SAHAYAMATHA SALTERNS PVT. LIMITED, TUTICORIN V. DCIT CIRCLE 1, TUTICORIN

ITA 1498/CHNY/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0961 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 13-05-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A SUNDARARAJAN
• Keywords: Gift; Search and seizure; Assessment record; Set aside
• Section: 143(3); 153A; 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI . . . , , [BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ] ./I.T.A. NO.1498/CHNY/2019 ! / ASSESSMENT YEAR : 2014-2015. M/S. SAHAYAMATHA SALTERNS PVT. LTD, 13-A-1, MEENAKSHIPURAM WEST, TUTICORIN 628 002. TAMIL NADU VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE I, TUTICORIN. [PAN AACCS 0545D] ( / APPELLANT) ( /RESPONDENT) '# $ % / APPELLANT BY : SHRI. G. BASKAR, ADVOCATE &' '# $ % /RESPONDENT BY : SHRI. A. SUNDARARAJAN, ADDL. CIT. ( ) $ * /DATE OF HEARING : 04-12-2019 +,! $ * /DATE OF PRONOUNCEMENT : 11-12-2019 / O R D E R PER INTURI RAMA RAO, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AG AINST THE ORDER OF THE LD. PRINCIPAL COMMISSIONER OF INCOME T AX-1, MADURAI ITA NO.1498/2019 :- 2 -: (PCIT FOR SHORT) DATED 27.03.2019 FOR THE ASSES SMENT YEAR (AY) 2014-2015 PASSED U/S.263 OF THE INCOME TAX ACT, 196 1 (IN SHORT THE ACT) 2. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL : 1.1 THE IMPUGNED ORDER OF THE CIT U/S.263 IS ERRO NEOUS, OPPOSED TO LAW AND FACTS AND IS LIABLE TO BE CANCEL LED. 1.2 THE CIT ERRED IN PASSING THE ORDER WITHOUT APPL ICATION OF MIND AND WITHOUT ADVERTING TO THE SUBMISSIONS MADE BEFORE HIM. 1.3 THE CIT ERRED IN INVOKING THE PROVISIONS OF SEC TION 263 INSOFAR AS THE ASSESSMENT ORDER IS NEITHER PREJUDIC IAL TO THE INTERESTS OF THE REVENUE NOR ERRONEOUS. 2.1 THE CIT FAILED TO PROPERLY APPRECIATE THE DETAI LED SUBMISSIONS THAT THERE COULD BE NO PREJUDICE TO THE INTEREST OF REVENUE IF THE AC HAD NOT TRAVELLED BEYOND THE SCOP E OF THE LIMITED SCRUTINY FOR WHICH THE RETURN WAS SELECTED. 2.2 THE CIT ERRED IN SUMMARILY BRUSHING ASIDE THE F ACT THAT THE ASSESSMENT WAS PENDING FOR LIMITED SCRUTINY BY HOLD ING THAT IT WAS A MERE PROCEDURAL MATTER. 2.3 THE CIT ERRED IN HOLDING THAT THE AC OUGHT TO H AVE ACTED UPON A NEW ISSUE, WHICH CAN BE INITIATED ONLY UNDER COMPLETELY DIFFERENT PROCEEDINGS U/S 153C IN THE PENDING ASSES SMENT PROCEEDINGS. 2.4 IN ANY EVENT, THE CIT FAILED TO NOTE THAT PROCE EDINGS U/S 153C R.W.S. 153A WERE ACTUALLY INITIATED ON 28.11.2 016 AND ON BEING OBJECTED TO BY THE ASSSESSEE, THE AC WITHDREW THE SAME BEFORE THE ASSESSMENT WAS COMPLETED. 2.5 THE CIT ERRED IN REFERRING TO SECTION 153C WHIC H IS NOT AT ALL APPLICABLE TO THIS YEAR. 2.6 THE CIT ERRED IN HOLDING THAT THE ASSESSING OFF ICER DID NOT CONDUCT NECESSARY ENQUIRIES AND VERIFICATIONS, WHIC H IS CONTRARY TO THE RECORDS. ITA NO.1498/2019 :- 3 -: 3. THE CIT ERRED IN RELYING ON CASES THAT ARE TOTAL LY DISTINGUISHABLE ON FACTS AND HAS FAILED TO APPRECIA TE THE SUBMISSIONS OF THE APPELLANT IN THE PROPER PERSPECT IVE. 4. ANY OTHER GROUND THAT MAY BE RAISED AT THE TIME OF HEARING. 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER: THE APPELLANT M/S. SAHAYAMATHA SALTERNS PVT. LTD, I S A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956. IT IS ENGAGED IN THE BUSINESS OF SALT PRODUCTION AND TRA DING. THE RETURN OF INCOME FOR THE AY 2014-15 WAS FILED ON 30.09.2014 D ISCLOSING TOTAL INCOME OF RS.63,15,640/-. AGAINST THE SAID RETURN O F INCOME, THE ASSESSMENT WAS COMPLETED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE I, TUTICORIN (HEREINAFTER CALLED AO ) VIDE ORDER DATED 30.12.2016 PASSED U/S. 143(3) OF THE ACT, AT TOTAL INCOME OF RS. 869,88,850/-. 4. WHILE THE MATTER STOOD THUS, THE LD. PCIT, MADURA I-1 ON SUO- MOTU EXAMINATION OF ASSESSMENT RECORDS FOR TH E ASSESSMENT YEAR 2014-2015 FOUND THAT THE ASSESSING OFFICER HA D FAILED TO CONSIDER THE INFORMATION PASSED ON TO HIM BY THE A SSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, MADUR AI VIDE LETTER ITA NO.1498/2019 :- 4 -: DATED 03.10.2016 WHEREBY THE ASSESSING OFFICER WAS INFORMED THAT THE ASSESSEE HAD PURCHASED LAND MEASURING 383.42 AC RES AT PERIAKULAM VILLAGE IN RAMANATHAPURAM DIST AND AGAIN ST THE TOTAL CONSIDERATION OF G10,92,74,700/-, ASSESSEE HAD DIS CLOSED PURCHASE CONSIDERATION OF G3,18,76,896/-. THIS INFORMATION STATED TO HAVE BEEN FOUND CONSEQUENT TO THE SEARCH AND SEIZURE OPERATIO NS IN THE CASE OF M/S. DSF GROUP TO WHOM THE SAID PROPERTY WAS SOLD BY THE ASSESSEE AND THE SAID GROUP HAD ADMITTED RECEIPT OF ON-MONE Y CONSIDERATION BEFORE THE SETTLEMENT COMMISSION. DESPITE THIS SP ECIFIC INFORMATION BEFORE THE ASSESSING OFFICER, HE HAD FAILED TO CONS IDER THE SOURCES FOR ON-MONEY PAYMENT IN THE HANDS OF APPELLANT. 5. THEREFORE, LD. PCIT FORMED AN OPINION THAT THE ASS ESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, ACCORDINGLY ISSUED SH OW CAUSE NOTICE U/S.263 OF THE ACT ON 02.01.2019 CALLING UPON THE ASSESSEE TO SHOW CAUSE WHY AN ORDER SETTING ASIDE THE ASSESSMENT SH OULD NOT BE PASSED. 6. IN RESPONSE TO THE SHOW CAUSE NOTICE, THE ASSESSE E FILED DETAILED WRITTEN SUBMISSION ON 14.01.2019 CONTENDIN G THAT ASSESSMENT ITA NO.1498/2019 :- 5 -: WAS TAKEN UP FOR LIMITED SCRUTINY FOR THE PURPOSE O F VERIFYING THE FOLLOWING ITEMS. A) LARGE OTHER EXPENSES CLAIMED IN THE PROFIT AND LOSS ACCOUNT. B) MISMATCH BETWEEN INCOME/RECEIPT CREDITED TO PROF IT AND LOSS ACCOUNT CONSIDERED UNDER OTHER HEADS OF INCOME AND INCOME FROM HEADS OF INCOME OTHER THAN BUSINESS OF PROFESSION. THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFIC ER AFTER DUE VERIFICATION OF THOSE ITEMS AND THEREFORE THE ASSE SSMENT ORDER CANNOT BE SAID TO BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. HOWEVER, THE LD. PCIT OPINED THAT ASSESSING OFFICE R OUGHT TO HAVE CONSIDERED THE INFORMATION RECEIVED FROM THE DEPU TY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, MADURAI ON 18.09. 2015 DURING THE COURSE OF PENDENCY OF SCRUTINY ASSESSMENT PROCEEDI NGS. NON CONSIDERATION OF THIS INFORMATION RENDERED THE ASS ESSMENT ORDER ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE, ACCORDINGLY SET ASIDE THE ASSESSMENT WITH DIRECTION TO THE ASS ESSING OFFICER TO REDO THE ASSESSMENT AFTER CONSIDERING THE INFORMATION R ECEIVED FROM THE DEPUTY COMMISSIONER OF INCOME TAX AS WELL AS AFTER GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. ACCORDINGLY , HE SET ASIDE THE ASSESSMENT ORDER VIDE ORDER DATED 27.03.2019. ITA NO.1498/2019 :- 6 -: 7. BEING AGGRIEVED BY THE ORDER OF THE LD. PCIT, THE ASSESSEE IS IN APPEAL BEFORE US. IT IS CONTENTED THAT ASSESSME NT WAS COMPLETED BASED ON LIMITED SCRUTINY AND THE ASSESSING OFFICER CANNOT GO BEYOND THE ISSUE FOR WHICH THE CASE WAS SELECTED FOR SCRU TINY ASSESSMENT. IN THIS CONNECTION, HE RELIED ON THE CBDT INSTRUCTION NOS.20/2015, DATED 29 TH DECEMBER, 2015 AND 6/2017, DATED 21 ST JULY, 2017. HE ALSO PLACED RELIANCE ON THE SERIES OF FOLLOWING JUDICIA L DECISIONS. 01 ITO VS. PERICLES FOODS, 17 SOT 602 (MUMBAI TRIBUNA L) 02 GIFT LAND HANDIC RAFT VS. CIT, 108 TTJ 0312 (DELHI TRI BUNAL) 03 NAYEK PAPER CONVERTERS S. ACIT, 93 ITD 144 (KOL TRI BUNAL) 04 AJIT GUPTA VS. ITO, (2007) 108 TTJ 301 05 CIT VS. NARAYANA P. DEDHIA, 270 ITR 572 (AP) 06 DCIT VS. SUNITA FINLEASE LTD, 330 ITR 491 (CHAT) 07 KWALPRO EXPORTS VS. ACIT, 109 TTJ 086 9 08 CIT VS. AMAL GENERATORS LTD, 84 DTR 0045 09 CIT VS. HOWRAH FLOUR MILLS LTD, 236 ITR 156 10 CIT VS. PVP VENTURES, 211 TAXMAN 554 11 JAI COMMERCIAL CO. LTD. VS. JCIT, 66 TTJ 731 12 ANDHRA VALLEY POWER SUPPLY VS. DICT, 53 TTJ 0647 . AND DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SMT. PADMAVATHI VS. ITO IN ITA NO.1306/CHNY/2019, DATED 02.12.2019 FOR ASSESSMENT YEAR 2014-2015 . 8. PER CONTRA, LD. SR. DEPARTMENTAL REPRESENTATIVE PLACING RELIANCE ON THE ORDERS OF LOWER AUTHORITIES SUBMITT ED THAT CIRCULARS ITA NO.1498/2019 :- 7 -: GAVE LIBERTY TO THE ASSESSING OFFICER TO CONSIDER A NY OTHER ITEMS WHICH WOULD COME TO HIS NOTICE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THUS, HE SUBMITTED THAT THE LD. PCIT W AS RIGHT IN EXERCISING THE POWERS OF REVISION. 9. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL ON RECORD. THE ONLY ISSUE IN THE PRESENT APPEAL RELATE S TO THE VALIDITY OF POWER OF REVISION EXERCISED BY THE LD. PCIT U/S.263 OF THE ACT. ADMITTEDLY, THE ASSESSMENT WAS COMPLETED BY THE A SSESSING OFFICER UNDER LIMITED SCRUTINY ASSESSMENT IN ORDER TO VERIF Y THE FOLLOWING TWO ITEMS. A) LARGE OTHER EXPENSES CLAIMED IN THE PROFIT AND LOSS ACCOUNT. B) MISMATCH BETWEEN INCOME/RECEIPT CREDITED TO PROFIT AND LOSS ACCOUNT CONSIDERED UNDER OTHER HEADS OF INCOME AND INCOME FROM HEADS OF INCOME OTHER THAN BUSINESS OF PROFESSION THE ASSESSING OFFICER COMPLETED THE ASSESSMENT AFT ER DUE VERIFICATION OF THESE ITEMS. FROM THE PERUSAL OF SUB CLAUSE (D) OF CLAUSE 3 OF THE SAID CBDT INSTRUCTION NO.20/2015, DATED 29 TH DECEMBER, 2015, THE ASSESSING OFFICER IS EMPOWERED TO TAKE UP ANY OTHER ISSUE FOR ASSESSMENT WITH THE APPROVAL OF T HE LD. PCIT/CIT CONCERNED, WHICH HAS COME TO THE NOTICE OF THE ASSE SSING OFFICER THAT THERE IS POTENTIAL ESCAPEMENT OF INCOME EXCEEDING G 5 LAKHS FOR NON ITA NO.1498/2019 :- 8 -: METRO AND G 10 LAKHS IN THE CASE OF METRO. IN THE PRESENT CASE, ADMITTEDLY, THE ASSESSING OFFICER WAS IN RECEIPT O F INFORMATION FROM THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL C IRCLE-1, MADURAI VIDE LETTER DATED 18.09.2015 STATING THAT ASSESSEE HAD PAID ON MONEY CONSIDERATION AT THE TIME OF PURCHASE OF LAND LOCATED IN PERIAKULAM VILLAGE IN RAMANATHAPURAM DIST TO M/S. D SF GROUP. UNDISPUTEDLY, THIS INFORMATION FORMS PART OF RECORD HAS MATERIAL BEARING IN THE ASSESSMENT OF THE TAX LIABILITY OF T HE ASSESSEE. THEREFORE, CONSIDERING EXCEPTION CLAUSE CARVED IN SUB CLAUSE (D) OF CLAUSE 3 OF THE SAID CBDT INSTRUCTION, THE ASSESSI NG OFFICER SHOULD HAVE SOUGHT PERMISSION FROM THE LD. PCIT TO ENQUIR E INTO THIS ISSUE OF ASSESSABILITY OF PAYMENT OF ON-MONEY CONSIDERATION AT THE TIME OF PURCHASE OF LAND. THERE IS NO GAIN SAYING THAT NON ENQUIRY OF AN ISSUE RENDERS AN ASSESSMENT ORDER ERRONEOUS AND PREJUDICI AL TO THE INTERESTS OF THE REVENUE, IF THE PROCEDURE FOLLOW ED BY THE ASSESSING OFFICER TO BRING IN LESSER REVENUE THAN SOME OTHER PROCEDURE, THE ORDER PASSED BY THE ASSESSING OFFICER WOULD OBVIOUS LY BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE, I T WOULD GIVE JURISDICTION TO THE LD. PICT U/S.263 OF THE ACT, AS HELD BY THE PATNA HIGH COURT IN THE CASE OF CIT VS. PUSHPA DEVI, (198 7) 164 ITR 639. THE RELEVANT PARA IS EXTRACTED BELOW. ITA NO.1498/2019 :- 9 -: 17. IF THE RIGORS OF AN ENQUIRY AND INVESTIGATION HAD BEEN RELAXED BY THE SCHEME OF THE BOARD, 'THE ORDER OF THE TRIBUNAL WOULD HAVE BEEN PERFECTLY JUSTIFIED. LET US, THEREFORE, PURSUE THE SCHEME. I HAVE QUOTED EARLIER THE SALIENT ASPECTS OF THE SCHEME. IN PARAG RAPH 4 IT HAS BEEN SPECIFICALLY STATED THAT 'RETURNS OF INCOME FILED I N THE NAMES OF MINORS AND LADIES SHOULD NOT, HOWEVER, BE ACCEPTED WITHOUT PROPER ENQUIRIES.' WHAT IS THE CONTENT OF THIS SENTENCE. I N MY VIEW, IT CLEARLY MEANS THAT MINORS AND LADIES WERE NOT COVERED BY TH E SCHEME. IT APPLIED TO OTHERS AND NOT MINORS AND LADIES. THEY N OT HAVING FORMED PART OF THE SCHEME, THERE WAS NO RELAXATION FOR THE M. NO SPOT ASSESSMENT WAS TO BE DONE IN THE CASE OF RETURN FIL ED BY MINORS AND LADIES. THEY MUST HAVE BEEN EXCEPTED PRECISELY ON T HE GROUND THAT UNSCRUPULOUS ASSESSEE MIGHT ENDEAVOUR TO LESSEN THE TAX BURDEN UPON THEMSELVES BY FILING RETURNS IN THE NAMES OF T HEIR WIVES AND MINOR CHILDREN. I MUST CONFESS, I HAVE SOME DIFFICU LTY IN APPRECIATING THAT IF THE SCHEME DID NOT APPLY TO MINORS; AND LAD IES, HOW THE RIGORS OF ENQUIRY AND INVESTIGATION WAS REDUCED IN THEIR C ASE. IT IS WELL ESTABLISHED THAT CIRCULARS OF THE BOARD ISSUED IN E XERCISE OF POWERS UNDER SECTION 119 HAVE A BINDING EFFECT AND THE REV ENUE ARE BOUND TO ACT UPON THEM. IT IS NOT NECESSARY TO LABOUR ON THA T QUESTION, BUT THE MOST QUESTION IS WHETHER THE SCHEME ENCOMPASSED LAD IES AND MINORS. I AM CLEARLY OF THE VIEW THAT IT DID NOT. I F IT DID NOT INCLUDE THEM, ANY DISCUSSION ON THE BINDING CHARACTER OF THE ORDE RS OF THE BOARD HAVE NO RELEVANCE. THE VICE PRESIDENT MR. MATHUR TO OK NOTE OF THE FACT THAT THE SCHEME OF THE BOARD MADE A DISTINCTIO N BETWEEN THE ADULT MALE ASSESSEES AND ASSESSEES WHO ARE LADIES A ND MINORS. HE RIGHTLY OBSERVED THAT THE DISTINCTION WAS DONE BECA USE THE GOVERNMENT FOUND SOME UNSCRUPULOUS ASSESSEES HAVING HUGE INCOME MAY BE TRYING TO REDUCE THE RATE OF THE TAX APPLICABLE TO THEM BY SHOWING THE INCOME IN THE NAMES OF LADIES AND MI NORS TO WHOM LOWER RATE OF TAX WAS APPLICABLE. HE RIGHTLY OBSERV ED THAT IN THE CASE OF LADIES AND MINORS THE PROPER ENQUIRIES REQUIRED TO BE MADE WAS ONLY TO CONFIRM WHETHER LADIES AND MINORS WERE BENA MIDARS OF SOME OTHER ASSESSEES WHOSE INCOME WAS TAXABLE AT HIGHER RATE OF TAX. WAS THAT DONE? CERTAINLY NOT. HAVING MISSED THE CENTRAL POINT, THE TRIBUNAL FELL INTO A GRIEVOUS ERROR IN HOLDING THAT THE ASSE SSMENT HAD TO BE COMPLETED WITHIN THE PERIOD OF GRACE. NOT TO COMPLE TE IT WITHIN THAT PERIOD WOULD BE DENYING TO A LADY OR MINOR ASSESSEE TO THE BENEFIT OF THE SCHEME. I REGRET, THE MAJORITY CONCLUSION OF TH E TRIBUNAL IS FALLACIOUS. THE LAW IN REGARD TO ASSESSMENT WAS NOT MODIFIED SO FAR AS LADIES AND MINORS WERE CONCERNED. IN THE COURSE OF MASS COMMUNICATION WHENEVER A RETURN WAS FILED BY A LADY OR A MINOR, IT COULD HAVE BEEN ACCEPTED, BUT COULD NOT HAVE BEEN D ISPOSED OF IN TERMS OF THE SCHEME. IT SHOULD HAVE BEEN TREATED AS AN ORIGINAL ASSESSMENT PROCEEDING- WITH ALL THE RIGORS IN REGAR D TO INITIAL CAPITAL INVESTMENT. NO CORRECTION OR AMELIORATION OF THE PR OCEDURE IN THEIR CASE WAS ENVISAGED. THESE ASSESSMENTS HAD TO BE COM PLETED IN TERMS OF SECTION 143(3) AND WHERE IT WAS PREJUDICIA L TO THE REVENUE THE COMMISSIONER WOULD BE FULLY JUSTIFIED IN SETTING AS IDE SUCH ITA NO.1498/2019 :- 10 -: ASSESSMENTS. IN FACT, IN THE COURSE OF MASS COMMUNI CATION IF A RETURN WAS FILED ON BEHALF OF A LADY OR A MINOR, THE ITO W OULD HAVE BEEN FULLY JUSTIFIED IN NOT ACCEPTING THEM AT THE SPOT AND CAL LING UPON THEM TO FILE THE RETURN IN THE DEPARTMENT AS IF THE SCHEME DID N OT EXIST. THERE IS SLIGHT DISTINCTION ON FACTS BETWEEN THE CASE OF SMT . RAMBHA DEVI (SUPRA) AND THE CASE OF THE PRESENT ASSESSEE. IN TH E FORMER CASE THE RETURN HAD BEEN FILED ON 22-12-1972, THE INSPECTOR CONDUCTED INQUIRY ON 27-12-1972. THEREAFTER, ASSESSMENT WAS MADE. THU S, THERE WAS AT LEAST A GAP OF FIVE DAYS BETWEEN FILING OF THE R ETURN AND THE ASSESSMENT. WHAT DIFFERENCE THE GAP OF FIVE DAYS WO ULD HAVE, WOULD BE A MATTER TO BE CONSIDERED WHEN THE REFERENCE IN THE CASE OF SMT. RAMBHA DEVI ( SUPRA) IS TAKEN UP BY THIS COURT. BUT IN THE INSTANT CASE, THE RETURN WAS FILED ON 14-12-1972, AND THE I NSPECTOR'S ENQUIRY WAS COMPLETED ON THE SAME DAY AND THE ASSESSMENT WA S MADE ON THE VERY SAME DAY FOR ALL THE ASSESSMENT YEARS EXCE PT 1973-74 AT THE SPOT. MR. P.D. MATHUR DISTINGUISHED THE CASE OF THA LIBAI F. JAIN V. ITO [1975] 101 ITR 1 (KAR.) ON THE FOOTING THAT THE ITO HAD MADE THE ASSESSMENT WITHOUT ENQUIRY AND EVIDENCE AND IN UNDU E HASTE. THE SITUATION IN THE INSTANT CASE, IS EXACTLY SIMILAR. THE FILING OF RETURN, THE EQUIRY AND ASSESSMENTS WERE ALL DONE ON THE SAME DA Y. I AM, THEREFORE, FIRMLY OF THE VIEW THAT THE ENQUIRY, IF AT ALL THERE WAS ANY, WAS CONDUCTED IN UNDUE HASTE. IF ANY ENQUIRY WORTH THE NAME WAS CONDUCTED, THE ATTENTION OF THE INSPECTOR AND THE I TO WAS NOT DIRECTED TOWARDS ASCERTAINMENT OF THE CORE QUESTION, NAMELY, WHEN AND FROM WHERE DID FUNDS COME AND WHETHER THE CASE OF THE AS SESSEE IN REGARD THERETO WAS GULLIBLE. THE ENQUIRY NOT HAVING DIRECT ED TOWARDS THAT QUESTION, IT WAS NO EQUIRY. THE SCHEME DID NOT LIBE RALISE MATTERS FOR THE ASSESSEE, WHO WAS A LADY, WIFE OF A TRADER. THE ASSESSMENT, THUS, ON THE BASIS OF SUCH ENQUIRY WAS CLEARLY ERRONEOUS. 18. THAT BRINGS US TO THE QUESTION OF JURISDICTION OF THE COMMISSIONER UNDER SECTION 263 TO CANCEL ASSESSMENT AND DIRECT A FRESH ASSESSMENT. IF THE ASSESSMENT IS ERRONEOUS, IT MUST TOE PRESUMED TO BE PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE FINDING OF THE COMMISSIONER IN THIS CASE WAS THAT THE ORDER OF THE ASSESSMENT WAS PREJUDICIAL TO THE INTEREST OF THE REVENUE, AS THE ASSESSEE MAY HAVE BEEN A MERE BENAMIDAR OF HER HUSBAND. IT IS TRUE TH AT THE COMMISSIONER DID NOT RECORD A CONCLUDED FINDING THA T SHE WAS A BENAMIDAR. BUT IF HE HAD DONE SO, HE WOULD HAVE LAI D HIMSELF OPEN TO THE CHARGE THAT THE DICE HAD BEEN LOADED AGAINST TH E ASSESSEE, THE COMMISSIONER, THEREFORE, RIGHTLY ONLY ORDERED FURTH ER INVESTIGATION INTO THE CLAIM OF THE ASSESSEE UPON THIS FINDING IF THE FUNDS HAD BEEN PROVIDED BY THE ASSESSEE'S HUSBAND, THE INCOME WOUL D BE TAXABLE IN HIS HANDS OVER WHICH A HIGHER RATE OF TAX MAY HAVE BEEN APPLICABLE. IN THAT SITUATION, THE ORDER OF ASSESSMENT OF THE W IFE, WOULD BE PER SE PREJUDICIAL TO THE REVENUE. IT DOES NO NEED MUCH AR GUMENT TO CONVINCE THAT IF THE PROCEDURE ADOPTED BY AN ITO BR INGS IN LESSER REVENUE THAN SOME OTHER PROCEDURE, THE ORDER WOULD OBVIOUSLY BE ITA NO.1498/2019 :- 11 -: PREJUDICIAL TO THE REVENUE. IF THAT IS SO, THE ORDE R OF ASSESSMENT IS PREJUDICIAL TO THE REVENUE. IT CANNOT BE DOUBTED TH AT THE COMMISSIONER WOULD THEN HAVE THE JURISDICTION TO ACT IN TERMS OF SECTION 263 AND ORDER CANCELLATION OF THE PREVIOUS ASSESSMENT AND D IRECT FRESH ASSESSMENT. RELIANCE PLACED BY THE LEARNED SENIOR S TANDING COUNSEL IN THIS REGARD IN SMT. TARA DEVI AGGARWAL V. CIT [1 973] 88 ITR 323 IS WELL PLACED. THE SUPREME COURT IN THAT CASE OBSERVE D THAT: ' . . . EVEN WHERE AN INCOME HAS NOT BEEN EARNED AN D IS NOT ASSESSABLE, MERELY BECAUSE THE ASSESSEE WANTS IT TO BE ASSESSED IN HIS OR HER HANDS IN ORDER TO ASSIST SOMEONE ELSE WH O WOULD HAVE BEEN ASSESSED TO A LARGER AMOUNT, AN ASSESSMENT SO MADE CAN CERTAINLY BE ERRONEOUS AND PREJUDICIAL TO THE INTER EST OF THE REVENUE. . . . ' (P. 328) THE CASE OF THE SUPREME COURT IN RAMPYARI DEVI SARA OGI V. CIT [1968] 67 ITR 84 ALSO SUPPORTS THE REVENUE. THE MAJ ORITY VIEW OF THE TRIBUNAL DISTINGUISHES THOSE CASES ON SOME MISCONCE PTION. THEREFORE IN OUR CONSIDERED OPINION, THE ASSESSING OFFICER NOT FOLLOWING PROCEDURE PRESCRIBED IN SUB CLAUSE (D) OF CLAUSE OF 3 OF SAID CBDT INSTRUCTION WOULD RENDER THE ASSESSMENT ORDE R ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE, THEREB Y CONFIRMING THE JURISDICTION ON LD. PCIT U/S.263 OF THE ACT. AS REG ARDS TO THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE O F SMT. PADMAVATHI (SUPRA) TO WHICH ONE OF US I.E. THE ACCOUNTANT ME MBER IS THE AUTHOR OF THE ORDER. IN THE SAID DECISION THE TRIBUNAL HAD RENDERED DECISION OVERLOOKING EXCEPTIONAL CLAUSE CARVED OUT IN SUB CL AUSE (D) OF CLAUSE 3 OF CBDT INSTRUCTION NO.20/2015, DATED 29.12.2015. THUS, THE DECISION IS PER INCURIAM. IT IS NEEDLESS TO SAY TH AT AN ORDER WHICH IS PER INCURIAM HAS NO PRECEDENTIAL VALUE. IN THE CIR CUMSTANCES, WE ARE ITA NO.1498/2019 :- 12 -: OF THE CONSIDERED OPINION THAT LD. PCIT WAS JUSTIFI ED IN EXERCISING THE JURISDICTION VESTED WITH HIM U/S.263 OF THE ACT. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STA NDS DISMISSED. ORDER PRONOUNCED ON 11TH DAY OF DECEMBER, 2019 , AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( ) (INTURI RAMA RAO) /ACCOUNTANT MEMBER - ) / CHENNAI . / DATED: 11TH DECEMBER, 2019. KV $ &*01 21!* / COPY TO: 1 . '# / APPELLANT 3. ( 3* () / CIT(A) 5. 16 &*7 / DR 2. &' '# / RESPONDENT 4. ( 3* / CIT 6. 8 9) / GF