Sun and Sun Inframetric Pvt. Ltd., Raipur V. Assistant Commissioner of Income Tax, Central Circle-1, Raipur

ITA 22/RPR/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3081 (ITAT-RAIPUR)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2016-2017
• Appeal Filed On: 09-04-2021
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P K M I R A
• Assessee Lawyers: PRAFULLA PENDSE
• Keywords: Sale consideration of property below Jantri Value; Principle of natural justice; Competent authority; TDS; Set aside
• Section: 68; 6; 263; 69C; 43CA; 40A(3); 143(3); 50C; 40(a)(ia); 48; 13; 119

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI N. K. CHOUDHRY, JUDICIAL MEMBER ./ I.T.A. NO.22/RPR/2021 ( / ASSESSMENT YEAR : 2016-17) SUN AND SUN INFRA METRIC PVT LTD 11/146, CHIKNI MANDIR, MALVIYA ROAD, RAIPUR, CHHATTISGARH / VS. ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-1, RAIPUR ./ ./ PAN/GIR NO. : AACCN 1338 F ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI PRAFULLA PENDSE, CA / RESPONDENT BY : SHRI P.K. MISHRA, CIT-DR / DATE OF HEARING 30.07.2021 / DATE OF PRONOUNCEMENT 25.10.2021 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE REVISIONAL ORDER OF THE PRINCI PAL COMMISSIONER OF INCOME TAX (PCIT IN SHORT), RAIPUR-1 COMMUNICATED TO THE ASSESSEE ON 27.03.2021 PASSED UNDER SECTION 263 OF THE INCOM E TAX ACT, 1961 (THE ACT IN SHORT) WHEREBY THE ASSESSMENT ORDER P ASSED BY THE ASSESSING OFFICER (AO IN SHORT) DATED 28.12.2018 UNDER SECTION 143(3) OF THE ACT CONCERNING ASSESSMENT YEAR (AY IN SHORT) 2016- 17 WAS SOUGHT TO BE SET ASIDE FOR REFRAMING THE ASS ESSMENT IN TERMS OF SUPERVISORY JURISDICTION. 2. AS PER ITS GROUNDS OF APPEAL, THE ASSESSEE HAS C HALLENGED THE REVISIONAL ACTION OF THE PCIT WHEREBY THE ASSESSING OFFICER WAS DIRECTED TO PASS THE ASSESSMENT ORDER DE NOVO AFTER MAKING ENQUIRIES ITA NO. 22/RPR/2021 SUN & SUN INFRAMETRIC PVT LTD VS. PCIT AY : 2016-2017 - 2 - ON THE POINTS SET OUT IN THE NOTICE WHICH WAS ALREA DY EXAMINED AND CONSIDERED DURING THE ORIGINAL ASSESSMENT PROCEEDIN GS CONCERNING AY 2016-17. THE ASSESSEE HAS CHALLENGED THE ASSUMPTIO N OF JURISDICTION BY THE PCIT UNDER SECTION 263 OF THE ACT ON THE GRO UND THAT THE ASSESSMENT ORDER UNDER REVISION IS NEITHER ERRONEOU S NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE. 3. BRIEFLY STATED, THE ASSESSMENT IN THE INSTANT CA SE WAS FRAMED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 28 .12.2018 BY THE ASSESSING OFFICER WHEREBY THE TOTAL INCOME OF THE A SSESSEE WAS ASSESSED AT RS.8,96,515/-. THEREAFTER, IN EXERCISE OF JURISDICTION UNDER SECTION 263 OF THE ACT, THE CASE RECORD OF THE ASSE SSMENT SO MADE WAS CALLED BY THE REVISIONAL COMMISSIONER. ON ITS APPRA ISAL, THE PCIT OBSERVED THAT THE IMPUGNED ASSESSMENT ORDER IS ERRO NEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. A S HOW-CAUSE NOTICE DATED 08.03.2021 (SIGNED ON 09.03.2021) WAS ISSUED TO THE ASSESSEE IN THIS REGARD SEEKING COMPLIANCE THROUGH E-MAIL INEXP LICABLY ON OR BEFORE 17.02.2021, I.E. PRIOR TO THE ISSUANCE OF NO TICE ITSELF. THE PERSONAL HEARING WAS HOWEVER SIMULTANEOUSLY ALLOWED TO BE AVAILED AT 11.03.2021 AT 11.00AM, I.E. WITHIN LESS THAN 48 HOU RS FROM THE DATE AND TIME OF SIGNING THE SHOW-CAUSE NOTICE. 4. AS PER THE SHOW-CAUSE NOTICE, THE REVISIONAL COM MISSIONER MADE WIDE RANGING ALLEGATIONS TO ASSAIL THE ASSESSM ENT ORDER SO PASSED. THE REVISIONAL COMMISSIONER ALLEGED THAT TH E ASSESSING OFFICER HAS FAILED TO CARRY OUT NECESSARY VERIFICAT IONS ON CERTAIN POINTS. AS PER THE REVISIONAL ORDER, THE ASSESSMENT ORDER WAS SET ASIDE AND DIRECTIONS WERE ISSUED TO THE ASSESSING OFFICER TO EXAMINE THE ISSUES INVOLVED. THE RELEVANT PARAGRAPH GIVING THE DIRECTIONS IS REPRODUCED HEREUNDER FOR READY REFERENCE:- ITA NO. 22/RPR/2021 SUN & SUN INFRAMETRIC PVT LTD VS. PCIT AY : 2016-2017 - 3 - 5. I HAVE GONE THROUGH THE CASE RECORD AND SUBMISS ION OF THE ASSESSEE FURNISHED DURING ASSESSMENT PROCEEDINGS. FROM THE FACTS NARRATED ABOVE, IT IS CLEAR THAT THE ASSESSIN G OFFICER HAS NOT CONDUCTED PROPER ENQUIRY REGARDING GENUINENESS OF THE CONTENTION MADE BY THE ASSESSEE. THEREFORE, I AM S ATISFIED THAT THE ASSESSMENT ORDER IS ERRONEOUS IN SO FAR AS IT I S PREJUDICIAL TO THE INTEREST OF REVENUE IN VIEW OF EXPLANATION 2 OF SECTION 263 OF THE INCOME-TAX ACT. THE AO IS DIRECTED TO MA KE ADEQUATE ENQUIRIES. 1. IDENTITY, GENUINENESS AND CREDITWORTHINESS OF M/S. GANGOTRI TRACON P. LTD IN RESPECT OF RECEIPT OF SUM OF RS.18,12,00,000/- IN THE LIGHT OF PROVISIONS OF SEC TION 68 OF THE I.T. ACT, 1961 2. TO VERIFY THE GENUINENESS OF BOTH STAMP PAPER WITH COMPETENT AUTHORITY WHO ISSUED THOSE STAMP PAPERS. 3. TO INVOKE THE DOCTRINE OF SUBSTANCE OVER FORM IN RE SPECT OF TRANSACTION WITH M/S. GANGOTRI TRACON P. LTD AFTER DUE VERIFICATION. 4. TO VERIFY THE UNSECURED LOAN, REPAYMENT OF LOAN AND INTEREST PAYMENT OF SUM OF RS.7,63,19,047/-, RS.5,59,31,494/ - & RS.19,71,250/- RESPECTIVELY. 5. TO VERIFY THE APPLICABILITY OF SECTION 43CA IN RESP ECT OF SALE DEED EXECUTED BELOW STAMP DUTY VALUE. 6. TO VERIFY THE APPLICABILITY OF SECTION 40A(3) IN RE SPECT OF PAYMENT FOR PURCHASE OF LAND. I, THEREFORE, SET ASIDE THE ASSESSMENT ORDER AND RE MAND IT BACK TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION OF THE ISSUES DISCUSSED HEREIN ABOVE BY CONDUCTING NECESSARY ENQU IRIES IN THIS CASE AND FRAMING FRESH ASSESSMENT ORDER AFTER AFFORDING ADEQUATE OPPORTUNITIES TO THE ASSESSEE. 5. AGGRIEVED BY THE IMPUGNED REVISIONAL ORDER, THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL. 6. WHILE THE REVENUE HAS SUPPORTED THE REVISIONAL A CTION IN THE ABSENCE OF ADEQUATE ENQUIRIES ON THE POINTS RECORDE D BY THE PCIT, THE ITA NO. 22/RPR/2021 SUN & SUN INFRAMETRIC PVT LTD VS. PCIT AY : 2016-2017 - 4 - LEARNED COUNSEL FOR THE ASSESSEE MADE EXTENSIVE SUB MISSIONS AND ASSAILED THE REVISIONAL ACTION OF THE PCIT ASSERTIV ELY. THE LD. COUNSEL SUBMITTED THAT THE REVISIONAL ORDER PASSED BY THE PCIT SUFFERS FROM THE VICE OF ARBITRARINESS AND LACK OF APPLICATION OF MIND ON THE ORAL AND WRITTEN SUBMISSIONS PUTFORTH & EVID ENCES ADDUCED IN ITS REBUTTAL. IT WAS ALLEGED THAT DIRECTIONS WERE G IVEN SUMMARILY. IT WAS FURTHER CONTENDED THAT THE ORDER OF THE PCIT AL SO SUFFERS FROM LACK OF PROPER OPPORTUNITY DESERVED IN THIS REGARD AS CAN BE SEEN FROM THE DATE OF ISSUE AND TIME MADE AVAILABLE TO ASSESS EE FOR COMPLIANCE THEREON. ON A BROADER RECKONING, THE LEARNED COUNSE L CLAIMED THAT THE REVISIONAL DIRECTIONS ARE BAD IN LAW IN THE ABSENCE OF ANY PERCEPTIBLE ERROR SHOWN IN THE ASSESSMENT ORDER SOUGHT TO BE RE VISED, WHICH MAY CAUSE PREJUDICE TO THE INTEREST OF THE REVENUE. WE SHALL DEAL WITH THE ISSUE BASED SUBMISSIONS ADVANCED BEFORE US AT THE A PPROPRIATE PLACE HEREINAFTER. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE REVISIONAL ORDER AS WELL AS THE ASSESSMENT ORDE R FOR AY 2016-17 IN QUESTION. WE HAVE ALSO TAKEN NOTE OF THE EVIDENCES , DOCUMENTS ETC. REFERRED TO AND RELIED UPON IN THE COURSE OF PROCEE DINGS BEFORE US IN TERMS OF RULE 18(6) OF THE INCOME-TAX (APPELLATE TR IBUNAL) RULES, 1963. 8. POINT NO. 1-4 OF THE DIRECTIONS OF THE PCIT TO T HE AO [AS EXTRACTED IN PARA 4 ABOVE] CONCERNS TRANSACTIONS RE LATING TO GTPL. THE PCIT ALLEGES ABSENCE OF ENQUIRY INTO THE NATURE AND SOURCE OF LOAN FROM GTPL RS. 18.12 CR. HAVING REGARD TO S. 6 8 OF THE ACT; THE ABSENCE OF VERIFICATION OF AGREEMENT FOR RECEIPT OF AFORESAID SUM BY WAY OF ADVANCE TOWARDS SALE OF LAND, NON VERIFICATI ON OF REPAYMENT OF LOANS RS. 6.11 CRS AND INTEREST RS. 47.36 LAKHS THE REON FROM THE ITA NO. 22/RPR/2021 SUN & SUN INFRAMETRIC PVT LTD VS. PCIT AY : 2016-2017 - 5 - PERSPECTIVE OF S. 69C OF THE ACT. THE DIRECTIONS HO WEVER APPEAR TO BE VAGUE AND INNOCUOUS. 8.1 IN DEFENSE, THE ASSESSEE CONTENDS THAT THE COPI ES OF FINANCIAL STATEMENT OF THE LENDER, INCOME-TAX RETURNS AND LED GER ACCOUNT OF THE LENDER COMPANY FOR AYS 2014-15, 2015-16 AND 2016-17 WERE FILED BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS IN PURSUANCE OF ENQUIRY MADE IN THIS REGARD. IT IS CONTENDED THAT T HE AMOUNT OF RS.18.12 CRORES ALLEGED BY THE PCIT WAS NOT RECEIVE D DURING THE YEAR AT ALL, BUT WAS RECEIVED OVER DIFFERENT FINANCIAL Y EARS MAINLY IN FY 2013-14 AND FY 2014-15. FOR THIS ASSERTIONS, A REF ERENCE WAS MADE TO THE LEDGER ACCOUNT OF THE LENDER COMPANY (PAGE N OS.117 & 118 OF THE PAPER-BOOK) TO DEMONSTRATE THAT AMOUNT OF RS.18 .12 CRORES REFERRED TO BY PCIT WAS RECEIVED THROUGH BANKING CH ANNEL IN FY 2013-14 & 2014-15 RELEVANT TO AY 2014-15 & 2015-16. IT IS THUS CONTENDED THAT THE PCIT CLEARLY MISDIRECTED HIMSELF IN LAW IN GIVING WRONGFUL DIRECTIONS OF ENQUIRY ON THE TOUCHSTONE OF SECTION 68 FOR SUCH AMOUNT WHOLLY UNCONNECTED TO THE PRESENT ASSES SMENT YEAR IN QUESTION. IT WAS ASSERTED THAT THE SCOPE OF S. 68 I S RESTRICTED TO CREDITS RECEIVED DURING THE YEAR AND DOES NOT EXTEND TO TRA NSACTIONS OF CREDITS RECEIVED IN SOME OTHER ASSESSMENT YEAR. THE ASSESSE E THUS CONTENDS THAT THE DIRECTIONS OF THE PCIT TO MAKE ENQUIRY IN THIS REGARD IS WITHOUT ANY LEGAL BASIS. THE AO COMMITTED NO ERROR IN NOT INVOKING S. 68 FOR PAST CREDITS AND THE DIRECTIONS OF PCIT A RE PRIMA FACIE BAD IN LAW. THE ASSESSEE THUS URGED FOR SETTING ASIDE S UCH DIRECTIONS. 8.2 WITHOUT PREJUDICE TO THE NON APPLICABILITY OF S . 68 AT THE THRESHOLD AS CONTENDED, IT IS FURTHER CASE OF THE A SSESSEE IN THE ALTERNATIVE THAT THE REVISIONARY POWERS HAVE BEEN E XERCISED BY PCIT ONLY ON THE BASIS OF THE LENDER COMPANY BEING CLASS IFIED BY THE SEBI ITA NO. 22/RPR/2021 SUN & SUN INFRAMETRIC PVT LTD VS. PCIT AY : 2016-2017 - 6 - AS A SHELL COMPANY COUPLED WITH SOME ADVERSARIAL ST ATEMENT OF ONE SHRI AMIT KUMAR KEDIA. IT IS VOCIFEROUSLY CONTENDE D THAT BOTH THESE FACTS WHICH ARE THE FOUNDATION FOR ENTERTAINMENT OF ADVERSE BELIEFS WERE NOT MADE AVAILABLE ON THE RECORD AT THE TIME O F ASSESSMENT, BUT APPEARS TO HAVE COME ON RECORD AFTERWARDS. THE PCIT PURPORTEDLY IN POSSESSION OF SUCH SO CALLED INFORMATION, HAS NEITH ER PROVIDED THE INFORMATION RECEIVED FROM SEBI NOR THE STATEMENT OF SHRI AMIT KUMAR KEDIA. THE ASSESSEE WAS DENIED THE VALUABLE R IGHTS OF ASCERTAINING THE OBJECTIVITY AND CORRECTNESS OF THE SO CALLED INFORMATION. THE VALUABLE RIGHT OF CROSS-EXAMINATIO N OF SUCH A THIRD PARTY WAS THUS NATURALLY DENIED DESPITE REQUESTS. I T WAS THUS CONTENDED THAT IN THE ABSENCE OF THE ASSESSEE BEING PRIVY TO SUCH ADVERSE MATERIAL, THE ACTION AGAINST THE ASSESSEE C ANNOT BE INVOKED UNDER ANY CIRCUMSTANCES. AS FURTHER SUBMITTED, THE LENDER IS A CLOSELY HELD CO. AND NOT LISTED AND IT IS A MATTER OF EXAMI NATION TO UNDERSTAND AS TO HOW THE SEBI HAS IMPLICATED SUCH CLOSELY HELD CO. BEHIND ITS BACK AND WITHOUT ANY OPPORTUNITY. THE CURRENT STATU S OF THE ALLEGATION OF SEBI IS ALSO UNKNOWN. THE WHOLE AFFAIR IS KEPT A DEEP SECRET WHILE TRYING TO DISPLACE A COMPLETED ASSESSMENT. THE AO I N ABSENCE OF ANY ADVERSE INFORMATION ON RECORD AT THE RELEVANT TIME COULD NOT FORESEE AND IMAGINE ANY ENQUIRY ON THIS ASPECT. THE ACTION OF AO COULD BE POSSIBLY BRANDED AS ERRONEOUS, ONLY IF THE AO WAS A LSO PRIVY TO SUCH PURPORTED INFORMATION ADVERSE TO THE ASSESSEE AT TH E RELEVANT TIME OF ASSESSMENT BUT HAS FAILED TO MAKE ENQUIRIES NECESSI TATED IN LAW. THIS IS NOT THE CASE. THE BONAFIDE ACTION OF AO, NOT BEI NG PRIVY TO SUCH SO CALLED INFORMATION, THUS CAN NOT BE SAID TO BE FALL ING WITHIN THE AMBIT OF CLAUSE (A) TO EXPLANATION 2 OF S. 263 OF THE ACT AND CONDEMNED AS ERRONEOUS. THE PCIT, AT A SUBSEQUENTLY STAGE, IF SO PROPOSES TO RELY ON SUCH INFORMATION, HE HIMSELF HAS TO NECESSARILY MAKE REQUISITE ENQUIRIES AFTER GIVING SOME REASONABLE OPPORTUNITY TO ENABLE THE ITA NO. 22/RPR/2021 SUN & SUN INFRAMETRIC PVT LTD VS. PCIT AY : 2016-2017 - 7 - ASSESSEE TO ASSIST THE PCIT IN COMING TO A LAWFUL C ONCLUSION. THE DIRECTIONS OF THE PCIT BASED ON SOME UN-CONFRONTED AND UNTESTED INNOCUOUS INFORMATION THUS DO NOT CARRY ANY LEGAL B ASE. 8.3 THE OTHER DIRECTIONS FOR VERIFICATION OF GENUIN ENESS OF STAMP PAPER FOR RECEIPT OF ADVANCE AGAINST SALE OF LAND, IT WAS ARGUED, PRIMA FACIE TANTAMOUNT TO AN ARDUOUS TASK FOISTED ON AO AND DO ES NOT PASS THE TEST OF REASONABLENESS IN ENQUIRY EXPECTED FOR THE PURPOSES OF DIRECTIONS UNDER S. 263 OF THE ACT. BE IT AS IT MAY , IT WAS CONTENDED THAT IN THE ABSENCE OF TAXABILITY OF SUCH SUM PERMI SSIBLE UNDER S. 68 OF THE ACT IN THE YEAR UNDER QUESTION, THE ENQUIRY SO DIRECTED ON THIS POINT IS DEVOID OF LEGAL BACKING AND IS A MEANINGLE SS EXERCISE. NO ERROR COULD THUS BE ENVISAGED IN THE ORDER OF AO ON THIS SCORE. 8.4 IT WAS FURTHER ASSERTED THAT NOTWITHSTANDING TO TAL IMPERMISSIBLY IN LAW TO ASSESS THE RECEIPT/CREDIT IN THE YEAR OTH ER THAN YEAR OF RECEIPT UNDER S. 68, THE IMPUGNED DIRECTIONS FOR S UBSTANCE OVER FORM IN THE GARB OF ALLEGED LACK OF ENQUIRY (ABSENCE A R EASONABLE ENQUIRY) IS TOTALLY INCREDULOUS AND IN GROSS BREACH OF MANDA TE ASSIGNED TO THE REVISIONAL AUTHORITY. IT WAS CONTENDED THAT THE PCI T HAS FAILED TO SHOW AS TO HOW THE AO COMMITTED ERROR AT THE TIME O F ASSESSMENT IN NOT APPLYING SUBSTANCE OVER FORM THEORY HAVING RE GARD TO MATERIAL AVAILABLE ON RECORD. SUCH QUESTIONS, BEING OF EXTRA -ORDINARY NATURE AND INHERENTLY SUBJECTIVE, ARE OUTSIDE THE SCOPE OF REVISIONAL PROCEEDINGS AND MAY, AT BEST, ARISE ONLY AT THE TIM E OF ASSESSMENT. 8.5 IT WAS NEXT SUBMITTED THAT, THE DIRECTION NO. 4 ALTHOUGH VAGUE LIKE OTHER FORMER DIRECTIONS, THE REPAYMENT OF LOAN S AND INTEREST IS SOUGHT TO BE VERIFIED UNDER S. 69C OF THE ACT. IN T HIS REGARD IT WAS CONTENDED THAT IT IS DIFFICULT TO VISUALIZE AS TO H OW THE REPAYMENT OF ITA NO. 22/RPR/2021 SUN & SUN INFRAMETRIC PVT LTD VS. PCIT AY : 2016-2017 - 8 - EXISTING LOANS WHICH IS NORMAL INCIDENCE HAS CAUSED PREJUDICE TO THE REVENUE. IT WAS FURTHER CONTENDED THAT WHERE THE RE PAYMENT OF LOANS AND INTEREST EXP THEREON ARE ALREADY RECORDED IN TH E BOOKS, S. 69C IS NON-STARTER AND CAN NOT BE INVOKED. 8.6 IT WAS SUBMITTED THAT ALL THE 4 VAGUE AND NON-D ESCRIPT DIRECTIONS OF THE PCIT IN RELATION TO TRANSACTION WITH GTPL SU FFERS OF VICE OF LACK OF APPLICATION OF MIND AND WHOLLY WRONG APPREC IATION OF FACTS AND LAW. THE DIRECTIONS GIVEN TO AO TO REFRAME THE ASSESSMENT THESE COUNTS ARE INHERENTLY AND PATENTLY OPPOSED TO MANDA TE OF PROVISIONS OF S. 263 OF THE ACT. 9. AS EVIDENT, THE FACTS NARRATED ON BEHALF OF THE ASSESSEE SPEAK FOR ITSELF AND DOES NOT REQUIRE ANY SERIOUS ELABORA TION. IT IS TRITE THAT SECTION 68 CANNOT BE INVOKED IN RELATION TO CREDITS UNCONNECTED TO THE ASSESSMENT YEAR IN QUESTION. THE FACTS ON RECORD PL ACED BEFORE THE PCIT AS WELL AS BEFORE US CLEARLY SHOW THAT THE ALLEGED SUM OF RS.18.12 CRORES FROM GTPL WAS NOT RECEIVED IN ASSESSMENT YEA R IN QUESTION BUT WAS RECEIVED IN THE EARLIER ASSESSMENT YEAR AND WAS DULY ASSESSED. THE AMOUNT REPRESENTS OPENING BALANCE OF CARRIED FO RWARD CREDIT OF AN EARLIER YEAR. HENCE, THE DIRECTION FOR VERIFICATION OF TRANSACTIONS, OUTSIDE THE PURVIEW OF SECTION 68 OF THE ACT, TRAVE LS BEYOND THE SCOPE OF POWERS CONFERRED UNDER S. 263 AND COULD NOT HAVE BEEN GIVEN BY THE PCIT IN THE GARB OF REVISION. THE CONSEQUENTIAL DIRECTIONS TOWARDS GENUINENESS OF STAMP PAPER OF RECEIPT OF ADVANCE FR OM GTPL AND APPLICABILITY OF DOCTRINE OF SUBSTANCE OVER FORM ET C. BEING RELATABLE TO RECEIPT OF LOANS IN OTHER ASSESSMENT YEAR ARE APPAR ENTLY FAR-FETCHED AND HAVE NO RELEVANCE FOR ASSESSMENT OF INCOME OF T HIS YEAR. THE ORDER OF THE ASSESSING OFFICER ON THIS SCORE IS NEI THER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE. SIMILARLY, WE ALSO FAIL TO ITA NO. 22/RPR/2021 SUN & SUN INFRAMETRIC PVT LTD VS. PCIT AY : 2016-2017 - 9 - UNDERSTAND AS TO HOW THE REPAYMENT OF LOANS AND PAY MENT OF INTEREST EXPENDITURE DURING THE YEAR BEING A RECORDED TRANSA CTION IN THE BOOKS, FALLS WITHIN THE PURVIEW OF SECTION 69C OF THE ACT AS ALLEGED IN THE SHOW CAUSE NOTICE. ALL THE 4 DIRECTIONS IN RELATION TO LOAN TRANSACTIONS WITH GTPL THUS ARE DEVOID OF ANY LEGAL BASIS AND AR E OUTSIDE THE AUTHORITY OF PCIT. 10. IN THE ABSENCE OF ANY MERITS FOUND, THE DIRECT ION OF THE PCIT TO THE ASSESSING OFFICER FOR SOME ADEQUATE VERIFICATIO N ON SUCH POINTS ARE ILLUSORY AND CANNOT BE COUNTENANCED IN LAW AT T HE THRESHOLD. 11. NOTWITHSTANDING, WE ALSO TAKE NOTICE OF THE PLE A OF THE ASSESSEE THAT THE SO CALLED INCRIMINATING INFORMATION FROM S EBI AND STATEMENT OF SHRI AMIT KUMAR KEDIA COMING TO THE NOTICE OF PC IT POST ASSESSMENT, WAS NOT MADE AVAILABLE TO THE ASSESSEE DESPITE REQUESTS AND ENABLING IT TO PLACE ITS DEFENSE. IN THE CONVER SE, IT IS DEMONSTRATED ON BEHALF OF THE ASSESSEE THAT GTPL IS A NBFC REGISTERED WITH RBI AND IS A COMPANY OF A SOUND FIN ANCIAL STANDING AND A REGULAR TAX PAYER OF VERY HIGH AMOUNTS YEAR A FTER YEAR. ALSO, AS NOTED, THE ASSESSING OFFICER COULD HAVE MADE ENQUIR IES ONLY IN RELATION TO TRANSACTIONS ENTERED DURING THE YEAR AN D ON THE BASIS OF ADVERSE MATERIAL RECEIVED FROM OUTSIDE SOURCES AS A VAILABLE BEFORE HIM. THE AO THUS HAD NO PERCEPTIBLE OCCASION TO EXA MINE THE ENTRIES RELATING TO OTHER YEAR HAVING NO BEARING ON THE ASS ESSMENT OF THIS YEAR. IT THUS CANNOT BE SAID THAT THE ASSESSING OFF ICER LACKED IN PRAGMATISM AND REASONABLENESS OF A PRUDENT PERSON I NSTRUCTED IN LAW IN CONDUCTING ENQUIRY ON FACTS WHICH HE WAS NEITHER PRIVY TO NOR HAD ANY IMPACT ON THE ASSESSMENT OF THE YEAR IN QUESTIO N. 12. AT THIS JUNCTURE, A PERTINENT LEGAL QUESTION AL SO HAS CROPPED UP ON INTERPRETATION OF MANDATE AVAILABLE UNDER S. 263 READ WITH ITA NO. 22/RPR/2021 SUN & SUN INFRAMETRIC PVT LTD VS. PCIT AY : 2016-2017 - 10 - EXPLANATION 1 & EXPLANATION 2 APPENDED THERETO. THE INTERPLAY AND INTER-CONNECT BETWEEN THESE EXPLANATIONS HAVE BEEN EXAMINED IN ASSESSEES OWN CASE IN ITA NO. 21/RPR /2021 ORDER D T.22/10/2021 CONCERNING AY 2015-16 IN IDENTICAL FACTUAL MATRIX. THE RELEVANT PARA IS EXTRACTED THERE-FROM FOR READY REFERENCE. 13.1 TO BEGIN WITH, EXPLANATION 2 DEEMS THE ORDER P ASSED BY THE AO TO BE ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTERE ST OF REVENUE IN CERTAIN SITUATIONS NOTED THEREIN. WE ARE PRESENTLY CONCERNE D WITH CLAUSE (A) THERETO. CLAUSE (A) TO EXPLANATION (2) CONFERS POWE RS ON THE REVISIONAL AUTHORITY UNDER SECTION 263 WHERE THE ORDER IS PASS ED WITHOUT MAKING INQUIRIES OR VERIFICATIONS WHICH SHOULD HAVE BEEN M ADE. APPARENTLY, IN THE ABSENCE SO CALLED INCRIMINATING MATERIAL (AS AL LEGEDLY GATHERED FROM THIRD PARTIES IN THE INSTANT CASE) AT THE TIME OF A SSESSMENT, THERE IS NO OCCASION FOR THE AO TO EMBARK UPON INQUIRIES WHICH SHOULD HAVE BEEN MADE, AS EXPECTED IN TERMS OF CLAUSE (A) EXPLANATI ON 2. THE AO COULD NOT BE EXPECTED TO FATHOM SOME ROVING ENQUIRY IN THE AB SENCE OF SPECIFIC INPUTS WHICH PURPORTEDLY CAME TO THE POSSESSION OF THE PCIT SUBSEQUENT TO THE ASSESSMENT. THIS IS NOTWITHSTANDING THE FACT THAT THE IMPUGNED RECEIPT OF RS. 16 CR., (SOUGHT TO BE TREATED AS UNE XPLAINED CREDIT) IN ITSELF IS UNCONNECTED TO THE ASSESSMENT OF THIS YEAR. HENC E, THE ALLEGED LACK OF ENQUIRY ON THIS ISSUE IN THE IMPUGNED ASSESSMENT YE AR IN QUESTION CANNOT LEGITIMATELY BE DEEMED AS ERRONEOUS ON THE BASIS OF FACTS COMING TO LIGHT SUBSEQUENTLY AND THAT TOO, IN RELATION TO TRA NSACTIONS OCCURRED AND RELATABLE TO SOME OTHER YEAR ON THE TOUCHSTONE OF F ICTION ENACTED IN CLAUSE (A) TO EXPLANATION 2 TO SECTION 263. 13.2 NOTWITHSTANDING, IT WOULD BE PERTINENT TO SIMU LTANEOUSLY TAKE A LOOK AT THE ISSUE WITH REFERENCE TO CLAUSE (B) TO E XPLANATION 1 THERETO. CLAUSE (B) EXPLAINS THE TERM RECORD FOR THE PURPO SES OF S. 263 OF THE ACT. APPARENTLY, IT SEEKS TO SOMEWHAT EXPAND THE SC OPE OF SECTION 263 AND SEEKS TO HOLD THE ORDER UNDER REVIEW TO BE ERRO NEOUS EVEN ON THE BASIS OF INCRIMINATING INFORMATION IN RELATION TO T HE PROCEEDING COMING TO THE NOTICE OF THE REVISIONAL AUTHORITY SUBSEQUENT T O THE ORDER SOUGHT TO BE REVISED IS PASSED. HENCE, WHILE THE ORDER OF THE AO MAY NOT PER SE FALL WITHIN THE SWEEP OF CLAUSE (A) TO EXPLANATION 2, SU CH ORDER MAY STILL POSSIBLY BE REGARDED AS TO BE ERRONEOUS AND PREJUDI CIAL TO THE INTEREST OF REVENUE HAVING REGARD TO MEANING OF RECORD ENLARG ED IN EXPLANATION 1 TO SECTION 263. IN TERMS OF CLAUSE (B) TO EXPLANATI ON 1, THE PCIT HEREIN IS THUS ENTITLED TO REFER TO ALL RECORDS RELATING TO T HE ASSESSMENT PROCEEDINGS ALTHOUGH SUCH RECORDS / INFORMATION DID NOT EMANATE FROM THE ASSESSMENT PROCEEDINGS AS SUCH AND CAN ALSO POS SIBLY HOLD SUCH ORDER UNDER REVIEW TO BE ERRONEOUS IN APPROPRIATE CASE, B ASED ON SUBSEQUENT EVIDENCES GATHERED, WITHOUT ATTRIBUTING ANY FAULT T O THE AO. HENCE, ORDER UNDER REVIEW MAY BE HELD TO BE ERRONEOUS IN EITHER OF THE MUTUALLY EXCLUSIVE SITUATIONS NAMELY (I) WHERE AO FAILS TO M AKE REQUISITE ENQUIRY IN TERMS OF EXPLANATION 2 OR (II) WHERE REVISIONAL AUTHORITY DISCOVERS FRESH INCRIMINATING MATERIAL AFTER THE SUBJECT ORDE R IS PASSED EVEN ITA NO. 22/RPR/2021 SUN & SUN INFRAMETRIC PVT LTD VS. PCIT AY : 2016-2017 - 11 - WITHOUT ATTRIBUTING DELINQUENCY ON THE PART OF AO O WING EXPANDED MEANING ASSIGNED TO THE EXPRESSION RECORD IN EXPL ANATION 1. 13.3 IN OUR OPINION, A SUBTLE BUT REAL DISTINCTION BETWEEN THE MANNER OF EXERCISE OF REVISIONAL POWERS ARISE HERE. WHEREAS, THE TEMPLATE OF EXPLANATION-2 ITSELF HAVE BEEN READ DOWN AND SWEEPI NG REMIT TO THE AO FOR FRESH ENQUIRIES IN AN UNBRIDLED EXERCISE HAVE B EEN DISCOURAGED BY THE COURTS, WITHOUT REVISIONAL AUTHORITY HIMSELF UNDERT AKING SOME BASIC AND MINIMAL ENQUIRIES; THE SECOND SITUATION, IN OUR VIE W, CALLS FOR EVEN GREATER DEGREE OF CIRCUMSPECTION. IN THE INSTANCE C ASE, WHERE THE FAILURE TO MAKE DEEPER ENQUIRIES ARE NOT ATTRIBUTABLE TO AO PER SE HAVING REGARD TO THE FACT THAT SO CALLED ADVERSE MATERIAL HAS COM E TO THE LIGHT ONLY AFTER THE COMPLETION OF THE ASSESSMENT ORDER, IT IS OSTEN SIBLE THAT THE SACROSANCT PRINCIPLES OF NATURAL JUSTICE IN RELATIO N TO SUCH NEW ADVERSE MATERIAL HAS NOT BEEN OBSERVED AT THE STAGE OF FRAM ING THE ASSESSMENT ORDER. THUS AN OBVIOUS INCIDENTAL QUESTION WOULD AR ISE TOWARDS SAFEGUARDS AVAILABLE TO THE ASSESSEE AND ONUS PLACE D ON THE REVISIONAL AUTHORITY SEEKING TO DISTURB THE ORDER PASSED IN SU CH AN EXTRA-ORDINARY SITUATION. PRIMA FACIE, IT APPEARS TO US THAT THE R EVISIONAL AUTHORITY WOULD, IN SUCH A SITUATION, BE REQUIRED TO DON AND SUBSUME THE QUASI JUDICIAL ROLE PLAYED BY THE AO AS ENVISAGED IN LAW. IN THE EVENT OF FRESH MATERIAL COMING TO LIGHT, THE REVISIONAL AUTHORITY CAN NOT BYPASS THE PRINCIPLES OF NATURAL JUSTICE AND CASUALLY PRE-EMPT SUCH ORDER TO BE ERRONEOUS. A CANCELLATION OF AN ORDER ALREADY PASSE D AND COMING TO THE FORE, BASED ON FRESH MATERIAL, WITHOUT PERFORMING Q UASI-JUDICIAL TASK OF CONFRONTING THE MATERIAL TO ASSESSEE AND WEIGH ITS DEFENSE THEREON, WOULD BE CLEARLY OPPOSED TO DOCTRINE OF LEGITIMATE EXPECT ATIONS AND WOULD HAVE TO BE CONSTRUED AS A MERE IPSE DIXIT AND A PERFUNCT ORY EXERCISE OF REVISIONAL POWERS. IN OUR MIND, THE IMPERATIVES OF ENSHRINED PRINCIPLES OF FAIR PLAY ARE REQUIRED TO BE OBDURATELY OBSERVED IN SUCH SITUATION AND WITH GREATER CIRCUMSPECTION. THE ONUS OF A RELATIVE LY HIGHER PEDESTAL WOULD SQUARELY & PROFOUNDLY REST UPON THE PCIT TO C OMPREHENSIVELY DEMONSTRATE BY A SPEAKING ORDER THAT THE ORDER IS I NDEED ERRONEOUS AND CAUSING PREJUDICE. IT WOULD BE THUS INCUMBENT UPON THE PCIT TO EXERCISE DUE CIRCUMSPECTION & RESTRAINT EXPECTED OF A QUASI JUDICIAL OFFICER BEFORE ATTEMPTING TO DISLODGE THE ORDER OF A FUNCTIONARY R ANKED LOWER IN HIERARCHY. A SUMMARY SET ASIDE AS A SWEEPING MEASUR E AND RESTORATION OF ISSUE TO AO ON ACCOUNT OF PURPORTED LACK OR INADEQU ACY IN ENQUIRY ON THE POINT WOULD BE THUS NOT BE IN ACCORD WITH SCHEMATIC INTERPRETATION OF THE PROVISION. 13.4 OSTENSIBLY, BEFORE REMITTING THE MATTER TO AO, THE REVISIONAL AUTHORITY WOULD BE REQUIRED TO NECESSARILY TAKE UPO N HIMSELF AND SET A PRELIMINARY ENQUIRY IN MOTION TO GIVE CREDENCE TO H IS SATISFACTION OF ORDER PASSED BEING ERRONEOUS. THE REVISIONAL AUTHOR ITY WOULD BE LEGITIMATELY EXPECTED TO MAKE NECESSARY ENQUIRIES A S HE MAY CONSIDER EXPEDIENT, CONFRONT THE MATERIAL SOUGHT TO BE RELIE D UPON; FOLLOWED BY A SPEAKING ORDER. 13.5 PERTINENT TO NOTE THAT THE HONBLE GAUHATI HIG H COURT IN THE CASE OF SMT. LILA CHOUDHURY VS. CIT & ORS, (2007) 289 IT R 226 (GAUHATI) HAS BEFITTINGLY ECHOED THAT DEFENSE CANVASSED BY THE AS SESSEE IN RESPONSE TO NOTICE UNDER SECTION 263 OF THE ACT MUST BE CONSIDE RED AND EXAMINED TO ITA NO. 22/RPR/2021 SUN & SUN INFRAMETRIC PVT LTD VS. PCIT AY : 2016-2017 - 12 - SHUN SYMBOLIC EXERCISE OF POWERS IN A NONCHALANT AN D ROUTINE MANNER. THE REASONS ARE NOT FAR TO SEEK. THE ISSUES RAISED IN THE SHOW-CAUSE NOTICE ARE UNDERSTOOD TO BE REBUTTABLE AND THUS T HE ORDER OF THE REVISION WITHOUT CONSIDERING THE COUNTER-EXPLANATIO N OF THE ASSESSEE COULD NOT BE VALIDATED. CONCEIVABLY, THE BURDEN ON REVISIONAL AUTHORITY WITH REFERENCE TO SOME FRESH INFORMATION SURFACING AFTER PASSING OF AN ORDER IS RELATIVELY FAR GREATER. 14. IN THE BACKGROUND OF NUANCED UNDERSTANDING OF L AW CODIFIED IN S. 263, WE OBSERVE THAT THE ASSESSEE HAS VOCIFEROUSLY PLEADED BEFORE PCIT IN THE FIRST INSTANCE THAT THE SO CALLED LIST OF SH ELL CO. BY SEBI IMPLICATING LENDER ( A PRIVATELY HELD GROUP CO.), STATEMENT OF SOME THIRD PARTY WITNESS ALLEGING SUCH A PRIVATELY MANAGED COMPANY TO BE A S HELL COMPANY AND ALL OTHER MATERIAL COMING TO THE NOTICE OF DEPTT., WHIC H IS BASIS FOR ALLEGATION OF ORDER BEING ERRONEOUS, MUST BE CONFRONTED AND MA DE AVAILABLE TO ASSESSEE. SUCH MATERIAL WERE ADMITTEDLY NEVER CONFR ONTED TO THE ASSESSEE DESPITE SPECIFIC REQUEST. 14.1 PERTINENT HERE TO OBSERVE THAT WHILE IT IS FAI RLY SETTLED THAT SUBSTANTIVE POWER ENSHRINED IN THE ACT CANNOT BE OR DINARILY HELD HOSTAGE TO PROCEDURAL REQUIREMENTS, NONETHELESS, IT BEARS T O RECALL THAT PROCEDURE DELINEATED IN SECTION 263 IS A SUBSTANTIVE PROVISIO N AND THE PROVISION EXPLICITLY REQUIRES THE REVISIONAL AUTHORITY TO MEE T THE MANDATE OF PRINCIPLES OF NATURAL JUSTICE., AN ABIDING CHARACTE RISTIC OF ANY ADMINISTRATIVE OR QUASI-JUDICIAL FUNCTION IN ANY CA SE. THE STATUTORY PROTOCOLS ARE REQUIRED TO BE SCRUPULOUSLY MET, MORE SO, WHEN REVISION IMPINGES UPON SOME SORT OF CIVIL RIGHTS ACCRUED TO THE ASSESSEE AND SEEKS TO UNSETTLE A SETTLED ASSESSMENT. IT MUST BE ACKNOW LEDGED THAT SUCH EXERCISE OF POWERS OF REVISION OF A CONCLUDED ASSES SMENT AND FOR NO FAULT OF ASSESSEE, HUGELY DRAINS THE ASSESSEE WHO HAS TO UNDERGO A RESTART OF CONCLUDED PROCEEDING. KEEPING THIS IN VIEW, THE REV ISIONAL AUTHORITY BEING A VERY SENIOR OFFICER IN THE HIERARCHY IS EXP ECTED TO EXERCISE POWERS CONFERRED UNDER SECTION 263 WITH DILIGENCE, DEXTERI TY AND REASONABLENESS TO ACHIEVE AND ADVANCE THE OBJECT AND PURPOSES OF T HE ENACTMENT. 14.2 THE REVISIONAL ORDER SO PASSED, IN THE INSTANT CASE, ALLEGING EXISTENCE OF SOME ADVERSE MATERIAL WITHOUT ENABLING THE ASSESSEE TO RESPOND THERETO AND WITHOUT GIVING ANY EFFECTIVE OP PORTUNITY DESPITE EXPRESS DEMAND IS THUS PALPABLY FRAGILE AND REQUIRE S TO BE TREATED AS ILLEGAL. IN THE ABSENCE OF ADHERENCE TO SALUTARY PR INCIPLES, THE PURPORTED NEW MATERIAL IS RENDERED EXTRANEOUS AND HENCE REQUI RED TO BE IGNORED AS NON EST AND CONSEQUENTLY, THE REVISIONAL ACTION IS REQUIRED TO BE TESTED DOHORS SUCH ALLEGED MATERIAL. THE WHOLE CASE OF THE PCIT BUILT ON SUCH UNINTELLIGIBLE AND NON-DESCRIPT PREMISE IS THUS A D AMP SQUIB. ON THIS SCORE TOO, THE REVISIONAL ACTION FAILS. IN ESSENCE, IT WAS HELD THAT AN INDEPENDENT AND NEW PROCEEDING SETS IN MOTION ON RECEIPT OF NEW MATERIAL COMING ON RECORD POST ASSESSMENT IN TERMS OF EXPLANATION 1 TO S. 263 OF T HE ACT AND HENCE THE RESPONSIBILITY OF REVISIONAL AUTHORITY TOWARDS OBSERVANCE OF ITA NO. 22/RPR/2021 SUN & SUN INFRAMETRIC PVT LTD VS. PCIT AY : 2016-2017 - 13 - PRINCIPLES OF NATURAL JUSTICE, IN SUCH SITUATION, W OULD BE AKIN TO THAT OF AO. THE PCIT CAN NOT MERRILY SET ASIDE THE ASSES SMENT ON THE BASIS OF NEW MATERIAL COMING ON RECORD WITHOUT EXERTING H IMSELF AND CONFRONTING SUCH MATERIAL TO THE ASSESSEE. THE PCIT IS UNDER BOUNDEN DUTY TO TAKE INTO ACCOUNT THE PERSPECTIVE OF THE AS SESSEE ON SUCH FRESH MATERIAL AND IS REQUIRED TO PASS A SPEAKING O RDER THEREON. THE PCIT THUS COULD NOT MERELY SIT SOLELY IN THE CAPACI TY OF A REVISIONAL AUTHORITY QUA THE NEW MATERIAL BUT WAS REQUIRED TO PERFORM THE TASK OF AO IN TANDEM AND DISCHARGE QUASI-JUDICIAL FUNCTION INDEPENDENTLY. THE PCIT HAS FAILED TO DO SO. NEITHER THE PURPORTED EVIDENCE COLLECTED FROM SEBI WERE CONFRONTED NOR THE CROSS E XAMINATION OF ADVERSARIAL STATEMENT WAS PROVIDED. THE OPPORTUNITY CONTEMPLATED UNDER S. 263 IS THUS RENDERED ILLUSORY AND MERELY A N EMPTY FORMALITY RESULTING IN MISCARRIAGE OF JUSTICE IN CONTRAVENTIO N OF EXPRESSES INTENDMENT OF LAW. 13. LOOKING FROM ANY ANGLE, THE DIRECTIONS TOWARDS VERIFICATION OF LOAN TRANSACTIONS ARE UNSUSTAINABLE IN LAW AND DESE RVE TO BE QUASHED. THE DIRECTIONS NO. 1-4 ARE THUS SET ASIDE. 14. POINT NO.5 OF THE DIRECTIONS CONCERN APPLICABIL ITY OF SECTION 43CA IN RESPECT OF SALE DEED ALLEGED TO BE EXECUTED BELOW STAMP DUTY VALUE. IT IS THE CASE OF THE ASSESSEE THAT.. (A) THE CASE WAS PROPERLY EXAMINED BY THE AO AND THE FA CTS RELATING TO TRANSACTIONS WERE DULY REPORTED IN THE TAX AUDIT REPORT; (B) IN PAGE NO. 119 OF THE PAPER-BOOK, THE ASSESSEE HAS GIVEN THE DETAILS OF TRANSACTIONS COVERED BY SECTION 43CA AND THE ITA NO. 22/RPR/2021 SUN & SUN INFRAMETRIC PVT LTD VS. PCIT AY : 2016-2017 - 14 - CASES WHERE THE DIFFERENCE IS MORE THAN 10% IN THE VALUE HAVE BEEN SEPARATELY IDENTIFIED. (C) IT IS CONTENDED THAT, BY FINANCE ACT 2018, AN AMEND MENT WAS BROUGHT IN SECTION 43CA BY WAY OF FIRST PROVISO TO SECTION 43CA WHICH AIMED TO PROVIDE SOME RESPITE FROM THE R IGOURS OF LAW TO THE TAXPAYERS. IN VIEW OF INSERTION OF T HE FIRST PROVISO, A RELIEF HAS BEEN GRANTED TO THE ASSESSEE IN THE MATTER OF APPLICABILITY OF DEEMING FICTION OF SECTI ON 43CA WHERE THE VALUE ADOPTED OR ASSESSED BY STAMP DUTY A UTHORITY DOES NOT EXCEED 105% OF THE ACTUAL CONSIDERATION RE CEIVED. AS A RESULT OF SUCH AMENDMENT, THE ACTUAL CONSIDERA TION RECEIVED SHALL NOT BE DISTURBED AND SHALL BE ADOPTE D FOR THE PURPOSES OF TAXES. (D) AS PER FINANCE ACT 2020, THE BUFFER OF 5% QUA S. 43CA WAS FURTHER ENHANCED TO 10%. TAKING SUPPORT OF SUCH REL AXATIONS IN LATER ENACTMENTS, THE ASSESSEE CONTENDS THAT THE RELAXATIONS WERE GIVEN IN APPLICABILITY OF SECTION 43CA BY FINANCE ACT 2018 AND FINANCE ACT 2020 TO MITIGATE T HE UNDUE AND INTENDED HARDSHIPS FACED BY THE TAXPAYERS AND IS THUS CURATIVE IN NATURE; HENCE RETROSPECTIVE IN OPE RATION AND THUS EQUALLY APPLICABLE TO ASSESSMENT YEAR 2016-17 IN QUESTION WITH SAME FORCE. FOR SUCH INTERPRETATION, RELIANCE WAS PLACED ON THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. FABER CONSTRUCTION VS. ACIT IN ITA NO. 198/MUM/2019 . ANOTHER REFERENCE WAS TO DECISION IN THE CASE OF MARIA FERNANDES CHERYL VS ITO (2021) 187 ITD 738 (MUM) RENDERED ALBEIT IN THE CONTEXT SECTION 50C OF THE ACT. IT WAS THUS CONTENDED THAT TO THE EXTENT OF V ARIATION OF ITA NO. 22/RPR/2021 SUN & SUN INFRAMETRIC PVT LTD VS. PCIT AY : 2016-2017 - 15 - 10%, THE ISSUE IS ATLEAST DEBATABLE AND THE COURSE ADOPTED BY THE AO IS IN SYNC WITH BENEFICIAL INTERPRETATION AV AILABLE. CONSEQUENTLY NO ERROR CAN BE FOUND IN THE ACTION OF AO WHICH IS IN TUNE WITH A PLAUSIBLE IN LAW. 15. IN THE LIGHT OF THE FACTS POINTED OUT ON BEHALF OF THE ASSESSEE AND IN VIEW OF THE LEGAL POSITION UNDERSTOOD BY THE COORDINATE BENCHES, WE ARE UNABLE TO SEE ANY ERROR IN THE ACTI ON OF THE AO TO ACCEPT THE TRANSACTIONS OUTSIDE THE AMBIT OF SECTIO N 43CA WHERE THE VARIATIONS IN ACTUAL CONSIDERATION QUA ASSESSABLE V ALUE FOR THE PURPOSES OF STAMP DUTY DOES NOT EXCEED 10%. CONSEQU ENTLY, THE DIRECTIONS OF THE PCIT TO THIS EXTENT ARE THUS NULL IFIED. HOWEVER, THE DIFFERENCE UP TO 10% ONLY IS SAVED BY THE AMENDMENT S CARRIED OUT IN THE FINANCE ACT AND THEREFORE, THE ENQUIRY DIRECTED BY THE PCIT IN RESPECT OF TRANSACTIONS COVERED UNDER SECTION 43CA WHERE THE DIFFERENCE EXCEEDS 10% APPEAR JUSTIFIED. THUS, TO THIS LIMITED EXTENT, THE DIRECTIONS OF THE PCIT TO DIRECT ENQUIRIES FOR APPLICABILITY OF S. 43CA FOR TRANSACTIONS SHOWING BREACH OF SAFE HARBOU R LIMIT OF 10% REQUIRE TO BE UPHELD. IT IS THUS OPEN TO THE AO TO ENQUIRE INTO APPLICABILITY OF S. 43CA WHERE THE DIFFERENCE BETWE EN THE STAMP DUTY VALUE AND ACTUAL CONSIDERATION EXCEEDS 10% IN ACCOR DANCE WITH THE DIRECTIONS OF PCIT AND IN ACCORDANCE WITH LAW. THE ISSUE IS THUS ALLOWED IN PART. 16. THE SIXTH AND LAST ISSUE CONCERNS THE APPLICABI LITY OF SECTION 40(A)(IA) [WRONGLY MENTIONED AS SECTION 40A(3) THRO UGH INADVERTENCE] IN RESPECT OF COMMISSION PAYMENT ON P URCHASE OF LAND. IT IS THE CASE OF THE ASSESSEE THAT LEDGER ACCOUNT OF PARTIES NAMELY LEELADHAR SHARMA AND BAJRANG LAL KARNANY AND TDS CH ALLAN TOWARDS COMMISSION PAYMENTS WOULD SHOW THAT THE SATISFACTIO N OF THE PCIT IS CONTRARY TO THE FACTS ON RECORD. IT WAS CONTENDED T HAT BOTH TAX AUDIT ITA NO. 22/RPR/2021 SUN & SUN INFRAMETRIC PVT LTD VS. PCIT AY : 2016-2017 - 16 - REPORT AND AS WELL AS VERIFICATION OF AO VOUCHES TH E STAND OF THE ASSESSEE. WE FIND THAT THE ASSESSEE HAS ADEQUATELY DEMONSTRATED ON FACTS THAT THE TDS WAS PROPERLY DEDUCTED FROM THE C OMMISSION AND OTHER PAYMENTS POINTED OUT IN THE ORDER OF THE PCIT AND, THEREFORE, THE ACTION OF THE ASSESSING OFFICER CANNOT BE HELD TO BE ERRONEOUS OR IN CONTRAVENTION OF LAW. IN THE ABSENCE ANY DEFAULT AS WRONGLY PERCEIVED BY THE PCIT, THE ACTION OF THE PCIT, BEIN G UNJUSTIFIED, IS SET ASIDE ON THIS SCORE. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. PRONOUNCED ON 25.10.2021 AS PER RULE 34(4) OF THE I NCOME TAX APPELLATE TRIBUNAL RULES, 1963. SD/- SD/- SD/- SD/- (N. K. CHOUDHRY) (PRADIP K UMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMB ER BT TRUE COPY / COPY OF ORDER FORWARDED TO:- !' #$ / REVENUE 2' / ASSESSEE &' '(')* + / CONCERNED CIT 4' +- / CIT (A) .' /01 22)*3 )*3 / DR, ITAT, RAIPUR 4' 156 78 / GUARD FILE. BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR