Sh. Parminder Singh, Kapurthala V. The Asstt. Commissioner of Income-tax, Jalandhar

ITA 212/ASR/2012

• Counselvise Citation: 21220914 RSA 2012
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-11-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 22-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R L CHHANALIA
• Keywords: Difference of opinion; Prejudicial to interest; Change of opinion
• Section: 153A; 131; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A.NOS.210, 211, 212, 213, 214(ASR)/2012 ASSESSMENT YEARS: 2004-05, 2005-06, 2006-07, 2007-0 8 & 2008-09 PAN: ACMPS6748R SH. PARMINDER SINGH VS. ASSISTANT COMMISSIONER OF I NCOME-TAX, 35, GOPAL PARK, CENTRAL CIRCLE-1, JALANDHAR. JALANDHAR. (APPELLANT) (RESPONDENT) I.T.A.NOS.205,206,207,208, & 209(ASR)/2012 ASSESSMENT YEARS: 2004-05, 2005-06, 2006-07, 2007-0 8 & 2008-09 PAN: AABCK8901G M/S. KAPURTHALA ESTATE (P) LTD. VS. ASST COMMR. OF INCOME-TAX, 35, GOPAL PARK, CENTRAL CIRCLE-1, JALANDHAR. JALANDHAR. (APPELLANT) (RESPONDENT) I.T.A.NOS.202, 203 & 204(ASR)/2012 ASSESSMENT YEARS: 2006-07, 2007-08 & 2008-09 PAN: AAHFK8656K M/S. KAPURTHALA PROMOTORS & . VS. ASST COMMR. OF IN COME-TAX, DEVELOPERS (P) LTD. CENTRAL CIRCLE-1, JALANDHAR. 35, GOPAL PARK, JALANDHAR. (APPELLANT) (RESPONDENT) ITA NOS. 202 TO 214 2 APPELLANTS BY: SH. SURINDER MAHAJAN, CA RESPONDENT BY:SH. R.L.CHHANALIA, DR DATE OF HEARING:08/11/2012 DATE OF PRONOUNCEMENT:22/11/2012 ORDER PER BENCH ; THESE THIRTEEN APPEALS OF THREE DIFFERENT ASSESSEE S I.E. SH. PARMINDER SINGH, IN ITA NOS. 210 TO 214(ASR)/2012, M/S. KAPU RTHALA ESTATES (P) LTD; IN ITA NOS. 205 TO 209(ASR)/2012 AND M/S. KAPURTHAL A PROMOTERS & DEVELOPERS (P) LTD; IN ITA NOS. 202 TO 204(ASR)/20 12 FOR DIFFERENT ASSESSMENT YEARS ARE ARISING OUT OF DIFFERENT ORDE RS OF LD. C.I.T. (CENTRAL), LUDHIANA, PASSED UNDER SECTION 263 OF THE INCOME TA X ACT, 1961 ( IN SHORT, THE ACT) FOR DIFFERENT ASSESSMENT YEARS. THE DIFF ERENT ASSESSEES MENTIONED HEREINABOVE HAVE RAISED GROUNDS OF APPEALS IN DIFFE RENT YEARS AS UNDER: 1. NAME ASSTT. YEAR ITA NO. SH. PARMINDER SINGH 2004-05 210(ASR)/2012 -DO 2005-06 211(ASR)/2012 -DO- 2006-07 212(ASR)/2012 -DO- 2007-08 213(ASR)/2011 -DO- 2008-09 214(ASR)/2011 1. THAT ORDER U/S 263 OF THE ACT, PASSED BY LD. CI T(CENTRAL), IS ILLEGAL & WITHOUT JURISDICTION. ITA NOS. 202 TO 214 3 2. THAT LD. CIT HAS GROSSLY ERRED IN HOLDING THAT A SSESSMENT ORDER PASSED BY THE AO WAS ERRONEOUS AND PREJUDICIAL TO T HE INTEREST OF REVENUE. ACTION OF THE LD. CIT IN INVOKING THE P ROVISIONS OF SECTION 263 OF THE ACT IS ILLEGAL & BAD IN LAW. 3. (A) THAT THE LD. CIT HAS GROSSLY ERRED IN CONCLU DING THAT PROPERTY TRANSACTIONS MADE BY SH. JEETU KESHI BELON GS TO THE ASSESSEE. CONCLUSION DRAWN BY THE LD. CIT IS WITHOU T ANY MATERIAL ON RECORDS AND AS SUCH IS ILLEGAL AND BAD IN LAW. B) THAT CONCLUSION OF THE LD. CIT THAT PROPERTY TR ANSACTIONS MADE BY SH. JEETU KESHI BELONGS TO THE ASSESSEE IS ILLEGAL AND BAD IN LAW SINCE DURING ASSESSMENT PROCEEDINGS OF T HE ASSESSEE, SH. JEETU KESHI IN RESPONSE TO NOTICE U/S 131 OF TH E ACT APPEARED BEFORE THE AO AND IN HIS STATEMENT RECORDE D BY THE AO ADMITTED THAT ALL PROPERTY TRANSACTIONS BELONG T O HIM ONLY AND ASSESSEE HAS NOTHING TO DO WITH THE THOSE TRANS ACTIONS. C) THAT CONCLUSION OF THE LD. CIT THAT PROPERTY T RANSACTIONS MADE BY SH. JEETU KESHI BELONGS TO THE ASSESSEE IS ILLEGAL AND BAD IN LAW SINCE AO OF THE ASSESSEE (PERSON SEARCHE D) RECORDED HIS SATISFACTION AND FORWARDED THE DOCUMENTS TO AO OF SH. JEETU KESHI FOR FRAMING ASSESSMENT IN THE CASE OF S H. JEETU KESHI. D) THAT CONCLUSION OF THE LD. CIT THAT PROPERTY TR ANSACTIONS MADE BY SH. JEETU KESHI BELONGS TO THE ASSESSEE IS ILLEGAL AND BAD IN LAW SINCE FOR SAME TRANSACTIONS, PROVISIONS OF SECTION 263 HAVE BEEN INVOKED INN THE CASE OF M/S. KAPURTHA LA ESTATES (P) LTD. 4. THAT THE ORDER OF THE LD. CIT(CENTRAL) U/S 263 I S ARBITRARY, UNJUST, IS BASED ON ASSUMPTIONS & PRESUMPTIONS AND THAT NO ERROR EXISTED OR PREJUDICE WAS CAUSED TO REVENUE, T HEREFORE, THE ORDER OF THE CIT(CENTRAL) LUDHIANA PASSED U/S 263 D ESERVES TO BE QUASHED. 5. THAT LD. CIT HAS GROSSLY ERRED IN SETTING ASIDE THE ASSESSMENT FRAMED WITH THE DIRECTIONS TO MAKE FRESH ASSESSMENT DE-NOVO AFTER PROPERTY EXAMINING THE ISSUES. NON ISSUANCE O F SPECIFIC ITA NOS. 202 TO 214 4 DIRECTIONS FOR ASSESSMENT TO BE FRAMED CLEARLY PROV ES THAT IT IS A CASE OF ONLY CHANGE OF OPINION AND THE ASSESSMENT F RAMED IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST O F THE REVENUE. 6. THAT THE DIRECTIONS OF THE LD. CIT ARE CONTRARY TO PROVISIONS OF SECTION 263 OF THE ACT SINCE TRANSACTIONS POINTED O UT STOOD TAXED IN THE HANDS OF SH. JEETU KESHI AND SAME WERE SUBJECT MATTER OF APPEAL BEFORE CIT(A) JALANDHAR. 7. THAT THE DIRECTIONS OF THE LD. CIT ARE CONTRARY TO JUDGMENT OF JURISDICTIONAL PUNJAB & HARYANA HIGH COURT IN THE C ASE OF PARAMJEET SINGH VS. I.T.O. 323 ITR 588 WHEREIN IT H AS BEEN HELD THAT ONCE A DOCUMENT IS IN WRITING, NO ORAL EV IDENCE OR STATEMENT CAN BE USED TO CONSIDER IT AS INCORRECT. 8. THAT DIRECTIONS OF THE LD. CIT ARE CONTRARY TO T HE JUDGMENT OF HONBLE GUJRAT HIGH COURT & HONBLE MADRAS HIGH CO URT IN THE CASE OF CIT VS. SMT. MINALBEN S. PARIKH 215 ITR 81 (GUJ.) AND VENKATA KRISHNA RICE CO. VS. CIT 163 ITR 129 (M ADRAS) RESPECTIVELY, WHEREIN IT HAS BEEN HELD THAT ACTION U/S 263 WHICH RESULT IN DOUBLE TAXATION IS NOT PERMITTED UNDER TH E LAW. 9. THAT THE APPELLANT REQUESTS FOR LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD OR DIS POSED OFF. 2. NAME ASSTT. YEAR ITA NO. KAPURTHALA ESTATES (P) LTD; 2004-05 205(ASR)/20 12 -DO 2005-06 206(ASR)/2012 -DO- 2006-07 207(ASR)/2012 -DO- 2007-08 208(ASR)/2012 -DO- 2008-09 209(ASR)/2012 1. THAT ORDER U/S 263 OF THE ACT, PASSED BY LD. CI T(CENTRAL), IS ILLEGAL & WITHOUT JURISDICTION. 2. THAT LD. CIT HAS GROSSLY ERRED IN HOLDING THAT A SSESSMENT ORDER PASSED BY THE AO WAS ERRONEOUS AND PREJUDICIAL TO T HE INTEREST OF REVENUE. ACTION OF THE LD. CIT IN INVOKING THE P ROVISIONS OF SECTION 263 OF THE ACT IS ILLEGAL & BAD IN LAW. ITA NOS. 202 TO 214 5 3. (A) THAT THE LD. CIT HAS GROSSLY ERRED IN CONCLU DING THAT PROPERTY TRANSACTIONS MADE BY SH. JEETU KESHI BELON GS TO THE ASSESSEE. CONCLUSION DRAWN BY THE LD. CIT IS WITHOU T ANY MATERIAL ON RECORDS AND AS SUCH IS ILLEGAL AND BAD IN LAW. B) THAT CONCLUSION OF THE LD. CIT THAT PROPERTY TR ANSACTIONS MADE BY SH. JEETU KESHI BELONGS TO THE ASSESSEE IS ILLEGAL AND BAD IN LAW SINCE DURING ASSESSMENT PROCEEDINGS OF T HE ASSESSEE, SH. JEETU KESHI IN RESPONSE TO NOTICE U/S 131 OF TH E ACT APPEARED BEFORE THE AO AND IN HIS STATEMENT RECORDE D BY THE AO ADMITTED THAT ALL PROPERTY TRANSACTIONS BELONG T O HIM ONLY AND ASSESSEE HAS NOTHING TO DO WITH THE THOSE TRANS ACTIONS. C) THAT CONCLUSION OF THE LD. CIT THAT PROPERTY TR ANSACTIONS MADE BY SH. JEETU KESHI BELONGS TO THE ASSESSEE IS ILLEGAL AND BAD IN LAW SINCE AO OF THE ASSESSEE (PERSON SEARCHE D) RECORDED HIS SATISFACTION AND FORWARDED THE DOCUMENTS TO AO OF SH. JEETU KESHI FOR FRAMING ASSESSMENT IN THE CASE OF S H. JEETU KESHI. D) THAT CONCLUSION OF THE LD. CIT THAT PROPERTY TR ANSACTIONS MADE BY SH. JEETU KESHI BELONGS TO THE ASSESSEE IS ILLEGAL AND BAD IN LAW SINCE FOR SAME TRANSACTIONS, PROVISIONS OF SECTION 263 HAVE BEEN INVOKED INN THE CASE OF SH. PARMINDER SINGH. 4. THAT THE DIRECTIONS OF THE LD. CIT ARE CONTRARY TO PROVISIONS OF SECTION 263 OF THE ACT SINCE TRANSACTIONS POINTED O UT STOOD TAXED IN THE HANDS OF SH. JEETU KESHI AND SAME WERE SUBJECT MATTER OF APPEAL BEFORE CIT(A) JALANDHAR. 5. THAT THE DIRECTIONS OF THE LD. CIT ARE CONTRARY TO JUDGMENT OF JURISDICTIONAL PUNJAB & HARYANA HIGH COURT IN THE C ASE OF PARAMJEET SINGH VS. I.T.O. 323 ITR 588 WHEREIN IT H AS BEEN HELD THAT ONCE A DOCUMENT IS IN WRITING, NO ORAL EV IDENCE OR STATEMENT CAN BE USED TO CONSIDER IT AS INCORRECT. 6. THAT DIRECTIONS OF THE LD. CIT ARE CONTRARY TO T HE JUDGMENT OF HONBLE GUJRAT HIGH COURT & HONBLE MADRAS HIGH CO URT IN THE CASE OF CIT VS. SMT. MINALBEN S. PARIKH 215 ITR 81 (GUJ.) AND VENKATA KRISHNA RICE CO. VS. CIT 163 ITR 129 (M ADRAS) ITA NOS. 202 TO 214 6 RESPECTIVELY, WHEREIN IT HAS BEEN HELD THAT ACTION U/S 263 WHICH RESULT IN DOUBLE TAXATION IS NOT PERMITTED UNDER TH E LAW. 7. THAT LD. CIT HAS GROSSLY ERRED IN HOLDING THAT NO PROPER ENQUIRIES HAVE BEEN CONDUCTED BY A.O. WITH RESPECT TO INCREASE IN SUNDRY DEPOSITORS WHILE FRAMING ASSESSMENT U/S 1 43(3)/153A OF THE ACT. CONCLUSION DRAWN BY LD. CIT IS BAD IN L AW. 8. THAT LD. CIT HAS GROSSLY ERRED IN SETTING ASIDE THE ASSESSMENT FRAMED WITH THE DIRECTIONS TO MAKE FRESH ASSESSMENT DE-NOVO AFTER PROPERTY EXAMINING THE ISSUES. NON ISSUANCE O F SPECIFIC DIRECTIONS FOR ASSESSMENT TO BE FRAMED CLEARLY PROV ES THAT IT IS A CASE OF ONLY CHANGE OF OPINION AND THE ASSESSMENT F RAMED IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST O F THE REVENUE. 9. THAT THE ORDER OF THE LD. CIT(CENTRAL) U/S 263 I S ARBITRARY, UNJUST, IS BASED ON ASSUMPTIONS & PRESUMPTIONS AND THAT NO ERROR EXISTED OR PREJUDICE WAS CAUSED TO REVENUE, T HEREFORE, THE ORDER OF THE CIT(CENTRAL) LUDHIANA PASSED U/S 263 D ESERVES TO BE QUASHED. 10. THAT THE APPELLANT REQUESTS FOR LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD OR DIS POSED OFF. NAME ASSTT. YEAR ITA NO. 3. KAPURTHALA PROMOTORS & DEVELOPERS (P) LTD. 2006-07 202(ASR)/201 2 -DO- 2007-08 203(ASR)/2012 -DO- 2008-09 204(ASR)/2012 1. THAT ORDER U/S 263 OF THE ACT, PASSED BY LD. CI T(CENTRAL), IS ILLEGAL & WITHOUT JURISDICTION. 2. THAT LD. CIT HAS GROSSLY ERRED IN HOLDING THAT A SSESSMENT ORDER PASSED BY THE AO WAS ERRONEOUS AND PREJUDICIAL TO T HE INTEREST OF REVENUE. ACTION OF THE LD. CIT IN INVOKING THE P ROVISIONS OF SECTION 263 OF THE ACT IS ILLEGAL & BAD IN LAW. ITA NOS. 202 TO 214 7 3. (A) THAT THE LD. CIT HAS GROSSLY ERRED IN CONCL UDING THAT PROPERTY TRANSACTIONS MADE BY SH. MITHLESH KUMAR B ELONGS TO THE ASSESSEE. CONCLUSION DRAWN BY THE LD. CIT IS WI THOUT ANY MATERIAL ON RECORDS AND AS SUCH IS ILLEGAL AND BAD IN LAW. B) THAT CONCLUSION OF THE LD. CIT THAT PROPERTY TR ANSACTIONS MADE BY SH. MITHLESH KUMAR TO THE ASSESSEE COMPANY IS ILLEGAL AND BAD IN LAW SINCE DURING ASSESSMENT PROC EEDINGS OF THE ASSESSEE COMPANY SH. MITHLESH KUMAR IN RESPONSE TO NOTICE U/S 131 OF THE ACT APPEARED BEFORE THE AO AND IN HI S STATEMENT RECORDED BY THE AO ADMITTED THAT ALL PROPERTY TRANS ACTIONS BELONG TO HIM ONLY AND ASSESSEE HAS NOTHING TO DO W ITH THE THOSE TRANSACTIONS. C) THAT CONCLUSION OF THE LD. CIT THAT PROPERTY TR ANSACTIONS MADE BY SH. MITHLESH KUMAR BELONGS TO THE ASSESSEE IS ILLEGAL AND BAD IN LAW SINCE AO OF SH. PARMINDER SINGH, DIR ECTOR OF THE COMPANY (PERSON SEARCHED) RECORDED HIS SATISFACTIO N AND FORWARDED THE DOCUMENTS TO AO OF SH. MITHLESH KUMAR FOR FRAMING ASSESSMENT IN THE CASE OF SH. JEETU KESHI. D) THAT CONCLUSION OF THE LD. CIT THAT PROPERTY T RANSACTIONS MADE BY SH. MITHLESH KUMAR BELONGS TO THE ASSESSEE IS ILLEGAL AND BAD IN LAW SINCE FOR SAME TRANSACTIONS, PROVISI ONS OF SECTION 263 HAVE BEEN INVOKED INN THE CASE OF SH. P ARMINDER SINGH & M/S. KAPURTHALA ESTATES (P) LTD. 4. THAT THE DIRECTIONS OF THE LD. CIT ARE CONTRARY TO PROVISIONS OF SECTION 263 OF THE ACT SINCE TRANSACTIONS POINTED O UT STOOD TAXED IN THE HANDS OF SH. MITHLESH KUMAR AND SAME W ERE SUBJECT MATTER OF APPEAL BEFORE CIT(A) JALANDHAR. 5. THAT THE DIRECTIONS OF THE LD. CIT ARE CONTRARY TO JUDGMENT OF JURISDICTIONAL PUNJAB & HARYANA HIGH COURT IN THE C ASE OF PARAMJEET SINGH VS. I.T.O. 323 ITR 588 WHEREIN IT H AS BEEN HELD THAT ONCE A DOCUMENT IS IN WRITING, NO ORAL EV IDENCE OR STATEMENT CAN BE USED TO CONSIDER IT AS INCORRECT. 6. THAT DIRECTIONS OF THE LD. CIT ARE CONTRARY TO T HE JUDGMENT OF HONBLE GUJRAT HIGH COURT & HONBLE MADRAS HIGH CO URT IN ITA NOS. 202 TO 214 8 THE CASE OF CIT VS. SMT. MINALBEN S. PARIKH 215 ITR 81 (GUJ.) AND VENKATA KRISHNA RICE CO. VS. CIT 163 ITR 129 (M ADRAS) RESPECTIVELY, WHEREIN IT HAS BEEN HELD THAT ACTION U/S 263 WHICH RESULT IN DOUBLE TAXATION IS NOT PERMITTED UNDER TH E LAW. 7. THAT LD. CIT HAS GROSSLY ERRED IN HOLDING THAT NO PROPER ENQUIRIES HAVE BEEN CONDUCTED BY A.O. WITH RESPECT TO INCREASE IN SUNDRY DEPOSITORS WHILE FRAMING ASSESSMENT U/S 1 43(3)/153A OF THE ACT. CONCLUSION DRAWN BY LD. CIT IS BAD IN L AW. 8. THAT LD. CIT HAS GROSSLY ERRED IN SETTING ASIDE THE ASSESSMENT FRAMED WITH THE DIRECTIONS TO MAKE FRESH ASSESSMENT DE-NOVO AFTER PROPERTY EXAMINING THE ISSUES. NON ISSUANCE O F SPECIFIC DIRECTIONS FOR ASSESSMENT TO BE FRAMED CLEARLY PROV ES THAT IT IS A CASE OF ONLY CHANGE OF OPINION AND THE ASSESSMENT F RAMED IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST O F THE REVENUE. 9. THAT THE ORDER OF THE LD. CIT(CENTRAL) U/S 263 I S ARBITRARY, UNJUST, IS BASED ON ASSUMPTIONS & PRESUMPTIONS AND THAT NO ERROR EXISTED OR PREJUDICE WAS CAUSED TO REVENUE, T HEREFORE, THE ORDER OF THE CIT(CENTRAL) LUDHIANA PASSED U/S 263 D ESERVES TO BE QUASHED. 10. THAT THE APPELLANT REQUESTS FOR LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD OR DIS POSED OFF. 4. SINCE THE FACTS IN ALL THE ABOVE MENTIONED APPEA LS ARE IDENTICAL, WHICH ARE ARISING OUT OF THE ORDER OF THE LD. CIT(CENTRAL ), LUDHIANA, THEREFORE, FOR THE SAKE OF CONVENIENCE , ALL THE ABOVE MENTIONED A PPEALS ARE BEING DECIDED BY THIS CONSOLIDATED ORDER. 5. THE BRIEF FACTS AS ARISING FROM THE ORDERS OF TH E LD. CIT(CENTRAL) LUDHIANA AND ON THE BASIS OF RECORDS BEFORE US IN A LL THE APPEALS MENTIONED HEREINABOVE, ARE THAT SEARCH OPERATIONS WERE CARRIE D OUT AT THE RESIDENTIAL ITA NOS. 202 TO 214 9 PREMISES OF SH. PARMINDER SINGH AND SURVEY OPERATIO NS AT THE BUSINESS PREMISES OF M/S. KAPURTHALA ESTATES (P) LTD. AND M/ S. KAPURTHALA PROMOTORS & DEVELOPERS (P) LTD; ON 04.03.2008. ALL THE ASSESS EES FOR DIFFERENT YEARS HAVE FILED RETURNS OF INCOME FOR ALL THE ASSESSMENT YEARS MENTIONED HEREINABOVE AND ASSESSMENTS WERE COMPLETED. THE LD. CIT(CENTRAL), LUDHIANA, ISSUED SHOW CAUSE NOTICES IN ALL THE ABOV E MENTIONED CASES ASKING THE ASSESSEES WHY ASSESSMENT ORDER DATED 29. 12.2009 PASSED U/S 143(3)/153A SHOULD NOT BE REVISED/MODIFIED/ENHANCED OR SET ASIDE WITH THE DIRECTIONS TO MAKE THE ASSESSMENTS DENOVO. ON PERUS AL OF THE ORDERS OF THE LD. CIT(CENTRAL), THE FACTS AS STATED BY THE LD. CI T(CENTRAL) AND AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE AR E THAT IN ALL THE CASES, CASE OF THE LD. CIT IS THAT INVESTMENT HAS BEEN MADE IN VARIOUS IMMOVABLE PROPERTIES IN THE FORM OF LAND IN THE NAME OF JEETU KESHI & MITHLESH KUMAR WHO ARE MIGRANT LABOURERS AND WERE WORKING SIMPLY A S AN OFFICE BOY/PEON WITH M/S. KAPURTHALA ESTATES PVT. LTD. & M/S. KAURT HALA PROMOTRS & DEVELOPERS PVT. LTD. FOR IMMOVABLE PROPERTIES PURC HASED BY JEETU KESHI AND MITHLESH KUMAR DURING THE ASSESSMENT YEAR 2004- 05, 2005-06, 2006-07, 2007-08 & 2008-09, NOTICES U/S 263 WERE ISSUED TO A LL THE THREE ASSESSEES FOR SAME TRANSACTIONS AND ASSESSMENTS FOR ALL THE THREE ASSESSEES HAVE BEEN SET ASIDE. IN THE CASE OF KAPURTHALA ESTATES PVT. LTD; CASE OF LD. CIT IN ADDITION ITA NOS. 202 TO 214 10 TO ABOVE ISSUE IS THAT PROPER ENQUIRIES HAVE NOT BE EN CONDUCTED BY THE AO WITH RESPECT TO INCREASE IN SUNDRY CREDITORS & PROV ISIONS AND ADVANCES AGAINST PLOTS/DEPOSITORS. IN THE CASE OF KAPURTHALA PROMOTRS & DEVELOPERS PVT. LTD. CASE OF LD. CIT IN ADDITION TO ABOVE ISSU E IS THAT PROPER ENQUIRIES HAVE NOT BEEN CONDUCTED BY THE AO WITH RESPECT TO I NCREASE IN SUNDRY CREDITORS & PROVISIONS AND ADVANCES AGAINST PLOTS/D EPOSITORS. VARIOUS SUBMISSIONS WERE MADE BEFORE LD. CIT WHICH DID NOT FIND FAVOUR AND ASSESSMENTS IN ALL THE CASES HAVE BEEN SET ASIDE WI TH THE DIRECTIONS TO MAKE FRESH ASSESSMENT DE-NOVO AFTER PROPERLY EXAMINING T HE ISSUES AND CONDUCTING PROPER ENQUIRY AND AFTER AFFORDING AN OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THE CASE OF SH. PARMINDER SINGH IN ORDERS PASSED U/S 263 OF THE ACT; THE LD. CIT HAS HELD: A.Y. 2004-05 & 2005-06 : ORDER IS ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE ON THE GROUND OF PROPERTY TRANS ACTIONS MADE BY ASSESSEE IN THE NAME OF SH. JEETU KESHI AS PER DETA ILED REASONS DISCUSSED IN ORDERS DATED 26.03.2012 MADE U/S 263 O F THE ACT FOR A.Y. 2004-05 TO 2008-09 IN THE CASE OF KAPURTHALA E STATES PVT. LTD; AND ORDER U/S 263 OF THE ACT FOR A.Y. 2008-09 IN TH E CASE OF ASSESSEE. A.Y. 2006-07: ORDER IS ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE ON THE GROUND OF PROPERTY TRANSACTIONS MADE BY ASSESSEE IN ITA NOS. 202 TO 214 11 THE NAME OF SH. MITHLESH KUMAR AS PER DETAILED REAS ONS DISCUSSED IN ORDERS DATED 26.03.2012 MADE U/S 263 OF THE ACT FO R A.Y. 2006-07 TO 2008-09 IN THE CASE OF KAPURTHALA ESTATES PVT. LTD; AND ORDER U/S 263 OF THE ACT FOR A.Y. 2008-09 IN THE CASE OF ASSESSEE . A.Y. 2007-08 : ORDER IS ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE ON THE GROUND OF PROPERTY TRANSACTIONS MADE BY ASSESSEE IN THE NAME OF SH. JEETU KESHI & SH. MITHLESH KUMAR AS PER DETAILED REASONS DISCUSSED IN ORDERS DATED 26.03.2012 MADE U /S 263 OF THE ACT FOR A.Y. 2007-08 & 2008-09 IN THE CASE OF KAPURTHAL A ESTATES PVT. LTD; AND ORDER U/S 263 OF THE ACT FOR A.Y. 2008-09 IN THE CASE OF ASSESSEE. A.Y. 2008-09: ORDER IS ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE ON THE GROUND OF PROPERTY TRANSACTIONS MADE BY ASSESSEE IN THE NAME OF SH. MITHLESH KUMAR AS PER DETAILED REAS ONS DISCUSSED IN ORDERS DATED 26.03.2012 MADE U/S 263 OF THE ACT FO R A.Y. 2008-09 TO 2008-09 IN THE CASE OF KAPURTHALA ESTATES PVT. LTD; AND ORDER DATED 27.03.2012 FOR A.Y. 2008-09 IN THE CASE OF M/S. KAP URTHALA PROMOTERS & DEVELOPERS (P) LTD. 5.1. IN THE CASE OF M/S. KAPURTHALA ESTATES PVT. LT D IN ORDERS PASSED U/S 263 OF THE ACT, THE LD. CIT HAS HELD: ITA NOS. 202 TO 214 12 A.Y. 2004-05, 2005-06 & 2006-07: ORDER IS ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE AS PER DETAILED REASONS DISC USSED IN ORDERS DATED 26.03.2012 MADE U/S 263 OF THE ACT FOR A.Y. 2007-08 & 2008-09 IN THE CASE OF ASSESSEES OWN CASE. A.Y. 2007-08 : ORDER IS ERRONEOUS AND PREJUDICIAL TO INTEREST O F REVENUE AS PER DETAILED REASONS DISCUSSED IN ORDERS DATED 26.03.2012 MADE U/S 263 OF THE ACT FOR A.Y. 2008-09 IN THE CAS E OF ASSESSEES OWN CASE. A.Y.2008-09: LD. CIT HAS HELD ASSESSMENT ORDER TO BE ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE AS PER PARA 10 T O 53 PAGE 11 TO 36 OF THE ORDER. 5. 2. IN THE CASE OF M/S. KAPURTHALA PROMOTERS & DEVEL OPERS PVT. LTD IN ORDERS PASSED U/S 263 OF THE ACT, LD. CIT HAS HELD: A.Y. 2006-07 : ORDER IS ERRONEOUS AND PREJUDICIAL TO INTEREST O F REVENUE AS PER DETAILED REASONS DISCUSSED IN ORDERS DATED 26.03.2012 MADE U/S 263 OF THE ACT FOR A.Y. 2007-08 & 2008-09 IN THE CASE OF ASSESSEES OWN CASE AND ORDER U/S 263 OF THE ACT DAT ED 26.03.2012 IN THE CASE OF KAPURTHALA ESTATES PVT. LTD. FOR A.Y. 2 006-07 TO 2008-09. A.Y.2007-08 : ORDER IS ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE AS PER DETAILED REASONS DISCUSSED IN ORDERS DATED 2 7.03.2012 MADE U/S ITA NOS. 202 TO 214 13 263 OF THE ACT FOR 2008-09 IN THE CASE OF ASSESSEE S OWN CASE AND ORDER U/S 263 OF THE ACT DATED 26.03.2012 IN THE CA SE OF KAPURTHALA ESTATES PVT. LTD. FOR AY 2007-08 & 2008-09. A.Y. 2008-09: ORDER IS ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE AS PER DETAILED REASONS DISCUSSED IN ORDERS U/S 263 OF THE ACT DATED 26.03.2012 IN THE CASE OF KAPURTHALA ESTATES PVT. LTD. FOR AY 2008-09. 6. IT APPEARS THAT ALL THE ORDERS PASSED U/S 263 OF THE ACT ARE BASED ON ORDERS U/S 263 PASSED BY THE LD. CIT, DATED 26.03. 2012 IN THE CASE OF M/S. KAPURTHALA ESTATES PVT. LTD. FOR THE ASSESSMENT YEA R 2008-09 AND AS PER DETAILED DISCUSSIONS OF THE LD. CIT IN THE SAID ORD ER IN THE RELEVANT PARAS WHO HAS STATED THAT SH. PARMINDER SINGH IN HIS STA TEMENT RECORDED U/S. 132(4) OF THE ACT ON 04.03.2008 HAS ADMITTED THAT S H. JEETU KESHI & MITHLESH KUMAR WERE EMPLOYEES OF M/S. KAPURTHALA ES TATES PVT. LTD, & M/S. KAPURTHALA PROMOTERS & DEVELOPERS PVT. LTD, ( PARA 10, PAGE 11 OF ORDER) DOCUMENTS COLLECTED BY THE ASSESSING OFFICER FROM THE OFFICE OF SUB- REGISTRAR/TEHSILDAR IT IS FOUND THAT VARIOUS PROPER TY TRANSACTION HAVE BEEN CONDUCTED BY JEETU KESHI & MITHLESH KUMAR. ASSESSM ENT ORDER IS CONSIDERED TO BE ERRONEOUS AND PREJUDICIAL TO THE I NTEREST OF REVENUE SINCE NO ITA NOS. 202 TO 214 14 ADDITION ON ACCOUNT OF INCOME INCLUDING INVESTMENTS FOR PROPERTY TRANSACTION OF JEETU KESHI & MITHILESH KUMAR HAVE B EEN MADE. ( PARA 11, PAGE 12 OF THE ORDER ). PARMINDER SINGH IN HIS STA TEMENT HAS ADMITTED THAT REGISTRATION DEEDS HAVE BEEN GOT DONE BY JEETU KESH I & MITHILESH KUMAR ON BEHALF OF M/S. KAPURTHALA ESTATE PVT. LTD, & M/S. K APURTHALA PROMOTERS & DEVELOPERS PVT. LTD, ( PARA 12, PAGE 13 OF ORDER). SUBMISSION OF THE ASSESSEE THAT ASSESSEE RETRACTED FROM THE STATEMENT VIDE HIS LETTER DATED 10.10.2008 IS NOT TENABLE. (PARE 13, PAGE 14 & 15 OF ORDERS). CONTENTION OF THE ASSESSEE BEFORE ASSESSING OFFICER THAT JEETU KE SHI & MITHILESH KUMAR WERE NEVER EMPLOYEES OF THE COMPANIES. SINCE THEIR NAME NEITHER APPEAR IN THE ATTENDANCE REGISTER OF THE ASSESSEE COMPANIES N OR ANY SALARIES HAVE BEEN PAID TO THEM AS PER BOOKS OF ACCOUNTS, IS NOT TENAB LE SINCE BOOKS OF ACCOUNTS WERE NOT AVAILABLE AT THE TIME OF SEARCH. ( PARA 1 4 TO 16, PAGE 15 & 16 OF ORDER). PROPERTY TRANSACTION CARRIED OUT BY JEETU KESHI & MITHILESH KUMAR ON BEHALF OF M/S. KAPURTHALA ESTATE PVT. LTD. & M/S . KAPURTHALA PROMOTERS & DEVELOPERS PVT. LTD. ARE DULY RECORDED IN BOOKS O F ACCOUNTS BUT PROPERTY TRANSACTION CARRIED OUT BY THEM IN THEIR INDIVIDUAL NAME HAVE NOT BEEN RECORDED BY THE ASSESSEE ( PARA 17, PAGE 16 TO 18 O F ORDER). JEETU KESHI & MITHILESH KUMAR IN THEIR STATEMENTS RECORDED BY THE ASSESSING OFFICER U/S. 131 OF THE ACT THAT THEY ARE DOING PROPERTY TRANSAC TIONS ON THEIR OWN BEHALF. ITA NOS. 202 TO 214 15 MERE ADMISSION MADE BY THEM IGNORING THEIR CAPACITY IS NOT SUFFICIENT. (PARA 18, PAGE 18 OF ORDER). ASSESSING OFFICER HAS NOT EXAMINED WHETHER NEPALI RESIDENT CAN CONDUCT PROPERTY BUSINESS IN IN DIA OR NOT. ( PARA 19, PAGE 18 OF ORDER). OBJECTION OF THE ASSESSEE TO TH E STATEMENT OF JEETU KESHI HAVE NO FORCE IN VIEW OF ADMISSION OF PARMINDER SIN GH. ( PARA 21, PAGE 19 & 20 OF THE ORDER ). ASSESSING OFFICER OF THESE ASS ESSEE CONVEYED INFORMATION OF SUCH TRANSACTION TO THE ASSESSING OF FICER OF JEETU KESHI & MITHLESH KUMAR WHO HAS MADE THE ASSESSMENT IN THEIR HANDS. APPEALS FILED BY JEETU KESHI & MITHILESH KUMAR HAVE SINCE BEEN D ECIDED BY LEARNED. CIT(A) AND ASSESSEE ARE IN APPEAL BEFORE HONOURABLE I.T.A.T. BUT FACT REMAINS THAT THESE PERSONS ARE MIGRANT LABORERS. ( PARA 22, PAGE 20 OF THE ORDER) SUBMISSION OF THE ASSESSEE THAT NO ORAL EVID ENCE IS ADMISSIBLE ONCE THE DOCUMENTS CONTAINS ALL THE TERMS & CONDITIONS A ND RELIANCE OF DECISION OF HONORABLE PUNJAB & HARYANA HIGH COURT IN THE CAS E OF PARMINDER SINGH VS. INCOME-TAX OFFICE 323 ITR 588 ARE REJECTED SINC E FACTS OF THE CASE ARE NOT APPLICABLE TO ASSESSEES CASE ( PARA 24, PAGE 2 1 OF THE ORDER). ASSESSEE CANNOT ESCAPE FROM RESPONSIBILITY OF EXPLAINING THE PROPERTY TRANSACTION B Y THESE TWO PERSONS SINCE THESE DOCUMENTS HAVE NOT FO UND AND SEIZED FROM ASSESSEE RESIDENCE BUSINESS PREMISES. ( PARA 25, P AGE 21 & 22 OF THE ORDER). ASSESSMENT. IN THE CASE OF JEETU KESHI & MITHLESH KUMAR HAVE BEEN MADE ITA NOS. 202 TO 214 16 WITHOUT ANY KIND OF COOPERATION FROM THESE PERSONS. ( PARA 26 TO 28, PAGE 23 & 24 OF ORDER) CONTENTION FROM THESE PERSONS ( PAR A 26 TO 28 PAGE 23 & 24 OF THE ORDER). CONTENTION OF THE ASSESSEE THAT ASS ESSEE CAN NOT BE HELD RESPONSIBLE FOR PROPERTY TRANSACTION OF JEETU KESHI & MITHILESH KUMAR SINCE THEIR STATEMENT WERE RECORDED IN RESPONSE TO SUMMON S U/S. 131 OF THE ACT, THEY FILED THEIR INCOME TAX RETURNS OF WHICH ASSESS MENT STOOD COMPLETED WHEREIN ALL TRANSACTIONS OR PROPERTY HAVE BEEN CONS IDERED IS NOT TENABLE, SINCE GRAVE PREJUDICE HAS BEEN CAUSED TO THE DEPART MENT BY NOT MAKING ADDITION IN THE HANDS OF ASSESSEE & ITS COMPANIES. (PARA 29, PAGE 24 OF THE ORDER). SUBMISSION OF THE ASSESSEE THAT PROCEEDINGS U/S. 263 OF THE ACT CANNOT BE INITIATED SINCE ASSESSMENTS FRAMED IN THE CASE OF JEETU KESHI & MITHLESH KUMAR STOOD MERGED WITH THE ORDER OF CIT ( A) SINCE ALL PROPERTY TRANSACTED BY THEM HAD BEEN SUBJECT MATTER OF APPEA L BEFORE CIT(A) ALSO THERE SHOULD NOT BE DOUBLE TAXATION OF THE INCOME C ANNOT BE ACCEPTED. ( PARA 30 PAGE 24 & 25 OF THE ORDER ). ASSESSING OFFICER HAS NOT PROPERLY APPLIED HIS MIND. ( PARA 31, PAGE 25 OF THE ORDER ). IN PA RA 32 TO 34, LD. CIT HAS DISCUSSED ENQUIRIES TO BE CONDUCTED REGARDING THE T RUTH AND GENUINENESS OF DEPOSITS AND LOAN. ( PAGE 25 TO 28, OF THE ORDER ). IN PARA 35, LTD. CIT HAS RELIED UPON VARIOUS CASE LAWS. ( PAGE 28 TO 31, OF THE ORDER). SUBMISSION OF THE ASSESSEE THAT DURING ASSESSMENT PROCEEDINGS COP IES OF ACCOUNTS OF ITA NOS. 202 TO 214 17 CREDITORS/DEPOSITORS & CONFIRMATION IN RESPECT OF F EW CASES OF CREDITORS AND DEPOSITORS WERE FILED AS PER QUESTIONER/QUERIES RAI SED WHICH IMPLIES THAT ASSESSING OFFICER HAS APPLIED HIS MIND AND AS SUCH PROVISION OF SECTION 263 OF THE ACT CANNOT BE INVOKED. IT WAS FURTHER STATE D THAT ITEMS OF REGULAR ASSESSMENT CANNOT BE ADDED BACK IN PROCEEDINGS U/S. 153A WHEN NO INCRIMINATING DOCUMENTS WERE FOUND DURING SEARCH. ASSESSEE FURTHER SUBMITTED THAT PROCEEDINGS U/S. 263 OF THE ACT CANN OT BE INITIATED ON ACCOUNT OF INADEQUATE ENQUIRIES. THESE SUBMISSIONS ARE NOT ACCEPTABLE ( PARA 36 TO 49, PAGE 31 TO 36 OF THE ORDER ). PROCEEDING U/S.2 63 HAVE BEEN INTIATED IN THE CASE OF M/S. KAPURTHALA ESTATES (P) LTD., M/S. KAPU RTHALA PROMOTERS & DEVELOPERS (P) LTD ON THE ISSUE OF PROPERTY TRANSAC TIONS DONE BY SH. JEETU KESHI & MITHLESH KUMAR IN DIFFERENT YEARS. PROCEED INGS U/S. 263 HAVE ALSO BEEN INITIATED IN THE CASE OF SH. PARMINDER SINGH S EPARATELY ON THE SIMILAR ISSUE SINCE ASSESSING OFFICER HAS NOT EXAMINED WHET HER PARMINDER SINGH HAS MADE SOME INVESTMENT ON HIS OWN IN SUCH PROPERT Y. ( PARA 50 TO 52 PAGE 36 OF THE ORDER ). 7. THE LD. COUNSEL FOR THE ASSESSEE ARGUED AND SUBM ITTED IN WRITTEN SUBMISSIONS PLACED BEFORE THIS BENCH, WHICH FOR THE SAKE OF CLARITY ARE REPRODUCED AS UNDER: 1. DETAILED SUBMISSION HAVE BEEN MADE VIDE LETTER DATED 28.02.2012, 16.03.2012 AND LETTER DATED 21.03.2012 PAGE 1 TO 13 , PAGE NO. 155 ITA NOS. 202 TO 214 18 TO 179 & PAGE NO. 306 TO 313 RESPECTABLY OF PAPER B OOK IN THE CASE OF SH. PARMINDER SINGH. 2. THAT LEARNED ACIT DURING ASSESSMENT PROCEEDINGS ISS UED NOTICE DATED 08.12.2009 ENCLOSED AT PAGE NO. 191 TO 193 OF PAPER BOOK WHEREIN HE RAISED VARIOUS QUERIES ON THE DOCUMENTS OF PROPERTY TRANSACTION OF JEETU KESHI & MITHLESH KUMAR COLLECT ED FROM TEHSILDAR & SUB-REGISTRAR AND ASSESSEE FILED DETAIL ED REPLY VIDE LETTER DATED DEC. 17, 2009 ( ENCLOSED AT PAGE NO. 1 94 TO 230 OF THE PAPER BOOKS). ASSESSEE VIDE LETTER DATED 19.02.2009 FILED AFFIDAVIT OF JEETU KESHI & MITHLESH KUMAR CONFIRMING THAT TRA NSACTIONS MADE BY THEM ARE THEIR OWN ACCOUNT, ENCLOSED AT PAG E 231 TO 236 OF THE PAPER BOOK. DURING ASSESSMENT PROCEEDINGS E ACH AND EVERY PAPER WAS EXPLAINED ( PAGE NO. 39 TO 81 OF PAPER BO OK). 3. COPY OF ASSESSMENT ORER IN CASE OF JEETU KESHI & MI THLESH KUMAR ARE ENCLOSED AT PAGE 237 TO 261 OF THE PAPER BOOK) 4. THAT COPY OF LETTER OF ACIT ADDRESSED TO INCOME TAX OFFICER KAPURTHALA FOR MAKING ASSESSMENT IN THE CASE OF JEE TU KESHI & MITHLESH KUMAR ARE ENCLOSED AT PAGE 262 TO 265 OF T HE PAPER BOOK. 5. COPY OF SATISFACTION NOTE BY INCOME TAX OFFICER KAP URTHALA IN THE CASE OF JEETU KESHI AND MITHLESH KUMAR ENCLOSED AT PAGE NO. 266 TO 272 OF THE PAPER BOOK. 6. THAT COPIES OF VARIOUS NOTICES ISSUED TO JEETU KESH I & MITHLESH KUMAR ENCLOSED AT PAGE 273 TO 285 OF THE PAPER BOOK . 7. TRANSACTIONS CARRIED OUT BY JEETU KESHI & MITHLESH KUMAR EXPLAINED AT PAGE NO. 286 TO 305 OF THE PAPER BOOK. 8. THAT TO INVOKE PROVISIONS OF SECTION 263 OF THE ACT ORDER OF THE LEARNED. ASSESSING OFFICER SHOULD BE ERRONEOUS AS W ELL AS PREJUDICIAL TO THE INTEREST OF REVENUE. BOTH THE C ONDITIONS MUST CO- EXIST. RELIANCE IS BEING PLACED ON : ITA NOS. 202 TO 214 19 A) MALABAR INDUSTRIAL CO. LTD. VS. COMMISSIONER OF INCOME-TAX 243 ITR 83 (SUPREME COURT.) B) ST. DALJIEET KAUR VS COMMISSIONER OF INCOME-TAX 184 ITR 149 (GAU). C) COMMISSIONER OF INCOME-TAX VS. GEORGE WILLIAMSON (ASSAM) LTD 250 ITR 747 (GUJ) D) COMMISSIONER OF INCOME-TAX VS. GABRIEL INDIA LTD.203 ITR 108 (BOM). 9. THAT WORDS ERRONEOUS AND PREJUDICIAL TO THE INTERES T OF REVENUE HAVE NOT BEEN DEFINED IN THE LAW. AN ORDER CANNOT BE TERMED AS ERRONEOUS UNLESS IT IS NOT IN ACCORDANCE WITH LAW. IF AN INCOME-TAX OFFICER ACTING IN ACCORDANCE WITH LAW MAKE CERTAIN ASSESSMENT, THE SAME CANNOT BE BRANDED AS ERRONEOUS SIMPLY BECAUSE, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY. CASE MA Y BE VISUALIZED WHERE THE INCOME-TAX OFFICER WHILE MAKIN G AN ASSESSMENT EXAMINES THE ACCOUNTS MAKES ENQUIRIES, A PPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINES THE INCOME EITHER BY ACCEPTING THE ACCOUNTS OR BY MAKIN G SOME ESTIMATES HIMSELF. ON PERUSAL OF THE RECORDS ONE M AY BE OF THE OPINION THAT THE ESTIMATE MADE BY THE OFFICER CONCE RNED WAS ON THE LOWER SIDE AND LEFT TO THE COMMISSIONER HE WOULD HA VE ESTIMATED THE INCOME AT A HIGH FIGURER THAN THE ONE DETERMINE D BY THE INCOME HIMSELF AT THE HIGHER FIGURES. THIS IS BECAUSE THE INCOME-TAX OFFICER HAS EXERCISED THE QUASI-JUDICIAL POWER VEST ED IN HIM IN ACCORDANCE WITH LAW AND ARRIVED AT A CONCLUSION AND SUCH A CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS. IT MA Y BE SAID IN SUCH A CASE THAT THE ORDER IN QUESTION IS PREJUDICI AL TO THE INTEREST OF THE REVENUE. RELIANCE IS BEING PLACED. ON. A) COMMISSIONER OF INCOME-TAX VS. GHABRIAL INDIA LTD. 203 ITR 108 (BOM.) ITA NOS. 202 TO 214 20 B) MALABAR INDUSTRIAL CO. LTD, VS. COMMISSIONER OF INCOME-TAX 243 ITR 83 (SUPREME COURT). 10. THAT ORDER PASSED BY THE ASSESSING OFFICER AFTE R ENQUIRING ON ALL THE MATTERS CANNOT BE HELD TO BE ERRONEOUS BECA USE EVERY LOSS OF REVENUE S A CONSEQUENCE OF AN ORDER OF A.O. CANNOT BE TREATED AS PREJUDICE TO THE INTEREST OF REVENUE. FOR THIS PROPOSITION RELIANCE IS BEING PLACED ON : A. COMMISSIONER OF INCOME-TAX VS. ARVIND JEWELLERS HIGH COURT OF GUJRAT (2002) 177 CTR (GUJ) 546 : (20 03) 259 ITR 502 ( GUJ) (2002) 124 TAXMAN 615. B. COMMISSIONER OF INCOME TAX VS. SUNBEAM AUTO LTD. HIGH COURT OF DELHI (2009) 227 CTR (DEL) 133 : (201 1) 332 ITR 167 : (2010) 189 TAXMAN 436 : (2009) 31 DTR 1 C. COMMISSIONER OF INCOME TAX VS. VINOD KUMAR GUPTA HIGH COURT OF PUNJAB & HARYANA (2007) 165 TAXMAN 225 (P&H) D. COMMISSIONER OF INCOME TAX VS. DESIGN & AUTOMATION ENGINEERS ( BOMBAY) (P) LTD. HIGH COURT OF BOMBAY (2008) 13 DTR (BOM) 145 : (2010) 32 3 ITR 632 : ( 2009) 177 TAXMAN. E. COMMISSIONER OF INCOME TAX VS. MUNJAL CASTING HIGH COURT OF PUNJAB & HARYANA (2008) 2 DTR (P&H) 2 0 : (2008) 303 ITR 23 : (2008) 168 TAXMAN 241. F. COMMISSIONER OF INCOME TAX VS. MAX INDIA LTD. SUPREME COURT OF INDIA (2007) 213 CTR (SUPREME COUR T) 266 : (2007) 295 ITR 282 (SUPREME COURT): (2008) 16 6 TAXMAN 188 (SC). G. RANKA JEWELLERS VS. ADDITIONAL COMMISSIONER OF INCOME TAX HIGH COURT OF BOMBAY (2011) 238 CTR (BOM) 153 : (2010) 328 IR 148 : (2010) 190 TAXMAN 2 65 : (2010) 38 DTR 29 ITA NOS. 202 TO 214 21 H. COMMISSIONER OF INCOME TAX VS. MAHENDRA KUMAR BANSAL HIGH COURT OF ALLAHABAD (2008) 214 CTR (ALL) 349 : (2008) 297 ITR 99 (ALL) THIS WILL MEET CASE OF THE LD. CIT REFERRED IN PARA 8(A), 8(B),8(F), 8 (O) & 8(Q) 11 THAT THE ASSESSEE, VIDE AFORESAID LETTERS, FURTH ER EXPLAINED THAT PROVISION OF SECTION 263 OF THE ACT ARE NOT ATTRACT ED SINCE ISSUES RAISED IN THE NOTICE U/S. 263 OF THE ACT WERE SUBJECT MATT ER OF APPEAL BEFORE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [LD. CIT (A) ] AND ON THE BASIS OF DOCTRINE OF MERGER, ORDER PASSED BY THE AO MERGED WITH ORDER OF LD. CIT(A) WHICH IS NOT AMENABLE U/S 263 OF THE ACT IN VIEW OF PROVISIONS OF SECTION 263(1)(C). FOR THIS PROPOSITION, RELIANCE IS BEING PLACED ON : A) PUNJAB STATE CIVIL SUPPLIES CORPORATION LTD. VS. CIT, (1993) 200 ITR 536 (P&H) (FB). B) CIT VS. SHRI ARBUDA MILLS LTD (1998) 231 ITR 50 (SC ) C) CIT VS. JAYAKUMAR B. PATH (1999) 236 ITR 469 (SC) D) RANKA JEWELLERS VS. ADDL. CIT & ANR. (2010) 328 ITR 148 (BOM.) E) CIT VS. SHALIMAR HOUSING AND FINANCE LTD. (2009) 32 0 ITR 157 (MP) THIS WILL MEET CASE OF THE LD. CIT REFERRED IN PARA 8(E), 8(F), 89K), 8(M) & 8(P).. 12. THAT IT AGAIN IS AN ESTABLISHED LAW THAT ACTION U/S 263 OF THE ACT, WHICH RESULTS IN DOUBLE TAXATION IS NOT PERMITTED U NDER THE LAW: RELIANCE IS BEING PLACED ON: A. COMMISSIONER OF INCOME TAX VS. SMT. MINALBEN S. PAR IKH HIGH COURT OF GUJARAT (1995) 215 ITR 81 (GUJ.) B. VENKATA KRISHNA RICE CO. VS. CIT (19870 163 ITR 129 (MAD.) 13. THAT IT IS SUBMITTED THAT STATEMENT OF PARMINDE R SINGH RECORDED U/S 132(40 ON 04.03.2008 HAS BEEN RETRACTED BY HIM AND SAME HAD BEEN SUBJECT MATTER OF APPEAL FOR THE ASSESSMENT Y EAR 2008-09. COPY OF APPEAL ORDER ENCLOSED AT PAGE 108 TO 154 OF THE PAPER BOOK. NO INTERFERENCE CAN BE DRAWN FROM THE STATEMENT OF THE ASSESSEE SINCE SAME HAS BEEN RETRACTED AND ALSO SAME WAS SUBJECT M ATTER OF APPEAL BEFORE CIT(A). THIS WILL MEET CASE OF THE CIT REFER RED TO IN PARA 8(D), 8(I). ITA NOS. 202 TO 214 22 14. THAT NO ADVERSE INFERENCE CAN BE DRAWN IN THE C ASE OF ASSESSEE BECAUSE: SALES AFFECTED BY JEETU KESHI & MUKESH KUMAR ON BEHALF OF M/S. KAPURTHALA ESTATES (P) LTD. & M/S. K APURTHALA PROMOTERS & DEVELOPERS (P) LTD. HAVE BEEN DULY RECO RDED IN THE BOOKS OF ACCOUNTS OF M/S. KAPURTHALA ESTATES (P ) LTD. & M/S. KAPURTHALA PROMOTERS & DEVELOPERS PVT. LTD. DIRECT SALES AND PURCHASES MADE BY JEETU KESHI & MI THLESH KUMAR CANNOT BE HELD AS TRANSACTIONS OF ASSESSEE SI NCE THE SAME ARE EVIDENCED BY WRITTEN REGISTERED SALE DEEDS. YOU R HONOURS ATTENTION IS INVITED TO JUDGMENT OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF PARAMJIT SINGH VS. ITO (2 010) 323 ITR 588. THIS WILL MEET CASE OF LD. CIT REFERRED TO IN PARA 8(C), 8(I) 15. THAT IT IS AN ESTABLISHED LAW THAT CIT HAD TO COME TO A FIRM THAT THE ORDER OF ITO WAS ERRONEOUS AND PREJUDICIAL TO T HE INTEREST OF REVENUE. HERE IN THIS CASE FOR SAME PROPERTY TRANSA CTIONS OF JEETU KESHI & MITHLESH KUMAR PROVISIONS OF SECTION 263 OF THE ACT HAVE BEEN INVOKED IN THE CASE OF PARMINDER SINGH, KAPURT HALA ESTATES PVT. LTD & KAPURTHALA PROMOTERS & DEVELOPERS PVT. LTD. L D. CIT HAS NOT CONCLUDED IN WHOSE HANDS TRANSACTIONS ARE TO BE TAX ED AND WHICH TRANSACTIONS ARE TO BE TAXED. SIMILAR IS POSITION A BOUT SUNDRY CREDITORS, DEPOSITORS, ADVANCES AGAINST PLOTS SINCE LD. CIT HA S NOT POINTED OUT WHAT ERRORS HAVE BEEN COMMITTED. INFORMATION ASKED FOR DURING ASSESSMENT PROCEEDINGS HAS BEEN PROVIDED & EXAMINE D BY ASSESSING OFFICER. NO DECISION ABOUT THE ERRONEOUS NATURE OF THE ORDER HAS BEEN TAKEN BY CIT WHICH IS NOT PERMITTED UNDER THE LAW. RELIANCE IS BEING PLACED ON: A) CIT VS. KANDA RICE MILLS 178 ITR 446 (P&H) B) CIT VS. UNIQUE AUTO BELTS (P) LTD; 30 DTR 231 (P&H) THIS WILL MEET CASE OF THE CIT REFERRED TO IN PARA 8(T) & 8(U). 16. RELIANCE OF CIT ON VARIOUS CASE LAWS REFERRED T O IN PARA 8(S), IT IS SUBMITTED THAT FACTS OF THE CASES RELIED UPON AR E ALTOGETHER DIFFERENT. 17. THE CASE OF CIT REFERRED TO IN PARA 8(H), 8(M) ARE NOT RELEVANT FOR INVOKING PROVISIONS OF SECTION 263 OF THE ACT. ITA NOS. 202 TO 214 23 8. THE LD. DR, MR. R.L.CHHANALIA, APPEARING ON BEHA LF OF THE REVENUE RELIED UPON THE ORDERS OF THE LD. CIT PASSED IN EAC H AND EVERY CASE OF THE ASSESSEES. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE FIND THAT CASE OF THE LD. CIT IN ALL THE ABOVE M ENTIONED APPEALS IS THAT INVESTMENTS HAVE BEEN MADE IN VARIOUS IMMOVABLE PRO PERTIES IN THE FORM OF LAND IN THE NAME OF SH. JEETU KESHI & SH. MITHLESH KUMAR BY ABOVE MENTIONED ASSESSEES. IMMOVABLE PROPERTIES PURCHASED BY SH. JEETU KESHI AND MITHLESH KUMAR DURING THE ASSESSMENT YEAR 2004 -05, 2005-06, 2006- 07, 2007-08 & 2008-09 BELONG TO THE ABOVE SAID ASSE SSEES. IN THE CASE OF M/S. KAPURTHALA ESTATES PVT. LTD. AND M/S. KAPURTHA LA PROMOTERS AND DEVELOPERS PVT. LTD; THE LD. CIT (CENTRAL) HAS FURT HER OBSERVED THAT THE AO HAS NOT CONDUCTED PROPER ENQUIRIES WITH RESPECT TO INCREASE IN SUNDRY CREDITORS & PROVISIONS AND ADVANCES AGAINST PLOTS/D EPOSITORS. HE FURTHER OBSERVED IN HIS ORDER THAT ADMISSION OF JEETU KESH I & MITHLESH KUMAR IN THEIR STATEMENTS RECORDED BY THE AO U/S 131 OF THE ACT THAT THEY ARE DOING PROPERTY TRANSACTIONS ON THEIR OWN, ASSESSMENTS FRA MED BY THE AO OF JEETU KESHI & MITHLESH KUMAR WHEREIN ALL THE ABOVE SAID P ROPERTY TRANSACTIONS HAVE BEEN CONSIDERED AND BROUGHT TO TAX. APPEALS FI LED BY SH. JEETU KESHI & SH. MITHLESH KUMAR BEFORE THE LD. CIT(A) HAVE BEEN DECIDED AND FURTHER ITA NOS. 202 TO 214 24 APPEALS FILED BY SH. JEETU KESHI AND MITHLESH KUMAR BEFORE THE ITAT, AMRITSAR, WHEREIN PROPERTIES IN QUESTIONS ARE THE S UBJECT MATTER AND ARE NOT TENABLE IN VIEW OF THE STATEMENT OF SH. PARMINDER S INGH. THE LD. CIT FURTHER OBSERVED THAT PROPERTY TRANSACTIONS CARRIED OUT BY JEETU KESHI & MITHLESH KUMAR ON BEHALF OF M/S. KAPURTHALA ESTATES PVT. LTD; & M/S. KAPURTHALA PROMOTERS AND DEVELOPERS (P) LTD. ARE DU LY RECORDED IN THE BOOKS OF THESE COMPANIES. BUT PROPERTY TRANSACTIONS CARRIED OUT IN THEIR INDIVIDUAL CAPACITIES HAVE NOT BEEN RECORDED BY ABO VE SAID THESE THREE ASSESSEES. ASSESSMENT ORDER IS ERRONEOUS AND PREJU DICIAL TO THE INTEREST OF THE REVENUE SINCE NO ADDITION ON ACCOUNT OF INCOME INCLUDING INVESTMENT FOR PROPERTY TRANSACTIONS OF JEETU KESHI & MITHLES H KUMAR HAVE BEEN MADE IN THE HANDS OF ABOVE SAID THREE ASSESSEES. THE LD. CIT(A) IS OF THE OPINION THAT THE ABOVE SAID ASSESSEES CANNOT ESCAPE FROM TH E RESPONSIBILITY OF EXPLAINING PROPERTY TRANSACTIONS MADE BY JEETU KESH I & MITHLESH KUMAR IN THEIR INDIVIDUAL NAMES ONLY BECAUSE THESE DOCUMENTS HAVE NOT BEEN FOUND AND SEIZED FROM THE PREMISES OF ABOVE SAID ASSESSEE S. THE LD. CIT (CENTRAL) HAS FURTHER OBSERVED THAT THE CONTENTION OF THE ASS ESSEE THAT THE ASSESSEE IS NOT RESPONSIBLE FOR PROPERTY TRANSACTIONS OF JEE TU KESHI & MITHLESH KUMAR SINCE THEIR STATEMENTS WERE RECORDED, THEY FILED T HEIR INCOME TAX RETURNS OF WHICH ASSESSMENT STOOD COMPLETED WHEREIN ALL TRANSA CTIONS OF PROPERTY HAVE ITA NOS. 202 TO 214 25 BEEN CONSIDERED IS NOT TENABLE, SINCE GRAVE PREJUDI CE HAS BEEN CAUSED TO THE DEPARTMENT BY NOT MAKING ADDITION IN THE HANDS OF A SSESSEE AND ITS COMPANIES. THE LD. CIT HAS ALSO REJECTED THE SUBMI SSION OF THE ASSESSEE THAT PROCEEDINGS U/S 263 OF HE ACT CANNOT BE INITIA TED SINCE ASSESSMENTS FRAMED IN THE CASE OF JEETU KESHI & MITHLESH KUMAR STOOD MERGED WITH THE ORDER OF THE LD. CIT(A) BECAUSE ALL PROPERTY TRANSA CTED BY THEM HAD BEEN SUBJECT MATTER OF APPEAL BEFORE THE LD. CIT(A). SUB MISSION OF THE ASSESSEE THAT PROVISIONS OF SECTION 263 CANNOT BE INVOKED FO R DOUBLE TAXATION OF SOME INCOME AND SAME ISSUE FOR DIFFERENT ASSESSEES HAS B EEN REJECTED BY THE LD. CIT(CENTRAL). THE CONTENTION OF THE ASSESSEE THAT S H. JEETU KESHI & SH. MITHLESH KUMAR WERE NEVER EMPLOYEES OF ANY OF THE A BOVE MENTIONED THREE ASSESSEES AS PER BOOKS OF ACCOUNT AND ATTENDANCE RE GISTER PRODUCED DURING ASSESSMENT PROCEEDINGS HAS BEEN REJECTED BY THE LD. CIT(CENTRAL) ON THE GROUND THAT THE BOOKS WERE NOT AVAILABLE AT THE TIM E OF SEARCH. 9.1. THE LD. COUNSEL FOR THE ASSESSEE HAS DRAWN OUR ATTENTION TO PB 191 TO 193 IN THE CASE OF SH. PARMINDER SINGH WHICH IS CO PY OF NOTICE DATED 08.12.2009 ISSUED BY THE AO OF SH. PARMINDER SINGH DURING ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEARS 2002-03 TO 200 8-09 IN WHICH THE ASSESSEE HAS BEEN ASKED TO EXPLAIN THE PROPERTY TRA NSACTIONS CARRIED OUT BY SH. JEETU KESHI & SH. MITHLESH KUMAR, AS POWER OF ATTORNEY HOLDER AS WELL ITA NOS. 202 TO 214 26 AS PROPERTY TRANSACTIONS IN THEIR INDIVIDUAL NAMES. OUR ATTENTION HAS BEEN DRAWN TO PB 194 IN THE CASE OF SH. PARMINDER SINGH WHICH IS REPLY TO NOTICE DATED 08.12.2009 IN WHICH IT HAS BEEN EXPLAINED THA T REGISTRATION DEED ON POWER OF ATTORNEY BASIS MADE BY SH. JEETU KESHI & M ITHLESH KUMAR ARE DULY RECORDED IN THE BOOKS OF ACCOUNT OF M/S. KAPURTHAL A ESTATES PVT. LTD. AND M/S. KAPURTHALA PROMOTERS & DEVELOPERS PVT. LTD.. I T HAS BEEN FURTHER EXPLAINED THAT THE ASSESSEE IS NOT RESPONSIBLE FOR THE PROPERTY TRANSACTIONS CARRIED OUT BY SH. JEETU KESHI AND MITHLESH KUMAR I N THEIR INDIVIDUAL NAMES. 9.2. THE LD. CIT(CENTRAL) HAS ALSO OBSERVED THESE F ACTS IN PARA 17, PAGE 16 TO 18 OF THE ORDER U/S 263 OF THE ACT IN THE CAS E OF M/S. KAPURTHALA ESTATES PVT. LTD FOR THE ASSESSMENT YEAR 2008-09. T HE LD. COUNSEL FOR THE ASSESSEE HAS DRAWN OUR ATTENTION TO PB 231 TO 236 WHICH ARE AFFIDAVITS OF SH. JEETU KESHI & MITHLESH KUMAR FILED BY SH. PARMI NDER SINGH DURING HIS ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEARS 200 2-03 TO 2008-09 BEFORE THE AO. IN THESE AFFIDAVITS BOTH SH. JEETU KESHI & MITHLESH KUMAR HAD ADMITTED THAT THEY ARE CARRYING ON BUSINESS OF PROP ERTY DEALING I.E. SALES AND PURCHASES OF PROPERTIES AND ALSO SALES AND PURCHASE OF PROPERTY ON COMMISSION BASIS. ALL THE PURCHASES OF PROPERTY HAV E BEEN MADE FROM THEIR OWN FUNDS AND M/S. KAPURTHALA ESTATES PVT. LTD. AN D M/S. KAPURTHALA ITA NOS. 202 TO 214 27 PROMOTERS & DEVELOPERS PVT. LTD. AND SH. PARMINDER SINGH DO NOT HAVE ANY INTEREST IN BUSINESS OF SALES AND PURCHASES OF PROP ERTIES CARRIED OUT BY SH. JEETU KESHI & MITHLESH KUMAR IN THEIR INDIVIDUAL NA MES. 9.3. OUR ATTENTION WAS DRAWN TO PB 237 TO 261 WHICH ARE COPIES OF ASSESSMENT ORDERS PASSED BY THE AO, KAPURTHALA IN T HE CASE OF SH. JEETU KESHI & SH. MITHLESH KUMAR. IT WAS HIGHLIGHTED BY T HE LD. COUNSEL FOR THE ASSESSEE THAT PB 244, 245,257 & 258 ARE THE STATE MENTS OF SH. JEETU KESHI & SH. MITHLESH KUMAR RECORDED BY THE AO OF ABOVE ME NTIONED THREE ASSESSEES DURING THEIR ASSESSMENT PROCEEDINGS ON 1 8.12.2009 & 17.12.2009 RESPECTIVELY, WHEREIN BOTH SH. JEETU KESHI & MITH LESH KUMAR HAVE ADMITTED THAT THEY ARE IN THE BUSINESS OF PROPERTY DEALINGS AND ALL THE TRANSACTIONS OF SALES AND PURCHASES OF PROPERTIES CONFRONTED TO THEM HAVE BEEN MADE BY THEM FROM THEIR OWN ACOUNT AND DID N OT HAVE ANY INTEREST TO THESE TRANSACTIONS. SH. JEETU KESHI & MITHLESH KUMA R HAVE FURTHER CONFIRMED THAT THEY ARE NOT EMPLOYEES OF THE AFORE SAID THREE ASSESSEES. 9.4. IT WAS FURTHER ARGUED BY THE LD. COUNSEL FOR T HE ASSESSEE THAT PB 240 TO 243 AND 245 TO 256 ARE DETAILS OF TRANSACTIONS O F PROPERTY CONSIDERED BY THE AO OF BOTH SH. JEETU KESHI AND MITHLESH KUMAR I N THEIR ASSESSMENT PROCEEDINGS. THE SAME SET OF TRANSACTIONS HAVE BEEN REFERRED TO BY THE LD. ITA NOS. 202 TO 214 28 CIT(CENTRAL) IN THE PROCEEDINGS UNDER SECTION 263 O F ALL THE AFORESAID THREE ASSESSEES. 9.5. IT WAS FURTHER HIGHLIGHTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT PB 262-265 ARE THE COPY OF LETTERS OF ACIT ADDRESSED B Y THE AO OF THE AFORESAID THREE ASSESSEES TO AO KAPURTHALA ENCLOSIN G WITH THESE LETTERS AND COPIES OF DOCUMENTS FOUND AND SEIZED DURING SEARCH AND SURVEY OPERATIONS IN THE CASE OF AFORESAID ASSESSEES ASKING THE AO KA PURTHALA TO PREPARE SATISFACTION NOTE AND MAKE ASSESSMENTS IN THE CASE OF SH. JEETU KESHI & MITHLESH KUMAR. 9.6. OUR ATTENTION WAS FURTHER DRAWN BY THE LD. COU NSEL FOR THE ASSESSEE TO PB 266 TO 272 WHICH ARE SATISFACTION NOTE IN THE CA SE OF SH. JEETU KESHI & MITHLESH KUMAR, RECORDED BY THE AO KAPURTHALA IN WH ICH IT HAS BEEN CONCLUDED THAT ASSESSMENT PROCEEDINGS FOR THE ASSE SSMENT 2003-04 TO 2008- 09 BE INITIATED AGAINST JEETU KESHI & MITHLESH KUMA R. FURTHER, OUR ATTENTION WAS ALSO DRAWN TO PB 273 TO 285 WHICH ARE NOTICES I SSUED TO JEETU KESHI & MITHLESH KUMAR DURING THEIR ASSESSMENT PROCEEDINGS. VIDE THESE NOTICES JEETU KESHI & MITHLESH KUMAR HAVE BEEN ASKED TO EXP LAIN PROPERTY TRANSACTIONS WHICH ARE NOW BEING CONSIDERED U/S 263 IN THE HANDS OF AFORESAID THREE ASSESSEES. ITA NOS. 202 TO 214 29 9.7. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT TO INVOKE PROVISIONS OF SECTION 263 OF THE ACT, ORDER OF THE A.O. SHOULD BE ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE. THE TWIN CONDITIONS MUST CO- EXIST. THE ORDER PASSED BY THE AO AFTER CONDUCTING ALL THE ENQUIRIES CANNOT BE HELD TO BE ERRONEOUS AND PREJUDICIAL TO THE INTE REST OF THE REVENUE. 9.8. THE LD. COUNSEL FOR THE ASSESSEE FURTHER ARGUE D ON THE DOCTRINE OF MERGER, ORDER PASSED BY THE AO OF JEETU KESHI & MIT HLESH KUMAR HAS MERGED WITH THE ORDER OF THE LD. CIT(A), WHICH IS N OT AMENABLE U/S 263 OF THE ACT IN VIEW OF PROVISIONS OF SECTION 263(1)(C) OF THE ACT. IT WAS ALSO SUBMITTED THAT IT IS AN ESTABLISHED LAW THAT ACTIO N U/S 263 OF THE ACT, WHICH RESULTS IN DOUBLE TAXATION IS NOT PERMITTED UNDER THE LAW. 9.9. STATEMENT OF SH. PARMINDER SINGH RECORDED U/ S 132(4) ON 04.03.2008 HAS BEEN RETRACTED AND THE SAME HAD BEEN SUBJECT MA TTER OF APPEAL FOR THE ASSESSMENT YEAR 2008-09. COPY OF ORDER OF LD. CIT( A) IS PLACED AT PB 108 TO 154). AS SUCH NO ACTION U/S 263 CAN BE TAKEN O N THE BASIS OF STATEMENT OF MR. PARMINDER SINGH IN VIEW OF PROVISIONS OF SEC TION 263(1)(C) OF THE ACT. 9.10. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBM ITTED THAT DIRECT PURCHASES AND SALES MADE SH JEETU KESHI & MITHLESH KUMAR CANNOT BE HELD ITA NOS. 202 TO 214 30 AS TRANSACTIONS OF ASSESSEE SINCE THE SAME ARE EVID ENCED BY REGISTERED SALE DEEDS IT HAS BEEN SUBMITTED THAT TO INVOKE THE PROV ISIONS OF SECTION 263 OF THE ACT, THE LD. CIT(A) HAS TO COME TO A FIRM DECIS ION THAT THE ORDER OF THE AO WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. HERE IN THE PRESENT CASE, SAME PROPERTY TRANSACTIONS OF SH. J EETU KESHI & MITHLESH KUMAR, PROVISIONS OF SECTION 263 OF THE ACT HAVE BE EN INVOKED IN THE CASE OF SH. PARMINDER SINGH, M/S. KAPURTHALA ESTATES PVT . LTD. & M/S. KAPURTHALA PROMOTERS & DEVELOPERS PVT. LTD. LD. CIT (A) HAS NOT COME TO THE CONCLUSION IN WHOSE HANDS TRANSACTIONS ARE TO B E TAXED AND IN FACT WHICH TRANSACTIONS ARE REALLY TO BE TAXED. SIMILAR IS PO SITION ABOUT SUNDRY CREDITORS, DEPOSITORS, ADVANCES AGAINST PLOTS SINCE LD. CIT HAS NOT POINTED OUT WHAT ERRORS HAVE BEEN COMMITTED. INFORMATION AS KED FOR DURING ASSESSMENT PROCEEDINGS HAS BEEN PROVIDED AND EXAMIN ED BY THE AO. NO DECISION ABOUT THE ERRONEOUS AND PREJUDICIAL NATU RE OF THE ORDER HAS BEEN TAKEN BY THE LD. CIT. THE LD. COUNSEL FOR THE ASSE SSEE RELIED UPON THE DECISIONS OF VARIOUS COURTS OF LAW AND STATED IN HI S WRITTEN SUBMISSION REPRODUCED HEREINABOVE. 9.11. ON THE BASIS OF FACTS ON RECORD AND SUBMIS SIONS MADE BY THE LD. COUNSEL FOR THE ASSESSEE AND THE LD. DR APPEARI NG ON BEHALF OF THE REVENUE, WE ARE OF THE VIEW TO INVOKE THE PROVISION S OF SECTION 263 OF THE ITA NOS. 202 TO 214 31 ACT, ORDER OF THE AO SHOULD ERRONEOUS AS WELL AS P REJUDICIAL TO THE INTEREST OF REVENUE. THE TWIN CONDITIONS SHOULD CO-EXIST. WE ARE CONVINCED WITH THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE THA T ORDER PASSED AFTER CONDUCTING ENQUIRIES IN ALL THE MATTERS CANNOT BE H ELD TO BE ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE BECAUSE EVER Y LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF AO CANNOT BE TREATED AS PREJUDICIAL TO THE INTEREST OF REVENUE. OUR VIEWS FIND SUPPORT BY THE CASE LAWS RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE, AS STATED HEREINA BOVE. ACCORDINGLY, WE ARE OF THE VIEW THAT THE AO IN THE AFORESAID CASE HAS C ONDUCTED ALL THE ENQUIRIES OF THE TRANSACTIONS OF PROPERTY CARRIED OUT BY SH. JEETU KESHI & MITHLESH KUMAR BY RAISING QUERIES DURING ASSESSMENT PROCEEDI NGS OF SH. PARMINDER SINGH BY ISSUING SUMMONS U/S 131 OF THE ACT TO SH. JEETU KESHI & MITHLESH KUMAR. NOT ONLY THIS AO OF THE AFORESAID ASSESSEE S WROTE LETTER TO THE AO KAPURTHALA TO RECORD SATISFACTION AND FRAME ASSESS MENT IN THE CASE OF SH. JEETU KESHI & MITHLESH KUMAR FOR ALL THE PROPERTY TRANSACTIONS CARRIED OUT BY THEM AGAINST WHICH PROVISIONS OF SECTION 263 HAV E BEEN INVOKED IN THE CASE OF THE AFORESAID ASSESSEES. DURING ASSESSMENT PROCEEDINGS SH. PARMINDER SINGH FILED DETAILED REPLY TO THE QUERIES RAISED AND ALSO FILED AFFIDAVITS OF SH. JEETU KESHI & MITHLESH KUMAR, WHE REIN THEY ADMITTED THAT ALL THE TRANSACTIONS OF PROPERTY ARE ON THEIR OWN ACCOUNT. ASSESSMENTS IN THE ITA NOS. 202 TO 214 32 CASE OF JEETU KESHI & MITHLESH KUMAR HAVE BEEN COMP LETED BY THE AO KAPURTHALA AND AS SUCH PROVISIONS OF SECTION 263 O F THE ACT ARE NOT ATTRACTED IN THE CASE OF AFORESAID ASSESSEES SINCE TWIN COND ITIONS AS AFORESAID DO NOT EXIST AND AO WHILE FRAMING ASSESSMENT HAS CONDUCTED ALL ENQUIRIES. 10. WE ARE CONVINCED WITH THE SUBMISSIONS OF THE L D. COUNSEL FOR THE ASSESSEE THAT THE PROVISIONS OF SECTION 263 OF THE ACT ARE NOT ATTRACTED IN THE CASE OF THE AFORESAID ASSESSEE SINCE THE ISSUES RAI SED UNDER SECTION 263 OF THE ACT WERE SUBJECT MATTER OF APPEAL BEFORE THE LD. CI T(A) IN THE CASE OF SH. JEETU KESHI & MITHLESH KUMAR AND ASSESSMENT OF SH. PARMINDER SINGH WAS ALSO SUBJECT MATTER OF APPEAL BEFORE THE LD. CIT(A) , LUDHIANA FOR THE ASSESSMENT YEAR 2008-09 IN VIEW OF PROVISIONS OF SE CTION 263 (1)(C) OF THE ACT. THE DOUBLE TAXATION IS NOT PERMITTED AS SUBMIT TED BY THE LD. COUNSEL FOR THE ASSESSEE. IN THESE CASES, PROVISIONS OF SECTION 263 OF THE ACT HAVE BEEN INVOKED ON THE TRANSACTIONS OF PROPERTY WHICH WERE ALREADY TAXED IN THE CASE OF SH. JEETU KESHI & MITHLESH KUMAR. OUR VIEWS FIND SUPPORT FROM THE CASE LAWS RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSE E. 11. WE ARE CONVINCED WITH THE SUBMISSION OF LD. CO UNSEL FOR THE ASSESSEE THAT DIRECT SALES AND PURCHASES MADE BY SH. JEETU KESHI & MITHLESH KUMAR CANNOT BE HELD AS TRANSACTIONS OF ASSESSE SINCE THE SAME ARE EVIDENCED BY ITA NOS. 202 TO 214 33 REGISTERED SALE DEEDS. WE ALSO FIND FORCE IN FURTHE R SUBMISSION OF LD. COUNSEL FOR THE ASSESSEE THAT TO INVOKE THE PROVISI ONS OF SECTION 263 OF THE ACT, THE LD. CIT HAD TO COME TO A FIRM DECISION THA T THE ORDER OF THE ITO WAS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTERES T OF REVENUE. IN THE PRESENT CASE, FOR THE SAME PROPERTY TRANSACTIONS OF SH. J EETU KESHI & MITHLESH KUMAR PROVISIONS OF SECTION 263 HAVE BEEN INVOKED I N THE CASE OF SH. PARMINDER SINGH, M/S. KAPURTHALA ESATES PVT. LTD. & M/S. KAPURTHALA PROMOTERS & DEVELOPERS PVT. LTD. THE LD. CIT HAS NO T CONCLUDED IN WHOSE HANDS TRANSACTIONS ARE TO BE TAXED AND WHICH TRANSA CTIONS ARE TO BE TAXED. SIMILAR IS THE POSITION ABOUT SUNDRY CREDITORS, DE POSITORS, ADVANCES AGAINST PLOTS. SINCE LD. CIT HAS NOT POINTED OUT WHAT ERRO RS HAVE BEEN COMMITTED. INFORMATION ASKED FOR DURING ASSESSMENT PROCEEDINGS HAS BEEN PROVIDED AND EXAMINED BY THE AO. NO DECISION ABOUT THE ERRONEOUS NATURE OF THE ORDER HAS BEEN TAKEN BY LD. CIT AND THEREFORE, THE ORDER PASSED IN ALL THE YEARS IN THE CASE OF ALL THE ASSESSEES MENTIONED HEREINABOVE ARE BAD IN LAW. ACCORDINGLY, ALL THE GROUNDS IN ALL THE APPEALS IN THE CASE OF ALL THE ASSESSEES ARE ALLOWED. 11. IN THE RESULT, THE APPEALS IN THE CASE OF SH. PARMINDER SINGH IN ITA NOS.210 TO 214(ASR)/2012, IN THE CASE OF M/S. KAPUR THALA ESTATES PVT. LTD; IN ITA NOS.205 TO 209(ASR)/2012 AND IN THE CASE OF M/S. KAPURTHALA ITA NOS. 202 TO 214 34 PROMOTERS & DEVELOPERS PVT. LTD IN ITA NOS. 202 TO 204(ASR)/2012 ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22ND NOVEMBER, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 22ND NOVEMBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEES: 1) SH. PARMINDER SINGH (II) M/S. KAP URTHALA ESTATES (P) LTD & III) M/S. KAPURTHALA PROMOTERS & DEVELOPERS PVT. LTD. JALANDHAR. 2. THE ACIT, CC-1, JALANDHAR. 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.