M/s. Jyoti Foundation, New Delhi V. DIT (Exemptions), New Delhi

ITA 1896/DEL/2012

• Counselvise Citation: 189620114 RSA 2012
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 25-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS RENU JA UHRI HEARING ON
• Assessee Lawyers: OTHERS
• Keywords: Charitable institution; Prejudicial to interest
• Section: 143(3); 147; 69; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE VICE-PRESIDENT AN D SHRI I.C.SUDHIR, JUDICIAL MEMBER I.T.A. NO. 1896/DEL/2012 ASSESSMENT YEAR: 2006-07 M/S JYOTI FOUNDATION, DIRECTOR OF INCOME TAX A-1/1, RAJOURI GARDEN VS. (EXEMPTIONS) NEW DELHI DELHI PAN: AAATJ0166G (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SALIL AGGRAWAL, ADV. & OTHERS. RESPONDENT BY: MRS. RENU JA UHRI, CIT(DR) HEARING ON : 27/06/2012 ORDER PRONOUNCED ON THE DATE: 24.08.2012 ORDER PER I.C.SUDHIR, JM: THE APPELLANT / ASSESSEE TRUST AS QUESTIONED THE VA LIDITY OF REVISIONAL ORDER U/S 263 OF THE ACT PASSED ON 30.3.2012 ON SEV ERAL GROUNDS: 1. THAT ORDER U/S 263 OF THE ACT DATED 30.3.2012 BY L EARNED DIRECTOR OF INCOME TAX (EXEMPTIONS) DELHI H AS BEEN MADE WITHOUT SATISFYING THE STATUTORY PRECONDITIONS CONTAINED IN THE ACT AND IS THEREFORE WITHOUT JURI SDICTION AND THUS, DESERVES TO BE QUASHED AS SUCH. 1.1 THAT FINDING OF THE LEARNED DIRECTOR OF INCOME TAX (EXEMPTIONS) THAT ORDER OF ASSESSMENT U/S 147/143 (3) DATED 8.6.2009 WAS FRAMED IN HURRIED AND CASUAL ITA NO.1896/DEL/2012 2 MANNER, WITHOUT APPLICATION OF MIND AND WITHOUT MA KING PROPER ENQUIRIES IS FACTUALLY INCORRECT, CONTRARY TO RECORD AND THEREFORE UNSUSTAINABLE. 1.2 THAT FURTHER FINDING THAT, ORDER OF ASSESSMENT DATED 8.6.2009 IS ERRONEOUS AND PREJUDICIAL TO THE INTERE ST OF REVENUE AS THE ENTIRE CONSIDERATION AS PER BAYANA RECEIPT DATED 4.10.2005 HAS NOT BEEN BROUGHT TO TAX IS ALSO BASED ON FACTUAL MISCONCEPTION AND MISINTERPRETATION OF PROVISIONS OF LAW AND THUS, UNSUSTAINABLE. 1.3. THAT THE LEARNED DIRECTOR OF INCOME TAX (EXEMP TIONS) HAS FAILED TO APPRECIATE THAT ONCE THE LEARNED ASSESSIN G OFFICER ON EXAMINATION OF THE FACTS ON RECORD AND AFTER MAK ING ALL POSSIBLE ENQUIRIES HAD ACCEPTED THAT DECLARED CONSIDERATION, THEN SUCH AN ORDER OF ASSESSMENT COU LD NOT BE REGARDED AS ERRONEOUS IN AS MUCH AS PREJUDICIAL TO THE INTEREST OF REVENUE MERELY BECAUSE THE LEARNED DIRE CTOR OF INCOME TAX (EXEMPTIONS) HAD A DIFFERENT OPINION AND THAT TOO, WITHOUT HAVING ESTABLISHED IN ANY MANNER THAT, VIEW ADOPTED BY THE LEARNED ASSESSING OFFICER WAS AN IMPOSSIBLE VIEW. 1.4 THAT THE LEARNED DIRECTOR OF INCOME TAX (EXEMPT IONS) HAS OVERLOOKED THE REPLY TO SHOW CAUSE NOTICE AND MATER IAL ON RECORD AND AS SUCH ORDER MADE MECHANICALLY AND WITH A PREMEDITATED OPINION IS VITIATED AND, NOT IN ACCORD ANCE WITH LAW. 1.5 THAT FURTHER THE LEARNED DIRECTOR OF INCOME TAX (EXEMPTIONS) HAS ALSO FAILED TO APPRECIATE THAT, U /S 263 OF THE ACT, AN ORDER OF ASSESSMENT CANNOT BE SET ASID E TO SIMPLY TO MAKE FURTHER ENQUIRIES AND THEREAFTER PA SS FRESH ORDER OF ASSESSMENT AND AS SUCH, IMPUGNED ORDER IS CONTRARY TO LAW AND HENCE, UNSUSTAINABLE. 1.6 THAT LEARNED DIRECTOR OF INCOME TAX (EXEMPTIONS ) HAS FAILED TO APPRECIATE THAT BAYANA RECEIPT HAD BEEN S IGNED BY THE COMPLAINANT SH. JAYANT PANDEY AND NOT BY THE APPELLANT TRUST AND AS SUCH THERE WAS NO MATERIAL W HICH ITA NO.1896/DEL/2012 3 COULD ENABLE THE LEARNED DIRECTOR OF INCOME TAX (EXEMPTIONS) TO REGARD ORDER OF ASSESSMENT AN ERRON EOUS AND PREJUDICIAL TO INTEREST OF REVENUE. 1.7 THAT THE LEARNED DIRECTOR OF INCOME TAX (EXEMPT IONS) HAS OTHERWISE ALSO FAILED TO APPRECIATE THAT APPELLANT TRUST WAS A CHARITABLE TRUST AND AS SUCH, EVEN ASSUMING THOUG H THE SAME IS SERIOUSLY DISPUTED THAT, ANY INCOME WAS NOT ASSESSED TO TAX THEN TOO NO LAWFUL TAX WAS OMITTED TO BE CHARGED SINCE ENTIRE INCOME WAS ELIGIBLE FOR EXEMPT ION. 1.8 THAT FINDINGS RECORDED BY THE LEARNED DIRECTOR OF INCOME TAX (EXEMPTIONS) OTHERWISE CONTRADICTORY IN AS MUCH AS ON ONE HAND HE HELD THAT ENTIRE CONSIDERATION AS PE R BAYANA RECEIPT DATED 4.10.2005 HAS NOT BEEN BROUGHT TO TAX AND ON THE OTHER HAND, HE HELD THAT ORDER OF ASSESSMENT IS SET- ASIDE WITH DIRECTIONS TO THE LEARNED ASSESSING OFFI CER, TRUST WARD-IV, NEW DELHI TO MAKE ENQUIRY FROM SH. JAYANT PANDEY AND OBTAIN THE ORIGINAL BAYANA RECEIP T AT THE TIME OF EXAMINATION OF VARIOUS PERSONS AND BRIN G IT TO THE NOTICE OF THE PURCHASER AS THE SIGNATURES IS AP PARENTLY SAME AND CONDUCT OTHER ENQUIRIES TO ARRIVE AT PROPE R CONCLUSION ON THE VERACITY OF BAYANA RECEIPT, IN QU ESTION AND PASS A FRESH ASSESSMENT IN ACCORDANCE WITH LAW AFTER DUE OPPORTUNITY OF HEARING OF THE ASSESSEE. THIS AL ONE IS SUFFICIENT TO ESTABLISH THAT, IMPUGNED ORDER IS A V ITIATED ORDER. THE RELEVANT FACTS ARE THAT IN ITS RETURN OF INCOME THE ASSESSEE HAD DECLARED NIL INCOME AND ASSESSMENT WAS ALSO FRAME D AT NIL INCOME. SUBSEQUENTLY IT CAME TO THE NOTICE OF THE A O THAT ASSESSEE HAD SOLD LAND SITUATED IN VILLAGE NANGLI, SAKARAWAT I, DELHI FOR A CONSIDERATION OF RS.84 LACS, WHEREAS THE ASSESSEE H AD DECLARED THE SALE CONSIDERATION AT RS.16 LACS ONLY IN ITS RETURN OF I NCOME. THE CASE WAS REOPENED U/S 147 OF THE ACT AND THE ASSESSMENT WAS FRAMED U/S 143 (3) / 147 ON 8.6.2009 AT NIL INCOME. THE LD. DIRE CTOR OF INCOME TAX (EXEMPTION) INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT, HAS HELD THAT THE ASSESSMENT FRAMED U/S 147 / 143 (3) I S ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THE LD. DIR ECTOR OF INCOME TAX ITA NO.1896/DEL/2012 4 (EXEMPTION) HAS SET ASIDE THE ASSESSMENT ORDER WITH DIRECTION TO THE AO TO MAKE INQUIRY FROM SHRI. JAYANT PANDEY AND OBT AIN THE ORIGINAL BAYANA RECEIPT AND TO CONDUCT OTHER INQUIRIES TO ARRIVE AT PROPER CONCLUSION ON THE VERACITY OF BAYANA RECEIPT IN Q UESTION AND PASS A FRESH ASSESSMENT IN ACCORDANCE WITH LAW AFTER AFFOR DING DUE OPPORTUNITY OF HEARING TO THE ASSESSEES. THIS ACTI ON OF THE LD. DIRECTOR OF INCOME TAX (EXEMPTION) HAS BEEN QUESTIO NED BY THE ASSESSEE BEFORE THE TRIBUNAL. 2. WE HAVE HEARD AND CONSIDERED THE ARGUMENTS ADVANCED BY THE PARTIES IN VIEW OF ORDERS OF THE AUTHORITIES BELOW AND THE DECISIONS RELIED UPON BY THEM. 3. THE LD. AR SUBMITTED THAT THE AO HAS FRAMED ASSESS MENT U/S 147 / 143(3) DATED 8.6.2009 IN QUESTION ON EXAMINATION OF THE FACTS ON RECORD AND AFTER MAKING ALL POSSIBLE INQUIRIES. THUS SUCH ASSE SSMENT ORDER COULD NOT BE TREATED AS ERRONEOUS IN AS MUCH AS PREJUDICIAL TO T HE INTEREST OF REVENUE MERELY BECAUSE THE LD. DIRECTOR OF INCOME TAX (EXEM PTION) [DIT (E)] WAS HAVING DIFFERENT OPINION. HE SUBMITTED THAT IT IS N OT THE CASE OF DIT (E) THAT VIEW ADOPTED BY THE ASSESSING OFFICER WAS AN IMPOSS IBLE VIEW. THE LD. DIT (E) HAS ALSO FAILED TO APPRECIATE THAT U/S 263 AN O RDER OF ASSESSMENT CANNOT BE SET ASIDE SIMPLY TO MAKE FURTHER INQUIRIES AND T HERE AFTER PASS FRESH ORDER OF ASSESSMENT. THE LD. AR POINTED OUT THAT THE LD. DIT (E) HAS FAILED TO APPRECIATE THAT ASSESSEE IS A CHARITABLE TRUST AND AS SUCH EVEN ASSUMING THOUGH THE SAME IS SERIOUSLY DISPUTED THAT ANY INCO ME WAS NOT ASSESSED TO TAX, THEN TOO NO LAWFUL TAX WAS OMITTED TO BE CHARG ED SINCE ENTIRE INCOME ITA NO.1896/DEL/2012 5 WAS ELIGIBLE FOR EXEMPTION. THE AO HAD EXAMINED BUY ER AND SELLER BOTH AND HAD ALSO ISSUED SUMMONS TO SHRI JAYANT PANDEY, THE COMPLAINANT BUT THE INSPECTOR REPORTED THAT SHRI PANDEY, WAS NOT AVAILA BLE AT THE GIVEN ADDRESS. THUS ALL THE POSSIBLE INQUIRIES WERE CONDUCTED BY T HE AO BEFORE FRAMING THE ASSESSMENT IN QUESTION. SHRI JAYANT PANDEY, WHO IN HIS COMPLAINT HAD ALLEGED THAT THE PROPERTY I.E. PLOT NO. B-32 AREA 2 000 SQ. YARD IN VILLAGE NANGLI, SAKARWATI, DELHI OWNED BY THE ASSESSEE WAS AGREED TO BE SOLD TO SHRI RAJESH GUPTA AND ALKA GUPTA FOR RS.84 LAC @ RS .4200 PER SQ. YARD BUT THE DOCUMENTATION WAS MADE FOR RS.16 LAC ONLY, HAD LATER ON DEPOSED ON AFFIDAVIT DATED 1.3.2012 SENT TO THE DEPARTMENT THA T DUE TO DIFFERENCE WITH MANAGEMENT OF JYOTI MANAV SEVA SANSTHAN HOSPITAL ON DUE SALARY PAYMENT HE HAD FILED SEVERAL COMPLAINT AGAINST THE ASSESSEE AND SHRI JAGJYOTI JAIN TO THE INCOME TAX DEPARTMENT, POLICE ETC. ON THE BASIS OF SOME DOCUMENTS WHICH WERE NOT TRUE COPIES OF ACTUAL TRANSACTION OF SALE OF LAND BY SHRI JAGJYOTI JAIN / JYOTI FOUNDATION. IN THE SAID AFFID AVIT HE HAD DEPOSED THAT HE HAS NOW RESOLVED HIS SALARY DISPUTE WITH THE TRUST MANAGER JAGJYOTI JAIN BY RECEIVING MUTUALLY AGREED AMOUNT IN FULL AND FINAL DISCHARGE OFF ALL HIS CLAIMS. THE LD. AR REFERRED PAGE NOS. 118 TO 120 OF THE PAPER BOOK I.E. SHOW CAUSE NOTICE ISSUED U/S 263 TO THE ASSESSEE, W HEREIN THERE IS REFERENCE OF AFFIDAVIT DATED 1.3.2012 OF SHRI JAYANT PANDEY. IT HAS BEEN FURTHER STATED ITA NO.1896/DEL/2012 6 IN THE SAID SHOW CAUSE NOTICE THAT SHRI JAYANT PAND EY WAS CONFRONTED WITH HIS AFFIDAVIT AND HE HAS CLEARLY STATED THAT SEVERA L DOCUMENTS WERE FORCIBLY GOT SIGNED BY MR. JAGJYOTI JAIN AND ASSOCIATES INCL UDING THE FAKE APPLICATION ADDRESSED TO INCOME TAX OFFICER. NOWHERE IT IS MENT IONED AS TO WHO CONFRONTED SHRI JAYANT PANDEY AND WHEN HE WAS CONFR ONTED. THE LD. AR REFERRED PAGE NOS. 22 TO 112 OF THE PAPER BOOK I.E. THE COPIES OF DOCUMENTS FILED BY THE ASSESSEE BEFORE THE AUTHORITIES BELOW IN SUPPORT OF ITS CLAIM. THE LD. AR SUBMITTED THAT BOTH THE PARTIES I.E. BUYER A ND SELLER HAVE DENIED THEIR SIGNATURES ON THE BAYANA RECEIPT FURNISHED BY THE COMPLAINANT SHRI PANDEY. HE ALSO INFORMED THAT NO ADDITION U/S 69 OF THE ACT HAS BEEN MADE IN THE CASE OF THE BUYER. THE LD. AR THUS QUESTIONE D THE FINDING OF THE LD.DIT (E) THAT THE ASSESSMENT ORDER IN QUESTION IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. HE