Jiwan Kumar S/O Om Parkash, MANSA V. The Principal Commissioner of Income Tax, Bathinda

ITA 182/ASR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9610 (ITAT-AMRITSAR)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 01-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SH P N ARORA
• Keywords: Revision of order; Difference of opinion; Assessment record; Change of opinion
• Section: 143(3); 263; 63; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.182(ASR)/2016 ASSESSMENT YEAR:2012-13 PAN: ATZPK7131N SH. JIWAN KUMAR, VS. THE PRI. COMMISSIONER OF INCO ME TAX, S/O OM PARKASH, TAILOR BATHINDA. STREET, WARD NO.17, MANSA. (APPELLANT) (RESPONDENT) (RESPONDENT) APPELLANTS BY: SH.SH.P.N.ARORA, ADV. RESPONDENT BY: NONE DATE OF HEARING: 13/06/2016 DATE OF PRONOUNCEMENT: 26/08/2016 ORDER PER A.D. JAIN, JM: THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2012-13, AGAINST THE ORDER, DATED 11.02.2016, PASSED BY THE PRI. COMMISSIONER OF INCOME TAX, BATHINDA, UNDER SECTION 263 OF THE INCO ME TAX ACT, 1961. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. THE LD. PRINCIPAL COMMISSIONER OF INCOME TAX, B ATHINDA ERRED ON FACT AND LAW IN SETTING ASIDE THE ORDER OF THE AO PASSED U/S 143(3) DATED 21.01.2014 BY INVOKING THE PROVISIONS OF SECTION 263 WITHOUT PROVIDING ANY PR OPER OPPORTUNITY OF HEARING. 2. THE LD. PRINCIPAL COMMISSIONER OF INCOME TAX, BA THINDA ERRED ON FACT AND LAW IN ASSUMING JURISDICTION U/S 263 TO PASS AN ORDER FOR SETTING ASIDE THE ORDER U/S 143(3 ) DATED 21.01.2014 OF THE AO BECAUSE THE LD. PRINCIPAL CIT IN THE ORDER U/S 263 HAS SUBSTITUTED HIS OPINION FOR THE O PINION OF ITA NO.182(ASR)/2016 A.Y. 2012-13 2 THE AO BY REPPRAISING EVIDENCE ON RECORD. HENCE, TH E ACTION OF THE CIT IN SETTING ASIDE THE ORDER OF THE AO IS AGAINST THE PARAMETERS OF REVISIONAL JURISDICTION OF THE COMMIS SIONER OF INCOME TAX AS PROVIDED U/S 263 OF THE ACT AND THE O RDER IS LIABLE TO BE QUASHED. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSMENT IN THIS CASE WAS COMPLETED U/S 143(3) READ WITH SECTION 153 B(1) OF THE INCOME TAX ACT, BY THE A.O. ON 21.01.2014 AT A TOTAL INCOM E OF RS.2,54,330/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY TO EXAMINE THE SOURCE OF CASH AMOUNTING TO RS.15,02,530/- FOUND IN THE PO SSESSION OF THE ASSESSEE ON 06.01.2012 DURING CHECKING BY A SURVEIL LANCE TEAM DEPUTED IN CONNECTION WITH THE PUNJAB STATE LEGISLATIVE ASS EMBLY ELECTIONS, 2012. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE STATED THAT HE WAS AN EMPLOYEE OF M/S. KHOOBSURAT ORNAMENT S, MANSA AND THE CASH OF RS.14,80,000/- BELONGED TO THE SAID PROPRIE TORSHIP CONCERN OF SH. OM PARKASH AND THE REMAINING RS.22,530/- WAS B USINESS PAYMENTS COLLECTED BY HIM. THE CASH WAS TAKEN TO PATIALA FOR PURCHASE OF A PROPERTY FROM ONE SH. SHAM LAL S/O SH. MOHAN LAL OF GIAN COLONY, PATIALA. HOWEVER, THE DEAL WAS NOT FINALIZED AND TH E CASH WAS BEING CARRIED BACK BY THE ASSESSEE TO MANSA, WHEN IT WAS SEIZED BY THE SURVEILLANCE TEAM, AND SUBSEQUENTLY, BY THE INCOME TAX DEPARTMENT. THE LD. PRI. CIT OBSERVED THAT THE AO ACCEPTED THIS VERSION OF EVENTS WITHOUT INQUIRING WHETHER (A) THE BUSINESS CONCERN MENTIONED COULD HAVE HAD THAT CASH AVAILABLE IN THE REGULAR COURSE OF BUSINESS; (B) THERE WAS ANY INDEPENDENTLY VERIFIABLE EVIDENCE IN SUPPOR T OF THE VERSION ITA NO.182(ASR)/2016 A.Y. 2012-13 3 ADVANCED BY THE ASSESSEE AND (C) THE PROPRIETOR OF KHOOBSURAT JEWELLERS HAD KNOWLEDGE ABOUT MOVEMENT OF CASH STATED BY ASSE SSEE TO BE BELONGING TO THE SAID CONCERN. 3. THE ASSESSEE FILED APPLICATION FOR RELEASE OF CA SH ON 29.09.2012, WHICH WAS REJECTED BY THE AO VIDE ORDER, DATED 21.0 2.2013, PASSED U/S 132 OF THE ACT. DURING THE COURSE OF HEARING, THE B OOKS OF ACCOUNT ALONGWITH PURCHASE/SALE BILLS OF M/S. KHOOBSURAT OR NAMENTS WERE PRODUCED, BUT NO EVIDENCE REGARDING ANY PROPERTY DE AL WAS PRODUCED. SH. SHAM LAL S/O SH. MOHAN LAL R/O OF PATIALA, WIT H WHOM THE PROPERTY DEAL WAS BEING FINALIZED, WAS ALSO PRODUCED AND HI S STATEMENT WAS RECORDED (COPY PLACED AT APB 6-7). THE AO MADE ADDI TION OF RS.50,000/-, WHICH WAS REDUCED TO RS.35,000/- BY THE LD. CIT(A). 4. THE LD. PRI. CIT, BATHINDA, ASSUMING JURISDICTIO N U/S 263 OF THE ACT, ISSUED THE FOLLOWING NOTICE U/S 263(1) OF THE ACT TO THE ASSESSEE: SUB: NOTICE U/S 263(1) OF THE INCOME TAX ACT, 196 1 FOR THE A.Y. 2012-12 REGARDING. PLEASE REFER TO SUBJECT MENTIONED ABOVE. 2. RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 21 .12.2013 DECLARING TOTAL INCOME OF RS.2,04,330/-. THE ASSESS MENT WAS COMPLETED U/S 143(3) OF I.T. ACT, 1961 ON 21.01.201 4 BY THE ASSTT. COMMR. OF INCOME-TAX CIRCLE-1, BATHINDA AT A TOTAL INCOME OF RS.2,54,330/- 3. THE CASE WAS SELECTED FOR SCRUTINY TO EXAMINE TH E SOURCE OF CASH AMOUNTING TO RS.15,02,330/- FOUND IN POSSESSIO N OF THE ASSESSEE ON 06.01.2012 DURING CHECKING BY A SURVEIL LANCE TEAM DEPUTED IN CONNECTION PUNJAB STATE LEGISLATIVE ASSE MBLY ELECTIONS, 2012. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE CONTENDED THAT HE WAS AN EMPLOYEE OF M/S. KHOOBSURA T ORNAMENTS, MANSA AND THAT CASH OF RS.14,80,000/- WA S WITHDRAWN FROM THIS CONCERN WHICH WAS A PROPRIETORS HIP CONCERN OF HIS FATHER SH. OM PARKASH. THE BALANCE RS.22,530 /- WAS THE ITA NO.182(ASR)/2016 A.Y. 2012-13 4 BUSINESS PAYMENTS COLLECTED . THE CASH WAS TAKEN TO PATIALA FOR PURCHASE OF PROPERTY FROM ONE SH. SHAM LAL S/O SH. MOHAN LAL, OF GIAN COLONY, PATIALA. HOWEVER, THE DEAL COULD NOT B E FINALISED . THEREFORE, THIS AMOUNT WAS BEING CARRIED BACK BY SH . JIWAN KUMAR TO MANSA WHEN IT WAS SEIZED BY THE SURVEILLAN CE TEAM AND SUBSEQUENT BY THE INCOME TAX DEPARTMENT. THE AO WHI LE MAKING THE ASSESSMENT HAS ACCEPTED THIS VERSION OF EVENTS WITHOUT INQUIRING WHETHER (A) THE BUSINESS CONCERN MENTI ONED COULD HAVE HAD THAT CASH AVAILABLE IN REGULAR COURSE OF B USINESS; (B) THERE WAS ANY INDEPENDENTLY VERIFIABLE EVIDENCE IN SUPPORT OF VERSION ADVANCED BY THE ASSESSEE AND (C) THE PROPRI ETOR OF KHOOBSURAT JEWELLERS HAD KNOWLEDGE ABOUT MOVEMENT OF CASH STATED BY ASSESSEE TO BE BELONGING TO THE SAID CONC ERN. II) THERE IS A COMPLETE ABSENCE OF ENQUIRY TO VERI FY THE KEY ELEMENTS OF THE VERSION ADVANCED BY THE ASSESSE E. 4. THIS LACK OF INQUIRY HAS MADE THE ASSESSMENT ORD ER ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE R EVENUE. 5. IN VIEW OF THE ABOVE, YOU ARE HEREBY GIVEN AN OP PORTUNITY TO EXPLAIN AS TO WHY POWERS U/S 263 OF THE I.T. ACT, 1 961 MAY NOT BE EXERCISED WITH REFERENCE TO THE ABOVE REFERRED ASSE SSMENT ORDER DATED 21.01.2014 SINCE THE SAID ORDER PASSED BY THE AO PRIMA FACIE APPEARS TO BE ERRONEOUS AND PREJUDICIAL TO TH E INTEREST OF THE REVENUE. 6. THE CASE STANDS FIXED FOR HEARING ON 28.01.2016 AT 11.30 AM IN MY OFFICE AT ABOVE STATED ADDRESS ON WHICH DATE YOU MAY ENTER APPEARANCE BY YOURSELF OR YOUR AUTHORIZED REPRESENT ATIVE. YOU MAY FILE WRITTEN SUBMISSIONS ALONGWITH ANY EVIDENCE ON WHICH YOU MAY RELY, ON OR BEFORE THE SAID DATE OF HEARING. 5. THE LD. PRI. CIT, BATHINDA, VIDE ORDER DATED 11. 02.2016, SET ASIDE THE ASSESSMENT ORDER DATED 21.01.2014, CONCLUDING T HAT IT IS A CASE OF NO INQUIRY AND, THEREFORE, IS ERRONEOUS AND PREJUDICIA L TO THE INTERESTS OF THE REVENUE. 6. AGGRIEVED BY THE ORDER OF THE LD. PRI. CIT, THE ASSESSEE IS NOW IN APPEAL BEFORE US. ITA NO.182(ASR)/2016 A.Y. 2012-13 5 7. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED T HAT THE LD. PRI. CIT IS NOT JUSTIFIED IN SETTING ASIDE THE ASSESSMENT OR DER AND SUBSTITUTING HIS OPINION U/S 263 OF THE ACT FOR THE OPINION OF THE ASSESSING OFFICER. HE FURTHER SUBMITTED THAT THE BOOKS OF ACCOUNT WERE PR ODUCED BEFORE THE AO, MANSA DURING THE COURSE OF PROCEEDINGS U/S 132B FOR RELEASE OF CASH AND ALSO BEFORE THE AO DURING THE ASSESSMENT PROCEE DINGS. HE HAS ALSO PLACED COPIES OF RELEVANT PAGES OF CASH BOOK, WHICH ARE PART OF THE ASSESSMENT RECORD, AT APB 11 TO 14. HE ALSO STATED THAT SH. SHAM LAL S/O SH. MOHAN LAL WAS ALSO PRODUCED BEFORE THE AO A ND HIS STATEMENT WAS RECORDED ON 25.11.2013 (COPY PLACED AT APB 15 T O 17) WITH REGARD TO FINALIZATION OF THE PROPERTY DEAL. HE ALSO STATED T HAT THE OBJECTIONS RAISED BY THE LD. PRI. CIT WERE NEVER CONFRONTED TO THE AS SESSEE AND THE ASSESSEE WAS NEVER ASKED TO PRODUCE SH. OM PARKASH, PROP. OF M/S. KHOOBSURAT ORNAMENTS. THERE WAS NO WRITTEN AGREEMEN T FOR PURCHASE OF PROPERTY, AS THE SAME WAS CONFIRMED BY SH. SHAM LAL , SELLER OF THE PROPERTY. AS REGARDS THE OBJECTION OF THE PRI. CIT THAT NO POWER OF ATTORNEY WAS GIVEN BY THE ASSESSEE TO PURCHASE THE PROPERTY ON HIS BEHALF, IT HAS BEEN STATED BY SH. SHAM LAL THAT SH. OM PARKASH AND SH. JIWAN KUMAR VISITED HIM AT PATIALA. FURTHER, THE AS SESSEE HAS STATED IN THE WRITTEN SUBMISSIONS THAT HIS FATHER SH. OM PA RKASH STAYED AT PATIALA AND THE ASSESSEE CAME BACK TO MANSA. IN VIE W OF THE ABOVE FACTS, THE ASSESSEES COUNSEL STATED THAT THE ONLY CONTENT ION OF THE PRI. CIT IS THAT THE AO SHOULD HAVE MADE FURTHER ENQUIRIES, WHI CH HAS NOT BEEN ITA NO.182(ASR)/2016 A.Y. 2012-13 6 DONE, ACCORDING TO HIM. THUS, THIS IS NOT A CASE OF LACK OF ENQUIRY AND THE PRI. CIT ERRED IN ASSUMING JURISDICTION U/S 2 63 OF THE ACT, MERELY BECAUSE OF A DIFFERENT OPINION. IN SUPPORT OF HIS C ASE, HE PLACED RELIANCE ON THE FOLLOWING CASE LAWS: I) CIT VS. INDO GERMAN FAB, ITA NO.248 OF 2012 (P&H) II) CIT VS. DEEPAK MITTAL, 324 ITR 411 (P&H) III) NARAIN SINGLA VS. PR. CIT, 62 TAXMAN.COM 225 (CHD . TRIB.) 8. NOBODY APPEARED ON BEHALF OF THE DEPARTMENT. 9. WE HAVE HEARD THE CONTENTIONS OF THE ASSESSEE A ND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE LD. PRI. CIT HAS ASSUMED JURISDICTION U/S 263 OF THE ACT FOR THE ALL EGED LACK OF INQUIRY BY THE A.O. AND HELD THAT THE ORDER OF THE AO IS ERRO NEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE LD. PRI. CIT O BSERVED THAT SH. OM PARKASH PROP. OF M/S. KHUBSOORAT ORNAMENTS, I.E. TH E FATHER OF THE ASSESSEE WAS NEITHER PRODUCED BY THE ASSESSEE NOR S UMMONED BY THE AO; THAT THE AGREEMENT REGARDING PURCHASE OF PROPE RTY WAS NOT PRODUCED; THAT THERE WAS NO POWER OF ATTORNEY GIVE N BY SH. OM PARKASH TO SH. JIWAN KUMAR FOR PURCHASE OF PROPERTY ON HIS BEHALF; THAT NO AGREEMENT TO SELL WAS PRODUCED AND NO PART PAYMENT WAS MADE; AND THE AO DID NOT EXAMINE THE AVAILABILITY OF CASH IN HAN D WITH M/S. KHUBSOORAT ORNAMENTS. ITA NO.182(ASR)/2016 A.Y. 2012-13 7 10. FROM THE RECORD, IT IS SEEN THAT THE BOOKS OF A CCOUNT WERE PRODUCED BEFORE THE AO WARD 1(4) MANSA DURING THE C OURSE OF PROCEEDINGS U/S 132B FOR RELEASE OF CASH AND ALSO B EFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE COPIES OF RELEVANT PAGES OF CASH BOOK ARE PART OF THE ASSESSMENT RECORD IN WHIC H CASH AMOUNTING TO RS. 1480000/- HAS BEEN DEBITED IN CASH IN TRANSIT O N 05.01.2012 AND THE CASH WAS SEIZED ON 06.01.2012 [ORDER U/S 132B P B 8 TO 10, COPY OF CASH BOOK PB 11 TO 14]. FURTHER DURING THE COURSE O F ASSESSMENT PROCEEDING SH. SHAM LAI S/O SH. MOHAN LAI WAS PRODU CED AND HIS STATEMENT WAS RECORDED ON 25.11.2013 [PB 15 TO 17] IN WHICH HE HAS CONFIRMED THAT HE HAD ENTERED IN TO A DEAL OF SALE OF PROPERTY WITH SH. OM PARKASH AND SH. OM PARKASH ALONGWITH HIS SON SH. JIWAN KUMAR VISITED HIM WITH A SUM OF RS. 1480000/- FOR FINALIZING THE DEAL OF PROPERTY BUT THE SAME COULD NOT BE FINALIZED DUE TO NON CLEARANCE OF LOAN. BUT THE PR. CIT AFTER RAISING OBJECTIONS TO T HE EXPLANATION OF THE ASSESSEE HELD THAT THE ASSESSMENT ORDER IS ERRONEOU S AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE OBJECTIONS REPRODU CED IN THE ORDER U/S 263 WERE NOT CONFRONTED TO THE ASSESSEE AND ONLY BE CAUSE OF THIS FACT THE REPLY COULD NOT BE GIVEN. HOWEVER, THE REPLY TO THE OBJECTIONS OF THE PR. CIT RAISED IN THE ORDER U/S 263 ARE AS UNDER:- I) THE ASSESSEE WAS NEVER ASKED TO PRODUCE HIS FAT HER SH. OM PARKASH PROP. M/ KHUBSOORAT ORNAMENTS EITHER BY THE AO DURING THE COURSE OF PROCEEDINGS FOR HEARING FOR RE LEASE OF CASH OR DURING THE COURSE OF ASSESSMENT PROCEEDINGS . ITA NO.182(ASR)/2016 A.Y. 2012-13 8 II) THERE WAS NO WRITTEN AGREEMENT PURCHASE OF PRO PERTY. SH. SHAM LAI, SELLER OF THE PROPERTY CONFIRMED IN HIS S TATEMENT IN ANSWER TO QUESTION NO. 7 THAT NO PRIOR AGREEMENT WAS MADE [PB 171). III) REGARDING THE OBJECTION OF THE PR. CIT THAT N O POWER OF ATTORNEY WAS GIVEN BY THE ASSESSEE TO PURCHASE THE PROPERTY ON HIS BEHALF. IT HAS BEEN STATED BY SH. SHAM LAI I N HIS STATEMENT BEFORE THE AO IN ANSWER TO QUESTION NO. 5 FPB 161 THAT SH. OM PARKASH AND SH. JIWAN KUMAR VISITED HIM AT PATIALA. IT HAS ALSO BEEN STATED BEFORE THE PR. CIT IN THE WRITTEN SUBMISSIONS THAT THE ASSESSEE HAD STATED IN THE STATEMENT RECORDED ON 06.01.2012 THAT HIS FATHER SH . OM PARKASH WENT TO PATIALA WITH HIM BUT STAVED AT PATI ALA AND THE ASSESSEE CAME BACK. IV) IV. THE AO HAS RECORDED HIS SATISFACTION REGARD ING THE AVAILABILITY OF CASH WITH KHUBSOORAT ORNAMENTS IN T HE ORDER SHEET ENTRY DATED 25.11.2013 THAT THE DETAILED ENQU IRY REGARDING THE CASH IN HAND BELONGING TO KHUBSOORAT ORNAMENTS WAS MADE FROM CASH BOOK AND LEDGER FPB 21 1 AND ALSO IN THE LETTER ADDRESSED TO PR CIT DATED 09 .12.2015 RECOMMENDING THE RELEASE OF CASH (PB 20). 11. IN VIEW OF THE ABOVE STATED FACTS. IT IS APPAR ENT THAT THE ONLY CONTENTION OF THE PR. CIT IS THAT THE AO SHOULD HAV E MADE FURTHER ENQUIRIES WHICH HAS NOT BEEN DONE ACCORDING TO HIM. THUS THIS IS NOT A CASE OF LACK OF ENQUIRY AND THE PR. CIT ERRED IN AS SUMING JURISDICTION U/S 263 MERELY BECAUSE HE HAS A DIFFERENT OPINION THEN THE AO IN THE MATTER. 12. THUS, IT IS SEEN THAT THE PRESENT CASE IS NOT A CASE OF LACK OF ENQUIRY. AS DISCUSSED HEREINABOVE, ENQUIRY WAS CARR IED OUT BY THE AO. WE FIND THAT IN FACT, THE LD. PRI. CIT HAS SUBSTIT UTED ITS OPINION FOR THE OPINION OF THE AO BY REPRAISING EVIDENCE ON RECORD, AS HAS RIGHTLY BEEN CONTENDED ON BEHALF OF THE ASSESSEE. ITA NO.182(ASR)/2016 A.Y. 2012-13 9 13. IN THE CASE OF CIT VS. INDO GERMAN FAB (SUPRA ), IT HAS BEEN HELD THAT SECTION 263 OF THE ACT CONFERS POWER TO EXAMIN E AN ASSESSMENT ORDER SO AS TO ASCERTAIN WHETHER IT IS ERRONEOUS AN D PREJUDICIAL TO THE INTERESTS OF THE REVENUE, BUT DOES NOT CONFER JURIS DICTION UPON THE CIT TO SUBSTITUTE HIS OPINION FOR THE OPINION OF THE AS SESSING OFFICER. 14. IN CIT DEEPAK MITTAL, 324 ITR 411 (P&H), IT HAS BEEN HELD THAT CHANGE OF OPINION BY REPPRAISING THE EVIDENCE IS NO T WITHIN THE PARAMETERS OF THE REVISIONAL JURISDICTION OF THE CI T UNDER SECTION 263 OF THE ACT. 15. IN NARAIN SINGLA VS. PR. CIT, 62 TAXMANN.COM 255 (CHD. TRIB.), IT HAS BEEN HELD THAT IT IS A MATTER OF FACT THAT THE AO, BEING AN ADJUDICATING OFFICER, HAS TO FORM AN OPINION ON THE BASIS OF EVIDENCE, WHICH HE HAS DULY DONE. IF THE LD. CIT, ON THE SAME SET OF EVIDENCE, FORMS AN OPINION, IT BEING A QUESTION OF FACT, DOES NOT G IVEN HIM JURISDICTION TO REVISE THE SAME U/S 263 OF THE ACT. THIS IS CERTAIN LY A CASE OF DIFFERENCE OF OPINION BETWEEN AO AND CIT. THE ONLY CONTENTION OF THE CIT SEEMS TO BE THAT THE AO SHOULD HAVE MADE FURTHER ENQUIRIES /INVESTIGATION, WHICH HE HAS NOT DONE. HOWEVER, FOR ASSUMING JURISDICTION U/S 263, ONE HAS TO KEEP IN MIND THE DISTINCTION BETWEEN LACK OF INQUIR Y AND INADEQUATE ENQUIRY. IF THERE WAS AN ENQUIRY, EVEN INADEQUATE, THAT WOULD NOT BY ITSELF GIVE OCCASION TO THE CIT TO PASS ORDER U/S 2 63, MERELY BECAUSE HE HAS A DIFFERENT OPINION IN THE MATTER. IT IS ONLY I N CASE OF LACK OF ENQUIRY ITA NO.182(ASR)/2016 A.Y. 2012-13 10 THAT SUCH A CAUSE OF ACTION COULD BE OPEN. THE AO A CCEPTED AND EVEN IN THE OFFICE NOTE MEANT FOR INTERNAL PURPOSES, HE ME NTIONS THAT THE ASSESSEE HAS SUBSTANTIATED THE JEWELLERY SEIZED. IN VIEW OF THESE EVIDENCES, THIS IS NOT A CASE OF LACK OF INQUIRY EI THER. 16. FOR THE ABOVE DISCUSSION, THE GRIEVANCE OF THE ASSESSEE IS JUSTIFIED. HENCE, THE ORDER OF THE LD. PRI. CIT, PASSED U/S 26 3 OF THE ACT IS SET ASIDE, AS THE ORDER OF THE AO IS NOT FOUND TO BE ER RONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26/08/ 2016. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER /SKR/ DATED: 26/08/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:JIWAN KUMAR, MANSA 2. THE PRINCIPAL CIT, BATHINDA. 3. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.