQUIRY AND EXAMINING THE EVIDENCE PRODUCED BY THE APPELLANT. INITIALLY MONEY WAS DEPOSITED IN THE ACC OUNTS OF 3 PERSONS THEREAFTER THROUGH CHEQUES PAYMENT WAS MADE TO 7 PE RSONS AND ALL ARE ASSESSED TO TAX THEREAFTER RS.24.3 CRORES WAS P AID TO THE APPELLANT AND APPELLANT COMPANY ISSUED SHARES TO TH E ABOVE SAID PERSONS. IF ANY ADDITION IS REQUIRED TO BE MADE SAM E SHOULD HAVE BEEN MADE IN THE HANDS OF 3 PERSONS WHO INITIALLY D EPOSITED THE MONEY IN THE BANK AND NOT IN HAND OF APPELLANT. ITA NO.1360/AHD/2015 RADHE DEVELOPERS [INDIA] LTD. VS. DCIT ASST.YEAR 2010-11 - 10 - 10. HONBLE SUPREME COURT HAS HELD IN THE CASE OF A MITABH BACHCHAN (SUPRA) THAT THERE CAN BE NO DOUBT WHERE T HE VIEW TAKEN BY THE ASSESSING OFFICER IS A POSSIBLE VIEW, INTERF ERENCE UNDER SECTION 263 OF THE ACT, IS NOT PERMISSIBLE. 11. IN OUR CONSIDERED OPINION, WE ARE OF THE OPINIO N THAT LD. AO HAS PASSED AN ORDER AFTER DETAILED ENQUIRY WITH REGARD TO SHARE HOLDERS AND ALL THE DETAILS WERE FURNISHED BY THE APPELLANT BEFORE THE ASSESSING OFFICER. HENCE, WE CANCEL THE ORDER OF TH E PCIT U/S.263 OF THE ACT. 12. IN THE RESULT, APPEAL FILED BY THE APPELLANT IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 13/04/2018 SD/- SD/- S D/- SD/- EKUHK CKSJM EKUHK CKSJM EKUHK CKSJM EKUHK CKSJM EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN YS[KK LNL; U;KF;D LNL; YS[KK LNL; U ;KF;D LNL; YS[KK LNL; U ;KF;D LNL; YS[KK LNL; U ;KF;D LNL; ( MANISH BORAD ) (MAHAVIR PRASA D) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 13/04/2018 PRITI YADAV, SR. PS 0 * '-12 32- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. !'# $ $ % &# / CONCERNED CIT 4. $ $ % &# () / THE PCIT(A)-AHMEDABAD. 5. )*+ #,!' , $ - !'. , / DR, ITAT, AHMEDABAD 6. +/ 01 / GUARD FILE. 0 + ! / BY ORDER, )# # //TRUE COPY// 4/! '$ ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD