M/s Suresh Chand Gupta, Jhansi V. C.I.T.-II, Agra

ITA 243/AGR/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0336 (ITAT-AGRA)
• Duration Of Justice: 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-03-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 29-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R C TOMAR I T P
• Keywords: Business income; Principle of natural justice
• Section: 40A(3); 143(3); 142(1); 68; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO.243/AGR/2012 ASSESSMENT YEAR: 2007-08 M/S. SURESH CHAND GUPTA, VS. COMMISSIONER OF INCOM E TAX-II, OUTSIDE KHANDERAO GATE, AGRA, JHANSI (PAN : AAFFS 9843 N). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.C. TOMAR, I.T.P. RESPONDENT BY : SHRI WASEEM ARSHAD, SR. D.R. DATE OF HEARING : 06.03.2013 DATE OF PRONOUNCEMENT : 15.03.2013 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 26.03.2012 PASSED BY THE LD. CIT-II, AGRA FOR THE ASSESSMENT Y EAR 2007-08. 2. THE ASSESSEE HAS RAISED AS MANY AS 7 GROUNDS OF APPEAL, HOWEVER, THE EFFECTIVE GROUND IS AGAINST THE ORDER OF CIT PASSED UNDER SECTION 263 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER). 2 ITA NO.243/AGR/2012 A.Y. 2007-08 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSM ENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT ON 04.12.2009 (THE CIT HA S WRONGLY NOTED THE DATE AS 05.10.2010). THE LD. DEPARTMENTAL REPRESENTATIVE E XPLAINED THAT THERE MAY BE A TYPOGRAPHICAL MISTAKE. THE CIT ON PERUSAL OF ORDER OF A.O. NOTICED THAT THE ORDER PASSED BY THE A.O. WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THE CIT ISSUED SHOW CAUSE NOTICE ASKING EXPLANATION REG ARDING FOLLOWING ISSUES:- (PAGE NO.2) (1) IT IS SEEN THAT THE GROSS RECEIPTS AND TDS THE REON IN THE CASE OF THE INDIVIDUAL, SHRI S.C. GUPTA (PAN-ACXPG5151F), H AS BEEN SHOWN/CLAIMED AND ALLOWED IN THE CASE OF FIRM (PAN- AAFFS9843N). THIS FACT HAS NOT BEEN EXAMINED BY THE AO AND NO QU ESTION ON THIS BASIS HAS BEEN ASKED. (II) THE APPLICABILITY OF SECTION 199 OF THE I.T. A CT, 1961 HAS NOT BEEN EXAMINED. SOME OF THE TDS CERTIFICATES WHICH HAVE BEEN PROCURED BY THE A.O. SHOWS THAT DIFFERENT AMOUNT WA S DEDUCTED/DEPOSITED WHEREAS A HIGHER AMOUNT HAS BEEN CLAIMED AND ALLOWED IN THE ASSESSMENT. THIS WAS NOT NOTICED/EX AMINED BY THE A.O. (III) THE COPY OF THE STATEMENT OF BANK ACCOUNTS SH OWS HUGE CASH INFLOW AND OUTFLOW WHICH HAVE NOT BEEN EXAMINED. N O QUESTIONS HAVE BEEN RAISED AS TO THE SOURCE OF INFLOW OF SUCH CASE . THE APPLICABILITY OF SECTION 40A(3) HAS NOT BEEN PROPERLY EXAMINED AN D ASSESSEES REPLY/COMMENTS THAT THE CASH PAYMENTS WERE PETTY IN NATURE HAS BEEN ACCEPTED WITHOUT EXAMINING THE BANK ACCOUNTS WHICH SHOWS HEAVY CASH FLOW. THE APPLICABILITY OF SECTION 269SS AND SECTION 68 SHOULD HAVE BEEN EXAMINED. (IV) THE PHOTO COPIES OF CERTAIN AGREEMENTS WITH SU B-CONTRACTORS HAVE BEEN FOUND PLACED ON THE FILE BUT HAVE NOT BEE N EXAMINED IN AS MUCH AS THEIR GENUINENESS AND IN WHICH CIRCUMSTANCE S THE WORK WAS SUBCONTRACTED HAVE NOT BEEN EXAMINED. 3 ITA NO.243/AGR/2012 A.Y. 2007-08 (V) THE INCOME HAS BEEN DECLARED NIL IN RETURN OF I NCOME IN PARA 4(A) PART-B-II. NO INTEREST HAS BEEN SHOWN IN SCHE DULE OS OF RETURN WHEREAS NOTE ON ACCOUNTS MENTIONED IN SCHEDULE 16 O F THE AUDIT REPORT SHOWS AN AMOUNT OF RS.854989/- AS INTEREST. WHILE COMPUTING GROSS RECEIPTS OF CONTRACTS AMOUNTING TO RS.2819991 25/- AN AMOUNT OF RS.792109/- HAS BEEN REDUCED FROM SUCH GROSS RECEIP T AS PER TDS CERTIFICATES. IT APPEARS THAT INTEREST HAS NOT BEE N OFFERED FOR TAXATION. EVEN THE COPIES OF INTEREST ACCOUNT ETC. HAVE NOT B EEN FILLED TO SUBSTANTIATE THE CORRESPONDING ENTRIES IN P&L ACCOU NT. IT HAS ALSO NOT BEEN EXAMINED BY THE AO WHETHER THE INTEREST IN COME WILL BE ASSESSABLE UNDER THE HEAD BUSINESS OR PROFESSION OR UNDER THE HEAD OTHER SOURCES. 4. THE CIT, AFTER CONSIDERING THE ASSESSEES SUBMIS SION, FOUND THAT THE ORDER OF A.O. IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST O F REVENUE IN RESPECT OF THE FOLLOWING ASPECTS:- (PAGE NOS.4 & 5) (A) THE COPY OF STATEMENTS OF BANK ACCOUNTS SHOWS HUGE CASH INFLOWS. NO QUESTIONS HAVE BEEN RAISED AS TO THE S OURCE OF INFLOW OF CASH WHILE COMPLETING THE ASSESSMENT. THE GENUINEN ESS OF THE CASH IN FLOW SHOULD HAVE BEEN EXAMINED BY THE A.O. KEEPING IN VIEW THE PROVISION OF SECTION 68 OF IT ACT. HOWEVER NO SUCH ATTEMPT HAS BEEN DONE. IN SUCH CIRCUMSTANCES IT CAN NOT BE SAID THA T THE CASH INTRODUCED IN THE BANK ACCOUNT BY THE ASSESSEE WAS EXPLAINED. THIS ASPECT REQUIRE DEEP INVESTIGATION, HENCE THE A.O. I S DIRECTED TO EXAMINE THE GENUINENESS OF CASH IN FLOW. (B) THE ASSESSEE HAS CLAIMED THAT THE CONTRACT WORK TO THE TUNE OF RS.133228837/- WAS GOT DONE THROUGH SUB CONTRACTORS AND SHOWN A NP OF 2% ON THIS CONTRACTUAL RECEIPT INSTEAD OF 5. 56% N.P. EARNED ON THE WORK DONE BY ITSELF. THUS IT SUPPRESSED THE PR OFIT BY SHOWING SUB CONTRACTUAL AGREEMENTS AND CLAIMING LESS N.P. ON TH ESE DEALS BY 3.56%. HOWEVER NO ENQUIRY HAS BEEN MADE IN THIS RE GARD. A.O. SHOULD HAVE EXAMINED WHETHER THE SUBCONTRACTORS WER E REAL AND WHETHER THEY HAD THE CAPACITY/EQUIPMENT/WHEREWITHAL TO EXECUTE THE SUB CONTRACT, AND VERIFY THAT SOME BOGUS CONTRACTOR HAS NOT BEEN 4 ITA NO.243/AGR/2012 A.Y. 2007-08 SHOWN FOR SUPPRESSING THE PROFIT. NO ENQUIRY HAS B EEN MADE TO VERIFY THEIR GENUINENESS AND TO EXAMINE IF THE ASSESSEE RE QUIRED THE SERVICES OF THE SUB CONTRACTOR OR NOT. IN SUCH CIRCUMSTANCE S IT CANNOT BE SAID WITH CERTAINTY THAT THE SUBCONTRACTORS COMPLETED TH E WORK FOR THE ASSESSEE. IN ORDER TO VERIFY THE BOOKS OF ACCOUNT OF THE SUBCONTRACTORS THEIR CAPACITY TO EXECUTE THE CONTRACT SHOULD HAVE BEEN EXAMINED BY THE A.O. HOWEVER NO SUCH EXERCISE HAS BEEN DONE AN D THE ASSESSMENT HAS BEEN COMPLETED BY ACCEPTING THE ASSESSEES VERS ION. THEREFORE THERE IS AN ERROR IN THE ASSESSMENT WHICH IS PREJUD ICIAL TO REVENUE. IT HAS ALSO NOT BEEN EXAMINED BY THE A.O. WHETHER T HE INTEREST INCOME WILL BE ASSESSABLE UNDER THE HEAD BUSINESS O R PROFESSION OR UNDER THE HEAD OTHER SOURCES AND ACCEPTED THE ACC OUNTS OF THE ASSESSEE WHEREIN INTEREST INCOME HAS BEEN SHOWN AS BUSINESS RECEIPT. THE INTEREST INCOME SHOULD HAVE BEEN ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES IN VIEW OF THE DECISION OF HONBLE ITAT DELHI SPECIAL BENCH IN THE CASE OF M/S DCIT VS. ALL IED CONSTRUCTION (2007) 105 ITD (DELHI) (SPL) BUT A.O. HAS NOT MADE ANY ATTEMPT TO DO THIS. THE A.O. IS DIRECTED TO EXAMINE THIS ASPECT ALSO. 5. THE CIT SET ASIDE THE ASSESSMENT ORDER AND DIREC TED THE A.O. TO EXAMINE THE CASE ON THE POINTS MENTIONED BY THE CIT, AFTER PROVIDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PAR TIES AND RECORDS PERUSED. TO KNOW THE SCOPE AND SCHEME OF THE REVISION UNDER SECTION 263 OF THE ACT BY COMMISSIONER, WE WOULD LIKE TO REFER ONE JUDGMENT O F HONBLE BOMBAY HIGH COURT IN THE CASE OF GRASIM INDUSTRIES LTD. VS. CIT[2010] 321 ITR 92 (BOMB) WHEREIN THE COURT HELD AS UNDER:- (PAGE 99 TO 101) 5 ITA NO.243/AGR/2012 A.Y. 2007-08 11. SECTION 263 OF THE INCOME-TAX ACT, 1961 EMPOWE RS THE COMMISSIONER TO CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDIN GS UNDER THE ACT AND, IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN, BY THE ASSESSING OFFICER IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTER ESTS OF THE REVENUE, TO PASS AN ORDER UPON HEARING THE ASSESSEE AND AFTER AN ENQ UIRY AS IS NECESSARY, ENHANCING OR MODIFYING THE ASSESSMENT OR CANCELLING THE ASSESSMENT AND DIRECTING A FRESH ASSESSMENT. THE KEY WORDS THAT AR E USED BY SECTION 263 ARE THAT THE ORDER MUST BE CONSIDERED BY THE COMMISSION ER TO BE 'ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTERESTS OF TH E REVENUE'. THIS PROVISION HAS BEEN INTERPRETED BY THE SUPREME COURT IN SEVERAL JU DGMENTS TO WHICH IT IS NOW NECESSARY TO TURN. IN MALABAR INDUSTRIAL CO. LT D. V. CIT [2000] 243 ITR 831, THE SUPREME COURT HELD THAT THE PROVISION 'CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COM MITTED BY THE ASSESSING OFFICER' AND 'IT IS ONLY WHEN AN ORDER IS ERRONEOUS THAT THE SECTION WILL BE ATTRACTED'. THE SUPREME COURT HELD THAT AN INCORREC T ASSUMPTION OF FACT OR AN INCORRECT APPLICATION OF LAW, WILL SATISFY THE R EQUIREMENT OF THE ORDER BEING ERRONEOUS. AN ORDER PASSED IN VIOLATION OF TH E PRINCIPLES OF NATURAL JUSTICE OR WITHOUT APPLICATION OF MIND, WOULD BE AN ORDER FALLING IN THAT CATEGORY. THE EXPRESSION 'PREJUDICIAL TO THE INTERE STS OF THE REVENUE', THE SUPREME COURT HELD, IT IS OF WIDE IMPORT AND IS NOT CONFINED TO A LOSS OF TAX. WHAT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE IS EXPLAINED IN THE JUDGMENT OF THE SUPREME COURT : '. . . THE PHRASE PREJUDICIAL TO THE INTERESTS OF THE REVENUE HAS TO BE READ IN CONJUNCTION WITH AN ERRONEOUS ORDER PASSED BY THE ASSESSING OFFICER. EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. FOR EXAMPLE, WHEN AN INCOME-TAX OFFICE R ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE; OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME-TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE , IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE IN TERESTS OF THE REVENUE, UNLESS THE VIEW TAKEN BY THE INCOME-TAX OF FICER IS UNSUSTAINABLE IN LAW. . . .' (P. 88) THE PRINCIPLE WHICH HAS BEEN LAID DOWN IN MALABAR I NDUSTRIAL CO. LTD.S CASE (SUPRA) HAS BEEN FOLLOWED AND EXPLAINED IN A SUBSEQUENT JUDGMENT OF THE SUPREME COURT IN CIT V. MAX INDIA L TD. [2007] 295 ITR 2822 WHILE INTERPRETING THE PROVISIONS OF SECTION 8 0HHC(3), THE SUPREME COURT NOTED THAT THE STATUTORY PROVISION HAD BEEN A MENDED ELEVEN TIMES AND 6 ITA NO.243/AGR/2012 A.Y. 2007-08 DIFFERENT VIEWS EXISTED ON THE DAY WHEN THE COMMISS IONER PASSED HIS ORDER UNDER SECTION 263. THE COURT OBSERVED THAT 'THE MEC HANICS OF THE SECTION HAVE BECOME SO COMPLICATED OVER THE YEARS THAT TWO VIEWS WERE INHERENTLY POSSIBLE'. CONSEQUENTLY, THE SUBSEQUENT AMENDMENT T O THE STATUTORY PROVISION, EVEN THOUGH IT WAS RETROSPECTIVE, WOULD NOT ATTRACT THE PROVISIONS OF SECTION 263 PARTICULARLY WHEN THE PROVISION OF L AW, AS IT STOOD, ON THE DATE WHEN THE COMMISSIONER PASSED THE ORDER UNDER SECTIO N 263, WOULD HAVE TO BE TAKEN INTO ACCOUNT. 12. IN CIT V. GABRIEL INDIA LTD. [1993] 203 ITR 10 81 A DIVISION BENCH OF THIS COURT OBSERVED THAT SECTION 263 DOES NOT CONFE R AN ARBITRARY OR UNCHARTED POWER ON THE COMMISSIONER. IN CONSIDERING AS TO WHETHER AN ORDER IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, THE COMMISSIONER MUST BE GUIDED BY THE MATERIAL ON THE RECORD. THE POWER OF SUO MOTU REVISION UNDER SECTION 263(1), IS IN TH E NATURE OF SUPERVISORY JURISDICTION. TWO CIRCUMSTANCES MUST EXIST IN ORDER TO ENABLE THE COMMISSIONER TO EXERCISE THE POWER, NAMELY, (I) THE ORDER MUST BE ERRONEOUS; AND (II) BY VIRTUE OF THE ORDER BEING ER RONEOUS, PREJUDICE MUST HAVE BEEN CAUSED TO THE INTERESTS OF THE REVENUE. S ECTION 263 DOES NOT EMPOWER THE COMMISSIONER TO SUBSTITUTE HIS JUDGMENT FOR THAT OF THE ASSESSING OFFICER, UNLESS THE DECISION IS HELD TO B E ERRONEOUS. BOTH THE CONDITIONS FOR THE EXERCISE OF THE POWER MUST BE FU LFILLED. THE ORDER, IN OTHER WORDS, SOUGHT TO BE REVISED, MUST BE ERRONEOUS AND MUST BE PREJUDICIAL TO THE INTERESTS OF THE REVENUE . 7. FROM ABOVE MATERIAL, WE FIND THAT AN ORDER CANNO T BE TERMED AS ERRONEOUS UNLESS IT IS NOT IN ACCORDANCE WITH LAW. IF AN INC OME TAX OFFICER ACTING IN ACCORDANCE WITH LAW MAKES AN ASSESSMENT, THE SAME C ANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE, ACCOR DING TO HIM, THE A.O. SHOULD MAKE THOROUGH ENQUIRY AND ORDER SHOULD HAVE BEEN WR ITTEN MORE ELABORATELY. THIS SECTION DOES NOT VISUALISE A CASE OF SUBSTITUTION O F THE JUDGMENT OF THE COMMISSIONER FOR THAT OF THE INCOME-TAX OFFICER, WH O PASSED THE ORDER, UNLESS THE DECISION IS HELD TO BE ERRONEOUS. CASES MAY BE VISU ALISED WHERE THE INCOME-TAX 7 ITA NO.243/AGR/2012 A.Y. 2007-08 OFFICER WHILE MAKING AN ASSESSMENT EXAMINES THE ACC OUNTS, MAKES ENQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINES THE INCOME EITHER BY ACCEPTING THE ACCOUNTS OR BY MAKIN G SOME CHANGES. THE COMMISSIONER, ON PERUSAL OF THE RECORDS, MAY BE OF THE DIFFERENT OPINION THAN THE OPINION OF THE INCOME-TAX OFFICER. THAT WOULD NOT VEST THE COMMISSIONER WITH POWER TO RE-EXAMINE THE ACCOUNTS AND EXPRESS DIFFER ENT OPINION. IT IS BECAUSE THE INCOME-TAX OFFICER HAS EXERCISED THE QUASI-JUDICIAL POWER VESTED IN HIM IN ACCORDANCE WITH LAW AND ARRIVED AT A CONCLUSION AND SUCH A CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS SIMPLY BECAUSE THE COMMISSIO NER DOES NOT FEEL SATISFIED WITH THE CONCLUSION. IT MAY BE SAID IN SUCH A CASE THAT IN THE OPINION OF THE COMMISSIONER THE ORDER IN QUESTION IS PREJUDICIAL T O THE INTERESTS OF THE REVENUE. BUT THAT BY ITSELF WILL NOT BE ENOUGH TO VEST THE C OMMISSIONER WITH THE POWER OF SUO MOTU REVISION BECAUSE THE FIRST REQUIREMENT, VI Z., THAT THE ORDER IS ERRONEOUS, IS ABSENT. 8. IN THE LIGHT OF ABOVE DISCUSSION, IF WE CONSIDER THE FACTS OF THE CASE UNDER CONSIDERATION, WE NOTICE THAT THE FIRST FINDING OF CIT ON THE BASIS OF WHICH ACTION TAKEN UNDER SECTION 263 IS ON GENERAL PRESUMPTIONS WITHOUT QUANTIFYING OR POINTING OUT ANY SPECIFIC ENTRIES OF BANK ACCOUNT. HE HAS S IMPLY STATED THAT BANK STATEMENT SHOWS HUGE CASH FLOWS WHEREAS AT THE TIME OF ASSESS MENT PROCEEDINGS, THE A.O. ISSUED A DETAILED QUERY LETTER UNDER SECTION 142(1) OF THE ACT ON 19.11.2008 AND THE 8 ITA NO.243/AGR/2012 A.Y. 2007-08 SAME WAS REPLIED BY THE ASSESSEE. A COPY OF WHICH HAS BEEN PLACED AT PAGE NOS.17 TO 18 OF THE ASSESSEES PAPER BOOK. IN QUERY NO.21 THE A.O. ASKED THE ASSESSEE TO INTIMATE THE DETAILS OF SCRUTINY BEFORE THE BANK WH ILE ARRANGING ORDER OF OVERDRAFT FACILITY AND PRODUCE THE BANK CERTIFICATE ALSO. WH ILE IN QUERY NO.14 THE A.O. ASKED TO PRODUCE BANK RECONCILIATION STATEMENT IN CASE OF ANY VERIFICATION FROM BANK AND PRODUCE COPIES OF BANK CERTIFICATE BY THE BANK. IN PARA NO.2 OF ASSESSMENT ORDER THE A.O. NOTED THAT THE BOOKS OF ACCOUNT AND VOUCHE RS WERE PRODUCED. THE SO- CALLED HUGE DEPOSITS REPRESENT THE DETAILS IN BOOKS OF ACCOUNT WHICH HAS ALREADY BEEN EXAMINED BY THE A.O. FROM BOOKS OF ACCOUNT PRO DUCED AT THE TIME OF ASSESSMENT PROCEEDINGS. IT IS ALSO RELEVANT TO STA TE THAT WHEN THE A.O. ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE AND ASSESSEE ACCORDING LY SUBMITTED REPLY. UNDER THE CIRCUMSTANCES, MERELY ON PRESUMPTION IT CANNOT BE S AID THAT CASH DEPOSIT IN BANK WAS NOT VERIFIED BY THE A.O. SIMILARLY THE SECOND ASPECT OF THE ISSUE BASED ON WHICH THE CIT WANTS TO HOLD THAT ORDER OF THE A.O. WAS ERRONEOUS IS IN RESPECT OF ESTIMATION OF PROFIT. IN THIS REGARD ALSO THE A.O. ASKED WHILE ISSUING NOTICE UNDER SECTION 142(1) OF THE ACT IN QUERY NO.6, QUERY NO.2 5 WHICH WERE EXACTLY WHAT THE CIT STATED. THIS ASPECT HAS ALREADY BEEN EXAMINED BY THE A.O. DURING THE ASSESSMENT PROCEEDINGS. THE ASSESSEE FURNISHED THE DETAILS OF WORK IN PROGRESS, COPIES OF BILLS AND DETAILS OF SECURITY DEPOSIT, DE TAILS OF SUB-CONTRACT, COPY OF SUB- CONTRACT AGREEMENT, MODE OF PAYMENT WITH DETAILS AL ONG WITH COPY OF VOUCHERS OF SUB-CONTRACTOR IN ASSESSEES BOOKS OF ACCOUNT. 9 ITA NO.243/AGR/2012 A.Y. 2007-08 9. IT IS RELEVANT TO NOTE THAT THIS ISSUE REGARDING LOW PROFIT HAS NOT BEEN POINTED OUT BY THE CIT IN SHOW CAUSE ISSUED, BUT WHILE GIVI NG DIRECTION TO DECIDE THE CASE AFRESH, THE CIT TAKEN BASIS OF INVOKING SECTION 263 OF THE ACT. UNDER THE FACTS AND CIRCUMSTANCES, THE ACTION OF THE CIT IS NOT IN ACCO RDANCE WITH LAW. 10. THE THIRD ASPECT OF THE MATTER IS THAT THE CIT WANTS TO HOLD THAT THE ORDER OF THE A.O. IS ERRONEOUS ON THE BASIS OF DECISION OF I .T.A.T. SPECIAL BENCH THAT INTEREST INCOME IS ASSESSABLE UNDER THE HEAD BUSIN ESS OR PROFESSION. IT IS RELEVANT TO NOTE THAT WHETHER INTEREST INCOME IS ASSESSABLE UNDER THE HEAD INCOME FROM OTHER SOURCES OR FROM BUSINESS OR PROFESSION DEP ENDS UPON THE FACTS OF THE CASE. HOWEVER, AT THE TIME OF ASSESSMENT PROCEEDINGS, THE A.O. HAS ALREADY EXAMINED THIS ASPECT OF THE MATTER BY CALLING INFORMATION FR OM THE ASSESSEE AS EVIDENT FROM THE MATERIAL AVAILABLE ON RECORD. EVEN OTHERWISE A LSO, ON DIFFERENT OPINION SECTION 263 OF THE ACT CAN NOT BE INVOKED. 11. AFTER CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE, WE NOTICE THAT THE CIT WANTS TO RE-EXAMINE THE CASE WHICH IS NOT A REQUIRE MENT OF THE SECTION. THE CIT, ON PERUSAL OF THE RECORDS, MAY BE OF THE DIFFERENT OPINION THAN THE OPINION OF THE A.O. BUT THAT WOULD NOT VEST THE CIT WITH POWER TO RE-EXAMINE THE ACCOUNTS AND EXPRESS DIFFERENT OPINION BECAUSE THE A.O. HAS EXER CISED QUASI-JUDICIAL POWER VESTED IN HIM IN ACCORDANCE WITH LAW AND ARRIVED AT A CONCLUSION AND SUCH A 10 ITA NO.243/AGR/2012 A.Y. 2007-08 CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS SIMPLY BECAUSE THE CIT DOES NOT FEEL SATISFIED WITH THE CONCLUSION. IN THE CASE UNDER C ONSIDERATION, WE FIND THAT THE CIT HAS FAILED TO BRING ON RECORD THE MATERIAL BASED ON WHICH IT CAN BE SAID THAT THE ORDER OF A.O. IS ERRONEOUS. SINCE NO SUCH MATERIAL IS AVAILABLE ON RECORD, NEITHER HAS BEEN POINTED OUT BY THE CIT(A) NOR SUCH MATERIA L POINTED OUT AT THE TIME OF HEARING BEFORE US, UNDER THE CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT THE CONDITION PRECEDENT TO INVOKE SECTION 263 OF THE AC T REGARDING THAT THE ORDER OF A.O. IS ERRONEOUS IS MISSING. IN THE LIGHT OF THE FACT, WE FIND THAT THE ORDER OF CIT IS NOT IN ACCORDANCE WITH LAW AND, THEREFORE, THE S AME IS QUASHED. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY