Smt. Santoshdevi Prakashchandra Goyal, Surat V. Pr.CIT-1, Surat, Surat

ITA 273/SRT/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8647 (ITAT-SURAT)
• Duration Of Justice: 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 10-05-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRASENJIT SINGH
• Keywords: Business income; Opportunity of being heard; Assessment record
• Section: 44AD; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI V. DURGA RAO, HONBLE JUDICIAL MEMBER & SHRI O.P.MEENA, HONBLE ACCOUNTANT MEMBER ITA NO. 273/SRT/2019 (ASSESSMENT YEAR : 2014-15) SMT.SANTOSHDEVI PRAKASHCHANDRA GOYAL, A-1002, MEGHDHANUSH APARTMENT, SARELWADI, GHOD DOD ROAD, SURAT. V S . THE PR. COMMISSIONER OF INCOME TAX, SURAT 1. (PAN: ABRPG 1070 C) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VINOD GOYAL CA DEPARTMENT BY : SHRI PRASENJIT SINGH CIT-DR DATE OF HEARING : 09/07/2019. DATE OF PRONOUNCEMENT : 12/07/2019. O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX-1, SURAT, DATED 22.03.2019 U/S.263 OF THE INCOME TAX ACT, 1961. 2. GROUNDS RAISED BY THE ASSESSEE READ AS UNDER: ANNEXURE 1: GROUNDS OF APPEAL 1. THE LD. PR. COMMISSIONER OF INCOME TAX HAS ERRED IN LAW & IN FACTS IN TREATING THE ASSESSMENT ORDER TO BE ERRONEOUS. 2 ITA NO.273 /SRT/2019 (SMT.SANTOSHDEVI PRAKASHCHANDRA GOYAL) (I) THE LD.PR.COMMISSIONER OF INCOME TAX HAS ERRED IN NOT APPRECIATING THE FACT THAT THE ASSESSEE HAS DULY REFLECTED THE SUBJECT SALE TRANSACTION IN THE RETURN OF INCOME. (II) THE LD. PR. COMMISSIONER OF INCOME TAX HAS ERRED IN CONSIDERING NON-APPLICATION OF MIND BY THE ASSESSING OFFICER WHEN HE HAS TAKEN ONE OF PLAUSIBLE VIEW, OUT OF BUSINESS INCOME OR SHORT- TERM CAPITAL GAIN. (III) THE LD. PR. COMMISSIONER OF INCOME TAX HAS ERRED IN NOT CONSIDERING THE JUDGMENT OF THE CIT(A) IN CASE OF JOINT OWNER FOR THE SAME TRANSACTION WHICH HAS RULED OUT THE TRANSACTION TO BE BUSINESS INCOME. (IV) THE LD. PR. COMMISSIONER OF INCOME TAX HAS ERRED IN NOT APPRECIATING THE FACT THAT CASE IS COVERED U/S 44AD AND PROFIT HAS BEEN SHOWN AT MUCH HIGHER RATE THAN PRESCRIBED UNDER THE SECTION. (V) THE LD. PR. COMMISSIONER OF INCOME TAX HAS ERRED IN NOT APPRECIATING THE FACT THAT THE ASSESSEE HAS SUBMITTED DETAILS OF TRANSACTIONS AND THE ASSESSING OFFICER CONSIDERING THE SPIRIT OF SECTION 44AD HAS ACCEPTED THE INCOME DECLARED BY THE ASSESSEE. (VI) THE LD. PR. COMMISSIONER OF INCOME TAX HAS ERRED IN OBSERVING THAT THE ASSESSEE WAS NOT ENGAGED IN LAND DEALING BY IGNORING THE DETAILS OF LAND DEALING SUBMITTED DURING ASSESSMENT PROCEEDING. (VII) THE LD. PR. COMMISSIONER OF INCOME TAX HAS ERRED IN APPLYING THE EXPLANATION-(2) TO SECTION 263 AS IT WAS A 44AD CASE AND IT WAS NOT THE CASE OF ALLOWING ANY RELIEF OR VIOLATION OF INSTRUCTION U/S 119 OR AGAINST ANY DECISION OF ANY JURISDICTION HIGH COURT OR SUPREME COURT PREJUDICIAL TO THE ASSESSEE. 2. THE LD. PR. COMMISSIONER OF INCOME TAX HAS ERRED IN LAW & IN TREATING THE ASSESSMENT ORDER TO BE PREJUDICIAL TO THE INTEREST OF REVENUE. (I) THE LD. PR. COMMISSIONER OF INCOME TAX HAS ERRED IN NOT APPRECIATING THE FACT THAT THE SUBJECT TRANSACTION WAS DULY REFLECTED IN THE RETURN OF INCOME AND INCOME HAS BEEN DULY ACCEPTED AS PER PROVISIONS OF SECTION 44AD. (II) THE LD. PR. COMMISSIONER OF INCOME TAX HAS ERRED IN NOT PROVIDING REASON AS HOW THE SHOWING ANY INCOME UNDER THE HEAD BUSINESS INCOME RATHER THAN AS SHORT TERM CAPITAL GAIN WAS AN ATTEMPT TO EVADE THE TAX IN VIEW OF THE FACTS THAT TAX RATES AND DEDUCTION/EXEMPTION ARE THE SAME FOR BOTH HEAD. 3 ITA NO.273 /SRT/2019 (SMT.SANTOSHDEVI PRAKASHCHANDRA GOYAL) 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL FILED RETURN OF INCOME BY DECLARING THE TOTAL INCOME OF RS.23,15,110/-. THE ASSESSING OFFICER AFTER FILING THE DUE PROCEDURE AND ALSO AFTER EXAMINING THE DETAILS FILED BY THE ASSESSEE. THE ASSESSMENT WAS COMPLETED U/S.143 OF THE INCOME TAX ACT 1961 DATED 27.12.2016. SUBSEQUENTLY, THE LD.PCIT BY EXERCISING THE POWER CONFERRED U/S.263 HAS EXAMINED THE SCRUTINY RECORDINGS. HE ISSUED A SHOW CAUSE NOTICE DATED 15.03.2019 CALLING THE EXPLANATION FROM THE ASSESSEE FOR THE REASON THAT ACCORDING TO LD.COMMISSIONER. AS PER THE AIR INFORMATION IN RESPECT OF SALE OF IMMOVABLE PROPERTY AT VILL. SALWAS, TAHSIL LUNI, DIST. JODHPUR, RAJASTHAN WAS AVAILABLE ON RECORD. THE ASSESSEE PURCHASED THIS PIECE OF LAND ON 03.07.2013 AND SOLD WITHIN A SHORT PERIOD OF TIME I.E. ON 29.01.2014. 4. ON PERUSAL OF COMPUTATION OF INCOME SUBMITTED BY THE ASSESSEE IT WAS NOTICED THAT NO SHORT TERM CAPITAL GAIN WAS OFFERED BY THE ASSESSEE ON SALE OF IMPUGNED IMMOVABLE PROPERTY. THE ASSESSING OFFICER(AO) HAS PASSED THE ASSESSMENT ORDER WITHOUT EXAMINING THE ISSUE AND THEREFORE THE ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 4 ITA NO.273 /SRT/2019 (SMT.SANTOSHDEVI PRAKASHCHANDRA GOYAL) 5. THE ASSESSEE IN RESPONSE TO THE NOTICE ISSUED BY THE LD.COMMISSIONER 15.03.2019 VIDE HIS WRITTEN SUBMISSIONS WHEREIN HE HAS STATED THAT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE ASSESSEE HAS SUBMITTED COPY OF THE COMPUTATION OF INCOME, TRADING ACCOUNT, PROFIT AND LOSS ACCOUNT REFLECTING IMPUGNED TRANSACTIONS ALONG WITH THE DETAILS OF THE EXPENSES AND SHOWN THE PROFIT THEREON IN THE RETURN OF INCOME. THE AO HAS CONSIDERED IN VIEW OF THE PROVISIONS OF SECTION 44AD OF THE ACT HAS NOT MADE ANY ADVERSE INFERENCE AND ACCEPTED THE SAME. THE ASSESSEE HAS DULY SHOWN THE INCOME UNDER THE MOST APPROPRIATE HEAD OF INCOME I.E. INCOME OF BUSINESS OR PROFESSION AS SUBJECT TRANSACTION WAS IN ADVENTURE IN NATURE OF TRADE. THE LD.PCIT AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE HE HAS OBSERVED THAT ON VERIFICATION OF THE CASE RECORDED IT IS NOTICED THAT AIR INFORMATION IN RESPECT OF SALE OF THE IMMOVABLE PROPERTY AT VILL. SALWAS, TAHSIL LUNI, DIST. JODHPUR, RAJASTHAN WAS AVAILABLE ON RECORD. THE ASSESSEE HAD PURCHASED THE NON-AGRICULTURAL LAND SITUATED AT VILL. SALWAS, TAHSIL LUNI, DIST. JODHPUR, RAJASTHAN BEARING SURVEY NO.25/17, ADMEASURING TOTAL AREA OF 43470 SQ.FT. AT THE COST OF RS.13,00,000/- ON 03.07.2013 JOINTLY WITH SHRI RISHAB BHARAT GOYAL HAVING SHARE OF 50% OF THE BOTH THE CO-OWNERS. THE SAID PROPERTY WAS SOLD OUT 5 ITA NO.273 /SRT/2019 (SMT.SANTOSHDEVI PRAKASHCHANDRA GOYAL) ON 29.01.2014 @ RS.1,31,42,430/- DURING THE FINANCIAL YEAR 2013- 14 (IT WAS ON RECORD AS AIR INFORMATION). THUS, THE ASSESSEE HAS RECEIVED SALE CONSIDERATION OF RS.65,71,215/- BEING 50% OF THE SHARE. HOWEVER, ON PERUSAL OF THE COMPUTATION INCOME SUBMITTED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS SUGGEST THAT NO SHORT TERM CAPITAL GAIN HAS BEEN OFFERED BY THE ASSESSEE ON SALE OF AFORESAID IMMOVABLE PROPERTY. AND AO COMPLETED THE ASSESSMENT. IT IS FURTHER OBSERVED THAT THE AO CONCERN WAS IN THE POSITION OF THE INFORMATION REGARDING IMPUGNED TRANSACTIONS DURING THE COURSE OF ASSESSMENT PROCEEDINGS BUT HE HAD COMPLETED THE ASSESSMENT WITHOUT EXAMINING THE SAID INFORMATION AND IGNORING THE FACT AND INFORMATION AVAILABLE WITH HIM. NOWHERE IN THE ASSESSMENT RECORD, THERE IS AN EVIDENCE THAT ANY QUERY/VERIFICATION IN RESPECT OF ISSUE INVOLVED IN THE AFORESAID INFORMATION RAISED BY THE AO CONCERN. NON-APPLICATION OF THE MIND TO RELEVANT MATERIAL AVAILABLE ON RECORD AMPLY SATISFIED THE REQUIREMENT OR ORDER BEING ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE LD.PCIT FURTHER OBSERVED THAT WHEN THE ASSESSEE WAS PUT THE NOTICE IN RESPECT OF THE SALE OF THE IMMOVABLE PROPERTY HE HAS SUBMITTED THAT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE IMPUGNED TRANSACTION HAS SHOWN INCOME UNDER THE 6 ITA NO.273 /SRT/2019 (SMT.SANTOSHDEVI PRAKASHCHANDRA GOYAL) HEAD I.E. INCOME FROM BUSINESS OR PROFESSION BECAUSE THE SUBJECT MATTER OF THE TRANSACTION WAS IN THE NATURE OF ADVENTURE OF TRADE. IT IS FURTHER SUBMITTED BY THE ASSESSEE BEFORE LD.PCIT THAT HER FAMILY WAS ENGAGED IN THE AGRO BUSINESS SINCE MORE THAN 100 YEARS, THEREFORE SHE HAS INTO THE BUSINESS PURCHASING NON-AGRICULTURAL LAND AND SOLD AFTER GETTING IT CONVERTED INTO INDUSTRIAL LAND. AS EVIDENT FROM THE DETAILS, THE ASSESSEE HAS FILED A RETURN OF INCOME U/S.44AD OF THE ACT. THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION HAD CARRIED ON BUSINESS OF RETAIL TRADING OF JEERA AS WELL AS SAREE BUSINESS. THE ASSESSEE WAS NOT ENGAGED ANY IN THE BUSINESS OF ACTIVITY OF LAND DEALINGS. THEREFORE, THE LD.COMMISSIONER HAS COME TO A CONCLUSION THAT THE ALLEGED LAND DULY CONVERTED INTO INDUSTRIAL PLOT AND SOLD OUT AND PROFIT ARISE FROM THE SAME SHOWN AS A BUSINESS INCOME IS NOTHING ELSE BUT AN ATTEMPT TO EVADE THE TAX DUE ON SHORT TERM CAPITAL GAIN AND THE PROPERTY WAS SOLD AFTER BEING CONVERTED INTO INDUSTRIAL LAND. THE SAME WAS DONE TO FETCH MORE GAIN OF TRANSFER OF THE PROPERTY WHICH EVERY PRUDENT INVESTOR WILL DO. 6. IN VIEW OF THE ABOVE OBSERVATIONS, THE LD.PCIT CAME TO CONCLUSION THAT THE ASSESSING OFFICER HAS NOT EXAMINED WHETHER THE IMPUGNED LAND TRANSACTION FALLS UNDER THE CAPITAL GAINS OR BUSINESS 7 ITA NO.273 /SRT/2019 (SMT.SANTOSHDEVI PRAKASHCHANDRA GOYAL) INCOME. THEREFORE, THE ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, ACCORDINGLY SET-ASIDE THE ASSESSMENT ORDER PASSED BY THE AO AND DIRECTED THE AO TO FRAME FRESH ASSESSMENT DENOVO IN ACCORDANCE WITH LAW AFTER BEING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. THE LD.COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE AO HAS EXAMINED THE ISSUE BY CONSIDERING ALL THE DETAILS FILED BY THE ASSESSEE AND THEREFORE THE ORDER PASSED BY THE AO IS NOT ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE ORDER PASSED BY THE LD.PCIT U/S.263 HAS TO BE SET-ASIDE. HE FURTHER SUBMITTED THAT THE ASSESSEE HAS FILED RETURN OF INCOME U/S.44AD OF THE ACT. THEREFORE, THE AO NEED NOT EXAMINE THE ISSUE FOR THE REASON THAT THE ASSESSEE HAS SHOWN THE PROFIT AT HIGHER RATE THAN PRESCRIBED UNDER THE SECTION. 8. THE LD.COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT CO-OWNER CASE, THE AO ALREADY ACCEPTED THE INCOME UNDER HEAD BUSINESS INCOME. THE LD.COUNSEL FOR THE ASSESSEE RELIED ON THE FOLLOWING CASES : JANKI RAM BAHADUR RAM V. CIT [1965] 57 ITR 21 (SC) KHAN BAHADUR AHMED ALLADIN & SONS V. CIT (SC) : (1968) 068 ITR 0573 8 ITA NO.273 /SRT/2019 (SMT.SANTOSHDEVI PRAKASHCHANDRA GOYAL) G.VENKATASWAMI NAIDU & CO.V. CIT[1959] 35ITR 594 (SC) CAYZER, IRVINE AND CO. LTD. V. COMMISSIONER OF INLAND REVENUE [1942] 24 TAX CAS. 491 SMT.INDRANIMANI BAI V. ADDL.COMM OF I.TAX(1993) 200 ITR 594 (SC) V.A.JOSE V. DCIT [2018] 89 TAXMANN.COM 2 (KERALA) RAJA J.RAMESHWAR RAO V. CIT (1961) 42 ITR 179 (SC) DALMIA CEMENT LTD. V. CIT 105 ITR 0633 : (1976) (SC) P.M.MOHAMMED MEERAKHAN V. CIT (1969) 73 ITR 735 (SC) GHOSE ESTATES V. CIT (1985) 153 ITR 0473 CAL-HC HEMACHAND HIRACHAND SHAH V. CIT (194) 77 TAXMAN 501 (GUJARAT). 9. ON THE OTHER HAND, LD.DEPARTMENTAL REPRESENTATIVE (DR) SUBMITTED THAT THE ASSESSEE IS IN THE BUSINESS OF JEERA & SAREE AND THEREFORE DECLARING THE LAND TRANSACTION AS A BUSINESS INCOME NOT JUSTIFIED. THEREFORE, THE AO FAILED TO EXAMINE THE ENTIRE LAND TRANSACTION AND SIMPLY PASSED THE ASSESSMENT ORDER ACCEPTING THE RETURN FILED BY THE ASSESSEE IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. IT IS FURTHER POINTED OUT BY THE LD.DR FROM THE PAPER BOOK FILED THE ASSESSEE PAGE NO.29, QUESTION NO.6 WHEREIN THE AO HAS ASKED THE ASSESSEE IN RESPECT OF SHORT TERM CAPITAL GAIN FROM SALE OF LAND ASKED THE ASSESSEE TO FURNISH PURCHASE DEED, SALE DEED AND ALSO COMPARABLE INSTANCES OF SALE OF LAND IN SIMILAR AREA, RATE ETC., IN RESPONSE TO THE ABOVE POINTED OUT BY THE ASSESSEE HAS NOT FILED ANY DETAILS. THE AO HAVING NOTICED THAT THERE IS A SALE TRANSACTION WHICH LEADS TO SHORT TERM CAPITAL GAINS WITHOUT GETTING THE DETAILS AND NOT EXAMINING THE ISSUE OF SALE OF THE LAND COMPLETED THE ASSESSMENT ORDER IN A MECHANICAL MANNER 9 ITA NO.273 /SRT/2019 (SMT.SANTOSHDEVI PRAKASHCHANDRA GOYAL) WITHOUT APPLYING THE MIND IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND SUBMITTED THE ORDER PASSED BY THE LD.PCIT BY EXERCISING THE POWER U/S.263 DATED 22.03.2019 HAS TO BE CONFIRMED. THE LD.DR HAS ALSO RELIED IN SUPPORT OF HIS ARGUMENTS THE FOLLOWING DECISIONS : RAMPAYARI DEVI SARAOGI VS. CIT (1968) 67 ITR 84 (SC), TARA DEVI AGARWAL VS. CIT(1973) 88 ITR 323 (SC) GEE VEE ENTERPRISES V. ADDL. CIT, (1975) 99 ITR 375, 386 (DEL)]. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IN THIS CASE THE ASSESSEE HAS PURCHASED NON-AGRICULTURAL LAND SITUATED AT VILL. SALWAS, TAHSIL LUNI, DIST. JODHPUR, RAJASTHAN, BEARING SURVEY NO.25/17 ADMEASURING TOTAL AREA OF 43470/- SQ.FT AT THE COST OF RS.13,00,000/- ON 03.07.2013 JOINTLY WITH SHRI RISHAB BHARAT GOYAL HAVING SHARE OF 50% BOTH CO-OWNERS. THE SAID PROPERTY WAS SOLD OUT ON 29.01.2014 AT RS.1,34,42,430/- IN THE F.Y. 2013-14. THUS, THE ASSESSEE HAD RECEIVED A SALE CONSIDERATION OF RS.65,71,215/- BEING 50% OF ASSESSEES SHARE. THE ASSESSEE HAS SHOWN THE SALE CONSIDERATION AS BUSINESS INCOME. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS AS PER THE PAPER BOOK, PAGE NO.29 THE AO HAS ASKED THE ASSESSEE FILE ON DETAILS IN RESPECT OF SALE OF LAND WHICH RELATES TO SHORT TERM CAPITAL GAINS. FROM THE DATA AVAILABLE FROM 10 ITA NO.273 /SRT/2019 (SMT.SANTOSHDEVI PRAKASHCHANDRA GOYAL) ASSESSEE HAS NOT FILED ANY SUCH INFORMATION BEFORE THE AO. FROM THE ASSESSMENT ORDER ALSO IT IS VERY CLEAR THAT THE AO HAS NOT EXAMINED THE ISSUE OF SALE OF NON-AGRICULTURAL LAND AND SIMPLY PASSED THE ASSESSMENT ORDER ACCEPTING THE COMPUTATION OF INCOME FILED BY THE ASSESSEE. WE FIND THAT THE ASSESSEE IS IN THE BUSINESS OF JEERA AND SAREE BUSINESS THE IMPUGNED TRANSACTION PURCHASE AND SALE OF NON-AGRICULTURAL LAND SHOWN BY HER IN RETURN OF INCOME AS A BUSINESS INCOME. NOWHERE THE ASSESSEE HAS NOT ESTABLISHED FACT THAT SHE IS IN THE BUSINESS OF BUYING AND SELLING OF PLOTS. IT IS A FACT THAT SHE IS IN THE BUSINESS OF JEERA & SAREE. UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE THE AO HAVING RAISED OBJECTION IN RESPECT OF NON OFFERING THE INCOME FROM SALE OF NON-AGRICULTURAL LAND FOR SHORT TERM CAPITAL GAIN, THE AO OUGHT TO HAVE BEEN EXAMINED THE ISSUE IN DETAIL AND DECIDE IN ACCORDANCE WITH LAW. THE AO WITHOUT DOING SO SIMPLY ACCEPTED THE COMPUTATION INCOME FILED BY THE ASSESSEE AND NOT EXAMINED THE SALE TRANSACTION WHETHER IT LEADS TO SHORT TERM CAPITAL GAINS OR BUSINESS INCOME. THUS, IN OUR OPINION THE ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THEREFORE, THE LD.PCIT CORRECTLY EXERCISED THE POWER CONFERRED ON HIM BY THE SECTION 263 OF THE INCOME TAX ACT, 1961 AND DIRECTED THE AO TO REDO THE ASSESSMENT DENOVO IN 11 ITA NO.273 /SRT/2019 (SMT.SANTOSHDEVI PRAKASHCHANDRA GOYAL) ACCORDANCE WITH LAW. WE FURTHER OBSERVE THAT IT IS THE DUTY OF THE AO TO EXAMINE THE ISSUE IN DETAIL BEFORE PASSING THE ASSESSMENT ORDER. THE AO IS NOT EXPECTED TO PASS ORDER SIMPLY ACCEPTING THE RETURN OF INCOME WITHOUT MAKING ENQUIRY / INVESTIGATING TO THE MATTER. IT IS THE DUTY OF THE AO TO ASCERTAIN THE FULL FACTS STATING THE RETURN OF INCOME AND EXAMINE THE SAME AND HE HAS TO PASS AN ASSESSMENT ORDER. IF THE AO FAILED TO PASS AN ASSESSMENT ORDER AS REQUIRED ACCORDING TO THE LAW, THE LD.PCIT HAS EVERY POWER TO INVOKE U/S.263 OF THE ACT AND QUASH THE ASSESSMENT ORDER. 11. IN SO FAR AS THE ACCEPTING THE INCOME IN THE HANDS OF THE CO- OWNER AS A BUSINESS INCOME IS CONCERNED, IT HAS TO BE DECIDED BY CONSIDERING THE ACTIVITIES CARRIED BY EACH ASSESSEE, THEREFORE THE PLEA OF THE ASSESSEE IS REJECTED. 12. IN SO FAR AS 44AD IS CONCERNED, SIMPLY BECAUSE THE ASSESSEE HAS FILED A RETURN OF INCOME AS PER THE PROVISIONS OF SECTION 44AD IT DOES NOT MEAN THAT AO HAS PREVENTED TO MAKE AN ENQUIRY AND PASS CORRECT ASSESSMENT ORDER, THIS ARGUMENT IS ALSO REJECTED. SO FAR AS CASE LAWS RELIED BY THE LD.COUNSEL FOR THE ASSESSEE IS CONCERNED, WE HAVE GONE THROUGH ALL THE CASES, NO APPLICATION TO THE FACTS OF THE PRESENT CASE. 12 ITA NO.273 /SRT/2019 (SMT.SANTOSHDEVI PRAKASHCHANDRA GOYAL) 13. IN THE PRESENT CASE, THE LD.PCIT HAS SET-ASIDE THE ORDER OF THE AO AND DIRECTED HIM TO REDO THE ASSESSMENT DENOVO IN ACCORDANCE WITH LAW. WE FIND NO REASON TO INTERFERE WITH THE ORDER PASSED BY THE LD.PCIT, SURAT-1, ACCORDINGLY GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE DISMISSED. 14. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. 15. ORDER PRONOUNCED IN OPEN COURT ON THIS 12 TH DAY OF JULY, 2019. SD/- SD/- (O.P. MEENA) (V. DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12 TH JULY, 2019./ S .GANGADHARA RAO, SR.PS /- COPY TO: 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT 4. THE CIT(A) 5. THE D.R. 6. GUARD FILE. BY ORDER / / TRUE COPY / / (ASSISTANT REGISTRAR) ITAT SURAT