SHRI DEEP CHAND , DHOLPUR V. PR.CIT, ALWAR

ITA 244/JPR/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9114 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 18-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRISH BEDI CIT DHK
• Keywords: Business income; Opportunity of being heard; Period of limitation; Assessment record; Time period of passing order; Set aside
• Section: 143(3); 44AB; 145(3); 147; 148; 263; 144; 15; 139; 2

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH VC A, JAIPUR JH JES'K LH- 'KEKZ] YS[KK LNL; ,O A JH FOT; IKY JKWO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C. SHARMA, AM & SHRI VIJAY PAL RAO, JM VK;DJ VIHY LA-@ ITA NO. 244/JP/2020 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11. SHRI DEEP CHAND C/O KALANI & CO., CHARTERED ACCOUNTANTS, 5 TH FLOOR, MILESTONE BUILDING, GANDHI NAGAR TURN, TONK ROAD, JAIPUR. CUKE VS. THE PR. CIT AAYAKAR BHAWAN, MOTI DOONGRI, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ALWPC 2097 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI AMRISH BEDI (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03.08.2020. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 05/08/2020. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E REVISION ORDER DATED 20.01.2020 OF LD. PCIT, ALWAR PASSED UNDER SECTION 263 OF THE I.T. ACT FOR THE ASSESSMENT YEAR 2010-11. THE ASSESSEE HAS RAISED T HE FOLLOWING GROUNDS :- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, ORDER PASSED BY THE LD. PCIT U/S 263 IS ILLEGAL & BAD IN LAW AND THE SA ME BE QUASHED. 2. THE LD. PCIT HAS ERRED ON FACTS AND IN LAW IN HO LDING THAT THE ORDER PASSED BY AO IS ERRONEOUS AND PREJUDICIAL TO THE IN TEREST OF REVENUE ONLY ON THE GROUND THAT IN THE BANK ACCOUNT RS. 1,89,51,996/- (RS. 1,40,11,085/- CASH DEPOSIT + RS. 49,40,991/- 2 ITA NO. 244/JP/2020 SHRI DEEP CHAND, DHOLPUR. CHEQUE DEPOSIT) IS DEPOSITED WHEREAS THE AO AFTER R EJECTING THE BOOKS OF ACCOUNTS HAS COMPUTED NET PROFIT @ 2.75% ON TOTAL TURNOVER OF RS. 1,04,97,340/- AND THUS NOT MADE PRO PER INVESTIGATION AND VERIFICATION ABOUT THE SOURCE OF CASH DEPOSIT. 3. THE APPELLANT CRAVES TO ALTER, AMEND AND MODIFY ANY GROUND OF APPEAL. 4. NECESSARY COST BE AWARDED TO THE ASSESSEE. DUE TO THE PREVAILING SITUATION OF COVID 19 PANDEMI C, THE HEARING OF THE APPEAL WAS CONCLUDED THROUGH VIDEO CONFERENCE. GROUND NO. 1 IS REGARDING VALIDITY REVISION ORDER P ASSED BY THE LD. PCIT UNDER SECTION 263 OF THE IT ACT . 2. THE ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF TRADING IN MUSTARD SEEDS. THE ASSESSEE DID NOT FILE ANY RETURN OF INC OME UNDER SECTION 139 FOR THE YEAR UNDER CONSIDERATION. ON THE BASIS OF AIR INFORMATIO N RECEIVED BY THE AO REGARDING DEPOSIT OF RS. 1,04,97,340/- IN CASH IN SAVINGS BAN K ACCOUNT, THE AO ISSUED NOTICE UNDER SECTION 148 ON 29 TH MARCH, 2017. THE ASSESSEE FINALLY FILED RETURN OF INCOME IN RESPONSE TO NOTICE UNDER SECTION 148 ON 15 TH DECEMBER, 2017 DECLARING TOTAL INCOME OF RS. 1,91,590/-. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) READ WITH SECTION 147 OF THE IT ACT ON 26 TH DECEMBER, 2017 AT A TOTAL INCOME OF RS. 2,88,677/- . SUBSEQUENTLY, THE LD. PCIT ON VERIFICATION OF THE A SSESSMENT RECORD NOTED THAT THE ORDER PASSED BY THE AO UNDER SECTION 143(3) READ WITH SEC TION 147 IS ERRONEOUS SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE AS THE A O HAS NOT CONDUCTED ANY ENQUIRY 3 ITA NO. 244/JP/2020 SHRI DEEP CHAND, DHOLPUR. ABOUT THE TOTAL DEPOSITS MADE BY THE ASSESSEE IN TH E BANK ACCOUNT AND CONSEQUENTLY THE TURNOVER OF THE ASSESSEE REMAINED UNDERSTATED. THE COMMISSIONER ISSUED SHOW CAUSE NOTICE UNDER SECTION 263 ON 10.12.2019. IN R ESPONSE TO THE SHOW CAUSE NOTICE THE ASSESSEE HAS FILED THE REPLY/WRITTEN SUBMISSION S OBJECTING TO THE INVOCATION OF PROVISIONS OF SECTION 263 AS WELL AS HOLDING THE AS SESSMENT ORDER ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE LD . COMMISSIONER WHILE PASSING THE IMPUGNED ORDER SET ASIDE THE ASSESSMENT ORDER PASSE D BY THE AO WITH A DIRECTION TO THE AO TO PASS A SPEAKING ORDER AFTER CONSIDERING T HE ISSUES AS TAKEN UP IN THE REVISIONAL PROCEEDINGS UNDER SECTION 263 OF THE ACT . AGGRIEVED BY THE IMPUGNED ORDER, THE ASSESSEE HAS FILED THE PRESENT APPEAL. 3. THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT I N THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE PRODUCED BOOKS OF ACCOUNT , BILLS AND VOUCHERS, BANK STATEMENTS ETC. THE AO AFTER VERIFICATION OF THE B OOKS OF ACCOUNTS, SUPPORTING DOCUMENTS AS WELL AS BANK STATEMENTS HAS ASSESSED T HE INCOME OF THE ASSESSEE BY APPLYING N.P. RATE OF 2.75% ON THE TOTAL SALE OF RS. 1,04,97,340/-. THUS ONCE THE ENQUIRY WAS CONDUCTED BY THE AO TO REACH A CONCLUSI ON THAT THE INCOME OF THE ASSESSEE BE ASSESSED BY ADOPTING NET PROFIT AT 2.75%, THEN TH E COMMISSIONER IS NOT AUTHORIZED TO INVOKE THE PROVISIONS OF SECTION 263 MERELY BECA USE HE DOES NOT AGREE WITH THE VIEW OF THE AO. THE LD. A/R HAS FURTHER CONTENDED THAT THE SHOW CAUSE NOTICE ISSUED BY THE COMMISSIONER IS NOT BASED ON CORRECT FACTS AND THE ASSESSEE HAS EXPLAINED THE FACT THAT THE TOTAL AMOUNT DEPOSITED IN THE BANK ACCOUNT DOES NOT REFER TURNOVER OF THE ASSESSEE AS PART OF THE CASH DEPOSITED IN THE BANK ACCOUNT R EPRESENT THE EARLIER WITHDRAWAL OF 4 ITA NO. 244/JP/2020 SHRI DEEP CHAND, DHOLPUR. CASH FROM THE BANK ACCOUNT AND A SUM OF RS. 49,40,9 91/- REPRESENTS THE CHEQUE SALE. THEREFORE, THE LD. COMMISSIONER HAS NOT APPLIED HIS MIND WHILE ISSUING THE SHOW CAUSE NOTICE AS WELL AS PASSING THE IMPUGNED ORDER. THE LD. A/R HAS ALSO REFERRED TO THE CASH FLOW STATEMENT AND SUBMITTED THAT WHEN THE ASSESSEE HAS EXPLAINED THE AVAILABILITY OF CASH WITH THE ASSESSEE, THEN THE ENTIRE DEPOSIT IN THE BANK ACCOUNT CANNOT BE TREATED AS TURNOVER OF THE ASSESSEE. THE LD. A/R HAS THUS CONTENDED THAT THE VERY REASON FOR REOPENING OF THE ASSESSMENT IS CASH DEPOSIT IN THE BANK ACCOUNT AND THE AO HAS COMPLETED THE ASSESSMENT BY CONSIDERING THE BANK AC COUNT STATEMENT AS WELL AS CASH BOOK PRODUCED BY THE ASSESSEE BEFORE THE AO. THERE FORE, IT IS NOT A CASE OF NO ENQUIRY CONDUCTED BY THE AO BUT THE ASSESSMENT ORDER WAS PA SSED AFTER CONSIDERING AND VERIFICATION OF THE RELEVANT RECORD PRODUCED BY THE ASSESSEE. IN SUPPORT OF HIS CONTENTION HE HAS RELIED UPON THE DECISION OF AHMED ABAD BENCH OF THE TRIBUNAL IN CASE OF TORRENT PHARMACEUTICALS LTD. VS. DCIT, 173 ITD 1 30 (AHD. TRIB.) AND SUBMITTED THAT THE LD. COMMISSIONER IS EXPECTED TO SHOW THAT THE V IEW TAKEN BY THE AO IS WHOLLY UNSUSTAINABLE IN LAW BEFORE EMBARKING UPON REVISION ARY POWERS UNDER SECTION 263 OF THE IT ACT. THUS THE LD. A/R HAS SUBMITTED THAT IF THE VIEW TAKEN BY THE AO IS ONE OF THE POSSIBLE VIEWS, THEN THE LD. COMMISSIONER IS NO T PERMITTED TO INVOKE THE PROVISIONS OF SECTION 263 OF THE IT ACT MERELY BECAUSE HE DOES NOT AGREE WITH THE VIEW TAKEN BY THE AO. HE HAS ALSO RELIED UPON THE DECISION OF DE LHI BENCHES OF THE TRIBUNAL IN CASE OF AMIRA PURE FOODS PVT. LTD VS. PCIT, 2017) 63 ITR (T RIB.) 355 AND SUBMITTED THAT EVEN THE EXPLANATION 2 TO SECTION 263 INSERTED WITH EFFE CT FROM 01.06.2015 DOES NOT OVERRIDE THE LAW THAT THE COMMISSIONER CANNOT TREAT THE AOS ORDER ERRONEOUS AND PREJUDICIAL TO 5 ITA NO. 244/JP/2020 SHRI DEEP CHAND, DHOLPUR. THE INTEREST OF THE REVENUE WITHOUT CONDUCTING AN E NQUIRY AND RECORDING A FINDING. THUS THE LD. A/R HAS SUBMITTED THAT THE REVISIONAL ORDER PASSED BY THE LD. COMMISSIONER IS NOT SUSTAINABLE IN LAW AND LIABLE TO BE QUASHED. 4. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T IT IS NOT A CASE OF ANY VIEW TAKEN BY THE AO ON AN ISSUE BUT IT IS A SIMPLE CASE OF FACTUAL ASPECT OF THE MATTER WHEREBY THE AO ESTIMATED THE INCOME OF THE ASSESSEE BY CONSIDERING THE TURNOVER EQUAL TO THE CASH DEPOSIT OF RS. 1,04,97,340/- WHIC H WAS REPORTED IN AIR INFORMATION WITHOUT CONDUCTING ANY VERIFICATION OF THE BANK ACC OUNT OF THE ASSESSEE WHEREIN A TOTAL AMOUNT OF RS. 1,89,51,996/- WAS DEPOSITED DURING TH E YEAR UNDER CONSIDERATION. THUS THE AO HAS COMPLETED THE ASSESSMENT WITHOUT CONDUCT ING A PROPER ENQUIRY. HE HAS FURTHER SUBMITTED THAT THE ASSESSEE HAS NOT FILED A NY RETURN OF INCOME AND EVEN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE UNDER SECTION 148 WAS AT THE FAG END OF THE LIMITATION PERIOD FOR COMPLETING THE ASSESSMENT. TH US THE LD. D/R HAS POINTED OUT THAT THE RETURN OF INCOME FILED BY THE ASSESSEE ON 15 TH DECEMBER, 2017 CLEARLY SHOWS THAT THE ASSESSEE WAS AWAITING TILL THE END OF THE LIMIT ATION FOR COMPLETING THE ASSESSMENT AND JUST BEFORE 10 DAYS OF PASSING THE ASSESSMENT O RDER THE RETURN WAS FILED. HE HAS FURTHER SUBMITTED THAT THE TURNOVER OF THE ASSESSEE WAS MORE THAN RS. 1,00,00,000/- BUT THE ASSESSEE HAS NOT MAINTAINED PROPER BOOKS OF ACCOUNT AS WELL AS GOT THE SAME AUDITED AS REQUIRED UNDER SECTION 44AB OF THE IT AC T. THE AO REJECTED THE BOOKS OF ACCOUNT OF THE ASSESSEE AND THEN ESTIMATED THE INCO ME. HOWEVER, WHILE ESTIMATING THE INCOME, THE AO HAS COMMITTED AN ERROR BY TAKING THE TURNOVER AT RS. 1,04,97,340/- WHICH IS THE AMOUNT RECORDED IN THE REASONS FOR REO PENING OF THE ASSESSMENT INSTEAD OF 6 ITA NO. 244/JP/2020 SHRI DEEP CHAND, DHOLPUR. CORRECT AMOUNT WHICH WAS DEPOSITED IN THE BANK ACCO UNT OF THE ASSESSEE DURING THE YEAR. THUS THE LD. D/R HAS SUBMITTED THAT THE LD. COMMISSIONER HAS RIGHTLY INVOKED THE PROVISIONS OF SECTION 263 WHEN THE ASSESSMENT ORDER WAS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. IN THE CASE IN HAND, THE ASSESSEE HAS NOT F ILED ANY RETURN OF INCOME UNDER SECTION 139 OF THE IT ACT DESPITE THE FACT THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING IN MUSTARD SEEDS AND HAVING TURNOVER OF MORE THAN RS. 1,00,00,000/-. THE AO RECEIVED AIR INFORMATION REGARDING DEPOSIT OF CA SH IN THE BANK ACCOUNT OF THE ASSESSEE OF RS. 1,04,97,340/- AND ACCORDINGLY ISSUE D NOTICE UNDER SECTION 148 ON 29 TH MARCH, 2017. SINCE THE ASSESSEE HAS NOT FILED ANY R ETURN IN RESPONSE TO NOTICE UNDER SECTION 148, THE AO ISSUED A SHOW CAUSE NOTICE UNDE R SECTION 144 OF THE IT ACT ON 31.10.2017. THEREAFTER, THE ASSESSEE FILED THE RET URN OF INCOME ON 15.12.2017 DECLARING TOTAL INCOME OF RS. 1,91,590/-. THE AO N OTED THAT THE ASSESSEE IS NOT MAINTAINING ANY STOCK REGISTER, DAY TO DAY STOCK RE GISTER, NO PROPER BILLS/VOUCHERS AVAILABLE IN SUPPORT OF THE EXPENSES, MOST OF THE E XPENSES HAVE BEEN BOOKED ON THE BASIS OF SELF MADE VOUCHERS, MOST OF THE BILLS/VOUC HERS ARE NOT VERIFIABLE, MOST OF SALES VOUCHERS ARE NOT VERIFIABLE, MOST OF THE PURCHASE V OUCHERS ARE ALSO NOT FULLY VERIFIABLE. ACCORDINGLY, THE AO INVOKED THE PROVISIONS OF SECTI ON 145(3) AND REJECTED THE BOOKS OF ACCOUNT OF THE ASSESSEE. THE AO THEN ESTIMATED THE INCOME OF THE ASSESSEE BY APPLYING NP RATE AT 2.75% ON THE TOTAL SALES OF RS. 1,04,97,340/-. THE AO FURTHER NOTED THAT THE ASSESSEE HAS SHOWN THE SALES OF RS. 1,04,97,340/-, HOWEVER THE BOOKS 7 ITA NO. 244/JP/2020 SHRI DEEP CHAND, DHOLPUR. OF ACCOUNTS WERE NOT AUDITED AND NO AUDIT REPORT WA S PRODUCED BY THE ASSESSEE. THE AO HAS THOUGH REJECTED THE BOOKS OF ACCOUNT AND EST IMATED THE INCOME, HOWEVER, THE AO HAS NOT EXAMINED AND VERIFIED THE TOTAL DEPOSIT MADE BY THE ASSESSEE IN THE BANK ACCOUNT DESPITE THE FACT THAT THE ASSESSMENT WAS RE OPENED ON THE ISSUE OF CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. THUS IT IS EV IDENT ON THE FACE OF THE ASSESSMENT ORDER THAT THE AO HAS NOT EVEN CONDUCTED A MINIMUM REQUIRED ENQUIRY TO FIND OUT THE TOTAL TURNOVER OF THE ASSESSEE AND DEPOSITS MADE IN THE BANK ACCOUNT OF THE ASSESSEE. ON ONE HAND THE AO HAS REJECTED THE BOOKS OF ACCOUN T AND ON THE OTHER HAND THE TURNOVER AS SHOWN IN THE PROFIT & LOSS ACCOUNT SO P REPARED BY THE ASSESSEE WAS ACCEPTED. THE LD. COMMISSIONER HAS NOTED THIS FACT THAT DURING THE YEAR THE ASSESSEE HAS DEPOSITED A SUM OF RS. 1,89,51,996/-. THIS FAC T IS NOT IN DISPUTE AS THE VERY BANK STATEMENT OF THE ASSESSEE REFLECT THIS FACT OF TOTA L DEPOSITS MADE IN THE BANK ACCOUNT THOUGH OUT OF THIS DEPOSIT OF RS. 1,89,51,996/-, A SUM OF RS. 49,40,911/- ARE DEPOSITED THROUGH CHEQUE WHICH THE ASSESSEE HAS CLAIMED AS CH EQUE SALES. ONCE THE CHEQUES DEPOSITED BY THE ASSESSEE IN THE BANK ACCOUNT REPRE SENT THE SALES, THEN THE SAID AMOUNT SHOULD HAVE BEEN CONSIDERED BY THE AO WHILE CONSIDERING AND DETERMINING THE TOTAL TURNOVER OF THE ASSESSEE. THE ASSESSMENT ORD ER APPEARS TO BE PASSED IN HASTE DUE TO NON AVAILABILITY OF THE OTHER DETAILS WITH T HE AO AND ONLY ON 15 TH DECEMBER, 2017 THE ASSESSEE FURNISHED THE RETURN OF INCOME AN D THE BOOKS OF ACCOUNTS. THEREFORE, THE AO HAS NOT CONDUCTED THE DUE ENQUIRY IN RESPECT OF THE TOTAL DEPOSIT MADE BY THE ASSESSEE IN THE BANK ACCOUNT AND CONSEQ UENTLY DETERMINED TOTAL TURNOVER OF THE ASSESSEE WITHOUT CONSIDERING THE DEPOSITS MA DE IN THE BANK ACCOUNT. THIS IS VERY 8 ITA NO. 244/JP/2020 SHRI DEEP CHAND, DHOLPUR. STRANGE THAT AFTER ISSUING NOTICE UNDER SECTION 148 ON THE BASIS OF INFORMATION OF CASH DEPOSIT OF RS. 1,04,97,340/- THE ASSESSEE HAS PREPA RED HIS BOOKS OF ACCOUNT SHOWING EXACTLY THE SAME FIGURE OF SALES WHICH IS RECORDED BY THE AO IN THE REASONS FOR REOPENING OF THE ASSESSMENT AS CASH DEPOSITED IN TH E BANK ACCOUNT. THEREFORE, THE ORDER PASSED BY THE AO BASED ON INCORRECT AND INCOM PLETE FACTS DUE TO LACK OF INQUIRY RENDERS IT AS ERRONEOUS SO FAR AS PREJUDICIAL TO TH E INTEREST OF THE REVENUE. THE COMMISSIONER HAS ISSUED THE SHOW CAUSE NOTICE AND P OINTED OUT THE MISTAKES IN THE ASSESSMENT ORDER AS UNDER :- (A) YOUR CASE WAS SELECTED ON THE SPECIFIC REASON THAT YOU HAD CASH DEPOSIT AMOUNTING TO RS. 1,04,97,340/- IN SAVING BA NK ACCOUNT MAINTAINED WITH PUNJAB NATIONAL BANK. (B) DURING THE YEAR ( AS PER BANK STATEMENT) YOU HA VE DEPOSITED CASH OF RS. 1,89,51,996/- IN YOUR SAVING BANK ACCOUNT, B UT NO ENQUIRY WAS MADE REGARDING SOURCE OF THE CASH. (C) ON PERUSAL OF THE ASSESSMENT RECORD IT IS SEEN THAT AO HAS REJECT YOUR BOOKS AND DECLARED THE NET PROFIT @ 2.75% ONLY ON THE TOTAL SALES OF RS. 1,04,97,340/- I.E. RS. 2,88,677/- WHEREAS AS PE R BANK ACCOUNT STATEMENT YOU HAVE DEPOSITED RS. 1,89,51,996/- DURI NG THE YEAR. NO JUSTIFICATION IS OFFERED FOR DECIDING NET PROFIT @ 2.75% ONLY. THUS THE ASSESSMENT ORDER WAS SUFFERING FROM ERROR WHICH IS FACTUAL IN NATURE AND NOT IN RESPECT OF ANY VIEW TAKEN BY THE AO. THERE IS NO QUARREL ON THE POINT THAT IF THE AO 9 ITA NO. 244/JP/2020 SHRI DEEP CHAND, DHOLPUR. HAS TAKEN ONE OF THE POSSIBLE VIEWS, THEN THE COMMI SSIONER IS NOT PERMITTED TO INVOKE THE PROVISIONS OF SECTION 263 MERELY BECAUSE HE DOE S NOT AGREE WITH THE VIEW TAKEN BY THE AO. THEREFORE, THE DECISIONS RELIED UPON BY TH E LD. A/R OF THE ASSESSEE ON THIS POINT ARE NOT APPLICABLE TO THE FACTS OF THE PRESEN T CASE WHERE THE LD. COMMISSIONER HAS CLEARLY POINTED OUT THE FACTUAL ERROR IN THE ASSESS MENT ORDER AND LACK OF ENQUIRY ON THE PART OF THE AO TO VERIFY THE MINIMUM REQUIRED FACTS ABOUT THE DEPOSITS MADE IN THE BANK ACCOUNT DURING THE YEAR AND CONSEQUENTIAL TURN OVER OF THE ASSESSEE. HENCE WE DO NOT FIND ANY SUBSTANCE OR MERIT IN THE GROUND NO . 1 CHALLENGING THE VALIDITY OF THE REVISION ORDER PASSED UNDER SECTION 263 OF THE ACT. THE SAME IS REJECTED. GROUND NO. 2 IS REGARDING THE MERITS OF THE ORDER P ASSED BY THE COMMISSIONER. 6. THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT T HE LD. COMMISSIONER HAS DIRECTED THE AO TO CONSIDER THE TOTAL TURNOVER OF THE ASSESS EE AT RS. 1,89,51,996/-, THE AMOUNT WHICH WAS DEPOSITED DURING THE YEAR UNDER CONSIDERA TION. HOWEVER, THE ASSESSEE HAS EXPLAINED THE SOURCE OF THIS DEPOSIT MADE IN THE BA NK ACCOUNT AND FILED A CASH FLOW STATEMENT. THEREFORE, THE SOURCE OF THE DEPOSIT WHI CH REPRESENTS EARLIER WITHDRAWAL FROM THE BANK AS WELL AS OPENING CASH BALANCE WITH THE ASSESSEE CANNOT BE TREATED AS THE TURNOVER OF THE ASSESSEE. HENCE, THE LD. A/R HA S SUBMITTED THAT THE DIRECTION OF THE LD. COMMISSIONER TO TAKE THE DEPOSITS MADE IN THE B ANK ACCOUNT AS TURNOVER OF THE ASSESSEE IS UNJUST AND HIGHLY ARBITRARY. THE LD. C OMMISSIONER HAS EVEN NOT CONDUCTED ANY ENQUIRY TO FIND OUT THE CORRECT AMOUNT OF TURNO VER OF THE ASSESSEE. THUS HE HAS SUBMITTED THAT THE IMPUGNED ORDER MAY BE SET ASIDE. 10 ITA NO. 244/JP/2020 SHRI DEEP CHAND, DHOLPUR. 7. THE LD. D/R HAS SUBMITTED THAT THOUGH THE LD. CO MMISSIONER HAS CONSIDERED THIS FACT OF TOTAL DEPOSIT MADE IN THE BANK ACCOUNT WHIL E INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT, HOWEVER, WHILE SETTING ASIDE THE OR DER, THE AO WAS DIRECTED TO PASS A SPEAKING ASSESSMENT ORDER AFTER CONSIDERING THE ISS UES AS TAKEN UP BY THE LD. COMMISSIONER IN THE REVISIONAL PROCEEDINGS AND ALSO TO CONDUCT PROPER ENQUIRY AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. HE HAS RELIED UPON THE IMPUGNED ORDER OF THE LD. COMMISSIONER. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THOUGH THE ASSESSEE HAS RAISED THIS PLEA TH AT THE ENTIRE DEPOSITS MADE IN THE BANK ACCOUNT CANNOT BE CONSIDERED AS TURNOVER, HOWE VER, WHEN THE ASSESSEE IS NOT MAINTAINING THE BOOKS OF ACCOUNT AS REQUIRED UNDER SECTION 44AA AS WELL AS THE AUDIT OF THE SAME UNDER SECTION 44AB, THEN THE CLAIM OF AVAI LABILITY OF OPENING CASH BALANCE WITH THE ASSESSEE CANNOT BE ACCEPTED. THE WITHDRAW AL OF THE AMOUNT FROM THE BANK CAN BE CONSIDERED AS A SOURCE FOR RE-DEPOSITING IF THE ASSESSEE CAN FULLY SATISFY THE AO THAT THE WITHDRAWAL MADE FROM THE BANK IS NOT UTILI ZED FOR ANY OTHER PURPOSES BEING THE PURCHASES AND OTHER EXPENDITURES INCURRED BY THE AS SESSEE IN THE COURSE OF BUSINESS AS WELL AS PERSONAL DRAWINGS. THEREFORE, TO THAT EXTEN T ALL THE FACTS AND DETAILS ARE REQUIRED TO BE PROPERLY VERIFIED. THE LD. COMMISSI ONER HAS FINALLY SET ASIDE THE ORDER AS UNDER :- I, THEREFORE, SET ASIDE THE ASSESSMENT ORDER PASS ED BY THE AO U/S 147/143(3) ON 26.12.2017 WITH THE DIRECTIONS TO THE ASSESSING OFFICER TO 11 ITA NO. 244/JP/2020 SHRI DEEP CHAND, DHOLPUR. PASS THE SPEAKING ASSESSMENT ORDER AFTER CONSIDERIN G THE ABOVE MENTIONED ISSUES, APART FROM OTHER ISSUES DISCUSSED IN THE ASSESSMENT ORDER DATED 26.12.2017 AND ALSO THE ISSUES WHICH MA Y SUBSEQUENTLY COME INTO THE NOTICE OF AO DURING THE ASSESSMENT PROCEED INGS U/S 147/143(3)/263 OF THE INCOME TAX ACT, 1961. CONSEQU ENTLY, THE ORDER PASSED U/S 143(3) OF THE ACT IS SET ASIDE UNDER SEC TION 263 OF THE ACT WITH THE DIRECTION THAT THE AO SHOULD PROPERLY EXAMINE A LL THE ISSUES RAISED IN THE FOREGOING PARAGRAPHS AND PASS THE SPEAKING ASSE SSMENT ORDER AFRESH AFTER MAKING PROPER ENQUIRIES AND AFTER AFFORDING A DEQUATE OPPORTUNITY TO BEING HEARD TO THE ASSESSEE. ACCORDINGLY, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF THE LD. COMMISSIONER TO THE EXTENT THAT THE ORDER OF THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. HOWEVER, THE AO IS DIRECTE D TO VERIFY THE AVAILABILITY OF SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNT TO THE EXTENT O F CASH WITHDRAWALS BY THE ASSESSEE. 9. IN THE RESULT, APPEAL IS PARTLY ALLOWED FOR STAT ISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 05/08/2 020. SD/- SD/- ( JES'K LH- 'KEKZ] ) ( FOT; IKY JKWO (RAMESH C. SHARMA) ) (VIJAY PAL RAO) YS[KK LNL; @ ACCOUNTANT MEMBER U;KF;D LNL; / JUDICIAL MEMBER JAIPUR DATED:- 05/08/2020. DAS/ 12 ITA NO. 244/JP/2020 SHRI DEEP CHAND, DHOLPUR. VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI DEEP CHAND, DHOLPUR. 2. THE RESPONDENT THE PCIT, ALWAR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 244/JP/2020) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR