Gitesh Tikmani, Kolkata V. ITO, Ward - 28(4) , Kolkata

ITA 2/KOL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9828 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 01-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARAI
• Assessee Lawyers: S M SURANA
• Keywords: Bogus purchase; Unexplained cash credit; Unexplained expenditure; Gift; Revision of order; Income from undisclosed sources; Opportunity of being heard; Audit objection; Principle of natural justice; Earning of tax free income; Cost of acquisition; Accommodation entries; Assessment record; Right to appeal; Penny stocks; Revenue expenditure; Rule 8D; Set aside; Capital Gains
• Section: 69C; 142(1); 80HHC; 14A; 133(6); 195; 250; 201; 131; 263; 63

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 01 - 04 / KOL / 2019 ASSESSMENT YEAR :2014-15 M/S GITSH TIKMANI, HUF 397, BLOCK-G, 3 RD FLOOR, NEW ALIPORE, KOLKATA-53 [ PAN NO. AAFHG 0088 M ] GITESH TIKMANI 397, BLOCK-G, 3 RD FLOOR, NEW ALIPORE, KOLKATA-53 [ PAN NO. AAIPT 4423 G ] GIRISH TIKMANI 397, BLOCK-G, 3 RD FLOOR, NEW ALIPORE, KOLKATA-53 [ PAN NO. AAIPT 4426 F ] M/S GIRISH TIKMANI, HUF 397, BLOCK-G, 3 RD FLOOR, NEW ALIPORE, KOLKATA-53 [ PAN NO. AAFHG 0086 F ] V/S . INCOME TAX OFFICER, WARD-28(4), AAYKAR BHAWAN, DAKSHIN,2, GARIAHAT ROAD,(SOUTH), KOLKATA-68 /APPELLANT .. / RESPONDENT ITA NO. 05 / KOL / 2019 ASSESSMENT YEAR :2014-15 MANISHA TIKMANI, 397, BLOCK-G, 3 RD FLOOR, NEW ALIPORE, KOLKATA-53 [ PAN NO. ADPT 8987 F ] V/S . INCOME TAX OFFICER, WARD-28(4), AAYKAR BHAWAN, DAKSHIN,2, GARIAHAT ROAD,(SOUTH), KOLKATA-68 /APPELLANT .. / RESPONDENT ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 2 ITA NO. 13 - 15 / KOL / 2019 ASSESSMENT YEAR :2014-15 PUSPA DEVI TIKMANI, 397, BLOCK-G, 3 RD FLOOR, NEW ALIPORE, KOLKATA-53 [ PAN NO. ABHPT 3856 F ] M/S GOPAL PRASAD TIKMANI, HUF 397, BLOCK-G, 3 RD FLOOR, NEW ALIPORE, KOLKATA-53 [ PAN NO. AAFHG 0087 E ] GOPAL PRASAD TIKMANI 397, BLOCK-G, 3 RD FLOOR, NEW ALIPORE, KOLKATA-53 [ PAN NO. AAIPT 4417 E ] V/S . INCOME TAX OFFICER, WARD-28(4), AAYKAR BHAWAN, DAKSHIN,2, GARIAHAT ROAD,(SOUTH), KOLKATA- 68 /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI S.M.SURANA, ADVOCATE /BY REVENUE DR. P.K. SRIHARAI, CIT-DR /DATE OF HEARING 21-08-2019 /DATE OF PRONOUNCEMENT 20-09-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THESE EIGHT ASSESSEE(S) HAVE FILED THEIR INSTANT A S MANY APPEAL(S) AGAINST THE PRINCIPAL COMMISSIONER OF INCOME TAX-10 KOLKATAS IDENTICAL SEPARATE ORDERS; ALL DATED 10.12.2018, REVISING THE IR RESPECTIVE REGULAR ASSESSMENTS ACCEPTING LONG TERMS CAPITAL GAINS, INV OLVING PROCEEDINGS U/S 263 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . BOTH PARTIES STATE AT THE OUTSET THAT THE RELEVANT FACTUAL BACKDROP AS WELL AS THE ISSUES INVOLVE IN ALL THESE CASE(S) ARE IDENTICAL. WE THEREFORE TREAT THE FIRST ASSESSEES APPEAL ITA NO.01/KOL/201 9 AS THE LEAD CASE. ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 3 2. WE ADVERT TO THE BASIC RELEVANT FACTS. THIS ASSE SSEE / HUF M/S GITESH TIKMANI FILED ITS RETURN ON 28.07.2014 DECLARING TO TAL INCOME OF 5,57,140/-. THE SAME STOOD SUMMARILY PROCESSED. THE ASSESSING O FFICER THEREAFTER COMPLETED THE REGULAR ASSESSMENT IN QUESTION ON 29. 09.2016 ACCEPTING THE ABOVE DECLARED INCOME AS WELL AS ITS LONG TERM CAPI TAL GAINS (LTCG IN SHORT) OF 53,635.18 AS CORRECT. 3. IT EMERGES FROM A PERUSAL OF THE CASE FILE THAT THE PCIT ISSUED SEC. 263 SHOW-CAUSE NOTICE DATED 12.11.2018 SEEKING TO REVIS E THE ABOVE REGULAR ASSESSMENT BEING ERRONEOUS CAUSING PREJUDICE TO INT EREST OF THE REVENUE. THE ASSESSEE FILED ITS WRITTEN SUBMISSION ON 27.11. 2018 AND 03.12.2018 CONTESTING THE ABOVE REVISION PROPOSAL. THE SAME ST AND REJECTED IN THE PCITS ORDER UNDER CHALLENGE AS FOLLOWS:- 5. THE ISSUE UNDER CONSIDERATION IN THIS CASE IS T HAT AS TO WHETHER THE IMPUGNED TRANSACTIONS OF PURCHASE AND SALE OF SHARES WERE IN DEED BOGUS IN NATURE AND ACCORDINGLY WHETHER THE ENTIRE AMOUNT OF SALE CONSI DERATION SHOULD HAVE BEEN ADDED BACK OR NOT. 5.1 FROM THE RECORDS, IT IS SEEN THAT CREDIBLE INFO RMATION WAS AVAILABLE IN THE CUSTODY OF THE AO FROM WHICH IT WAS CLEAR THAT THE ASSESSEE HAD ADOPTED THE PRACTICE OF ACCEPTING ACCOMMODATION ENTRIES AND IN TURN ENTERED INTO BOGUS TRANSACTIONS TO THE TUNE OF RSS3,63,S18/-. AS PER ABOVE, DURING THE PRE VIOUS YEAR 2013- I 4, CORRESPONDING TO AY 2014-15, THE ASSESSEE HAD BENEF ITTED BY TRADING AND MAKING MANIPULATION. IN THE SCRIPS OF 'UNNO INDUSTRIES LTD .' AND CLAIMED EXEMPTION U/S 10(38) OF THE ACT. 5.2 ON PERUSAL OF THE ASSESSMENT RECORDS, THE FOLLO WING FACTS LEAD ME TO AN INSEPARABLE CONCLUSION THAT THE TRANSACTIONS ARE NO T GENUINE AND THESE CONNECTED PARTIES HAVE GROSSLY MISUSED THE STOCK EXCHANGE SYS TEM TO GENERATE BOGUS L TCG TO AID AND HELP BENEFICIARIES TO CONVERT THEIR UNAC COUNTED INCOME INTO ACCOUNTED ONE WITH NO PAYMENT OF TAXES. THE MODUS OPERANDI, AS EM ANATING FROM THE REP.ORT OF THE DIRECTOR GENERAL OF INCOME TAX (INVESTIGATION),WB, SIKKIM AND NER, IS REPRODUCED AHEAD: THE SCHEME ENTITIES INVOLVED IN THE TRANSACTIONS THERE ARE THREE CATEGORIES OF INDIVIDUALS WHO ARE I NVOLVED IN THE TRANSACTIONS I) SYNDICATE MEMBERS. THEY ARE THE PROMOTERS OF THE PENNY STOCK COMPANIES WHO OWN THE INITIAL SHARE HOLDING MOSTLY IN THE NAME OF PAPER COMPANIES EITHE R IN AFRESH IPO OR PURCHASED FROM THE SHAREHOLDERS OF A DORMANT COMPANY. THEY AR E USUALLY A GROUP OF 4-5 INDIVIDUALS WHO A/SO REFERRED TO AS SYNDICATE MEMBE RS AND ARE SOMETIMES ALSO REFERRED TO AS OPERATORS. THEIR NOMINEES ARE DIRECT ORS OF THE PENNY STOCK COMPANIES WHICH ARE INDIRECTLY CONTROLLED BY THEM THROUGH SUC H DUMMY DIRECTORS. THE WHOLE OPERATION IS MANAGED BY THEM. THEY GET THE NET COMM ISSION INCOME FROM THE TRANSACTIONS. THEIR NAME, HOWEVER. SELDOM APPEARS I N THE ACTUAL TRANSACTIONS. ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 4 II) THE BROKERS THEY ARE REGISTERED BROKERS THROUGH WHOM SHARES ARE TRADED BOTH ONLINE AND OFF-LINE. THEY ARE FULLY AWARE OF THE NATURE OF TRANSACTIONS AND GET PAID A COMMISSION OVER AND ABOVE THEIR NORMAL BROKERAGE. SOME OF THE BIG B ROKING HOUSES ARE ALSO INDULGING IN SUCH TRANSACTIONS MOSTLY THROUGH SUB-BROKERS. TH E BROKERS OFTEN COMPROMISE ON KYC NORMS OF THE CLIENTS TO HELP THE SYNDICATE MEMB ERS. EVEN SOME VERY RENOWNED BROKERS WERE INVOLVED IN THE PROCESS THROUGH THEIR SUB-BROKERS PROVIDED THEM LARGE NUMBERS OF TERMINALS THROUGH WHICH THESE SHAM TRANS ACTIONS TOOK PLACE. III) THE ENTRY OPERATORS. THEY ARE INDIVIDUALS WHO CONTROL A LARGE NUMBER OF PAPER/SHELL COMPANIES WHICH ARE USED FOR ROUTING CASH FOR THE TRANSACTIONS AS WELL AS BUYING AND SELLING SHARES DURING THE PROCESS OF PRICE RIGGING. THEY WORK FOR COMMISS ION TO BE PAID BY THE SYNDICATE MEMBERS. TO CUT COSTS SOMETIMES IN SMALLER OPERATIO NS, THE SAME GROUP PERFORMS MORE THAN ONE FUNCTION. THE TRANSACTION THE TRANSACTION INVOLVES THREE LEGS. I) PURCHASE OF SHARES BY THE BENEFICIARY: IN THIS T HE BENEFICIARY SOLD A FIXED NUMBER OF SHARES AT A NOMINAL RATE. THE PRICE AND T HE NUMBER OF SHARES TO BE PURCHASED ARE DECIDED ON THE BASIS OF THE BOOKING T AKEN AND THE VALUE UP TO WHICH PRICE WOULD BE RIGGED THIS LEG OF THE TRANSAC TION MOSTLY IS OFF-LINE. THIS IS DONE TO SAVE ON SIT USING THE LOOPHOLE IN SECTIO N 10(38) OF THE IT ACT WHICH PLACES RESTRICTION OF TRADING BY PAYMENT OF S IT ON SALE OF SHARES AND NOT PURCHASE. II) PRICE RIGGING: AFTER THE SHARES HAVE BEEF) PURC HASED BY THE BENEFICIARIES, THE SYNDICATE MEMBERS START RIGGING THE PRICE GRADU ALLY THROUGH THE BROKERS. IN THESE TRANSACTIONS THE VOLUME IS ALMOST NEGLIGI BLE. TWO FIXED BROKERS WHO ARE IN LEAGUE WITH THE SYNDICATE BUY SHARES AT A FI XED TIME AND AT A FIXED PRICE. THESE LOW VOLUME TRANSACTIONS ARE MANAGED TH ROUGH PAPER COMPANIES/HUF OR DUMMY PERSONS MAINTAINED AND CONTR OLLED BY THE ENTRY OPERATORS. III) FINAL SALE BY THE BENEFICIARY: THIS IS DONE AF TER THE BENEFICIARY HAS ALREADY HELD THE SHARES FOR ONE YEAR. THE PERIOD OF HOLDING MAY BE A LITTLE MORE TO MATCH THE AMOUNT OF BOOKING WITH THE FINAL RATE. TH E BENEFICIARY IS CONTACTED EITHER BY THE SYNDICATE MEMBER OR THE BROKER ( MIDDLE MAN ) THROUGH WHOM THE INITIAL BOOKING WAS DONE. THE BENEFICIARY PROVI DES THE REQUIRED AMOUNT OF CASH WHICH IS ROUTED THROUGH SOME OF THE PAPER COMP ANIES OF THE ENTRY OPERATOR AND IS FINALLY PARKED IN ONE COMPANY WHICH WILL BUY THE SHARE FROM THE BENEFICIARY. WHEN EVERYTHING IS READY A SPECIFI C DATE AND TIME AS WELL AS PRICE IS FIXED BY THE OPERATOR ON WHICH THE TRANSAC TION IS MADE. THE PAPER COMPANY ISSUES CHEQUE TO THE BENEFICIARY. THE BENEF ICIARY CLAIMS THE RECEIPT AS EXEMPT INCOME U/S 10(38) OF THE I. T.ACT, 1961. THE ABOVE MODUS OPERANDI HAS BEEN CONFIRMED BY ALL ENTRY OPERATORS IN THEIR STATEMENTS AT THE TIME OF PROCEEDINGS U/S 132/133A/ 131 ON VARIOUS DATES. 