M/S JEEWAN COMMODITIES PVT LTD., MUMBAI V. PR CIT 4, MUMBAI

ITA 1404/MUM/2020

• Counselvise Citation: [2020] 109 COUNSELVISE.COM (IT) 9498 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2015-2016
• Appeal Filed On: 05-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMATHA M
• Assessee Lawyers: A GAURAV BANSAL
• Keywords: Unexplained expenditure; Gift; Revised return
• Section: 68; 263; 271(1)(c); 143(3); 274; 13; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (V I RTUAL COURT) , F BENCH MUMBAI BEFORE SHRI MAHAVIR SINGH, VP & SHRI M.BALAGANESH, AM ITA NO. 1404 /MUM/ 20 20 ( ASSESSMENT YEAR : 2015 - 16 ) M/S. JEEWAN COMMODITIES PVT. LTD., SHOP NO.4102, 2 ND FL OOR, RUSTOMJEES EAZE ZONE CTS, NO.1214/1, LAXMI SINGH COMPLEX, GOREGAON WEST MUMBAI 400 064 VS. THE PR. CIT - 4, MUMBAI ROOM NO.629 AAYAKAR BHAVAN MUMBAI 400 020 PAN/GIR NO. AAACJ7106K (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY SHRI A GAURAV BANSAL REVENUE BY MS. SAMATHA M DATE OF HEARING 01 / 10 /2020 DATE OF PRONOUNCEMENT 21 / 12 /2020 / O R D E R PER M. BALAGANESH (A.M) : THIS APPEAL IN ITA NO. 1404/MUM/2020 FOR A.Y. 2015 - 16 PREFERRED BY THE ORDER AGAINST THE REVISION ORDE R OF THE LD. PRINCIPAL COMMISSIONER OF INCOME TAX - 4, MUMBAI U/S. 263 OF THE ACT DATED 14/02/2020 FOR THE A.Y.2015 - 16. ITA NO . 1404/MUM/2020 M/S. JEEWAN COMMODITIES PVT. LTD., 2 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS WHETHER THE LD. PR. COMMISSIONER (PCIT) WAS JUSTIFIED IN INVOKING REVISIONARY JURISDICTION U/ S.263 OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT ASSESSEE IS A NON - BANKING FINANCIAL COMPANY. WE FIND THAT THE ASSESSEE HAD FILED ITS R ETURN OF INCOME FOR A.Y.2015 - 16 ON 31/10/2015 DECLARING TOTAL INCOME OF RS.65,330/ - . THE ASSESSMENT WAS COMPLETED U/S.143(3) OF THE ACT ON 15/12/2017 DETERMINING TOTAL INCOME AT RS.5,98,08,120/ - . LATER, THIS ASSESSMENT WAS SOUGHT TO BE REVISED BY THE LD. P CIT BY INVOKING REVISIONARY JURISDICTION U/S.263 OF THE ACT ON THE GROUND THAT ASSESSEE HAD LONG TERM BORROWINGS OF RS.8,62,57,029/ - AND OTHER CURRENT LIABILITIES OF RS.86,30,91,880/ - WHICH WERE NOT VERIFIED BY THE LD.AO WHILE COMPLETING THE ASSESSMENT PRO CEEDINGS. NON - VERIFICATION OF THE SAID DETAILS AND NON - ENQUIRY THEREON HAD CAUSED P REJUDICE TO THE INTEREST S OF THE REVENUE AND ALSO MAKING THE ORDER OF THE LD. AO ERRONEOUS IN THE MIND OF THE LD. PCIT. ACCORDINGLY, HE PASSED REVISION ORDER U/S.263 OF THE ACT ON 14/02/2020. 4. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 5. WE FIND THAT THE LD. AR PRIMARILY SUBMITTED THAT THE VERY SAME ISSUE OF LONG TERM BORROWINGS AND OTHER CURRENT LIABILITIES WAS INDEED SUBJECT MATTER OF ENQUIRY / VERIFICATION BY THE LD. AO IN THE SCRUTINY ASSESSMENT PROCEEDINGS. WE FIND FROM PAGES 1 - 2 OF THE PAPER BOOK CONTAINING 63 PAGES FILED BEFORE US, THE NOTICE ISSUED BY THE LD. AO U/S.142(1) OF THE ACT TOGETHER WITH THE SHOW - CAUSE NOTICE AND QUESTIONNAIRE CALLING FOR VARIOUS DE TAILS FROM THE ASSESSEE. IN THAT, WE FIND THAT QUESTIONS NOS. 1 & 2 SPECIFICALLY POINT OUT THE LOANS TAKEN BY THE ITA NO . 1404/MUM/2020 M/S. JEEWAN COMMODITIES PVT. LTD., 3 ASSESSEE TO BE FURNISHED IN THE FORMAT SUBMITTED BY THE LD. AO AND ALSO OTHER LIABILITIES PAYABLE AMOUNTING TO RS.86.30 CRORES ASKING FOR NAME , ADDRESS AND PAN AND SUPPORTING DOCUMENTS SUBSTANTIATING THE TRANSACTIONS. THIS SHOW - CAUSE NOTICE TOGETHER WITH THE QUESTIONNAIRE WAS ISSUED BY THE LD. AO ON 27/11/2017 DURING THE COURSE OF ASSESSMENT PROCEEDINGS. WE FIND THAT ASSESSEE HAD FILED THREE UND ATED REPLIES BEFORE THE LD.AO, WHEREIN IN ONE OF THE REPLIES, THE ASSESSEE HAD SPECIFICALLY FURNISHED THE ENTIRE DETAILS OF LONG TERM BORROWINGS ALONG WITH CONFIRMATION OF ACCOUNTS, ITR ACKNOWLEDGEMENT AND BALANCE SHEET O F LOAN CREDITORS AND IN YET ANOTHER REPLY IT HAD ALSO FURNISHED THE DETAILS OF OTHER CURRENT LIABILITIES TOGETHER WITH CONFIRMATION FROM PARTIES, ITR ACKNOWLEDGEMENTS AND BALANCE SHEET OF THE CREDITORS. THESE REPLIES ARE ENCLOSED IN PAGES 3 - 5 OF THE PAPER BOOK FILED B EFORE US CONTAINING 63 PAGES. WE ALSO FIND THAT ASSESSEE HAD FURNISHED YET ANOTHER REPLY BEFORE THE LD.AO WHEREIN SPECIFICALLY IT HAD FURNISHED THE DETAILS OF OTHER CURRENT LIABILITIES, DETAILS OF LONG TERM BORROWINGS, DETAILS OF NON - CURRENT INVESTMENTS, DETAILS OF LOANS AND ADV ANCES AND DETAILS OF OTHER CURRENT ASSETS. THIS IS ENCLOSED IN PAGE 6 OF THE PAPER BOOK. THE DETAILS OF LONG TERM BORROWINGS CONTAINING THE NAME, ADDRESS, PAN, E - MAIL ID AND THE LOAN AMOUNT BORROWED TOTALLING TO RS.8,62,57,029/ - FROM SEVEN PARTIES FILED BE FORE THE LD.AO ARE ENCLOSED IN PAGE 7 OF THE PAPER BOOK FILED BEFORE US. WE FIND THAT THE DETAILS OF OTHER CURRENT LIABILITIES CONTAINING NAME, ADDRESS, PAN, E - MAIL ID AND THE AMOUNTS OUTSTANDING AS ON 31/03/2015 IN RESPECT OF EACH PARTY THEREON TOTALLING TO RS.86,30,91,880/ - ARE ENCLOSED IN PAGE 8 OF THE PAPER BOOK FILED BEFORE US WHICH WAS ADMITTEDLY FILED BEFORE THE LD. AO. WE FIND THAT THESE TWO LETTERS ARE ALREADY ON RECORD WHICH HAS ALSO BEEN ACKNOWLEDGED BY THE LD. PCIT IN HIS REVISION ORDER. WHILE T HIS IS SO, WE ARE UNABLE TO PERSUADE OURSELVES TO ACCEPT TO THE FINDING RECORDED BY THE LD. PCIT THAT NO ITA NO . 1404/MUM/2020 M/S. JEEWAN COMMODITIES PVT. LTD., 4 ENQUIRIES PER SE WERE CARRIED OUT BY THE LD. AO WITH REGARD TO LONG TERM BORROWINGS AND OTHER CURRENT LIABILITIES IN THE SCRUTINY ASSESSMENT PROCEEDING S. WE FIND THAT THE AFORESAID DETAILS OF LONG TERM BORROWINGS AND OTHER CURRENT LIABILITIES WERE ADMITTEDLY FILED BEFORE THE LD. AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE LD. AO ON EXAMINATION OF THE SAME HAD ARRIVED AT THE RIGHT CONCLUSION TH AT THOSE LIABILITIES ARE INDEED GENUINE AND HAD ACCORDING LY RESORTED NOT TO MAKE ANY ADDITION THEREON. MERELY BECAUSE THERE IS NO DISCUSSION IN THE ASSESSMENT ORDER REGARDING A PARTICULAR ITEM ENQUIRED BY THE LD. AO, IT DOES NOT MAKE THE ORDER OF THE LD. A O ERRONEOUS. IT IS VERY WELL SETTLED THAT THE LD. AO COULD BE EXPECTED TO ADDRESS ONLY THOSE ISSUES ON WHICH HE IS NOT IN AGREEMENT WITH THE SUBMISSIONS / CLAIMS MADE BY THE ASSESSEE IN THE RETURN OF INC OME. HENCE, ONLY DISPUTED ISSUE IS THE SUBJECT MATTER OF DISCUSSIONS IN THE ASSESSMENT ORDER. WE HOLD THAT THE LD. AO IS NOT REQUIRED TO WRITE A THESIS AND RECORD HIS FINDING IN THE ASSESSMENT ORDER ON THE ASPECTS WHICH HE IS ACCEPTING. WHAT IS REQUIRED FOR THE PURPOSE OF INITIATION OF SECTION 263 PROCEEDING S IS THAT WHETHER DUE ENQUIRIES WERE INDEED CARRIED OUT BY THE LD. AO ON A PARTICULAR ISSUE. IF THOSE ENQUIRIES HAVE BEEN MADE AND THE ASSESSEE HAD DULY COMPLIED WITH THE SAME BY FURNISHING REQUISITE DETAILS WITH ALL EVIDENCES, AND THE LD. AO IF HE IS SATI SFIED WITH THOSE DETAILS COULD TAKE THE SAME TO THE LOGICAL CONCLUSION BY NOT MAKING ANY ADD ITION THEREON IN THE ASSESSMENT, TH ESE TANTAMOUNT TO DUE APPLICATION OF MIND ON THE PART OF THE LD. AO AND PROPER ENQUIRIES BEING CARRIED OUT BY HIM IN THE SCRUTIN Y ASSESSMENT PROCEEDINGS. THE LAW IS VERY WELL SETTLED THAT THE REVISIONARY JURISDICTION U/S.263 OF THE ACT COULD BE INITIATED BY THE PCIT ONLY FOR LACK OF ENQUIRY ON THE PART OF THE LD. AO AND NOT FOR INADEQUATE ENQUIRY. WE FIND FROM THE PERUSAL OF THE EN TIRE ORDER OF THE LD. P CIT THAT THE LD. PCIT HAD ALLEGED THAT THE LD. AO HAD NOT MADE ANY ENQUIRY AT ALL ON THE ISSUE OF LONG TERM BORROWINGS AND ITA NO . 1404/MUM/2020 M/S. JEEWAN COMMODITIES PVT. LTD., 5 OTHER CURRENT LIABILITIES. IT IS NOT THE CASE OF THE PCIT THAT THE LD. AO HAD INDEED MADE ENQUIRIES BUT HE HAD NOT MADE REQUISITE ENTRIES THEREON . H ENCE, IN OUR CONSIDERED OPINION, THE LD. PCIT GROSSLY ERRED IN INVOKING REVISIONARY JURISDICTION WHICH IS AGAINST THE SETTLED LEGAL PRINCIPLES AND MORE SO IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE . RELIANCE I N THIS REGARD IS PLACED ON THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. NIRAV MODI REPORTED IN 71 TAXMANN.COM 272. 7. FIRSTLY, THE REVENUE CONTENDS THAT THE EXERCISE OF POWERS UNDER SECTION 263 OF THE ACT IS JUSTIFIED AS I N THIS CASE, AS NO INQUIRY IN RESPECT OF THE GIFTS RECEIVED DURING THE SUBJECT YEARS WAS DONE BY THE ASSESSING OFFICER FOR THE ASSESSMENT ORDERS FOR ASSESSMENT YEARS 2007 - 08 AND 2008 - 09. THIS ACCORDING TO THE REVENUE IS EVIDENT FROM THE ASSESSMENT ORDERS D ATED 31ST DECEMBER, 2009 AND 30TH DECEMBER, 2010 WHICH DOES NOT EVEN MAKE A MENTION OF THE GIFTS RECEIVED MUCH LESS DISCUSS AND/OR DEAL WITH THE SAME. THIS ISSUE IS NO LONGER RES INTEGRA AS THIS COURT IN IDEA CELLULAR LTD. V. DY. CIT REPORTED IN 301 ITR 40 7 HAS HELD THAT IF DURING ASSESSMENT PROCEEDINGS QUERIES WERE RAISED AND THE ASSESSEE RESPONDED TO THE SAME, THEN EVEN IF AN ASSESSMENT ORDER DOES NOT MENTION THE SAME, IT DOES NOT MEAN THAT THE ASSESSING OFFICER HAS NOT APPLIED HIS MIND TO THE ISSUES. IT WOULD BE WELL NIGH IMPOSSIBLE FOR AN ASSESSING OFFICER TO COMPLETE ALL ASSESSMENTS ASSIGNED TO HIM UNDER SECTION 143(3) OF THE ACT IF HE IS REQUIRED TO DEAL WITH ALL ISSUES WHICH AROSE DURING THE ASSESSMENT PROCEEDINGS. THUS, THE ASSESSMENT ORDER PRIMARILY DEAL WITH ONLY THOSE ISSUES IN RESPECT OF WHICH THE ASSESSEE HAS NOT BEEN ABLE TO SATISFY HIM AND GIVE REASONS FOR HIS CONCLUSION. THIS WOULD ENABLE THE ASSESSEE TO CHALLENGE THE SAME, IF AGGRIEVED. IN FACT THE GUJARAT HIGH COURT IN CIT V. NIRMA CHEMICAL WORKS LTD. REPORTED IN 309 ITR 67 HAS OBSERVED THAT IF AN ASSESSMENT ORDER WERE TO INCORPORATE THE REASONS FOR UPHOLDING THE CLAIM MADE BY AN ASSESSEE, THE RESULT WOULD BE AN EPIC TOME AND NOT AN ASSESSMENT ORDER. IN THIS CASE, DURING THE ASSESSMENT PROCEE DINGS FOR BOTH THE ASSESSMENT YEARS, THE ASSESSING OFFICER ISSUED A QUERY MEMOS TO THE ASSESSEE, CALLING UPON HIM TO JUSTIFY THE GENUINENESS OF THE GIFTS. THE RESPONDENT - ASSESSEE RESPONDED TO THE SAME BY GIVING EVIDENCE OF THE COMMUNICATIONS RECEIVED FROM HIS FATHER AND HIS SISTER I.E. THE DONORS OF THE GIFTS ALONG WITH THE STATEMENT OF THEIR BANK ACCOUNTS. ON PERUSAL, THE ASSESSING OFFICER WAS SATISFIED ABOUT THE IDENTITIES OF THE DONORS, THE SOURCE FROM WHERE THESE FUNDS HAVE COME AND ALSO THE CREDITWORTH INESS/CAPACITY OF THE DONOR. ONCE THE ASSESSING OFFICER WAS SATISFIED WITH REGARD TO THE SAME, THERE WAS NO FURTHER REQUIREMENT ON THE PART OF THE ASSESSING OFFICER TO DISCLOSE HIS SATISFACTION IN THE ASSESSMENT ORDER PASSED THEREON. THUS, THIS OBJECTION O N THE PART OF THE REVENUE, CANNOT BE ACCEPTED. ITA NO . 1404/MUM/2020 M/S. JEEWAN COMMODITIES PVT. LTD., 6 8. IT IS NEXT SUBMITTED THAT THE DONOR HAD NOT BEEN EXAMINED BY THE ASSESSING OFFICER. IT IS NOT IN EVERY CASE THAT EVERY EVIDENCE PRODUCED HAS TO BE TESTED BY CROSS EXAMINATION OF THE PERSON GIVING THE EVIDE NCE. IT IS ONLY IN CASES WHERE THE EVIDENCE PRODUCED GIVES RISE TO SUSPICION ABOUT ITS VERACITY THAT FURTHER SCRUTINY IS CALLED FOR. IF THERE IS NOTHING ON RECORD TO INDICATE THAT THE EVIDENCE PRODUCED IS NOT RELIABLE AND THE ASSESSING OFFICER WAS SATISFIE D WITH THE SAME, THEN IT IS NOT OPEN TO THE CIT TO EXERCISE HIS POWERS OF REVISION WITHOUT THE CIT RECORDING HOW AND WHY THE ORDER IS ERRONEOUS DUE TO NOT EXAMINING THE DONORS. THUS, THIS OBJECTION TO THE IMPUGNED ORDER BY THE REVENUE IS ALSO NOT SUSTAINAB LE. 9. IT WAS NEXT SUBMITTED THAT NO ENQUIRY WAS DONE BY THE ASSESSING OFFICER TO FIND OUT WHETHER THE DONOR MR. DEEPAK MODI (FATHER) HAD RECEIVED MONEY FROM M/S. CHANG JIANG AS CLAIMED. NOR ANY INQUIRY WAS DONE TO FIND OUT WHETHER THE SISTER HAD IN FACT EARNED AMOUNTS ON ACCOUNT OF FOREIGN EXCHANGE TRANSACTIONS AS CLAIMED BY HER. WE FIND THAT THIS ENQUIRY OF A SOURCE OF SOURCE IS NOT THE REQUIREMENT OF LAW. ONCE THE ASSESSING OFFICER IS SATISFIED WITH THE EXPLANATION OFFERED ON INQUIRY, IT IS NOT OPEN TO THE CIT IN EXERCISE OF HIS REVISIONAL 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 INADEQUATE INQUIRY AND NOT OF 'NO ENQUIRY.' IT IS WELL SETTLED THAT THE JURISDICTION UNDER SECTI ON 263 OF THE ACT CAN BE EXERCISED BY THE CIT ONLY WHEN ITS A CASE LACK OF ENQUIRY AND NOT ONE OF INADEQUATE ENQUIRY. THIS VIEW HAS BEEN TAKEN BY THIS COURT IN THE MATTER OF CIT V. M/S. SHREEPATI HOLDINGS & FINANCE PVT. LTD., UNREPORTED - (ITA 1879 OF 2013 DATED 5TH OCTOBER,2013), BY THE DELHI HIGH COURT IN CIT V. VIKAS POLYMERS 341 ITR 537 AND IN DG HOUSING PROJECTS (SUPRA). IN FACT THE DELHI HIGH COURT IN DG HOUSING PROJECTS (SUPRA) WHILE SO HOLDING PLACED RELIANCE UPON THE DECISION OF THIS COURT IN GABRIE L (INDIA) LTD., (SUPRA). IT IS VERY IMPORTANT TO NOTE THAT THE CIT IN HIS ORDER UNDER SECTION 263 OF THE ACT HAS RECORDED THE FACT THAT THERE HAS BEEN NO ADEQUATE INQUIRY. THUS, THIS IS NOT A CASE OF NO INQUIRY, WARRANTING ORDER UNDER SECTION 263 OF THE AC T. THUS, THIS OBJECTION ON THE PART OF THE REVENUE, IS ALSO NOT SUSTAINABLE. 10. THE REVENUE PLACED RELIANCE UPON THE DECISION OF THE DELHI HIGH COURT IN DG HOUSING PROJECTS LTD., (SUPRA) THAT AS THE ASSESSING OFFICER HAD NOT ENQUIRED INTO THE SOURCE OF T HE SOURCE OF THE GIFTS RECEIVED BY THE ASSESSEE, THE ASSESSMENT ORDER IS ERRONEOUS. THE AFORESAID DECISION HOLDS THAT THE POWER OF REVISION UNDER SECTION 263 OF THE ACT WOULD NORMALLY BE EXERCISED IN CASE OF NO ENQUIRY AND NOT IN CASES OF INADEQUATE ENQUIR Y. HOWEVER, EVEN IN CASE OF INADEQUATE ENQUIRY BY THE ASSESSING OFFICER, THE ORDER OF THE ASSESSING OFFICER COULD BE ERRONEOUS IN TWO CLASSES OF SITUATION. THE FIRST CLASS WOULD BE WHERE ORDERS PASSED BY THE ASSESSING OFFICER ARE EX - FACIE ERRONEOUS I.E. A DECISION RENDERED IGNORING A BINDING DECISION IN FAVOUR OF THE REVENUE OR WHERE ENQUIRY IS PER - SE MANDATED ON THE BASIS OF THE RECORD AVAILABLE BEFORE THE ASSESSING OFFICER AND THAT IS NOT DONE. IN THE SECOND ITA NO . 1404/MUM/2020 M/S. JEEWAN COMMODITIES PVT. LTD., 7 CLASS OF CASES, WHERE THE ORDER IS NOT EX - FACIE ERRONEOUS, THEN THE CIT MUST HIMSELF CONDUCT AN ENQUIRY AND DETERMINE IT TO BE SO. THE COURT HELD THAT IT IS NOT PERMISSIBLE TO THE CIT WHILE EXERCISING POWER UNDER SECTION 263 OF THE ACT TO REMIT THE ISSUE TO THE ASSESSING OFFICER TO RE - EXAMINE THE SAME AND FIND OUT WHETHER EARLIER ORDER OF ASSESSMENT IS ERRONEOUS. IT IS THE CIT WHO MUST HOLD THAT THE ORDER IS ERRONEOUS, DULY SUPPORTED BY REASONS. IN THE PRESENT FACTS, THE CIT IN EXERCISE OF ITS POWERS UNDER SECTION 263 OF THE ACT HAS MERELY RESTORED THE ASSESSMENT TO THE ASSESSING OFFICER TO DECIDE WHETHER THE GIFTS WERE GENUINE AND, IF NOT, THEN THE ASSESSMENT COULD BE COMPLETED ON APPLICATION OF SECTION 68 OF THE ACT. IN THIS CASE, THE ORDER PASSED BY THE ASSESSING OFFICER IS NOT PER - SE ERRONEOUS AND FU RTHER THE CIT HAS NOT GIVEN ANY REASONS TO CONCLUDE THAT THE ORDER IS ERRONEOUS. IN FACT, HE DIRECTS THE ASSESSING OFFICER TO FIND OUT WHETHER THE ORDER IS ERRONEOUS BY MAKING FURTHER ENQUIRY. THIS THE DECISION OF THE DELHI HIGH COURT IN DG HOUSING PROJECT S LTD., (SUPRA), CLEARLY NEGATES. IN THE ABOVE VIEW, THE DECISION OF DELHI HIGH CURT IN DG HOUSING PROJECTS LTD., (SUPRA) WOULD NOT ASSIST THE REVENUE IN THE PRESENT FACTS. 11. FURTHER, RELIANCE IS PLACED UPON BY THE REVENUE UPON THE DECISION OF THE APEX COURT IN AMITABH BACHCHAN ( SUPRA ) TO IMPUGN THE ORDER OF THE TRIBUNAL. IN THE FACTS OF THE SUPREME COURT DECISION, THE RESPONDENT - ASSESSEE HAD FILED A REVISED RETURN, CLAIMING ADDITIONAL EXPENSES. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER C ALLED UPON THE ASSESSEE TO FURNISH THE DETAILS WITH REGARD TO THE EXPENSES CLAIMED TO BE INCURRED. THE ASSESSEE THEREIN POINTED OUT THAT THE PAYMENTS FOR EXPENSES HAD COME OUT OF CASH BALANCE AVAILABLE WITH HIM. WHEN THE ASSESSING OFFICER COMMENCED ENQUIRY IN RESPECT OF THE CLAIM OF EXPENDITURE OUT OF CASH BALANCE AVAILABLE, SEEKING TO INVOKE SECTION 69(C) OF THE ACT AND TREAT THE EXPENDITURE CLAIMED AS UNEXPLAINED EXPENDITURE, THE ASSESSEE THEREIN WITHDREW HIS REVISED RETURN OF INCOME. ONCE THIS WAS DONE, THE ASSESSING OFFICER ACCEPTED THE SAME AND DID NOT MAKE ANY FURTHER ENQUIRY. THE CIT IN EXERCISE OF ITS POWERS UNDER SECTION 263 OF THE ACT NOTICED THAT THE ASSESSEE HAD AFTER HAVING PRESSED HIS CLAIM FOR EXPENDITURE IN CASH, WITHDREW THE CLAIM BY WITHDRA WING THE REVISED RETURN OF INCOME. THIS WAS DONE ONLY AFTER THE ENQUIRY HAD COMMENCED. THIS WITHDRAWAL OF REVISED INCOME AND CONSEQUENT CLAIM FOR CASH EXPENDITURE WAS CONTRARY TO THE STAND OF THE ASSESSEE HIMSELF. THIS CHANGE ON THE PART OF THE ASSESSEE ON COMMENCEMENT OF ENQUIRY, MADE FURTHER ENQUIRY INTO HIS CLAIM FOR CASH EXPENDITURE NECESSARY. IN THE ABOVE FACTS, THE CIT WHILE EXERCISING HIS POWERS UNDER SECTION 263 OF THE ACT FOUND THAT THE FACTS ON RECORD PER SE MANDATED AN ENQUIRY TO BE MADE INTO THE CLAIM OF THE ASSESSEE AND NOT DOING THE SAME RESULTED IN THE ORDER BEING ERRONEOUS. THUS, THE BACHCHAN'S CASE WAS A CASE WHERE ONCE THE CLAIM WAS WITHDRAWN, THEN ENQUIRY WHICH WAS TO BE CONDUCTED, WAS ABORTED BY THE ASSESSING OFFICER. THEREFORE, A CASE OF NON - ENQUIRY. IT MAY HAVE BEEN DIFFERENT, IF THE ASSESSING OFFICER HAD ENQUIRED INTO THE CASH EXPENDITURE AND ITS SOURCE AS CLAIMED, TO COME TO HIS OWN CONCLUSION AND EVEN ACCEPTED THE STAND OF THE ASSESSEE. IN SUCH A CASE, ITA NO . 1404/MUM/2020 M/S. JEEWAN COMMODITIES PVT. LTD., 8 EVEN IF THE CIT WOULD HAVE TAKEN A VIEW THAT THE SATISFACTION OF THE ASSESSING OFFICER IS NOT CORRECT, HE WOULD NOT HAVE BEEN ABLE TO EXERCISE HIS POWERS OF REVISION UNDER SECTION 263 OF THE ACT. 12. IN THE PRESENT FACTS, THE ASSESSING OFFICER WAS SATISFIED, CONSEQUENT TO MAKING AN ENQU IRY AND EXAMINING THE EVIDENCE PRODUCED BY THE ASSESSING OFFICER, ESTABLISHING THE IDENTITY AND CREDITWORTHINESS OF THE DONOR AS ALSO THE GENUINENESS OF THE GIFT. THE CIT IN HIS ORDER OF REVISION, DOES NOT INDICATE ANY DOUBTS IN RESPECT OF THE GENUINENESS OF THE EVIDENCE PRODUCED BY THE ASSESSEE. THE SATISFACTION OF THE ASSESSING OFFICER ON THE BASIS OF THE DOCUMENTS PRODUCED IS NOT SHOWN TO BE ERRONEOUS IN THE ABSENCE OF MAKING A FURTHER ENQUIRY. IT IS MADE CLEAR THAT OUR ABOVE OBSERVATIONS SHOULD NOT BE I NFERRED TO MEAN THAT IT IS OPEN TO THE ASSESSING OFFICER TO ENQUIRE INTO THE SOURCE OF SOURCE FOR THE PURPOSE OF THE PRESENT FACTS. THIS IS A CASE WHERE A VIEW HAS BEEN TAKEN BY THE ASSESSING OFFICER ON ENQUIRY. EVEN IF THIS VIEW, IN THE OPINION OF THE CIT IS NOT CORRECT, IT WOULD NOT PERMIT HIM TO EXERCISE POWER UNDER SECTION 263 OF THE ACT. IN FACT, THE APEX COURT IN AMITABH BACHCHAN ( SUPRA ) HAS OBSERVED THAT THERE CAN BE NO DOUBT THAT WHERE THE VIEW TAKEN BY THE ASSESSING OFFICER IS A POSSIBLE VIEW, INTE RFERENCE UNDER SECTION 263 OF THE ACT, IS NOT PERMISSIBLE. 13 . IN VIEW OF THE ABOVE, THE QUESTIONS AS FRAMED STANDS CONCLUDED BY THE DECISION OF THIS COURT IN GABRIEL (INDIA) LTD. ( SUPRA ). THUS NO SUBSTANTIAL QUESTIONS OF LAW ARISES FOR OUR CONSIDERATION. 14. ACCORDINGLY, APPEALS DISMISSED. NO ORDER AS TO COSTS. 5.1. IT IS PERTINENT TO NOTE THAT THE SPECIAL LEAVE PETITION PREFERRED BY THE REVENUE BEFORE THE HONBLE APEX COURT AGAINST THIS JUDGMENT HAS BEEN DISMISSED BY THE HONBLE APEX COURT WHICH IS RE PORTED IN 77 T AXMANN.COM 15. 5.2. EVEN OTHERWISE, WE FIND THAT THE LD. CIT HAD RECORDED FINDING IN PARA 4 OF HIS ORDER THAT ASSESSEE HAD FURNISHED ALL THOSE DETAILS PERTAINING TO LONG TERM BORROWINGS AND OTHER CURRENT LIABILITIES ON 19/04/2018. THIS WE FI ND IS FACTUALLY INCORRECT. ON ONE HAND IN PARA 3 THE LD. PCIT SAYS THAT ASSESSEE HAS FURNISHED THREE UNDATED LETTERS BEFORE THE LD. AO WHICH ADMITTEDLY CONTAINED THE DETAILS OF LONG TERM BORROWINGS AND OTHER CURRENT LIABILITIES AS STATED SUPRA. BUT IN PARA 4, THE SAME PCIT SAYS THAT ITA NO . 1404/MUM/2020 M/S. JEEWAN COMMODITIES PVT. LTD., 9 THE SAME DETAILS WERE FURNISHED BEFORE THE LD. AO ONLY ON 19/04/2018. FROM THE PERUSAL OF THE PAPER BOOK CONTAINING 63 PAGES FILED BY THE ASSESSEE BEFORE US, WE FIND THAT THE LETTER DATED 19/04/2018 FILED BEFORE THE LD. AO WAS O NLY IN RESPECT OF PENALTY PROCEEDINGS INITIATED BY THE LD. AO U/S.271(1)(C) OF THE ACT GIVING REPLY TO SHOW - CAUSE NOTICE U/S. 274 R.W.S. 271(1)(C) OF THE ACT AND ALSO REQUEST ING THE LD. AO TO ADJUST THE REFUND AVAILABLE IN ASSESSEES CASE TOWARDS DEMAND AR ISING FOR A.Y.2015 - 16. THE SAID LETTER DATED 19/04/2018 IS ENCLOSED IN PAGE 13 OF THE PAPER BOOK FILED BEFORE US. HENCE, IT COULD BE SAFELY CONCLUDED THAT THE LD. PCIT HAD INVOKED REVISIONARY JURISDICTION IN THE INSTANT CASE BY INCORRECT ASSUMPTION OF FACT , WHICH IS NOT PERMISSIBLE IN LAW . ANY ORDER PASSED U/S.263 OF THE ACT ON INCORRECT ASSUMPTION OF FACT REQUIRES TO BE DISMISSED IN LIMINE . 5.3. IN VIEW OF THE AFORESAID OBSERVATIONS, WE HOLD THAT LD. PCIT GROSSLY ERRED IN INVOKING REVISIONARY JURISDICTION IN THE INSTANT CASE AND ACCORDINGLY, THE ORDER PASSED U/S.263 OF THE ACT IS HEREBY QUASHED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 21 / 12 /2020 BY WAY OF PROPER MENTIONING IN THE NOTICE BOARD. SD/ - ( MAHAVIR SINGH ) SD/ - (M.BALAGANESH) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI ; DATED 21 / 12 / 2020 KARUNA , SR.PS ITA NO . 1404/MUM/2020 M/S. JEEWAN COMMODITIES PVT. LTD., 10 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. T HE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//