SHRI HARI RAM YADAV, ALWAR V. PRINCIPAL COMMISSIONER OF INCOME TAX, ALWAR

ITA 215/JPR/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 7982 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 12-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA
• Keywords: Capital asset; Gift; Opportunity of being heard; Principle of natural justice; Cost of acquisition; Assessment record
• Section: 143(3); 54B; 2(14); 147; 148; 263; 63; 154

Judgement Text

S VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 215/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 SHRI HARI RAM YADAV 302 TIWARA BUS STAND, BEHIND GOVERNMENT SCHOOL, UMRAIN, ALWAR. CUKE VS. THE PR.CIT, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AGZPH 1481 M VIHYKFKHZ@ A PPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI SIDDHARTH RANKA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI VARINDER MEHTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 11/12/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT :31/12/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. PR. CIT, ALWAR PASSED U/S 263 OF THE ACT DATED 29.11.2017 QUASHING THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) BY THE ASSESSING OFFICER PERTAINING TO ASSESSMENT YEAR 2013-14. 2. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE PRE SENT APPEAL HAS BEEN FILED BY THE ASSESSEE WITH A DELAY OF 10 DAYS AND AN APPLICATION ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 2 HAS BEEN FILED WITH A REQUEST TO CONDONE THE SAID D ELAY. IT WAS SUBMITTED THAT THE ORDER OF THE LD. PR. CIT DATED 2 9.11.2017 WAS SERVED ON THE ASSESSEE ON 04.12.2017, THEREAFTER THE ASSES SEE APPROACHED HIS LOCAL COUNSEL IN ALWAR FOR AN OPINION TO CHALLENGE THE ORDER PASSED U/S 263 OF THE ACT WHO REFERRED THE ASSESSEE TO ANOTHER COUNSEL IN JAIPUR. THEREAFTER, ON THE BASIS OF OPINION OF THE COUNSEL BASED IN JAIPUR, THE ASSESSEE HAS FILED THE PRESENT APPEAL ON 12.02.2018 THOUGH WITH A DELAY OF 10 DAYS AND AN AFFIDAVIT IN SUPPORT OF THE PETITION WAS ALSO FILED WHICH IS PLACED ON RECORD. IT WAS SUBMITTED THAT TH E DELAY WAS NOT INTENTIONAL, HENCE, THE SAID DELAY MAY KINDLY BE CO NDONED AND THE APPEAL MAY BE ADMITTED FOR ADJUDICATION ON MERITS. THE LD. CIT DR WAS HEARD WHO HAS NOT RAISED ANY SPECIFIC OBJECTION. A FTER HEARING BOTH THE PARTIES, CONSIDERING THE FACT THAT THE ASSESSEE SOU GHT OPINION OF HIS LOCAL COUNSEL WHO IN TURN REFERRED HIM TO COUNSEL B ASED IN JAIPUR AND IN THE PROCESS OF SAID CONSULTATION, THE DELAY OF 10 D AYS HAS OCCURRED, CONSIDERING THE FACT THAT THIS IS THE FIRST STAGE W HERE THE ASSESSEE CAN CHALLENGE THE ORDER OF THE LD PR CIT AND THE BONAFI DE OF THE ASSESSEE NOT BEING IN DOUBT, DELAY OF 10 DAYS IN FILING THE PRESENT APPEAL IS HEREBY CONDONED. 3. NOW COMING TO THE MERITS OF THE CASE. BRIEFLY, T HE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCO ME ON 21.01.2015 DECLARING TOTAL INCOME OF RS. 1,38,250/-, NOTICE U/ S 143(2) OF THE ACT WAS ISSUED TO THE ASSESSEE AND THEREAFTER CONSIDERI NG THE SUBMISSIONS OF THE ASSESSEE, THE AO BROUGHT LONG TERM CAPITAL G AIN ON SALE OF PLOTS OF LAND TO TAX AMOUNTING TO RS. 19,65,592/- AND THE ASSESSMENT PROCEEDINGS WERE COMPLETED U/S 143(3) AT THE ASSESS ED INCOME OF ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 3 RS. 21,03,840/-. AGAINST THE SAID ASSESSMENT ORDER, THE ASSESSEE MOVED AN APPEAL BEFORE THE LD. CIT(A), ALWAR ON 13. 04.2016 CHALLENGING THE ORDER OF THE ASSESSING OFFICER ASSE SSING THE LONG TERM CAPITAL GAIN ON SALE OF AGRICULTURAL LAND WITHOUT C ONSIDERING THE FACT THAT THE SAME WAS NOT CAPITAL ASSET U/S 2(14) OF THE I.T . ACT AND ALSO NOT ALLOWING THE DEDUCTION U/S 54B FOR PURCHASE OF ANOT HER AGRICULTURAL LAND. THEREAFTER, NOTICE U/S 263 WAS ISSUED BY THE ITO(TECHNICAL) FOR AND ON BEHALF OF LD PR CIT, ALWAR DATED 06.10.2017 AND AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE LD . PR. CIT HAS CANCELLED THE ASSESSMENT ORDER PASSED BY THE AO U/S 143(3) OF THE ACT DATED 28.03.2016 WITH A DIRECTION TO PASS THE ASSES SMENT ORDER AFRESH AFTER TAKING INTO CONSIDERATION THE ISSUES RAISED B Y HIM IN HIS ORDER U/S 263 OF THE ACT. AGAINST THE SAID ORDER PASSED BY TH E LD PR CIT U/S 263, THE ASSESSEE HAS MOVED THE PRESENT APPEAL BEFORE US . 4. DURING THE COURSE OF HEARING, THE LD. AR CHALLEN GED THE VALIDITY OF SHOW-CAUSE NOTICE ISSUED U/S 263 AND SUBMITTED THAT THE SHOW CAUSE NOTICE DATED 06.10.2017 HAS BEEN ISSUED AND SIGNED BY THE ITO (TECHNICAL) AND NOT BY THE LD. PR. CIT. IT WAS SUBM ITTED THAT THE SHOW CAUSE NOTICE WAS NOT ISSUED BY THE LD. PR CIT AND T HE PROCEEDINGS BASED ON THE ILLEGAL SHOW CAUSE NOTICE AND CONSEQUE NTIAL ORDER PASSED BY THE LD. PR. CIT IS NOT VALID AND LIABLE TO BE QU ASHED. REFERRING TO THE PROVISIONS OF SECTION 263 OF THE ACT, IT WAS SUBMIT TED BY THE LD. AR THAT IT IS PR. CIT WHO HAS TO BE SATISFIED THAT THE ORDE R PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE, HOWEVER, IN THE INSTANT CASE, THE SAME IS NOT DISCERNABLE FROM THE SHOW CAUSE NOTICE. IT WAS ACCORDINGLY SUBMITTED THAT IN ABSENC E OF A VALID SHOW ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 4 CAUSE NOTICE AND ABSENCE OF SATISFACTION SO RECORDE D BY THE LD PR. CIT, THE JURISDICTION ASSUMED BY THE LD. PR. CIT IS VOID AND BAD IN LAW AND THE CONSEQUENT ORDER PASSED U/S 263 OF THE ACT IS N OT SUSTAINABLE. 5. IN SUPPORT, RELIANCE WAS PLACED BY THE LD AR ON THE DECISION OF THE COORDINATE BENCH IN CASE OF MODERN SCHOOL SOCIETY VS. CIT(E) IN ITA NO. 1118/JP/2018 DATED 20.12.2017. IT WAS F URTHER SUBMITTED THAT THE SAID ORDER OF THE COORDINATE BEN CH HAS SINCE BEEN AFFIRMED BY THE HONBLE RAJASTHAN HIGH COURT IN D.B . ITA NO. 172/2018 DATED 31.07.2018. FURTHER, REFERRING TO THE REVENUE S PAPER BOOK SUBMITTED BY THE LD. CIT-DR AND IN PARTICULAR, COPY OF ORDER SHEET CONTAINED AT PARA 1 TO 6 OF THE REVENUES PAPER BOO K, THE LD. AR SUBMITTED THAT THE PROCEEDINGS U/S 263 OF THE ACT WERE INITIATED AFTER RECEIVING THE PROPOSAL FROM THE ITO, WARD-1(1), ALW AR AND SUCH PROCEEDINGS AGAIN REFLECTS SATISFACTION OF THE ITO AND NOT THAT OF THE LD. PR. CIT, AND WHERE SUCH PROCEEDINGS HAVE BEEN INITI ATED AFTER RECEIVING THE PROPOSAL FROM THE ITO, THE SAID PROCEEDINGS AGA IN DESERVED TO BE QUASHED AND IN SUPPORT, RELIANCE WAS PLACED ON THE COORDINATE BENCH DECISION IN CASE OF RAJIV ARORA VS. CIT REPORTED IN 11 TAXMANN.COM 182. 6. IT WAS FURTHER SUBMITTED BY THE LD AR THAT THE A SSESSMENT ORDER U/S 143(3) WHICH HAS BEEN QUASHED BY THE LD. PR. CI T WAS THE SUBJECT MATTER OF APPEAL BEFORE THE LD. CIT(A) AND OUR REFE RENCE WAS DRAWN TO THE APPEAL MEMO (FORM NO. 35) FILED BY THE ASSESSEE U/S 246A OF THE ACT AGAINST THE ORDER PASSED BY THE AO U/S 143(3) D ATED 28.03.2016. IT WAS ACCORDINGLY SUBMITTED THAT WHERE THE ASSESSMENT ORDER WAS THE ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 5 SUBJECT MATTER OF APPEAL BEFORE THE LD CIT(A), THE LD. PR. CIT WAS WRONG IN ASSUMING THE JURISDICTION OVER SUCH MATTER U/S 2 63 OF THE ACT. 7. NOW COMING TO THE SUBJECT MATTER OF ORDER PASSED U/S 263 AND THE ISSUES RAISED BY THE PR CIT IN HIS ORDER U/S 26 3, THE LD AR SUBMITTED THAT REGARDING CASH DEPOSIT FOUND DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE, NECESSARY DETAILS WERE CALLED FOR AND DUL Y EXAMINED BY THE ASSESSING OFFICER AND AFTER DUE EXAMINATION, NO NEG ATIVE INFERENCE WAS DRAWN BY THE AO AND IT WAS THEREFORE WRONG ON THE P ART OF THE LD. PR.CIT TO HOLD THAT THE ASSESSING OFFICER HAS N OT CONDUCTED PROPER ENQUIRY OR HAS NOT EXAMINED THE SAID ISSUE. REGARDI NG THE ISSUE OF BANK INTEREST, IT WAS SUBMITTED THAT THE ASSESSEE HAS AD MITTED THAT THE SAME MAY BE BROUGHT TO TAX BY INVOKING THE PROVISIONS OF SECTION 154 OF THE ACT AND THEREFORE, THERE IS NO DISPUTE AS FAR AS TH E INTEREST ON THE BANK DEPOSIT IS CONCERNED. REGARDING THE ISSUE OF COST O F ACQUISITION IN RESPECT OF PLOTS OF LAND SOLD DURING THE YEAR, IT W AS SUBMITTED THAT THE SAME WAS DULY EXAMINED BY THE ASSESSING OFFICER AND IT IS WRONG ON THE PART OF THE LD. PR.CIT TO HOLD THAT THE SAME WA S NOT PROPERLY EXAMINED BY THE ASSESSING OFFICER. HE ACCORDINGLY S UBMITTED THAT THERE IS NO INFIRMITY IN THE ORDER PASSED BY THE ASSESSIN G OFFICER, ALL DETAILS HAVE BEEN DULY SUBMITTED AND EXAMINED BY THE ASSESS ING OFFICER AND ASSUMPTION OF JURISDICTION BY THE LD. PR. CIT IS NO T WARRANTED IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND HENCE THE ORDER P ASSED BY THE LD. PR. CIT MAY BE QUASHED. IN SUPPORT, RELIANCE WAS PL ACED ON VARIOUS DECISIONS. ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 6 8. PER CONTRA, THE LD. CIT-DR SUBMITTED THAT THERE IS NO ILLEGALITY IN THE ASSUMPTION OF JURISDICTION BY THE LD. PR. CIT U /S 263 OF THE ACT AS WHAT IS REQUIRED FOR SUCH ASSUMPTION OF JURISDICTIO N IS THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND THE SAME IS CLEA RLY APPARENT ON READING OF THE ORDER PASSED BY THE PR.CIT. REGARDIN G ISSUANCE OF SHOW CAUSE NOTICE, IT WAS SUBMITTED THAT THE SAME HAS BE EN SIGNED BY THE ITO (TECHNICAL) FOR AND ON BEHALF OF THE PR. CIT, A LWAR AND IT IS WRONG TO ASSUME THAT MERELY BECAUSE THE SHOW-CAUSE NOTICE HAS BEEN SIGNED BY THE ITO (TECHNICAL), HE HAS ASSUMED JURISDICTION U/S 263 OF THE ACT. REGARDING SATISFACTION OF LD. PR. CIT U/S 263, THE LD. CIT-DR DRAWN OUR REFERENCE TO PAGE 5 OF THE ORDER SHEET OF THE CASE RECORDS AVAILABLE IN THE REVENUES PAPERBOOK AT PAGE 12 TO 14 AND SUBMIT TED THAT THE PROPER SATISFACTION WAS RECORDED BY THE LD. PR. CIT , ALWAR BEFORE ISSUANCE OF SHOW-CAUSE NOTICE. IT WAS SUBMITTED THA T AFTER PROPER VERIFICATION OF FACTS AND DUE APPLICATION OF MIND, DRAFT NOTICE WAS PUT UP BY THE ITO (TECH.) WHICH WAS APPROVED BY LD. PR. CI T, ALWAR VIDE ORDER SHEET ENTRY DATED 06.10.2017. FURTHER, DRAWING OUR REFERENCE TO THE PROVISIONS OF SECTION 282A(2) OF THE ACT, IT WAS SU BMITTED THAT THE NOTICE WAS ISSUED FROM THE OFFICE OF THE LD. PR. CI T AS PRINTED ON NOTICE DATED 06.10.2017, AND NAME & OFFICE OF THE PR. CIT IS ALSO PRINTED ON THE NOTICE. FURTHER, IT IS EVIDENT FROM THE SAID NO TICE THAT STAMP OF COMMISSIONER MENTIONING PR. CIT, ALWAR IS ALSO AFFI XED AND HEARING WAS FIXED BEFORE THE PR. CIT, ALWAR, THEREFORE, THERE S HOULD NOT BE ANY CONFUSION WITH REGARD TO PROPER SERVICE OF THE NOTI CE AND THE SAME HAS BEEN DONE IN ACCORDANCE WITH PROVISIONS OF SECTION 282A(2) OF THE I.T. ACT. ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 7 9. FURTHER, LD CIT-DR PLACED RELIANCE ON THE DECISI ON OF HONBLE GUJARAT HIGH COURT IN CASE OF SMT. ANANTKUVERBA VS. CIT 201 ITR 42 FOR THE PROPOSITION THAT NO NOTICE IS REQUIRED T O BE ISSUED BY THE PR CIT BEFORE ASSUMING JURISDICTION U/S 263 AND GIV EN THAT IN THE INSTANT CASE, THE SHOW-CAUSE NOTICE HAS BEEN ISSUED BY THE ITO (TECHNICAL) FOR AND ON BEHALF OF THE LD PR.CIT AND SERVED ON THE AS SESSEE, THE SAME IS BASICALLY TO PROVIDE ADEQUATE OPPORTUNITY TO THE AS SESSEE AND THUS, THE FACT THAT THE SHOW-CAUSE NOTICE HAS BEEN SIGNED BY THE ITO(TECHNICAL) HAS NO IMPACT ON THE QUESTION OF JURISDICTION U/S 2 63 OF THE ACT. 10. THE LD CIT-DR FURTHER PLACED RELIANCE ON THE DE CISION OF HONBLE CALCUTTA HIGH COURT IN CASE OF SMT. SUMITRA DEVI KHIRWAL VS. CIT 84 ITR 26 FOR THE PROPOSITION THAT EVEN WHERE THE R ECORDS ARE PLACED BEFORE THE CIT BY HIS SUBORDINATES WHO POINTED OUT THE ERROR AND THE PREJUDICE, THE CIT IS NOT BARRED FROM EXERCISING HI S POWERS OF REVISION U/S 263 OF THE ACT. 11. IT WAS FURTHER SUBMITTED BY THE LD CIT-DR THAT DURING THE COURSE OF PROCEEDINGS U/S 263 OF THE ACT, THE ASSESSEE HAS NEVER CHALLENGED THE LEGALITY OF NOTICE AND HAS PARTICIPATED IN THE SAID REVISION PROCEEDINGS AND THEREFORE, AT THE APPELLATE STAGE, HE CANNOT BE ALLOWED TO CHALLENGE THE ISSUANCE OF NOTICE. 12. THE LD CIT-DR ALSO PLACED RELIANCE ON THE DECIS ION OF HONBLE SUPREME COURT IN CASE OF RAMPYARI DEVI SAROGI VS. CIT 67 ITR 84 TO BUTTRESS HIS CONTENTIONS AND SUBMITTED THAT IN T HE SAID DECISION, THE ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 8 HONBLE SUPREME COURT HAS LAID DOWN A CLEAR LEGAL P ROPOSITION THAT SECTION 263 DOES NOT IN EXPRESS FORM REQUIRE A NOT ICE TO BE SERVED AS IN THE CASE OF SECTION 147. SECTION 263 MERELY REQU IRES THAT AN OPPORTUNITY OF BEING HEARD SHOULD BE GIVEN TO THE A SSESSEE AND THE STRINGENT REQUIREMENT OF SERVICE OF NOTICE U/S 147 CANNOT THEREFORE BE APPLIED TO THE PROCEEDINGS. 13. IT WAS FURTHER SUBMITTED BY THE LD CIT-DR THAT THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN CASE OF CIT VS. MODERN SCHOOL SOCIETY IN DBITA NO. 172/2018 DATED 31.07.2018 RELIED UPON BY THE LD AR PERTAINS TO SECTION 10(23C)(II) OF THE IT ACT WH EREAS, IN THE INSTANT CASE, THE MATTER PERTAINS TO SECTION 263 OF THE ACT AND THE SAME IS THUS DISTINGUISHABLE. IT WAS ACCORDINGLY SUBMITTED THAT THERE IS NO IRREGULARITY IN ISSUANCE OF THE SHOW CAUSE NOTICE A ND ASSUMPTION OF JURISDICTION BY THE LD. PR CIT AND THE CONTENTIONS SO ADVANCED BY THE LD. AR SHOULD BE DISMISSED. 14. IT WAS FURTHER SUBMITTED BY THE LD CIT-DR THAT IT IS WRONG TO SAY THAT MERELY BECAUSE THE ASSESSEE HAS RAISED CERTAI N GROUNDS OF APPEAL BEFORE THE LD. CIT(A), THE LD. PR. CIT CANNOT ASSUM E THE JURISDICTION U/S 263 OF THE ACT AND IN SUPPORT, REFERENCE WAS DR AWN TO CLAUSE C TO EXPLANATION 1 TO SECTION 263 WHICH PROVIDES THAT WH ERE ANY ORDER PASSED BY THE ASSESSING OFFICER HAD BEEN THE SUBJEC T MATTER OF ANY APPEAL FILED BY THE ASSESSEE, THE POWERS OF THE LD. PR. CIT SHALL BE DEEMED TO EXTEND TO SUCH MATTER AS HAD NOT BEEN CON SIDERED AND DECIDED IN SUCH APPEAL. IT WAS SUBMITTED BY THE LD CIT-DR THAT THE MATTER RELATING TO CASH DEPOSIT IN THE ASSESSEES B ANK ACCOUNT, THE ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 9 MATTER RELATING TO INTEREST ON BANK DEPOSIT AND MAT TER RELATING TO COST OF ACQUISITION REGARDING PLOT OF LAND WHICH HAS BEE N SOLD BY THE ASSESSEE WERE NOT THE SUBJECT MATTER OF APPEAL BEFO RE THE LD CIT(A) THOUGH THE ORDER OF THE AO AS SUCH WAS SUBJECT MATT ER OF APPEAL AND THUS, THERE IS NO BASIS FOR THE LD AR TO ARGUE AGAI NST THE ASSUMPTION OF JURISDICTION BY THE LD PR.CIT U/S 263 OF THE ACT. 15. FURTHER, ON MERITS, THE LD. CIT-DR SUPPORTED TH E ORDER OF THE LD. PR. CIT AND SUBMITTED THAT THERE WAS CASH DEPOS IT OF RS. 1,40,25,000/- IN VARIOUS BANK ACCOUNTS OF THE A SSESSEE AND IT WAS EXPLAINED BEFORE THE AO THAT A SUM OF RS. 98,35,000 /- WAS RECEIVED FROM 76 PERSONS AS ADVANCE FOR SALE OF LAND AND RS. 27,80,000/- WAS RECEIVED FROM 20 PERSONS FROM SALE OF LAND MEASURIN G 1858.44 SQ. YDS. IT WAS SUBMITTED THAT THE AO HAS ACCEPTED THE SOURC E OF CASH DEPOSITS BY SIMPLY RELYING UPON THE AFFIDAVITS FILED BY THES E PERSONS AND HAS IGNORED THE FACT THAT THE NAMES OF THE PERSONS (20) TO WHOM LAND WAS SOLD ARE DIFFERENT FROM THE PERSONS (76) FROM WHOM THE ADVANCES WERE RECEIVED WITHOUT MAKING ANY ENQUIRIES IN THIS REGAR D. IT WAS SUBMITTED THAT AS PER REPLY DATED 22.02.2016, THE ASSESSEE HA S FURNISHED ITS CASH ACCOUNT AND BANK BOOK FOR THE F.Y. 2013-14 & 2014-1 5 BUT NOT FOR THE RELEVANT FINANCIAL YEAR I.E. 2012-13 RELEVANT TO A. Y. 2013-14. IT APPEARS THAT ON THE BASIS OF THESE DOCUMENTS WHICH ARE NOT RELATED TO THE YEAR UNDER CONSIDERATION, THE AO HAS FOUND THE CASH DEPO SITS IN THE BANK ACCOUNT OF THE ASSESSEE AS EXPLAINED. IT WAS FURTHE R SUBMITTED THAT AS PER ORDER OF LD. PR. CIT, 1854.44 SQ. YDS. OF DEVEL OPED LAND WAS SOLD BY THE ASSESSEE AND IT WAS EXPLAINED THAT THE ENTIRE L AND ACQUIRED BY THE ASSESSEE WAS SOLD AND THEREFORE, THE AO WAS JUSTIFI ED IN ALLOWING ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 10 INDEXED COST OF ACQUISITION IN RELATION TO THE ENTI RE LAND. IT MAY BE NOTED FROM PB-36 THAT THE TOTAL AREA OF THE LAND WA S TO THE TUNE OF 4983 SQ. YDS AS PER THE FOLLOWING DETAILS: PLOTS AREA 2854.03 SQ. YDS. SHOPS AREA 637.79 SQ. YDS. ROADS AREA 1491.18 SQ. YDS. TOTAL AREA 4983 SQ. YDS. IT WAS UNDISPUTED FACT THAT THE ASSESSEE HAS SOLD 1 858.44 SQ. YDS DURING THE YEAR AND IF THE AREA RELATING TO ROADS ( 1491.18 SQ. YDS.) IS EXCLUDED FROM THE TOTAL AREA, STILL THE ASSESSEE SH OULD HAVE 1633.38 SQ. YDS. OF UNSOLD AREA. IT IS DIFFICULT TO UNDERSTAND HOW THE AO CAN ALLOW THE ENTIRE COST OF ACQUISITION WHEN THE SIGNIFICANT UNSOLD AREA IS STILL AVAILABLE WITH THE ASSESSEE. IT APPEARS FROM THE RE PLIES FILED BY THE ASSESSEE BEFORE THE AO AS APPEARING ON PB-1 AND PB- 4 THAT NO ENQUIRIES WERE MADE BY THE AO IN THIS REGARD. 16. FURTHER, RELIANCE WAS PLACED BY THE LD CIT-DR O N THE VARIOUS DECISIONS INCLUDING THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF CIT VS. AMITABH BACHCHAN 69 TAXMANN.COM 170. 17. IT WAS ACCORDINGLY SUBMITTED BY THE LD CIT-DR T HAT THE LD. PCIT WAS JUSTIFIED IN EXERCISING HIS JURISDICTION U/S 26 3 OF THE ACT AS THE RELEVANT ASSESSMENT ORDER WAS MADE WITHOUT MAKING P ROPER ENQUIRIES AND WITHOUT DUE APPLICATION OF MIND BY THE AO. THUS THE ASSESSMENT ORDER PASSED U/S 143(3) IS NOT ONLY ERRONEOUS BUT P REJUDICIAL OF INTEREST ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 11 OF REVENUE AND IT WAS ACCORDINGLY SUBMITTED THAT TH E IMPUGNED ORDER PASSED BY THE LD. PR. CIT BE UPHELD. 18. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FIRST OBJECTION OF THE LD AR IS REGARDING THE VALIDITY OF THE SHOW CAUSE NOTICE THAT IT WAS NOT S IGNED BY THE LD PR. CIT AND THEREFORE, THE ASSUMPTION OF JURISDICTION BY TH E LD. PR. CIT U/S 263 OF THE ACT IS BAD IN LAW. IN THIS REGARD, WE REFER TO THE PROVISIONS OF SECTION 263 OF THE ACT WHICH READS AS UNDER: 263. (1) THE PRINCIPAL COMMISSIONER OR COMMISSIONE R MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY TH E ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, HE MAY, AFTER GIVING THE ASSESSEE AN O PPORTUNITY OF BEING HEARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORD ER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLING THE ASSESSM ENT AND DIRECTING A FRESH ASSESSMENT. 19. SECTION 263 THUS PROVIDES THAT THE LD. PR. CIT MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING UNDER THIS ACT , AND IF HE CONSIDERS THAT ANY ORDER PASSED BY THE ASSESSING OF FICER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE, HE MAY AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTER MA KING SUCH INQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THEREON AS T HE CIRCUMSTANCES ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 12 OF THE CASE JUSTIFY INCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLING THE ASSESSMENT AND DIRECT ING A FRESH ASSESSMENT. THE REQUIREMENT IN THIS PROVISION IS TO PASS THE ORDER 'AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD.' IT IS UNLIKE THE LANGUAGE OF CERTAIN PROVISIONS OF THE ACT, INCLUDIN G SECTION 148 WHICH EXPRESSLY CONTAIN THE REQUIREMENT OF ISSUANCE OF NO TICE, AS IS EVIDENT FROM SUB-SECTION (1) OF SECTION 148 WHICH PROVIDES THAT BEFORE MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION UNDER SECTION 147, THE ASSESSING OFFICER SHALL SERVE ON THE ASSESSEE A NOT ICE REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, A RETURN OF HIS INCOME .... THUS IT IS EVIDENT THAT WHEREAS SE CTION 148 SPECIFICALLY REQUIRES SERVING A NOTICE ON THE ASSESSEE, SECTION 263 SIMPLY TALKS OF GIVING AN OPPORTUNITY OF BEING HEARD. SO LONG AS TH E ASSESSEE STANDS INFORMED OF THE PROCEEDINGS AGAINST HIM, THERE CAN BE NO IRREGULARITY IN THIS REGARD. THIS REQUIREMENT HAS NOTHING TO DO WIT H THE ASSUMPTION OF JURISDICTION OF THE PR. CIT RATHER IT FALLS IN THE REALM OF PRINCIPLE OF NATURAL JUSTICE. BREACH OF THE PRINCIPLES OF NATURA L JUSTICE MAY PREJUDICE THE LEGALITY OF THE ORDER MADE BUT CANNOT AFFECT TH E ASSUMPTION OF JURISDICTION BY THE PR CIT. A SATISFACTION THAT AN ORDER PASSED BY THE AO UNDER THE ACT IS ERRONEOUS AND PREJUDICIAL TO THE I NTEREST OF THE REVENUE IS THE BASIC PRE-CONDITION FOR EXERCISE OF JURISDICTION UNDER SECTION 263. BOTH ARE TWIN CONDITIONS THAT HAVE TO BE CONJOINTLY PRESENT. ONCE SUCH SATISFACTION IS REACHED, JURISDICTION TO EXERCISE THE POWER WOULD BE AVAILABLE SUBJECT TO OBSERVANCE OF THE PRI NCIPLES OF NATURAL JUSTICE. THEREFORE, SO LONG AS THE ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, THE JURISDICTION VESTS WITH THE PR. CIT TO REVISE SUCH AN ORDER, OF COURSE, SUB JECT TO THE LIMITATION ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 13 ENSHRINED IN THE PROVISION. THIS IS THE WELL-ESTABL ISHED LEGAL POSITION WHICH HAS BEEN REITERATED BY THE COURTS FROM TIME T O TIME. 20. IN THIS REGARD, WE REFER TO THE DECISION OF TH E HONBLE SUPREME COURT IN CASE OF RAMPYARI DEVI SAROGI (SUPRA), WHICH HAS BEEN RELIED UPON BY THE LD CIT-DR, WHEREI N IT WAS HELD IN CONTEXT OF SECTION 33B OF INDIAN INCOME TAX ACT, 19 22 WHICH IS ANALOGOUS TO SECTION 263 OF THE ACT AS UNDER (HEAD NOTES): THE HIGH COURT WAS RIGHT IN OVERRULING THE CONTENT ION OF THE ASSESSEE. THE ORDER OF THE COMMISSIONER WAS A DETAI LED ORDER. THERE WAS NO DOUBT THAT HE DID MENTION SOME FACTS W HICH WERE NOT INDICATED OR COMMUNICATED TO THE ASSESSEE AND W HICH THE ASSESSEE HAD HAD NO OPPORTUNITY OF MEETING. THE HIGH COURT WAS RIGHT IN HOLDING THAT ALL THIS M ATERIAL WAS SUPPORTING MATERIAL AND DID NOT CONSTITUTE THE BASI C GROUNDS ON WHICH THE ORDERS UNDER SECTION 33B WERE PASSED BY T HE COMMISSIONER. THERE WAS AMPLE MATERIAL TO SHOW THAT THE ITO MADE THE ASSESSMENTS IN UNDUE HURRY. THE ASSESSEE W AS A NEW ASSESSEE AND FILED VOLUNTARY RETURNS IN RESPECT OF A NUMBER OF YEARS, I.E., FROM ASSESSMENT YEARS 1952-53 TO 1960- 61. THE RETURN FOR THE ASSESSMENT YEAR 1953-54 WAS UNDATED. THE RETURNS FOR THE ASSESSMENT YEARS 1952-53 AND 1954-5 5 TO 1957- 58 WAS DATED 21-3-1961, AND THOSE FOR THE ASSESSMEN T YEARS 1958-59 TO 1960-61, WERE DATED 26-4-1961. ON 21-3-1 961, THE ASSESSEE MADE A DECLARATION GIVING THE FACTS REGARD ING INITIAL CAPITAL, THE ORNAMENTS AND PRESENTS RECEIVED AT THE TIME OF MARRIAGE, OTHER GIFTS RECEIVED FROM HER FATHER-IN-L AW, ETC., WHICH ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 14 SHOULD HAVE PUT ANY ITO ON HIS GUARD. BUT THE ITO W ITHOUT MAKING ANY ENQUIRIES TO SATISFY HIMSELF PASSED THE ASSESSMENT ORDER ON 30-3-1961, FOR THE ASSESSMENT YEARS 1952-5 3 TO 1957- 58, AND ON 26-4-1961, FOR THE ASSESSMENT YEARS 1958 -59 TO 1960-61. NO BANK ACCOUNT OR ANY PROPER BOOKS OF ACC OUNT WERE MAINTAINED BY THE ASSESSEE OR PRODUCED BEFORE THE I TO. A SHORT STEREO-TYPED ASSESSMENT ORDER WAS MADE FOR EACH ASS ESSMENT YEAR. PROFIT FROM SPECULATION WAS SHOWN AS RS. 3,08 5 AND INTEREST RS. 600, AND RS. 500 WAS ADDED FOR WANT OF BOOKS OF ACCOUNT AND EVIDENCE. NO EVIDENCE WHATSOEVER WAS PRODUCED IN RE SPECT OF THE MONEY-LENDING BUSINESS DONE AND INTEREST INCOME SHOWN TO HAVE BEEN RECEIVED BY THE ASSESSEE. NO NAMES WERE G IVEN AS TO THE PARTIES TO WHOM THE LOANS WERE ADVANCED, WITH A MOUNTS AND RATE OF INTEREST AND AS TO WHEN THE INTEREST INCOME WAS RECEIVED. IT WAS NOT NECESSARY TO FURTHER DETAIL THE REASONS GIVEN BY THE COMMISSIONER BECAUSE ON THE FACE OF THE RECORD THE ORDERS WERE PREJUDICIAL TO THE INTEREST OF THE REVENUE, AND EVE N IF THE FACTS WHICH THE COMMISSIONER INTRODUCED REGARDING THE ENQ UIRIES MADE BY HIM HAD BEEN INDICATED TO THE ASSESSEE, THE RESU LT WOULD HAVE BEEN THE SAME. THE ASSESSEE, HAD NOT IN ANY WAY SUF FERED FROM THE FAILURE OF THE COMMISSIONER TO INDICATE THE RES ULTS OF THE ENQUIRIES. MOREOVER, THE ASSESSEE WOULD HAVE FULL O PPORTUNITY OF SHOWING TO THE ITO WHETHER HE HAD JURISDICTION OR N OT AND WHETHER THE INCOME ASSESSED IN THE ASSESSMENT ORDER S WHICH WERE ORIGINALLY PASSED WAS CORRECT OR NOT. THE APPEAL WAS LIABLE TO BE DISMISSED AND DECISION OF HIGH COURT WAS TO BE AFFIRMED. ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 15 21. THEREAFTER, IN CASE OF GITA DEVI AGGARWAL VS CIT (1970) 76 ITR 496, THE HONBLE SUPREME COURT HAS AGAIN HELD AS UNDER: IN THIS STATE OF FACTS THE HIGH COURT HAD TAKEN TH E VIEW THAT AN OPPORTUNITY WAS GIVEN TO THE APPELLANT AS REQUIRED BY SECTION 33B OF THE 1922 ACT. SECTION 33B OF THE ACT DOES NOT IN EXPRESS TERMS REQUIRE A NOTICE TO BE SERVED AS IN THE CASE OF SEC TION 34 OF THE 1922 ACT. SECTION 33B MERELY REQUIRES THAT AN OPPOR TUNITY OF BEING HEARD SHOULD BE GIVEN TO THE ASSESSEE AND THE STRINGENT REQUIREMENT OF SERVICE OF NOTICE UNDER SECTION 34 C ANNOT, THEREFORE, BE APPLIED TO A PROCEEDING UNDER SECTION 33B. THE HIGH COURT HAD FOUND AFTER AN EXAMINATION OF THE EV IDENCE OF THE CASE THAT THE APPELLANT WAS GIVEN AN OPPORTUNITY OF BEING HEARD BEFORE RESPONDENT NO. 1 MADE THE ORDER UNDER SECTIO N 33B OF THE 1922 ACT. THERE WAS NO REASON TO DIFFER FROM THE FI NDING OF THE HIGH COURT ON THIS ASPECT OF THE CASE. ACCORDINGLY, THE APPEAL FAILED AND WAS DISMISSED. 22. THEREAFTER, IN CASE OF CIT VS ELECTRO HOUSE (1971) 82 ITR 824, THE HONBLE SUPREME COURT HAS REITERATED THE LEGAL PROPOSITION AND HAS HELD AS UNDER: THIS SECTION UNLIKE SECTION 34 DOES NOT PRESCRIBE ANY NOTICE TO BE GIVEN. IT ONLY REQUIRES THE COMMISSIONER TO GIVE AN OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. THE SEC TION DOES NOT SPEAK OF ANY NOTICE. IT IS UNFORTUNATE THAT THE HIG H COURT FAILED TO NOTICE THE DIFFERENCE IN LANGUAGE BETWEEN SECTIONS 33B AND 34. FOR THE ASSUMPTION OF JURISDICTION TO PROCEED UNDER SECTION 34 THE ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 16 NOTICE AS PRESCRIBED IN THAT SECTION IS A CONDITION PRECEDENT. BUT NO SUCH NOTICE IS CONTEMPLATED BY SECTION 33B. THE JURISDICTION OF THE COMMISSIONER TO PROCEED UNDER SECTION 33B IS NO T DEPENDENT ON THE FULFILLMENT OF ANY CONDITION PRECEDENT. ALL THAT HE IS REQUIRED TO DO BEFORE REACHING HIS DECISION AND NOT BEFORE COMMENCING THE ENQUIRY IS THAT HE MUST GIVE THE ASS ESSEE AN OPPORTUNITY OF BEING HEARD AND MAKE OR CAUSE TO MAK E SUCH ENQUIRY AS HE DEEMS NECESSARY. THOSE REQUIREMENTS H AVE NOTHING TO DO WITH THE JURISDICTION OF THE COMMISSI ONER. THEY PERTAIN TO THE REGION OF NATURAL JUSTICE. BREACH OF THE PRINCIPLES OF NATURAL JUSTICE MAY AFFECT THE LEGALITY OF THE ORDE R MADE BUT THAT DOES NOT AFFECT THE JURISDICTION OF THE COMMISSIONE R. AT PRESENT WE ARE NOT CALLED UPON TO CONSIDER WHETHER THE ORDE R MADE BY THE COMMISSIONER IS VITIATED BECAUSE OF THE CONTRAV ENTION OF ANY OF THE PRINCIPLES OF NATURAL JUSTICE. THE SCOPE OF THESE APPEALS IS VERY NARROW. ALL THAT WE HAVE TO SEE IS WHETHER BEF ORE ASSUMING JURISDICTION THE COMMISSIONER WAS REQUIRED TO ISSUE A NOTICE AND IF HE WAS SO REQUIRED WHAT THAT NOTICE SHOULD HAVE CONTAINED? OUR ANSWER TO THAT QUESTION HAS ALREADY BEEN MADE C LEAR. IN OUR JUDGMENT NO NOTICE WAS REQUIRED TO BE ISSUED BY THE COMMISSIONER BEFORE ASSUMING JURISDICTION TO PROCEE D UNDER SECTION 33B. THEREFORE THE QUESTION WHAT THAT NOTICE SHOULD CONTAIN DOES NOT ARISE FOR CONSIDERAT ION. IT IS NOT NECESSARY NOR PROPER FOR US IN THIS CASE TO CONSIDER AS TO THE NATURE OF THE ENQUIRY TO BE HELD UNDER SECTION 33B. THEREFORE, WE REFRAIN FROM SPELLING OUT WHAT PRINCI PLES OF NATURAL JUSTICE SHOULD BE OBSERVED IN AN ENQUIRY UNDER SECT ION 33B. THIS ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 17 COURT IN GITA DEVI AGGARWAL V. COMMISSIONER OF INCO ME-TAX [1970] 76 ITR 496 (SC) RULED THAT SECTION 33B DOES NOT IN EXPRESS TERMS REQUIRE A NOTICE TO BE SERVED ON THE ASSESSEE AS IN THE CASE OF SECTION 34. SECTION 33B MERELY REQUIRES THAT AN OPPORTUNITY OF BEING HEARD SHOULD BE GIVEN TO THE ASSESSEE AND THE STRINGENT REQUIREMENT OF SERVICE O F NOTICE UNDER SECTION 34 CANNOT, THEREFORE, BE APPLI ED TO A PROCEEDING UNDER SECTION 33B. 23. THE ABOVE LEGAL PROPOSITION HAS BEEN REITERATE D BY THE HONBLE SUPREME COURT IN ITS LATEST DECISION IN CASE OF CIT VS AMITABH BACHCHAN (2016) 384 ITR 200 AS UNDER: 9. UNDER THE ACT DIFFERENT SHADES OF POWER HAVE BE EN CONFERRED ON DIFFERENT AUTHORITIES TO DEAL WITH ORDERS OF ASS ESSMENT PASSED BY THE PRIMARY AUTHORITY. WHILE SECTION 147 CONFERS POWER ON THE ASSESSING AUTHORITY ITSELF TO PROCEED AGAINST INCOM E ESCAPING ASSESSMENT, SECTION 154 OF THE ACT EMPOWERS SUCH AU THORITY TO CORRECT A MISTAKE APPARENT ON THE FACE OF THE RECOR D. THE POWER OF APPEAL AND REVISION IS CONTAINED IN CHAPTER XX O F THE ACT WHICH INCLUDES SECTION 263 THAT CONFER SUO MOTU POWER OF REVISION IN THE LEARNED C.I.T. THE DIFFERENT SHADES OF POWER CO NFERRED ON DIFFERENT AUTHORITIES UNDER THE ACT HAS TO BE EXERC ISED WITHIN THE AREAS SPECIFICALLY DELINEATED BY THE ACT AND THE EX ERCISE OF POWER UNDER ONE PROVISION CANNOT TRENCH UPON THE POWERS A VAILABLE UNDER ANOTHER PROVISION OF THE ACT. IN THIS REGARD, IT MUST BE SPECIFICALLY NOTICED THAT AGAINST AN ORDER OF ASSES SMENT, SO FAR AS THE REVENUE IS CONCERNED, THE POWER CONFERRED UNDER THE ACT IS ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 18 TO REOPEN THE CONCLUDED ASSESSMENT UNDER SECTION 14 7 AND/OR TO REVISE THE ASSESSMENT ORDER UNDER SECTION 263 OF TH E ACT. THE SCOPE OF THE POWER/JURISDICTION UNDER THE DIFFERENT PROVISIONS OF THE ACT WOULD NATURALLY BE DIFFERENT. THE POWER AND JURISDICTION OF THE REVENUE TO DEAL WITH A CONCLUDED ASSESSMENT, TH EREFORE, MUST BE UNDERSTOOD IN THE CONTEXT OF THE PROVISIONS OF THE RELEVANT SECTIONS NOTICED ABOVE. WHILE DOING SO IT MUST ALSO BE BORNE IN MIND THAT THE LEGISLATURE HAD NOT VESTED I N THE REVENUE ANY SPECIFIC POWER TO QUESTION AN ORDER OF ASSESSME NT BY MEANS OF AN APPEAL. 10. REVERTING TO THE SPECIFIC PROVISIONS OF SECTION 263 OF THE ACT WHAT HAS TO BE SEEN IS THAT A SATISFACTION THAT AN ORDER PASSED BY THE AUTHORITY UNDER THE ACT IS ERRONEOUS AND PREJUD ICIAL TO THE INTEREST OF THE REVENUE IS THE BASIC PRE-CONDITION FOR EXERCISE OF JURISDICTION UNDER SECTION 263 OF THE ACT. BOTH ARE TWIN CONDITIONS THAT HAVE TO BE CONJOINTLY PRESENT. ONCE SUCH SATIS FACTION IS REACHED, JURISDICTION TO EXERCISE THE POWER WOULD B E AVAILABLE SUBJECT TO OBSERVANCE OF THE PRINCIPLES OF NATURAL JUSTICE WHICH IS IMPLICIT IN THE REQUIREMENT CAST BY THE SECTION TO GIVE THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. IT IS IN THE CONTEXT OF THE ABOVE POSITION THAT THIS COURT HAS REPEATEDLY H ELD THAT UNLIKE THE POWER OF REOPENING AN ASSESSMENT UN DER SECTION 147 OF THE ACT, THE POWER OF REVISION UNDER SECTION 263 IS NOT CONTINGENT ON THE GIVING OF A NO TICE TO SHOW CAUSE. IN FACT, SECTION 263 HAS BEEN UNDERSTOO D NOT TO REQUIRE ANY SPECIFIC SHOW CAUSE NOTICE TO BE SER VED ON THE ASSESSEE. RATHER, WHAT IS REQUIRED UNDER THE SA ID ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 19 PROVISION IS AN OPPORTUNITY OF HEARING TO THE ASSES SEE. THE TWO REQUIREMENTS ARE DIFFERENT; THE FIRST WOULD COM PREHEND A PRIOR NOTICE DETAILING THE SPECIFIC GROUNDS ON WHIC H REVISION OF THE ASSESSMENT ORDER IS TENTATIVELY BEING PROPOSED. SUC H A NOTICE IS NOT REQUIRED. WHAT IS CONTEMPLATED BY SECTION 263, IS AN OPPORTUNITY OF HEARING TO BE AFFORDED TO THE ASSESS EE. FAILURE TO GIVE SUCH AN OPPORTUNITY WOULD RENDER THE REVISIONA L ORDER LEGALLY FRAGILE NOT ON THE GROUND OF LACK OF JURISDICTION B UT ON THE GROUND OF VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. REFE RENCE IN THIS REGARD MAY BE ILLUSTRATIVELY MADE TO THE DECISIONS OF THIS COURT IN GITA DEVI AGGARWAL V. CIT [1970] 76 ITR 496 AND IN CIT V. ELECTRO HOUSE [1971] 82 ITR 824 (SC). PARAGRAPH 4 O F THE DECISION IN ELECTRO HOUSE (SUPRA) BEING ILLUMINATIO N OF THE ISSUE INDICATED ABOVE MAY BE USEFULLY REPRODUCED HEREUNDE R: 'THIS SECTION UNLIKE SECTION 34 DOES NOT PRESCRIBE ANY NOTICE TO BE GIVEN. IT ONLY REQUIRES THE COMMISSION ER TO GIVE AN OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. THE SECTION DOES NOT SPEAK OF ANY NOTICE. IT IS UNFORTU NATE THAT THE HIGH COURT FAILED TO NOTICE THE DIFFERENCE IN L ANGUAGE BETWEEN SECTIONS 33-B AND 34. FOR THE ASSUMPTION OF JURISDICTION TO PROCEED UNDER SECTION 34, THE NOTIC E AS PRESCRIBED IN THAT SECTION IS A CONDITION PRECEDENT . BUT NO SUCH NOTICE IS CONTEMPLATED BY SECTION 33-B. THE JURISDICTION OF THE COMMISSIONER TO PROCEED UNDER S ECTION 33-B IS NOT DEPENDENT ON THE FULFILMENT OF ANY COND ITION PRECEDENT. ALL THAT HE IS REQUIRED TO DO BEFORE REA CHING HIS DECISION AND NOT BEFORE COMMENCING THE ENQUIRY, HE MUST ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 20 GIVE THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND MAKE OR CAUSE TO MAKE SUCH ENQUIRY AS HE DEEMS NECESSARY . THOSE REQUIREMENTS HAVE NOTHING TO DO WITH THE JURISDICTION OF THE COMMISSIONER. THEY PERTAIN TO T HE REGION OF NATURAL JUSTICE. BREACH OF THE PRINCIPLES OF NAT URAL JUSTICE MAY AFFECT THE LEGALITY OF THE ORDER MADE BUT THAT DOES NOT AFFECT THE JURISDICTION OF THE COMMISSIONER. AT PRE SENT WE ARE NOT CALLED UPON TO CONSIDER WHETHER THE ORDER M ADE BY THE COMMISSIONER IS VITIATED BECAUSE OF THE CONTRAV ENTION OF ANY OF THE PRINCIPLES OF NATURAL JUSTICE. THE SC OPE OF THESE APPEALS IS VERY NARROW. ALL THAT WE HAVE TO S EE IS WHETHER BEFORE ASSUMING JURISDICTION THE COMMISSION ER WAS REQUIRED TO ISSUE A NOTICE AND IF HE WAS SO REQ UIRED WHAT THAT NOTICE SHOULD HAVE CONTAINED? OUR ANSWER TO THAT QUESTION HAS ALREADY BEEN MADE CLEAR. IN OUR JUDGMENT NO NOTICE WAS REQUIRED TO BE ISSUED BY THE COMMISSIONER BEFORE ASSUMING JURISDICTION TO PROCEE D UNDER SECTION 33-B. THEREFORE THE QUESTION WHAT THA T NOTICE SHOULD CONTAIN DOES NOT ARISE FOR CONSIDERAT ION. IT IS NOT NECESSARY NOR PROPER FOR US IN THIS CASE TO CON SIDER AS TO THE NATURE OF THE ENQUIRY TO BE HELD UNDER SECTI ON 33-B. THEREFORE, WE REFRAIN FROM SPELLING OUT WHAT PRINCI PLES OF NATURAL JUSTICE SHOULD BE OBSERVED IN AN ENQUIRY UN DER SECTION 33-B. THIS COURT IN GITA DEVI AGGARWAL V. C IT, WEST BENGAL RULED THAT SECTION 33-B DOES NOT IN EXPRESS TERMS REQUIRE A NOTICE TO BE SERVED ON THE ASSESSEE AS IN THE CASE OF SECTION 34. SECTION 33-B MERELY REQUIRES TH AT AN ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 21 OPPORTUNITY OF BEING HEARD SHOULD BE GIVEN TO THE A SSESSEE AND THE STRINGENT REQUIREMENT OF SERVICE OF NOTICE UNDER SECTION 34 CANNOT, THEREFORE, BE APPLIED TO A PROCE EDING UNDER SECTION 33-B.' (PAGE 827-828). [NOTE: SECTION 33-B AND SECTION 34 OF THE INCOME TA X ACT, 1922 CORRESPONDS TO SECTION 263 AND SECTION 147 OF THE I NCOME TAX ACT, 1961] 11. IT MAY BE THAT IN A GIVEN CASE AND IN MOST CASES IT IS SO DONE A NOTICE PROPOSING THE REVISIONAL EXERCISE IS GIVEN TO THE ASSESSEE INDICATING THEREIN BROADLY OR EVEN SPECIFICALLY THE GROUNDS ON WHICH THE EXERCISE IS F ELT NECESSARY. BUT THERE IS NOTHING IN THE SECTION (SEC TION 263) TO RAISE THE SAID NOTICE TO THE STATUS OF A MA NDATORY SHOW CAUSE NOTICE AFFECTING THE INITIATION OF THE E XERCISE IN THE ABSENCE THEREOF OR TO REQUIRE THE C.I.T. TO CONFINE HIMSELF TO THE TERMS OF THE NOTICE AND FORECLOSING CONSIDERATION OF ANY OTHER ISSUE OR QUESTION OF FAC T. THIS IS NOT THE PURPORT OF SECTION 263. OF COURSE, THERE CAN BE NO DISPUTE THAT WHILE THE C.I.T. IS FREE TO EXERCISE H IS JURISDICTION ON CONSIDERATION OF ALL RELEVANT FACTS, A FULL OPPORTU NITY TO CONTROVERT THE SAME AND TO EXPLAIN THE CIRCUMSTANCES SURROUNDI NG SUCH FACTS, AS MAY BE CONSIDERED RELEVANT BY THE ASSESSE E, MUST BE AFFORDED TO HIM BY THE C.I.T. PRIOR TO THE FINALIZA TION OF THE DECISION. 12. IN THE PRESENT CASE, THERE IS NO DISPUTE THAT I N THE ORDER DATED 20TH MARCH, 2006 PASSED BY THE LEARNED C.I.T. UNDER SECTION 263 OF THE ACT FINDINGS HAVE BEEN RECORDED ON ISSUES THAT ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 22 ARE NOT SPECIFICALLY MENTIONED IN THE SHOW CAUSE NO TICE DATED 7TH NOVEMBER, 2005 THOUGH THERE ARE THREE (03) ISSUES M ENTIONED IN THE SHOW CAUSE NOTICE DATED 7TH NOVEMBER, 2005 WHIC H HAD SPECIFICALLY BEEN DEALT WITH IN THE ORDER DATED 20T H MARCH, 2006. THE LEARNED TRIBUNAL IN ITS ORDER DATED 28TH AUGUST , 2007 PUT THE AFORESAID TWO FEATURES OF THE CASE INTO TWO DIFFERE NT COMPARTMENTS. INSOFAR AS THE FIRST QUESTION I.E. FI NDINGS CONTAINED IN THE ORDER OF THE LEARNED C.I.T. DATED 20TH MARCH , 2006 BEYOND THE ISSUES MENTIONED IN THE SHOW CAUSE NOTICE IS CO NCERNED THE LEARNED TRIBUNAL TAKING NOTE OF THE AFORESAID ADMIT TED POSITION HELD AS FOLLOWS: 'IN THE CASE ON HAND, THE CIT HAS ASSUMED JURISDICT ION BY ISSUING SHOW CAUSE NOTICE U/S 263 BUT WHILE PASSING THE FIN AL ORDER HE RELIED ON VARIOUS OTHER GROUNDS FOR COMING TO THE F INAL CONCLUSION. THIS ITSELF MAKES THE REVISION ORDER BAD IN LAW AND ALSO VIOLATIVE OF PRINCIPLES OF NATURAL JUSTICE AND THUS NOT MAINT AINABLE. IF, DURING THE COURSE OF REVISION PROCEEDINGS THE CIT W AS OF THE OPINION THAT THE ORDER OF THE AO WAS ERRONEOUS ON S OME OTHER GROUNDS ALSO OR ON ANY ADDITIONAL GROUNDS NOT MENTI ONED IN THE SHOW CAUSE NOTICE, HE OUGHT TO HAVE GIVEN ANOTHER S HOW CAUSE NOTICE TO THE ASSESSEE ON THOSE GROUNDS AND GIVEN H IM A REASONABLE OPPORTUNITY OF HEARING BEFORE COMING TO THE CONCLUSION AND PASSING THE FINAL REVISION ORDER. IN THE CASE ON HAND, THE CIT HAS NOT DONE SO. THUS, THE ORDER U/S 263 IS VIOLATIVE OF PRINCIPLES OF NATURAL JUSTICE AS FAR A S THE REASONS, WHICH FORMED THE BASIS FOR THE REVISION BUT WERE NO T PART OF THE SHOW CAUSE NOTICE ISSUED U/S 263 ARE CONCERNED. THE ORDER OF ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 23 THE CIT PASSED U/S 263 IS THEREFORE LIABLE TO BE QU ASHED INSOFAR AS THOSE GROUNDS ARE CONCERNED.' 13. THE ABOVE GROUND WHICH HAD LED THE LEARNED TRIB UNAL TO INTERFERE WITH THE ORDER OF THE LEARNED C.I.T. SEEM S TO BE CONTRARY TO THE SETTLED POSITION IN LAW, AS INDICATED ABOVE AND THE TWO DECISIONS OF THIS COURT IN GITA DEVI AGGARWAL (SUPR A) AND ELECTRO HOUSE (SUPRA). THE LEARNED TRIBUNAL IN ITS ORDER DA TED 28TH AUGUST, 2007 HAD NOT RECORDED ANY FINDING THAT IN C OURSE OF THE SUO MOTU REVISIONAL PROCEEDINGS, HEARING OF WHICH W AS SPREAD OVER MANY DAYS AND ATTENDED TO BY THE AUTHORIZED RE PRESENTATIVE OF THE ASSESSEE, OPPORTUNITY OF HEARING WAS NOT AFF ORDED TO THE ASSESSEE AND THAT THE ASSESSEE WAS DENIED AN OPPORT UNITY TO CONTEST THE FACTS ON THE BASIS OF WHICH THE LEARNED C.I.T. HAD COME TO HIS CONCLUSIONS AS RECORDED IN THE ORDER DA TED 20TH MARCH, 2006. DESPITE THE ABSENCE OF ANY SUCH FINDIN G IN THE ORDER OF THE LEARNED TRIBUNAL, BEFORE HOLDING THE S AME TO BE LEGALLY UNSUSTAINABLE THE COURT WILL HAVE TO BE SAT ISFIED THAT IN THE COURSE OF THE REVISIONAL PROCEEDING THE ASSESSEE, A CTUALLY AND REALLY, DID NOT HAVE THE OPPORTUNITY TO CONTEST THE FACTS ON THE BASIS OF WHICH THE LEARNED C.I.T. HAD CONCLUDED THA T THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE ABOVE IS THE QUESTION TO WHICH THE COURT, THEREFORE, WILL HAVE TO TURN TO. 14. TO DETERMINE THE ABOVE QUESTION WE HAVE READ AN D CONSIDERED THE ORDER OF THE ASSESSING OFFICER DATED 30TH MARCH, 2004; AS WELL AS THE ORDER OF THE LEARNED C.I.T. DA TED 20TH MARCH, 2006. FROM THE ABOVE CONSIDERATION, IT APPEARS THAT THE LEARNED ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 24 C.I.T. IN THE COURSE OF THE REVISIONAL PROCEEDINGS HAD SCRUTINIZED THE RECORD OF THE PROCEEDINGS BEFORE THE ASSESSING OFFICER AND NOTED THE VARIOUS DATES ON WHICH OPPORTUNITIES TO P RODUCE THE BOOKS OF ACCOUNT AND OTHER RELEVANT DOCUMENTS WERE AFFORDED TO THE ASSESSEE WHICH REQUIREMENT WAS NOT COMPLIED WIT H BY THE ASSESSEE. IN THESE CIRCUMSTANCES, THE REVISIONAL AU THORITY TOOK THE VIEW THAT THE ASSESSING OFFICER, AFTER BEING CO MPELLED TO ADJOURN THE MATTER FROM TIME TO TIME, HAD TO HURRIE DLY COMPLETE THE ASSESSMENT PROCEEDINGS TO AVOID THE SAME FROM B ECOMING TIME BARRED. IN THE COURSE OF THE REVISIONAL EXERCI SE RELEVANT FACTS, DOCUMENTS, AND BOOKS OF ACCOUNT WHICH WERE O VERLOOKED IN THE ASSESSMENT PROCEEDINGS WERE CONSIDERED. ON SUCH RE-SCRUTINY IT WAS REVEALED THAT THE ORIGINAL ASSESSMENT ORDER ON SEVERAL HEADS WAS ERRONEOUS AND HAD THE POTENTIAL OF CAUSIN G LOSS OF REVENUE TO THE STATE. IT IS ON THE AFORESAID BASIS THAT THE NECESSARY SATISFACTION THAT THE ASSESSMENT ORDER DA TED 30TH MARCH, 2004 WAS ERRONEOUS AND PREJUDICIAL TO THE IN TERESTS OF THE REVENUE WAS RECORDED BY THE LEARNED C.I.T. AT EACH STAGE OF THE REVISIONAL PROCEEDING THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAD APPEARED AND HAD FULL OPPORTUNITY TO C ONTEST THE BASIS ON WHICH THE REVISIONAL AUTHORITY WAS PROCEED ING/HAD PROCEEDED IN THE MATTER. IF THE REVISIONAL AUTHORIT Y HAD COME TO ITS CONCLUSIONS IN THE MATTER ON THE BASIS OF THE R ECORD OF THE ASSESSMENT PROCEEDINGS WHICH WAS OPEN FOR SCRUTINY BY THE ASSESSEE AND AVAILABLE TO HIS AUTHORIZED REPRESENTA TIVE AT ALL TIMES IT IS DIFFICULT TO SEE AS TO HOW THE REQUIREM ENT OF GIVING OF A REASONABLE OPPORTUNITY OF BEING HEARD AS CONTEMPLAT ED BY ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 25 SECTION 263 OF THE ACT HAD BEEN BREACHED IN THE PRE SENT CASE. THE ORDER OF THE LEARNED TRIBUNAL INSOFAR AS THE FI RST ISSUE I.E. THE REVISIONAL ORDER GOING BEYOND THE SHOW CAUSE NOTICE IS CONCERNED, THEREFORE, CANNOT HAVE OUR ACCEPTANCE. T HE HIGH COURT HAVING FAILED TO FULLY DEAL WITH THE MATTER I N ITS CRYPTIC ORDER DATED 7TH AUGUST, 2008 WE ARE OF THE VIEW THA T THE SAID ORDERS ARE NOT TENABLE AND ARE LIABLE TO BE INTERFE RED WITH. 24. IN THE INSTANT CASE, FOR ASSUMPTION OF JURISDIC TION U/S 263, THEREFORE, WHAT IS THEREFORE REQUIRED TO BE SEEN IS THAT THE LD. PR. CIT SHOULD BE SATISFIED THAT THE ORDER PASSED BY THE AS SESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF THE REVENUE. WHETHER THE SHOW-CAUSE NOTICE HAS BEEN ISSUED OR NO T OR WHETHER SUCH SHOW-CAUSE NOTICE HAS BEEN ISSUED BY THE LD PR. CIT OR BY THE ITO(TECHNICAL) FOR AND ON BEHALF OF THE PR. CIT, DO ESNT MATTER AND HAS NO SIGNIFICANCE AS FAR AS ASSUMPTION OF JURISDICTIO N BY THE LD PR CIT IS CONCERNED. WHERE THE HONBLE SUPREME COURT HAS HEL D TIME AND AGAIN THAT ISSUANCE OF SHOW-CAUSE NOTICE AND STRINGENT CO NDITIONS OF SERVICE OF NOTICE AS REQUIRED U/S. 148 OF THE ACT CANNOT BE READ INTO THE PROVISIONS OF SEC. 263 OF THE ACT, MERE FACT THAT S HOW-CAUSE NOTICE HAS BEEN ISSUED BY ITO(TECHNICAL) LOSES ITS RELEVANCE S O FAR AS ASSUMPTION OF JURISDICTION U/S 263 IS CONCERNED. AS FAR AS AFF ORDING OPPORTUNITY TO THE ASSESSEE IS CONCERNED, SUCH SHOW-CAUSE NOTICE D ATED 6.10.2017 HAS BEEN ISSUED BY THE ITO(TECHNICAL) DULY AUTHENTICATE D AS ISSUED FOR AND ON BEHALF OF THE LD PR CIT, ALWAR DETAILING THE REA SONS/GROUNDS WHICH ARE PROPOSED FOR INITIATING THE REVISIONARY PROCEED INGS. FURTHER, THERE IS NO DISPUTE THAT SUCH SHOW-CAUSE NOTICE DATED 6.10.2 017 HAS BEEN DULY ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 26 SERVED ON THE ASSESSEE AND THE ASSESSEE HAS BEEN DU LY REPRESENTED THROUGH ITS AR BEFORE THE PR.CIT IN THE REVISIONARY PROCEEDINGS AND THE PRINCIPLE OF NATURAL JUSTICE HAVE THUS BEEN DULY AD HERED TO. THE DECISION RELIED UPON BY THE LEARNED ARS TAKING A CO NTRARY VIEW, IN OUR CONSIDERED OPINION, HAVE TO BE READ SUBJECT TO THE CONSISTENT AND SETTLED LEGAL POSITION AS CLEARLY ENUNCITIATED BY T HE HON'BLE SUPREME COURT AND WHICH HAS BEEN REITERATED FROM TIME TO TI ME AS WE HAVE DISCUSSED ABOVE. THEREFORE, WE OF THE CONSIDERED VI EW THAT MERELY BECAUSE THE SHOW CAUSE NOTICE DATED 06.10.2017 IS S IGNED BY THE ITO (TECHNICAL), THE SAME WILL NOT AFFECT THE ASSUMPTIO N OF JURISDICTION BY THE LD PR CIT U/S 263 OF THE ACT AND WE ARE UNABLE TO ACCEDE TO CONTENTIONS SO RAISED BY THE LD AR IN THIS REGARD. 25. NOW, COMING TO ANOTHER CONTENTION OF THE LD AR THAT THE PROCEEDINGS U/S 263 OF THE ACT WERE INITIATED AFTER RECEIVING THE PROPOSAL FROM THE ITO, WARD-1(1), ALWAR AND WHERE S UCH PROCEEDINGS HAVE BEEN INITIATED AFTER RECEIVING THE PROPOSAL FR OM THE ITO, THE SAID PROCEEDINGS AGAIN DESERVED TO BE QUASHED. 26. TO APPRECIATE AFORESAID CONTENTION, WE REFER TO THE SHOW-CAUSE NOTICE DATED 6.10.2017 AND THE FIRST PARA READS AS UNDER: WITH REFERENCE TO SUBJECT CITED ABOVE, I AM DIRECT ED TO STATE THAT ON EXAMINATION OF ASSESSMENT RECORDS IN YOUR CASE F OR THE ASSESSMENT YEAR 2013-14, THE PRINCIPAL COMMISSIONER OF INCOME TAX, ALWAR, HAS CONSIDERED THAT THE ASSESSMENT ORDE R DATED 28.03.2016 PASSED BY THE INCOME TAX OFFICER, WARD-1 (1), ALWAR, ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 27 FOR THIS ASSESSMENT YEAR IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE ON ACCOUNT OF THE RE ASON(S) DISCUSSED BELOW: IT IS THEREFORE CLEAR THAT PR CIT HAS EXAMINED THE ASSESSMENT RECORDS AND ON BEING SATISFIED THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE, HE HAS DIRECTED TO ISSUE THE SHOW-CAUSE NOTICE. THERE IS N O DISPUTE THAT A PROPOSAL HAS BEEN SENT BY THE ITO WARD 1(1), ALWAR, HOWEVER, THE SAME HAS BEEN DULY EXAMINED ALONG WITH THE ASSESSME NT RECORDS BY THE PR. CIT AND AFTER DULY APPLICATION OF MIND AND ON BEING SATISFIED THAT THE MATTER CALLS FOR HIS INTERVENTION, THE LD PR CIT HAS EXERCISED HIS JURISDICTION UNDER SECTION 263 OF THE ACT. WE FIND THAT SIMILAR CONTENTION HAS BEEN RAISED IN CASE OF SMT SUMITRA DEVI KHIRWAL VS CIT(SUPRA) AND WHICH HAS NOT BEEN ACCEPTED BY THE HONBLE CALCUTTA HIGH COURT WHEREIN IT WAS HELD AS UNDER: THE NEXT CONTENTION OF MR. SARAF IS THAT UNDER SEC TION 33B IT IS THE DUTY OF THE COMMISSIONER TO CALL FOR AND EXAMIN E THE RECORD OF ANY PROCEEDING AND IF HE CONSIDERS UPON SUCH EXA MINATION THAT THE INCOME-TAX OFFICER'S ORDER IS ERRONEOUS IN SO F AR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE HE MAY EXERCISE HIS POWERS UNDER THAT SECTION. IN THE INSTANT REFERENCE , ACCORDING TO LEARNED COUNSEL, THE COMMISSIONER DID NOT HIMSELF C ALL FOR ANY RECORDS BUT CERTAIN RECORDS WERE PLACED BEFORE HIM AND HE ACTED THEREON. FROM THIS POINT OF VIEW, SUBMITS COUNSEL F OR THE ASSESSEE, THE COMMISSIONER'S CONSOLIDATED ORDER CAN NOT BE SUSTAINED. IN OUR OPINION, THERE IS NO SUBSTANCE IN THIS ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 28 CONTENTION. AT PAGE 26 OF THE PAPER BOOK WE FIND TH E NOTICE UNDER SECTION 33B. THE OPENING WORDS OF THIS NOTICE ARE: 'ON CALLING FOR AND EXAMINING YOUR CASE FOR THE ASSESSM ENT YEARS 1956-57, 1957-58, 1958-59, 1959-60, 1960-61 AND 196 1-62 AND OTHER CONNECTED RECORDS.........'. THESE STATEMENTS IN THE NOTICE WERE CHALLENGED BEFO RE THE AUTHORITIES BELOW. IT IS POSSIBLE, AS THE DEPARTMEN TAL REPRESENTATIVE HIMSELF CONCEDED BEFORE THE TRIBUNAL , THAT THE RECORDS WERE PUT UP BEFORE THE COMMISSIONER BY HIS SUBORDINATES BUT THAT WAS NO REASON WHY HE WAS DEBARRED FROM EXE RCISING THE POWERS UNDER SECTION 33B. ALL THAT THE SECTION REQU IRES IS THAT BEFORE ISSUING A NOTICE UNDER SECTION 33B HE MUST C ALL FOR ALL RELEVANT PAPERS AND DOCUMENTS, EXAMINE THEM AND THE N ISSUE THE NOTICE IF HE IS SATISFIED THAT THE INTERESTS OF THE REVENUE HAVE SUFFERED. GOING THROUGH THE RECORDS OF THE TAX AUTH ORITIES IN THIS REFERENCE WE HAVE NO DOUBT THAT THE COMMISSIONER HA D COMPLIED WITH THESE PROVISIONS AND, AS SUCH, HIS ORDER OUGHT TO BE SUSTAINED. WE ARE THEREFORE UNABLE TO ACCEDE TO SAID CONTENTIO N OF THE LD AR AS WELL AND THE DECISIONS RELIED UPON BY THE LD AR ARE DISTINGUISHABLE AND SUBJECT TO DECISION OF THE HONBLE HIGH COURT AS DI SCUSSED SUPRA. 27. NOW, COMING TO THE CONTENTIONS OF THE LD AR REG ARDING THE SUBJECT MATTER/GROUNDS OF REVISION UNDER THE IMPUNG ED REVISION PROCEEDINGS. FIRSTLY, REGARDING CASH DEPOSIT FOUND DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE, THE LD AR SUBMITTED T HAT NECESSARY ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 29 DETAILS WERE CALLED FOR AND EXAMINED BY THE ASSESSI NG OFFICER AND AFTER DUE EXAMINATION, NO NEGATIVE INFERENCE WAS DRAWN BY THE AO AND IT WAS WRONG ON THE PART OF THE LD. PR. CIT TO HOLD TH AT THE ASSESSING OFFICER HAS NOT CONDUCTED PROPER ENQUIRY OR HAS NOT EXAMINED THE SAID ISSUE. IN RESPONSE, THE LD. CIT-DR SUPPORTED THE OR DER OF THE LD. PR.CIT AND SUBMITTED THAT THERE WAS CASH DEPOSI T OF RS. 1,40,25,000/- IN THE BANK ACCOUNTS OF THE ASSES SEE AND IT WAS EXPLAINED BEFORE THE AO THAT A SUM OF RS. 98,35,000 /- WAS RECEIVED FROM 76 PERSONS AS ADVANCE FOR SALE OF LAND AND RS. 27,80,000/- WERE RECEIVED FROM 20 PERSONS FROM SALE OF LAND ADMEASUR ING 1858.44 SQ. YDS. THE AO HAS ACCEPTED THE SOURCE OF CASH DEPOSIT S BY SIMPLY RELYING UPON THE AFFIDAVITS FILED BY THESE PERSONS AND HAS IGNORED THE FACT THAT THE NAMES OF THE PERSONS (20) TO WHOM LAND WAS SOLD ARE DIFFERENT FROM THE PERSONS (76) FROM WHOM THE ADVANCES TOWARD S SALE OF LAND WERE RECEIVED WITHOUT MAKING ANY ENQUIRIES IN THIS REGARD. IT WAS SUBMITTED THAT AS PER REPLY DATED 22.02.2016, THE A SSESSEE HAS FURNISHED ITS CASH ACCOUNT AND BANK BOOK FOR THE F. Y. 2013-14 & 2014- 15 BUT NOT FOR THE RELEVANT FINANCIAL YEAR I.E. 201 2-13 RELEVANT TO A.Y. 2013-14 AND ON THE BASIS OF THESE DOCUMENTS WHICH A RE NOT RELATED TO THE YEAR UNDER CONSIDERATION, THE AO HAS FOUND THE CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE AS EXPLAINED. 28. ON PERUSAL OF RECORDS, WE FIND THAT SUBJECT MAT TER OF REVISION IS THE SOURCE OF CASH DEPOSIT IN THE ASSESSEES BANK A CCOUNTS AMOUNTING TO RS 98,35,000. APPARENTLY, THE ASSESSMENT ORDER P ASSED BY THE ASSESSING OFFICER U/S 143(3) IS SILENT ON THIS MATT ER, HOWEVER AN OFFICE NOTE PREPARED BY THE ASSESSING OFFICER AND ANNEXED TO THE ASSESSMENT ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 30 ORDER IS AVAILABLE ON RECORD AT PAGE 11 OF THE REVE NUES PAPERBOOK. IN ORDER TO APPRECIATE THE RIVAL CONTENTIONS, WE DEEM IT APPROPRIATE TO REPRODUCE THE SAME IN VERBATIM AS UNDER:- OFFICE NOTE: THE CASE WAS SELECTED IN SCRUTINY WITH A CASS REASO N, CASH DEPOSIT IN SAVINGS BANK ACCOUNT(S) IS MORE THAN THE TURNOVER. WHILE SCRUTINIZING THE CASE IT WAS OBSERVED THAT THE ASSESSEE HAD SOLD A LAND DURING THE YEAR UNDER CONSIDERATION. A BIG PIECE OF LAND WAS C UT INTO SEVERAL PLOTS AND SOLD BY THE ASSESSEE. FOR SUCH PLOTS, THE ASSES SEE HAD RECEIVED CASH FROM PEOPLE TO WHOM SUCH LAND WAS SUPPOSED TO BE SOLD AND THE SAME AMOUNT WAS DEPOSITED IN HIS BANK ACCOUNT. HOWE VER, MANY DEALS FOR SUCH PLOTS WERE CANCELLED DUE TO SOME OR THE OT HER REASON AND THEN THE AMOUNT WAS REPAID TO THE PERSONS FROM WHOM SUCH AMOUNT WAS RECEIVED. THEREFORE, THE CASH DEPOSIT IN THE SAVING BANK ACCOUNT OF THE ASSESSEE WAS EXPLAINED BY HIM AND NO NEGATIVE INFER ENCE IS DRAWN FOR THE SAME. FOR THE LANDS WHICH WAS SOLD BY THE ASSES SEE NO CAPITAL GAIN WAS OFFERED BY HIM, CONSIDERING THE LAND TO BE AGRI CULTURE IN NATURE. IN THE ASSESSMENT ORDER IT HAS BEEN ESTABLISHED THAT S UCH LAND WAS NOT AND AGRICULTURE LAND, BUT A CAPITAL ASSET AND THERE FORE, THE GAIN ARISING OUT OF IT WOULD BE CHARGED ACCORDINGLY AS CAPITAL G AIN. FOR THE CALCULATION OF INDEXED COST OF ACQUISITION OF THE L AND THE RATE GIVE BY THE ASSESSEE WAS RS. 1,25,000/- FOR THE ENTIRE LAND I.E . 2655 SQ. YARDS. TO KNOW THE CORRECT/APPROXIMATE RATE OF THE LAND IN TH AT VICINITY SEVERAL LETTERS TEHSILDAR, SUB-REGISTRAR AND DIG STAMPS, AL WAR HAD BEEN WRITTEN BUT NO CONCRETE REPLY REGARDING THE LAND DU RING THE YEAR 1981- 82 WAS RECEIVED TILL THE FINALIZATION OF THIS ORDER . THEREFORE, THE ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 31 ASSESSMENT ORDER IS BEING PASSED WITH THE RATE AS P ROVIDED BY THE ASSESSEE WITH A NOTE THAT IN CASE SOMETHING ADVERSE IS RECEIVED LATER, THE APPROPRIATE ACTION WILL BE TAKEN ACCORDINGLY. 29. ON PERUSAL OF THE ABOVE, IT IS APPARENT THAT TH E VERY BASIS FOR SELECTION OF THE ASSESSEES CASE FOR SCRUTINY WAS C ASH DEPOSIT IN ASSESSEES SAVING BANK ACCOUNTS. THE ASSESSING OFF ICER HAS EXAMINED THE SOURCE OF SUCH CASH DEPOSIT AND HAS RECORDED A FINDING, THOUGH NOT IN THE ASSESSMENT ORDER BUT AT THE SAME TIME, IN AN OFFICE NOTE FORMING PART OF THE ASSESSMENT RECORDS THAT A BIG PIECE OF LAND WAS CUT INTO SEVERAL PLOTS AND FOR SUCH PLOTS, THE ASSESSEE HAS RECEIVED CASH FROM PEOPLE TO WHOM SUCH LAND WAS SUPPOSED TO BE SOLD AN D THE SAID AMOUNT WAS DEPOSITED IN HIS BANK ACCOUNT. IT HAS B EEN FURTHER RECORDED BY THE ASSESSING OFFICER THAT MANY DEALS F OR SUCH PLOTS WERE CANCELLED FOR VARIED REASONS AND THEN THE AMOUNT WA S REPAID TO THE PERSONS FROM WHOM SUCH AMOUNT WAS RECEIVED. THEREF ORE, THE CASH DEPOSIT IN THE SAVING BANK ACCOUNT OF THE ASSESSEE WAS HELD AS DULY EXPLAINED AND NO NEGATIVE INFERENCE WAS DRAWN BY TH E ASSESSING OFFICER. IT IS THEREFORE APPARENT AND CLEAR THAT I T IS NOT A CASE OF NO ENQUIRY OR LACK OF ENQUIRY BY THE ASSESSING OFFI CER. THERE WAS EXAMINATION OF SOURCE OF DEPOSIT IN ASSESSEES BANK ACCOUNTS WHICH WAS CARRIED OUT BY THE ASSESSING OFFICER AND ON SUCH EX AMINATION, THE ASSESSING OFFICER HAS HELD THAT THE SOURCE OF SUCH CASH DEPOSIT IS DULY EXPLAINED BY THE ASSESSEE AND NO NEGATIVE INFERENCE IS CALLED FOR. THEREFORE, ONCE THE ASSESSING OFFICER HAS EXAMINED AND TAKEN A VIEW IN THE MATTER, THE ASSESSMENT ORDER SO PASSED CANNOT B E HELD AS ERRONEOUS AS FAR AS ON THE GROUND OF LACK OF ENQUIR Y IS CONCERNED. ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 32 30. WE NOW REFER TO THE OBSERVATIONS AND FINDINGS OF THE LD PR CIT IN THIS REGARD IN ORDER TO DETERMINE HIS REASONING FOR HOLDING SUCH AN ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE SAID FINDINGS ARE CONTAINED AT PARA 2(A) AND THE SAME AR E REPRODUCED AS UNDER:- 2 (A) ON THE ISSUE REGARDING THE CASH DEPOSITS MAD E IN BANK ACCOUNT OUT OF THE ADVANCES SHOWN TO BE TAKEN AGAINST THE A GREEMENTS OF SALE OF PLOTS, IT IS QUITE CLEAR FROM THE ASSESSEEMENT R ECORD THAT THE ASSESSEE HAD CLAIMED THE SOURCES OF HUGE CASH, AMOU NTING TO RS. 1,11,25,000/-, DEPOSITED IN HIS BANK ACCOUNT, AS AD VANCES RECEIVED FROM 76 PERSONS TO THE EXTENT OF RS. 98,35,000/- AG AINST AGREEMENT OF SALE OF THE PIECES OF LAND, WHEREAS, IN ADDITION TO THIS AMOUNT THE ASSESSEE HAD SHOWN THE SALES CONSIDERATION OF PLOTS TO THE EXTENT OF RS. 27,80,000/- AGAINST SALES DEED EXECUTED DURING THE YEAR, IN FAVOUR OF 20 PERSONS. THE NAMES OF THESE PERSONS IN FAVOUR OF WHOM THE SALE- DEEDS WERE EXECUTED DURING THE YEAR, ARE DIFFERENT FROM THE NAME OF PERSONS FROM WHOM THE ADVANCES IN CASH HAD BEEN SHO WN TO BE RECEIVED DURING THE YEAR. THE VERSION OF CASH DEPOS ITED IN BANKS ACCOUNTS AS GIVEN BY THE ASSESSEE IS THAT OUT OF CA SH RECEIPTS OF ADVANCES MADE FROM 76 PERSONS OF SEVERAL AMOUNTS A GAINST AGREEMENT MADE FOR SALE OF PLOTS, THE SAME GET DEPOSITED IN C ASH IN HIS BANK ACCOUNT AND THEREFORE, THE SAID ACCOUNTS WITHDRAWN FROM BANK ACCOUNTS IN CASH & REFUNDED TO THOSE PERSONS ON ACCOUNT OF C ANCELATION OF AGREEMENT FOR SALE OF PLOTS DURING THE YEAR AND UPT O NEXT 3 YEARS. THIS WAS ACCEPTED BY THE AO MERELY ON THE BASIS OF AFFID AVIT(S) FILED ONLY BY ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 33 THE ASSESSEE AS OBTAINED FROM THOSE PERSONS AND STA TEMENT RECORDED OF 5 PERSONS OUT OF THESE, STATED TO BE PURCHASER OF T HE PLOTS, AND WITHOUT ASCERTAINING THE AVAILABILITY OF THE PLOTS ON THE L AND OF THE ASSESSEE FOR SELLING TO THE EXTENT OF SUCH NUMBERS. OUT OF 76 PE RSONS WHO FURNISHED THE AFFIDAVITS AND OUT OF WHICH THE STATEMENT RECOR DED OF 5 PERSONS, NONE OUT OF THEM HAD ENCLOSED/PRODUCED/FURNISHED AN Y SUPPORTIVE EVIDENCE OF THE TRANSACTION MADE WITH THE ASSESSEE IN THE FORM OF PURCHASE AGREEMENT MADE OR AGREEMENT OF CONCILIATIO N MADE WITH THE ASSESSEE. THERE WAS NO SUPPORTIVE EVIDENCE OF THE T RANSACTION MADE BY THOSE PERSONS WITH THE ASSESSEE WERE PRESENT BEFORE THE AO TO MAKE AN ASSUMPTION THAT THE AMOUNTS ARRIVED IN THE BANK ACCOUNTS OF THE ASSESSEE WERE FROM THE CASH ADVANCES RECEIVED BY TH E ASSESSEE FROM THE PURCHASERS OF PLOTS. FURTHER, IN THE AFFIDAVIT( S) FILED BY SAID PERSONS AND IN THE STATEMENT(S) RECORDED OF 5 PERSONS OUT O F THEM, THE SAME DO NOT NARRATE ANY PLOT SERIAL NUMBERS, AREA OF PLO T AND THE NAME OF THE SITE PLAN WITH LOCALITY, ETC. MOREOVER, FROM TH E AFFIDAVITS FURNISHED, THE GENUINENESS AND CREDITWORTHINESS OF SUCH PERSON S DO NOT PROVED. AS PER SECTION 3 OF INDIAN EVIDENCE ACT, 1872, AN A FFIDAVIT DOES NOT CONSTITUTE EVIDENCE. THEREFORE, FROM THE DOCUMENTS AVAILABLE ON THE RECORD, I AM OF THE OPINION THAT THE AMOUNT OF THE CASH DEPOSITED IN BANK ACCOUNTS OUT OF RECEIPT OF ADVANCES AGAINST SA LE OF PLOTS ARE NOT SUBSTANTIALLY PROVED. ACCORDINGLY THE ASSESSMENT OR DER PASSED BY THE AO IS BASED ON THE WRONG ASSUMPTION OF THE FACTS OF THE CASE ON THE ISSUE. HENCE, THE CONTENTION OF THE AR OF THE ASSES SEE GIVEN IN THE WRITTEN SUBMISSION MADE ON 15-11-2017 THAT THE ASS ESSMENT WAS COMPLETED AFTER VERIFYING ALL THE RELEVANT DOCUMENT S WHICH REQUIRED FOR COMPLETING OF THE ASSESSMENT PROCEEDINGS. .. THER EFORE, IT DOES NOT ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 34 REQUIRED ANY ORDER U/S 263 OF THE IT ACT, IS TREAT ED AS NON-CONVINCING ON THE ISSUE. 31. ON PERUSAL OF THE ABOVE, WE FIND THAT THE LD PR CIT HAS EXAMINED THE ASSESSMENT RECORDS AND ON SUCH DETAILED EXAMINA TION FOUND THAT IT IS CASE OF LACK OF ADEQUATE ENQUIRY ON PART OF THE ASSESSING OFFICER AND HELD THE ASSESSMENT ORDER SO PASSED TO BE ERRONEOUS . THE LD PR CIT HAS GIVEN A SPECIFIC FINDING THAT THE ASSESSING OFFICER HAS NOT ASCERTAINED WHETHER THE ASSESSEE WAS HAVING IN HIS POSSESSION A ND OWNERSHIP AS MANY NUMBER OF PLOTS OF LAND IN RESPECT OF WHICH TH E ASSESSEE HAS RECEIVED THE ADVANCE FROM 76 PERSONS. FURTHER, LD PR CIT HAS HELD THAT THE AFFIDAVITS FROM THESE BUYERS AND THE STATEMENT OF 5 OF THESE BUYERS RECORDED BY THE AO NOWHERE NARRATE THE PLOT SERIAL NUMBER, AREA OF PLOT, SITE PLAN, LOCALITY ETC. AND THEREAFTER, HE H AS HELD THAT BY MERELY RECEIVING THE AFFIDAVITS AND TAKING THE STATEMENTS OF 5 PERSONS ON FACE VALUE WITHOUT ANY FURTHER EXAMINATION, THE GENUINEN ESS OF THE TRANSACTION AND CREDITWORTHINESS OF THESE 76 BUYERS WERE NOT SUBSTANTIALLY PROVED. THEREAFTER, HE HAS FINALLY HE LD THAT THE ORDER PASSED BY THE ASSESSING OFFICER BASED ON INCORRECT AND MISTAKEN ASSUMPTION OF FACTS BY WAY OF ACCEPTING THE STATEME NT OF THE ASSESSEE ON FACE VALUE AND WITHOUT DUE VERIFICATION IS ERRON EOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND HE H AS SET-ASIDE THE ASSESSMENT ORDER WITH A DIRECTION TO THE ASSESSING OFFICER TO PASS ASSESSMENT ORDER AFRESH. WE THEREFORE FIND THAT THE RE IS A CLEAR FINDING RECORDED BY THE LD PR CIT ON EXAMINATION OF FACTS A ND MATERIAL ON RECORD AS TO HOW THE ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. AN D AT THE SAME TIME, TO ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 35 SAFEGUARD THE INTEREST OF THE REVENUE AND AT THE SA ME TIME, KEEPING THE PRINCIPLES OF NATURAL JUSTICE IN MIND, THE MATT ER WAS REMANDED BACK TO THE ASSESSING OFFICER FOR FRESH EXAMINATION AFTE R DUE OPPORTUNITY TO THE ASSESSEE. IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE THEREFORE OF THE VIEW THAT THE LD PR CIT IS RIG HT IN REMANDING THE MATTER FOR FRESH EXAMINATION. WE THEREFORE DONOT SE E ANY INFIRMITY AS FAR AS THIS PARTICULAR ISSUE OF CASH DEPOSIT IS CON CERNED AND THE ORDER OF THE PR CIT IS CONFIRMED TO THIS EXTENT. 32. REGARDING THE SECOND ISSUE OF COST OF ACQUISITI ON IN RESPECT OF PLOTS OF LAND SOLD DURING THE YEAR, IT WAS SUBMITTE D BY THE LD AR THAT THE SAME WAS DULY EXAMINED BY THE ASSESSING OFFICER AND IT IS WRONG ON THE PART OF THE LD. PR. CIT TO HOLD THE SAME WAS NOT BEEN PROPERLY EXAMINED BY THE ASSESSING OFFICER. PER CONTRA, THE LD CIT-DR SUBMITTED THAT THE ASSESSEE WAS HAVING TOTAL AREA OF THE LAND TO THE TUNE OF 4983 SQ. YDS AND THE ASSESSEE HAS SOLD 1858.44 SQ. YDS DURING THE YEAR AND IF THE AREA RELATING TO ROADS (1491.18 SQ. YDS. ) IS EXCLUDED FROM THE TOTAL AREA, STILL THE ASSESSEE SHOULD HAVE 1633.38 SQ. YDS. OF UNSOLD AREA. IT WAS SUBMITTED THAT IT IS DIFFICULT TO UNDE RSTAND HOW THE AO CAN ALLOW THE ENTIRE COST OF ACQUISITION WHEN THE SIGNI FICANT UNSOLD AREA IS STILL AVAILABLE WITH THE ASSESSEE. WE HAVE HEARD BO TH THE SIDES AND FIND THAT THE AO HAS CONSIDERED COST OF WHOLE OF THE ANC ESTRAL LAND VALUED AT RS 1,25,000 AS ON 1.4.1981 AS COST OF ACQUISITION AND THE SAME HAS BEEN ALLOWED SET OFF IN FULL AGAINST CERTAIN PLOTS OF LAND (OUT OF WHOLE OF THE ANCESTRAL LAND SO CONVERTED AND DIVIDED INTO PL OTS OF LAND) WHICH HAVE BEEN SOLD DURING THE YEAR. WE DONOT AGREE WITH THE CONTENTION OF THE LD DR TO EXCLUDE THE COST RELATING TO ROADS. WH AT THE ASSESSEE CAN ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 36 CLAIM IS THE PROPORTIONATE COST OF ACQUISITION CORR ESPONDING TO THE PLOTS OF LAND WHICH HAS BEEN SOLD DURING THE YEAR AND WE THEREFORE FIND THE ORDER OF THE AO IS ERRONEOUS TO THIS EXTENT. AT TH E SAME TIME, WE FIND THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING O FFICER U/S 143(3) OF THE ACT WAS ALSO SUBJECT MATTER OF APPEAL BEFORE THE LD. CIT(A) WHEREIN THE ASSESSEE HAS CHALLENGED THE ASSESSMENT OF LONG TERM CAPITAL GAIN ON SALE OF AGRICULTURAL LAND WHICH IN TURN INCLUDE DETERMINATION OF COST OF ACQUISITION FOR WORKING OU T SUCH CAPITAL GAINS. THEREFORE, THE PRESENT GROUND RELATING TO COST OF A CQUISITION RAISED BY THE LD. PR. CIT IN INVOKING HIS JURISDICTION U/S 26 3 OF THE ACT WAS VERY MUCH THE SUBJECT MATTER OF APPEAL BEFORE THE LD CIT (A) AND TO THIS EXTENT, WE AGREE WITH THE CONTENTION OF THE LD AR T HAT THE LD PR. CIT CANNOT EXERCISE HIS JURISDICTION UNDER SECTION 263 OF THE ACT AS FAR AS THIS MATTER IS CONCERNED AND TO THIS EXTENT, ORDER OF THE LD PR CIT STAND MODIFIED. 33. WE MAY ADD THAT WE HAVE GONE THROUGH VARIOUS D ECISIONS AND AUTHORITIES QUOTED BY THE LD AR AND WHICH HAVE BEEN NOT BEEN SPECIFICALLY DISCUSSED, HOWEVER WE FIND THAT THE SA ME ARE DISTINGUISHABLE AND DOESNT SUPPORT THE CASE OF THE ASSESSEE. 34. IN LIGHT OF ABOVE DISCUSSIONS AND IN THE ENTIRE TY OF FACTS AND CIRCUMSTANCES OF THE CASE, WE MODIFY THE ORDER OF T HE LD PR CIT TO THE LIMITED EXTENT OF ISSUE RELATING TO COST OF ACQUISI TION NOT FALLING UNDER HIS JURISDICTION U/S 263, BEING THE SUBJECT MATTER OF A PPEAL BEFORE THE LD CIT(A) AND THE REMAINING ORDER IS HEREBY SUSTAINED. ITA NO. 215/JP/2018 SHRI HARI RAM YADAV VS. PR.CIT 37 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31/12/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:-31/12/2018. * SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI HARI RAM YADAV, ALWAR. 2. IZR;FKHZ@ THE RESPONDENT- PR.CIT, ALWAR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 215/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR