Udit Prasad Babu, Sambalpur V. CIT, Sambalpur

ITA 239/CTK/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6298 (ITAT-CUTTACK)
• Duration Of Justice: 4 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 15-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Revision of order; Opportunity of being heard; Period of limitation; Assessment record; Set aside
• Section: 143(3); 50C; 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH , CUTTACK , . . , BEFORE SHRI CHANDRA MOHAN GARG, J M AND SHRI L .P. SAHU, A M ./ ITA NO. 239 /CTK /20 1 5 ( / ASSESSMENT YEAR :201 0 - 201 1 ) UDIT PRASAD BABU, NEW COLONY, BUDHARAJA, SAMBALPUR VS. PR. CIT, SAMBALPUR ./ PAN NO. : AAYPB 0331 K ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI B.PANDA, SENIOR ADVOCATE WITH SHRI B.R. PANDA , ADVOCATE /REVENUE BY : SHRI S.M.KESHKAMAT, CITDR / DATE OF HEARING : 18 /07/2019 / DATE OF PRONOUNCEMENT : 31 /07/2019 / O R D E R PER L.P.SAHU, A M : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE PR. CIT, SAMBALPUR U/S.263 OF THE INCOME TAX ACT , 1961, DATED 27.2.2015 FOR THE ASSESSMENT YEAR 2010 - 2011, ON THE FOLLOWING GROUNDS OF APPEAL : 1. FOR THAT, ON ANALYSIS OF THE CHRONOLOGICAL EVENTS AS MENTIONED IN PARA - 1 OF THE STATEMENT OF FACTS IT IS CRYSTAL CLEAR THAT FOR THE IMPUGNED ASSESSMENT YEAR THE APPELLANT HAS BEEN ASSESSED TWICE. ONCE U/S 143(3) AND AGAIN U/S 264 READ WITH U/S 143(3). YET THE ID COM MISSIONER OF INCOME TAX, SAMBALPUR HAS INVOKED SECTION 263 AND DIRECTED THE A.O TO RE DO THE ASSESSMENT ON THE ALLEGED UNEXPLAINED CASH DEPOSIT OF RS 38,70,000/ - WHICH IS TOTALLY ILLEGAL, ARBITRARY AND UNCALLED FOR. 2. FOR THAT, THE APPELLANT HUMBLY CHAL LENGES THE ORDER OF COMMISSIONER OF INCOME TAX, SAMBALPUR INVOKING SECTION 263 ON THE GROUND THAT ASSESSMENT HAS BEEN MADE TWICE I.E. ONCE U/S 143(3) ON 22 - 11 - 2012 AND AGAIN ON 22 - 09 - 2014 U/S ITA NO . 239 /CTK/201 5 2 264 READ WITH U/S 143(3). THE DIRECTION OF COMMISSIONER OF INCOM E TAX, SAMBALPUR U/S 263 SHOWS THAT THE REVENUE IS BENT UPON TO CONTINUE THE ASSESSMENT PROCEEDING IN THE CASE OF APPELLANT ON SOME PRETEXT OR OTHER. 3. FOR THAT, IT IS A FACT THAT CASE OF THE APPELLANT IS AN AUDITED ONE. AUDITED BALANCE SHEET AND PROF IT & LOSS ACCOUNT ARE BEING FILED EVERY YEAR. BOOKS OF ACCOUNTS ARE BEING PRODUCED AT THE TIME OF ASSESSMENT. YET THE REVENUE HAS DISBELIEF THE ALLEGED SOURCE OF CASH DEPOSIT. A. FOR THAT APART FROM OPENING CASH AT THE BEGINNING OF THE ASSESSMENT YEAR, T HE APPELLANT HAS SUBMITTED BEFORE THE REVENUE THE SOURCE OF CASH DEPOSIT IN SBI SAMBALPUR CC A/C NO - 10856900967 AND ORIENTAL BANK OF COMMERCE,, SAMBALPUR CURRENT A/C NO - 07461010001350. THE APPELLANT HAS BEEN USING THE CASH CREDIT FACILITIES IN THE COURSE O F BUSINESS AS AND WHEN REQUIRED. UNFORTUNATELY THE REVENUE DID NOT ACCEPT THE CONTENTION OF THE APPELLANT. THE ID COMMISSIONER OF INCOME TAX SAMBALPUR DIRECTED THE A.O TO RE DO THE ASSESSMENT AFTER HAVING ENQUIRY IN TO THE FACT. THE DIRECTION OF THE COMMIS SIONER OF INCOME TAX SAMBALPUR IS ARBITRARY, ILLEGAL, AND UNCALLED FOR. 4. FOR THAT IT IS EVIDENT THAT FROM THE COPIES OF THE BALANCE SHEET AND PROFIT & LOSS ACCOUNT OF THE IMPUGNED ASSESSMENT YEAR AND PRECEDING ASSESSMENT YEAR THAT THE APPELLANT HAS SUFFI CIENT CASH BALANCE TO DEPOSIT THE CASH WHICH HAS BEEN UNNECESSARILY QUESTIONED BY THE REVENUE. 5. FOR THAT, THE APPELLANT CRAVES LEAVE OR URGING OTHER GROUNDS AT THE TIME OF HEARING. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE DERIVES INCOME FROM EXECU TION OF CONTRACT WORKS. THE RETURN OF THE ASSESSEE WAS PROCESSED U/S.143(1) OF THE ACT. SUBSEQUENTLY THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND THE AO COMPLETED THE ASSESSMENT ON 22.11.2012 U/S.143(3) OF THE ACT DETERMINING THE TOTAL INCOME AT RS.36,25,354/ - , I NTER ALIA , MAKING THE FOLLOWING ADDITIONS: I) DISCREPANCY IN GROSS CONTRACTUAL RECEIPT: RS.7,35,609/ - II) NON - INCLUSION OF PPF INTEREST : RS. 53,064/ - ITA NO . 239 /CTK/201 5 3 LATER ON THE COMMISSIONER OF INCOME TAX, SAMBALPUR SET ASIDE THE CASE WITH DIRECTI ON TO THE ASSESSING OFFICER TO MAKE A DE NOVO COMPUTATION ON 1.11.2013. CONSEQUENT THERETO, THE ASSESSING OFFICER PASSED THE ORDER U/S.264 R.W.S 143(3) OF THE ACT ON 22.9.2014 DETERMINING THE TOTAL INCOME AT RS.28,80,816/ - AND GRANTED REFUND OF RS.7,350/ - . 3 . THE PR. CIT ON VERIFICATION OF ASSESSMENT RECORDS FOUND THAT THE ASSESSEE HAS MADE CASH DEPOSITS OF RS.38,70,000/ - IN TWO BANK ACCOUNTS VIZ A/C NOS.10856900967 AT SBI, MAIN BRANCH, SAMBALPUR AND 07461010001350 AT ORIENTAL BANK OF COMMERCE, SAMBALPUR BRANCH DURING THE FINANCIAL YEAR 2009 - 2010 AND DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS NOT OBTAINED DETAILS REGARDING THE SOURCE OF RECEIPTS OF SUCH HUGE CASH DEPOSITS AND FAILED TO MAKE EXAMINE/ENQUIRY ON THIS ASPECT. THEREFORE, IN T HE OPINION OF THE PR. CIT, THE ASSESSMENT ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. HENCE, HE IN EXERCISE OF HIS POWER CONFERRED U/S.263 OF THE ACT INITIATED PROCEEDINGS IN THIS CASE. NOTICE U/S.263 OF THE ACT WAS ISSUED TO THE ASSESSEE ON 30.1.2015. IN RESPONSE TO NOTICE, SHRI T.R.KARIR, ADVOCATE APPEARED AND SUBMITTED WRITTEN EXPLANATION & BANK STATEMENTS OF A/C. NO.10856900967 MAINTAINED AT SBI AND FURTHER SUBMITTED THE BANK ACCOUNT MAINTAINED WITH ORIENTAL BAN K OF COMMERCE . ON EXAMINATION OF THE ABOVE TWO BANK ACCOUNTS, THE PR. CIT FOUND THAT THERE WAS CASH DEPOSIT OF RS.25,80,000/ - ON DIFFERENT DATES WITH SBI AND RS.13,90,000/ - WITH ORIENTAL BANK OF COMMERCE DURING THE FINANCIAL YEAR 2009 - 2010. THE ASSESSEE EXPLAINED THE SOURCE OF CASH DEPOSITS WITH TWO ITA NO . 239 /CTK/201 5 4 BANKS, WHICH IS REPRODUCED AT PAGES 3 & 4 OF CITS ORDER. ON GOING THROUGH THE SUBMISSION/EXPLANATION OF THE ASSESSEE, THE PR. CIT OBSERVED THAT IT IS AN AFTERTHOUGHT ARRANGEMENT TO MANAGE THE AFFAIRS AND NO DEFINITE AND CONCRETE REPLY REGARDING THE SOURCE AND NATURE OF SUCH HUGE CASH DEPOSIT HAS BEEN EXPLAINED BY THE LD A.R AND NOR ANY EVIDENCE WAS PRODUCED. IT WAS IN THIS BACKDROP THAT THE PR. CIT VIEWED THAT THE NO PROPER ENQUIRIES AND VERIFICATIONS WERE MADE BY THE ASSESSING OFFICER WITH REGARD TO CASH DEPOSITS IN TWO BANKS, THEREFORE, THE ORDER PASSED U/S.143(3) OF THE ACT IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE AND, ACCORDINGLY, THE PR.CIT SET ASIDE THE ASSESSMENT ORDER AND RESTORED THE SAME TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO REDO THE ASSESSMENT AFTER VERIFYING THE SOURCE OF RECEIPT OF CASH DEPOSIT OF RS.38,70,000/ - IN THE BANK ACCOUNTS OF THE ASSESSEE AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASS ESSEE. 4 . AGGRIEVED BY THE ORDER OF THE PR.CIT, THE ASSESSEE HAS FILED APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL. 5 . BEFORE US, LD A.R. SUBMITTED THAT THE ASSESSMENT WAS COMPLETED U/S.143(3) OF THE ACT AND THE ASSESSING OFFICER CALLED FOR THE BOOKS OF ACCOUNT AND THEY HAVE BEEN VERIFIED AND EXAMINED. THE LD A.R. FILED THE ASSESSMENT ORDER U/S.143(3) OF THE ACT AND SUBMITTED THAT THE ASSESSING OFFICER MADE DISALLOWANCE AND, THEREFORE, THE PR. CIT HAS ERRED IN REVISING THE ORDER THOUGH IT IS NOT PREJU DICIAL AND ERRONEOUS TO THE INTERESTS OF THE REVENUE. HE ALSO SUBMITTED THAT THE INITIATION U/S.263 OF THE ACT BY THE PR. CIT IS TIME BARRED ALSO . LD. A R FURTHER SUBMITTED THAT ITA NO . 239 /CTK/201 5 5 THE ORDER PASSED U/S.143(3) R.W.S.264 CAN ALSO NOT BE TAKEN UP BY THE PR. CIT U/S.263 OF THE ACT. IT WOULD BE REVIEW OF HIS OWN ORDER. IN VIEW OF THIS, THE PROCEEDINGS U/S.263 OF THE ACT INITIATED BY THE LD. PR. CIT IS ITSELF WRONG. LD A.R. EXPLAINED THAT THE CASH DEPOSITS ARE BEING ROUTED THROUGH OTHER BANKS AND DULY SUPPORTED WITH THE FINANCIAL STATEMENTS AND DEMONSTRATED THE SAME BEFORE US. LD A.R. RELIED ON THE FOLLOWING JUDI CIAL DECISIONS: I) CIT VS. MAX INDIA LTD., 295 ITR 282 (SC) II) MALBAR INDUSTRIAL CO. LTD VS CIT, 243 ITR 83 (SC) 6 . ON THE OTHER HAND, LD D.R. RELIED ON THE ORDER OF THE PR. CIT AND EXPLAINED THAT IN THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS NOT VERIFIED THE CASH DEPOSITS BY THE ASSESSEE IN BANKS AND ITS SOURCE, AND, THEREFORE, THE PR. CIT IS JUSTIFIED IN SETTING ASIDE THE ASSESSMENT ORDER BY I NVOKING HIS POWER CONFERRED U/S.263 OF THE ACT. 7 . AFTER HEARING BOTH THE PARTIES AND CAREFUL PERUSA L OF THE MATERIALS AVAILABLE ON THE RECORD, WE FIND THAT T HE SOLE DISPUTED ISSUE IS WITH RESPECT TO SETTING ASIDE THE ASSESSMENT ORDER BY THE PR. CIT IN RES PECT OF NON - VERIFICATION OF CASH DEPOSITS MADE BY THE ASSESSEE TO THE EXTENT OF RS. 38,70,000/ - IN TH E BANK ACCOUNTS MAINTAINED WITH SBI AND ORIENTAL BANK OF COMMERCE, SAMBALPUR AND DIRECTING FOR FRESH ASSESSMENT AFTER DUE VERIFICATION. WE FIND THAT THE PR CIT IN HIS ORDER HAS DEALT ON THE ISSUE OF CASH DEPOSITS AND THE EXPLANATION FURNISHED BY THE ASSES SEE. PRIMA FACIE, IT APPEARS THAT THE PR. CIT FOUND THAT THE ORDER PASSED U/S.143(3) OF THE ACT IS WITHOUT MAKING ENQUIRIES ON THIS PARTICULAR DISPUTED ISS UE, WHICH IS RAISED IN THE REVISION PROCEEDINGS. LD A.R. ITA NO . 239 /CTK/201 5 6 SUBMITTED THAT THE ORDER OF THE ASSESSING OFFICER IS NOT ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE AND DEMONSTRATED BEFORE US LEDGER ACCOUNT COPIES. WE ARE OF THE CONSIDERED OPINION THAT THE EXPLANATION SUBMITTED BEFORE US ALONGWITH LEDGER ACCOUNT COPIES ARE TO BE VERIFIED BY THE A SSESSING OFFICER AND THE PR. CIT HAVING DEALT ON THIS ISSUE HAS REMITTED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION AS THE FACTS ARE NOT EM ANATING OUT OF ASSESSMENT ORDER. THOUGH LD A.R. SUPPORTED WITH JUDICIAL DECISIONS BUT ON PERUSAL OF RECORDS AND SUBMISSIONS, WE FOUND THAT THIS ASPECT OF CASH DEPOSITS WERE NOT VERIFIED BY THE ASSESSING OFFICER NOR LD A.R. COULD SUBSTANTIATE WITH NOTICE T HAT THE SAME WAS EXAMINED AND VERIFIED. T HE COUNSEL OF THE ASSESSEE MAD E WRONG ARGUMENTS THAT THE INITIATION U/S.263 OF THE ACT BY THE PR. CIT IS TIME BARRE D. THE INITIATION U/S.263 OF THE ACT WAS WITHI N THE TIME LIMIT AS PER THE PROVISIONS U/S.263 OF THE I. T. ACT . W E NOTICED THAT T HE ASSESSMENT U/S.143(3) OF THE ACT WAS COMPL ETED ON 22.11.2012, WHICH WA S LATER ON REVISED U/S.264 OF T HE I . T. ACT, 1961 ON THE PETITION FILED BY THE ASSESSEE VID E HIS APPLICATION DATED 22.07.2013 . THE PR. CIT, SAMBALPUR ON 01 .11.2013 SET ASIDE THE ORDER TO THE AO WITH DIRECTION TO MAKE FRESH ASSESSMENT AND THE AO COMPLETED THE ASSESSMENT U/S.143(3)/264 OF THE ACT ON 22.09.2014 . T HE PR. CIT CAN INITIATE THE REVISIONS PROCEEDI NGS U/S.263 OF THE ACT WITHIN TWO YEARS FROM THE END OF THE RELEVANT FINANCIAL YEAR IN WHICH THE ASSESSMENT HAS BEEN COMPLET ED BY THE ASSESSING OFFICER I.E. THE RELEVANT FINANCIAL YEAR ENDING IS 31.03.2013 AND TWO YEARS WOULD BE 31.03.2015. IN THE IMPUGNE D CASE, THE PR. CIT HAS ISSUED FIRST ITA NO . 239 /CTK/201 5 7 NOTICE ON 31.01.2 015 WHICH IS WELL WITHIN THE TIME. THEREFORE, IN THIS REGARD, THE ARGUMENTS AD VANCE D BY THE LD. AR OF THE ASSESSEE REGARDING INITIATION OF PROCEEDINGS U/S.263 OF THE ACT BEYOND THE TIME LIMIT, IS REJECTED. 8. ANOTHER ARGUMENT S OF THE COUNSEL OF THE ASSESS EE IS THAT THE PR. CIT CA NNOT INITIATE PROCEEDINGS U/S.263 OF THE ACT AFTER PASSING THE ORDER U/S.143(3) R.W.S.264 OF TH E ACT, IN THIS REGARD, THE ACT IS VERY CLEAR THAT AN Y ORDER PASSED BY THE ASSESSING OFFICER MAY BE TAKEN UP FOR REVISION U/S.263 OF T HE ACT. F OR THE SAKE OF COMPLETENESS OF OUR ORDER, WE WOULD LIKE TO REPRODUCE THE PROVISIONS OF SECTION 263 OF THE ACT : - REVISION OF ORDERS PREJUDICIAL TO REVENUE. 263. (1) THE 13 [PRINCIPAL COMMISSIONER OR] COMMISSIONER M AY CALL FOR AND EXAMIN E 14 THE RECOR D 14 OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDE R 15 PASSED THEREIN BY THE 16 [ASSESSING] OFFICER IS ERRONEOU S 15 IN SO FAR A S 15 IT IS 15 PREJUDICIAL TO THE INTERES TS OF THE REVENU E 15 , HE MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSARY, 15 PASS SUCH ORDER THEREO N AS THE CIRCUMSTANCES OF THE CASE JUSTIFY , INCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLING THE ASSESSMEN T 15 AND DIRECTING A FRESH ASSESSMENT. 17 [ 18 [ EXPLANATION 1 .] F OR THE REMOVAL OF DOUBT S 15 , IT IS HEREBY DECLARED THAT, FOR THE PURPOSES OF THIS SUB - SECTION, (A) AN ORDER PASSED 19 [ON OR BE FORE OR AFTER THE 1ST DAY OF JUNE, 1988] BY THE ASSESSING OFFICER SHALL INCLUDE (I) AN ORDER OF ASSESSMENT MADE BY THE ASSISTANT COMMISSIONER 20 [OR DEPUTY COMMISSIONER] OR THE INCOME - TAX OFFICER ON THE BASIS OF THE DIRECTIONS ISSUED BY THE 21 [JOINT] COMMISSIONER UNDER SECTION 144A ; AN ORDER MADE BY THE 21 [JOINT] COMMISSIONER IN EXERCISE OF THE POWERS OR IN THE P ERFORMANCE OF THE FUNCTIONS OF AN ASSESSING OFFICER CONFERRED ON, OR ASSIGNED TO, HIM UNDER THE ORDERS OR DIRECTION S ISSUED BY THE BOARD OR BY THE 22 [PRINCIPAL CHIEF COMMISSIONER OR] CHIEF COMMISSIONER OR 22 [PRINCIPAL DIRECTOR GENERAL OR] DIRECTOR GENERAL OR 22 [PRINCIPAL COMMISSIONER OR] COMMISSIONER AUTHORISED BY THE BOARD IN THIS BEHALF UNDER SECTION 120 ; (B) 'RECORD' 23 [SHALL INCLUDE AND SHALL BE DEEMED ALWAYS TO HAVE INCLUDED] ALL RECORDS RELATING TO ANY PROCEEDING UNDER THIS ACT AVAILABLE AT THE TIME OF EXAMINATION B Y THE 22 [PRINCIPAL COMMISSIONER OR] COMMISSIONER; (C) WHERE ANY O RDER REFERRED TO IN THIS SUB - SECTION AND PASSED BY THE ASSESSING OFFICER HAD BEEN THE SUBJECT MATTE R 24 OF ANY APPEAL 25 [FILED ON ITA NO . 239 /CTK/201 5 8 OR BEFORE OR AFTER THE 1ST DAY OF JUNE, 198 8 24 ], THE POWERS OF THE 26 [PRINCIPAL COMMISSIONER OR] COMMISSIONER UNDER THIS SUB - SECTION SHALL EXTEND 25 [AND SHALL BE DEEMED ALWAYS TO HAVE EXTENDED] TO SUCH M ATTERS AS HAD NOT BEEN CONSIDERED AND DECIDED IN SUCH APPEAL.] 27 [ EXPLANATION 2. FOR THE PURPOSES OF THIS SECTION, IT IS HEREBY DECLARED THAT AN ORDER PASSED BY THE ASSESSING OFFICER SHALL BE DEEMED TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, IF, IN THE OPINION OF THE PRINCIPAL COMMISSIONER OR COMMIS SIONER, (A) THE ORDER IS PASSED WIT HOUT MAKING INQUIRIES OR VERIFICATION WHICH SHOULD HAVE BEEN MADE; (B) THE ORDER IS PASSED ALLOWING ANY RELIEF WITHOUT INQUIRING INTO THE CLAIM; ( C) THE ORDER HAS NOT BEEN MADE IN ACCORDANCE WITH ANY ORDER, DIRECTION OR INSTRUCTION ISSUED BY THE BOARD UNDE R SECTION 119 ; OR (D) THE ORDER HAS NOT BEEN PASS ED IN ACCORDANCE WITH ANY DECISION WHICH IS PREJUDICIAL TO THE ASSESSEE, RENDERED BY THE JURISDICTIONAL HIGH C OURT OR SUPREME COURT IN THE CASE OF THE ASSESSEE OR ANY OTHER PERSON.] 28 [(2) NO ORDER SHALL BE MADE UND ER SUB - SECTION (1) AFTER THE EXPIRY OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER SOUGHT TO BE REVISED WAS PASSED.] (3) NOTWITHSTANDING ANYTHING CONTAINED IN SUB - SECTION (2), AN ORDER IN REVISION UNDER THIS SECTION MAY BE PASSED AT ANY TIME IN THE CASE OF AN ORDER WHICH HAS BEEN PASSED IN CONSEQUENCE OF, OR TO GIVE EFFECT TO, ANY FINDING OR DIRECTI ON CONTAINED IN AN ORD ER OF THE APPELLATE TRIBUNAL, 29 [NATIONAL TAX TRIBUNAL,] THE HIGH COURT OR THE SUPREME COURT. EXPLANATION . IN COMPUTING THE PERIOD OF LIMITATION FOR THE PURPOSES OF SUB - SECTION (2), THE TIME TAKEN I N GIVING AN OPPORTUNIT Y TO THE ASSESSEE TO BE REHEARD UNDER THE PROVISO TO SECTION 129 AND ANY PERIOD DURING WHICH ANY PROCEEDING UNDER THIS SECTION IS STAYED BY AN ORDER OR INJUNCT ION OF ANY COURT SHALL BE EXCLUDED. IT IS CLEAR FROM THE ABOVE SECTION THAT THE PR . CIT OR CIT MAY CALL FOR AND EXAMIN E THE RECOR D OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDE R PASSED THEREIN BY THE ASSESSING OFFICER IS ERRONEOU S IN SO FAR A S IT IS PREJUDICIAL TO THE INTERES TS OF THE REVENU E , HE MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THEREO N AS THE C IRCUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLING THE ASSESSMEN T AND DIRECTING A FRESH ASSESSMENT. IN THE IMPUGNED CASE, HE HAS INITIATED THE PROCEEDINGS ITA NO . 239 /CTK/201 5 9 ON THE ASSESSMENT ORDER FRAMED U/S.143(3) R.W . S.264 OF THE ACT, WHICH HAS BEEN PASSED BY THE ASSESSING OFFICER UNDER THE PROVISIONS OF INCOME TAX ACT, 1961 , WHICH IS WITHIN THE PURVIEW OF THE PROVISIONS OF SECTION 263 OF THE ACT AS QUOTED SUPRA, THEREFORE, WE DO NOT FIND ANY WEIGHTAGE IN THE ARGUMENTS ADVANCED BY THE LD. AR OF THE ASSESSEE THAT THE PR. CIT CANNOT INVOKE THE PROVISIONS OF SECTION 263 OF THE ACT REVISING THE ORD ER PASSED BY THE A SSESSING OFFICER U/S. 143(3) R.W.S 264 OF THE ACT. ACCORDINGLY, THIS ARGUMENT OF THE LD. AR OF THE ASSESSEE IS ALSO REJECTED. 9 . WE ALSO FIND FROM THE ORDER OF THE ASSESSING OFFICER AND DOCUMENTS SUBMITTED BY THE ASSESSEE THAT THE AO HAS NOT DONE PROPER ENQUIRY WHICH WAS REQUIRED FOR COMPLETING THE ASSESSMENT PAS SED BY THE AO. T HE INCOME - TAX OFFICER IS NOT ONLY AN ADJUDICATOR BUT ALSO AN INVESTIGATOR. THE PR. CIT HAS EXAMINED THE RECORDS AND FOUND THAT THERE WAS LACK OF ENQUIRY ON THE PART OF THE AO AND FOUND THAT THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE . 10 . WE RELY ON VARIOUS JUDICIAL PRONOUNCEMENTS, WHEREIN, IT WAS HELD THAT THE COMMISSIONER CAN REGARD THE ORDER AS ERRONEOUS ON THE GROUND THAT IN THE CIRCUMSTANCES OF THE CASE THE INCOME - TAX OFFICER SHOULD HAVE MADE FURTHER INQUIRIES BEFORE ACCEPTING TH E STATEMENTS MADE BY THE ASSESSEE IN HIS RETURN. IT IS HIS DUTY TO ASCERTAIN THE TRUTH OF THE FACTS STATED IN THE RETURN. WHEN THE CIRCUMSTANCES OF THE CASE ARE SUCH SO AS TO PROVOKE AN ENQUIRY, IT IS HIS DUTY TO MAKE PRO PER ENQUIRY. FAILURE TO MAKE ENQUI RY IN SUCH CIRCUMSTANCES WOULD MAKE THE ASSESSMENT ORDER ITA NO . 239 /CTK/201 5 10 ERRONEOUS. THE HONBLE APEX COURT IN THE CASE OF SMT. TARA DEVI AGGARWAL VS. CIT, 88 ITR 323 (SC), HAS HELD THAT THE CIT MAY CONSIDER AN ORDER OF THE AO TO BE ERRONE OUS NOT ONLY IT CONTAINS SOME APPA RENT ERROR OF REASONING OR OF LAW OR OF FACT ON THE FACE OF IT BUT ALSO BECAUSE IT IS A STEREO TYPED ORDER WHICH SIMPLY ACCEPTS WHAT THE ASSESSEE HAS STATED IN HIS RETURN AND FAILS TO MAKE ENQUIRIES WHICH ARE CALLED F OR IN THE CIRCUMSTANCES OF THE CAS E. THE ASSESSING OFFICER CANNOT REMAIN PASSIVE IN THE FACE OF A RETURN WHICH IS APPARENTLY IN ORDER BUT CALLS FOR FURTHER INQUIRY. TO SUPPORT OUR ABOVE VIEW, WE WOULD LIKE TO PLACE RELIANCE UPON THE DECISION OF COORDI NATE BENCH OF THE TRIBUNAL IN CASE OF BABULAL S. SOLANKI VS. ITO, [2019] 104 TAXMANN.COM 155 (AHMEDABAD - TRIB), WHEREIN THE TRIBUNAL HAS OBSERVED AS UNDER: - 5. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF APPLICABLE L EGAL POSITION. 6. WE FIND THAT THE ASSESSING OFFICER, VIDE LETTER DATED 9TH DECEMBER 2013, DID STATE, IN RATHER GENERAL TERMS, THAT WHERE THE STAMP DUTY VALUATION (I.E. JANTRI VALUE) IS DIFFERENT FROM SALE CONSIDERATIO N, THE ASSESSEE HAS TO STATE WHETHER T HE STAMP DUTY VALUATION WAS ADOPTED AS SALE CONSIDERATION. THERE WAS NEITHER A SPECIFIC REFERENCE TO THE FACTS OF THIS CASE OR THE APPLICATION OF SECTION 50. IN REPLY TO THIS LETTER, THE ASSESSEE STATED THAT 'THE LAND SOLD IS AGRICULTURAL LAND AS CLEARLY M ENTIONED IN THE SALE DEED', THAT 'INDEX COPY DATED 3RD JUNE 2011 (I.E. AFTER THE DATE OF SALE DEED) CLEARLY SHOWS THE SAID LAND AS AN AGRICULTURAL LAND' AND THAT 'JANTRI VALUE OF SAID AGRICULTURAL LAND IS RS 4,900 PER SQ MTR WHICH WAS CLEARLY MENTIONED AS PER LETTER OF SUPERINTENDENT OF STAMPS, GANDHINAGAR, GUJARAT'. IT WAS FURTHER CLARIFIED THAT 'THE VALUE OF RS 11,750 PER SQUARE METER ON WHICH STAMP DUTY IS PAID BY THE PURCHASER IS FOR NON AGRICULTURAL LAND'. THE ASSE SSEE THUS EXPLAINED THAT THE SALE CONS IDERATION IS LESS THAN THE STAMP DUTY VALUATION FOR THE LAND SOLD, AND THEN HE POINTED OUT THE COMPUTATION OF CONVERSION PREMIUM PAID BY THE ASSESSEE WAS ON THE BASIS OF VALUATION OF AGRICULTURAL LAND. THIS PLEA, HOWEV ER, PROCEEDS ON THE ASSUMPTION THAT TH E PROVISIONS OF SECTION 50C COME INTO PLAY ON A FAIR STAMP DUTY VALUATION OF THE LAND OR BUILDING OR BOTH, RATHER THAN THE ACTUAL VALUATION ADOPTED BY THE STAMP VALUATION AUTHORITY. SECTION 50 C COMES INTO PLAY, FOR SU BSTITUTION OF ACTUAL SALE CONSIDERATIO N BY THE VALUE ADOPTED FOR STAMP DUTY VALUATION PURPOSES, 'WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH, IS LESS THAN THE VA LUE ADOPTED OR ASSESSEDBY ANY AUTHORI TY'. WHAT IS THUS CLEAR IS THAT, ON THE FACE OF IT, THE ACTUAL STAMP DUTY VALUATION ADOPTED BY THE ASSESSING AUTHORITY RATHER THAN WHAT WOULD BE THE RIGHT, EVEN IF THAT BE DIFFERENT FROM ACTUAL, ITA NO . 239 /CTK/201 5 11 STAMP DUTY VALUATION WH ICH OUGHT TO HAVE BEEN ADOPTED BY THE STAMP DUTY VALUATION AUTHORITY. IF THE REGISTRATION DOES NOT TAKE PLACE IN THE YEAR OF TRANSFER AND NO STAMP DUTY IS ACTUALLY ASSESSED AS SUCH, THEN, OF COURSE, VALUE ASSESSABLE COULD COME INTO PLAY BUT THAT'S NOT THE CASE HERE. THE REPLY OF THE ASSESSEE W AS THUS LESS THAN ACCEPTABLE IN LAW AND ON THE BASIS OF THIS EXPLANATION. THE CORRECTNESS OF CLAIM, ON THIS BASIS OF THIS CLAIM BY THE ASSESSEE, CANNOT BE ESTABLISHED. OF COURSE, THERE CAN BE OTHER ASPECTS ON WHICH THE JANTRI VALUE MAY, OR MAY NOT, BE APPL ICABLE BUT THAT IS A DIFFERENT ISSUE. THE CLAIM MADE BY THE ASSESSEE WAS THUS CLEARLY SOMETHING WHICH SHOULD HAVE PROVOKED FURTHER EXAMINATION OR AT LEAST BEING DEALT BY WAY OF A SPEAKING ORDER, BUT THE ASSESSING OFFIC ER CHOSE TO REMAIN SILENT ON THE SAME. AS OBSERVED BY HON'BLE DELHI HIGH COURT, IN THE CASE OF GEE VEE ENTERPRISES V. ADDL. CIT [1975] 99 ITR 375 (DELHI) , ' THE POSITION A ND FUNCTION OF THE INCOME - TAX OFFICER IS VERY DIFFERENT FROM THAT OF A CIVIL COURT. THE STATEMENTS MADE IN A PLEADING PROVED BY THE MINIMUM AMOUNT OF EVIDENCE MAY BE ACCEPTED BY A CIVIL COURT IN THE ABSENCE OF ANY REBUTTAL. THE CIVIL COURT IS NEUTRAL. IT S IMPLY GIVES DECISION ON THE BASIS OF T HE PLEADING AND EVIDENCE WHICH COMES BEFORE IT. THE INCOME - TAX OFFICER IS NOT ONLY AN ADJUDICATOR BUT ALSO AN INVESTIGATOR. HE CANNOT REMAIN PASSIVE IN THE FACE OF A RETURN WHICH IS APPARENTLY IN ORDER BUT CALLS FOR FU RTHER INQUIRY. IT IS HIS DUTY TO ASCER TAIN THE TRUTH OF THE FACTS STATED IN THE RETURN WHEN THE CIRCUMSTANCES OF THE CASE ARE SUCH AS TO PROVOKE AN INQUIRY. THE MEANING TO BE GIVEN TO THE WORD 'ERRONEOUS' IN SECTION 263 EMERGES OUT OF THIS CONTEXT. IT IS B ECAUSE IT IS INCUMBENT ON THE INCOME - T AX OFFICER TO FURTHER INVESTIGATE THE FACTS STATED IN THE RETURN WHEN CIRCUMSTANCES WOULD MAKE SUCH AN INQUIRY PRUDENT THAT THE WORD 'ERRONEOUS' IN SECTION 263 INCLUDES THE FAILURE TO MAKE SUCH AN INQUIRY. THE ORDER BE COMES ERRONEOUS BECAUSE SUCH AN INQUIR Y HAS NOT BEEN MADE AND NOT BECAUSE THERE IS ANYTHING WRONG WITH THE ORDER IF ALL THE FACTS STATED THEREIN ARE ASSUMED TO BE CORRECT .' OF COURSE, IF THE EXPLANATION GIVEN BY THE ASSESSEE WAS OF THE NATURE AS COULD POSS IBLY SATISFY ANY REASONABLE PERSON, EV EN IF OTHER VIEW WAS POSSIBLE, THE SITUATION WOULD HAVE BEEN DIFFERENT. THE EXPLANATION GIVEN BY THE ASSESSEE IN THIS CASE, HOWEVER, WAS SIMPLY NOT A LEGALLY POSSIBLE VIEW OF THE MATTER. EVEN IN THE OFT QUOTED CASE OF MALABAR INDUSTRIAL CO. LTD V. CIT [2000] 109 TAXMAN 66/243 ITR 83 (SC) , HON'BLE SUPREME COURT HAS OBSERVED THAT ' WHEN AN ITO ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENU E; OR WHERE TWO VIEWS ARE POSSIBLE AND THE ITO HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE UNLESS THE VIEW TAKEN BY THE ITO IS UNSUSTAINABLE IN LAW ' ( EMPHASIS SUPPLIED BY US NOW ) . THE VIEW CANVASSED BY THE ASSESSEE, IN OUR CONSIDERED VIEW, WAS UNSUSTAINABLE IN LAW. THEREFORE, EVEN IF THE MATTER WAS EXAMINED BY THE ASSESSING OFFICER AND IT WAS A CONSCIOUS CALL OF THE ASSESSING OFFICER TO ACCEPT THE PLEA OF THE ASSESSEE, SUCH A SITUATION WOULD NOT TAKE THE MATTER OUTSIDE THE AMBIT OF SECTION 263 AS THE VIEW ADOPTED BY THE ASSESSING OFFICER WAS CLEARLY UNSUSTAINABLE IN LAW. HAVING SAID THAT, WE MUST ADD THAT THERE CAN B E OTHER LEGAL REASONS FOR GRANT OF REL IEF ON MERITS, AND THAT AREA IS NOT YET EXPLORED BY, OR BEFORE, US. IN ANY CASE, ALL THAT THE LEARNED COMMISSIONER HAS DIRECTED IS EXAMINATION OF THE CLAIM ON MERITS AND, FOR THE ABOVE REASON, WE SEE NO INFIRMITY IN TH AT DIRECTION. IN VIEW OF THESE DISCUSS IONS, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, WE UPHOLD THE IMPUGNED REVISION ORDER AND DECLINE TO INTERFERE IN THE MATTER. AS WE DO SO, WE MAKE IT CLEAR THAT OUR EXPRESSION OF VIEW ON MERITS OF THE CASE IS ONLY A PRIMA FACIE IMPRESSION, AND IT MUST NOT, THEREFORE, INFLUENCE THE DECISION OF THE ASSESSING OFFICER ON ITA NO . 239 /CTK/201 5 12 MERITS. UNINFLUENCED WITH THESE OBSERVATIONS, THE ASSESSING OFFICER WILL TAKE A CALL ON MERITS OF THE MATTER. 11 . FURTHER, THE HONBLE APEX COURT IN TH E CASE OF DENIEL MERCHANTS PVT LTD. V S ITO IN SPECIAL LEAVE (C) NO.(S) 23976 /2017 AND OTHERS ORDER DATED 29.11.2017 HAS UPHELD THE JUDGEMENT OF HONBLE CALCUTTA HIGH COURT PASSED ON 10.4.2017 IN G.A. NO.599/2016, DISMISSING THE SPECIAL LEAVE PETITION OBSE RVING THAT THE CIT AFTER SETTING ASID E THE ORDER OF THE ASSESSING OFFICER, SIMPLY DIRECTED THE ASSESSING OFFICER TO CARRY THOROUGH AND DETAILED ENQUIRY. IN THE PE CUL IAR FACTS AND CIRCUMSTANCES OF THE CASE, THE CASE LAWS RELIED ON BY THE LD. AR OF THE ASSESSEE ARE N OT APPLICABLE IN THE PRESEN T CAS E IN HAND. 12 . IN THE CASE AT HAND, THE PR. CIT HAS SIMPLY DIRECTED THE ASSESSING OFFICER TO MAKE NECESSARY ENQUI RIES IN RESPECT OF CASH DEPOSITS IN TWO BANKS AND MAKE FRESH ASSESSMENT. WE ARE OF THE OPINION THAT BY MAKING FRESH ASSESSMENT, NO PREJUD ICE WILL BE CAUSE D TO THE ASSESSEE. HENCE, RESPECTFULLY FOLLOWING THE DECISION OF COORDINATE BENCH OF THE TRIBUNAL I N THE CASE OF BABULAL S. SOLANKI (SUPRA) AND THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF DENIEL MERCHANTS PVT LTD. (SUPRA) , WE DO NOT SEE ANY GOOD REASON TO INTERFERE IN THE IMPUGNED ORDER PASSED BY THE PR. CIT U/S.263 OF THE ACT AND ACCORDINGLY THE SAME IS UPHELD. THE GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED. 13 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON 31 /0 7 / 201 9 . SD/ - ( C.M.GARG ) SD/ - ( L.P.SAHU ) / JUDICI AL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 31 / 0 7 /201 9 ITA NO . 239 /CTK/201 5 13 . . / PKM , S R.P.S. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - . UDIT PRASAD BABU, NEW COLONY, BUDHARAJA, SAMB ALPUR 2. / THE RESPONDENT - PR. CIT, SAMBALPUR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//