5.3 AII SUCH PENNY STOCK COMPANIES WERE IDENTIFIED FROM THE FINANCIAL ACCOUNTS OF THE COMPANIES, TRADING PATTERNS OF THE SCRIPS, STATEMEN T OF SHARE BROKERS, STATEMENT OF ENTRY OPERATORS, STATEMENT OF PROMOTERS OF THE COMP ANIES AND THE POST SEARCH/SURVEY INQUIRIES. THE LIST CONTAINS THE NAME OF THE SCRIP UNNO INDUSTRIES LTD. HAVING SCRIP CODE 519273WHICH IS THE TRADED SCRIP IN THE INSTANT CASE. SOME COMMON FEATURES OF THESE COMPANIES, AS SPECIFIED IN THE SAID REPORT, A RE: ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 5 (1) INITIAL ALLOTMENT OF SHARES TO BENEFICIARIES IS GENERALLY DONE THROUGH PREFERENTIAL ALLOTMENT. (2) THE MARKET PRICE OF SHARES OF THESE COMPANIES R ISE TO VERY HIGH LEVEL WITHIN A SPAN OF ONE YEAR. (3)THE TRADING VOLUME OF SHARES DURING THE PERIOD, IN WHICH MANIPULATIONS ARE DONE TO RAISE THE MARKET PRICE, IS EXTREMELY THIN. (4) MOST OF THE PURPORTED INVESTORS ARE RETURNED TH EIR INITIAL INVESTMENT AMOUNT IN CASH. ONLY SMALL AMOUNT IS RETAINED BY THE OPERATO R AS SECURITY . (5) MOST OF THESE COMPANIES HAVE NO BUSINESS AT ALL . FEW OF THE COMPANIES WHICH HAVE SOME BUSINESS DO NOT HAVE THE CREDENTIALS TO J USTIFY THE SHARP RISE IN MARKET PRICE OF THEIR SHARES. (6)THE SHARP RISE IN MARKET PRICE OF THE SHARES OF THESE ENTITIES IS NOT SUPPORTED BY FUNDAMENTALS OF THE COMPANY OR ANY OTHER GENUINE FA CTORS . (7)AN ANALYSIS IN RESPECT OF PERSONS INVOLVED IN TR ANSACTIONS APPARENTLY CARRIED OUT IN ORDER TO JACK UP THE SHARE PRICES HAS BEEN DONE IN RESPECT OF 84 COMPANIES. IT HAS BEEN NOTED THAT MANY COMMON PERSONS/ENTITIES WERE I NVOLVED IN TRADING IN MORE THAN 1 LTCG COMPANIES DURING THE PERIOD WHEN THE SHARES WERE MADE TO RISE WHICH IMPLIES THAT THEY HAD CONTRIBUTED TO SUCH PRICE RI SE. (8) NAMES OF MOST OF THE LTCG COMPANIES ARE CHANGED DURING THE PERIOD OF THE SEAM. (9) MOST OF THE COMPANIES SPLIT THE FACE VALUE OF S HARES [THIS IS PROBABLY DONE TO AVOID THE EYES OF MARKET ANALYSTS. (10) THE VOLUME OF TRADE JUMPS MANIFOLD IMMEDIATELY WHEN THE MARKET PRICES OF SHARES REACH AT OPTIMUM LEVEL SO AS TO RESULT IN LT CG ASSURED TO THE BENEFICIARIES. THIS MAXIMUM IS REACHED AROUND THE TIME WHEN THE IN ITIAL ALLOTTEES HAVE HELD THE SHARES FOR ONE YEAR OR LITTLE MORE AND, THUS, THEIR GAIN ON SALE OF SUCH SHARES WOULD BE ELIGIBLE FOR EXEMPTION FROM INCOME TAX. (11) AN ANALYSIS OF SHARE BUYERS OF SOME OF LTCG CO MPANIES WAS DONE TO SEE IF THERE WERE COMMON PERSONS/ENTITIES INVOLVED IN BUYI NG THE BOGUS INFLATED SHARES. IT WAS NOTED THAT THERE WERE MANY COMMON BUYERS [WHICH WERE PAPER COMPANIES . (12)THE PRICES OF THE SHARES FALL VERY SHARPLY AFTE R THE SHARES OF LTCG BENEFICIARIES HAVE BEEN OFF LOADED THROUGH THE PRE-ARRANGED TRANS ACTIONS ON THE STOCK EXCHANGE FLOOR/PORTAL TO THE SHORT TERM LOSS SEEKERS OR DUMM Y PAPER ENTITIES. (13) THE SHARES OF THESE COMPANIES ARE NOT AVAILABL E FOR BUY/SELL TO ANY PERSON OUTSIDE THE SYNDICATE. THIS IS GENERALLY ENSURED BY WAY OF SYNCHRONIZED TRADING BY THE OPERATORS AMONGST THEMSELVES AND/OR BY UTILIZIN G THE MECHANISM OF UPPER/LOWER CIRCUIT OF THE EXCHANGE . 5.4 FROM THE MATERIAL AVAILABLE ON RECORD, IT IS PR OVED BEYOND DOUBT THAT THE ALLEGED TRANSACTIONS AND THE SCHEME OF COLOURABLE DEVICE ME NTIONED IN PARA 5.LTO 5.3 SUPRA, IS BOGUS AND THE ENTIRE SALE CONSIDERATION BEING BO GUS CASH CREDIT SHOULD HAVE BEEN ADDED BACK U/S 68 OF THE ACT AND TAXED AT MAXIMUM M ARGINAL RATE. THE BENEFIT OF (INDEXED) COST OF ACQUISITION SHOULD ALSO NOT HAVE BEEN ALLOWED TO THE ASSESSEE. IN ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 6 THIS REGARD, REFERENCE IS MADE TO THE PROVISIONS OF SEC 68 OF THE ACT AS REPRODUCED BELOW : ' CASH CREDITS . 41. 68.42WHERE ANY SUM IS FOUND CREDITED IN THE BOO KS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION' ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANAT ION OFFERED BY HIM IS NOT, IN THE OPINION 'OF THE [ ASSESSING ] OFFICER, SATISFACTORY, THE SUM SO CREDITED MAY BE CHARGED 10 INCOME-TAX AS THE INCOME OF THE A SSESSEE OF THAT PREVIOUS YEAR: [ PROVIDED THAT WHERE THE ASSESSEE IS A COMPANY (NOT BEING A COMPANY IN WHICH THE PUBLIC ARE SUBSTANTIALLY INTERESTED), AND THE SUM SO CREDITED CONSISTS OF SHARE APPLICATION MONEY, SHARE CAPITAL, SHARE PREMIUM OR ANY SUCH AMOUNT BY WHATEVER NAME CALLED, ANY EXPLANATIO N OFFERED BY SUCH ASSESSEE-COMPANY SHALL BE DEEMED TO BE NOT SATISFAC TORY, (A) THE PERSON, BEING A RESIDENT IN WHOSE NAME SUCH CREDIT IS RECORDED IN THE BOOKS OF SUCH COMPANY ALSO OFFERS AN EXPLANATION AB OUT THE NATURE AND SOURCE OF SUCH SUM SO CREDITED; AND (B) SUCH EXPLANATION IN THE OPINION OF THE ASSESSIN G OFFICER AFORESAID HAS BEEN FOUND TO BE SATISFACTORY: PROVIDED FURTHER THAT NOTHING CONTAINED IN THE FIRS T PROVISO SHALL APPLY IF THE PERSON, IN WHOSE NAME THE SUM REFERRED TO THEREIN I S RECORDED, IS A VENTURE CAPITAL FUND OR A VENTURE CAPITAL COMPANY AS REFERR ED TO IN CLAUSE (23FB) OF SECTION 1 ' 5.5 IT IS PERTINENT TO MENTION HERE THAT TWO RETIRE D JUDGES OF THE SUPREME COURT, HON'BLE JUSTICE M. B. SHAH (RETD.) AND HON'BLE JUST ICE ARIJIT PASAYAT (RETD.) AS CHAIRMAN AND VICE CHAIRMAN RESPECTIVELY OF THE 11 M EMBER SPECIAL INVESTIGATION TEAM(SIT) OF THE HON'BLE SUPREME COURT OF INDIA ON BLACK MONEY HAVE POINTED OUT THE ABOVE MENTIONED MODUS OPERENDI IN THE THIRD SIT REPORT ON BLACK MONEY. THE RECOMMENDATIONS OF THE SIT ON BLACK MONEY AS CONTAI NED IN THE THIRD SIT REPORT AS GIVEN BELOW, DESERVE A LOOK: PRESS INFORMATION BU REAU GOVERNMENT OF INDIA MINISTRY OF FINANCE 24-JULY-2015 15:45 1ST RECOMMENDATIONS O(SIT ON BLACK MONEY AS CONTAINED I N THE THIRD SIT REPORT MISUSE OF EXEMPTION ON LONG TERM CAPITAL GAINS TAX/ OR MONEY LAUNDERING (REFERENCE P. 82-84 OF THE TH IRD SIT REPORT) THIS ISSUE WAS DELIBERATED BY SIT DURING A SERIES O F MEETINGS HELD ON 1' JANUARY, 14'' MARCH, 08 TH APRIL AND 3 RD APRIL. IN THIS REGARD, IT IS PERTINENT TO MENTION THE OBSERVATIONS OF THE COMMITTEE HEADED BY CHAIRMAN, C BDT ON ' MEASURES TO TACKLE BLACK MONEY IN INDIA AND ABROAD ' WHICH SUBMITTED ITS REPORT IN 2012 AND WHICH READ AS FOLLOWS:- '3.22 INVESTMENTS ARE MADE IN THE SECONDARY SHARE M ARKETS WITH A VIEW TO CAPTURING GAINS. IN THIS MARKET; OUT OF NEARLY 8,00 0 LISTED COMPANIES, SEVERAL SCRIPS ARE NOT TRADED REGULARLY. WITH THE COLLUSION OF PROMOTERS, SOME BROKERS ARRANGE FOR PRICE(S) WITH PURCHASE OF SUCH SCRIPS A T NOMINAL COSTS, AND SALES AT EXORBITANT PRICES, WITH A VIEW TO RECEIVING MONE Y ON SALE AS ' CAPITAL GAIN ' WHEN THE LONG TERM GAIN IS SUBJECTED TO A ' NIL ' OR NOMINAL RATE OF TAX. THE ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 7 ADVANTAGE FOR MANIPULATIVE TAXPAYER IS THAT HE CAN LAUNDER SUCH SALE RECEIPTS THROUGH PAYMENT OF NO TAX. ' SEBI HAS RECENTLY BARRED MORE THAN 250 ENTITIES, IN CLUDING INDIVIDUALS AND COMPANIES, FROM THE SECURITIES MARKET FOR SUSPECTED TAR: EVASION AND LAUNDERING OF BLACK MONEY THROUGH STOCK MARKET PLAT FORMS. IN ONE SUCH INSTANCE PRICE OF A SCRIP ROSE FROM 10.20 TO 489 IN 150 TRADING DAYS - A RISE OF 4694%. THE SIT OBTAINED THE BACKGROUND DETA ILS OF THESE CASES AND STUDIED THEM. A TYPICAL PATTERN IS OBSERVED TO BE F OLLOWED IN SUCH CASES. A COMPANY WITH VERY POOR FINANCIAL FUNDAMENTS IN TERMS OF PAST INCOME OR TURNOVER IS ABLE TO RAISE HUGE CAPITAL BY ALLOTMENT OF PREFERENTIAL ALLOTMENT OF SHARES IS MADE TO VARIOUS ENTITIES. THERE IS A SHARP RISE IN PRICE OF SCRIP ONCE THE PREFERENTIAL ALLOTMENT IS DONE. THIS IS NORMALLY ACHIEVED THROUGH CIRCULAR TRADING OF SHARES AMONG A SELECT GROUP OF COMPANIES. THESE GROUPS OF COMPANIES OFTEN HAVE COMMON PROMOTERS/DIRECTORS. THE SCRIPS WITH THUS ARTIFICIALLY INFLATED PRICE ARE OFFLOADED THROUGH COMPANIES WHOSE FUNDING IS PROVIDED BY THE SAME SET OF PEOPLE WHO WANT TO CONVERT BLACK MONEY INTO WHITE.. THERE IS AN URGENT NEED FOR HAVING AN EFFECTIVE PRE VENTIVE AND PUNITIVE ACTION IS SUCH MATTERS TO PREVENT RECURRENCE OF SUCH INSTANCES. WE RECOMMEND THE FOLLOWING MEASURES IN THIS REGARD: - SEBI NEEDS TO HAVE AN EFFECTIVE MONITORING MECHAN ISM TO STUDY SUCH UNUSUAL RISE OF STOCK PRICES OF COMPANIES WHILE SUC H A RISE IS TAKING PLACE. WE UNDERSTAND THAT SEBI HAS A STRONG IT INFRASTRUCT URE WHICH CAN GENERATE RED FLAGS FOR SUCH INSTANCES. SUCH RED FLAGS COULD BE BUILT UPON TRADING VOLUMES, ENTITIES WHICH CONTRIBUTE TO TRADING VOLUM E, FINANCIAL BACKGROUND OF FIRMS THROUGH THEIR ANNUAL RETURNS AND ANY OTHER IN DICATORS SEB! MAY DEVELOP. WE BELIEVE THAT WITH EFFECTIVE AND TIMELY MONITORIN G BY SEBI A SIGNIFICANT NUMBER OF SUCH INSTANCES CAN BE CHECKED IN TIME. ONCE SUCH INSTANCES ARE DETECTED, SEBI SHOULD INV ARIABLY SHARE THIS INFORMATION WITH CBDT AND FIU. BARRING SUCH ENTITIES FROM SECURITIES MARKET WOUL D NO: BE OF STRONG DETERRENCE IN ITSELF. IN CASE IT IS ESTABLISHED, TH AT STOCK PLATFORMS HAVE BEEN MISUSED FOR TAKING LTCG BENEFITS, PROSECUTION SHOUL D INVARIABLY BE LAUNCHED UNDER RELEVANT SECTIONS OF SEBI ACT. SECTION 12A. R EAD WITH SECTION 24 OF THE SECURITIES AND EXCHANGE BOARD OF INDIA ACT 1992 ARE PREDICATE OFFENCES. ENFORCEMENT DIRECTORATE SHOULD THEN BE INFORMED T O TAKE ACTION UNDER PREVENTION OF MONEY LAUNDERING ACT FOR THE PREDICAT E OFFENCES. 5.6.1 ON PERUSAL OF THE RECORDS AVAILABLE, IT IS FO UND THAT THE SCRIP OF 'UNNO INDUSTRIES LTD IS AMONGST THE 84 PENNY STOCKS WHERE ARTIFICIAL RIGGING OF PRICES WERE MADE FOR THE DESIRED PURPOSE. 5. 6.2 ON PERUSAL OF THE FINANCIAL RESULTS FOR LAST FEW YEARS INCLUDING YEARS FROM PURCHASE TO SALE, IT IS SEEN THAT THE FINANCIAL HEA LTH OF THE COMPANY HAD BEEN ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 8 DETERIORATING CONTINUOUSLY HAD INCREASED INSIGNIFIC ANTLY. HOWEVER, THE SHARE PRICE AND MARKET CAPITALIZATION OF THE SCRIP WAS SHOOTING UP ALMOST VERTICALLY. THE CATAPULT RISE OF ITS SHARES DEFIED LOGIC AS EVEN THE BLUE CH IP COMPANIES WHICH HAVE BULK MARKET SHARE IN TERMS OF MARKET CAPITALIZATION AND BUSINESS DID NOT EVEN MANAGE TO DOUBLE THEIR PRICE IN THE MARKET DURING THE SAME PE RIOD. STATISTICALLY, UNNO INDUSTRIES LTD HAVING ALMOST ZERO FUNDAMENTAL STRENGTH HAD SHOT U P MORE THAN 28 TIMES IN A SHORT SPAN OF TIME. APPARENTLY IT IS 28 TIMES ON AN AVERAGE HOWEVER IT IS TAKEN TO 28 TIMES UNDER THE DISGUISE OF SPLITTING O F SHARES. THIS IS BECAUSE THE PARALLEL FORCES OF ACCOMMODATION ENTRY PROVIDERS WE RE ACTIVELY PARTICIPATING WITH THEIR PRE-SETTLED GAME PLAN. THIS SCRIP WAS SUSPENDED BY SEBI FOR PRICE RIGGING AND INSIDER TRADING . 5.6.3 ASSESSEE HAD APPARENTLY SOLD THE SHARES OF UN NO INDUSTRIES LTD AT PRE-DETERMINED PRICE, AT PRE-DETERMINED TIME TO PRE -DETERMINED PARTIES WHO WERE SEEKING LOSS FOR SETTING OFF GENUINE CAPITAL GAIN W ITH THE HELP OF DIFFERENT OPERATORS, MEMBERS OF BSE, SHARE BROKERS AND SUB-BROKERS. THE DETAILS OF SHARES OF UNNO INDUSTRIES SOLD BY THE ASSESSEE, AS AVAILABLE FROM THE AUDIT REPORT ARE AS UNDER: SL. NO. NAME OF SHARES DATE OF PURCHASE PURCHASE PRICE RATE PER SHARE DE OF SALE SALE PRICE RATE PER SHARE PROFIT 1 40000 27.12.11 50000 RS.1.25 31.05.13 12,82,209 RS.32 12,32,209 2 55000 68,750 11.06.13 18,53,383 RS.34 17,84,6343 3 35000 43,750 21.06.13 12,02,060 RS.34 11,58,310 4 30000 37,500 24.06.13 10,25,865 RS.34 9,88,365 5.6.4 IT IS FOUND FROM THE ABOVE TRANSACTION DETAIL S THAT IN THE SCRIP OF UNNO INDUSTRIES LTD THE COUNTER PARTY MEMBER AND COUNTER PARTY CLIENT ARE THOSE WHO WERE INVOLVED IN PROVIDING ACCOMMODATION ENTRIE S ON LONG TERM CAPITAL GAINS AND SHORT TERM CAPITAL LOSS TO THE DIFFERENT BENEFI CIARIES. IT IS ALSO FOUND THAT THE ASSESSEE PURCHASED SHARES OF UNNO INDUSTRIES LTD AT A MARKET PRICE OF RS. 1.25/- PER SHARE, THROUGH PRIVATE PLACEMENT. THE ASSESSEE AFTER COMPLETION OF 1 (ONE) YEAR FOR QUALIFYING THE GAIN AS EXEMPTED INCO ME, ON REACHING THE OPTIMUM LEVEL, SOLD THESE SHARES TO THE PRE-ARRANGED BUYERS AT PRE-SETTLED PRICE VARYING BETWEEN RS 32AND RS34. THUS, THE APPRECIATION IN T HE RATES OF SHARES IS AS HIGH AS 1.25:34, I.E ALMOST 27 TIMES. 5.6.5 AS SEEN FROM THE RECORDS, THE ASSESSEE APPARE NTLY SOLD THESE SCRIPS AT A PRE- DETERMINED PRICE, AT A PRE-DETERMINED TIME AND TO P RE-DETERMINED BUYERS WITH THE HELP OF ACCOMMODATION ENTRY PROVIDERS UNDER THE SHE LL OF DIRECTOR, SHARE BROKER ETC. TO BRING HIS UNACCOUNTED INCOME INTO THE REGULAR BO OKS OF ACCOUNTS IN THE FORM OF CLAIM OF EXEMPTION U/S 10(38) OF THE ACTION LTCG . 5.6.6 A MICROSCOPIC VIEW OF ALL SUCH DATA SUGGESTS THAT THERE IS A COMMON PATTERN IN THE TRADING OF ALL SUCH SCRIPS AND THE PATTERN IS T HAT THEY REPRESENT A BELL SHAPE IN THEIR TRADING. IT MEANS FIRST, THEIR PRICES START F ROM A LOW RANGE, THEN IT RISES RAPIDLY, STAYS THERE FOR A WHILE AND THEN IT DECREASES MORE RAPIDLY. THUS THE TRADING PATTERN REPRESENTS A BELL SHAPE[ ANNEXURE A AND MADE PART O F THE ORDER] 5.6.7 ULTIMATELY SEBI VIDE ITS ORDER DATED 29.03.20 16 HAS RESTRAINED SOME PERSONS/ENTITIES FROM ACCESSING THE SECURITIES MARK ET AND BUYING, SELLING OR DEALING IN SECURITIES, EITHER DIRECTLY OR INDIRECTL Y, IN ANY MANNER WHATSOEVER, TILL FURTHER DIRECTION. THE LIST INCLUDES THE NAME OF UN NO INDUSTRIES LTD BESIDES VARIOUS OTHER COMPANIES. 5.7 FURTHER, IN LIGHT OF THE ABOVE CHRONOLOGY OF EV ENTS, THE INCOME TAX AUTHORITIES ARE ENTITLED/ OBLIGED TO LOOK INTO THE DETAILS OF T HE DOCUMENTS PRODUCED AND MAKE ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 9 THOROUGH INVESTIGATION INTO THE TRANSACTIONS TO FIN D OUT THE ACTUAL MOTIVE BEHIND IT. IT IS WELL SETTLED PRINCIPLE OF LAW AS LAID DOWN BY THE H ONBLE APEX COURT IN THE CASE OF SUMATI DAYAL VS. CIT (214 ITR 801) (SC) THAT THE TRUE NATURE OF TRANSACTIONS HAVE TO BE ASCERTAINED IN THE LIGHT OF SURROUNDING CIRCUMST ANCES. IT NEEDS TO BE EMPHASIZED THAT STANDARD OF PROOF BEYOND REASONABLE DOUBT HAS NO APPLICABILITY IN DETERMINATION OF MATTERS UNDER TAXING STATUTES. IT IS ALSO WELL S ETTLED THAT TAX AUTHORITIES ARE ENTITLED TO LOOK INTO SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY OF THE TRANSACTION BY APPLYING THE TEST OF HUMAN PROBABILITY. THIS WAS TH E PRINCIPLE LAID DOWN BY THE HON 'BLE SUPREME COURT IN THE CASE OF CIT VS. DURGA PRA SAD MORE 82 ITR 540 (SQ. REFERENCE MAY ALSO BE DRAWN TO THE RATIO OF THE JUD GMENT BY HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF SANJAY BIMALCHAND JAIN V. PRINCIPAL COMMISSIONER OF INCOME-TAX-L, NAGPURRE PORTED IN [2018} 89 TAXMANN. COM 196 (BOMBAY). IT WAS HELD THEREIN BY THEIR LORDSHIPS THAT WHERE THE ASSE SSEE HAD PURCHASED SHARES OF PENNY STOCKS COMPANIES AT LESSER AMOUNT AND SOLD SUCH SHARES AT MUCH HIGHER AMOUNT WITHIN A SHORT TIME AND HAD NOT TENDE RED COGENT EVIDENCE TO EXPLAIN AS TO HOW SHARES IN AN UNKNOWN COMPANY HAD JUMPED TO SUCH HIGHER AMOUNT IN NO TIME, SAID TRANSACTIONS WERE ATTEMPT T O HEDGE UNDISCLOSED INCOME AS LONG TERM CAPITAL GAIN . 5.8 AS DISCUSSED ABOVE, THE CLAIM OF RECEIPT OF SAL E PROCEEDS OF THE SCRIP OF M/S UNNO INDUSTRIES LTD.OFRS.53,63,5181-WAS FOUND TO BE AN ACCOMMODATION ENTRY OF LTCG EARNED BY THE ASSESSEE, BEING THE BENEFICIARY. IT IS CLEAR THAT THE UNACCOUNTED MONEY OF THE ASSESSEE WAS BROUGHT BACK IN THE BOOKS THROUGH BOGUS LTCG. AS PER THE SHOW CAUSE NOTICE ISSUED, THE ASSESSEE WAS ASKE D TO SUBMIT DETAILS OF COMMISSION PAID IN THIS REGARD. HOWEVER, THE ASSESS EE IS SILENT ON THIS ISSUE IN THE WRITTEN SUBMISSIONS FILED. IT WAS CONFESSED 'BY SEV ERAL ENTRY OPERATORS, SHARE BROKERS, EXIT OPERATORS, ETC. IN THE COURSE OF SEAR CH/SURVEY PROCEEDINGS CONDUCTED BY THE INVESTIGATION WING OF THE DEPARTMENT THAT THEY HAD RECEIVED COMMISSION FROM THE BENEFICIARIES IN LIEU OF SUCH ACCOMMODATION ENTRIES . BASED ON THEIR STATEMENTS, IT WOULD BE JUSTIFIED TO CONCLUDE THE PAYMENT OF COMMI SSION TO ENTRY OPERATORS, BROKERS, ETC. @ 5% OF SUCH ACCOMMODATION ENTRY. CON SIDERING THE ABOVE, IT IS CONCLUDED THAT THE ASSESSEE MUST HAVE INCURRED EXPE NDITURE OF RS. 2,68,176/- [ 5% OF RS. 53,63,518 -] TO OBTAIN THE ABOVE SAID ACCOMMODATION ENTRY. IN VIEW OF THE ABOVE, THE UNEXPLAINED EXPENDITURE OF RS. 2,68,1761 - ALSO NEEDS TO BE ADDED BACK U/S 69C OF THE ACT (TAXABLE AT THE RATE 0[30% AS PR OVIDED U/S 115BBE). 5.9 REFERENCE IS ALSO DRAWN TO THE JUDICIAL PRONOUN CEMENT OF THE APEX COURT IN THE CASE OF N.K.PROTEINS LTD. V. DEPUTY, COMMISSIONER O F INCOME-TAX SPECIAL LEAVE TO APPEAL(C) NO.769 OF 2017 JANUARY 16, 2017, AS RE PORTED IN [2017] 84 TAXMANN.COM 195 (SC), WHEREIN THE HIGH COURT'S DECI SION TO ADD BACK THE ENTIRE BOGUS PURCHASE AS PER THE FICTITIOUS INVOICES DEBIT ED TO TRADING ACCOUNT HOLDING THAT PERCENTAGE DISALLOWANCE OF BOGUS PURCHASES GOES AGA INST PRINCIPLE OF SEC 68 AND 69C OF THE ACT, WAS UPHELD BY THE APEX COURT. 5.10 IT IS IMPERATIVE ON THE PART OF THE ASSESSING OFFICER TO EXAMINE EACH AND EVERY TRANSACTION AND FINALLY TO ASSESS CORRECT INCOME OF THE ASSESSEE. IN THIS CASE, THE ASSESSMENT ORDER WAS PASSED WITHOUT ARRIVING AT THE LOGICAL CONCLUSION ON THE CORROBORATIVE MATERIAL, AVAILABLE AT THE DISPOSAL O F THE AO. 5.11 IN THIS CONNECTION IT IS PERTINENT TO NOTE THA T THE FAILURE ON THE PART OF THE ASSESSING OFFICER TO MAKE AN ENQUIRY ON A RELEVANT ISSUE/POINT WOULD RENDER THE ASSESSMENT ERRONEOUS AND PREJUDICIAL TO THE INTERES T OF THE REVENUE AS DECIDED IN THE FOLLOWING CASES BY VARIOUS COURTS: (1968) 67 ITR 84(SC) RAM PYARI DEVI SARAOGI ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 10 (1973) 88 ITR 323(SC) TARA DEVI AGGARWAL (1975) 99 ITR 375(DELHI) GEE VEE ENTERPRISES (1966) 220 ITR 657 (MAD) K.A. RAMASWAMI CHETTIAR & ANOTHER (1966) 220 ITR 456 (DELHI) DUGGAL AND CO. (1966) 220 ITR 167 (MP) MAHAVAR TRADERS (1995) 213 ITR 843 (RAJ) EMERY STONE MFG. CO. (1992) 198 ITR 611 (KER) MALABAR INDUSTRIAL CO. - MALABAR INDUSTRIAL CO. LTD. V. CIT: 243 ITR 83 -CIT VS. MAX INDIA LIMITED: 268 ITR 128 (P&H) [AF FIRMED IN 295 ITR 282 (SC)] - CIT V KWALITY STEEL SUPPLIERS COMPLEX: 395 ITR I (SC) - CIT VS. AMITABH BACHCHAN: 384 ITR 200 (SC) -. CIT V. HINDUSTAN LEVER LTD 343 ITR 161(BOM.) - CIT V . VIKAS POLYMERS: 341 ITR 537 (DEL.) - CIT V. SUNBEAM AUTO LTD.: 332 ITR 167 (DEL) -CIT VS. DEVELOPMENT CREDIT BANK LTD: 323 ITR 206 (BORN.) - VIMGI INVESTMENT (P) LIMITED: 290 ITR 505 (DEL) - HARI IRON TRADING CO. VS. CIT: 263 ITR 437 (P&H ) - CIT VS. GABRIEL INDIA LIMITED: 203 ITR 108 (BOR N). 5.12.1 IN CONNECTION WIT THE SUBMISSION OF THE ASSE SSEE, RECEIVED ON 03.12.2018, IT MAY BE REITERATED THAT IN ORDER TO PROVIDE CLARITY ON THE ISSUE OF 'ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE ', A NEW EXPLANATION HAS BEEN INSERTED TO CLARIFY THAT AN ORDER PASSED BY THE ASS ESSING OFFICER SHALL BE DEEMED TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, IF IN THE OPINION OF THE PRINCIPAL COMMISSIONER OR COMMISSION ER: (A) THE ORDER IS PASSED WITHOUT MAKING INQUIRIES OR VERIFICATION WHICH, SHOULD HAVE BEEN MADE; (B) THE ORDER IS PASSED ALLOWING ANY RELIEF WITHO UT INQUIRING INTO THE CLAIM; (C) THE ORDER HAS NOT BEEN MADE IN ACCORDANCE WITH ANY ORDER, DIRECTION OR INSTRUCTION ISSUED BY THE BOARD UNDER SECTION 119; OR (D) THE ORDER HAS NOT BEEN PASSED IN ACCORDANCE WIT H ANY DECISION WHICH IS PREJUDICIAL TO THE ASSESSEE, RENDERED BY THE JURISD ICTIONAL HIGH COURT OR SUPREME COURT IN THE CASE OF THE ASSESSEE OR ANY OT HER PERSON. THIS AMENDMENT TAKES EFFECT FROM 1-6-2015. ' 5.12.2 THE SPIRIT OF THIS RATIO IS SQUARELY APPLICA BLE IN A RECENT JUDGMENT, WHEREIN THE ORDER U/S 263 PASSED BY THE PCIT WAS UPHELD IN THE CASE OF M/S. VAMA SUNDARI INVESTMENT (DELHI)(P) LTD VS. PR. CLT. - 9, NEW DEL HI (ITA NO: 22521DE1L2018) BY THE HON'BLE ITAT, DELHI F BENCH, NEW DELHI. IN DOIN G SO, THE HON'BLE ITAT HAD PLACED RELIANCE ON THE FOLLOWING ORDERS : HON'BLE SUPREME COURT IN THE CASE OF DENIEL MERCHANTS PVT. LTD. VS. ITO (APPEAL NO. 2396/20171 DATED 29.11.2017. IN THIS GROUP OF CASES, HON'BLE SUPREME COURT HAS DISMISSED SLPS IN CASES WHERE AO DID NOT MAKE ANY PROPER INQUIRY WHILE MAKING THE ASSESSMENT AND ACCE PTING THE EXPLANATION OF THE ASSESSEE(S) INSOFAR AS RECEIPT OF SHARE APPLICA TION MONEY IS CONCERNED. ON THAT BASIS THE COMMISSIONER OF INCOME TAX HAD, A FTER SETTING ASIDE THE ORDER OF THE ASSESSING OFFICER, SIMPLY DIRECTED THE ASSESSING OFFICER TO CARRY THOROUGH AND DETAILED INQUIRY. ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 11 MAJABAR INDUSTRIAL CO. LTD. VS CIT L09 TAXMAN 66 1S CL71 [20001 243 ITR 83 (SC)/20001 159 CTR 1 (SC) WHEREIN THE HON'BLE SUPREME COURT HELD THAT WHERE ASSESSING OFFICER HAD ACCEPTED ENTRY IN STATEMENT OF ACCOUNT FILED BY ASSESSEE, IN ABSENCE OF ANY SUPPORTING MATERIAL WITHOUT MAKING ANY ENQUIRY, EXERCISE OF JURISDICTION BY COMMISSIONER U NDER SECTION 263( 1) WAS JUSTIFIED. RAIMANDIR ESTATES (P) LTD VS PCIT [2017] 77 TAXMANN.COM 285 (SC)/(2017) 245 TAXMAN 127 (SC) WHEREIN THE HON'BLE SUPREME COURT HAS DISMISSED SLP AGAINST HIGH COURT'S RULING THAT WHER E ASSESSEE WITH A SMALL AMOUNT OF AUTHORISED SHARE CAPITAL, RAISED HUGE SUM ON ACCOUNT OF PREMIUM, EXERCISE OF REVISIONARY POWERS BY COMMISSIONER OPIN ING THAT THIS COULD BE A CASE OF MONEY LAUNDERING WAS JUSTIFIED. 5.12.3 THUS IN THE INSTANT CASE, IT CAN BE SUMMARISED THAT THE AFORESAID TWIN CONDITIONS OF RENDERING AN ASSESSMENT ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, ARE MET SINCE : (A) DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSIN G OFFICER DID NOT CONDUCT EXTENSIVE/ NECESSARY ENQUIRIES REGARDING THE ISSUE OF TRANSFER OF SHARES OF UNNO INDUSTRIES LIMITED; (B) THE AO WHATSOEVER, IN THE ORIGINAL ASSESSMENT O RDER ACCEPTED THE RETURN OF INCOME FILED BY THE ASSESSEE, MORE PARTICULARLY ON THE ISSUE OF GAIN! LOSS ON SALE OF SHARES IN UNNO INDUSTRIES; 6. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE LIGHT OF THE AFORESAID DECISIONS OF HON'BLE SUPREME COURT AND HO N'BLE HIGH COURT AND IN ACCORDANCE WITH THE AMENDMENT MADE TO SECTION 263 O F THE ACT WITH EFFECT FROM 01.06./.015, I HOLD THAT THE IMPUGNED ASSESSMENT OR DER DATED 29.07.2016 PASSED BY THE A.O. IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIA L TO THE INTERESTS OF REVENUE. THEREFORE, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD, THAT THE IMPUGNED ASSESSMENT ORDER DATED 29.07.2016 IS QUASH ED WITH THE DIRECTIONS GIVEN IN THIS ORDER SEPARATELY. 7. ACCORDINGLY, IN VIEW OF THE FACTS AND CIRCUMSTAN CES OF THE CASE AS STATED ABOVE, AND ALSO RESPECTFULLY FOLLOWING THE JUDGMENTS CITED ABOVE, PARTICULARLY THAT IN THE CASES OF SANJAY BIMALCHAND JAIN (SUPRA), M/S. VAMAS UNDARI INVESTMENT (DELHI)(P) LTD (SUPRA) AND THAT OF N. K. PROTEINS (SUPRA), I A M OF THE CONSIDERED VIEW THAT IT IS DEEMED FIT AND APPROPRIATE IN THE INTEREST OF JUSTI CE TO ADD BACK THE ENTIRE SALE CONSIDERATION OF THE BOGUS PENNY STOCK SHARES, AMOU NTING TO RS53,63,518/- UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. FURTHER, THE QUANTUM OF UNEXPLAINED EXPENDITURE ON ACCOUNT OF COMMISSION PAYMENT TO THE TUNE OF 2,68,176/- IS ALSO LIABLE TO BE ADDED BACK U/S 69C OF THE ACT. ACCORDI NGLY, I DIRECT THE AO TO RE- ASSESS.THE INCOME OF THE ASSESSEE FOR THE RELEVANT AY 2014-15 ON THE ISSUE AS DISCUSSED ABOVE. THIS LEAVES THE ASSESSEE AGGRIEVED. 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. THE ASSESSEES DETAILED PAPER BOOK RUNNING INTO 98 PAGE S CONTAINING PCITS SEC. ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 12 263 SHOW-CAUSE NOTICE DATED 12.11.2018, ASSESSEES REPLY, ASSESSING OFFICERS NOTICE U/S 142(1), ITS RESPONSE THERETO D ATED 16.06.2016 AND 24.01.2016, INCOME-TAX RETURN, COMPUTATION, PROFIT AND LOSS ACCOUNT, BALANCE- SHEET, DETAILS OF STCG / LTCG ON SHARES, COPY OF PU RCHASE BILLS, MONEY RECEIVED, CONFIRMATION OF ACCOUNTS, SHARE TRANSFER ADVICE, DEMATERILAZATION REQUEST FORMS, INTIMATION LETTER FOR ALLOTMENT OF B ONUS SHARES, COPY OF CONTRACT NOTES FOR SALE OF SHARES TO M/S SHCL SERVICES LTD., COPY OF SHCL , THE SAID ENTITYS, DEMAT STATEMENTS ON PURCHASE AND SALE OF SHARES, BANK STATEMENT, ON THE TWIN ASPECTS, ASSESSMENT ORDER, THE ASSESSIN G OFFICERS LETTER U/S. 133(6) ISSUED TO THE SAID ENTITY, ITS REPLY IN RESP ONSE THERETO; RESPECTIVELY STAND PERUSED. 5. LEARNED AUTHORIZED REPRESENTATIVE VEHEMENTLY SUB MITS DURING THE COURSE OF HEARING THAT THE PCIT HAS ERRED IN LAW AN D ON FACTS IN EXERCISING HIS REVISION JURISDICTION VESTED U/S 263 OF THE ACT SIN CE THE ASSESSING OFFICERS REGULAR ASSESSMENT IS NEITHER ERRONEOUS NOR PREJUDI CIAL TO THE INTEREST OF REVENUE. HE QUOTES HON'BLE APEX COURTS LAND MARK D ECISION IN MALABAR INDUSTRIAL CO. LTD. VS. CIT (2000) 243 ITR 83 (SC) THAT THESE TWIN CONDITIONS HAVE TO BE, SIMULTANEOUSLY SATISFIED BEFORE THE CIT S OR THE PCITS; AS THE CASE MAY BE PROPOSES TO INVOKE HIS JURISDICTION U/S 263 OF THE ACT. HE THEN INVITES OUR ATTENTION TO THE ASSESSEES FOREGOING D ETAILED PAPER BOOK RUNNING INTO 98 PAGES CONTAINING ALL THE RELEVANT PARTICULA RS OF THE LTCG IN ISSUE. LEARNED COUNSEL ACCORDINGLY SUBMITS THAT ALTHOUGH T HE PCIT HAS TERMED THE IMPUGNED REGULAR ASSESSMENT TO BE BOTH ERRONEOUS ON E AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE WHILST DIRECTING THE AS SESSING OFFICER TO ADD THE ASSESSEES LTCG AS BOGUS UNEXPLAINED CASH CREDITS U /S 68 OF THE ACT, THERE IS NOT EVEN AN IOTA OF EVIDENCE THAT THE SAME ARE I N FACT NOT GENUINE. HE THEN QUOTES THIS TRIBUNALS CO-ORDINATE BENCH DECISION I N TANISH DEALERS PVT. LTD. VS. PRINCIPAL COMMISSIONER OF INCOME-TAX CIRCLE-4, KOLKATA ITA NO.1153/KOL/2019 DECIDED ON 01.07.2019, M/S ARUN KUMAR GARG HUF VS. PR. CIT, DELHI-13, NEW DELHI ITA NO.3391/DEL/2018 DECIDED ON 08.01.2019, OM ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 13 FOREGOING & ENGINEERING (P) LTD. VS. PR. CIT-1, KOL KATA ITA NO.S 509- 510/KOL/2017 DECIDED ON 13.12.2017, MINA MEHTA VS. INCOME-TAX OFFICER WARD-35(4), KOLKATA ITA NO.911/KOL/2011 DECIDED ON28.09.2018 IN BOTH REVISING SIMILAR EXERCISE OF U/S 263 REVISION JURIS DICTION ON LEGALITY ASPECT AS WELL AS ON THE LATTER ISSUE OF GENUINENESS OF SIMIL AR LTCG ON MERITS. 6. LEARNED CIT-DR STRONGLY SUPPORTS THE PCITS EXER CISE OF REVISION JURISDICTION IN FACTS OF THE INSTANT CASE. DR. SRIH ARI VEHEMENTLY CONTENDS THAT THE ASSESSING OFFICER HAS NOT CARRIED OUT THE REQUI RE DUE ENQUIRY WITH REGARD TO ASSESSEES ABOVE STATED LTCG WHICH PROMPTED THE PCIT TO INVOKE HIS REVISION JURISDICTION. HE REFER TO THE PCITS DETAI LED DISCUSSION TO THIS EFFECT THAT SUCH KIND OF LTCG ARE OFFSHOOT OF COLLUSION AM OUNT OF ENTRY OPERATORS, PROMOTERS AND INVESTORS CONCERNED DERIVING BOGUS LT CG BY TAKING RECOURSE TO ARTIFICIAL PRICE OF THE SCRIPS. HE NEXT HIGHLIG HTS THE CBDTS STANDARD OPERATING PROCEDURAL (SOP) ISSUE RECENTLY TO THE FI ELD AUTHORITIES FOR HANDLING CASES OF BOGUS LTCG / LOSSES DERIVE MAINLY OF PENNY STOCK. 7. DR. SRIHARIS NEXT RELIANCE IS ON VARIOUS DECISI ONS I.E. ITA NO.4057/DEL/2018 POOJA GUPTA VS. PR. CIT,NEW DELHI DECIDED ON 31.01 .2019, ITA NO.5714/DEL/2018 POOJA AJMANI VS. ITO WARD-20(4), NEW DELHI DECIDED ON 25.04.2019, ITA NO.1723/BANG/2018 SMT. M.K. RAJESHWARI VS. INCOME-TAX OFFICER, WARD-3, RAIPUR DECIDED ON 12.10.2018 AND T HOSE REFERRED IN THE PCITS ORDER UNDER CHALLENGE (SUPRA) TO PRAY FOR UP HOLDING THE IMPUGNED REVISION ORDER UNDER CHALLENGE. 8. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. THE SOLE ISSUE THAT ARISES FOR OUR APT ADJUDICATION IN FACTS OF INSTANT CASE IS AS TO WHETHER THE PCIT HAS RIGHTLY EXERCISED HIS REVISION JURISDICTION VESTED U/S 263 OR NOT. THERE IS NO DISPUTE THAT THE ASSESSING OFFI CER ACCEPTED THE ASSESSEES LTCG AS GENUINE AS PER HIS DISCUSSION IN THE ASSESS MENT ORDER THAT HE HAD VERIFIED ALL NECESSARY FACTS DURING THE COURSE OF S CRUTINY. SUFFICE TO SAY, THE ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 14 SAME FACT VERY MUCH EMERGES NOT ONLY FROM ASSESSEE S DETAILED PAPER BOOK RUNNING INTO 98 PAGES BUT ALSO FROM THE RELEVANT AS SESSMENT NOTINGS FORMING PART OF RECORD (SUPRA). THIS TRIBUNALS CO-ORDINATE BENCHS DECISION IN CASE OF M/S SAREGAMA INDIA LTD. VS. CIT-1, KOLKATA ITA NO.1254/KOL/2014 DECIDED ON 20.09.2017 HAS REITERATED THE FOLLOWING SETTLED PRI NCIPLES IN CASE OF SEC. 263 REVISION JURISDICTION:- 11. NOW WE SHALL DISCUSS THE PROPOSITIONS OF LAW A S LAID DOWN BY VARIOUS COURTS ON THE ISSUE OF REVISIONARY JURISDICTION OF THE COMMIS SIONER OF INCOME TAX U/S 263 OF THE ACT. THE HONEBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF SPECTRA SHARES AND SCRIPS PVT. LTD. V CIT (AP) 354 ITR 35 HAD CONSIDERED A NUMBER OF JUDGMENT S ON THIS ISSUE OF EXERCISE OF JURISDICITON U/S 263 OF T HE ACT BY THE PRINCIPAL COMMISSIONER OF INCOME TAX AND CULLED OUT THE PRINCIPLES LAID DO WN IN THE JUDGMENTS AS BELOW: 24. IN MALABAR INDUSTRIAL CO.LTD. ( 2 SUPRA), THE S UPREME COURT HELD THAT A BARE READING OF SEC.263 MAKES IT CLEAR THAT THE PREREQUI SITE FOR THE EXERCISE OF JURISDICTION BY THE COMMISSIONER SUO MOTU UNDER IT, IS THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT ERESTS OF THE REVENUE. THE COMMISSIONER HAS TO BE SATISFIED OF TWIN CONDITIONS , NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS ; AND (II) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THEM IS ABSENT IF THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IT IS PREJUDICIAL TO THE REVENUE RECOURSE CANNOT BE HAD TO SEC.263 (1) OF THE ACT. IT ALSO HELD AT PG-88 AS FOLLOWS: 'THE PHRASE ' PREJUDICIAL TO THE INTERESTS OF THE REVENUE ' HAS TO BE READ IN CONJUNCTION WITH AN ERRONEOUS ORDER PASSED BY THE A SSESSING OFFICER. EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSI NG OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. FOR EX AMPLE, WHEN AN INCOME-TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND I T HAS RESULTED IN LOSS OF REVENUE: OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME-TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE, UNLESS THE VIEW TAKEN BY THE INCOME-TAX OFFICER IS UNSUSTAINABLE IN LAW. IT HAS BEEN HELD B Y THIS COURT THAT WHERE A SUM NOT EARNED BY A PERSON IS ASSESSED AS INCOME IN HIS HAN DS ON HIS SO OFFERING, THE ORDER PASSED BY THE ASSESSING OFFICER ACCEPTING THE SAME AS SUCH WILL BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. RAMPYA RIDEVI SARAOGI V. CIT (1968) 67 ITR 84 (SC) AND IN SMT. TARA DEVI AGGARWAL V. CIT ( 1973) 88 ITR 323 (SC)'. 25. IN MAX INDIA LTD. (3 SUPRA), REITERATED THE VIE W IN MALABAR INDUSTRIAL CO.LTD. (2 SUPRA) AND OBSERVED THAT EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. FOR EXAMPLE, WHEN AN INCOME TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE; OR WHER E TWO VIEWS ARE POSSIBLE AND THE INCOME TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH TH E COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDIC IAL TO THE INTERESTS OF THE REVENUE, UNLESS THE VIEW TAKEN BY THE INCOME TAX OFFICER IS UNSUSTAINABLE IN LAW. ON THE FACTS OF THAT CASE, SEC.80HHC(3) AS IT THEN STOOD WAS INT ERPRETED BY THE ASSESSING OFFICER BUT THE REVENUE CONTENDED THAT IN VIEW OF THE 2005 AMENDMENT WHICH IS CLARIFICATORY AND RETROSPECTIVE IN NATURE, THE VIEW OF THE ASSESS ING OFFICER WAS UNSUSTAINABLE IN LAW AND THE COMMISSIONER WAS CORRECT IN INVOKING SE C.263. BUT THE SUPREME COURT ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 15 REJECTED THE SAID CONTENTION AND HELD THAT WHEN THE COMMISSIONER PASSED HIS ORDER DISAGREEING WITH THE VIEW OF THE ASSESSING OFFICER, THERE WERE TWO VIEWS ON THE WORD ' PROFITS ' IN THAT SECTION; THAT THE SAID SECTION WAS AMENDE D ELEVEN TIMES; THAT DIFFERENT VIEWS EXISTED ON THE DAY WHEN THE COMMISS IONER PASSED HIS ORDER; THAT THE MECHANICS OF THE SECTION HAD BECOME SO COMPLICATED OVER THE YEARS THAT TWO VIEWS WERE INHERENTLY POSSIBLE; AND THEREFORE, THE SUBSEQ UENT AMENDMENT IN 2005 EVEN THOUGH RETROSPECTIVE WILL NOT ATTRACT THE PROVISION OF SEC.263. 26. IN VIKAS POLYMERS (4 SUPRA), THE DELHI HIGH COU RT HELD THAT THE POWER OF SUO MOTU REVISION EXERCISABLE BY THE COMMISSIONER UNDER THE PROVISIONS OF SEC.263 IS SUPERVISORY IN NATURE; THAT AN ' ERRONEOUS JUDGMENT ' MEANS ONE WHICH IS NOT IN ACCORDANCE WITH LAW; THAT IF AN INCOME TAX OFFICER ACTING IN ACCORDANCE WITH LAW MAKES A CERTAIN ASSESSMENT, THE SAME CANNOT BE BRAN DED AS ' ERRONEOUS ' BY THE COMMISSIONER SIMPLY BECAUSE, ACCORDING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTEN DIFFERENTLY OR MORE ELABORATELY; THAT THE SECTION D OES NOT VISUALIZE THE SUBSTITUTION OF THE JUDGMENT OF THE COMMISSIONER FOR THAT OF THE IN COME TAX OFFICER, WHO PASSED THE ORDER UNLESS THE DECISION IS NOT IN ACCORDANCE WITH THE LAW; THAT TO INVOKE SUO MOTU REVISIONAL POWERS TO REOPEN A CONCLUDED ASSESSMENT UNDER SEC.263, THE COMMISSIONER MUST GIVE REASONS; THAT A BARE REITERA TION BY HIM THAT THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, WILL NOT SUFFICE; THAT THE REASONS MUST BE SUCH AS TO SHOW THAT THE ENHANCEMENT OR MODIFICATION OF THE ASSESSMENT OR CA NCELLATION OF THE ASSESSMENT OR DIRECTIONS ISSUED FOR A FRESH ASSESSMENT WERE CALLE D FOR, AND MUST IRRESISTIBLY LEAD TO THE CONCLUSION THAT THE ORDER OF THE INCOME TAX OFF ICER WAS NOT ONLY ERRONEOUS BUT WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. TH US, WHILE THE INCOME TAX OFFICER IS NOT CALLED UPON TO WRITE AN ELABORATE JUDGMENT GIVI NG DETAILED REASONS IN RESPECT OF EACH AND EVERY DISALLOWANCE, DEDUCTION, ETC., IT IS INCUMBENT UPON THE COMMISSIONER NOT TO EXERCISE HIS SUO MOTU REVISIONAL POWERS UNLE SS SUPPORTED BY ADEQUATE REASONS FOR DOING SO; THAT IF A QUERY IS RAISED DUR ING THE COURSE OF THE SCRUTINY BY THE ASSESSING OFFICER, WHICH WAS ANSWERED TO THE SATISF ACTION OF THE ASSESSING OFFICER, BUT NEITHER THE QUERY NOR THE ANSWER WERE REFLECTED IN THE ASSESSMENT ORDER, THIS WOULD NOT BY ITSELF LEAD TO THE CONCLUSION THAT THE ORDER OF THE ASSESSING OFFICER CALLED FOR INTERFERENCE AND REVISION. 27. IN SUNBEAM AUTO LTD.( 5 SUPRA), THE DELHI HIGH COURT HELD THAT THE ASSESSING OFFICER IN THE ASSESSMENT ORDER IS NOT REQUIRED TO GIVE A DETAILED REASON IN RESPECT OF EACH AND EVERY ITEM OF DEDUCTION, ETC.; THAT WHETHE R THERE WAS APPLICATION OF MIND BEFORE ALLOWING THE EXPENDITURE IN QUESTION HAS TO BE SEEN; THAT IF THERE WAS AN INQUIRY, EVEN INADEQUATE THAT WOULD NOT BY ITSELF G IVE OCCASION TO THE COMMISSIONER TO PASS ORDERS UNDER SEC.263 MERELY BECAUSE HE HAS A DIFFERENT OPINION IN THE MATTER; THAT IT IS ONLY IN CASES OF LACK OF INQUIRY THAT SUCH A COURSE OF ACTION WOULD BE OPEN; THAT AN ASSESSMENT ORDER MADE BY THE INCOME T AX OFFICER CANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE, AC CORDING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY; THERE MU ST BE SOME PRIMA FACIE MATERIAL ON RECORD TO SHOW THAT THE TAX WHICH WAS LAWFULLY E XIGIBLE HAS NOT BEEN IMPOSED OR THAT BY THE APPLICATION OF THE RELEVANT STATUTE ON AN INCORRECT OR INCOMPLETE INTERPRETATION, A LESSER TAX THAN WHAT WAS JUST, HA S BEEN IMPOSED. IN THAT CASE, THE DELHI HIGH COURT HELD THAT THE COMMISSIONER IN THE EXERCISE OF REVISIONAL POWER COULD NOT HAVE OBJECTED TO THE FINDING OF THE ASSES SING OFFICER THAT EXPENDITURE ON TOOLS AND DIES BY THE ASSESSEE, A MANUFACTURER OF C AR PARTS, IS REVENUE EXPENDITURE WHERE THE SAID CLAIM WAS ALLOWED BY THE LATTER ON B EING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE AND WHERE THE SAME ACCOUNTING PRACT ICE FOLLOWED BY THE ASSESSEE FOR NUMBER OF YEARS WITH THE APPROVAL OF THE INCOME TAX AUTHORITIES. IT HELD THAT THE ASSESSING OFFICER HAD CALLED FOR EXPLANATION ON THE VERY ITEM FROM THE ASSESSEE AND THE ASSESSEE HAD FURNISHED ITS EXPLANATION. MERELY BECAUSE THE ASSESSING OFFICER IN HIS ORDER DID NOT MAKE AN ELABORATE DISCUSSION IN T HAT REGARD, HIS ORDER CANNOT BE ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 16 TERMED AS ERRONEOUS. THE OPINION OF THE ASSESSING O FFICER IS ONE OF THE POSSIBLE VIEWS AND THERE WAS NO MATERIAL BEFORE THE COMMISSI ONER TO VARY THAT OPINION AND ASK FOR FRESH INQUIRY. 28. IN GABRIEL INDIA LTD. (6 SUPRA), THE BOMBAY HIG H COURT HELD THAT A CONSIDERATION OF THE COMMISSIONER AS TO WHETHER AN ORDER IS ERRON EOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, MUST BE BASED ON M ATERIALS ON THE RECORD OF THE PROCEEDINGS CALLED FOR BY HIM. IF THERE ARE NO MATE RIALS ON RECORD ON THE BASIS OF WHICH IT CAN BE SAID THAT THE COMMISSIONER ACTING I N A REASONABLE MANNER COULD HAVE COME TO SUCH A CONCLUSION, THE VERY INITIATION OF PROCEEDINGS BY HIM WILL BE ILLEGAL AND WITHOUT JURISDICTION. IT HELD THAT THE COMMISSIONER CANNOT INITIATE PROCEEDINGS WITH A VIEW TO START FISHING AND ROVING INQUIRIES IN MATTERS OR ORDERS WHICH ARE ALREADY CONCLUDED; THAT THE DEPARTMENT CA NNOT BE PERMITTED TO BEGIN FRESH LITIGATION BECAUSE OF NEW VIEWS THEY ENTERTAIN ON F ACTS OR NEW VERSIONS WHICH THEY PRESENT AS TO WHAT SHOULD BE THE INFERENCE OR PROPE R INFERENCE EITHER OF THE FACTS DISCLOSED OR THE WEIGHT OF THE CIRCUMSTANCE; THAT I F THIS IS PERMITTED, LITIGATION WOULD HAVE NO END EXCEPT WHEN LEGAL INGENUITY IS EXHAUSTE D; THAT TO DO SO IS TO DIVIDE ONE ARGUMENT INTO TWO AND MULTIPLY THE LITIGATION. IT H ELD THAT CASES MAY BE VISUALIZED WHERE THE INCOME TAX OFFICER WHILE MAKING AN ASSESS MENT EXAMINES THE ACCOUNTS, MAKES INQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINES THE INCOME EITHER BY ACCEPTING THE ACCOU NT OR BY MAKING SOME ESTIMATE HIMSELF; THAT THE COMMISSIONER, ON PERUSAL OF THE R ECORD, MAY BE OF THE OPINION THAT THE ESTIMATE MADE BY THE OFFICER CONCERNED WAS ON T HE LOWER SIDE AND LEFT TO THE COMMISSIONER HE WOULD HAVE ESTIMATED THE INCOME AT A FIGURE HIGHER THAN THE ONE DETERMINED BY THE INCOME TAX OFFICER; BUT THAT WOUL D NOT VEST THE COMMISSIONER WITH POWER TO REEXAMINE THE ACCOUNTS AND DETERMINE THE I NCOME HIMSELF AT A HIGHER FIGURE; THERE MUST BE MATERIAL AVAILABLE ON THE REC ORD CALLED FOR BY THE COMMISSIONER TO SATISFY HIM PRIMA FACIE THAT THE ORDER IS BOTH E RRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. OTHERWISE, IT WOULD AMOUN T TO GIVING UNBRIDLED AND ARBITRARY POWER TO THE REVISING AUTHORITY TO INITIATE PROCEED INGS FOR REVISION IN EVERY CASE AND START RE-EXAMINATION AND FRESH INQUIRY IN MATTERS W HICH HAVE ALREADY BEEN CONCLUDED UNDER LAW. 29. IN M.S. RAJU (15 SUPRA), THIS COURT HAS HELD TH AT THE POWER OF THE COMMISSIONER UNDER SEC.263(1) IS NOT LIMITED ONLY TO THE MATERIA L WHICH WAS AVAILABLE BEFORE THE ASSESSING OFFICER AND, IN ORDER TO PROTECT THE INTE RESTS OF THE REVENUE, THE COMMISSIONER IS ENTITLED TO EXAMINE ANY OTHER RECOR DS WHICH ARE AVAILABLE AT THE TIME OF EXAMINATION BY HIM AND TO TAKE INTO CONSIDE RATION EVEN THOSE EVENTS WHICH AROSE SUBSEQUENT TO THE ORDER OF ASSESSMENT. 30. IN RAMPYARI DEVI SARAOGI (21 SUPRA), THE COMMIS SIONER IN EXERCISE OF REVISIONAL POWERS CANCELLED ASSESSEES ASSESSMENT FOR THE YEAR S 1952-1953 TO 1960-61 BECAUSE HE FOUND THAT THE INCOME TAX OFFICER WAS NO T JUSTIFIED IN ACCEPTING THE INITIAL CAPITAL, THE GIFT RECEIVED AND SALE OF JEWELLERY, T HE INCOME FROM BUSINESS ETC., WITHOUT ANY ENQUIRY OR EVIDENCE WHATSOEVER . HE DIRECTED TH E INCOME TAX OFFICER TO DO FRESH ASSESSMENT AFTER MAKING PROPER ENQUIRY AND INVESTIG ATION IN REGARD TO THE JURISDICTION. THE ASSESSEE COMPLAINED BEFORE THE SU PREME COURT THAT NO FAIR OR REASONABLE OPPORTUNITY WAS GIVEN TO HER. SUPREME CO URT HELD THAT THERE WAS AMPLE MATERIAL TO SHOW THAT THE INCOME TAX OFFICER MADE T HE ASSESSMENTS IN UNDUE HURRY; THAT HE HAD PASSED A SHORT STEREO TYPED ASSESSMENT ORDER FOR EACH ASSESSMENT YEAR; THAT ON THE FACE OF THE RECORD, THE ORDERS WE RE PRE-JUDICIAL TO THE INTEREST OF THE REVENUE; AND NO PREJUDICE WAS CAUSED TO THE ASSESSE E ON ACCOUNT OF FAILURE OF THE COMMISSIONER TO INDICATE THE RESULTS OF THE ENQUIRY MADE BY HIM, AS SHE WOULD HAVE A FULL OPPORTUNITY FOR SHOWING TO THE INCOME TAX OF FICER WHETHER HE HAD JURISDICTION OR ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 17 NOT AND WHETHER THE INCOME TAX ASSESSED IN THE ASSE SSMENT YEARS WHICH WERE ORIGINALLY PASSED WERE CORRECT OR NOT' 31. FROM THE ABOVE DECISIONS, THE FOLLOWING PRINCIP LES AS TO EXERCISE OF JURISDICTION BY THE COMMISSIONER U/S.263 OF THE ACT CAN BE CULLED O UT: A) THE COMMISSIONER HAS TO BE SATISFIED OF TWIN CON DITIONS, NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRON EOUS; AND (II) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ERRONEOUS BUT IS NOT P REJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IT IS PREJUDICIAL TO THE REVENUE RECOURSE CANNOT BE HAD TO SEC.263 (1) OF THE ACT. B) EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORD ER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS O F THE REVENUE. FOR EXAMPLE, WHEN AN INCOME-TAX OFFICER ADOPTED ONE OF THE COURSES PE RMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE: OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIO NER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE IN TERESTS OF THE REVENUE, UNLESS THE VIEW TAKEN BY THE INCOME-TAX OFFICER IS UNSUSTAINAB LE IN LAW. C) TO INVOKE SUO MOTU REVISIONAL POWERS TO REOPEN A CONCLUDED ASSESSMENT UNDER SEC.263, THE COMMISSIONER MUST GIVE REASONS; THAT A BARE REITERATION BY HIM THAT THE ORDER OF THE INCOME TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, WILL NOT SUFFICE; THAT TH E REASONS MUST BE SUCH AS TO SHOW THAT THE AND MUST IRRESISTIBLY LEAD TO THE CONCLUSI ON THAT THE ORDER OF THE INCOME TAX OFFICER WAS NOT ONLY ERRONEOUS BUT WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THUS, WHILE THE INCOME TAX OFFICER IS NOT CALLED UP ON TO WRITE AN ELABORATE JUDGMENT GIVING DETAILED REASONS IN RESPECT OF EACH AND EVER Y DISALLOWANCE, DEDUCTION, ETC., IT IS INCUMBENT UPON THE COMMISSIONER NOT TO EXERCISE HIS SUO MOTU REVISIONAL POWERS UNLESS SUPPORTED BY ADEQUATE REASONS FOR DOING SO; THAT IF A QUERY IS RAISED DURING THE COURSE OF THE SCRUTINY BY THE ASSESSING OFFICER , WHICH WAS ANSWERED TO THE SATISFACTION OF THE ASSESSING OFFICER, BUT NEITHER THE QUERY NOR THE ANSWER WERE REFLECTED IN THE ASSESSMENT ORDER, THIS WOULD NOT B Y ITSELF LEAD TO THE CONCLUSION THAT THE ORDER OF THE ASSESSING OFFICER CALLED FOR INTER FERENCE AND REVISION. E) THE COMMISSIONER CANNOT INITIATE PROCEEDINGS WIT H A VIEW TO START FISHING AND ROVING INQUIRIES IN MATTERS OR ORDERS WHICH ARE ALR EADY CONCLUDED; THAT THE DEPARTMENT CANNOT BE PERMITTED TO BEGIN FRESH LITIG ATION BECAUSE OF NEW VIEWS THEY ENTERTAIN ON FACTS OR NEW CIRCUMSTANCE; THAT IF THI S IS PERMITTED, LITIGATION WOULD HAVE NO END EXCEPT WHEN LEGAL INGENUITY IS EXHAUSTED F) WHETHER THERE WAS APPLICATION OF MIND BEFORE ALL OWING THE EXPENDITURE IN QUESTION HAS TO BE SEEN; THAT IF THERE WAS AN INQUIRY, EVEN INADEQUATE THAT WOULD NOT BY ITSELF GIVE OCCASION TO THE COMMISSIONER TO PASS ORDERS UN DER SEC.263 MERELY BECAUSE HE HAS A DIFFERENT OPINION IN THE MATTER; THAT IT IS O NLY IN CASES OF LACK OF INQUIRY THAT SUCH A COURSE OF ACTION WOULD BE OPEN; THAT AN ASSESSMEN T ORDER MADE BY THE INCOME TAX OFFICER CANNOT BE BRANDED AS ERRONEOUS BY THE C OMMISSIONER SIMPLY BECAUSE, ACCORDING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTE N MORE ELABORATELY; THERE MUST BE SOME PRIMA FACIE MATERIAL ON RECORD TO SHOW THAT TH E TAX WHICH WAS LAWFULLY EXIGIBLE HAS NOT BEEN IMPOSED OR THAT BY THE APPLICATION OF THE RELEVANT STATUTE ON AN INCORRECT OR INCOMPLETE INTERPRETATION, A LESSER TA X THAN WHAT WAS JUST, HAS BEEN IMPOSED. G) THE POWER OF THE COMMISSIONER UNDER SEC.263 (1) IS NOT COMMISSIONER IS ENTITLED TO EXAMINE ANY OTHER RECORDS WHICH ARE AVAILABLE AT THE TIME OF EXAMINATION BY HIM ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 18 AND TO TAKE INTO CONSIDERATION EVEN THOSE EVENTS WH ICH AROSE SUBSEQUENT TO THE ORDER OF ASSESSMENT. WE NOW EXAMINE THE FOLLOWING JUDGMENTS ON THIS ISS UE:- DIRECTOR OF INCOME TAX VS. JYOTI FOUNDATION 357 ITR 388 (DELHI HIGH COURT) IT WAS HELD THAT REVISIONARY POWER U/S 263 I S CONFERRED ON THE COMMISSIONER/DIRECTOR OF INCOME TAX WHEN AN ORDER P ASSED BY THE LOWER AUTHORITY IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. ORDERS WHICH ARE PASSED WITHOUT INQUIRY OR INVESTIGATION ARE TREATED AS ERR ONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, BUT ORDERS WHICH ARE PASSED AFTER I NQUIRY/INVESTIGATION ON THE QUESTION/ISSUE ARE NOT PER SE OR NORMALLY TREATED A S ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE BECAUSE THE REVISIONARY AUT HORITY FEELS AND OPINES THAT FURTHER INQUIRY/INVESTIGATION WAS REQUIRED OR DEEPE R OR FURTHER SCRUTINY SHOULD BE UNDERTAKEN. INCOME TAX OFFICER VS. DG HOUSING PROJECTS LTD343 I TR 329 (DELHI) REVENUE DOES NOT HAVE ANY RIGHT TO APPEAL TO THE FI RST APPELLATE AUTHORITY AGAINST AN ORDER PASSED BY THE ASSESSING OFFICER. S. 263 HAS B EEN ENACTED TO EMPOWER THE CIT TO EXERCISE POWER OF REVISION AND REVISE ANY ORDER PASSED BY THE ASSESSING OFFICER, IF TWO CUMULATIVE CONDITIONS ARE SATISFIED. FIRSTLY, T HE ORDER SOUGHT TO BE REVISED SHOULD BE ERRONEOUS AND SECONDLY, IT SHOULD BE PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE EXPRESSION ' PREJUDICIAL TO THE INTEREST OF THE REVENUE ' IS OF WIDE IMPORT AND IS NOT CONFINED TO MERELY LOSS OF TAX. THE TERM ' ERRONEOUS ' MEANS A WRONG/INCORRECT DECISION DEVIATING FROM LAW. THIS EXPRESSION POSTUL ATES AN ERROR WHICH MAKES AN ORDER UNSUSTAINABLE IN LAW. THE ASSESSING OFFICER I S BOTH AN INVESTIGATOR AND AN ADJUDICATOR. IF THE ASSESSING OFFICER AS AN ADJUDIC ATOR DECIDES A QUESTION OR ASPECT AND MAKES A WRONG ASSESSMENT WHICH IS UNSUSTAINABLE IN LAW, IT CAN BE CORRECTED BY THE COMMISSIONER IN EXERCISE OF REVISIONARY POWER. AS AN INVESTIGATOR, IT IS INCUMBENT UPON THE ASSESSING OFFICER TO INVESTIGATE THE FACTS REQUIRED TO BE EXAMINED AND VERIFIED TO COMPUTE THE TAXABLE INCOME . IF THE ASSESSING OFFICER FAILS TO CONDUCT THE SAID INVESTIGATION, HE COMMITS AN ERROR AND THE WORD ' ERRONEOUS ' INCLUDES FAILURE TO MAKE THE ENQUIRY. IN SUCH CASES , THE ORDER BECOMES ERRONEOUS BECAUSE ENQUIRY OR VERIFICATION HAS NOT BEEN MADE A ND NOT BECAUSE A WRONG ORDER HAS BEEN PASSED ON MERITS. THUS, IN CASES OF WRONG OPINION OR FINDING ON MERIT S, THE CIT HAS TO COME TO THE CONCLUSION AND HIMSELF DECIDE THAT THE ORDER IS ERR ONEOUS, BY CONDUCTING NECESSARY ENQUIRY, IF REQUIRED AND NECESSARY, BEFORE THE ORDE R UNDER S. 263 IS PASSED. IN SUCH CASES, THE ORDER OF THE ASSESSING OFFICER WILL BE E RRONEOUS BECAUSE THE ORDER PASSED IS NOT SUSTAINABLE IN LAW AND THE SAID FINDING MUST BE RECORDED. CIT CANNOT REMAND THE MATTER TO THE ASSESSING OFFICER TO DECIDE WHETH ER THE FINDINGS RECORDED ARE ERRONEOUS. IN CASES WHERE THERE IS INADEQUATE ENQUI RY BUT NOT LACK OF ENQUIRY, AGAIN THE CIT MUST GIVE AND RECORD A FINDING THAT THE ORD ER/INQUIRY MADE IS ERRONEOUS. THIS CAN HAPPEN IF AN ENQUIRY AND VERIFICATION IS CONDUC TED BY THE CIT AND HE IS ABLE TO ESTABLISH AND SHOW THE ERROR OR MISTAKE MADE BY THE ASSESSING OFFICER, MAKING THE ORDER UNSUSTAINABLE IN LAW. IN SOME CASES POSSIBLY THOUGH RARELY, THE CIT CAN ALSO SHOW AND ESTABLISH THAT THE FACTS ON RECORD OR INFE RENCES DRAWN FROM FACTS ON RECORD PER SE JUSTIFIED AND MANDATED FURTHER ENQUIRY OR IN VESTIGATION BUT THE ASSESSING OFFICER HAD ERRONEOUSLY NOT UNDERTAKEN THE SAME. HO WEVER, THE SAID FINDING MUST BE CLEAR, UNAMBIGUOUS AND NOT DEBATABLE. THE MATTER CA NNOT BE REMITTED FOR A FRESH DECISION TO THE ASSESSING OFFICER TO CONDUCT FURTHE R ENQUIRIES WITHOUT A FINDING THAT THE ORDER IS ERRONEOUS. FINDING THAT THE ORDER IS E RRONEOUS IS A CONDITION OR REQUIREMENT WHICH MUST BE SATISFIED FOR EXERCISE OF JURISDICTION UNDER S. 263 OF THE ACT. IN SUCH MATTERS, TO REMAND THE MATTER/ISSUE TO THE ASSESSING OFFICER WOULD IMPLY ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 19 AND MEAN THE CIT HAS NOT EXAMINED AND DECIDED WHETH ER OR NOT THE ORDER IS ERRONEOUS BUT HAS DIRECTED THE ASSESSING OFFICER TO DECIDE THE ASPECT/QUESTION. THIS DISTINCTION MUST BE KEPT IN MIND BY THE CIT WH ILE EXERCISING JURISDICTION UNDER S. 263 OF THE ACT AND IN THE ABSENCE OF THE FINDING TH AT THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE, EXERCISE OF JURISDICTION UNDER THE SAID SECTION IS NOT SUSTAINABLE. IN MOST CASES OF ALLEGED ' INADEQUATE INVESTIGATION ', IT WILL BE DIFFICULT TO HOLD THAT THE ORDER OF THE ASSESSING O FFICER, WHO HAD CONDUCTED ENQUIRIES AND HAD ACTED AS AN INVESTIGATOR, IS ERRONEOUS, WIT HOUT CIT CONDUCTING VERIFICATION/INQUIRY. THE ORDER OF THE ASSESSING OF FICER MAY BE OR MAY NOT BE WRONG. CIT CANNOT DIRECT RECONSIDERATION ON THIS GROUND BU T ONLY WHEN THE ORDER IS ERRONEOUS. AN ORDER OF REMIT CANNOT BE PASSED BY TH E CIT TO ASK THE ASSESSING OFFICER TO DECIDE WHETHER THE ORDER WAS ERRONEOUS. THIS IS NOT PERMISSIBLE. AN ORDER IS NOT ERRONEOUS, UNLESS THE CIT HOLD AND RECORDS R EASONS WHY IT IS ERRONEOUS. AN ORDER WILL NOT BECOME ERRONEOUS BECAUSE ON REMIT, T HE ASSESSING OFFICER MAY DECIDE THAT THE ORDER IS ERRONEOUS. THEREFORE CIT MUST AFT ER RECORDING REASONS HOLD THAT THE ORDER IS ERRONEOUS. THE JURISDICTIONAL PRECONDITION STIPULATED IS THAT THE CIT MUST COME TO THE CONCLUSION THAT THE ORDER IS ERRONEOUS AND IS UNSUSTAINABLE IN LAW. IT MAY BE NOTICED THAT THE MATERIAL WHICH THE CIT CAN RELY INCLUDES NOT ONLY THE RECORD AS IT STANDS AT THE TIME WHEN THE ORDER IN QUESTION WAS P ASSED BY THE ASSESSING OFFICER BUT ALSO THE RECORD AS IT STANDS AT THE TIME OF EXA MINATION BY THE CIT. NOTHING BARS/PROHIBITS THE CIT FROM COLLECTING AND RELYING UPON NEW/ADDITIONAL MATERIAL/EVIDENCE TO SHOW AND STATE THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS. COMMISSIONER OF INCOME TAX VS. J. L. MORRISON (INDI A) LTD. 366 ITR AS REGARD THE SUBMISSION ON BEHALF OF THE REVENUE THAT POWER UNDER SECTION 263 OF THE ACT CAN BE EXERCISED EVEN IN A CASE WHERE THE ISSUE IS DEBATABLE, IT WAS HELD THAT THE CASE OF CIT VS. M. M. KHAMBHATWALA WAS NOT APPL ICABLE. THE OBSERVATION THAT THE COMMISSIONER CAN EXERCISE POWER UNDER SECTION 2 63 OF THE ACT EVEN IN A CASE WERE THE ISSUE IS DEBATABLE WAS A MERE PASSING REMA RK WHICH IS AGAIN CONTRARY TO THE VIEW TAKEN BY THE APEX COURT IN THE CASE OF MALABAR INDUSTRIAL COMPANY LTD. & MAX INDIA LTD . IF THE ASSESSING OFFICER HAS TAKEN A POSSIBLE VIE W, IT CANNOT BE SAID THAT THE VIEW TAKEN BY HIM IS ERRONEOUS NOR THE ORD ER OF THE ASSESSING OFFICER IN THAT CASE CAN BE SET ASIDE IN REVISION. IT HAS TO BE SHO WN UNMISTAKABLY THAT THE ORDER OF THE ASSESSING OFFICER IS UNSUSTAINABLE. ANYTHING SH ORT OF THAT WOULD NOT CLOTHE THE CIT WITH JURISDICTION TO EXERCISE POWER UNDER SECTI ON 263 OF THE ACT. CIT VS. M. M. KHAMBHATWALA REPORTED IN 198 ITR 144; CIT VS. RAISO N INDUSTRIES LTD. REPORTED IN 288 ITR 322 (SC), NOT APPLICABLE; MALABAR INDUSTRIA L CO. LTD. V. CIT REPORTED IN 243 ITR 83, RELIED ON. (PARA 72) AS REGARD THE THIRD QU ESTION AS TO WHETHER THE ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICE R WITHOUT APPLICATION OF MIND, IT WAS HELD THAT THE COURT HAS TO START WITH THE PRESU MPTION THAT THE ASSESSMENT ORDER WAS REGULARLY PASSED. THERE IS EVIDENCE TO SHOW THA T THE ASSESSING OFFICER HAD REQUIRED THE ASSESSEE TO ANSWER 17 QUESTIONS AND TO FILE DOCUMENTS IN REGARD THERETO. IT IS DIFFICULT TO PROCEED ON THE BASIS TH AT THE 17 QUESTIONS RAISED BY HIM DID NOT REQUIRE APPLICATION OF MIND. WITHOUT APPLICATIO N OF MIND THE QUESTIONS RAISED BY HIM IN THE ANNEXURE TO NOTICE UNDER SECTION 142(1) OF THE ACT COULD NOT HAVE BEEN FORMULATED. THE ASSESSING OFFICER WAS REQUIRED TO E XAMINE THE RETURN FILED BY THE ASSESSEE IN ORDER TO ASCERTAIN HIS INCOME AND TO LE VY APPROPRIATE TAX ON THAT BASIS. WHEN THE ASSESSING OFFICER WAS SATISFIED THAT THE R ETURN, FILED BY THE ASSESSEE, WAS IN ACCORDANCE WITH LAW, HE WAS UNDER NO OBLIGATION TO JUSTIFY AS TO WHY WAS HE SATISFIED. ON THE TOP OF THAT THE ASSESSING OFFICER BY HIS ORDER DATED 28TH MARCH, 2008 DID NOT ADVERSELY AFFECT ANY RIGHT OF THE ASSE SSEE NOR WAS ANY CIVIL RIGHT OF THE ASSESSEE PREJUDICED. HE WAS AS SUCH UNDER NO OBLIGA TION IN LAW TO GIVE REASONS. THE FACT, THAT ALL REQUISITE PAPERS WERE SUMMONED AND T HEREAFTER THE MATTER WAS HEARD FROM TIME TO TIME COUPLED WITH THE FACT THAT THE VI EW TAKEN BY HIM IS NOT SHOWN BY THE ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 20 REVENUE TO BE ERRONEOUS AND WAS ALSO CONSIDERED BOT H BY THE TRIBUNAL AS ALSO BY US TO BE A POSSIBLE VIEW, STRENGTHENS THE PRESUMPTION UNDER CLAUSE (E) OF SECTION 114 OF THE EVIDENCE ACT. A PRIMA FACIE EVIDENCE, ON THE BASIS OF THE AFORESAID PRESUMPTION, IS THUS CONVERTED INTO A CONCLUSIVE PR OOF OF THE FACT THAT THE ORDER WAS PASSED BY THE ASSESSING OFFICER AFTER DUE APPLICATI ON OF MIND. MEERUT ROLLER FLOUR MILLS PVT. LTD. VS. C.I.T., ITA NO. 116 /COCH/ 2012 ; CIT VS. INFOSYS TECHNOLOGIES LTD., 341 ITR 293 (KARNATAKA); S.N. MUKHERJEE VS. UNION O F INDIA, AIR 1990 SC 1984; A. A. DOSHI VS. JCIT, 256 ITR 685; HINDUSTHAN TIN WORK S LTD. VS. CIT, 275 ITR 43 (DEL), DISTINGUISHED. (PARAS 90-92, 102) COMMISSIONER OF INCOME TAX VS. SOHANA WOOLLEN MILLS 296 ITR 238 (P&H HC) A REFERENCE TO THE PROVISIONS OF S. 263 SH OWS THAT JURISDICTION THEREUNDER CAN BE EXERCISED IF THE CIT FINDS THAT THE ORDER OF THE AO WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. MERE AUDIT OBJECTION AND MERELY BECAUSE A DIFFERENT VIEW COULD BE TAKEN, WERE NOT ENOUGH TO S AY THAT THE ORDER OF THE AO WAS ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF THE REV ENUE. THE JURISDICTION COULD BE EXERCISED IF THE CIT WAS SATISFIED THAT THE BASIS F OR EXERCISE OF JURISDICTION EXISTED. NO RIGID RULE COULD BE LAID DOWN ABOUT THE SITUATION W HEN THE JURISDICTION CAN BE EXERCISED. WHETHER SATISFACTION OF THE CIT FOR EXER CISING JURISDICTION WAS CALLED FOR OR NOT, HAS TO BE DECIDED HAVING REGARD TO A GIVEN FAC T SITUATION. IN THE PRESENT CASE, THE TRIBUNAL HAS HELD THAT THE ASSESSEE HAD DISCLOSED T HAT OUT OF SALE CONSIDERATION, A SUM OF RS. 1 LAKH WAS TO BE RECEIVED FOR SALE OF PE RMIT. IF THAT IS SO, THERE WAS NO ERROR IN THE VIEW TAKEN BY THE AO AND NO CASE WAS M ADE OUT FOR INVOKING JURISDICTION UNDER S. 263. COMMISSIONER OF INCOME TAX VS. LEISURE WEAR EXPORTS LTD. 341 ITR 166 (DEL) THE PREREQUISITE TO THE EXERCISE OF SUO M OTU JURISDICTION UNDER S. 263 BY THE CIT IS THAT THE ORDER OF THE AO IS ERRONEOUS INSOFA R AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. TWO CONDITIONS ARE TO BE SATISFIED, NA MELY, (I) THE ORDER OF THE AO SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) THE ERR OR COMMITTED BY THE AO IN THE ORDER IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. BOTH THESE CONDITIONS ARE TO BE SATISFIED SIMULTANEOUSLY. IT IS ALSO WELL-SETTLED PRINCIPLE T HAT PROVISIONS OF S. 263 WOULD NOT BE INVOKED MERELY TO CORRECT A MISTAKE OR ERROR COMMIT TED BY THE AO UNLESS IT HAS CAUSED PREJUDICE TO THE INTEREST OF THE REVENUE. IF AN ORDER IS BASED ON INCORRECT ASSUMPTION OF FACTS OR ON INCORRECT APPLICATION OF LAW OR WITHOUT APPLYING THE PRINCIPLES OF NATURAL JUSTICE AND WITHOUT APPLICATI ON OF MIND, IT WOULD BE TREATED AS ERRONEOUS. LIKEWISE, THE EXPRESSION ' PREJUDICIAL TO THE INTEREST OF THE REVENUE ' IS OF WIDE IMPORT AND IS NOT CONFINED TO LOSS OF TAX. IF DUE TO AN ERRONEOUS ORDER OF THE AO THE REVENUE IS LOSING TAX LAWFULLY PAYABLE BY A PERSON, IT WOULD BE CERTAINLY PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE POW ER OF REVISION IS NOT MEANT TO BE EXERCISED FOR THE PURPOSE OF DIRECTING THE AO TO HO LD ANOTHER INVESTIGATION WITHOUT DESCRIBING AS TO HOW THE ORDER OF THE AO IS ERRONEO US. FROM THIS IT ALSO FOLLOWS THAT WHERE THE ASSESSMENT ORDER HAS BEEN PASSED BY THE A O AFTER TAKING INTO ACCOUNT THE ASSESSEE'S SUBMISSIONS AND DOCUMENTS FURNISHED BY HIM AND NO MATERIAL WHATSOEVER HAS BEEN BROUGHT ON RECORD BY THE CIT WH ICH SHOWED THAT THERE WAS ANY DISCREPANCY OR FALSITY IN EVIDENCES FURNISHED BY TH E ASSESSEE, THE ORDER OF THE AO CANNOT BE SET ASIDE FOR MAKING DEEP INQUIRY ONLY ON THE PRESUMPTION AND ASSUMPTION THAT SOMETHING NEW MAY COME OUT. FOR MAKING A VALID ORDER UNDER S. 263 IT IS ESSENTIAL THAT THE CIT HAS TO RECORD AN EXPRESS FIN DING TO THE EFFECT THAT ORDER PASSED BY THE AO IS ERRONEOUS WHICH HAS CAUSED LOSS TO THE REVENUE. FURTHERMORE, WHERE ACTING IN ACCORDANCE WITH LAW THE AO FRAMES CERTAIN ASSESSMENT ORDER, SAME CANNOT BE BRANDED AS ERRONEOUS SIMPLY BECAUSE ACCORDING TO THE CIT, THE ORDER SHOULD BE WRITTEN MORE ELABORATELY.MALABAR INDUSTRIAL CO. LT D. VS. CIT (2000) 159 CTR (SC) 1 : (2000) 243 ITR 83 (SC), GEE VEE ENTERPRISES VS. A DDL. CIT 1975 CTR (DEL) 61 : (1975) 99 ITR 375 (DEL), CIT VS. SESHASAYEE PAPER & BOARDS LTD. (2000) 242 ITR ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 21 490 (MAD), CWT VS. PRITHVI RAJ & CO. (1991) 98 CTR (DEL) 216 : (1993) 199 ITR 424 (DEL) AND J.P. SRIVASTAVA& SONS (KANPUR) LTD. VS. C IT (1978) 111 ITR 326 (ALL) RELIED ON. (PARAS 6 & 7) IN THE ENTIRE ORDER EMPHASIS LAID BY THE CIT IS THAT IN RESPECT OF FOUR ISSUES MENTIONED BY HIM, NO QUERIES WERE RAISED BY THE AO. ON THIS PREMISE, THOUGH IT IS OBSERVED THAT THERE WAS NO APPLICATION OF MIN D ON THE PART OF THE AO AND THE AO HAS NOT RECORDED ANY REASONS TO JUSTIFY THE OMISSIO N TO CONSIDER THE SAID FACTS, THE CIT DOES NOT TAKE THE SAID ORDER TO ITS LOGICAL CON CLUSION WHICH WAS THE PRIME DUTY OF THE CIT IN ORDER TO JUSTIFY EXERCISE OF POWER UNDER S. 263. THERE IS NOT EVEN A WHISPER THAT THE ORDER IS ERRONEOUS. EVEN IF IT IS INFERRED THAT NON-CONSIDERATION OF THE ISSUES POINTED OUT BY THE CIT WOULD AMOUNT TO AN ERRONEOUS ORDER, IT IS NOT STATED AS TO HOW THIS ORDER IS PREJUDICIAL TO THE INTEREST OF THE RE VENUE. THE PENULTIMATE PARAS OF THE ORDER, AT BEST, CONTAIN THE OBSERVATIONS THAT THE A O WAS SATISFIED WITH MAKING FLIMSY ADDITIONS WHICH WERE DELETED BY THE CIT(A). THERE I S NOT A WHISPER AS TO HOW THIS ORDER WAS PREJUDICIAL TO THE INTEREST OF THE REVENU E. THAT APART, THE APPROACH OF THE TRIBUNAL IN DISCARDING THE OBSERVATION OF THE CIT A BOUT NOT MAKING PROPER INQUIRIES IN RESPECT OF THE SAID FOUR ISSUES IS ALSO JUSTIFIED A ND WITHOUT BLEMISH. (PARAS 12 TO 14) FIRST COMMENT OF THE CIT WAS IN RE SPECT OF FINISHED GOODS IN THE CLOSING STOCK. THE CIT FOUND THAT THESE WERE TO THE TUNE OF RS. 5.28 CRORES. ACCORDING TO THE CIT, WHEN THE TOTAL TURNOVER OF TH E ASSESSEE WAS RS. 6.13 CRORES, THE AO SHOULD HAVE SATISFIED HIMSELF BY CALLING FOR MORE DETAILS AS TO HOW THERE WAS CLOSING STOCK OF SUCH A MAGNITUDE OF RS. 5.28 CRORE S. THUS, THE CIT HAS NOT DOUBTED THE STATEMENT OF FINISHED GOODS IN THE CLOSING STOC K FURNISHED BY THE ASSESSEE. HE HAS ONLY REMARKED THAT THERE SHOULD HAVE BEEN A DEE PER PROBE BY CALLING FOR MORE DETAILS. THIS IS NEITHER HERE NOR THERE, WHEN ONE K EEPS IN VIEW THE INGREDIENTS OF S. 263. (PARA 15) INSOFAR AS THE INSURANCE CLAIM IS CONCERN ED, THE CIT OBSERVED THAT THE ASSESSEE HAD SHOWN RECEIVABLE ON THIS ACCOUNT TO TH E TUNE OF RS. 1.21 CRORES BUT NO DETAILS HAD BEEN FURNISHED. THE AO HAD ALSO NOT MAD E ANY INQUIRIES. IN THE DETAILED DISCUSSION ON THIS ASPECT, THE TRIBUNAL HAS OBSERVE D THAT INSURANCE CLAIM WAS LODGED FOR THE GOODS LOST IN TRANSIT. THE ASSESSEE AT THAT TIME HAD MERELY FILED A CLAIM WITH THE INSURANCE COMPANY. THIS CLAIM HAD NOT BEEN APPR OVED AS THE INSURANCE COMPANY HAD NEITHER ACCEPTED THE SAME NOR GIVEN ANY ASSURANCE FOR MAKING PAYMENT. THEREFORE, NO INCOME HAD ' ACCRUED ' WHICH COULD BE TAXED. THE TRIBUNAL RIGHTLY HELD THAT ORDINARILY THE INCOME IS SAID TO HAVE ACCRUED TO A PERSON WHEN HE ACQUIRES THE RIGHT TO INCOME AND THIS SHOULD BE ENF ORCEABLE RIGHT, THOUGH ACTUAL QUANTIFICATION OR RECEIPT MAY FOLLOW IN DUE COURSE. THE MERE CLAIM TO INCOME WITHOUT ANY ENFORCEABLE RIGHT CANNOT BE REGARDED AS AN ACCR UED INCOME FOR THE PURPOSE OF IT ACT. (PARA 16) COMING TO THE CLAIM UNDER S. 80HHC, IT WA S TOTALLY UNCALLED FOR ON THE PART OF THE CIT TO SAY THAT THE AO DID NOT MAKE REQUISIT E INQUIRIES BECAUSE OF THE SIMPLE REASON THAT THE AO HAD, IN FACT, DECLINED AND REJEC TED THIS CLAIM OF THE ASSESSEE. IF THE AO HIMSELF DISALLOWED THE DEDUCTION CLAIMED BY THE ASSESSEE ON THIS ACCOUNT UNDER S. 80HHC, ONE FAILS TO UNDERSTAND WHAT FURTHE R INQUIRIES WERE NEEDED BY THE AO. (PARA 17) LASTLY, THE OBSERVATIONS OF THE CIT ARE I N RESPECT OF THE INCOME OF RS. 1.61 CRORES SHOWN BY THE ASSESSEE ON ACCOUNT OF VARIATIO N IN EXCHANGE RATE. THE CIT HAS ONLY OBSERVED THAT IN THE IMMEDIATE PREVIOUS YEAR N O SUCH GAIN WAS SHOWN AND THEREFORE, IT NEEDED EXAMINATION BY THE AO. HOWEVER , THE MOOT QUESTION WOULD BE EXAMINATION FOR WHAT PURPOSE ? IT IS AN INCOME SHOW N BY THE ASSESSEE. WHETHER THE CIT WAS OF THE OPINION THAT THERE WAS NO SUCH INCOM E OR HE WAS NURTURING AN ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 22 IMPRESSION THAT INCOME ON THIS ACCOUNT AS SHOWN WAS LESSER ? THERE IS NO SUCH INDICATION IN THE ORDER. THE CIT ALSO DOES NOT AT A LL STATE AS TO WHAT WAS THE REASON FOR DOUBTING THE INCOME OFFERED BY THE ASSESSEE. EV EN IF IT IS FOUND THAT PART OF SUCH INCOME WAS CLAIMED AS DEDUCTION UNDER S. 80HHC, NO BENEFIT ENURED TO THE ASSESSEE ON THIS ACCOUNT AS CLAIM UNDER S. 80HHC WA S FULLY DISALLOWED BY THE AO. IT IS NOT AT ALL OBSERVED AS TO HOW THE ORDER OF THE A O ON THIS ACCOUNT WAS ERRONEOUS AND FURTHER AS TO HOW IT WAS PREJUDICIAL TO THE INT EREST OF THE REVENUE. THUS, ORDER OF THE CIT WAS RIGHTLY SET ASIDE BY THE TRIBUNAL. IN T HE CASE ON HAND THE LD. CIT FINDS FAULT WITH THE AO FOR NOT INVOKING RULE 8D WHILE MA KING DISALLOWANCE U/S 14A. THE HONBLE DELHI HIGH COURT IN THE CASE OF MAXOP INVES TMENTS LTD. VS CIT (SUPRA) HELD THAT THE AO CANNOT PROCEED TO DETERMINE THE AMOUNT OF EXPENDITURE INCURRED IN RELATION TO EXEMPT INCOME WITHOUT RECORDING A FINDI NG THAT HE IS NOT SATISFIED WITH THE CORRECTNESS OF THE CLAIM OF THE ASSESSEE. THIS IS A CONDITION PRECEDENT WHILE REJECTING THE CLAIM OF THE ASSESSEE, WITH REGARD TO INCURRING OF EXPENDITURE OR NO EXPENDITURE IN RELATION TO EXEMPT INCOME. THE AO WILL HAVE TO INDI CATE COGENT REASONS FOR THE SAME AND RULE 8D COMES INTO PLAY ONLY WHEN THE AO RECORD S A FINDING THAT HE IS NOT SATISFIED WITH THE ASSESSEES METHOD. IN THE CASE I N HAND THE AO HAS NOT MADE ANY SUCH RECORDING OF SATISFACTION AND HAS ACCEPTED THE DISALLOWANCE MADE U/S 14A BY THE ASSESSEE. IN SUCH CIRCUMSTANCES IT IS NOT OPEN FOR THE LD. CIT TO COME TO A CONCLUSION THAT THE AO SHOULD HAVE INVOKED RULE 8D, WITHOUT HIMSELF RECORDING THE SATISFACTION THAT THE CALCULATION GIVEN BY THE ASSE SSEE IN ITS DISALLOWANCE MADE SUO MOTO U/S 14A IS NOT CORRECT. COMING TO THE OTHER EX PENSES CLAIMED, THE LD. CIT HAS SIMPLY COLLECTED INFORMATION AFTER RAISING QUERIES AND HAS NOT GIVEN ANY FINDING WHATSOEVER THAT THERE IS AN ERROR MADE BY THE AO OR THAT THE CIRCUMSTANCES WAS SUCH THAT WOULD REQUIRE AND WARRANT FURTHER INQUIRY OR INVESTIGATION. NO ERROR IN THE ASSESSMENT ORDER HAS BEEN POINTED OUT AND IT IS NOT STATED AS TO HOW PREJUDICE WAS CAUSED TO THE REVENUE. THE FINDING THAT THE AO HAD FAILED TO PROPERLY SCRUTINISE THE ABOVE ASPECTS DOES NOT GIVE POWERS TO THE LD. CIT T O REVISE THE ASSESSMENT U/S 263 OF THE ACT. MAKING ROWING ENQUIRIES IS NOT A FINDIN G OF AN ERROR. ASSESSMENTS CANNOT BE SET ASIDE FOR FRESH ENQUIRIES UNLESS A SPECIFIC ERROR IS POINTED OUT AT NOT MAKING PROPER ENQUIRY CANNOT BE EQUATED WITH NO ENQUIRY. I N VIEW OF THE ABOVE WE QUASH THE ORDER PASSED U/S 263 OF THE ACT AND ALLOW THE APPEA L OF THE ASSESSEE. 12. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED KEEPING IN MIND THE FOREGOING DETAILED DISCUSSION T HAT AN ASSESSMENT HAS TO BE BOTH ERRONEOUS AS WELL AS PREJUDICIAL IN INTERES T OF THE REVENUE SIMULTANEOUSLY BEFORE THE SAME IS SOUGHT TO BE REVI SED AND IT IS NOT PERMISSIBLE FOR THE CIT OR THE PCIT TO EXERCISE HIS REVISION JURISDICTION IN CASE THE ASSESSING OFFICER HAS TAKEN ONE OF THE POSSIBLE VIEW, WE PROCEED TO DEAL WITH THE RELEVANT FACTS OF THE CASE. IT HAS COME ON RECORD THAT THE ASSESSING OFFICER HAD ISSUED SEC. 133(6) LETTER / NOTICE TO T HE M/S SHCL DURING THE COURSE OF SCRUTINY WHICH STOOD ADEQUATELY REPLIED I N ASSESSEES FAVOUR. COUPLED WITH THIS, ALL THE RELEVANT FACTUAL DETAILS IN SUPPORT OF THE ASSESSEES SHARE PURCHASE DOCUMENT, CONTRACT NOTES, BANK STATE MENT, (SUPRA) ALREADY IN THE CASE RECORDS. COUPLED WITH THIS, LEARNED CIT-DR FAILS TO REBUT THE ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 23 CLINCHING FACT THAT ALTHOUGH THE PCITS DETAILED DI SCUSSION EXTRACTED IN THE PRECEDING PARAGRAPHS HAS SOUGHT TO MAKE OUT A CASE OF ARTIFICIAL PRICE RIGGING BETWEEN THE ASSESSEE, PROMOTERS ENTRY OPERATORS OF THE ENTITY IN LIGHT OF MINISTRY OF FINANCES LETTER DATED 24.07.2015 FIGUR ES, THERE IS NOT EVEN AN IOTA OF MATERIAL QUOTED AGAINST THE ASSESSEE TO HAVE BEE N ENGAGED IN ALL THE FOREGOING ARTIFICIAL PRICE RIGGING. WE ARE OBSERVIN G IN VIEW OF ALL THESE FACTS THAT THE ASSESSING OFFICER HAD RIGHTLY ACCEPTED THE ASSESSEES LTCG KEEPING IN MAKING THE OVERWHELMING EVIDENCE FORMING PART OF RECORDS. THIS TRIBUNALS CO-ORDINATE BENCH DECISION (SUPRA) AS WELL AS HON'B LE JURISDICTIONAL HIGH COURTS DECISIONS CIT VS. RATAN ITA NO.105/2016, M/S CLASSIC GROWERS LTD VS. CIT ITA 129/2012, CIT VS. LAKSHMARGARH ESTATE & TRADING CO. LTD. (2013) 40 TAXMAN 439 (CAL), CIT VS. SMT. SHREYASHI GANGULY ITA 196/2012, CIT VS. BHAGWATI PRASAD AGARWAL (2009/ TMI 34738/CAL IN 22/ 2009 29.04.2009 HAVE ACCEPTED GENUINENESS OF SIMILAR LTCG. SINCE THE ISS UE IS COVERED BY ALL THE FOREGOING DECISIONS OF HON'BLE JURISDICTIONAL HIGH COURT, WE OBSERVE THAT THE ASSESSING OFFICER HAD RIGHTLY TREATED THE ASSESSEE S FOREGOING LTCG DERIVED FROM SALE OF SHARES TO BE GENUINE. THAT BEING THE C ASE, WE HOLD THAT PCITS EXERCISE OF REVISION JURISDICTION MERELY ON SUSPICI OUS CIRCUMSTANCES BY INVOKING IN SEC. 263 EXPLANATION (SUPRA) WITH EFFEC T FROM 01.06.2015 IS NOT SUSTAINING. WE THEREFORE REVERSE THE PCITS ORDER U NDER CHALLENGE AND RESTORE THE IMPUGNED ASSESSMENT FRAMED BY THE ASSES SING OFFICER ON 29.07.2016. IT IS MADE CLEAR THAT WE HAVE DEALT WIT H AN INSTANCE OF ASSESSING OFFICER HIMSELF HAVING ACCEPTED ASSESSEES LTCG AFT ER EXAMINING ALL THE RELEVANT FACTS OF THE CASE. WE THEREFORE DO NOT DEE M IT APPROPRIATE TO RESTORE THE VERY ISSUE BACK TO HIM FOR YET ANOTHER ROUND OF ASSESSMENT. THE ASSESSES SOLE SUBSTANTIVE GRIEVANCE AS WELL AS THI S LEAD APPEAL ITA NO.01/KOL/2019 IS ACCEPTED THEREFORE. 9. SAME ORDER TO FOLLOW IN ALL REMAINING CASES ITA NO.02-05/KOL/2019 AND 13-15/KOL/2019 IN CASE OF SEVEN OTHER ASSESSEES SIN CE IT HAS COME ON RECORD THAT THEY HAD ALSO FILED ALL THE RELEVANT EVIDENCE IN SUPPORT OF THEIR RESPECTIVE ITA NOS.01-05 & 13-15/KOL/2019 A.Y. 201 4-15 TIKMANI, HUF VS. ITO WED-28(4) KOL. PAGE 24 LTCG DURING THE COURSE OF ASSESSMENT / WHICH STOOD ACCEPTED BY THE ASSESSING OFFICER. 10. ALL THESE EIGHT ASSESSEES AS MANY APPEALS ARE ALLOWED IN ABOVE TERMS. A COPY OF COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILES . ORDER PRONOUNCED IN THE OPEN COURT 20/ 09/2019 SD/- SD/- ( ) (( ) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP )- 20 / 09 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-M/S GITESH TIKMANI, HUF/GITESWH /GIRISH / M/S GIRISH HUF / MANISHA PUSPA DEVI / M/S G OPAL PRASAD HUF & GOPAL PRASAD ( ALL TIKMANI SERNAME ) 397, BLOCK-G, 3 RD FLOOR NEW ALIPORE, KOLKATA-700 053 2. /REVENUE-ITO WARD-28(4), AAYAKAR BHAWAN DAKSHIN, 2, GARIAHAT ROAD, (SOUTH) KOLKATA-700 068 3. 4 5 / CONCERNED CIT KOLKATA 4. 5- / CIT (A) KOLKATA 5. 8 ((4, 4, / DR, ITAT, KOLKATA 6. = / GUARD FILE. BY ORDER/ , /TRUE COPY/ 4,