Smt. Kumud Lohiya, JODHPUR V. ITO, JODHPUR

ITA 148/JODH/2014

• Counselvise Citation: 14823314 RSA 2014
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-07-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 07-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Assessee Lawyers: U C JAIN
• Keywords: Principle of natural justice; Corroborative evidences
• Section: 143(3); 68; 263

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 148 /JODH/2014 (A.Y. 200 9 - 1 0 ) SMT. KUMUD LOHIYA, PLOT NO. 10, NEHRU PARK, JODHPUR . VS. ITO, WARD - 2(1) , JODHPUR. PAN NO. ABHPL 8016 B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI U.C. JAIN & SHRI RAJENDRA JAIN. DEPARTMENT BY : SHRI O.P. MEENA - D.R. DATE OF HEARING : 24 / 0 7 /201 4 . DATE OF PRONOUNCEMENT : 16 /0 9 /201 4 . O R D E R PER N.K. SAINI, A.M TH IS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 1 9 /0 2 /2014 OF L D . CIT - I , J ODHPUR . THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 2 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LD. CIT - I , JODHPUR U/S. 263 OF I.T. ACT, 1961 IS BAD IN LAW, BAD IN FACTS AND PERVERSE. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT - I, JODHPUR GROSSL Y ERRED IN SETTING ASIDE THE ASSESSMENT ORDER PASSED BY THE LD. ITO, WARD - 2(1), JODHPUR U/S. 143(3) WITHOUT ANY FINDING AS TO HOW THE ASSESSMENT ORDER PASSED BY THE LD. A.O. IS ERRONEOUS SO AS IT IS PREJUDICIAL THE INTEREST OF REVENUE. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT - I, JODHPUR ERRED IN EXCEEDING HIS JURISDICTION BY GIVING DIRECTION TO A.O. AT PAGE 9 PARA 14 OF THE ORDER PARTICULARLY WHEN THE SAME WAS NOT SUBJECT MATTER OF NOTICE U/S. 263. THE ACTION OF THE LD. CIT - I, JODHPUR IS CONTRARY TO THE DECISION O F HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. CONTIMETERS ELECTRICALS P. LTD. REPORTED IN 317 ITR 249 FOLLOWING THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF COMMISSIONER OF CUS T OMS VS. TOYO ENGG. INDIA LTD. (2006) 7 (SC) 592. 4. THAT ON THE FAC TS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT - I, JODHPUR ERRED IN SETTING ASIDE THE ASSESSMENT ORDER PASSED BY THE LD. A.O U/S. 143(3) FOR: - A) VERIFICATION OF SOURCE OF DEPOSITS OF RS. 50,70,486/ - INCLUDING CASH DEPOSITS APPEARING IN THE BANK STATE MENT MAINTAINED WITH STATE BANK OF INDIA, ACCOUNT NO. 661010110000880 WHICH WAS EXPLAINED TO THE A.O. DURING THE ASSESSMENT PROCEEDINGS. B) SOURCE OF OPENING CASH BALANCE OF RS. 9,85,000/ - CLAIMED IN THE ASSESSMENT YEAR UNDER CONSIDERATION. C) APPLICATIONS OF PROVISIONS OF SECTION 68 OF THE I.T. ACT, FOR THE ABOVE, IF ANY LOAN WAS TAKEN BY THE ASSESSEE. D) APPLICATION OF PROVISION OF SECTION 2(22)(E) IN RESPECT OF LOANS AND ADVANCES TAKEN BY THE ASSESSEE FROM ANY PRIVATE LIMITED COMPANY IN WHOSE ACCOUNT BOO K PROFITS AS ON 1 ST APRIL OF THE F.Y. IS AVAILABLE. E) NATURE OF UTILIZATION OF AMOUNT PAID TO SHRI ASHOK LOHIYA. F) APPLICATION OF PROVISION OF SECTION 2(22)(E) IN THE HANDS OF SHRI ASHOK LOHIYA, IF THE AMOUNT HAD BEEN RECEIVED FROM THE PRIVATE LTD. COMPA NY THROUGH THE ASSESSEE AS LOAN AND FINALLY UTILIZED BY SHRI ASHOK LOHIYA ; AND 3 G) NATURE OF UTILIZATION OF AMOUNT OF RS. 5 LAKHS GIVEN TO M/S. AMIT CONSTRUCTION FROM SAVING ACCOUNT OF THE ASSESSEE. 5) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT - I, JODHPUR ERRED IN SETTING ASIDE THE ASSESSMENT ORDER PASSED BY LD. A.O. PARTICULARLY WHEN THE LD. A.O. PASSED THE ASSESSMENT ORDER AFTER EXAMINATION OF DOCUMENTS PRODUCED BY THE ASSESSEE . 6) THAT THE PETITIONER MAY KINDLY BE PERMITTED TO RAISE ANY ADDITIONAL OR ALTERNATIVE GROUND AT OR BEFORE THE TIME OF HEARING. 7) THE PETITIONER PRAYS FOR JUSTICE & RELIEF. 2 FROM THE ABOVE GROUNDS, IT WOULD BE CLEAR THAT THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO THE ACTION OF THE LD. CIT IN SETTING ASIDE OF THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S. 143(3) OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) BY INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT . 3. FACTS RELATING TO THIS CASE, IN BRIEF, ARE THAT THE ASSESSEE FIL E D THE RETURN OF INCOME ON 31/03/2010 DECLARING TOTAL INCOME OF RS. 5,22,640/ - . THE ASSESSMENT WAS COMPLETED U/S. 143 (3) OF THE ACT ON 22/07/2011 DETERMINING THE TOTAL INCOME AT RS. 5,34, 640/ - . LATER ON, THE LD. CIT - I, JODHPUR EXERCISED HIS REVISIONARY POWERS U/S. 263 OF THE ACT AND NOTED THAT THE ASSESSEE PURCHASED PLOT OF LAND SITUATED AT RA MSUKH NAGAR, JODHPUR FOR TOTAL CONSIDERATION OF RS. 11,30,000/ - . I N SUPPORT OF SOURCE OF PURCHASE OF PLOT, THE ASSESSEE FILED A COPY OF BANK STATEMENT D URING THE COURSE OF ASSESSMENT PROCEEDINGS AND STATED THAT SHE HAD TAKEN LOAN 4 OF RS. 8,45,000/ - FROM THE BANK AND REST OF THE AMOUNT OF RS. 2,50,000/ - HAD BEEN BORROWED FROM SOMEWHERE ELSE . THE LD. CIT ALSO OBSERVED THAT THE ASSESSEE VIDE LETTER DATED 22/07/2011 FILED COPY OF HER LEDGER ACCOUNT IN THE BOOKS OF M/S. AMBIKA STEELYARDS, JODHPUR , SALARY ACCOUNT WITH M/S. SARASWATI ART PALACE INTERNATIONAL LTD. AND COPY OF LE DGER ACCOUNT IN THE BOOKS OF M/S. SARASWATI ART I MPEX SHOWING RS. 10,50,000/ - RECEIPT FROM IT AND UNSIGNED COPY OF LEDGER ACCOUNT IN THE BOOKS OF M/S. SARASWATI ART PALACE INTERNATIONAL LTD. SHOWING RECEIPT OF RS. 11,15,000/ - . THE LD. CIT ALSO POINTED OUT THAT IN THE QUESTIONNAIRE DATED 09/06/2011, THE ASSESSING OFFICER ASKED 36 QUESTIONS. ACCORDING TO HIM THE QUESTIONNAIRE ISSUED BY THE ASSESSING OFFICER WAS WITHOUT APPLICATION OF MIND AS MOS T OF THE QUESTIONS WERE RE L ATED TO CONCERN CARRYING ON BUSINESS/ MANUFACTURING ACTIVITY. HE ALSO POINTED OUT THAT THE ASSESSEE IN HER SUBMISSIONS TO THE ASSESSING OFFICER HAD MENTI O NED AS UNDER: - (A) SHE WAS NOT INVOLVED IN ANY KIND OF BUSINESS ACTIVITY DURING THE F .Y. 2008 - 09 . (B) SHE WAS ONLY DIRECTOR IN M/S. SARASWATI ART PALACE INTERNATIONAL LTD. (C) SHE IS HAVING A SAVING BANK ACCOUNT WITH BANK OF INDIA VIDE ACCOUNT NO. 661010110000880 . (D) SHE CONFIRMS THAT NO CONSTRUCTION ACTIVITY HAS BEEN CARRIED OUT DURING THE F .Y. 2008 - 09 (E) NO BOOKS OF ACCOUNTS HAVE BEEN MAINTAINED BY HER. 5 4. THE LD. CIT POINTED OUT THAT THE ASSESSEE HAD DEPOSITED AGGREGATED AMOUNT OF RS. 50,70,486/ - IN THE SAVING BANK ACCOUNT , OUT OF WHICH, A SUM OF RS. 7 ,39,000/ - WAS BY CASH AND NO ENQUIRY WAS MADE BY THE ASSESSING OFFICER FOR SOURCE OF THE TOTAL DEPOSITS APPE ARING IN THE BANK ACCOUNT. HE WAS OF THE VIEW THAT THE ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT WAS IN THE NATURE OF WITHOUT APPLICATION OF MIND. HE, THEREFORE, CONSIDERED THE S AME AS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. ACCORDINGLY, THE LD. CIT ISSUED A SHOW - CA U S E NOTICE U/S. 263 OF THE ACT TO THE ASSESSEE. 5. IN RESPONSE , THE ASSESSEE SUBMITTED A CASH FLOW STATEMENT SHOWING OPENING CASH OF RS. 9,85,000/ - OUT OF WHICH CASH WITHDRAWALS AND DEPOSITS WERE MADE IN SAVING BANK ACCOUNT. THE ASSESSEE ALSO FILED COPY OF LEDGER ACCOUNT IN THE BOOKS OF M/S. SARASWATI ART PALACE INTERNATIONAL LTD. AND SALARY ACCOUNT FOR THE F.Y. 2008 - 09 . THE ASSESSEE ALSO FURNISHED COPY OF CONFIRMATION OF ACCOUNTS WITH M/S. AMBIKA STEELYARDS AND COPY OF BANK STATEMENT WITH BANK OF INDIA . THE LD. CIT WAS NOT SATISFIED AND ASKED THE ASSESSEE AS UNDER: - PLEASE REFER TO LETTER DATED 1 ST OCTOBER, 2013 OF O.P. MAHESWARI AND ASSOCIATES, YOUR AUTHORIZE REPRESENTATIVE ON THE ABOVE MATTER. 2) . IN THE EXPLANATION SUBMITTED BY YOUR AUTHORIZE D REPRESENTATIVE, IT HAS BEEN 6 SUBMITTED THAT THE ASSESSEE IS AN INCOME - TAX ASSESSEE AND HAS BEEN F IL ING RETURN OF INCOME SINCE LAST 10 YEARS. IN THE CASH FLOW STATEMENT FOR THE F.Y. RELEVANT TO A.Y. 2009 - 10, AN OPENING BALANCE OF RS. 9, 85, 000 HAS BEEN SHOWN. PLEASE PRODUCE IN THIS REGARD, PRIMARY DOCUMENT TO PROVE YOUR CONTENTION. IN THE SECOND PARA, THE A UTHORIZE D REPRESENTATIVE HAS SUBMITTED COPY OF CONFIRMATION OF THE PARTIES FROM WHOM CHEQUES HAVE BEEN RECEIVED. PLEASE STATE WHETHER THESE CONFIRMATIONS WERE PRODUCED BEFORE THE ASSESSING OFFICER, IF NOT, WHY THE SAME SHOULD BE CONSIDERED IN THE PROCEEDING U/S 263. 3) . PLEASE SUBMIT COPY OF BANK STATEMENT STA T ING FROM DATE OF OPENING ONWARDS WITH BANK OF INDIA ACCOUNT NO. 880. 4) . AS PER THE CASH FLOW STATEMENT COMPARING WITH BANK STATEMENT, IT IS FOUND THAT CASH DEPOSITS HAVE BEEN UTILIZED FOR THE PU RPOSE OF GIVING AMOUNT TO SH. ASHOK LOHIYA AND PAYMENT TO SARASWATI ART IMPEX AND PURCHASE OF PLOTS. PLEASE STATE FOR WHAT PURPOSE PAYMENT TO SH. ASHOK LOHIYA WAS GIVEN AND FILE COPY OF PURCHASE - DEED FOR PLOTS. 5) IT IS FURTHER FOUND THAT IN YOUR ACCOUNT, RS . 5, 50, 000 WAS RECEIVED O N 6 TH NOVEMBER, 2008 BY TRANSFER FROM ACCOUNT NO. 0038. FOR THIS TRANSACTION NO CONFIRMATION HAS BEEN SUBMITTED BEFORE THE ASSESSING OFFICER BY YOU AND RS. 5 LAKHS ON 5 LH DECEMBER, 2008 ALSO. 6) . YOU HAVE AVAILED LOAN OF RS. 8, 40, 000 ON 31 ST JANUARY, 2009, PLEASE STATE WHAT ASSETS WERE GIVEN FOR AVAILING OF LOAN FACILITY, PLEASE FURNISH DOCUMENTS RELATING TO TAKING OF LOAN FACILITY FROM THE BANK. 7) . FURTHER ON 16 TH MARCH, 2009 RS. 2, 25, 000 IS DEPOSITED IN YOUR ACCOUNT BY TRANS FER AND RS, 5, 12, 000 ON 17 TH MARCH BY TRANSFER CD 694, PLEASE STATE WHERE FROM YOU GOT THIS FUND AND WHETHER ANY CONFIRMATION LETTER IN RESPECT OF THESE CREDITS WERE FILED. 8) IT IS FURTHER NOTICED THAT RS. 2 LAKHS ON 19 TH MARCH, 2009 AND ANOTHER ENTRIES O F RS. 2 LAKHS ON THE SAME DATE HAS BEEN CREDITED BY WAY OF TRANSFER FROM CD 694. PLEASE STATE WHETHER HAVE YOU FILED CONFIRMATION LETTER IN RESPECT OF THESE TRANS AC TION, IF YES, BY WHICH LETTER OF YOURS THE CONFIRMATORY LETTER AND SOURCE OF CREDITS APPEARI NG WERE FILED BEFORE THE ASSESSING OFFICER. 9) THERE IS ON ONE PAYMENT BY WAY OF CHEQUE ON 23 RD MARCH, 2009 BY RS. 5 7 LAKHS TO AMIT CONSTRUCTION, PLEASE STATE WHAT ASSET YOU HAVE PURCHASED FROM AM IT CONSTRUCTION AS IN YOUR LETTER SUBMITTED BEFORE THE ASSESSIN G OFFICER, YOU HAVE MENTIONED AT P A RA NO. 7 THAT NO CONSTRUCTION ACTIVITY HAS BEEN CARRIED OUT DURING THE PREVIOUS YEAR 2008 - 09. 10) THE CASE FOR THE ABOVE MATTER IS POSTED ON 28 TH OCTOBER, 2013. 6 . THE LD. CIT POINTED OUT THAT THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE FILED A LETTER DATED 30/12/2013 WITHOUT ENCLOSING ANY SUPPORTING EVIDENCE. HE ALSO POINTED OUT THAT THE ASSESSING OFFICER HAD NOT MADE ANY ENQUIRY IN RESPECT OF DEPOSITS OF RS. 50,70,486/ - APPEARING IN THE SAVING BANK ACCOUN T INCLUDING CASH DEPOSITS OF RS. 7,39,000/ - NOR THE ASSESSEE HAD FURNISHED SOURCE OF SO CALLED OPENING CASH BAL AN CE . HE ALSO OBSERVED THAT THE ASSESSING OFFICER HAD NOT EXAMINED AS TO WHETHER THE PROVISIONS OF SECTION 2(22)(E) OF THE ACT WERE APPLICABLE IN RESPECT OF AMOUNT BORROWED FROM M/S. SARASWATI ART PALACE INTERNATION AL LTD. WHERE THE ASSESSEE IS A DIRECTOR . HE ACCORDINGLY, CONSIDERED THE ASSESSMENT ORDER DATED 22/07/2011 AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. RELIANCE WAS PL ACED ON THE FOLLOWING CASE LAWS: - 1. CIT VS. ALBORZ INDUSTRIES 56 DTR 334/198 TAXMAN 419 . (H.P.) 2. CIT VS. TOYOTA MOTOR CORPORATION 306 ITR 49 (DEL.) 3. SMT. RENU GUPTA VS. CIT 301 ITR 45. (RAJ.) 4. KALEKHAN MOHAMMAD HANNIF VS. CIT 50 ITR 1 (S.C.) 5. SMT. TARADEVI AGARWAL VS. CIT 88 ITR 323 . (S.C.) 6. COLOURCRAFT VS. ITO 303 ITR (AT) 7. (MUMB . ITAT) 8 ACCORDINGLY, THE ASSESSMENT ORDER DATED 22/07/2011 WAS SET ASIDE AND THE ASSESSING OFFICER WAS DIRE C TED TO DECIDE THE CASE AFRESH. NOW THE ASSESSEE IS IN APPEAL. 7 . LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSING OFFICER EXAMINED THE CASE THOROUGHLY AND THEREAFTER PASSED THE ASSESSMENT ORDER U/S. 143(3) OF THE ACT. IT WAS FURTHER SUBMITTED THAT THE ASSESSING OFFICER ISSUED A DETAILED QUESTIONNAIRE TO THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE ASSESSEE VIDE LETTER DATED NIL, 18/07/2011 & 22/07/2011 (COPIES OF WHICH ARE PLACED AT PAGE NOS. 14 TO 20 OF THE ASSESSEES PAPER BOOK) GAVE THE REPLY AND EXPLAINED EACH AND EVERY QU ERY RAISED BY THE ASSESSING OFFICER RELATING TO THE HOUSEHOLD EXPENSES, PURCHASE OF PROPERTY ETC. AND ALSO FURNISHED COPIES OF BANK ACCOUNT WHICH ARE PLACED AT PAGE NOS. 21 TO 25 OF THE ASSESSEES PAPER BOOK. THEREFORE, LD. CIT WAS NOT JUSTIFIED IN DIRECTING THE ASSESSING OFFICER TO HOLD ANOTHER INVESTIGATION WITHOUT DESCRIBING AS TO HOW THE ORDER OF THE ASSESSING OFFICER WAS ERRONEOUS. RELIANCE WAS PALCED ON THE JUDGMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. LEISURE WEAR EXPORT LTD. REPORTED IN (2010) 46 DTR (DEL.) 97 . RELIANCE WAS ALSO PLACED ON THE FOLLOWING CASE LAWS: - 9 1. BIKAR SINGH VS. CIT [(2013) 36 CCH 494 (JODH - TRIB.)] 2. JEEWANRAM CHOUDHARY VS. CIT [ (2013) 35 CCH 490 (JODH - TRIB.)] 3. BASANT VS. CIT [ (2012) 66 DTR 275 ] 4. PAWAN KUMAR VS. ASSESSING OFFICER [ (2007) 106 TTJ (JD) 494] IT WAS FURTHER SUBMITTED THAT THE ORDER PASSED BY THE ASSESSING OFFICER WAS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE. THEREFORE, LD. CIT WAS NOT JUSTIFIED IN SETTING ASIDE THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S. 143(3) OF THE ACT. 8 . IN HIS RIVAL SUBMISSIONS, LEARNED D.R. STRONGLY SUPPORTED THE ORDER OF THE LD. CIT(A) AND FURTHER SUBMITTED THAT THE ASSESSING OFFICER DID NOT MAKE PROPER ENQUIRIES RELATING TO THE DEPOSITS IN THE BANK ACCOUNT AND THE OPENING CASH BALANCE SHOWN BY THE ASSESSEE IN THE CASH FLOW STATEMENT AND AL SO THE APPLICATION OF THE PROVISIONS OF SECTION 2(22)(E) OF THE ACT. THEREFORE, LD. CIT RIGHTLY HELD THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. RELIANCE WAS PLACED ON THE FOLLOWI NG CASE LAWS: - 1. MALABAR INDUSTRIAL CO. LTD. VS. CIT [243 ITR 83] (S.C.) 2. GEE VEE ENTERPRISES VS. ACIT & ORS. [ 99 ITR 375] (DEL.) 3. AMBIKA AGRO SUPPLIERS VS. ITO [95 ITD 326] (PUNE) 10 9 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS ISSUE D A QUESTIONNAIRE AND ASKED THE ASSESSEE TO FURNISH COPY OF BANK ACCOUNT WHICH WAS FURNISHED AND EXAMINED BY THE ASSESSING OFFICER THOROUGHLY . THE ASSESSING OFFICER WAS SATISFIED WITH THE EXPLANATION OF THE ASSESSEE RELATING TO THE DEPOSITS AND WITHDRAWALS IN THE BANK ACCOUNT AND N O ADDITION WAS MADE. HOWEVER, LD. CIT WAS OF THE VIEW THAT PROPER ENQUIRY WAS NOT MADE BY THE ASSESSING OFFICER, BUT NOTHING WAS BROUGHT ON RECORD TO SUBSTANTIATE THAT HOW AND IN WHAT MANNER , PROPER ENQUIRY WAS NOT MADE BY THE ASSESSING OFFICER . IT IS RELEVANT TO POINT OUT THAT THE ASSESSING OFFICER SPECIFICALLY MENTIONED IN THE BODY OF THE ASSESSMENT ORDER THAT THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED FROM TIME TO T IME AND FURNISHED BANK PASS BOO K, FORM - 16 IS S U ED BY THE EMPLOYER AND RELEVANT DETAILS WHICH WERE EXAMINED BY TEST CHECK AND CASE WAS DISCUSSED. THE ASSESSING OFFICER ALSO EXAMINED THE CAPITAL ACCOUNT OF THE ASSESSEE AND ACCEPTED THE HOUSEHOLD EXPENSES WHICH WERE WITHDRAWN FROM THE CAPITAL ACCOUNT. THE ASSESSING OFFICE R ALSO MENTIONED IN THE BODY OF THE ASSESSMENT ORDER DATED 22/07/2011 THAT THE ASSESSEE DERIVED INCOME BY SALARY AS A 11 DIRECTOR OF M/S. SARASWATI ART PALACE INTERNATIONAL LTD. AND ALSO RECEIVED INTEREST. HE ALSO POINTED OUT THAT T HE ASSESSEE PURCHASE D RESIDENTIAL PROPERTY SITUATED AT PLOT NO. 17, RAMSUKH NAGAR, JODHPUR AND HAD TAKEN A LOAN FROM THE BANK FOR PURCHASE OF THE PROPERTY. THE ASSESSING OFFICER ALSO MENTIONED THAT THE ASSESSEE HAD SUBMITTED REGISTRY OF PLOT, CONFIRMATION OF WITHDRAWALS AND U NSECURED LOANS AND THE DETAILS OF THE INVESTMENTS ETC. THE ASSESSING OFFICER ON BEING SATISFIED FRAMED THE ASSESSMENT U/S. 143(3) OF THE ACT, THEREFORE, THE LD. CIT WAS NOT JUSTIFIED IN HOLDING THAT THE ASSESSING OFFICER HAD NOT MADE PROPER ENQUIRIES OF T HE SAVING BANK ACCOUNT, CONSTRUCTION ACTIVITY, LOAN FROM M/S. SARASWATI ART PALACE INTERNATION AL LTD. ETC. ON THE CONTRARY, THE ASSESSING OFFICER SPECI F ICALLY ASKED THE ASSESSEE REGARDING THE ABOVE SAID ISSUES AND WAS SATISFIED FROM THE REPLY GIVEN BY THE ASSESSEE (COPIES OF WHICH ARE PLACED AT PAGE NOS. 14 TO 27 OF THE ASSESSEES PAPER BOOK) . THOSE REPLIES ALSO CONTAINED THE COPIES OF BANK STATEMENT SHOWING SOURCE OF CASH DEPOSITS IN THE BANK ACCOUNT DETAIL OF EXPENDITURE AND CONFIRMATION OF ACCOUNT. TH EREFORE, IT CANNOT BE SAID THAT THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER WITHOUT MAKING ENQUIRIES. IN OUR OPINION, THE ASSESSING OFFICER HAD TAKEN PLAUSIBLE VIEW AFTER MAKING NECESSARY ENQUIRIES. THEREFORE, A MERE DISAGREEMENT OR DISSATISFACTION OF 12 THE LD. CIT OVER THE MANNER OF ASSESSMENT CANNOT BE A BASIS FOR REVISION OF THE ORDER U/S. 263 OF THE ACT. 1 0. ON A SIMILAR ISSUE, T HE HON'BLE DELHI HIGH COURT ON A SIMILAR ISSUE IN THE CASE OF CIT VS. LEISURE WEAR EXPORTS LTD. REPORTED IN 341 ITR 166 (SUPRA) HAS HELD AS UNDER: - THE PREREQUISITE TO THE EXERCISE OF SUO MOTU JURISDICTION UNDER S. 263 BY THE CIT IS THAT THE ORDER OF THE AO IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. TWO CONDITIONS ARE TO BE SATISFIED, N AMELY, (I) THE ORDER OF THE AO SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) THE ERROR COMMITTED BY THE AO IN THE ORDER IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. BOTH THESE CONDITIONS ARE TO BE SATISFIED SIMULTANEOUSLY. IT IS ALSO WELL - SETTLED PRINCIPLE THAT PROVISIONS OF S. 263 WOULD NOT BE INVOKED MERELY TO CORRECT A MISTAKE OR ERROR COMMITTED BY THE AO UNLESS IT HAS CAUSED PREJUDICE TO THE INTEREST OF THE REVENUE. IF AN ORDER IS BASED ON INCORRECT ASSUMPTION OF FACTS OR ON INCORRECT APPLICATION OF LAW OR WITHOUT APPLYING THE PRINCIPLES OF NATURAL JUSTICE AND WITHOUT APPLICATION OF MIND, IT WOULD BE TREATED AS ERRONEOUS. LIKEWISE, THE EXPRESSION 'PREJUDICIAL TO THE INTEREST OF THE REVENUE' IS OF WIDE IMPORT AND IS NOT CONFINED TO LOSS OF TAX. IF DUE TO AN ERRONEOUS ORDER OF THE AO THE REVENUE IS LOSING TAX LAWFULLY PAYABLE BY A PERSON, IT WOULD BE CERTAINLY PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE POWER OF REVISION IS NOT MEANT TO BE EXERCISED FOR THE PURPOSE OF DIRECTING THE AO TO HOLD ANOTHER INVESTIGATION WITHOUT DESCRIBING AS TO HOW THE ORDER OF THE AO IS ERRONEOUS. FROM THIS IT ALSO FOLLOWS THAT WHERE THE ASSESSMENT ORDER HAS BEEN PASSED BY THE AO AFTER TAKING INTO ACCOUNT THE ASSESSEE'S SUBMISSIONS AND DOCUMENTS FURNISHED BY HIM AND NO MAT ERIAL WHATSOEVER HAS BEEN BROUGHT ON RECORD BY THE CIT WHICH SHOWED THAT THERE WAS ANY DISCREPANCY OR FALSITY IN EVIDENCES FURNISHED BY THE ASSESSEE, THE ORDER OF THE AO CANNOT BE SET ASIDE FOR MAKING DEEP INQUIRY ONLY ON THE PRESUMPTION AND ASSUMPTION THA T SOMETHING NEW MAY COME OUT. FOR MAKING A VALID ORDER UNDER S. 263 IT IS ESSENTIAL THAT THE CIT HAS TO RECORD AN EXPRESS FINDING TO THE EFFECT THAT ORDER 13 PASSED BY THE AO IS ERRONEOUS WHICH HAS CAUSED LOSS TO THE REVENUE. FURTHERMORE, WHERE ACTING IN ACCO RDANCE WITH LAW THE AO FRAMES CERTAIN ASSESSMENT ORDER, SAME CANNOT BE BRANDED AS ERRONEOUS SIMPLY BECAUSE ACCORDING TO THE CIT, THE ORDER SHOULD BE WRITTEN MORE ELABORATELY . 1 1 . IN THE PRESENT CASE ALSO, THE ASSESSING OFFICER FRAMED THE ASSESSMENT IN ACCORDANCE WITH LAW AFTER MAKING DEEP ENQUIRY ON ALL THE ISSUES ON WHICH THE LD. CIT PRESUMED THAT PROPER ENQUIRY WAS NOT MADE. THEREFORE, ONLY ON THIS BASIS THAT T HE ORDER SHOULD BE WRITTEN MORE ELABORATELY IT CANNOT BE SAID THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WAS ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF THE REVENUE . WE THEREFORE, ARE OF THE VIEW THAT THE LD. CIT WAS NOT JUSTIFIED IN DIRECTING THE ASSESSING OFFICER TO MAKE FURTHER INVESTIGATIONS AFRESH WHEN THE ASSESSING OFFICER HAD ALREADY APPLIED HIS MIND AND THOROUGHLY EXAMINED THE ISSUE S WHICH WERE DIRECTED TO BE REEXAMINED BY THE LD. CIT. T HEREFORE, BY CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT THE ASSESSMENT ORDER DATED 22/07/2011 PASSED BY THE ASSESSING OFFICER WAS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE . IN THAT VIEW OF THE MATTER, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT AND RESTO RE THE ASSESSMENT ORDER FRAMED B Y THE ASSESSING OFFICER. 14 1 2 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ( ORDER PRONOUNCED IN THE COURT ON 16 TH SEPTEMBER , 201 4) . S D/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 16 TH SEPTEMBER , 201 4 . VR/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .