Rajgul Ctrditnvest P.Ltd, New Delhi V. PrCIT,Delhi-7, New Delhi

ITA 2519/DEL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5887 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 22-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SULEKHA VERMA
• Assessee Lawyers: LALIT KUMAR
• Keywords: Revision of order; Document seized; Accommodation entries; Assessment record; Reason to believe; Documents seized; Reassessment proceedings; Set aside
• Section: 244A; 142(1); 133(6); 143(1); 143(2); 139(1); 68; 148; 263; 63

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER I.T.A. NO. 2519/DEL/2019 A.Y. : 2009-10 RAJGUL CREDITNVEST P. LTD., 474-75, AGGARWAL MILLENNIUM TOWER-II, NETAJI SUBHASH PLACE, PITAMPURA, NEW DELHI 110 034 (PAN: AAACR5900M) VS. PR. CIT, DELHI-7 NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. GAUTAM JAIN, ADV. & SH. LALIT KUMAR, ADV. DEPARTMENT BY : S MT. S ULEKHA VERMA, CIT(DR) ORDER PER H.S. SIDHU : JM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 18/21-01-2019 PASSED BY THE LD. PR. COMMISSIO NER OF INCOME TAX- 7, NEW DELHI U/S. 263 OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) RELEVANT FOR THE ASSESSMENT YEAR 2009-10. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE F ILED ITS RETURN OF INCOME ON 28.09.2009 DECLARING NIL INCOME. THE AO PROCESS ED THE RETURN OF THE ASSESSEE U/S. 143(1) OF THE ACT. SUBSEQUENTLY, INFORMATION WAS RECEIVED FROM THE INVESTIGATION WING, NEW DELHI VID E LETTER DATED 12.3.2013 AND ON THAT BASIS THE AO REOPENED THE ASS ESSMENT OF THE ASSESSEE U/S. 148 OF THE ACT BY ISSUING NOTICE DATE D 28.3.2014 AS WELL AS NOTICE U/S. 143(2) AND 142(1) OF THE ACT WAS ALSO I SSUED TO THE ASSESSEE. IN RESPONSE TO THE SAME, THE AR OF THE ASSESSEE APP EARED AND FILED ALL 2 NECESSARY DOCUMENTARY EVIDENCES, IN SUPPORT OF THE QUERY RAISED BY THE AO. AFTER CONSIDERING THE SAME THE AO ACCEPTED THE CLAIM OF THE ASSESSEE AND COMPLETED THE ASSESSMENT U/S. 147/143( 3) OF THE ACT VIDE ORDER DATED 16.12.2016 AT NIL INCOME OF THE ASSESSE E. 2.1 THE INCOME TAX OFFICER, WARD NO. 21(1), NEW DEL HI VIDE LETTER DATED 03.4.2018 SENT A PROPOSAL FOR REVISION OF THE ORDER U/S. 263 OF THE I.T. ACT BEING PREJUDICIAL TO THE REVENUE WHEREIN I T WAS SPECIFICALLY OBSERVED THAT REASSESSMENT PROCEEDINGS IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2009-10 WAS DONE ERRONEOUSLY. DU E TO TIME BARRED PRESSURE THE FACT THAT THE ACCOMMODATION ENTRY AMOU NTING TO RS. 1,50,00,000/- HAD ESCAPED ASSESSMENT AND LEFT UN-AS SESSED. AO ALSO BROUGHT TO THE NOTICE OF THE PR. CIT-7, NEW DELHI THAT THE ACCOMMODATION ENTRY OF RS. 1,50,00,000/- WAS RECEIV ED FROM THE COMPANY NAMELY M/S VIRGIN CAPITAL SERVICES PVT. LTD . WHICH IS CONTROLLED BY AN ENTRY OPERATOR SH. SK JAIN & SH. VIRENDER KUMAR JAIN. AO HAS ALSO BROUGHT TO THE NOTICE IN THE PROPOSAL T HAT MATTER OF TAKING THE ACCOMMODATION ENTRY WAS OVERLOOKED DUE TO TIME BARR ING PRESSURE OVER THE ASSESSMENT. ON THE BASIS OF SAID INFORMATION, T HE PR. CIT-7, DELHI ISSUED A SHOW CAUSE NOTICE U/S. 263 OF THE ACT ON 1 6/17-05-2018 CALLING FOR THE EXPLANATION OF THE ASSESSEE ON THE REASSESS MENT FRAMED BY THE AO BEING PREJUDICIAL TO THE INTEREST OF REVENUE AND FO R THE VARIOUS REASONS MENTIONED IN THE NOTICE DATED 16-17/-5/2018 WHICH T HE ASSESSEE HAS PLACED AT PAGE NO.159-163 OF THE PAPER BOOK. IN R ESPONSE TO THE SAME, ASSESSEE FILED ADJOURNMENT APPLICATION WHICH WAS A CCEPTED BY THE PR. CIT AND FINALLY THE CASE WAS ADJOURNED FOR 15.11.20 18. ON 15.11.2018 THE ASSESSEE NOR HIS AR APPEARED NOR FILED ANY WRIT TEN SUBMISSIONS AND THE LD. PR. CIT HAD DECIDED THE CASE OF THE ASSESSE E BY DECLARING THE AO ORDER DATED 16.12.2016 AS ERRONEOUS IN SO FAR PRE JUDICIAL TO THE INTEREST OF REVENUE AND SET ASIDE THE SAME WITH THE DIRECTIO NS TO MAKE THE ASSESSMENT AFRESH, AFTER GIVING ADEQUATE OPPORTUNI TY TO THE ASSESSEE OF BEING HEARD AND AFTER TAKING INTO ACCOUNT THE PROV ISIONS OF SECTION 68 OF 3 THE ACT VIDE ORDER DATED 18/21-01-2019. AGGRIEVED W ITH THE IMPUGNED ORDER, ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE FILED 02 PAPER BOOK CONTAINING PAGES 1-180 IN WHICH HE HAS ATTACHE D THE VARIOUS DOCUMENTARY EVIDENCE FOR ESTABLISHING THE CASE OF T HE ASSESSEE THAT THE ORDER PASSED BY THE ASSESSING OFFICER DATED 16.12.2 016 IS NOT PREJUDICIAL TO THE INTEREST OF THE REVENUE AND THE AO HAS PART LY EXAMINED THE AMOUNT OF RS. 1,50,00,000/- RECEIVED FROM M/S VIRGIN CAPIT AL SERVICES PVT. LTD. LD. COUNSEL FOR THE ASSESSEE ALSO FILED WRITTEN SUB MISSIONS SUPPORTED BY VARIOUS CASE LAWS RENDERED BY THE HONBLE HONBLE HIGH COURT AND THE TRIBUNAL. HE STATED THAT THE ASSESSEE COMPANY WAS INCORPORATED UNDER THE COMPANIES ACT, 1956 ON 11.09.1996 AND IS ALSO R EGISTERED AS NON BANKING FINANCE COMPANY AND IS ENGAGED IN THE BUSIN ESS OF TRADING IN SHARES AND SECURITIES AS WELL AS LENDING MONEY AS ICDS, SHORT TERM LOANS AND ADVANCES AND INVESTMENT IN FIXED DEPOSITS . HE ALSO DRAW OUR ATTENTION TOWARDS THE DETAILS OF TRANSACTIONS MADE BY THE ASSESSEE COMPANY DURING THE LAST PRECEDING 10 YEARS WHICH HE HAS SHOWN IN THE TABULATED FORM AT PAGE NO. 1 & 2 OF HIS WRITTEN SUB MISSIONS. HE STATED THAT ASSESSEE COMPANY HAS ALSO FILED THE RETURN OF INCOME ALONGWITH AUDITED REPORT U/S. 44AB OF THE I.T. ACT WHICH WAS ACCEPTED AS SUCH IN ORDERS OF ASSESSMENT U/S. 143(1)/143(3) OF THE ACT FOR THE ASSESSMENT YEARS 2007-08 TO 2012-13. FOR THE ASSESSMENT YEAR IN DISPUTE, THE ASSESSEE FILED ITS RETURN ON 28.9.2009 DECLARING NI L INCOME U/S. 139(1) OF THE I.T. ACT ALONGWITH COMPUTATION OF INCOME, AUDIT ED FINANCIAL STATEMENTS AND TAX AUDIT REPORT U/S. 44AB OF THE AC T, WHICH THE ASSESSEE HAS PLACED AT PAGE NO. 43-58 OF THE PAPER BOOK. HE FURTHER SUBMITTED THAT ASSESSMENT WAS FRAMED U/S. 147/143(3) OF THE A CT VIDE ORDER DATED 16.12.2016 WHEREIN ON DETAILED EXAMINATION OF THE F ACTS ON RECORD AND AFTER MAKING ALL POSSIBLE ENQUIRIES THE AO HAD ACCE PTED THE CLAIM OF THE ASSESSEE THEN SUCH AN ORDER OF ASSESSMENT COULD NOT BE REGARDED AS ERRONEOUS IN AS MUCH AS PREJUDICIAL TO THE INTERES T OF REVENUE MERELY 4 BECAUSE THE LD. PR. CIT HAD A DIFFERENT OPINION AND THAT TOO, WITHOUT HAVING ESTABLISHED IN ANY MANNER THAT, VIEW ADOPTED BY THE AO WAS AN IMPOSSIBLE VIEW. HE FURTHER SUBMITTED THAT AO HAD M ADE ENQUIRIES DURING THE ASSESSMENT PROCEEDINGS; THE ASSESSEE HAD GIVEN DETAILED EXPLANATION AND THE AO ON BEING WAS SATISFIED WITH THE EXPLANAT ION OF THE ASSESSEE, SUCH DECISION OF THE AO CANNOT BE HELD TO BE ERRON EOUS, AND THEREFORE CANNOT BE REVISED U/S. 263 OF THE ACT, WHICH THE LD . PR. CIT HAS WRONGLY DONE. IT IS FURTHER SUBMITTED THAT AO EVEN ENQUIRED FROM SELLER INDEPENDENTLY U/S. 133(6) OF THE ACT FROM WHOM ASSE SSEE HAS PURCHASED SHARES WHICH HAS BEEN FURTHER SOLD TO M/S VIRGIN CA PITAL SERVICES LTD. AND OTHERS. IT IS ALSO SUBMITTED THAT ASSESSEE HAS SOLD THE SHARES OF M/S ALLDERS KHANNAS (P) LTD. TO M/S PARIKATHA BUILDWELL PVT. LTD; SADABHUJS REALTORS PVT. LTD; RG ENTERPRISE; SUNITA BINDAL WHI CH HAS BEEN ACCEPTED IN ORDER OF ASSESSMENT AND HAS NOT BEEN DISPUTED I N PROCEEDINGS U/S. 263 OF THE ACT. HENCE, BY NO JUSTIFICATION, IT COULD B E ALLEGED THAT, THE ORDER OF ASSESSMENT FRAMED BY THE AO IS ERRONEOUS WITHIN THE MEANING OF SECTION 263 OF THE ACT AND AS SUCH, NOTICE IS WITHO UT JURISDICTION. HE FURTHER SUBMITTED THAT THE OBSERVATIONS IN THE NOTI CE ARE VAGUE AND ONLY FOR MAKING DEEPER ENQUIRY AND RECONSIDERING THE EVI DENCES ALREADY ON RECORD DULY CONSIDERED DURING ASSESSMENT PROCEEDING S BASED ON PURPORTED THAT FRESH FACT HAVE BEEN EMERGED SUBSEQU ENT TO THE ORDER OF ASSESSMENT WHICH IS FACTUALLY INCORRECT AND UNTENAB LE. HE FURTHER SUBMITTED THAT IN THE INSTANT CASE THE PR. CIT HAS NOT SATISFIED THE TWIN CONDITIONS REQUIRED FOR INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT, HENCE, THE IMPUGNED ORDER PASSED U/S. 263 OF THE AC T IS WITHOUT JURISDICTION AND, THEREFORE, THE SAME IS ILLEGAL, U NTENABLE AND UNSUSTAINABLE AND NEEDS TO BE SET ASIDE. 4. ON THE OTHER HAND, LD. CIT(DR) CONTROVERTED THE VARIOUS SUBMISSIONS AND ARGUMENTS ADVANCED BY THE LD. AR OF THE ASSESSE E. SHE HAS STRONGLY RELIED UPON THE IMPUGNED ORDER PASSED U/S. 263 OF T HE ACT BY THE LD. PR. CIT AND HAS INVITED OUR ATTENTION TO THE FINDING RE CORDED BY THE LEARNED 5 PR. CIT IN HIS IMPUGNED ORDER. ACCORDINGLY, SHE STATED THAT THE ORDER PASSED BY THE AO IS ERRONEOUS AS WELL AS PREJUDICIAL TO TH E INTEREST OF THE REVENUE. ACCORDINGLY, SHE REQUESTED THAT THE IMPUGNED ORDER PASSED U/S. 263 OF THE ACT PASSED BY THE LD. PR. CIT MAY BE UPHELD AND APP EAL OF THE ASSESSEE MAY BE DISMISSED. IN SUPPORT OF HER CONTENTION, SHE FI LED THE COPY OF VARIOUS FOLLOWING DECISIONS:- - HONBLE SUPREME COURT DECISION IN THE CASE OF D ANIEL MERCHANTS PVT. LTD. VS. ITO (APPEAL NO. 2396/2017) DATED 29.11.2017. - MALABAR INDUSTRIAL CO. LTD. VS. CIT (2000) 109 TA XMAN 66 (SC) / [2000] 243 ITR 83 (SC). - RAJMANDIR ESTATES (P) LTD. VS. PCIT 70 TAXMANN.CO M 124 (CALCUTTA). - RAJMINDER ESTATES (P) LTD. VS. PCIT (2017) 77 TAXMANN.COM 285 (SC). - SHREE MANJUNATEHSWARE PACKING PRODUCTS & CAMPHOR WORKS VS. CIT (1998) 96 TAXMAN 1 (SC). - ORDER OF HONBLE SUPREME COURT OF INDIA IN THE CA SE OF CIT VS. AMITABH BACHAN 384 ITR 200 DATED 11.5.2016. - ORDER OF ITAT, F BENCH IN THE CASE OF PTC IMPEX P VT. LTD. VS. CIT, ITA NO. 2860/DEL/2010 DATED 3.4.2018. - DELHI HIGH COURT DECISION IN THE CASE OF GEE VEE ENTERPRISES VS. ADDL. CIT, 99 ITR 375. - ITAT, DELHI BENCH DECISION IN THE CASE OF PERFETT I VAN MELLE INDIA PVT. LTD. ITA NO. 3046/DEL/2016 FOR AY 2008-09 ORDER DATED 11.1.2019. - ITAT, DELHI BENCH IN THE CASE OF RAMESH KUMAR, I TA NO. 1982/DEL/2018 FOR AY 2014-15 DATED 25.1.2019. - ITAT, DELHI ORDER IN THE CASE OF CIT VS. APOLLO T YRES LTD. 65 ITD 263. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE RELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE IMPUGNED ORDER PASSED BY THE LD. PR. CIT U/S. 263 OF THE ACT ALONGWITH TH E LEGAL POSITION ON THE RELEVANT ISSUES WHICH EMANATES FROM THE VARIOUS DE CISIONS CITED BEFORE US AS WELL AS THE PAPER BOOKS FILED BY BOTH THE PAR TIES AND THE ASSESSMENT ORDER AND REASONS RECORDED FOR REOPENING OF ASSESSM ENT AND THE NOTICES ISSUED U/S. 142(1) & 143(2) AND QUESTIONNAIRE THERE OF AND NOTICE ISSUED U/S. 148 OF THE ACT AND IN RESPONSE THEREOF THE DET AILED REPLIES OF THE 6 ASSESSEE FROM TIME TO TIME. WE HAVE ALSO PERUSED THE PAPER BOOKS FILED BY THE ASSESSEE WHEREIN HE HAS ATTACHED THE C OPY OF NOTICE U/S. 148 OF THE ACT OF THE AO DATED 28.3.2016 TO THE ASSESSE E (PB PG.1); ASSESSEES REPLY VIDE ITS LETTER DATED 4.4.2016 EN CLOSING THEREWITH THE COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME FOR FIN ANCIAL YEAR 2008-09 RELEVANT TO ASSESSMENT YEAR 2009-10 AND COPY OF PO WER ATTORNEY (PB PG. 2-5); REASONS FOR OPENING THE CASE FOR ASSESSMEN T YEAR 2009-10 (PB PG. 6-17); COPY OF NOTICE ISSUED BY THE AO U/S. 142(1) OF THE ACT ON 13.6.2016 AND NOTICE U/S. 143(2)/142(1) OF THE ACT ON 22.9.2016 (PB PG. 18-22); COPY OF ASSESSEE FILED ITS REPLY IN RESPONS E TO NOTICE U/S. 148 OF THE ACT VIDE LETTER DATED 18.10.2016; COPY OF REPLY FILED BY THE ASSESSEE BEFORE THE AO IN RESPONSE TO NOTICE U/S. 148 OF THE ACT ON 21.10.2016 (PB PG. 25-38) AND COPY OF REPLY DATED 26.10.2016 FILED BY THE BEFORE THE AO IN RESPONSE TO NOTICE U./S. 148 AND 142(1) O F THE ACT ALONGWITH ENCLOSURES I.E. COPY OF CERTIFICATION OF INCORPORAT ION ALONGWITH MEMORANDUM OF ASSOCIATION AND ARTICLE OF ASSOCIATIO N; COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME ALONGWITH AUDIT ED FINANCIAL STATEMENT FOR FINANCIAL YEAR 2008-09 RELEVANT TO AS SESSMENT YEAR 2009-10 AND COPY OF FORM 3CD (PB PG. 39-68) AND COPY OF NOT ICE U/S. 142(1) OF THE ACT DATED 4.11.2016 (PB PG. 69); COPY OF LETTER FROM AO DISPOSING OFF THE OBJECTION FILED ON BEHALF OF THE ASSESSEE ( PB PG. 70); COPY OF REPLY FILED BY THE ASSESSEE BEFORE AO IN RESPONSE T O NOTICE U/S. 148 & 142(1) OF THE ACT ALONGWITH ITS VARIOUS ENCLOSURES (PB PG. 71-94); COPY OF RELY FILED BY ASSESSEE BEFORE AO IN RESPONSE TO NOTICE U/S. 148 & 142(1) OF THE ACT ALONGWITH ENCLOSURE (PB PG. 95-14 0); COPY OF NOTICE U/S. 142(1) OF THE ACT DATED 28.11.2016 (PG. 141-14 2 OF PB); COPY OF REPLY DATED 5.12.2016 FILED BY ASSESSEE BEFORE AO I N RESPONSE TO NOTICE U/S. 148 AND 142(1) OF THE ACT ALONGWITH ANNEXURE I (PG. 143-144 OF PB); COPY OF REPLY FILED BEFORE AO IN RESPONSE TO N OTICE U/S. 148 AND 142(1) OF THE ACT ALONGWITH LEDGER ACCOUNT OF DAILY FUTURE DIFF/MTM BILL (PB PG. 145-148); COPY OF REPLY DATED 07.12.20 16 FILED BY ASSESSEE 7 BEFORE AO IN RESPONSETO NOTICE US. 148 AND 142(1) O F THE ACT ALONGWITH ENCLOSURE (PG. 149-157); COPY OF ASSESSMENT ORDER U /S. 147/143(3) OF THE ACT FOR THE ASSESSMENT YEAR 2009-10 (PG. 158 OF PAP ER BOOK). 5.1 AFTER GOING THROUGH THE AFORESAID DOCUMENTARY E VIDENCES FILED IN THE SHAPE OF PAPER BOOK, WE ARE OF THE CONSIDERED VIEW THAT AO HAS THOROUGHLY EXAMINED THE CASE OF THE ASSESSEE AND PR OPERLY ENQUIRED THE MATTER AND AFTER SATISFACTION ACCEPTED THE GENUINEN ESS AND TRANSACTION IN DISPUTE AND VIDE HIS ASSESSMENT ORDER DATED 16.12.2 016 PASSED U/S. 147/143(3) OF THE ACT, HE FRAMED THE ASSESSMENT BY ACCEPTING INCOME DECLARED BY THE ASSESSEE BY OBSERVING AS UNDER:- ASSESSEE FILED ITS RETURN OF INCOME ON 28.9.2009 DECLARING NIL INCOME. THE RETURN WAS PROCESSED U/S. 143(1) OF THE INCOME TAX ACT, 1961. HOWEVER, THE CASE WAS NOT SELECTED FOR REGULAR SCRUTINY. 2. SUBSEQUENTLY, INFORMATION WAS RECEIVED FROM TH E INVESTIGATION WING, NEW DELHI VIDE LETTER F.NO. DIT (INV.)-II U/S. 148/2012-13/195 DATED 12.3.2013 AND CASE WAS REOPENED U/S. 148 OF THE I.T. ACT, 1961. NOTICE U/S. 148 DATED 28.3.2016 WAS ISSUED TO THE ASSESSEE FILE ITR WITHIN 30 DAYS OF RECEIPT OF NOTICE. THEREAFTER, NOTICES U/ S. 143(2) & 142(1) WERE ISSUED TO THE ASSESSEE. IN COMPLIANCE WITH THE NOTICES, SH. ASHISH BHALA, CA/AR OF THE ASSESSEE COMPANY PRESENT AND MADE SUBMISSIONS. 3. DURING THE YEAR UNDER CONSIDERATION ASSESSEE COMPANY IS TRADING SHARES. ASSESSED AT NIL INCOME. ISSUE DEMAND NOTICE AND CHALLAN. CHARGE INTEREST U/S. 234B, 234C AND 234D OF THE I.T. ACT. WITHDRAW INTEREST U/S. 244A OF THE ACT. 5.2 LD. PR. CIT-7, NEW DELHI ISSUED A SHOW CAUSE NOTICE U/S. 263 OF THE ACT ON 17.5.2018, THE CONTENTS THEREOF ARE REPR ODUCED AS UNDER:- 'ON EXAMINATION OF THE ASSESSMENT RECORDS IN YOUR CASE FOR THE SAID ASSESSMENT YEAR IT REVEALS THAT THE ASSESSMENT ORDER PASSED U/S 147/143(3) ON 16.12.2016 BY THE ITO, WARD 21 (1). NEW DELHI IS FOUND TO BE ERRONEOUS IN SO FAR AS IT IS 8 PREJUDICIAL TO THE INTEREST OF THE REVENUE DUE TO THE FOLLOWING REASON. 2 THE CASE OF THE ASSESSEE COMPANY, M/S RAJGUL CREDITNVEST PVT. LTD. WAS RE-OPENED FOR A.Y. 2009-10 VIDE NOTICE U/S 148 ISSUED BY THEN I TO, WARD-21 (I) ON 28.03.2016 AFTER RECORDING REASON TO BELIEVE. AS PER THE REASONS RECORDED, ASSESSEE HAD RECEIVED ACCOMMODATION ENTRIES FROM COMPANIES CONTROLLED BY THE ENTRY OPERATOR SH S.K. JAIN THROUGH INTERMEDIARY. THE COPY OF REASONS RECORDED WAS PROVIDED TO ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE REASSESSMENT PROCEEDINGS WAS INITIATED BELIEVING THAT ASSESSEE HAD TAKEN ACCOMMODATION ENTRY OF RS. 1,50,00,000/- IN THE FORM OF SHARE CAPITAL/SHARE PREMIUM FROM THE COMPANIES/ENTITIES CONTROLLED BY SH. S K JAIN WHICH IS APPARENT FROM THE REASONS RECORDED. 2.1 THE REASON RECORDED WAS BASED UPON THE REPORT OF INVESTIGATION WING. THE INVESTIGATION WING HAD CONDUCTED SEARCH/SURVEY ON S K JAIN GROUP OF CASES AND HAD SHARED THE REPORT WITH ASSESSING OFFICER. AS PER THE REPORT ASSESSEE HAD TAKEN ACCOMMODATION ENTRY OF RS. 1.5 CR. IN LIEU OF CASH CHEQUE/PO AND WITH HELP OF INTERMEDIATORY AS UNDER:- S.NO. PAGE/ANNEXURE OF INFORMATION DATE AND CHEQUE/PO ISSUED BEARING NO. AMOUNT NAME OF DUMMY COMPANIES CONTROLLED BY SK JAIN BY WHOM CHEQUE ISSUED NAME OF PERSON TO WHOM ISSUED (BENEFICIARY) NAME OF THE MIDDLE MAN / MEDIATOR 1 A-29, 36 PASGE BACK SIDE CHEQUE BOOK 29952 DT. 1911.08 1,50,00,000 M/S VIRGIN CAPITAL SERVICES PVT. LTD. M/S RAJGUL CREDITNVEST PVT. LTD. (ASSESSEE) BHALLAJI REASON FOR INFORMATION OF BELIEF WAS : THAT PARTICULARS OF ALL THE INVESTING COMPANIES ARE FOUND RECORDED IN THE DIARY MAINTAINED IN THE REGULAR COURSE AT THE PREMISES UNDER CONTROL OF SH. SK JAIN. PASS BOOKS / CHEQUES BOOKS OF ALL SUCH INVESTING COMPANIES HAVE BEEN FOUND AT THE 9 PREMISES OF SH. SK JAIN AND VIRENDER JAIN. THAT NAME OF THE ASSESSEE COMPANY APPEARS ON THE DOCUMENT SEIZED FROM THE PREMISE OF SH. S.K.JAIN. THAT THE ASSESSEE HAS DECLARED IN ITS RETURN OF INCOME THAT IT HAS NOT INCREASED ITS SHARE CAPITAL AMOUNTING TO RS. 1,50,00,000/- WHICH CONFIRMS THE INFORMATION RECEIVED. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE SUBMITTED DETAILS OF ITS BUSINESS AND DETAILS OF TRANSACTIONS WITH VIRGIN CAPITAL SERVICES PVT LTD IT WAS NOTICED THAT ASSESSEE COMPANY WAS REGISTERED AS. NBFC COMPANY AND ENGAGED IN THE BUSINESS OF TRADE OF SHARES/SECURITY THE ASSESSEE CONTENDED THAT THE ALLEGED TRANSACTION WITH MIS VIRGIN CAPITAL SERVICES PVT LTD OF RS. 1,50,00,000/- WAS MADE ON ACCOUNT OF SALE OF SHARES. AS PER SUBMISSIONS THE ASSESSEE HAD SOLD SHARES OF DIFFERENT ENTITIES TO M/S VIRGIN CAPITAL SERVICE S PVT. LTD FOR WHICH CONSIDERATION OF RS. 1.5 CR WAS RECEIVED. IT WAS ALSO OBSERVED THAT THE SAID SALE OF SHARE WAS OFFERED FOR TAXATION IN THE PROFIT & LOSS ACCOUNT BY THE ASSESSEE. SUCH SUBMISSION OF THE ASSESSEE IS VERIFIED FROM THE PROFIT AND LOSS ACCOUNT FILED BY THE ASSESSEE IN WHICH SALE OF SHARES HAS BEEN SHOWN AT AN AMOUNT OF RS. 4,38,54,348/- (SCHEDULE -11) & PURCHASES HAS BEEN SHOWN AT AN AMOUNT OF RS. 4,42,07,159/-. 2.2 FURTHER, VIDE ITS SUBMISSION THE ASSESSEE HAS CONTENDED THE REASON RECORDED THAT THE ASSESSEE HAS TAKEN ACCOMMODATION ENTRY IN THE FORM OF SHARE CAPITA/. THIS FACT IS ALSO VERIFIED THAT THERE IS N O INCREASE IN THE SHARE CAPITAL OF THE ASSESSEE DURIN G THE RELEVANT ASSESSMENT YEAR AS COMPARED TO LAST YEAR. THIS IS TABULATED BELOW. HEAD AS PER AY 2008-09 AS PER AY 2009-10 SHARE CAPITAL 74,54,000/- 74,54,0007- RESERVE & SURPLUS 42,24,0007- 42,24,0007- 2.3. FURTHER IN THIS CASE THE ASSESSEE FROM THE BEGINNING OF ASSESSMENT PROCEEDINGS KEPT ON DELAYING IN PROVIDING THE DETAILS IN ORDER TO TAKE 10 THE ASSESSMENT AT THE FAG END OF TIME BARRING. ALSO AT THE REGULAR INTERVAL REMINDERS WERE SENT TO THE ASSESSEE TO FILE REPLY. DUE TO THE FACT THA T THERE WAS NO REPLY FROM THE PART OF THE ASSESSEE PENALTY U/S 271(1)(B)WAS IMPOSED ON THE ASSESSEE ON 17.10.2016. THE ASSESSEE STARTED TO FILE REPLY FROM 21.10.2016. HENCE, THE ASSESSEE HAS PLAYED DELAYED TACTICS. IN THE GIVEN CIRCUMSTANCES THE CASE DETAILS WAS EXAMINED AND IT WAS NOTICED THAT THERE WAS NO INCREASE IN SHARE CAPITAL/PREMIUM OR ANY OTHER LIABILITY HEAD OF THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. 2.4 IN THE CONSTRAINT OF TIME PRESSURE AND KEEPING IN VIEW THE REASON FOR FORMATION OF BELIEF AS STATED ABOVE, SUBMISSION OF THE ASSESSEE AND FINANCIAL STATEMENT FILED BY THE ASSESSEE THE CASE WAS COMPLETED BY THE AO AT RETURNED INCOME AS THERE HAS BEEN NO INCREASE UNDER THE HEAD SHARE CAPITAL/SHARE PREMIUM OR ANY OTHER LIABILITY HEAD IN THE CASE OF THE ASSESSEE FOR THE RELEVANT YEAR. 2.5 HOWEVER, AS PER THE SEIZED DOCUMENTS FROM THE PREMISE OF SK JAIN GROUP IT REMAINS A FACT THAT THE ASSESSEE HAS TAKEN ACCOMMODATION ENTRY FOR AN AMOUNT OF RS. 1,50,00,000/- FROM THE ALIEGED ENTITY M/S VIRGIN CAPITAL SERVICES PVT LTD OF S. K JAIN GROUP. 2.6 LATER ON IT HAS FOUND THAT FROM THE SEIZED DOCUMENTS IN THE CASE OF S K JAIN THAT ASSESSEE HAS GIVEN AN AMOUNT OF RS. 1,50,00,OOO/- TO SH. BHALLA JEE ON 19.11.2008. DETAILS OF THE SAME IS AS FOLLOWS:- AMOUNT NAME OF INTERMEDIATORY DATE MODE 1,50,00,000 S. BHALLAJI 19.11.2008 CASH THIS IS THE SAME AMOUNT WHICH IS REFLECTED ON THE BACK SIDE OF PAGE 36 OF ANNEXURE A-29 WHOSE DETAILS IS GIVEN ABOVE AND IS AS BELOW:- S.NO. PAGE/ANNEXURE OF INFORMATION DATE AND CHEQUE/PO ISSUED BEARING NO. AMOUNT NAME OF DUMMY COMPANIES CONTROLLED BY SK JAIN BY NAME OF PERSON TO WHOM ISSUED (BENEFICIARY) NAME OF THE MIDDLE MAN / MEDIATOR 11 WHOM CHEQUE ISSUED 1 A-29, 36 PASGE BACK SIDE CHEQUE BOOK 29952 DT. 1911.08 1,50,00,000 M/S VIRGIN CAPITAL SERVICES PVT. LTD. M/S RAJGUL CREDITNVEST PVT. LTD. (ASSESSEE) BHALLAJI FROM THE ABOVE TABLE IT IS CLEAR THAT AMOUNT, DATE AND INTERMEDIARY ARE SAME. HENCE, THE ALLEGATION AS PER REASON RECORDED IS SUPPORTED BY THE CORROBORATIVE EVIDENCE IN THE FORM OF CASH BOOK. THIS FACT COULD NOT BE VERIFIED BY THE A. O. DURING THE ASSESSMENT PROCEEDINGS FOR THE REASON OF TIME CONSTRAINT ON THE PART OF THE ASSESSEE FOR PLAYING DELAY TACTICS MOREOVER, IT WAS ALSO FOUND THAT THERE IS NO INCREASE IN THE SHARE CAPITAL/PREMIUM OR EVEN ANY LIABILITY IN THE FINANCIALS OF THE ASSESSEE. 2.7 THE ACCOMMODATION ENTRY CAN ALSO BE IN THE FORM OF SALE OF SHARES. IN THIS CASE THE ASSESSEE HAS ADMITTED TO HAVE SOLD SHARES TO THE COMPANY NAMELY M/S VIRGIN CAPITAL SERVICES PVT. LTD. WHICH IS INTERMEDIATORY COMPANY CONTROLLED BY SH. S K JAIN. THIS CLEARLY ESTABLISH THAT THE ASSESSEE HAS TAKEN ACCOMMODATION ENTRY IN THE FORM OF SALE OF SHARES TO S K. JAIN GROUP COMPANY BY PROVIDING EQUAL AMOUNT OF CASH OF RS. 1,50,00,000/- WHICH IS EVIDENT FROM CASH BOOK. 2.8 AS STATED ABOVE DUE TO TIME BARRING PRESSURE THIS ASPECT COULD NOT BE EXAMINED BY THE A 0 AS WHETHER THE SAID TRANSACTION OF ASSESSEE IN THE SHAPE OF SALE OF SHARES TO M/S VIRGIN CAPITAL SERVICES PVT. LTD WAS ACCOMMODATION ENTRY OR NOT. THIS ASPECT IS REQUIRED TO BE EXAMINED AND AS IT HAS BEEN ESTABLISHED BY THE INVESTIGATION WING THAT ENTITIES CONTROLLED BY S K JAIN WERE PROVIDING ACCOMMODATION ENTRY IN VARIOUS FORM 3. IN VIEW OF THE ABOVE, THE ORDER PASSED BY THE ASSESSING OFFICER U/S 147/143(3) DATED 16.12.2016 FOR A Y. 2009-10 IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 4 THEREFORE, YOU ARE GIVEN AN OPPORTUNITY TO SHOW-CAUSE WHY AN ORDER U/S 263 MAY NOT BE PASSED TO SET RIGHT THE ABOVE OMISSIONS. IN CASE YOU INTEND TO FURNISH SUBMISSION, THEN YOU ARE 12 ACCORDED AN OPPORTUNITY TO SUBMIT THE SAME. YOUR CASE IS FIXED FOR HEARING ON 18.5.2018 AT 4.00 PM IN MY ROOM NO. 394A, 3 RD FLOOR, CR BUILDING, IP ESTATE, NEW DELHI. PLEASE NOTE THAT IN CASE OF FAILURE TO SUBMIT THE ABOVE, THE CASE WILL BE DECIDED ON THE BASIS OF THE FACTS AND THE EVIDENCES AVAILABLE ON RECORD AND NO FURTHER SUBMISSION WILL BE ENTERTAINED.' 5.3 THE SHOW CAUSE NOTICE DATED 17.05.2018 WAS RET URNED UN-SERVED, AS IS NOTED IN THE IMPUGNED ORDER AT PAGE NO. 6 OF THE IMPUGNED ORDER. THEREAFTER THE SHOW CAUSE NOTICE AGAIN SENT FOR COM PLIANCE ON 04.1.2018 AND SUBSEQUENT TO ABOVE, COUNSEL FOR THE ASSESSEE S OUGHT ADJOURNMENT ON 5.10.2018, (PAGE 169 OF PB) AND HEARING ADJOURNED T O 30.10.2018 (PAGE 170 OF PB) AND 15.11.2018 RESPECTIVELY. ON 15.11.2 018 NO COMPLIANCE WAS MADE BY THE COUNSEL FOR THE ASSESSEE. ON 21.01 .2019 AN ORDER U/S 263 OF THE ACT WAS PASSED BY THE LD. PR. CIT-7, NEW DELHI BY HOLDING AS UNDER:- 4) ON THE SAID DATE OF HEARING, NEITHER ASSESSEE/ AR ATTENDED THE PROCEEDINGS NOR FILED ANY WRITTEN SUBMISSION. IN THE LIGHT OF ABOVE FACT AND CONSIDERING THE ABOVE PROPOSAL REGARDING INFORMATION/ INCRIMINATING DOCUMENTS AVAILABLE WITH AO, THERE IS NO DENIAL THAT THE ASSESSEE COMPANY HAS NOT INCREASED ITS SHARES CAPITAL NEITHER ITS RESERVES TOWARDS SHARE PREMIUM ACCOUNT HAS CHANGED SINCE IMMEDIATELY PRECEDING PREVIOUS YEAR. HOWEVER IT IS ALSO ESTABLISHED AND ADMITTED BY ASSESSEE HIMSELF DURING RE-ASSESSMENT PROCEEDINGS STATED THAT A SUM OF RS. 1,50,00,000/- HAD BEEN RECEIVED FROM M/S VIRGIN CAPITAL SERVICES PVT LTD. THE CONTENTION OF AO THAT ACCOMMODATION ENTRY CAN BE IN THE FORM OF SALE OF SHARES CAN-NOT BE DENIED. THE INCRIMINATING SEIZED DOCUMENT I.E. A-29, 36 PAGE BACK SIDE CONTAINS THE EXACT INFORMATION IN RESPECT OF TAKING ENTRY FROM M/S VIRGIN CAPITAL SERVICES PVT LTD. WHICH IS CONTROLLED BY AN ENTRY OPERATOR SH. S K JAIN & ORS. THE SEIZED DOCUMENT ALSO CONTAIN NAME OF MIDDLE MAN I.E. BHALLAJI WHEREBY FACT OF RECEIPT OF CASH AGAINST CHEQUE PAYMENT IS CLEARLY MENTIONED RECORDED AND IS MATCHING WITH ACTUAL CHEQUE RECEIPT IN THE 13 BOOKS OF ASSESSEE COMPANY. 4.1) ACCORDINGLY THE ASSESSMENT ORDER PASSED BY THE A.O. ON 16.12.2016 IS ERRONEOUS IN SO FAR PRE- JUDICIAL TO THE INTEREST OF REVENUE AND THEREFORE SET ASIDE TO THE EXTENT, WITH A SPECIFIC DIRECTION TO MAKE THE ASSESSMENT AFRESH, AFTER ALLOWING OPPORTUNITY TO THE ASSESSEE OF BEING HEARD AND AFTER TAKING INTO ACCOUNT THE PROVISIONS OF SECTION 68 OF ACT. 5.4 AFTER PERUSING THE ASSESSMENT ORDER OF THE AO, SHOW CAUSE NOTICE ISSUED U/S. 263 OF THE ACT AND THE IMPUGNED ORDER ISSUED U/S. 263 OF THE ACT BY THE LD. PR. CIT. IT IS ALSO NOTED THAT THE A SSESSMENT ORDER DATED 16.12.2016 IS NOT ERRONEOUS IN AS MUCH AS PREJUDICI AL TO INTEREST OF INCOME SINCE IT IS NOT BASED ON EITHER INCORRECT AP PLICATION OF LAW OR FACT, NON APPLICATION OF MIND AND THERE IS NOTHING TO SHO W THAT THE INCOME ASSESSED IS NOT IN ACCORDANCE WITH LAW. WE FURTHER NOTE THAT AO HAD MADE ENQUIRIES DURING THE ASSESSMENT PROCEEDINGS BY ISSUING VARIOUS NOTICES ALONGWITH QUESTIONNAIRE, AS AFORESAID AND T HE ASSESSEE HAD GIVEN DETAILED REPLIES/EXPLANATION AND ASSESSING OFFICER ON BEING WAS SATISFIED WITH THE EXPLANATION OF THE ASSESSEE AND COMPLETED THE A SSESSMENT AT NIL, HENCE, SUCH DECISION OF THE AO CANNOT BE HELD TO BE 'ERRONEOUS '; AND THEREFORE CANNOT BE REVISED U/S. 263 OF THE ACT. WE FURTHER NOTE THAT ASSESSIN G OFFICER EVEN ENQUIRED FROM SELLER INDEPENDENTLY U/S. 133(6) OF THE ACT FROM WHOM ASSE SSEE HAS PURCHASED SHARES WHICH HAS BEEN FURTHER SOLD TO M/S VIRGIN CAPITAL SERVICE S LTD. AND OTHERS. WE FURTHER NOTE ASSESSEE HAS SOLD THE SHARES OF M/S ALLDERS KHANNAS (P) LTD TO M/S PARIKATHA BUILDWELL PVT. LTD.; SADABHUJS REALTORS PVT. LTD.; RG ENTERPRISES AND SUNITA BINDAL WHICH HAS BEEN ACCEPTED IN ORDER OF ASSESSMENT AND HAS NOT BEEN DISPUTED IN PROCEEDINGS U/S. 263 OF THE ACT. WE FURTHER NOTE T HAT ASSESSEE HAS ATTACHED THE COPIES OF REPLIES OF THE PARTIES IN RESPONSE TO NOTICE U/S . 133(6) OF THE ACT I.E. M/S ALLDERS KHANNAS INTERNATIONAL (P) LTD. RELY DATED 25.11.201 6; M/S ABHA FASHIONS (P) LTD. RELY DATED 23.11.2016 ALONGWITH ITS ENCLOSURES I.E. DETAILS OF TRANSACTION IN GIVEN FORM, COPY OF CONFIRMATION OF ACCOUNTS, COPY OF ACK NOWLEDGEMENT OF RETURN OF INCOME DATED 13.9.2009 FOR ASSESSMENT YEAR 2009-10 AND COPY OF BANK STATEMENT AND M/S GCP CAPITAL FINANCE (P) LTD. REPLY DATED 22.11. 2016 ALONGWITH ITS ENCLOSURES 14 I.E. DETAILS OF TRANSACTION IN THE GIVEN FORM, CO PY OF CONFIRMATION OF ACCOUNTS, COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME DATED 28.9.2 009 FOR ASSESSMENT YEAR 2009- 10 (PAGE NO. 171 180 OF THE PAPER BOOK). WE NOTE THAT THE SHOW CAUSE NOTICE ITSELF WOULD SHOW THAT IT HAS NOT BEEN DENIED OR DI SPUTED THAT ALL RELEVANT INFORMATION INCLUDING BOOKS OF ACCOUNTS HAVE BEEN F URNISHED / OBTAINED IN THE COURSE OF ASSESSMENT PROCEEDINGS. WE NOTE THAT SECTION 263 OF THE ACT CANNOT BE INVOKED TO MAKE DEEPER ENQUIRY. THE HON' BLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. LEISURE WEAR EXPORTS LTD. REPORTED IN 341 ITR 166 HAS HELD THAT WHERE THE ASSESSMENT ORDER BEEN PASSED BY THE ASSES SING OFFICER AFTER TAKING INTO ACCOUNT THE ASSESSEE'S SUBMISSIONS AND DOCUMENTS FU RNISHED BY HIM AND NO MATERIAL WHATSOEVER HAS BEEN BROUGHT ON RECORD BY THE COMMIS SIONER WHICH SHOWED THAT THERE WAS ANY DISCREPANCY OR FALSITY IN EVIDENCES FURNISH ED BY THE ASSESSEE, THE ORDER OF THE ASSESSING OFFICER CANNOT BE SET ASIDE FOR MAKING DE EP INQUIRY ONLY ON THE PRESUMPTIONS AND ASSUMPTIONS THAT SOMETHING NEW MAY COME OUT. WE FURTHER NOTE THAT HONBLE HIGH COURT IN THE CASE OF ITO VS. DG H OUSING PROJECT LTD. REPORTED IN 343 ITR 329 HAS HELD THAT IN CASES OF WRONG OPINIO N OR WRONG FINDING ON MERITS, THE CIT HAS TO COME TO CONCLUSION AND HIMSELF DECIDE TH AT THE ORDER IS ERRONEOUS, BY CONDUCING NECESSARY ENQUIRY, IF REQUIRED AND NECES SARY, BEFORE THE ORDER UNDER SECTION 263 IS PASSED. WE FURTHER NOTE THAT IT IS NOT A CASE WHERE CONDITIONS FOR EXERCISE OF POWER U/S. 263 OF THE ACT STAND SATISFI ED SINCE AT BEST IT IS A CASE, WHERE TWO VIEWS ARE POSSIBLE (ONE VIEW OF THE AO AND OTHE R VIEW EXPRESSED IN THE NOTICE U/S. 263 OF THE ACT). THUS, WHERE TWO VIEWS ARE PO SSIBLE AND THE AO HAS TAKEN A VIEW WITH WHICH LD. PR. CIT DID NOT AGREE, THE SAID OR DER CANNOT BE TREATED AS AN ERRONEOUS ORDER IN AS MUCH AS PREJUDICIAL TO THE INTEREST OF THE REVENUE UNLESS THE VIEW TAKEN BY THE AO IS UNSUSTAINABLE IN LAW AS HE LD BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DLF LTD. REPORTED IN 3 50 ITR 555. WE FURTHER OBSERVED THAT THE REASSESSMENT ORDER PASSED BY ASSE SSING OFFICER IS NOT ONLY PREJUDICIAL TO THE INTEREST OF REVENUE BUT IS ALSO ERRONEOUS LEARNED PR. CIT HAS TO BE PRECEDED BY SOME 'MINIMAL' INQUIRY. THUS IN THESE C IRCUMSTANCES IT BECOMES INCUMBENT ON THE LD. PR. CIT TO CONDUCT SUCH INQUIR Y, WHICH HAS NOT BEEN CONDUCTED BY THE LD. PR. CIT AT ALL. IN THIS REGARD, WE DRA W SUPPORT FROM THE DECISION OF THE 15 HONBLE DELHI HIGH COURT IN THE CASE PCIT V. VINITA CHAURASIA REPORTED IN 394 ITR 758 (DEL). IT IS NOTED HTAT THAT IT HAS NOT BEEN SH OWN IN THE NOTICE U/S. 263 OF THE ACT THAT HOW THE ASSESSMENT ORDER RESULTED INTO PREJUDI CIAL TO THE REVENUE THEREFORE THE SAME ON THIS POINT IS INVALID, HENCE, THE SAME IS I NVALID. IT IS EVIDENT THAT THE AO HAD CONDUCTED PROPER ENQUIRIES BEFORE FRAMING THE ASSES SMENT. INFACT, THE ASSESSING OFFICER HAD MADE ALL NECESSARY ENQUIRIES PROVIDED I N LAW AND THEREAFTER ALONE HAD ACCEPTED CLAIMS OF THE ASSESSEE. HENCE, BY NO JUSTI FICATION, IT COULD BE ALLEGED THAT, THE ORDER OF ASSESSMENT FRAMED BY THE AO IS ERRONE OUS WITHIN THE MEANING OF SECTION 263 OF THE ACT AND AS SUCH, NOTICE IS WITHOUT JURIS DICTION. WE FURTHER NOTE THAT EXPLANATION TO SECTION 263 OF THE ACT DOES NOT CHAN GE THE SCOPE OF SECTION 263 OF THE ACT, THE MUMBAI TRIBUNAL IN THE CASE OF NARAYAN TA TU RANE VS. ITO REPORTED IN 70 TAXMANN.COM 227 HAS ALSO HELD THAT IN A CASE WHERE LEARNED PR. CIT HAS NOT BROUGHT ANY MATERIAL ON RECORD BY MAKING ENQUIRIES OR VERIF ICATIONS TO SUBSTANTIATE HIS INFERENCE, THE LEARNED PCIT IS NOT JUSTIFIED IN HOL DING THAT THE IMPUGNED ASSESSMENT ORDER WAS ERRONEOUS. THE RELEVANT PORTION OF THE DE CISION IS AS UNDER:- '21. IN THE INSTANT CASE, AS NOTICED EARLIER, THE A O HAS ACCEPTED THE EXPLANATIONS OF THE ASSESSEE, SINCE TH ERE IS NO FOOL PROOF EVIDENCE TO LINK THE ASSESSEE WITH TH E DOCUMENT AND MIS RNS INFRASTRUCTURE LTD, FROM WHOSE HANDS IT WAS SEIZED, ALSO DID NOT IMPLICATE THE ASS ESSEE. THUS, THE ASSESSEE HAS BEEN EXPECTED TO PROVE A NEG ATIVE FACT, WHICH IS HUMANELY NOT POSSIBLE. NO OTHER CORROBORATIVE MATERIAL WAS AVAILABLE WITH THE DEPAR TMENT TO SHOW THAT THE EXPLANATIONS GIVEN BY THE ASSESSEE WERE WRONG OR INCORRECT. UNDER THESE SET OF FACTS, THE A O APPEARS TO HAVE BEEN SATISFIED WITH THE EXPLANATION S GIVEN BY THE ASSESSEE AND DID NOT MAKE ANY ADDITION. WE H AVE NOTICED THAT THE HON'BLE SUPREME COURT HAS HELD IN THE CASE OF CENTRAL BUREAU OF INVESTIGATION (SUPRA) THA T THE ENTRIES IN THE BOOKS OF ACCOUNT BY THEMSELVES ARE N OT SUFFICIENT TO CHARGE ANY PERSON WITH LIABILITY. HEN CE, IN OUR VIEW, IT CANNOT BE HELD THAT THE ASSESSING OFFI CER DID NOT CARRY OUT ENQUIRY OR VERIFICATION WHICH SHOULD HAVE BEEN DONE, SINCE THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE INCRIMINATING DOCUMENT WAS NOT CONSIDERED T O BE STRONG BY THE AO TO IMPLICATE THE ASSESSEE. THUS, W E ARE OF THE VIEW THAT THE ASSESSING OFFICER HAS TAKEN A PLAUSIBLE VIEW IN THE FACTS AND CIRCUMSTANCES OF THE CASE. EV EN THOUGH THE LD PR. CIT HAS DRAWN CERTAIN ADVERSE 16 INFERENCES FROM THE DOCUMENT, YET IT CAN SEEN THAT THEY ARE DEBATABLE IN NATURE. FURTHER, AS NOTICED EARLIER, T HE LD PR. CIT HAS NOT BROUGHT ANY MATERIAL ON RECORD BY MAKIN G ENQUIRIES OR VERIFICATIONS TO SUBSTANTIATE HIS INFE RENCES. HE HAS ALSO NOT SHOWN THAT THE VIEW TAKEN BY HIM IS NOT SUSTAINABLE IN LAW. THUS, WE ARE OF THE VIEW THAT T HE LD PRO CIT HAS PASSED THE IMPUGNED REVISION ORDERS ONL Y TO CARRY OUT FISHING AND ROVING ENQUIRIES WITH THE OBJ ECTIVE OF SUBSTITUTING HIS VIEWS WITH THAT OF THE AO. HENC E WE ARE OF THE VIEW THAT THE LD PR. CIT WAS NOT JUSTIFIED W AS NOT CORRECT IN LAW IN HOLDING THAT THE IMPUGNED ASSESSM ENT ORDERS WERE ERRONEOUS. 5.4.1 IN VIEW OF ABOVE, WE NOTE THAT NOTICE U/S. 2 63 OF THE ACT ISSUED BY THE PR. CIT IS VAGUE AND ONLY FOR MAKING DEEPER ENQUIRY AND RE- CONSIDERING THE EVIDENCES ALREADY ON RECORD DULY CONSIDERED DURING ASSESSMENT PROCEED INGS BASED ON PURPORTED PROPOSAL THAT FRESH FACTS HAVE BEEN EMERGED SUBSEQU ENT TO THE ORDER OF ASSESSMENT WHICH IS FACTUALLY INCORRECT AND UNTENABLE AND THE CONDITIONS OR THE FACTORS ENABLING THE LD. PR. CIT TO INVOKE HIS JURISDICTION ULS 263 HAVE NOT BEEN SATISFIED. THERE MUST BE POSITIVE MATERIAL FOR THE COMMISSIONER TO CONSID ER OBJECTIVELY AND NOT SUBJECTIVELY THAT THE ORDER OF THE ASSESSING OFFICER WAS ERRONEO US, IN SO FAR AS IT WAS PREJUDICIAL TO THE INTEREST OF REVENUE. TO SUPPORT THIS VIEW, WE DRAW SUPPORT FROM DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. GA BRIEL INDIA LTD., REPORTED IN 203 ITR 108 WHEREIN, IT HAS BEEN HELD THAT THAT THERE MUST BE SOME PRIMA FACIE MATERIAL ON RECORD TO SHOW THAT THE TAX WHICH WAS LAWFULLY E LIGIBLE HAS NOT BEEN IMPOSED OR THAT BY APPLICATION OF THE RELEVANT STATUTE ON AN I NCORRECT OR AN INCOMPLETE INTERPRETATION, A LESSER TAX THAN WHAT WAS JUST, HA S BEEN IMPOSED. ON THE ANVIL OF THE AFORESAID RULE, IT WILL BE SEEN THAT THE ORDER MADE U/S 263 OF THE ACT WAS ENTIRELY WITHOUT ANY JURISDICTION AS THERE WAS ABSOLUTELY NO MATERIAL TO JUSTIFY SUCH AN ASSUMPTION NOR HAS ANY MATERIAL BEEN BROUGHT ON REC ORD OR THE MATERIALS WHICH ARE ON RECORD HAVE BEEN DISPUTED JUSTIFYING SUCH AN ASSUMP TION THAT THE TAX LAWFULLY ELIGIBLE HAS NOT BEEN IMPOSED. HENCE, THE SAME DESERVE TO BE CANCELLED. THE JUDICIAL DECISION RELIED BY THE REPRESENTATIVES OF BOTH THE SIDES HAVE BEEN DULY CONSIDERED. IN OUR CONSIDERED VIEW, WE DO NOT FIND ANY PARITY IN THE FACTS OF THE DECISIONS RELIED UPON BY THE LD. CIT(DR) WITH THE PECULIAR FACTS OF THE CASE IN HAND. 17 9. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS A ND RESPECTFULLY FOLLOWING THE PRECEDENTS, AS REFERRED ABOVE, WE HOLD THAT THE IMP UGNED ORDER PASSED BY THE LD. PR. CIT-7, NEW DELHI DATED 18/21-01.2019 ISSUED U/S. 26 3 OF THE ACT IS NOT SUSTAINABLE IN THE EYES OF LAW. ACCORDINGLY, THE IMPUGNED ORDER DA TED 18/21-01/2019 PASSED U/S. 263 OF THE INCOME TAX ACT, 1961 IS QUASHED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED ON 19/09/2019. SD/- SD/- (O.P. KANT) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 19/09/2019 *SRB* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR