Shri Sanjay Kumar Patesaria, Burdwan V. CIT, Asansol, Burdwan

ITA 239/KOL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2534 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2010
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 20-05-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 05-02-2010
• Court: TRIBUNAL
• Department Lawyers: D R SINDHAL
• Assessee Lawyers: S BANDOPADHYAY
• Keywords: Depreciation; Set aside
• Section: 143(3); 142(1); 263

Judgement Text

1 , A , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- A , CA LCUTTA () BEFORE . . . . . . . . , , , , , SRI D.K.TYAGI, JUDICIAL MEMBER !' !' !' !' /AND . .. . . .. .! !! !, , , , # , ,, , SRI C.D. RAO, ACCOUNTANT MEMBER '$ '$ '$ '$ / ITA NO. 239 (KOL) OF 2010 %&' !() / ASSESSMENT YEAR 2005-06 SANJAY KUMAR PATESARIA , BURDWAN. (PAN-AERPP9919E) COMMISSIONER OF INCOME-TAX, ASANSOL. (+, / APPELLANT ) - !& - - VERSUS -. (.+,/ RESPONDENT ) +, / 0 / FOR THE APPELLANT: / SRI S. BANDOPADHYAY .+, / 0 / FOR THE RESPONDENT: / SRI D.R. SINDHAL 1 / ORDER ( . .. . . .. .! !! ! ), # (C.D. RAO), ACCOUNTANT MEMBER : THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 31.12.2009 OF LD. C.I.T. ASANSOL PASSED U/S. 263 OF THE ACT FOR ASSES SMENT YEAR 2005-06. THE ASSESSEE HAS RAISED SEVERAL GROUNDS, WHICH ARE ALL DIRECTED AGAI NST SETTING ASIDE THE ASSESSMENT ORDER BY THE LD. C.I.T. BY INVOKING JURISDICTION U/S. 263 OF THE ACT. 2. AT THE TIME OF HEARING BEFORE US, IT WAS POINTE D OUT BY THE LEARNED COUNSEL APPEARING ON BEHALF OF THE ASSESSEE THAT IN THE NOT ICE ISSUED U/S. 263 DATED 27/2/2008, THE LD. C.I.T. MENTIONED FOUR GROUNDS ON THE BASIS OF W HICH HE FORMED AN OPINION THAT THE ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO T HE INTEREST OF REVENUE AND THUS PROPOSED TO REVISE THE SAME. THE ISSUES WERE AS UN DER :- (I) SOURCE OF PAYMENT OF MARGIN MONEY OF RS.1,71 ,485/- AND PAYMENT OF EMI OF TATA TIPPER OF RS.2,94,700/- HAS NOT BEEN INVESTIGATED. ASSESSING OFFICER HAS MERELY ACCEPTED THE SUBMISSION THAT THE PAYMENT HAS BEEN MADE FROM THE TRUCK HIRE CHARGES. INVESTMENT OF RS.4,50,000/- IN PATESARIA BROS. BY CASH ON 1 ST APRIL, 2004 HAS ALSO NOT BEEN INVESTIGATED. (II) IT APPEARS DEPRECIATION HAS BEEN ALLOWED I N FULL IN RESPECT OF THE NEWLY ACQUIRED TIPPER, THOUGH AS PER INFORMATION FURNISHED BY ASSESSEE, TH E TIPPER OPERATED FOR 5 MONTHS ONLY. (III) THERE ARE INADEQUATE PERSONAL DRAWINGS THO UGH THE EXPENSES OF EDUCATION OF CHILDREN AND OTHER PERSONAL EXPENSES ARE HIGH. 2 (IV) THERE HAS BEEN NO INVESTIGATION AS REGARDS THE SOURCE OF RECEIPTS OF THE TRUCK INCOME, WHICH HAS BEEN DISCLOSED. 3. IN RESPONSE TO THE SAID NOTICE U/S. 263, THE AS SESSEE SUBMITTED A WRITTEN REPLY AND THE CONTENTS OF THE SAME HAVE BEEN MENTIONED AT PAG ES 2 & 3 OF THE LD. C.I.T.S ORDER. THE LD. C.I.T. HAS DISCUSSED IN HIS IMPUGNED ORDER SEVERAL CASE LAWS JUSTIFYING HIS ASSUMPTION OF JURISDICTION U/S. 263 OF THE ACT AND HELD THAT WHEN THE A.O. IS EXPECTED TO MAKE AN ENQUIRY THAT WOULD BE A GROUND FOR THE COMM ISSIONER TO INTERFERE WITH THE ORDER PASSED BY THE A.O. SINCE SUCH AN ORDER PASSED BY HI M IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. AFTER CONSIDERING THE SUBMISSI ONS OF THE ASSESSEE AND MATERIAL AVAILABLE TO HIM, THE LD. C.I.T. HELD THE ASSESSMEN T ORDER AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE FOR THE FOLLOWING REASONS : - 4.1. SOURCE OF MARGIN MONEY OF RS. 1,71,485/- ON AC COUNT OF TIPPER TRUCK PURCHASED DURING THE YEAR : IN THIS CONTEXT THE A/R OF THE ASSESSEE SUBMITTED THAT, A. THE LD. ASSESSING OFFICER IN HIS QUESTIONNAIRE D ATED 08.05.2007, VIDE HIS QUESTION NO.4 HAS ENQUIRED THE SOURCE OF INVESTMENT MADE IN THE PURCHASE OF NEW TRUCK DURING THE YEAR UNDER CONSIDERATION. DURING T HE COURSE OF HEARING BEFORE THE LD. ASSESSING OFFICER THE SAME WAS DULY EXPLAINED B Y THE ASSESSEE. B. IN HIS REPLY DATED 11-03-2008 BEFORE YOUR LD. S ELF, THE ASSESSEE ELABORATED ON THE SOURCE OF THE MARGIN MONEY, WHICH AS STATED CAME OU T OF THE OPENING CASH IN HAND AND EARNINGS FROM THE HIRE CHARGES RECEIVED FROM TH E 3 (THREE NUMBERS OF TRUCKS WHICH THE ASSESSEE HAD WITH HIM HAVING BEEN PURCHAS ED IN THE EARLIER YEARS AND DULY DISCLOSED IN THE EARLIER YEARS STATEMENT OF A FFAIRS. C. THE TRUCK IN RESPECT OF WHICH THE MARGIN MONEY H AS BEEN PAID WAS PURCHASED BY THE ASSESSEE IN THE MONTH OF SEPTEMBER, 2004. D. THE FACT IS THAT THE ASSESSEE WAS HAVING AN OPEN ING CASH BALANCE OF RS. 5,65,274/- AS ON 01-04-2004. THIS BALANCE IS THE CL OSING CASH BALANCE OF 31-03- 2004 AND IS DULY DISCLOSED IN THE STATEMENT OF AFFA IRS AS ON 31-03-2004 FILED ALONG WITH THE RETURN OF INCOME FOR THE A.Y. 2004-05 ON 3 1-03-2005. THE SAID STATEMENT OF AFFAIRS AS ON 31-03-2004 IS ENCLOSED AND PLACED AT ANNEXURE V. THE ACKNOWLEDGEMENT RECEIPT REGARDING FILING OF RETURN FOR A.Y. 2004-05 IS PLACED AT ANNEXURE VI. E. THE THREE NUMBERS OF TRUCKS, AS MENTIONED IN PA RA ABOVE, WERE NOT SITTING IDLE AND THOSE WERE REGULARLY EARNING HIRE CHARGES OF RS . 3 9,000/- PER MONTH NET OF ALL EXPENSES. BY THE TIME THE NEW TRUCK WAS PURCHASED, THOSE TRUCKS HAD EARNED RS. 1,95,000/- IN TOTAL. F. THUS, AS ON THE DATE OF PAYMENT OF MARGIN MONE Y, THE TOTAL AVAILABILITY OF MONEY WAS AS PER FOLLOWING DETAILS: OPENING CASH IN HAND AS ON 01-04-2004 RS. 5,65,274 /- 3 HIRE CHARGES RECEIVED FROM TRUCKS FOR 5 MONTHS RS. 1,95,000/- TOTAL RS. 7,60,274/- CAPITAL CONTRIBUTION TO PATESARIA BROTHERS RS. 4,50 ,000/- SBI LOAN PAYMENT RS. 40,611/- SCHOOL FEES RS. 25,000/- RS. 5,15,611/- CASH AVAILABLE AS ON THE DATE OF PAYMENT OF MARGIN MONEY RS. 2,44,663/- G. FROM THE ABOVE, THEREFORE, YOU CAN SEE THAT TH ERE WAS SUFFICIENT CASH WITH THE ASSESSEE TO PAY THE MARGIN MONEY. AT THE TIME OF ASSESSMENT THE ASSESSEE COULD NOT PR ODUCED THE EXPLANATION AS SUBMITTED ABOVE. HE SIMPLY SUBMITTED SO-CALLED CONSOLIDATED C ASH FLOW STATEMENT. ON EXAMINATION OF CASH FLOW STATEMENT IT IS APPARENT THAT IT IS NO THING BUT THE FUND FLOW STATEMENT INCLUDES CASH AND BANK BOTH. FROM THIS STATEMENT SU BMITTED BY THE ASSESSEE AT ASSESSMENT STAGE IT IS NOT CLEAR THAT THE ASSESSEE HAS SUFFICI ENT BALANCE AT THE TIME OF PAYMENT OF MARGIN MONEY I.E. ON 07/09/2004. AT THE STATEMENT S TAGE HE SIMPLY STATED THAT: THE FINANCE CHARGES AND PAYMENT TO INDIAN C ONTAINER SERVICE ARE WITH RELATION TO INCOME SHOWN FROM TRUCK AND INCOME OF WHICH AS MENT IONED AS AS PER SECTION 44AE OF THE ACT AS MENTIONED ABOVE. IT IS FELT NO SUCH DETA ILS AS REQUIRED BY YOU NEEDS TO BE FILED. EVEN IF YOU FEEL THE SAME IS REQUIRED THE ASSESSEE CAN FILE THE SAME AND IF SO, PLEASE LET THE ASSESSEE KNOW.(POINT 2 OF THE SUBMISSION OF TH E ASSESSEE DATED JUNE 11, 2007) ON THE BASIS OF ABOVE SUBMISSION ONLY THE AO HAS AC CEPTED THE SAME WITHOUT VERIFYING THE AVAILABILITY OF FUND AS ON 07/09/2004. IN THE SUBMISSION BEFORE UNDERSIGNED ALSO THE ASSES SEE TRIED TO EXPLAIN THE AVAILABILITY OF FUND AS MENTIONED IN PARA F AS ABOVE. IN THE STATEM ENT AS ABOVE PARA THE ASSESSEE HAS TAKEN RS.1,95,000/- AS HIRE CHARGES RECEIVED FROM T RUCKS FOR 5 MONTHS VIS A VIS THE ASSESSEE HAS TAKEN RS.1,63,744/- AS HIS INCOME FROM TRUCK 4 TRUCKS U/S 44AE FOR THE WHOLE YEAR. THEREFORE THE SOURCE OF INVESTMENT IN M ARGIN MONEY NEEDS FURTHER INVESTIGATION AND ENQUIRY. SIMILARLY PAYMENT OF EMI OF RS.2,94,700/- NEEDS FURTHER INVESTIGATION AND ENQUIRY VIS A VIS THE AVAILABILIT Y OF FUND ON THE DATE OF PAYMENT OF EMI. IN ABSENCE OF BOOKS OF ACCOUNTS, SIMPLY CONSOLIDATE D FUND FLOW STATEMENT IS NOT SUFFICIENT ENOUGH TO EXPLAIN THE SOURCE OF INVESTME NT IN EMI OR MARGIN MONEY. 4.2. DEPRECIATION ON NEW TRUCK : THE ASSESSEE HAS CALCULATED THE DEPRECIATION ON T RUCK AS BELOW: AS ON 01/04/2004 WDV RS. 1,17,921/- DEP @ 40% RS. 47,168/- COST OF NEW TRUCK RS 14,71,735/- DEP @ 20% RS. 2,94345/- THEREFORE HE CLAIMED THAT HE HAS CORRECTED THE DEPR ECIATION CORRECTLY. BUT IT IS NOT CLEAR FROM THE RECORD HOW THE WDV AS ON 01/04/2004 COMES TO RS. 1,17,921/-. IN FACT FROM THE STATEMENT OF AFFAIRS AS ON 31/03/04 FILED ALONG WIT H THE SUBMISSION THE VALUE OF THE OLD TRUCKS HAS BEEN SHOWN AS RS. 16,36,507/-. IN THIS C ONTEXT THE DETAILS OF TRUCK PURCHASE (OLD AND NEW) AND CAR WITH BILLS AND REGISTRATION C ERTIFICATE WITH THEIR SOURCE OF ACQUISITION HAS BEEN SPECIFICALLY ASKED FROM THE AS SESSEE {VIDE QUESTIONNAIRE DATED 8 TH 4 MAY 2007 ALONG WITH NOTICE U/S 142(1)}. THE ASSESSE E HAS NOT SUBMITTED THE SAME AT THE TIME OF THE ASSESSMENT. 4.3. INADEQUATE PERSONAL DRAWINGS : IN THE SUBMISSION THE AIR OF THE ASSESSEE SUBMITT ED THAT THE ASSESSEE IS A MEMBER OF LARGE FAMILY. AT T HE RELEVANT POINT OF TIME, THE FAMILY CONSISTS OF FATHER, SRI MOHANLAL PATESARIA, MOTHER SMT INDRA DEVI PATESARIA, WIFE SMT SARLA DEVI PATESARIA AND HIS SONS. THERE ARE 2 (TWO ) HUF NAMELY MOHANLAL PATESARIA(HUF) AND MOHANLAL PATESARIA (BIGGER HUF). ALL THESE ARE DULY ASSESSED TO INCOME TAX. THERE IS COMMON MESS IN THE FAMILY. ALL THE FAMILY EXPENSES ARE SHARED. ALL THE FAMILY MEMBERS CONTRIBUTE TO THE FAMILY EXPENSE S INCLUDING EDUCATION EXPENSES. TOTAL DRAWINGS FOR THE WHOLE OF THE FAMILY MEMBERS ARE SHOWN AS RS 2,18,200/-. AT THE ASSESSMENT STAGE THE ASSESSEE HAS NOT SUBMIT TED THE SAME. IN THE QUESTIONNAIRE DATED 8TH MAY 2007 ALONG WITH NOTICE U/S 142(1) THE ASSESSEE WAS ASKED TO FURNISH THE FAMILY TREE AND DETAILS OF THE EXPENSES ON CHILDREN EDUCATION. AT THAT TIME THE ASSESSEE SUBMITTED THAT MY FAMILY CONSIST OF MY WIFE, MY SON S AND MYSELF. MY WIFE HAS INDEPENDENT SOURCE OF INCOME AS WELL (POINT 2 OF TH E SUBMISSION OF THE ASSESSEE DATED JUNE 11, 2007). THE ASSESSEE HAS NOT SUBMITTED THE DETAILS OF THE EXPENSES ON EDUCATION AS ASKED. THE ASSESSING OFFICER HAS ACCEPTED THE SA ME WITHOUT GOING INTO THE DETAILS. 4.4. RECEIPT OF TRUCK INCOME : IN THIS CONNECTION THE A/R OF THE ASSESSEE SUBMIT TED THAT: IN THIS CONNECTION, IT IS TO SUBMIT THAT RECEIPT O F TRUCK INCOME IS THE PART OF THE DETERMINATION OF INCOME FROM TRUCK. THE ASSESSEE HA D 4 (FOUR) TRUCKS AND THUS, SECTION 44AE IS MANDATORY AND COMPULSORILY APPLICAB LE IN THE CASE OF THE ASSESSEE. HERE, THE ID. ASSESSING OFFICER HAS TAKEN A VIEW TH AT THE INCOME FROM TRUCKS IN THE CASE OF THE ASSESSEE HAS BEEN DETERMINED IN ACCORDA NCE WITH LAW, I.E., WITH REFERENCE TO SECTION 44AE OF THE ACT. AS PER SECTIO N 44AE OF THE ACT, THE AGGREGATE OF INCOME FROM ALL THE GOODS CARRIAGES SHALL BE COM PUTED AT RS, 3,500/- PER MONTH PER GOODS CARRIAGE OR HIGHER INCOME AS DISCLOSED BY THE ASSESSEE. NO OPTION HAS BEEN LEFT TO THE DEPARTMENT TO ASSESS AT A HIGHER F IGURE IF THE AMOUNT OF INCOME IS AS PER THIS SECTION. THE DEPARTMENT COULD HAVE RESORTE D TO SECTION 263, HAS THE INCOME FROM THIS SOURCE BEEN LOWER THAT THE INCOME PRESCRI BED U/S 44AE. IN THE PRESENT CASE, THE ASSESSEE HAS SHOWN HIGHER INCOME THAT THE AMOUNT PRESCRIBED UNDER THE ACT AND THE SAME IS FULLY DISCERNIBLE FROM THE RETU RN OF INCOME ALREADY ON THE RECORDS OF THE DEPARTMENT. THE FACT IS THAT THE ASS ESSEE HAS 4 (FOUR) NUMBERS OF TRUCKS. THESE TRUCKS ARE RUN ON -CASH HIRE BASIS. T HE TOTAL NET RECEIPTS OF HIRE CHARGES AFTER MEETING THE OTHER OPERATIONAL EXPENSE S COME TO RS. 5,36,000/-. THAT THE RECEIPTS FROM TRUCKS ARE AFTER MEETING ALL OPER ATIONAL EXPENSES EXCEPT THE INTEREST AND DEPRECIATION IS CLEAR FROM THE PROFIT AND LOSS A/C FILED BY ALONG WITH THE RETURN AND WHICH IS ALREADY ON THE RECORDS OF T HE CASE. AFTER DEDUCTING FROM THE NET TOTAL RECEIPTS, THE INTEREST ON LOANS TAKEN FOR THE PURCHASE OF TRUCKS AND DEPRECIATION, THE NET INCOME CAME AS FOLLOWS: TOTAL NET RECEIPTS AFTER MEETING OPERATING EXPENSES BUT BEFORE INTEREST ON LOANS AND DEPRECIATION RS. 5,36,000 LESS : INTEREST ON LOANS RS. 30,741 DEPRECIATION RS. 3,41,715 NET PROFIT WHICH IS AS PER SECTION 44AE RS. 1,63,54 4 5 IN THIS WAY, THE REQUIREMENT OF SECTION 44AE IS FUL LY MET ACCORDING TO WHICH THERE HAS TO BE A MINIMUM OF PROFIT OF RS. 42,000/- PER T RUCK PER ANNUM AFTER MEETING ALL THE EXPENSES INCLUDING THE DEPRECIATION. AS PER THE SECTION 44AE, THE INCOME FROM THE TRUCKS SHOULD HAVE BEEN RS. 1,43,500/-, WHEREAS THE ASSESSEE HAS SHOWN NET INCOME OF RS. 1,63,544/- I.E., MORE INCOME THAT THE PRESCRIBED LIMIT HAS BEEN SHOWN. THE ABOVE INCOME WOULD HAVE NOT BEEN POSSIBL E HAD THE ASSESSEE NOT EARNED THE HIRE CHARGES. THUS, IT IS AXIOMATIC THAT THE ASSESSEE HAS EARNED THIS MUCH OF REVENUE/RECEIPTS FROM TRUCK OPERATIONS. HERE, THUS, THE LD. ASSESSING OFFICER HAS TAKEN THE BEST VIEW IN ACCEPTING THE RECEIPTS DISCLOSED BY ME. THIS VIEW OF THE LD. ASSE SSING OFFICER IS IN ACCORDANCE WITH THE PROVISIONS OF LAW. THERE IS NO ERROR IN TH E JUDGMENT OF THE LD. ASSESSING OFFICER. FURTHER, IN YOUR NOTICE, YOU HONOUR HAS NO T POINTED OUT ANY SPECIFIC DEFECT THAT THE ASSESSEES INCOME WAS MORE THAN THAT OR TH E ASSESSEE HAS CONCEALED ANY RECEIPT OR THE INCOME SHOWN BY THE ASSESSEE WAS NOT AS PER LAW. THE ABOVE SUBMISSION MADE BY THE ASSESSEES A/R IS ITSELF CONTRADICTORY. ON THE ONE HAND HE ARGUED THAT THE INCOME FROM TRUCKS IN THE CASE O F THE ASSESSEE HAS BEEN DETERMINED IN ACCORDANCE WITH LAW, I.E., WITH REFERENCE TO SECTIO N 44AE OF THE ACT. AS PER SECTION 44AE OF THE ACT, THE AGGREGATE OF INCOME FROM ALL THE GO ODS CARRIAGES SHALL BE COMPUTED AT RS. 3,500/- PER MONTH PER GOODS CARRIAGE OR HIGHER INCO ME AS DISCLOSED BY THE ASSESSEE AND ON THE OTHER HAND HE IS EXPLAINING THE NET RECEIPTS AFTER MEETING OPERATING EXPENSES BUT BEFORE INTEREST ON LOANS AND DEPRECIATION OF RS 5,3 6.000/-. SECTION 44AE IS A DEEMING PROVISION AND THE MANNER IN WHICH THE INCOME WILL B E TAKEN HAS BEEN DEALT IN SUBSECTION (1), (2), (3) AND (4) OF THIS SECTION. THERE IS NO QUESTION OF NET RECEIPTS AFTER MEETING OPERATING EXPENSES BUT BEFORE INTEREST ON LOANS AND DEPRECIATION AS CALCULATED BY THE ASSESSEE. THE ASSESSEE CANNOT TAKE BENEFIT OF BOTH, WHICH SUITS HIM IN EXPLAINING THE OTHER THINGS. IN THE CASH FLOWS STATEMENT THE ASSES SEE SHOULD ALSO KEEP THIS POINT IN MIND. IN THE CASH FLOW STATEMENT HE IS TAKING THE BENEFIT OF NET RECEIPTS AFTER MEETING OPERATING EXPENSES AND AT THE TIME OF FURNISHING THE DETAILS OF RECEIPT OF TRUCK INCOME HE IS TAKING THE RECOURSE OF SEC 44AE. 5 THE AO IGNORED ALL THE POINTS AS DISCUSSED ABOVE AND FRAMED THE ASSESSMENT AS PER SUBMISSION MADE BY THE ASSESSEE. FROM THE ABOVE DIS CUSSION IT CAN RIGHTLY BE CONCLUDED THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS E RRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THE CASE NEEDS FURTHER INVESTIGATION A ND SCRUTINY IN THE LIGHT OF DISCUSSION MADE ABOVE. I, THEREFORE, SET ASIDE THE CASE TO TH E FILE OF THE ASSESSING OFFICER WITH THE DIRECTION THAT ENQUIRY SHOULD BE CONDUCTED AS PER T HE AFOREMENTIONED ISSUES AND THE ISSUES BE DECIDED AS PER LAW. BEING AGGRIEVED BY THE AFORESAID OBSERVATIONS AND D IRECTIONS OF LD. C.I.T. IN HIS ORDER PASSED U/S. 263 OF THE ACT, THE ASSESSEE IS IN APPE AL BEFORE US. 4. AT THE TIME OF HEARING BEFORE US, THE LD. A/R O F THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LD. C.I.T. IT IS FURTH ER SUBMITTED BY THE LD. A/R THAT THE A.O. HAS COMPLETED THE ASSESSMENT AFTER HEARING THE ASSE SSEE ON DIFFERENT DATES AND ON PROPER VERIFICATION/ENQUIRY OF VARIOUS DOCUMENTS FURNISHED AS PER REQUIREMENT. THE A.O. HAS RECORDED HIS CLEAR FINDING THAT ON EXAMINATION OF B ANK STATEMENTS AND OTHER RELEVANT 6 PAPERS ETC., THE SAME WERE FOUND IN ORDER AND AS SU CH THE ASSESSMENT WAS COMPLETED AFTER DUE APPLICATION OF MIND AND PERUSING THE EVIDENCES. THEREFORE, INVOKING OF JURISDICTION BY THE LD. C.I.T. U/S. 263 OF THE ACT WAS NOT JUSTI FIED AND THE SAME SHOULD BE QUASHED. 5. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTH ER HAND, RELIED UPON THE ORDER OF THE C.I.T. PASSED U/S. 263. HE FURTHER SUBMITTED T HAT THE LD. C.I.T. HAS ELABORATED THE REASONS WHICH RENDERED THE ASSESSMENT ORDER PASSED WITHOUT PROPER ENQUIRY TO BE ERRONEOUS AND HENCE PREJUDICIAL TO THE INTEREST OF THE REVENUE. THEREFORE, THE ORDER OF THE LD. C.I.T. DIRECTING THE A.O. TO REFRAME THE ASSESS MENT AFTER DUE ENQUIRIES ON THE ISSUES RAISED BY HIM WAS JUSTIFIED AND THE SAME SHOULD BE UPHELD. 6. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF B OTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. THE A.O. HAS COMPLETED THE ASSESSMENT U/S. 143(3) VIDE ORDER DATED 31/12/2007. AS IS EVIDENT FROM THE ASSESSMEN T ORDER, THOUGH THE ASSESSEE IN RESPONSE TO NOTICES FILED SEVERAL DOCUMENTS IN SUPP ORT OF THE CLAIMS MADE IN THE RETURN OF INCOME, BUT THE A.O. HAS NOT DISCUSSED IN DETAIL AB OUT THOSE DOCUMENTS IN TERMS OF THE CLAIMS OF THE ASSESSEE. THE A.O. HAS PASSED A VERY BRIEF AND NON-SPEAKING ORDER WHILE ACCEPTING THE INCOME SHOWN BY THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION WITHOUT ANY DISCUSSION ON THE CLAIMS OF THE ASSESSE E. WE DEEM IT PROPER TO REPRODUCE THIS BRIEF ASSESSMENT ORDER AS UNDER :- THE ASSESSEE HAD FILED HIS RETURN OF INCOME ON 3 1/03/2006 DECLARING TOTAL INCOME AT RS. 302770/-. THIS CASE WAS PICKED UP FOR SCRUTINY AND ACCORDINGLY NOTICE U/S.143 (2 OF THE IT. ACT WAS ISSUED ON 0502.2006 FIXING THE CASE FOR HEARIHG ON 27.02.07 .THE NOTICE WAS DULY SERVED UPON THE ASSESSEE. SUBSEQUENTLY NOTICE U/S 142(1) WAS ISSUED AND DUT Y SERVED UPON THE ASSESSE THE TOTAL INCOME OF THE ASSESSEE WAS COMPRISED OF (I) TRUCK PLYING INCOME U/S 44AE, II) INCOME FROM PARTNERSHIP FIRM (III) OTHER SOURCES. IN COMPLIANCE WITH THE NOTICE U/S 143(2) OF THE I .T.ACT, SRI M.K.BAJORIA(ACA), AND A/R OF THE ASSESSEE APPEARED ON DIFFERENT DATES TO EXPL AIN THE RETURN OF INCOME. THE CASE WAS DISCUSSED WITH HIM AND HE WAS HEARD. DURING THE COURSE OF HEARING, A/R PRODUCED BANK S TATEMENTS, COPIES LOAN CONFIRMATION ACCOUNT, RELEVANT DOCUMENTS IN SUPPORT OF THE RETUR N OF INCOME WHICH WERE EXAMINED. ON EXAMINATION OF BANK STATEMENTS, AND OTHER RELE VANT PAPERS ETC ARE FOUND IN ORDER, AS SUCH THE INCOME SHOWN BY THE ASSESSEE IS ACCEPTED. 7 THE LD. C.I.T. HAS GIVEN REASONS IN PARAS 2 TO 4, P AGES 2 TO 8 OF HIS IMPUGNED ORDER EXPLAINING HOW THE ASSESSMENT ORDER IS ERRONEOUS AN D PREJUDICIAL TO THE INTEREST OF REVENUE. FURTHER, HE HAS SIMPLY SET ASIDE THE ASSE SSMENT ORDER TO THE FILE OF A.O. WITH A DIRECTION THAT ENQUIRY SHOULD BE CONDUCTED ON THE I SSUES MENTIONED IN HIS ORDER AND AFTER PROPER ENQUIRY AND VERIFICATION OF THE DOCUMENTS, T HE ISSUES TO BE DECIDED AS PER LAW. UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE A.O. HAS NOT CONDUCTED PROPER ENQUIRIES INTO THE CL AIM OF THE ASSESSEE MADE IN HIS RETURN OF INCOME AND THE LD. C.I.T. HAS RIGHTLY EXERCISED HIS JURISDICTION U/S. 263 OF THE ACT, WHICH NEEDS NO INTERFERENCE AT OUR END. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY MERIT IN THE ASSESSEES APPEAL. THE SAME IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. 2 1 #3 4 3& 25 THIS ORDER IS PRONOUNCED IN OPEN COURT ON 30.6.10. SD/- SD/- [D.K.TYAGI] [C.D. RAO] JUDICIAL MEMBER ACCOUNTANT MEM BER ( (( (# # # #) )) ) DATE: 30-06-2010 1 / .%%6 76(8- COPY OF THE ORDER FORWARDED TO : 1. +, / THE APPELLANT : SRI SANJAY KR. PATESARIA, P.N.MALIA ROAD, PO- RANIGANJ, DIST. BURDWAN, PIN-713 347 2 .+, / THE RESPONDENT :THE C.I.T., ASANSOL. 3. A.C.I.T., CIRCLE-3, ASANSOL. 4. !=% .%& / DR, KOLKATA BENCHES, KOLKATA 5. GUARD FILE . 6 .%/ TRUE COPY , 1&3/ BY ORDER, (DKP) ? '@ / DEPUTY REGISTRAR .