Rajesh Shantilal Bora, Nagpur V. C.I.T-III, Nagpur

ITA 175/NAG/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93410 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 26-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D RAVI KUMAR
• Keywords: Unexplained investment; Share purchase agreement; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 131; 148; 263; 10

Judgement Text

1 ITA NO. 175/NAG/2013 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO.175/NAG/2013 ASSESSMENT YEAR : 2008 - 09. SHRI RAJESH SHANTILAL BORA, COMMISSIONER OF INCOME - TAX - III C/O R.S. BHATTAD & CO., V/S. NAGPUR. 33 CENTRAL BAZAR ROAD, RAMDASPETH, NAGPUR. PIN ABCPB 4576D APPELLANT. RESPONDENT. APPELLANT BY : SHRI MUKESH AGRAWAL. RESPONDENT BY : SHRI D. RAVI KUMAR. DATE OF HEARING - 30 - 04 - 2015 DATE OF PRONOUNCEMENT 26 TH JUNE, 2015. O R D E R PER SHRI MUKUL K. SHRAWAT, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FROM AN ORDER PASSED BY LEARNED C.I.T. - III, NAGPUR UNDER SECTION 263 OF I.T. ACT DATED 25 - 03 - 2013. THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER AS PER THE FOLLOWING GROUND: 1. THAT THE ORDER U/S 263 OF I.T. ACT IS BAD IN LAW. 2. THAT ON THE FACT S AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT HAS ERRED IN SETTING ASIDE THE ASSESSMENT ORDER U/S 263 OF I.T. ACT AND DIRECTING THE AO TO PASS FRESH ORDER TREATING THE LOAN AMOUNT OF ` .11,00,616/ - AS INCOME U/S 56(2)(VI) OF THE ACT. 2 ITA NO. 175/NAG/2013 2. FACTS AS NARRATED IN THE IMPUGNED ORDER UNDER SECTION 263 WERE THAT ORIGINALLY THE ASSESSEE HAS FILED E - RETURN ON 14 - 03 - 2009 DECLARING INCOME AT ` .1,08,58,820/ - . THAT RETURN WAS PROCESSED ON 07 - 09 - 2009. SUBSEQUENTLY A NOTICE UNDER SECTION 148 WAS ISSUED AND THEREAFTER AN ORDER UNDER SECTION 148/143(3) WAS PASSED FOR ASSESSMENT YEAR 2008 - 09 ON 24 - 11 - 2010 (THE CORRECT DATE IS 2 ND MARCH, 2012 AS PER THE COPY OF THE IMPUGNED ORDER ON RECORD) AND THE INCOME WAS DETERMINED AT ` .1,29,65,270/ - . 2.1 AS PER THE FACTS DISCUSSED BY THE LEARNED COMMISSIONER, THE ASSESSEE HAS PURCHASED A FLAT IN ADARSHA COOPERATIVE HOUSING SOCIETY, MUMBAI. FROM ASSESSMENT YE ARS 2005 - 06 TO 2011 - 12 THE ASSESSEE HAD MADE TOTAL PAYMENT TO THE SAID SOCIETY TOTALING ` .60,00,979/ - . THE YEARWISE BIFURCATION O F THE DEPOSITS MADE WITH ADARSH COOPERATIVE HOUSING SOCIETY HAS BEEN MENTIONED BY LEARNED COMMISSIONER IN THE ORDER U /S 263 IN A TABULATED FORM. 2.2 FOR ASSESSMENT YEAR 2008 - 09 THE AMOUNT DEPOSITED IN ADARSH COOPERATIVE HOUSING SOCIETY WAS AT ` .11,00,616/ - . IT HAS ALSO BEEN NOTED BY LE ARNED COMMISSIONER THAT A LOAN WAS TAKEN FROM M/S SAN FINANCE CORPORATION. HOWEVER, THE OBJECTION OF THE LEARNED COMMISSIONER WAS THAT FOR RAISING THE SAID LOAN THE ASSESSEE HAS NOT EXECUTED ANY MOU WITH THE SAID FINANCE CORPORATION. THE NEXT OBJECTION OF THE LEARNED COMMISSIONER WAS THAT NO GUARANTEE WAS GIVEN AS WELL AS THERE WAS NO MORTGAG E OF THE PROPERTY KEPT WITH THE SAID CORPORATION. THERE WAS ONE MORE ALLEGATION THAT THERE WAS NO RATE OF INTEREST FIXED ON THE SAID LOAN AS WELL AS THERE WAS NO REPAY MENT OF SCHEDULE AS TO WHEN THE LOAN SHALL BE REPAID BY THE ASSESSEE. 3 ITA NO. 175/NAG/2013 3. ALTHOUGH THE LEARNED COMMISSIONER HAS RECORDED AN IMPORTANT FACT THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2008 - 09 IT WAS NOTICED BY THE ASSESSING OFFICER T HAT THE ASSESSEE HAD SALE PROCEEDS OF SHARE OF M/S SMS SHIVANATH INFRASTRUCTURE LTD. AMOUNTING TO ` .1,23,49,050/ - . THE SALE PROCEEDS OF SHARES WERE STATED TO BE DEPOSITED WITH M/S SAN FINANCE CORPORATION, NAGPUR. IT HAS ALSO BEEN NOTED THAT THE ASSESSEE HAD RECEIVED INTEREST REGULARLY ON THE SAID DEPOSIT. IT HAS FURTHER BEEN OBSERVED THAT THE CORPORATION HAS NOT ADJUSTED THE LOAN ALTHOUGH IT WAS A NORMAL PRACTICE THAT THE ADJUSTMENTS ARE FIRST MADE AGAINST THE PRINCIPAL AND ON THE REMAINING AMOUNT INTERE ST IS PAID. 3.1 ACCORDING TO THE LEARNED COMMISSIONER THE ASSESSEE HAS DEPOSITED ` .11,00,616/ - WITH THE ADARSH COOPERATIVE HOUSING SOCIETY WHICH WAS RECEIVED FROM M/S SAN FINANCE CORPORATION, THEREFORE, THE SAID AMOUNT WAS NOTHING BUT AN AMOUNT RECEIVED WI THOUT CONSIDERATION. LEARNED COMMISSIONER HAS INVOKED THE PROVISIONS OF SECTION 56(2)(VI) OF I.T. ACT. THE ASSESSEES EXPLANATION WAS AS UNDER : 1. THAT THE ASSESSEE WAS ASSESSED U/S 148/143(3) OF THE IT ACT VIDE ORDER DATED 24 - 11 - 2010 AT INCOME OF ` .1, 29,65,270/ - . 2. THAT DURING THE RELEVANT YEAR THE ASSESSEE HAS TAKEN LOAN FROM M/S SAN FINANCE CORPORATION TOWARDS PURCHASE OF FLAT AT ADARSHA SOCIETY OF ` .11,00,616/ - . 3. THAT M/S SAN FINANCE CORPORATION HAS DULY CONFIRMED THIS AMOUNT AS LOAN AND IS ALSO DULY REFLECTED IN ITS BOOKS OF ACCOUNT, BALANCE SHEET AND RETURN OF INCOME AS LOAN. 4 ITA NO. 175/NAG/2013 4. THAT IN YOUR GOODSELFS OPINION, LOAN TAKEN BY THE ASSESSEE FROM M/S SAN FINANCE CORPORATION IS BENEFIT OF THE CHARACTERISTIC FEATURE OF LOAN AND HENCE AS SUCH IT IS INCOME IN THE HANDS OF ASSESSEE. 5. THAT IN THIS CONTEXT IT IS HUMBLY SUBMITTED THAT THE ASSESSMENT UNDER THE INCOME TAX ACT ARE MADE ON THE BASIS OF EVIDENCES AND NOT ON THE BASIS OF ASSUMPTIONS, SURMISES OR SUSPICIONS. THERE IS NO EVIDENCE ON RECORD THAT THE LOAN TAKEN BY THE ASSESSEE FROM SAN FINANCE CORPORATION IS THE ASSESSEES INCOME OR HIS OWN MONEY. SAN FINANCE CORPORATION, NAGPUR HAS ALSO CONFIRMED ABOUT GIVING LOAN TO THE A SSESSEE. 6. THAT IT IS HUMBLY AND RESPECTFULLY SUBMITTED THAT THE OPINION FORMED BY YOU IS CONTRARY TO THE FINDINGS ALREADY GIVEN BY THE DEPARTMENT IN THE I.T. ASSESSMENTS OF M/S SAN FINANCE CORPORATION PASSED BY DCIT, CENTRAL CIRCLE 2(3) NAGPUR FOR A. Y. 2006 - 07 TO A.Y. 2009 - 10 (4 YEARS) U/S 143(3) R.W.S. 147 OF I.T. ACT. WHEREIN THEY HAVE TREATED AMOUNT GIVEN TO THE ASSESSEE AS LOAN AND MADE ADDITION OF INTEREST INCOME ON ABOVE LOAN AND THIS HAS BEEN CONFIRMED BY HONBLE CIT(A) - I, NAGPUR ALSO. 7. THAT IT IS CLEAR FROM THE ABOVE THAT THE AMOUNT GIVEN BY SAN FINANCE CORPORATION TO ASSESSEE IS NOTHING BUT LOAN AND THE DEPARTMENT HAS ALSO ACCEPTED THIS IN THE ASSESSMENTS MADE IN THE CASE OF M/S SAN FINANCE CORPORATION. AS SUCH THE DEPARTMENTS CA NNOT APPROBATE AND REPROBATE. 8. THAT FROM THE FACTS AS ABOVE IT IS CLEAR THAT THE A.O. HAS FRAMED THE ASSESSMENT ORDER U/S 143(3) OF THE ACT AFTER FULLY APPRECIATING ALL THE ASPECTS OF THE CASE. AS SUCH THE ORDER OF THE A.O. IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE. 3.2 LEARNED COMMISSIONER WAS NOT CONVINCED AND REITERATED THAT IN THE ABSENCE OF ANY MOU, ANY GUARANTEE, MORTGA GE OF ANY PROPERTY AND ABSENCE OF ANY REPAYMENT SCHEDULE, THE AMOUNT WAS GIVEN TO THE ASSESSEE WITH OUT ANY CONSIDERATION. HE HAS ALSO MENTIONED THAT THE ASSESSEE WAS UNABLE TO REPAY THE AMOUNT BEING A SALARIED PERSON. SINCE THE ASSESSING OFFICER HAS NOT INVOKED THE PROVISIONS OF SECTION 56(2)(VI) FOR ASSESSING THE IMPUGNED AMOUNT OF ` .11,00,616/ - THEREF ORE, IN THE OPINION OF LEARNED COMMISSIONER THE ORDER PASSED UNDER SECTION 5 ITA NO. 175/NAG/2013 148/143(3) DATED 22 ND MARCH, 2012 WAS ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF THE REVENUE WHICH WAS SET ASIDE AND DIRECTED THE ASSESSING OFFICER TO EXAMINE AND ASSESS ACCORDINGLY. 4. BEING AGGRIEVED BY THE SAID DIRECTION, NOW THE ASSESSEE IS IN APPEAL BEFORE US, REPRESENTED BY LEARNED A.R. MR. MUKESH AGRAWAL. HIS MAIN PLANK OF ARGUMENT WAS THAT IT WAS NOTHING BUT ASSESSEES OWN FUNDS WHICH WAS GIVEN BACK TO ASSESSEE BY M/S SAN FINANCE CORPORATION. THE ASSESSEE HAS RECEIVED SALE PROCEEDS OF SHARES OF SMS SHIVNAT H INFRASTRUCTURE AMOUNTING TO ` .1,23,49,050/ - WHICH WAS DEPOSITED WITH THE SAID CORPORATION. THE ASSESSEE WAS RECEIVING INTEREST ON THE SAID DEPOSIT. HE HAS ALSO MENTIONED THAT THE ASSESSMENTS OF M/S SAN FINANCE CORPORATION HAVE BEEN MADE UNDER SECTION 143 (3)/147 FOR ASSESSMENT YEAR 2006 - 07 TO ASSESSMENT YEAR 2009 - 10 WHEREIN THE SAID AMOUNT WAS TREATED AS LOAN AND THE INTEREST INCOME WAS TAXED. 4.1 THE LEARNED A.R. HAS ALSO MENTIONED THAT FOR ASSESSMENT YEAR 2008 - 09 THE CASE WAS REOPENED AND THE REASONS REC ORDED UNDER SECTION 147 WERE AS UNDER: DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS FOR A.Y. 2010 - 11, VARIOUS DETAILS WERE CALLED. APART FROM OTHER DETAILS, COPY OF INCOME TAX RETURNS FILED FOR A.YRS. 2006 - 07 TO 2011 - 12 ALONGWITH COMPUTATION OF INCOME ETC. WAS CALLED. THE ASSESSEE WAS ALSO ASKED TO FURNISH INFORMATION IN RESPECT OF LAST THREE YEARS ESPECIALLY RELATING TO THE TRANSACTIONS OF PURCHASE OF FLAT IN ADARSH CO - OP. H OUSING SOCIETY LIMITED, MUMBAI. 2. BASED ON THE INFORMATION/DOCUMENTS SUBMITTED BY THE ASSESSEE, HIS PERSONAL ATTENDANCE WAS ENFORCED U/S 131 OF THE I.T. ACT TO SUBSTANTIATE AND EXPLAIN THE DOCUMENTS SUBMITTED BY HIM. DURING THE COURSE OF RECORDING TH E STATEMENT, RECORDED ON 7.10.2011, IN CONNECTION WITH THE FLAT PURCHASED IN ADARSH CO - OP. HOUSING SOCY., THE ASSESSEE SUBMITTED A COPY OF SHARE CERTIFICATE NO. 39 ISSUED TO HIM BY THE SAID SOCIETY, LETTERS IN 6 ITA NO. 175/NAG/2013 CONNECTI ON WITH GRANTING OF MEMBERSHIP AND ALLOTMENT OF FLAT NO. 1004, FLOOR NO. 10,B WING IN THE SAID SOCIETY. THE ASSESSEE ALSO SUBMITTED A COPY OF HIS ACCOUNT FOR THE PERIOD FROM 01 - 04 - 2007 TO 31 - 03 - 2011 AS APPEARING IN THE BOOKS OF M/S SAN FINANCE CORPORATION, NAGPUR. PERUSAL OF THE SAID LEDGER A/C SHOWS THAT THERE IS NIL BALANCE AS ON 01.04.2007 FOLLOWED BY TRANSACTIONS EVERY MONTH FROM 15.10.2007 TILL 31.03.2011. IT IS SEEN THAT AS ON 31.03.2011, THE ASSESSEE HAS A CREDIT BALANCE OF ` .97,69,915/ - IN THE BOOKS OF THE SAID M/S SAN FINANCE CORPORATION, NAGPUR. SEALA OF M/S SAN FINANCE CORPORATION, NAGPUR, IS ALSO FOU8ND AFFIXED ON THIS LEDGER A/C, WHICH ALSO CONFIRMS THE CLOSING BALANCE APPEARING IN THE BOOKS OF THE SAID CONCERN WHICH IS STATED TO BE AT ` .97,69,915/ - AS ON 31.03.2011. 3. REGARDING SOURCE OF THIS MONEY, THE ASSESSEE IN HIS STATEMENT RECORDED ON 07.10.2011, HAS STATED THAT THE FUND AMOUNTING TO ` .1,23,49,050/ - , IS CREDITED DURING THE F.Y. 2007 - 08 IN THE BOOKS OF M/S SAN FINANCE CORPORA TION. IT IS THE MONEY RECEIVED BY HIM OUR OF SALE PROCEEDS OF SHARES, OF A SCRIP CALLED M/S SMS SHIVANATH INFRASTRUCTURE LTD. DUR G BYPASS, THE ASSESSEE ALSO STATED THAT THIS SUM OF MONEY IS TAKEN INTO A/C WHILE CALCULATING CAPITAL GAINS AND THE SAME IS REFLECTED UNDER THE HEAD INCOME FROM CAPITAL GAINS, IN HIS RETURN OF INCO M E FILED FOR A.Y. 2008 - 09 . THE ASSESSEE COULD NOT PROVIDE ANY EVIDENCES OR ANY DETAILS IN SUPPORT OF HIS CLAIM EXCEPT THAT THE SAME WERE OUT OF SALE PROCEEDS OF SCRIP CALLED M/ S SMS SHIVANATH INFRASTRUCTURE LTD. DURG BYPASS. HE COULD NOT PROVIDE ANY DETAILS FOR THE PURPOSE OF SUBSTANTIATING HIS CLAIM OF INCOME FROM CAPITAL GAINS REQUIRED AS PER THE PROVISIONS OF INCOME TAX ACT. FURTHER, OUT OF THE ALLEGED TOTAL PROCEEDS O F ` .1,23,49,050/ - , THE ASSESSEE CLAIMS TO HAVE MADE DEPOSITS WITH M/S SAN FINANCE CORPORATION REFLECTED IN THEIR BOOKS OF ACCOUNTS. FROM THE DETAILS SUBMITTED BY THE ASSESSEE FROM TIME TO TIME AS WELL AS DURING THE COURSE OF STATEMENT RECORDED U/S 131 (AS STATED ABOVE), THERE IS NO EVIDENCE OF GENUINENESS OF CLAIM OF SHARE TRANSACTION PROVIDED BY THE ASSESSEE IN RESPECT OF SALE OF SAID SHARES (SHARES OF M/S DURG BYPASS) . 4. IN VIEW OF T HE ABOVE AND CONSIDERING THE FACT THAT THERE IS NO CONCLUSIVE EVIDENCE PROVIDED BY THE ASSESSEE TILL THIS DATE, IN RESPECT OF THE ALLEGED SHARE TRANSACTION RELATABLE TO A.Y. 2008 - 09, I HAVE REASON TO BELIEVE THAT INCOME REFLECTED IN THE RETURN OF INCOME FILED FOR A.Y. 2008 - 09 WHEREIN 7 ITA NO. 175/NAG/2013 THE ASSESSEE HAS SHOWN A TOTAL CONSIDERATION OF ` .1,23,49,050/ - (BEING CONSIDERATION RECEIVED ON SALE OF SHARES) IS THE INCOME THAT HAS ESCAPED PROPER ASSESSMENT AND HENCE THE SAME NEEDS TO BE INVESTIGATED IN DEPTH. THE SAID RECEIPTS OF ` .1,23,49,050/ - CANNOT BE TAXED UNDER THE HEAD CAPITAL GAINS, IN ABSENCE OF CONCLUSIVE EVIDENCES. PRIMA FACIE, AND WITHOUT PREJUDICE TO THE ABOVE, SUCH RECEIPT SHOULD BE ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES AS AN UNEXPL AINED CREDIT U/S 68, HOWEVER, PROPER ASSESSMENT OF SUCH RECEIPTS/INCOMES NEEDS TO BE DONE AFRESH. 5. CONSIDERING ALL THE ABOVE ASPECTS AND ALSO THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM SATISFIED THAT THIS POINT NEEDS TO BE REASSESSED CORRECTLY K EEPING IN VIEW THE PROVISIONS OF THE INCOME TAX ACT. HENCE THE ASSESSMENT FOR A.Y. 2008 - 09 NEEDS TO BE REOPENED SINCE, AS DISCUSSED ABOVE, THIS INCOME HAS ESCAPED PROPER ASSESSMENT. 4.2 THEREFORE, THE LEARNED A.R. HAS PLEADED THAT THE ENTIRE FACTS HAVE DULY BEEN CONSIDERED ALONG WITH THE EVIDENCES AND THEREUPON THE SALE PRICE OF ` . 1,23,49,050/ - WAS HELD AS UNEXPLAINED INVESTMENT UNDER SECTION 69B OF I.T. ACT. SINCE THE MATTER HAS ALREADY BEEN INVESTIGATED AND THE VIEW HAS BEEN TAKEN, THEREFORE, THERE WAS NO SCOPE OF REEXAMINATION OF THOSE VERY FACTS AS DIRECTED BY LEARNED COMMISSIONER UNDER SECTION 263 OF I.T. ACT. FOR THE SAID LEGAL PROPOSITION HE HAS PLACED RELIANCE ON THE FOLLOWING DECISIONS : I) MALBAR INDUSTRIAL CO. LTD. V/S. CIT (SC) 243 ITR 83. I I) CIT V/S. MAX INDIA LTD. (SC) 295 ITR 282. III) CIT V/S. DLF OIWER LTD. (DEL H.C.) 329 ITR 289. IV) CIT V/S. SHIVA TAX YARN (MAD) 40 DTR 270. V) CIT V/S. ANSAL PROPERTIES (DEL) 315 ITR 225. 8 ITA NO. 175/NAG/2013 5. FROM THE SIDE OF THE REVENUE, LEARNED D.R., MR. D. RAVI K UMAR APPEARED AND PLEADED THAT THE ISSUE WHICH HAS BEEN RAISED BY THE LEARNED COMMISSIONER WAS NOT DISCUSSED AT ALL BY THE ASSESSING OFFICER IN THE IMPUGNED ASSESSMENT ORDER. ACCORDING TO HIM, SINCE THERE WAS NO DISCUSSION OR APPLICATION OF MIND THEN NATUR ALLY THERE WAS NO QUESTION OF CHANGE OF OPINION BY THE LEARNED C.I.T. HE HAS PLEADED THAT THE MAIN REASON FOR THE REOPENING WAS TO ENQUIRE ABOUT THE AMOUNT RECEIVED ON SALE OF SHARES. THE ASSESSEE HAS FAILED TO SATISFY THE ASSESSING OFFICER, THEREFORE THE AMOUNT WHICH WAS DEPOSITED IN THE ACCOUNT OF SAN FINANCE CORPORATION WAS HELD AS UNEXPLAINED INVESTMENT. ON THE OTHE R HAND, LEARNED COMMISSIONER HAD ENQUIRED ABOUT THE INVESTMENT IN ADARSH COOPERATIVE SOCIETY. SINCE THE SOURCE WAS FROM SAN FINANCE CORPORAT ION WHO HAS GIVEN THE AMOUNT IN QUESTION TO ASSESSEE WITHOUT ANY CONSIDERATION, THEREFORE IT WAS PROPOSED TO INVOKE THE PROVISIONS OF SECTION 56(2)(VI) OF I.T. ACT. 6. WE HAVE HEARD BOTH THE SIDES AT SOME LENGTH. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE REVENUE AUTHORITIES IN THE LIGHT OF A SHORT COMPILATION FILED BEFORE US CONTAINING THE BANK ACCOUNT, LEDGER ACCOUNT OF SAN FINANCE CORPORATION AND FEW CASE LAWS. AT THE OUTSET ITSELF WE CAN PRONOUNCE THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER WAS NOT JUSTIFIED IN INVOK I NG THE PROVISIONS OF SECTION 263 OF THE I.T. ACT. TO INVOKE THE PROVISIONS OF SECTION 263 WHAT IS REQUIRED IS THAT THE CIT SHOULD NOT ONLY HAVE REASON TO BELIEVE THAT THE ORDER PASSED BY THE ASSESSING OFFICE R IS PREJUDICIAL TO THE INTEREST OF THE REVENUE BUT ALSO THAT IT IS ERRONEOUS IN LAW. SO THE TWIN REQUIREMENTS ARE NECESSARILY TO BE FULFILLED. SIMULTANEOUSLY IT IS ALSO AN ESTABLISHED POSITION OF LAW THAT THE COMMISSIONER HAD JURISDICTION TO SET ASID E T HE ORDER OF ASSESSMENT TO CONDUCT AN ENQUIRY TO REACH AT THE CORRECT RESULT . THE 9 ITA NO. 175/NAG/2013 REVISIONARY POWERS OF LD. COMMISSIONER U/S 263 ARE NOT EMPTY FORMALITY BUT SERVE A USEFUL PURPOSE TO TAX AN AMOUNT WHICH HAD ESCAPED ASSESSMENT. THEREFORE, SUCH A DIRECTION UNDER SECTION 263 ARE JUDICIALLY REQUIRED TO BE A PPROVED. 7. THE UNDISPUTED FACT IS THAT THE LEARNED COMMISSIONER HAS INVOKED THE JURISDICTION UNDER SECTION 263 OF I.T. ACT IN RESPECT OF AN ASSESSMENT ORDER WHICH WAS PASSED UNDER SECTION 148/143(3) OF I.T. ACT. AS PER THE REASONS RECORDED UNDER SECTION 147 IT WAS CLEARLY MENTIONED THAT THE ASSESSEE WAS ASKED TO FURNISH INFORMATION IN RESPECT OF THE TRANSACTION RELATIN G TO PURCHASE OF FLAT IN ADARSH COOPERATIVE HOUSING SOCIETY, MUMBAI. THE ASSESSEE HAS F URNISHED THE DETAILS OF THE INVESTMENT AS WELL AS THE ACCOUNTS IN THE BOOKS OF M/S SAN FINANCE CORPORATION, NAGPUR. THERE WAS A CREDIT BALANCE OF ` .97,69,915/ - IN THE BOOKS OF M/S SAN FINANCE CORPORATION. THE ASSESSEE HAD DEPOSITED DURING FINANCIAL YEAR 2 007 - 08 AN AMOUNT OF ` .1,23,49,050/ - . THE SAID AMOUNT WAS RECEIVED OUT OF SALE PROCEEDS OF SHARES OF SMS SHIVNATH INFRASTRUCTURE LTD. THE ASSESSING OFFICER WANTED TO KNOW THE EVIDENCE ABOUT THE SALE PROCEEDS OF SHARES. AN ENQUIRY WAS REQUIRED TO ESTABLISH T HE GENUINENESS OF THE CLAIM OF SHARE TRANSACTION. ALTHOUGH THE ASSESSEE HAS DISCLOSED THE INCOME AS CAPITAL GAIN BUT THE ASSESSING OFFICER HAS PROPOSED THAT IN THE ABSENCE OF CONCLUSIVE EVIDENCE, SUCH RECEIPTS SHOULD BE ASSESSED AS INCOME FROM OTHER SO URCES. THE ASSESSEE HAS FURNISHED THE REQUISITE DETAILS DURING THE COURSE OF REASSESSMENT PROCEEDINGS BY FURNISHING THE DEMAT ACCOUNT, ALSO COPY OF SALE LETTER FROM IDFC LTD., COPY OF BANK PASS - BOOK WITH P.N.B., TDS CERTIFICATE, LEDGER ACCOUNT OF SAN F INANCE CORPORATION, BANK PASS - BOOK OF ICICI BANK, DETAILS OF SHARE CERTIFICATES ETC. THE ASSESSING OFFICER HAS 10 ITA NO. 175/NAG/2013 FINALLY HELD THAT THE ASSESSEE HAD MADE INVESTMENT FROM UNDISCLOSED SOURCES. SO HE HAS FINALIZED THAT THERE WAS UNEXPLAINED INVESTMENT UNDER SE CTION 69B BY THE ASSESSEE. HOWEVER, THERE WAS A CON FUSION IN THE ASSESSMENT ORDER BECAUSE ON PAGE 7 WHEN THE SAID AMOUNT WAS COMPUTED FOR THE PURPOSE OF TOTAL TAXABLE INCOME IT WAS MENTIONED AS INCOME FROM BUSINESS. BE THAT AS IT WAS, ONE THING WAS CLEARLY APPARENT THAT THE ASSESSING OFFICER HAD MADE SUFFICIENT ENQUIRY ABOUT THREE THINGS; 1) THE AMOUNT RECEIVED ON SALE OF SHARES, 2) THE TRANSACTION WITH SAN FINANCE CORPORATION AND 3 ) THE DEPOSITS MADE WITH ADARSH COOPERATIVE HOUSING SOCIETY. 7.1 AS A CONSEQUENCE OF THE AMENDMENT OF SEC. 263 THE POWERS OF THE COMMISSIONER HAVE BEEN EXTENDED. THE POWER OF SUO MOTU REVISION U/S 263(1) IS IN THE NATURE OF SUPERVISORY JURISDICTION AND THE SAME CAN BE EXERCISED ONLY IF THE CIRCUMSTANCES SPECIFIED THEREIN EX IST. HENCE THE REVISIONAL POWERS HAS WIDE AMPLITUDE. IT EMPOWERS THE COMMISSIONER TO MAKE SUCH ENQUIRY AS HE DEEMS NECESSARY AND SIMULTANEOUSLY CAN DIRECT THE A.O. TO CONDUCT THE ENQUIRY. A PURPOSEFUL AND FRUITFUL INVESTIGATION CAN ALWAYS BE DIRECTED BY TH E COMMOSSIONER. FACTS OF THIS CASE HAVE REVEALED THAT THERE WAS NO SATISFACTORY EXPLANATION ABOUT THE ALLEGED CLAIM OF LOAN, BECAUSE THE ASSESSEE HAD FAILED TO DEMONSTRATE THE TERMS AND CONDITIONS TO ESTABLISH THE GENUINENESS OF THE SAID LOAN TRANSACTION. THE A.O. HAD NO OCCASION TO VERIFY THIS ASPECT. THE LD. COMMISSIONER WAS THEREFORE OF THE OPINION THAT THE IMPUGNED LOAN WAS W ITHOUT CONSIDERATION. HOWEVER, H E HAS NOT DIRECTED TO ASSESSEE THE INCOME IN A PARTICULAR MANNER BUT DIRECTED THE A.O. TO EXAMIN E THE ISSUE. THE CASE LAWS AS CITED FROM THE SIDE OF THE APPELLANT IS ALSO OF NO HELP BEING NOT ON THE ISSUE AS DISCUSSED HEREINABOVE CONSIDERING THE FACTS INVOLVED IN THIS CASE. CONSIDERING THE 11 ITA NO. 175/NAG/2013 POSITION OF LAW AS DISCUSSED IN BRIEF SUPRA, WE ARE OF THE CO NSCIENTIOUS VIEW THAT THERE WAS NO LEGAL FALLACY IN SUCH DIRECTION OF LD. CIT - III, NAGPUR. THE ORDER PASSED U/S 263 IS HEREBY CONFIRMED. THE GROUNDS RAISED ARE DISMISSED. 8. IN THE RESULT , APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 TH DAY OF JUNE, 2015. SD/ - SD/ - ( SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER. NAG PUR, DATED: 26 TH JUNE, 2015. COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR WAKODE 12 ITA NO. 175/NAG/2013