SMT. SAPNA AGRAWAL, Bhopal V. THE PR. CIT-I, Bhopal

ITA 199/IND/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5593 (ITAT-INDORE)
• Duration Of Justice: 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 08-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LALCHAND
• Keywords: Revision of order; Principle of natural justice; Source of fund; Tax effect
• Section: 148; 263

Judgement Text

SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., ..!', #$ # !% BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER I.T.A. NO. 193/IND/2016 ASSESSMENT YEAR: 2007-08 SMT. SAPNA AGRAWAL BHOPAL PAN AJSPA 4631L :: APPELLANT VS PRINCIPAL CIT-I BHOPAL :: RESPONDENT REVENUE BY SHRI LALCHAND ASSESSEE BY SHRI MANOJ MUNSHI ! ' #$ DATE OF HEARING 15.11.2016 %&'( #$ DATE OF PRONOUNCEMENT 29.11.2016 * O R D E R PER SHRI D.T. GARASIA, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED PRINCIPAL CIT-I, BHOPAL, DATED 25.2.2016 SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 2 2. THE BRIEF FACTS OF THE CASE ARE THAT IN THIS CASE THE ASSESSMENT WAS COMPLETED U/S 143(3)/147 OF THE ACT ON 30.3.2014 BY THE ASSESSING OFFICER. ON EXAMINATION OF RECORD IT WAS FOUND BY THE LEARNED CIT THAT THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REV ENUE ON FOLLOWING GROUNDS :- 1. THAT THE ASSESSEE PURCHASED A FLAT WITH BUILT U P AREA 2162 SQ. FT AND SUPER BUILT UP AREA 2919 SQ. F T. AT CM HEIGHTS, INDORE FOR RS. 26,00,000/- FROM M/S PARSONS ENTERPRISES. THE SOURCE OF INVESTMENT HAS SHOWN TO HAVE BEEN PAID AS FOLLOWS :- RS.5 LACS OUT OF LOAN AMOUNT OF RS.6 LACS OBTAINED FROM M/S PAUL MERCHANTS RS.10 LACS LOANS TAKEN FROM BANK OF INDIA RS. 11 LACS BORROWED FROM SHRI VIVEK AGRAWAL THE CREDIT WORTHINESS OF M/S PAUL MERCHANTS REMAINE D UNVERIFIED. AS REGARDS LOAN FROM BANK, ASSESSEE WAS PAYING EMI OF RS.10,590/-, SOURCE OF SUCH PAYMENT REMAINED UNVERIFIED SPECIALLY WHEN THE ASSESSEE IS A NON-FILER. ON VERIFICATION OF ASSESSEES HUSBANDS ACCOUNT,. IT WAS SEEN THAT RS. 8 LACS WAS CREDITED IN HIS ACCOUNT WHICH ASSESSEE CLAIMS THAT IT WASA SENT BY ONE ADATIYA M/S MADANLAL ASHOK KUMAR OUT OF HUFS SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 3 AGRICULTURAL INCOME. THE RETURN OF INCOME FILED BY HUF HAS NOT BEEN VERIFIED. 3. THE NOTICE WAS GIVEN AND THE REPLY TO SHOW CAUSE NOTICE THE ASSESSEE SUBMITTED AS UNDER :- 4. THAT, IN RESPONSE TO THE NOTICE DATED DATED 22.03. 2013 UNDER SECTION 148 OF THE INCOME TAX ACT, 1961 THE A SSESSEE, THOUGH SHE WAS NOT REQUIRED TO FILE THE RETURN OF I NCOME, FILED HER RETURN OF INCOME FOR THE A.Y. 2008-09 ON 20.03. 2014. THE ASSESSEE ALONG WITH THE RETURN OF INCOME ALSO FILED A LETTER OF EVEN DATE EXPLAINING THEREIN THE DETAILS OF INVESTM ENT MADE BY HER TO PURCHASE A FLAT AT 703, BCM HEIGHTS, INDO RE. THE ASSESSEE ALONG WITH HER LETTER ALSO ANNEXED THE COP Y OF PURCHASE DEED DATED 24.03.2008, STATEMENT OF BANK A CCOUNT WITH BANK OF INDIA AND ALSO THE STATEMENT OF HOUSE LOAN BORROWED FROM BANK OF INDIA. IN ADDITION THE ASSES SEE HAS ALSO PROVIDED THE DETAILS OF THE FUNDS BORROWED FRO M M/S PAUL MERCHANTS ALONGWITH THE DETAILS OF CHEQUE RECE IVED AND THE LEDGER ACCOUNT STATEMENT. THE ASSESSEE HAS ALSO PROVIDED THE COPY OF DEMAT ACCOUNT AND PPF PASS BOO K. THEREFORE, THE ASSESSEE HAD PROVIDED ALL RELEVANT A ND SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 4 NECESSARY INFORMATION TO THE ASSESSING OFFICER TO C OMPLETE THE ASSESSMENT IN ACCORDANCE TO THE PROVISIONS OF I NCOME TAX ACT. COPY OF LETTER DATED 20.03.2014 ALONGWITH RETU RN OF INCOME TAX IS ANNEXED HEREWITH AND MARKED AS ANNEXU RE- A/3. 5. THAT, THE ASSESSING OFFICER ON THE BASIS OF INFORMA TIONS PROVIDED BY THE ASSESSEE ABOUT THE FUNDS BORROWED F ROM M/S. PAUL MERCHANT AND HER HUSBAND MR. VIVEK AGRAWA L, SOUGHT FURTHER INFORMATION AND EXPLAINATION IN THIS REGARD. THE ASSESSEE IN RESPONSE TO THE EXPLANATION SOUGHT BY THE ASSESSING OFFICER EXPLAINED THE CREDIT WORTHINESS O F M/S PAUL MERCHANTS LTD. VIDE LETTER DATED 24.03.2014 WHICH I S PLACED AS ANNEXURE-A/4. 6. THAT, ONCE AGAIN THE ASSESSING OFFICER SOUGHT FURT HER INFORMATION AND EXPLAINATION IN RESPECT OF SOURCE O F INVESTMENT MADE BY HER IN PURCHASE THE FLAT AT 703, BCM HEIGHTS, INDORE VIDE PROCEEDINGS DATED 25.03.2014. THE ASSESSEE IN RESPONSE TO THE SAME SUBMITTED THE DETA ILS OF ALL THE RELEVANT AND DESIRED INFORMATION ALONG WITH COP Y OF BANK STATEMENT OF M/S PAUL MERCHANTS LTD. WITH HDFC BANK ALONG SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 5 WITH A CERTIFICATE FROM THE HDFC BANK, THEREFORE, T HE ASSESSEE HAD PROVIDED ALL THE RELEVANT AND NECESSAR Y INFORMATIONS ALONG WITH DOCUMENTS AS SOUGHT BY THE ASSESSING OFFICER FROM TIME TO TIME IN RESPECT OF I NVESTMENT MADE BY THE ASSESSEE AND ALSO EXLPAINED THE SOURCE OF FUNDS UTILISED IN PURCHASE OF THE FLAT. THE ASSESSING OFFICER, HAD ALSO SOUGHT THE INFORMAT ION AND EXPLANATION OF THE SOURCE OF FUNDS AVAIABLE WITH HE R HUSBAND WHO HAD LENT A SUM OF RS. 11.00 LAKHS TO HER TO PUR CHASE THE FLAT. THOUGH, THE ASSESSEE HAD COMPLIED WITH HER ON US TO ESTABLISH SOURCE OF THE FUNDS RECEIVED FOR HER BY P ROVIDIONG THE PAN, COPY OF STATEMENT OF BANK ACCOUNT, DETAILS OF CHEQUES RECEIVED FROM MR. VIVEK AGRAWAL AND HAD ALS O PROVIDED THE SOURCE OF FUNDS RECEIVED BY MR. VIVEK AGRAWAL, WHEREAS THE ASSESSEE WAS NOT OBLIGED TO DO SO. THE ASSESSEE HAD PROVIDED FOLLOWING DETAILS VIDE HER LE TTER DATED 27.03.2014: 2. THE DETAILS OF DEPOSIT OF RS. 800000/- IN MR. VI VEK AGGARWALS ACCOUNT IS AS UNDER: SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 6 BANK NAME DATE OF DEPOSIT AMOU NT IN (RS.) SOURCE SUPPORTING ENCLOSED BANK OF INDIA KANCHAN BAUG , INDORE ( A/C NO. 88251010001 3534) 24/03/2 008 80000 0 DD SENT BY AADATIYA MADAN LAL ASHOK KUMAR OUT OF HUF AGRICULTURE INCOME ACCOUNT COPY OF THE AADTIYAS LEDGER ENCLOSED. THE ASSESSEE HAD EXPLAINED EACH AND EVERY SOURCE OF INCOME AND INVESTMENT TO THE ENTIRE SATISFACTION OF ASSESS ING OFFICER. COPY OF LETTER DATED 27.03.2014 IS ANNEXED HEREWITH AND MARKED AS ANNEXURE-A/5. 7. THAT, THE ASSESSING OFFICER BEING FULLY SATISFIED A ND CONVINCED WITH THE EXPLANATIONS, DOCUMENTS SUBMITTE D BY ASSESSEE FROM TIME TO TIME DURING THE COURSE OF PRO CEEDINGS, FINALLY PASSED ASSESSMENT ORDER FOR THE A.Y. 2008-0 9 ON 30.03.2014. COPY OF ASSESSMENT ORDER DATED 30.03.20 14 IS ANNEXED HEREWITH AND MARKED AS ANNEXURE-A/6. 8. THAT, THE ASSESSMENT ORDER REVEALS THAT THE ASSESSI NG OFFICER DESPITE SEEKING INFORMATION AND EXPLANATIONS WITH R ESPECT TO SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 7 THE SOURCE OF INVESTMENT MADE IN PURCHASE OF FLAT D ID NOT SPEAK IN THE ORDER ON THIS ISSUE AS HE WAS FULLY SA TISFIED AND CONVINCED WITH THE EXPLAINATIONS PROVIDED BY THE AS SESSEE AND THERE WAS NO CHAGE IN THE RETURN OF INCOME, THE REFORE, IT WAS NOT NECESSARY FOR HIM TO COMMENT ON THE TRANSAC TIONS ON WHICH HE IS FULLY SATISFIED AND HAS NO EFFECT ON TH E RETURN OF INCOME. 9. IN VIEW OF ABOVE FACTS AND BACK GROUND IT IS SUBMIT TED THAT THE ASSESSING OFFICER HAD APPLIED HIS MIND TO THE INFORMATION, EXPLANATIONS AND DOCUMENTS AVAILABLE O N RECORD AND ON BEING FULLY SATISFIED AFTER CONSIDERING THE SOURCES OF INVESTMENT MADE BY HER PASSED THE ASSESSMENT ORDER WHICH CANNOT BE SAID THE ORDER OF THE INCOME-TAX OFFICER IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTER ESTS OF THE REVENUE, THEREFORE, THE PRESENT NOTICE UNDER SECTIO N 263 OF INCOME TAX ACT, 1961 IS DEVOID ON MERIT, HENCE NOT MAINTAINABLE. 4. AFTER CONSIDERING THE ABOVE SUBMISSIONS AND HEARING THE ASSESSEE, THE CIT WAS OF THE VIEW THAT SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 8 CREDITWORTHINESS OF COAL MERCHANTS HAVE NOT BEEN VERIF IED BY THE ASSESSING OFFICER. EVEN THE ASSESSING OFFICE R HAS NOT VERIFIED THE SOURCE OF PAYMENT OF EMI OF RS.10, 590/-. THE ASSESSING OFFICER HAS NOT VERIFIED THE ASSESSEES CLAIM OF RS. 8 LACS. THEREFORE, THE ASSESSMENT WAS MADE WITH OUT CONDUCTING PROPER INQUIRY WHICH RESULTED IN ERRONEOU S AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THEREFO RE, THE ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS O F THE REVENUE. THE LEARNED CIT(A) RELIED UPON THE FOLLOWIN G DECISIONS :- 1. RAM PYARI DEVI SARAOGI VS. CIT(1968) 67 ITR 84(SC) 2.CIT VS. SESHASAYEE PAPER & BOARDS LTD.;242 ITR 49 0 3.CIT VS. BHAGWAN DAS; 272 ITR 367 (ALL.) 4.PRATAP FOOTWEAR VS. ACIT (2003) SOT 638 (TRIB.) 5. BEFORE US, THE ASSESSEE HAS FILED THE FOLLOWING WRITTEN SUBMISSIONS :- TODAY, AFTER THE HEARING IN THE CASE, THE DR HAS SUBMITTED COPY OF PROCEEDINGS BEFORE ASSESSING OFFICER (AO) F ROM 20.03.2014 TO 30.3.2014 TO DEMONSTRATE THAT THE AO HAS PASSED THE ORDER IN HASTE AS THE ASSESSMENT WAS GET TING TIME BARRED. IT IS SUBMITTED THAT IN THE ASSESSMENT ORDER THE SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 9 AO HAS NO WHERE STATED THAT THE ASSESEE HAD NOT PRO VIDE THE INFORMATION SOUGHT BY THE PREDECESSORS. THERE IS NO DISPUTE THAT ALL THE INFORMATION REQUIRED TO ENABLE THE COM PLETE THE ASSESSMENTWERE AVAILABLE ON RECORD WITH AO. BE THAT IT MAY, UNDER SECTION 263 OF INCOME TAX ACT , 1961 THE COMMISSIONER MAY CALLS FOR AND EXAMINE THE RECO RDS OF ANY PROCEEDING UNDER THE INCOME TAX ACT, 1961, IF H E CONSIDER THAT THE ORDER PASSED BY THE AO IS ERRONEO US IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE . HE IS ALSO REQUIRED TO MAKE SUCH ENQUIRY AS HE DEEMS NECESSARY . IT IS FURTHER SUBMITTED THAT EXPLANATION-1(B) DEFINES THE RECORDS AS ALL RECORDS RELATING TO ANY PROCEEDING UNDER THE INCOME TAX ACT AVAILABLE AT THE TIME OF EXAMINATION BY THE PRINCIPAL COMMISSIONER. THUS, IN VIEW OF ABOVE IT IS CLEAR THAT THE PROVISI ON OF SECTION 263 MANDATES THE PRINCIPAL COMMISSIONER TO EXAMINE THE RECORDS AND MAKE SUCH ENQUIRY AND THEREAFTER ON THE BASIS OF HIS EXAMINATION OF RECORDS AND ENQUIRY COME TO C ONCLUSION WHETHER THE ORDER WAS PASSED BY AO WITHOUT MAKING ENQUIRIES OR VERIFICATION WHICH WOULD HAVE BEEN MAD E RESULTANTLY THE ORDER PASSED BY THE AO IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE. THE USE OF WORDS EXAMINE THE RECORDS AND MAKE SUCH ENQUIRY AND DEFINITION OF RECORDS, HAVE SGNIFICANCE AND AN OBLIGATION HAS BEEN CASTED UPON THE PRINCIPAL COMMI SSIONER TO EXAMINE THE RECORDS BEFORE REACHING TO THE CONCL USION. IN THE PRESENT CASE THE APPELLANT HAS SUBMITTED ALL THE RECORDS, DOCUMENTS, BANK STATEMENTS AND ASSESSMENT ORDERS, WHICH WERE ALSO SUBMITTED TO AO TO PROVE TH E SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 10 BONAFIDE AND CREDIT WORTHINESS OF THE SOURCES OF TH E INVESTMENT OF RS. 26,00,000/- MADE FOR PURCHASE OF FLAT AS: (I) RS. 10,00,000/- HOUSE LOAN FROM BANK OF INDIA (PLEASE SEE PAGE 55 OF THE PB) SANCTIONED ON 30.04.2008 IN NE XT FINANCIAL YEAR. (II) RS. 16,00,000/- PAID BY HER HUSBAND SHRI VIVE K AGRAWAL, (PLEASE SEE PAGE 37 OF THE PB HIS BANK STATEMENT) WHERE MARGIN MONEY OF RS. 16,00,000/- HAVE BEEN PAI D BY MR. VIVE AGRAWAL ON 24/03/2008 TO BANK OF INDIA. (III) THE SOURCE OF RS. 16,00,000/- IN THE BANK ACC OUNT OF SHRI VIVEK AGRAWAL IS AS UNDER: (A) RS. 8,00,000/- RECEIVED FROM HIS HUF ACCOUNT FR OM THE AGRICULTURAL INCOME RECEIVED FROM THE BUYER OF THE CROP M/S. MADANLAL ASHOK KUMAR THROUGH DD. (PLEASE SEE PAGE 4 0 AND 41 OF PB WHICH ARE BANK STATEMENT OF THE BUYER AND ALSO SEE PAGE 37 OF PB WHICH IS HIS BANK WHERE DD OF RS. 800 ,000/- HAS BEEN DEPOSITED ON 24.03.2008) THE DCIT, BHOPAL HAD ENQUIRED ABOUT INCOME OF RS. 800,000/- BY SHRI VIVEK AGRAWAL FROM HIS AO. IN RES PONSE TO THE ENQUIRY, THE AO OF SHRI VIVEK AGRAWAL REOPNED T HE ASSESSMENT UNDER SECTION 148/147 OF IT ACT AND MADE THE RE-ASSESSMENT PARTICULARLY IN RESEPCT OF INCOME OF RS. 800,000/- AND BEING SATISFIED PASSED THE ASSESSMENT ORDER AND CONFIRMED THE INCOME OF RS. 800,000/- BY SHRI V IVEK AGRAWAL. (COPY OF RE-ASSESSMENT ORDER FOR AY 2008-0 9 OF VIVEK AGRAWAL WAS SUBMITTED DURING THE COURSE OF HE ARING BY LETTER DATED 09.06.2016 AND THE SAME IS ON RECOR D). THUS, AFTER ENQUIRY BY THE AO FROM THE AO OF MR. VIVEK AG RAWAL, WHO AFTER REOPENING THE CASE PASSED AN ORDER UNDER SECTION SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 11 147/143(3) OF THE ACT ON 20.09.2009, THERE REMAIN N O DOBUT ABOUT GENUINESS OF THE SOURCE OF THE SOURCE. (B) RS.500,000/-APPEARING IN THE BANK ACCOUNT (PAGE 37 OF PB) ON 24.03.2008 OF VIVEK AGRAWAL WAS RECEIVED FRO M THE APPELLANT TRANSFERRED FROM HER BANK ACCOUNT (PLEASE SEE PAGE 32, 57 AND 58 OF PB COPY OF BANK STATEMENT OF SMT. SAPANA AGRAWAL) SMT. SAPANA AGRAWAL HAD TRANSFERRED RS. 500,000/- T O HER HUSBAND ACCOUNT FROM THE LOAN OF RS. 5,86,404/- REC EIVED FROM M/S. PAUL MERCHANTS LTD. (PLEASE ALSO SEE BANK STATEMENT AT PAGE 32 AND CERTIFICATE OF HDFC BANK A T 33 OF PB) SMT. SAPANA AGRAWAL HAD OBTAINED A LOAN OF RS. 6,00 ,000/- FROM M/S. PAUL MERCHANTS LIMITED. (PLEASE SEE PAGE 57 AND 58 OF PB WHERE LENDER REMITTED RS. 5,86,404/- TO HE R AFTER DEDUCTION OF PROCESSING FEES OF RS. 13,596/-). THEN SHE RECEIVED AND DEPOSITED RS. 5,86,404/- ON 20.03.2008 IN HER BANK ACCOUNT (SEE PAGE 32 OF PB) AND FROM THIS DEPO STE TRANSFERRED RS. 5,00,000/- TO THE ACCOUNT OF MR. VI VEK AGRAWAL ON 24.03.2008. (D) BALANCE RS. 300,000/- HAVE BEEN TRANSFERRED FRO M THE FDRS OF RS. 2,75,000/- AND RS. 25,000/- FROM THE BA LANCE IN SAVING BANK ACCOUNT. ALL THESE ENTRIES ARE APPEARIN G IN THE BANK STATEMENT ON 24.03.2008 (PLEASE SEE PAGE 37 OF PB WHICH IS BANK STATEMENT OF SHRI VIVEK AGRAWAL) (VI) THE ENQUIRY ABOUT SOURCE OF EMI OF RS. 10,59 0/- FOR AY 2008-09 IS BASELESS AND WITHOUT APPLICATION OF M IND AND THE LOAN WAS AVAILED ON 24.03.2008 (AY 2008-09) AND THE FIRST INSTALLMENT WAS DUE AND PAYABLE ON 30.04.2008 WHICH SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 12 WILL FALL IN AY 2009-10. THEREFORE, NO PAYMENT WAS MADE BY THE APPELLANT DURING THE CURRENT A.Y. 2008-09. IN VIEW OF ABOVE IT IS CLEAR THAT THE ABOVE FACTS A ND DOCUMENTS PROVE THAT THE PRINCIPAL COMMISSIONER DID NOT EXAMINE THE AFORESAID RECORDS/DOCUMENTS AVAILABLE W ITH HIM IN TRUE LETTERS AND SPIRIT BEFORE ARRIVING AT THE C ONCLUSION THAT THE AO HAS NOT MADE PROPER ENQUIRES AND PASSED THE ORDER MECHANICAL MANNER WITHOUT APPREACIATING THE FACTS O F THIS CASE. IT IS SUBMITTED THAT THE PRINCIPAL COMMISSIONER IS MANDATORILY REQUIRED TO EXAMINE THE RECORDS AS HE H AS BEEN VESTED ALL THE POWERS OF THE AO AND THEREAFTER HE S HOULD REACH TO A CONCLUSION BY REASONED ORDER AS TO HOW A FTER EXAMINATION OF RECORD HE FOUND THAT DESPITE RECORDS AND DOCUMENTS EXAMINED BY HIM, THE ORDER PASSED BY AO U S ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE REV ENUE. IT IS FURTHER SUBMITTED THAT IF PRINCIPAL COMMISSIO NER WOULD HAVE EXAMINED THE RECORDS AS ABOVE AVAILABLE WITH H IM, HE WOULD NOT HAVE PASSED THE IMPUGNED ORDER MECHANICAL LY BUT WOULD HAVE APPLIED HIS MAIND AS EVEN IN THE REMAND THE AFORESAID FACTS WILL NOT CHANGE AND THERE SHALL BE NO REASON FOR AO TO DISBELIEF THE EVIDENCE, BUT IT SHALL WAST E THE PRECIOUS TIME OF THE AO WITHOUT ANY RESULT AND SHAL L ALSO BURDEN THE APPELLANT. SO FAR THE JUDGMENT OF SUPREME COURT IN CASE OF AMI TABH BACHHAN IS CONCERNED THE FACT OF THAT CASE ARE DISTINGUISHABLE BECAUSE IN THE PRESENT CASE ALL THE DOCUMENTS AND RECORDS WERE MADE AVAILABLE TO THE ASSESSING OFFICER BEFORE COMPLETION OF THE ASSESSME NT AND FOR ANY INCOMPETNECY OF DELAY ON THE PART OF AO DOE S NOT SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 13 ENTITLE THE PRINCIPAL COMMISSIONER TO INVOKE SECTIO N 263 OF THE IT ACT, UNLESS THE ORDER PASSED IS ERRONEOUS AN D ALSO PREJUDICIAL TO THE INTEREST OF REVENUE. THE APPELLANT HAD CITED MAY CASE LAWS BEFORE THE PR INCIPAL COMMISSIONER, HOWEVER, HE HAS NOT DEALT WITH ANY OF THE CASE LAW AND PASSED THE ORDER IN HASTE. IT MAY BE S EEN THAT THE CASE WAS FIRST TIME FIXED FOR HEARING ON 24.02. 2016 AT 3:40 PM AND THE APPELLANT FILED HER DETAILED SUBMIS SIONS RUNNING IN 23 PAGE AT 5:00 PM ON THAT DATE AND THE PRINCIPAL COMMISSIONER PASSED THE ORDER ON VERY NEXT DATE. TH IS CLEARLY PROVES THAT THE PRINCIPAL COMMISSIONER DID NOT EXAMINE THE RECORDS AS MANDATED UNDER SECTION 263 O F IT ACT. THE SUBMISSION AND THE CASE LAWS ARE AVAILABLE BEFORE THIS HONBLE TRIBUNAL AND THE RELEVANT PARAGRAPHS O F ALL SUCH JUDGMENT RELIED UPON ARE GIVEN IN PARA 14 TO PARA 2 2. (PLEASE SEE PAGE 2 TO 23 OF PB). ALL THE DOCUMENTS, BANK STATEMENTS, LOAN SANCTION L ETTER, CONFIRMATION OF MADANLAL ASHOK KUMAR, ASSESSMENT OR DER OF MR. VIVEK AGRAWAL PASSED BY AO, SIRSA, CHANDIGARH O N THE ENQUIRY BY THE AO BHOPAL ABOUT RS. 8,00,000/- AND A LL THE DOCUMENTS AND STATEMENTS INCLUDING BANK CERTIFICATE OF PAUL MERCHANT WERE AVAIABLE ON RECORD OF THE AO AND WERE ALSO AVAILABLE TO PRINCIPAL COMMISSIONER, WHO SHOULD HAV E APPRECIATED AND AFTER TAKING IN TO CONSIDERATION TH E ORDER WOULD HAVE BEEN PASSED. (PLEASE SEE PAGE NO. 25 TO 30 OF PB, VARIOUS SUBMISSION MADE BY THE ASSESSEE BEFORE AO ON DIFFERENT DATES. IT SHALL NOT BE OUT OF PLACE TO MENTION THAT AT THE TIME WHEN THE CBDT HAS COME WITH THE CIRCULAR THAT REVENUE SH OULD NOT CONTEST THE CASES BEFORE SUPREME COURT, HIGH COURT AND SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 14 INCOME TAX APPELLATE TRIBUNAL BEYOND SPECIFIED LIMI T OF TAX EFFECT. WHEREAS IN THE PRESENT CASE THERE WOULD BE NO TAX EFFECT LOOKING TO THE DOCUMENTS OR IF ADVERSE ORDER IS PASSED BY AO THERE SHALL BE SERIESE OF LITIGATION, THEREFO RE THE ORDER PASSED BY THE PRINCIPAL COMMISSIONER MECHANICALLY W ITHOUT EXAMINING THE RECORDS AND TO REMAND TO THE AO INSTE AD OF DECIDING HIMSELF ON THE BASIS OF MATERIAL AVAILABLE IS CONTRARY TO THE CBDT CIRCULAR AND IN FACT PREJUDICIAL TO THE SPIRIT OF CIRCULAR ISSUED BY CBDT. THEREFORE, THE DOCUMENT PRODUCED AND THE DETAIL SUBMISSIONS MADE BY THE APPELLANT BEFORE THIS TRIBU NAL THE ORDER PASSED BY THE PRINCIPAL COMMISSIONER MAY BE S ET ASIDE. 6. ON THE OTHER HAND, THE LEARNED DR SUPPORTED THE ORDER OF THE CIT AND SUBMITTED THAT IN THIS CASE THE ASSESSING OFFICER WHO WAS MAKING INQUIRY WAS SUSPENDED ON THE LAST DATE OF THE ASSESSMENT ORDER AND THE NEW ASSESSING OFFICER WAS GIVEN CHARGE ON 29.3.2013 VIDE ORDER U/S 127 OF THE ACT DATED 29.3.2014 AND THE ASSESSMENT ORDER WAS PASSED ON 30.3.2014. SINCE THE CASE WAS GETTI NG TIME BARRED ON 31.3.204, THEREFORE, IT WAS EVIDENT FR OM RECORD THAT THE ASSESSING OFFICER DID NO T MAKE ANY SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 15 INVESTIGATION AND PASSED THE ORDER ON THE BASIS OF DETAI LS AVAILABLE ON RECORD. 7. WE HAVE CAREFULLY HEARD THE RIVAL CONTENTIONS OF THE PARTIES. WE FIND THAT IN SIMILAR TYPE OF CASES IN ITA N OS. 467/IND/2016, 275/IND/2016, 341/IND/2016 ETC. ETC. THIS BENCH OF THE TRIBUNAL VIDE ITS ORDER DATED 14 TH JULY, 2016 HAS HELD AS UNDER :- 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD AND KEEPING IN VIE W THE PECULIAR FACTS AND CIRCUMSTANCES OF THESE CASES , WE ARE OF THE CONSIDERED VIEW THAT IN SHORT TIME FR OM 29.03.2014 TO 30.03.2014, IT WAS PRACTICALLY IMPOSSIBLE FOR THE ASSESSING OFFICER TO HAVE EXAMINED THE RETURNS OF THE ASSESSEE VIS--VIS THE DETAILS AND PARTICULARS FILED IN SUPPORT OF THE RET URNS AND FORM AN OPINION AND FRAME A DETAILED ASSESSMENT ORDER ON THE ISSUES IN THE RETURNS OF INCOME. THEREFORE, WE HAVE NO HESITATION IN ACCEPTING THE ARGUMENTS OF THE LD. DEPARTMENTAL REPRESENTATIVE AND UPHOLDING THE PRESENT ORDERS PASSED U/S 263 OF THE INCOME-TAX ACT, 1961, BY THE COMMISSIONER OF INCOME-TAX. THUS, THE GROUNDS OF APPEAL IN ALL THE APPEALS UNDER CONSIDERATION ARE DISMISSED. SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 16 8. RESPECTFULLY FOLLOWING THE ABOVE DECISIONS, WE ARE OF THE VIEW THAT THERE WAS NO OCCASION FOR THE ASSESSING OFFICER TO MAKE ANY INQUIRY AND THE ASSESSING OFFICER ACCEPTED THE RETURN WITHOUT PROPER INQUIRY AS A RESULT OF WHICH SUBSTANTIAL AMOUNT OF TAXABLE INCOME WAS NOT BROUGHT TO TAX. WE ALSO HOLD THAT NO RULE OF UNIVERSAL APPLICATION CAN BE LAID DOWN FOR EXERCISE OF REVISIONAL POWERS U/S 263 OF THE ACT. IT WILL DEPEND ON THE FAC TS OF EACH AND EVERY CASE BUT THE COMMISSIONER OF INCOME TAX MUST BE SATISFIED OF EXISTENCE OF TWIN CONDITIONS TH AT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND PRE JUDICIAL TO THE INTEREST OF THE REVENUE. WE ALSO GET SUPPORT FROM THE FOLLOWING JUDGMENTS :- (I) RAM PYARI DEVI SARAOGI VS. CIT; 67 ITR 84(SC) (II)CIT VS. SESHASAYEE PAPER & BOARDS LTD.; 242 ITR 490 (MAD.) (III)CIT VS. BHAGWANDAS; 272 ITR 367 (ALL) (IV)PRATAP FOOTWEAR VS. ACIT; (2003) SOT 638 (JABALPUR)(TRI) SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 17 (V) CIT VS. AMITABH BACHAN (SUPRA); CIVIL APPEAL NO.5009 OF 2016 (SC) WE FURTHER FIND THAT THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. CIT VS. DEEPAK KUMAR GARG; 299 I TR 435 HAS CATEGORICALLY HELD AS UNDER :- HELD, THAT FROM THE ORDER OF THE ASSESSING OFFICER , IT WAS CLEAR THAT FOR WANT OF TIME, THE ASSESSING OFFI CER HAD DONE ONLY A SEMBLANCE OF ENQUIRY AND THAT TOO, IN A VERY SLIP-SHOD MANNER. THE ASSESSING OFFICER ACCEPTED THE VERSION OF THE ASSESSEE WITHOUT PROPER ENQUIRY AND AS A RESULT A SUBSTANTIAL AMOUNT OF TAXABLE INCOME WAS NOT BROUGHT TO TAX. THE COMMISSIONER OF INCOME TAX HAD RECORDED A CATEGORICAL FINDING THAT THE ORDER OF THE ASSESSING OFFICER FOR WANT OF ADEQUATE ENQUIRY WAS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE AND AFTER SETTING ASIDE THE ASSESSMENT ORDER, REMANDED THE MATTER TO THE ASSESSING OFFICER FOR FRESH ASSESSMENT ON THE MERITS. THE LEARNED CIT ALSO DIRECTED THE ASSESSING OFFICER TO OBSERVE THE RULES OF NATURAL JUSTICE AND TO PROVIDE OPPORTUNITY OF HEARI NG TO THE ASSESSEE BEFORE MAKING A FRESH ASSESSMENT ORDER ON THE MERITS. THIS WOULD ADEQUATELY SAFEGUAR D THE INTEREST OF THE ASSESSEE AND WOULD CAUSE NO PREJUDICE. THE ORDER OF REVISION WAS VALID. SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 18 THUS, RESPECTFULLY FOLLOWING THE ABOVE JUDGMENT OF T HE HONBLE JURISDICTIONAL HIGH COURT, THESE APPEALS OF TH E ASSESSEE ARE DISMISSED. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 29 DECEMBER, 2016. SD/- S/- ( ..!') (..) #$ (O.P.MEENA) (D.T.GARASIA) ACCOUNTANT MEMBER J UDICIAL MEMBER (') / DATED : 29 DECEM BER, 2016. DN/ SMT. SAPNA AGRAWAL ITA NO. 193/IND/2016 19