PLACED RELIANCE ON T HE FOLLOWING DECISIONS: I) CIT VS. LEISURE WEAR EXPORTS LTD. (2011) 11 TAXMANN.COM 54 (DELHI). II) CIT VS. SUNBEAM AUTO LTD (2010) 189 TAXMAN 436 (DELHI). III) VODAFONE ESSAR SOUTH LTD. VS. CIT (2011) 141 TTJ 84 (DELHI). IV) ROSHAN LAL VEGETABLE PRODUCTS PVT. LTD. VS. ITO (20 12) 18 TAXMANN. COM 295 (ASR.), V) CIT VED PRAKASH CHOUDHARI (2008) 305 ITR 245 (DELHI ). VI) ITO VS. D.G. HOUSING PROJECT (2012) 20 TAXMAN. COM 587 (DEL). ITA NO.1896/DEL/2012 7 4. THE LD. CIT - DR ON THE OTHER HAND TRIED TO JUSTIFY THE REVISIONAL ORDER IMPUGNED. REITERATED THE FINDING OF THE LD. D IT (E) THAT BOTH THE BUYER AND SELLER ARE INTERESTED PERSONS HENCE THEIR STATEMENTS THAT THE PROPERTY WAS SOLD ON THE DECLARED AMOUNT OF RS.16 L AC ONLY AND NOT FOR RS.84 LAC AS REPORTED, CANNOT BE RELIED UPON. HE PL ACED RELIANCE ON THE FOLLOWING DECISIONS: I) S. MONIKA VS. ITO 123 ITD 235 (CHENNAI). II) CIT VS. JAGDISH CHAND GUPTA (2010) 329 ITR 583 (P&H). III) DR. RAVINDRA KUMAR SINGH VS. CIT (2011) 136 TTJ 336 (RANCHI). IV) CIT VS. SUNIL GOYAL (2009) 176 TAXMANN 184 (UTTAR). 5. CONSIDERING THE ABOVE SUBMISSION WE FIND THAT THE L D. DIT (E) HAS HELD THE ASSESSMENT ORDER IN QUESTION AS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE ONLY ON THE BASIS THAT THE AO SHOULD HAVE MADE FURTHER INQUIRY ON SHRI JAYANT PANDEY, THE COMPLAINANT WHO HAD PRODUCED A COPY OF BAYANA RECEIPT BEFORE THE DEPARTMENT CLAIMING THA T THE PROPERTY IN QUESTION WAS ACTUALLY SOLD BY THE ASSESSEE TRUST TO SHRI RAJESH GUPTA AND SMT. ALKA GUPTA FOR RS.84 LAC AGAINST THE SHOWN CON SIDERATION BY THE ASSESSEE AT RS.16 LAC ONLY. WHILE SETTING ASIDE THE ASSESSMENT ORDER THE LD. DIT (E) HAS DIRECTED THE AO TO MAKE INQUIRY FROM SH RI JAYANT PANDEY AND OBTAINED THE ORIGINAL BAYANA RECEIPT AND CONDUCT OTHER INQUIRIES TO ARRIVE ITA NO.1896/DEL/2012 8 AT PROPER CONCLUSION ON THE VERACITY OF BAYANA REC EIPT AND PASS A FRESH ASSESSMENT IN ACCORDANCE WITH LAW AFTER AFFORDING D UE OPPORTUNITY OF HEARING TO THE ASSESSEE. ON THE OTHER HAND WE FIND FROM THE ASSESSMENT ORDER IN QUESTION THAT THE AO HAD EXAMINED BOTH THE SELLE R I.E. ASSESSEE TRUST AND THE BUYERS SHRI RAJESH GUPTA AND SMT. ALKA GUPTA WH O HAVE AFFIRMED THE SALE CONSIDERATION AT RS.16 LAC. THE AO HAD ALSO IS SUED SUMMONS TO THE COMPLAINANT SHRI JAYANT PANDEY BUT HE COULD NOT BE SERVED WITH THE SUMMONS SINCE THE INSPECTOR REPORTED THAT SHRI PAND EY WAS NOT AVAILABLE ON THE GIVEN ADDRESS. UNDER THIS FACT WHEN FRESH ADDRE SS WAS NOT AVAILABLE WITH THE AO, THE AO WAS HAVING NO OPTION BUT TO FRAME TH E ASSESSMENT ON THE ISSUE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. IT IS NOT THE CASE OF THE LD. DIT (E) THAT DESPITE HAVING KNOWN THE AVAILABILITY OF SHRI PANDEY ON SOME FRESH ADDRESS THE AO DID NOT BOTHER TO SECURE HIS P RESENCE TO EXAMINE THE VERACITY OF HIS COMPLAINT AND THE BAYANA RECEIPT FILED BY HIM. IT ALSO APPEARS FROM THE PAPER BOOK FILED UNDER CERTIFICATE OF THE ASSESSEE THAT ALL THE RELEVANT DOCUMENTS RELATING TO THE TRANSACTIONS WERE FILED BY THE ASSESSEE BEFORE THE AO ALONG WITH COPY OF MINUTE BOOKS OF TH E TRUST FOR F.Y. 2005-06 IN WHICH SHRI JAYANT PANDEY (THE THEN ADMINISTRATOR OF THE HOSPITAL RUN BY THE ASSESSEE), THE COMPLAINANT WAS ALSO ONE OF THE ATTENDANTS IN WHICH SALE OF PROPERTY FOR RS.16 LACS BY TRUST WAS APPROVED. C OPY OF SB ACCOUNT OF THE ITA NO.1896/DEL/2012 9 ASSESSEE WITH SYNDICATE BANK NEW DELHI WAS ALSO FIL ED. THE ASSESSEE HAD ALSO FILED BEFORE THE A.O. THE COPIES OF THE AGREEM ENTS TO SALE OF TWO COMPARABLE SALE INSTANCES OF THE LAND TO PROVE THAT THE SALE CONSIDERATION RECEIVED BY THE ASSESSEE IS AT MARKET RATE. UNDER T HESE CIRCUMSTANCES WE ARE OF THE VIEW THAT THE LD. DIT (E) WAS NOT JUSTIFIED IN COMING TO THE CONCLUSION THAT THE AO HAD NOT MADE PROPER INQUIRIE S TO EXAMINE THE CLAIMED TRANSACTION ON THE DECLARED CONSIDERATION B EFORE FRAMING THE ASSESSMENT AND IN HOLDING THE ASSESSMENT AS ERRONEO US AND PREJUDICIAL TO THE INTERESTS OF REVENUE. WE THUS WHILE SETTING ASIDE T HE REVISIONAL ORDER IMPUGNED RESTORE THE ASSESSMENT ORDER PASSED U/S 14 7 / 143 (3) OF THE ACT. THE AFORECITED DECISIONS RELIED UPON BY THE LD. DR ARE HAVING DISTINGUISHABLE FACTS, HENCE ARE NOT HELPFUL TO THE REVENUE. IN THE CASE OF DR. RAVINDRA KUMAR SINGH VS. CIT (SUPRA) RELIED UPON BY LD. DR SEARCH SEIZURE OPERATIONS WERE CARRIED ON BY THE DEPARTMEN T LEADING TO RECOVERY OF INCRIMINATING MATERIAL, IT WAS HELD THAT IT WAS INC UMBENT UPON ASSESSING OFFICER TO COLLECT RELEVANT INFORMATION NOT ONLY FR OM ASSESSEE BUT FROM ALL CONCERN AGENCIES. LIKEWISE IN THE CASE OF CIT VS. S UNIL GOEL (SUPRA) RELIED UPON BY LD. DR THE ASSESSING OFFICER HAD NOT DULY V ERIFIED THE SUNDRY CREDITORS. SIMILARLY IN THE CASE OF CIT VS. JAGDISH CHAND GUPTA (SUPRA) RELIED UPON BY THE LD. DR THE HONBLE PUNJAB & HARY ANA HIGH COURT HAS ITA NO.1896/DEL/2012 10 JUSTIFIED THE INVOCATION OF SECTION 263 OF THE ACT, SINCE THE A.O. THEREIN HAD FAILED TO TAX CASH SEIZED AND LATER SURRENDERED BY THE ASSESSEE. IN THE PRESENT CASE BEFORE US AS DISCUSSED ABOVE, REQUISITE INQUIR IES WAS HOWEVER MADE BY THE A.O. ON THE ISSUE OF RECEIPT OF CONSIDERATION A GAINST THE LAND SOLD, HENCE ASSESSMENT ORDER WAS NOT ERRONEOUS. THE ONLY GRIEVA NCE OF THE LD. DIT (E) AGAINST THE ASSESSMENT ORDER IN THE PRESENT CASE RE MAINED THAT THE A.O. SHOULD HAVE GONE DEEPER IN THE MATTER WHEREAS THE A .O. HAD ALREADY MADE THE REQUISITE INQUIRIES BY EXAMINING THE BUYERS AND SELLERS, CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE AND CONFRONTED THE BAYANA RECEIPT FURNISHED TO THE DEPARTMENT WITH THE ASSESSEE. THE COMPLAINANT SHRI PANDEY, WAS ALSO SUMMONED BUT HE WAS NOT FOUND AVAILABLE ON THE GIVEN ADDRESS AS REPORTED BY THE INSPECTOR OF THE DEPARTMENT. UNDER ALMOST SIMILAR FACTS IN THE CASE OF CIT VS. LEISURE WEAR EXPORTS LTD. (SUPR A) THE HONBLE JURISDICTIONAL DELHI HIGH COURT HAS BEEN PLEASED TO HOLD THAT WHERE THE ASSESSMENT ORDER HAS BEEN PASSED BY THE ASSESSING O FFICER AFTER TAKING INTO ACCOUNT THE ASSESSEES SUBMISSIONS AND DOCUMENTS FU RNISHED BY HIM AND NO MATERIAL WHATSOEVER HAS BEEN BROUGHT ON RECORD BY T HE COMMISSIONER WHICH SHOWED THAT THERE WAS ANY DISCREPANCY OR FALSITY IN EVIDENCES FURNISHED BY THE ASSESSEE, THE ORDER OF THE ASSESSING OFFICER CA NNOT BE SET ASIDE FOR MAKING DEEP INQUIRY ONLY ON THE PRESUMPTION AND ASS UMPTION THAT ITA NO.1896/DEL/2012 11 SOMETHING NEW MAY COME OUT. SIMILARLY IN THE CASE O F CIT VS. SUNBEAM AUTO LTD. (SUPRA) THE HONBLE DELHI HIGH COURT HAS BEEN PLEASED TO HOLD THAT MAKING AN INADEQUATE ENQUIRY BY AN ASSESSING O FFICER BY ITSELF WILL NOT GIVE OCCASION TO COMMISSIONER TO PASS ORDER U/S 263 MAINLY BECAUSE HE HAS DIFFERENT OPINION IN MATTERS, IT IS ONLY IN CASE OF LACK OF INQUIRY THAT SUCH A COURSE OF ACTION WOULD BE OPEN. THE GROUNDS INVOLVI NG THE ISSUE REGARDING THE VALIDITY OF THE REVISIONAL ORDER PASSED UNDER S ECTION 263 OF THE ACT, ARE THUS ALLOWED. 6. IN RESULT APPEAL IS ALLOWED. 7. ORDERS PRONOUNCED IN THE OPEN COURT ON 24/08/2012. SD/- SD/- ( G.D.AGRAWAL ) (I.C.SU DHIR) VICE-PRESIDENT JUDICIAL MEMBER DATED: 24/08/2012 *AK VERMA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR