Smt. Shweta Agrawal, Indore V. The Pr. CIT-2, Indore

ITA 280/Ind/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0698 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-10-2020
• Assessment Year: 2014-2015
• Appeal Filed On: 25-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PUNEET KUMAR
• Assessee Lawyers: S N AGRAWAL
• Keywords: Revision of order; Depreciation; Share purchase agreement; Principle of natural justice; Earning of tax free income; Source of fund; Cost of acquisition; Scheme of amalgamation; Assessment record; Prejudicial to interest; Reason to believe; Revenue expenditure; Capital expenditure; TDS; Set aside; Capital Gains; FORM 26AS
• Section: 69C; 40A(3); 143(3); 142(1); 143(2); 44AB; 113; 43; 13; 22; 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.280/IND/2019 ASSESSMENT YEAR:2014-15 SMT. SHWETA AGRAWAL 82, ASHOK NAGAR, INDORE / VS. PR. CIT INDORE ( APPELLANT ) ( REVENUE ) P.A. NO. AESPA1653H APPELLANT BY SHRI S.N. AGRAWAL , CA REVENUE BY SHRI PUNEET KUMAR , SR. DR DATE OF HEARING: 20.10.2020 DATE OF PRONOUNCEMENT: 21.12.2020 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. PR. COMMISSIONER OF INCOME TAX (IN SHORT LD. PR. C IT)-2, INDORE DATED 10.01.2019 PERTAINING TO ASSESSMENT YEAR 2014 -15. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEA L: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. PR. CIT ERRED IN SETTING ASIDE THE ORDER AS PASSED SMT. SHWETA AGRAWAL /ITANO.280/IND/2019 2 BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF TH E ACT BY INVOKING THE PROVISION OF SECTION 263 OF THE ACT EV EN WHEN THE ORDER AS PASSED BY THE ASSESSING OFFICER WAS NEITHE R ERRONEOUS NOR PREJUDICIAL TO THE INTERESTS OF THE REVENUE. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. PR. CIT ERRED IN SETTING ASIDE THE ORD ER AS PASSED BY THE ASSESSING OFFICER BY INVOKING THE PRO VISIONS OF SECTION 263 OF THE ACT EVEN WHEN THE ORDER WAS PASS ED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE ACT A FTER CONDUCTING NECESSARY ENQUIRIES AND AFTER DUE APPLIC ATION OF MIND. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. PR. CIT ERRED IN SETTING ASIDE THE ORD ER AS PASSED BY THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT EVEN WHEN THE AMOUNT OF LONG TERM CA PITAL GAIN OF RS.22,10,437/- AS EARNED ON SALE OF SHARES AND C LAIMED EXEMPT UNDER SECTION 10(38) OF THE ACT WAS DULY SUP PORTED WITH AMPLE DOCUMENTARY EVIDENCES WHICH WERE NEVER DISPRO VED DURING THE COURSE OF REVISIONARY PROCEEDINGS. 4. THE APPELLANT RESERVES HER RIGHT TO ADD, ALTER A ND MODIFY THE GROUNDS OF APPEAL AS TAKEN BY HER. 2. FACTS IN BRIEF ARE THAT THE ASSESSMENT U/S 143(3 ) OF THE INCOME TAX ACT 1961(HEREINAFTER REFERRED AS THE ACT) WAS F RAMED VIDE ORDER DATED 27.12.2016. THE ASSESSING OFFICER ACCEPTED RE TURN FILED BY THE ASSESSEE. SUBSEQUENTLY, THE LD. PR. CIT AFTER EXAMI NING THE RECORDS INITIATED THE PROCEEDINGS U/S 263 OF THE ACT BY ISS UING THE NOTICE DATED 21.12.2017. IN RESPONSE THERETO, THE ASSESSEE FILED REPLY WHICH WAS FOUND NOT ACCEPTABLE BY THE LD. PR. CIT A ND THEREFORE, HE SET ASIDE THE ASSESSMENT TO THE FILE OF THE ASSES SING OFFICER TO SMT. SHWETA AGRAWAL /ITANO.280/IND/2019 3 REEXAMINE THE ISSUE. 3. AGGRIEVED AGAINST THIS THE ASSESSEE IS IN PRESEN T APPEAL 4. THE ONLY EFFECTIVE GROUND IS AGAINST INVOKING TH E PROVISIONS OF SECTION 263 OF THE ACT AND SETTING ASIDE THE ASSESS MENT TO THE FILE OF THE ASSESSING OFFICER. 5. LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED T HAT THE ACTION OF THE LD. PR. CIT IS CONTRARY TO THE RECORDS AND THE SETTLED POSITION OF LAW. HE SUBMITTED THAT LD. ASSESSING OFFICER HAD MA DE A REQUISITE ENQUIRY. IN THIS REGARD, HE TOOK US THROUGH THE NOT ICE DATED 17.08.2016 ENCLOSED AT PAPER BOOK 116 TO BUTTRESS T HE ARGUMENT THAT THE ASSESSING OFFICER HAD MADE DUE ENQUIRY IN THIS CASE, IT IS NOT THE CASE WHERE NO ENQUIRY WAS MADE. FURTHER, HE REITERATED THE SYNOPSIS AS FILED BY THE LD. COUNSEL FOR THE ASSESS EE. 6. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE (DR) OPPOSED THESE SUBMISSIONS AND SUPPORTED THE ORDER OF THE LD. PR. CIT. LD. DR FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAS NO T MADE ANY ENQUIRY IN RESPECT OF THE ISSUE. IT IS THE CASE OF NO ENQUIRY HENCE LD. PR. CIT WAS JUSTIFIED IN RESTORING THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. LD. D.R FURTHER SUBMITTED THAT T HE CASE LAWS AS SMT. SHWETA AGRAWAL /ITANO.280/IND/2019 4 RELIED BY THE LD. COUNSEL FOR THE ASSESSEE DO NOT H ELP THE ASSESSEE UNDER THE FACTS AND CIRCUMSTANCES OF THE PRESENT CA SE. 7. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE FIND THAT THE LD. PR. CIT HAS ISSUED A NO TICE DATED 21.12.2017 CALLING UPON THE ASSESSEE AS TO WHY THE ASSESSMENT ORDER SHOULD NOT BE REVISED. THE RELEVANT CONTENTS OF THE NOTICE ARE REPRODUCED AS UNDER: PLEASE REFER TO THE ASSESSMENT ORDER DATED 27.12. 2016 FOR A.Y. 2014-15 IN YOUR CASE. ON PERUSAL OF CASE RECORD IN YOUR CAS E FOR THE A.Y. 2014-15 IT IS FOUND THAT YOU HAVE FURNISHED YOUR RETURN OF INC OME DECLARING TOTAL INCOME AT RS.7,39,910/- ON 31.03.2015. ASSESSMENT I N YOUR CASE U/S 143(3) OF I.T. ACT 1961 WAS COMPLETED BY THE ITO-5( 3), INDORE, VIDE ORDER DATED 27.12.2016 ASSESSING TOTAL INCOME AT RS.7,39, 910/-. 2. THE ENTIRE RECORDS WERE GONE THROUGH BY ME AND O N PERUSAL AND EXAMINATION OF RECORDS IT IS FOUND THAT THE ORDER DATED 27.12.2016 FOR A. Y. 2014-15 IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE ON ACCOUNT OF PASSING OF THE OR DER WITHOUT MAKING REQUIRED ENQUIRIES / INVESTIGATIONS. 3. AS PER AVAILABLE RECORDS, IT IS FOUND THAT' DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR A. Y. 2014-15, THE CASE WAS SELECTED FOR COMPLETE SCRUTINY UNDER CASS WITH THE REASON AS UNDER: 'SUSPICIOUS TRANSACTION RELATING TO LONG TERM CAPIT AL GAIN ON SHARE (INPUTS FRONT INVESTIGATION WING)'' YOU HAD PURCHASED AND SOLD THE SHARE OF M/ S SUNRISE ASIAN LIMITED AS PER THE CHART BELOW:' PARTICULARS EIA PURCHASE SALE DATE PURCHAS EXPEN SALE COST LTC GAIN DATE E COST SE ON SALE EQUITY 16.01.20 14.02.201 72500 7964 1410526 1330062 HSHARES .. OF A . 'SUNRISE DASIA N , SMT. SHWETA AGRAWAL /ITANO.280/IND/2019 5 EQUITY 16.01.20 28.02.201 25000 278 3 491700 463917 CSHARES LOF ASUNRISE IASIAN NT:QUITY 16.01201 04.03.201 22500 249 2 441450 416458 ESHARES CPF SUNRISE LN1SIA N TOTAL 1,20,00 13,239 23,43,676 22,10,43 ~ YOU HAD CLAIMED RS.22,10,437/- AS EXEMPT L.T.C.G. I N RETURN] INCOME FILED BY YOU . THE CLAIM HAS BEEN DERIVED FR OM THE ALLEGED INVESTMENT IN THE SHARE OF M/ S SUNRISE ASIAN LIMITED., WHICH HAS BEEN CLASSIFIED AS PENNY STOCK COMPANY. FROM. THE OFFICE NOTE APPENDED TO THE ASSESSMENT ORDER AL SO IT IS FOUND THAT 'THE AO HAS QUESTIONED THIS ISSUED BUT D ID NOT CARRY OUT ANY ENQUIRY/ INVESTIGATION AND ACCEPTED THE CLAIM .ACCEPTING THE SAID CLAIM WITHOUT CONDUCTING APPROPRIATE ENQUIRY/ INVESTIGATION RENDERS THE ASSESSMENT ORDER U/S 143(3) DATED 27/12/2016 ERRONEOUS AND RESULTANTLY NOT DISALLOWING .THE SAID CLAIM RENDER THE ASSESSMENT ORDER IS PREJUDICIAL TO THE INTEREST OF REVENUE. YOU ARE, THE FORE, REQUIRED TO SHOW CAUSE WHY PROVISIONS OF SECTION' 263 BE NOT INV OKED IN YOUR CASE FOR THE REASONS MENTIONED ABOVE A S THE ORDER OF AD DATED 27.12.2016 IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE .. 3. YOU ARE, ACCORDINGLY, GIVEN AN OPPORTUNITY TO ATTEND MY OFFICE ON 09.01.2018 AT 11: 15 A.M. AND PRODUCE NECESSARY EVIDENCES, EXPLANATION, ETC IN SUPPORT OF YOUR CONTENTIONS AND ARGUMENTS. YOU ARE ALSO DIRECTED TO ATTEND WITH ALL DOCUMENTARY EVIDENCE THAT MAY BE REQUIRED FOR THE PURPOSE OF THE HEARING OF THE CASE. IF YOU FAIL TO ATTEND THE HEARING, IT SHALL BE PRESUMED THAT YOU HAVE NOTHING TO SAY IN THE MATTER AND ORDER U/ S 263 SHALL BE PASSED ON MERIT AND ON THE BASIS OF FACTS AVAILABLE ON RECORD. 8. IN RESPONSE THERETO, ASSESSEE FILED A DETAILS RE PLY IN THE CONTENTS ARE SAME AS UNDER: A SHOW CAUSE NOTICE U/S 263 DT 21-12-2017 OF THE INCOME TAX ACT HAS BEEN ISSUED IN THE CASE OF THE ABOVE ASSESS EE FOR THE ASST YEAR 2014-15. IN REPLY TO THE SAID SHOW CAUSE NOTICE, WE HAVE TO SUBMIT AS UNDER:- SMT. SHWETA AGRAWAL /ITANO.280/IND/2019 6 1) THAT IN THE SHOW CAUSE NOTICE, YOU HAVE STATED THAT CASE OF THE ASSESSEE WAS SELECTED FOR THE REASON FOR SUSPIC IOUS TRANSACTION RELATING TO LONG TERM CAPITAL GAIN ON SHARE. THE ASSESSEE HAD SHOWN LONG TERM, CAPITAL- GAIN OF PS: 22, 1 0,437/ - ON SALE OF SHARES OF M/S. SUNRISE ASIAN LIMITED, THAT IN THE SHOW CAUSE NOTICE YOU HAVE ALSO REPRODUCED TABLE OF LONG TERM CAPITAL GAIN ON SALE OF SHARES OF M/ S SUNRISE ASIAN LIMITED, THE SAME IS REPRODUCED AS UNDER:- 2. THAT IN THE SHOW CAUSE NOTICE, YOU HAVE STATED T HAT CASE OF THE ASSESSEE WAS SELECTED FOR THE REASON FOR SUSPIC IOUS TRANSACTION RELATING TO LONG TERM CAPITAL GAIN ON SHARE. THE ASSESSEE HAD SHOWN LONG TERM CAPITAL GAIN OF RS 22,10,437/ - ON SALE OF SHARES OF M/ S SUNRISE ASIAN LIMITED. THAT IN THE SHOW CAUSE NOTICE YOU HAVE ALSO REPRODUCED TABLE OF LONG TERM CAPITAL GAIN ON SALE OF SHARES OF M/ S SUNRISE ASIAN LIMITED, THE SAME IS REPRODUCED AS UNDER- S.NO. NAME OF THE COMPANY DATE OF PURCHASE DATE OF SALE PURCHASE COST EXPENSES ON SALE SALE PROCEED LTCG 1 SUNRISE ASIAN LTD. 16.1.12 14.2.14 72500 7964 1410526 1330062 2 SUNRISE ASIAN LTD. 16.1.12 28.2.14 25000 2783 491700 46391.7 3 SUNRISE ASIAN LTD. 16.1.12 4.3.14 22500 2492 441450 416458 THAT IN THE SHOW CAUSE NOTICE YOU HAVE REFERRED THE SCRIPTS IN WHICH LONG TERM CAPITAL GAIN WAS EARNED BY THE ASSESSEE AS P ENNY STOCK. IN THE CONCLUDED PARA YOU HAVE STATED THAT:- FROM THE OFFICE NOTE APPENDED TO THE ASSESSMENT ORD ER ALSO IT IS FOUND THAT THE AO HAS QUESTIONED THIS ISSUE BUT DID NOT CARRY OUT ANY ENQUIRY / INVESTIGATION AND ACCEPTED THE CLAIM. ACC EPTING THE SAID CLAIM WITHOUT CONDUCTING APPRECIATE ENQUIRY / INVEST IGATION RENDERS THE ASSESSMENT ORDER U/S 143(3) DATED 27/ 12/2016 ERRONEOUS AND RESULTANTLY NOT DISALLOWING THE SAID CLAIM RENDER THE ASSESSMENT ORDER IS PREJUDICIAL TO THE INTEREST OF REVENUE. YOU ARE, THER EFORE) REQUIRED TO SHOW CAUSE WHY PROVISIONS OF SECTION 263 BE NOT INVOKED IN YOUR CASE FOR THE REASONS MENTIONED ABOVE AS THE ORDER OF AO DATED 27-12- 2016 IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE. ' 3.1 THE ASSESSEE IN ADDITION TO THE LONG TERM CAPITAL GAIN ON SALE OF SHARES OF M/ S SUNRISE ASIAN LIMITED) ALSO EARNED LONG TERM CAPITAL SMT. SHWETA AGRAWAL /ITANO.280/IND/2019 7 GAIN OF RS 5)39) 969/ - ON SALE OF SHARES OF M/ S IDEA LIMITED. HENCE) IT IS PROVED BEYOND DOUBT THAT THE ASSESSEE MADE REGULAR INVESTMENT IN SHARES & SECURITIES. 3.2 THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEE DING FILED VARIOUS DOCUMENTS AS TO JUSTIFY THE GENUINENESS OF THE PROFIT ON SALE OF SHARES AS LONG TERM CAPITAL GAIN) THE SAME IS ALS O SUMMARIZED AS UNDER- M/S SUNRISE ASIAN LIMITED 1 PURCHASE NOTE AS ISSUED BY M/S P SAJI TEXTILES LIMITED REGARDING SALE OF SHARES OF M/S CONART TRADERS LIMITED (NOW KNOWN AS M/S SUNRISE ASIAN LIMITED) TO THE ASSESSEE IS ENCLOSED 2 COPY OF SHARE TRANSFER FORM FOR TRANSFER OF SHARES IN THE NAME OF THE ASSESSEE 3 COPY OF SHARE CERTIFICATE, DULY TRANSFERRED IN THE NAME OF THE ASSESSEE 4 COPY OF AMALGAMATION ORDER PASSED BY BOMBAY HIGH COURT FOR THE AMALGAMATION OF M/S SANTOSHIMA TRADELINKS LTD AND M/S CONART TRADERS LTD., FORMING A NEW COMPANY M/S SUNRISE ASIAN LIMITED 5 COPY OF D - MAT STATEMENT OF THE ASSESSEE WITH THE UNION BANK OF INDIA FORTHE PERIOD 01/04/2013 TO 31/03/2014 6 COPY OF SHARE CERTIFICATE AS ISSUED BY THE AMALGAMATED COMPANY M/S SUNRISE ASIAN LIMITED 7 COPY OF DEMATERIALISATION REQUEST FORM TO UNION BANK OF INDIA FOR DEMATERIALISATION OF SHARES OF M/ S SUNRISE ASIAN LIMITED 8 SALE NOTE DT. 14/02/2014 FOR SALE OF 2,900 SHARES ISSUED BY INDIRA SECURITIES PVT. LTD 9 SALE NOTE DT. 28/02/2014 FOR SALE OF 1,000 SHARES ISSUED BY INDIRA SECURITIES PVT. LTD 10 SALE NOTE DT. 04/03/2014 FOR SALE OF 900 SHARES ISSUED BY INDIRA SECURITIES PVT. LTD 3.3) THE ASSESSING OFFICER DURING THE COURSE OF SCRUTINY ASSESSMENT ISSUED SUMMON UIS 131 OF THE ACT AND STATEMENT OF THE ASSESSEE WAS ALSO RECORDED ON OATH THE ASSESSEE IN HER STATEMENT ALSO EXPLAINED THE CORRECT NATURE OF TRANSACTION OF LONG TERM CAPITAL GAIN ON SALE OF SHARES OF M/ S SUNRISE ASIAN LIMITED. 3.41 THE ASSESSING OFFICER AFTER RECEIVING ALL THE PAPERS AND RECORDIN G OF THE STATEMENT OF THE ASSESSEE ACCEPTED THE CLAIM OF LONG TERM CAPITAL GAIN AS GENUINE. 3.51 THAT ON PERUSAL OF SALE BILLS OF M/ S INDIRA SECURITIES P LIMITED, SIT WAS ALSO DEDUCTED ON THE SALE PROCEEDS ON SALE OF SHARES. SMT. SHWETA AGRAWAL /ITANO.280/IND/2019 8 3.61 COPY OF QUOTATION AT THE TIME OF SALE AS DOWNLOADED FROM THE SITE OF THE BSE IS ALSO ENCLOSED AS TO JUSTIFY THE SALE PRICE ON SALE OF SHARES OF M/ S SUNRISE ASIA LIMITED. S.NO . NAME OF THE COMNANY PERIOD 1 M/ S SUNRISE ASIAN LIMITED 01-02-14 TO 28-02-14 2 M/ S SUNRISE ASIAN LIMITED 01 - 03 - 14 TO 31 - 03 - 3 M/ S SUNRISE ASIAN LIMITED 10 - 02 - 14 TO 07 - 03 - 4 M/ S SUNRISE ASIAN LIMITED JAN, 13 TO JAN. 15 3.7 ) THAT PERUSAL OF THE ABOVE QUOTATION IT IS EVIDENT THAT SHARE PRICE OF THE SHARES ON WHICH THESE WERE SOLD BY THE ASSES SEE WAS DULY VERIFIABLE. HENCE, THE ASSESSING OFFICER WAS RIGHTL Y ACCEPTED THE LONG TERM CAPITAL GAIN AS SHOWN BY THE ASEESSEE 4.1 THAT IN THE PRESENT CASE IN HAND, THE ASSESSING OF FICER HAD MAKE EXHAUSTIVE INQUIRY AND COLLECT ALL THE DOCUMEN TS FROM THE ASSESSEE AND ALSO RECORDED HER STATEMENT. HENCE, AS PER EXPLANATION 2 TO SECTION 263111 OF THE ACT, THE ASSESSMENT ORDER IN QUESTION SHALL NOT BE DEEMED TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. 4.2 THAT HON'BLE SUPREME COURT IN THE CASE OF MALAB AR INDUSTRIAL CO. LTD. CIT [20001 243 ITR 83 (SC) AFTER CONSIDERING THE DECISIONS OF RAMPYARI DEVI SARAOGI (SUPRA) AND SMT. TARA DEVI AGGARWAL (.MPRA): 'THERE CAN BE NO DOUBT THAT THE PROVISION CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED B Y THE ASSESSING OFFICER; . IT IS ONLY WHEN AN ORDER IS ERRONEOUS TH AT THE SECTION WILL BE ATTRACTED. AN INCORRECT ASSUMPTION OF FACTS OR AN I NCORRECT APPLICATION OF LAW WILL SATISFY THE REQUIREMENT OF THE ORDER BE ING ERRONEOUS. IN THE SAME . CATEGORY FALL ORDERS PASSED WITHOUT APPLYING THE PR INCIPLES OF NATURAL JUSTICE OR WITHOUT APPLICATION OF MIND. THE PHRASE 'PREJUDICIAL TO THE INTERESTS OF THE REV ENUE 'HAS TO BE READ IN CONJUNCTION WITH AN ERRONEOUS ORDER PASSED BY TH E 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 ITO ADOPTED ONE O F THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE; OR WHERE TWO VIEWS ARE POSSIBLE AND THE ITO HAS TAKEN ONE VI EW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREAT ED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE UNLESS THE VIEW TAKEN BY THE ITO IS UNSUSTAINABLE IN LAW. IT HAS BEEN HELD BY THIS COURT THAT WHERE A SUM NOT EARNED BY A PERS ON IS ASSESSED SMT. SHWETA AGRAWAL /ITANO.280/IND/2019 9 AS INCOME IN HIS HANDS ON HIS SO OFFERING, THE ORDE R PASSED BY THE ASSESSING OFFICER ACCEPTING THE SAME AS SUCH WILL B E ERRONEOUS AND PREJUDICIAL TO -THE INTERESTS OF THE REVENUE RA MPYARI JJ.E1.JI SARAOQIU . CIT 119681671 TR 84 (SC) AND IN SMT. TARA AGGARWAL V. CIT {19731 88 ITR 323 (SC)'. 4.3] HON'BLE DELHI HIGH COURT IN THE CASE OF CIT US. SUN BEAM AUTO REPORTED IN 227 CTR 113 HAS POINTED OUT A DISTINCTION BETWEEN LACK OF INQUIRY AND INADEQUATE INQUIRY. IF THERE IS A LACK OF ENQUIRY, THEN THE ASSESSMENT ORDER CAN BE BRANDED A S ERRONEOUS. THE FOLLOWING OBSERVATIONS OF THE HON'BLE DELHI HIGH COURT C WORTH TO NOTE:- '12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF TH E COUNSEL ON THE OTHER SIDE AND HAVE GONE THROUGH THE RECORDS. THE FIRST ISSUE THAT ARISES FOR OUR CONSIDERATION IS ABOUT THE EXERCISE OF POWER BY THE COMMISSIONER OF INCOME-TAX UNDER SECTION 263 OF THE INCOME-TAX ACT. AS NOTED ABOVE, THE SUBMISSION OF LEARNED COUN SEL FOR THE REVENUE WAS THAT WHILE PASSING THE ASSESSMENT ORDER , THE ASSESSING OFFICER DID NOT CONSIDER THIS ASPECT SPECIFICALLY WHETHER THE EXPENDITURE IN QUESTION WAS REVENUE OR CAPITAL EXPENDITURE. THIS ARGUMENT PREDICATES ON THE ASSESSMENT ORDER WHICH A PPARENTLY DOES NOT GIVE ANY REASONS WHITE COLLECTING ENTIRE EXPENDITURE AS REVENUE EXPENDITURE. HOWEVER, THAT BY ITSELF WOULD NOT BE INDICATIVE OF THE FACT THAT THE ASSESSING OFFICER HAD NOT APPL IED HIS MIND ON THE ISSUE. THERE ARE JUDGMENTS GALORE LAYING DOWN THE P RINCIPLE THAT THE ASSESSING OFFICER IN THE ASSESSMENT ORDER IS NOT REQUIRED TO GIVE DETAILED REASON IN RESPECT OF EACH AND EVERY ITEM O F DEDUCTION, ETC. THEREFORE, ONE HAS TO SEE FROM THE RECORD AS TO WHE THER THERE WAS APPLICATION OF MIND BEFORE ALLOWING THE EXPENDITURE IN QUESTION AS REVENUE EXPENDITURE. LEARNED COUNSEL FOR THE ASSESS EE IS RIGHT IN HIS SUBMISSION THAT ONE HAS TO KEEP IN MIND THE DISTINC TION BETWEEN 'LACK OF INQUIRY' AND 'INADEQUATE INQUIRY'. IF THERE WAS ANY INQUIRY, EVEN INADEQUATE, THAT WOULD NOT BY ITSELF, GIVE OCC ASION TO THE COMMISSIONER TO PASS ORDERS UNDER SECTION 263 OF THE ACT, MERELY BECAUSE HE HAS DIFFERENT OPINION IN THE MATTER. IT IS ONLY IN CASES OF 'LACK OF INQUIRY', THAT SUCH A COURSE OF ACTION WOU LD BE OPEN'. . 4.41 HON'BLE. AHMEDABAD BENCH OF ITAT IN THE CASE OF MIS JAY AGRICULTURE TEST VS. PR. CIT (APPEAL NO. INCOME-TAX ACT, 1961. NO.605/AHD/2015 DATED. 01.01.2015 HAS HELD THAT 01-2015 HAS HELD THAT' .' ' ,20. ON DUE CONSIDERATION OF THESE FACTS, WE ARE OF THE VIEW THAT THE AO HAS' EXAMINED THE ISSUE, THOUGH NOT DISCUSSE D ELABORATELY IN THE ASSESSMENT ORDER. BUT ON RECORD, HE HAS CALL ED FOR INFORMATION. FROM THE ASSESSEE AND THEREAFTER ACCEP TED. IT IS THE SMT. SHWETA AGRAWAL /ITANO.280/IND/2019 10 PREROGATIVE OF THE AO WHAT TO DISCUSS IN THE ASSESS MENT ORDER AND THE ASSESSEE CANNOT FORCE THE AO TO DRAFT THE ASSES SMENT ORDER IN A PARTICULAR MANNER. THE ASSESSMENT ORDER CANNOT BE TERMED ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE ON THE GROUND THAT INQUIRY CONDUCTED BY THE AO. 4.5J HON'BLE MUMBAI BENCH OF ITAT IN THE CASE OF RELIANC E MONEY INFRASTRUCTURE LTD VS PR CIT AS REPORTED IN 51 CCH 0166 HAS HELD THAT :- 26. IN VIEW OF THE FOREGOING DISCUSSIONS, WE NOTE T HAT THE AO HAS PASSED THE ASSESSMENT ORDER AFTER OBTAINING AND CAL LING FOR DETAILS/CLARIFICATIONS OF ALL THE SEVEN ISSUES RAISED BY THE PR. CIT IN' THE REVISIONARY PROCEEDINGS AND THEREAFTER FRAMED T HE ASSESSMENT WHEREAS THE ID PR. CIT HAS NOT SPECIFIED IN HIS ORDER. AS TO HOW THE ORDER OF THE AO IS ERRONEOUS SO AS TO PREJUDICIAL T O THE INTEREST OF THE REVENUE. THE PR. CIT HAS EVEN MADE ROVING DIRECTION THAT THE AO MAY EXAMINE ANY OTHER ISSUE WHICH MAY COME TO HIS NOTIC E IN THE SET ASIDE PROCEEDINGS. THUS EVIDENTLY IT IS NOT A CASE OF NO INQUIRY OR WRONG APPLICATION OF LAW OR WRONG ASSUMPTION OF FACTS AND THEREFORE THE REVISIONARY JURISDICTION. EXERCISED BY THE PCIT IS NOT PROPER AND AS PER THE PROVISIONS OF THE SECTION ITSELF. WE ARE OF THE CONSIDERED OPINION THAT IN THE PRESENT CASE THE AO HAS SPECIFICALLY CA LLED FOR EXPLANATION FROM THE ASSESSEE ON ALL POINTS DURING THE COURSE OF ASSESSMENT PROCEEDING AND THEREAFTER HAS TAKEN A POSSIBLE VIEW . MOREOVER, IT IS NOT NECESSARY FOR THE AO TO GIVE DETAILED FINDINGS OR ELABORATE IN THE ASSESSMENT ORDER ON EACH AND EVERY ISSUE WHICH HAS BEEN EXAMINED DURING THE COURSE OF SCRUTINY PROCEEDINGS. BESIDES, THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE RATIO LAID DOWN IN THE VARI OUS CASE LAWS REFERRED TO BY THE ID AR DISCUSSED BRIEFL Y HEREINABOVE WHILE A SERIES OF CASES RELIED UPON BY THE REVENUE HAVE B EEN CAREFULLY PERUSED AND ARE FOUND TO BE DISTINGUISHABLE OF FACTS AND ARE NOT APPLICABLE. THE AMENDMENT TO SECTION 263 IS ALSO PROSPECTIVE. THUS, THE REVERSIONARY PROCEEDINGS U/ S 263 OF THE ACT ARE NOT VALIDLY INITIATED IN VIEW OF THE FACTS THAT THE ISSUES RAKE D UP BY THE PR. CIT STAND: EXAMINED BY THE AO IN THE ASSESSMENT PROCEED INGS AND THE ID PR CIT HAS FAILED TO STATE AS TO HOW THE ORDER OF A O IS ERRONEOUS AND NOT IN ACCORDANCE WITH LAW OR SETTLED LEGAL POSITION. EVEN ON MERIT, THE ASSESSEE IS ENTITLED TO ALL THE DEDUCTIONS/ CLAIMS A S PER THE PROVISIONS OF THE ACT. CONSIDERING ALL THESE FACTS IN TOTALITY AND RESPECTFULLY FOLLOWING THE RATIO LAID DOWN IN THE VARIOUS DECISI ONS CF TH JURISDICTIONAL AND OTHER HIGH COURTS, WE ARE OF THE CONSIDERED VIEW THAT THE JURISDICTION BY THE PR. CIT U/ S 263 OF THE ACT WAS INVALIDLY ASSUMED. ACCORDINGLY WE SET ASIDE THE PROCEEDINGS U/ S 263 OF THE ACT AS BEING INVALID AND ALSO CONSEQUENT U/ S 263 OF THE ACT. 4.61 THESE PRINCIPLES HAVE BEEN RE-ITERATED BY THE APEX COURT IN SMT. SHWETA AGRAWAL /ITANO.280/IND/2019 11 ITS JUDGMENT IN COMMISSIONER OF INCOME TAX VS AMITA BH BACHAN {2016 (3) KLT SN.4 (C.NO.3) SCI, WHERE THE COURT INTER AL IA HELD THUS: 'THERE CAN BE NO DOUBT THAT SO LONG AS THE VIEW TAK EN BY THE ASSESSING OFFICER IS A POSSIBLE VIEW THE SAME OUGHT NOT TO BE INTERFERED WITH BY THE COMMISSIONER UNDER S.263 OF THE ACT MERELY ON THE GROUND THAT THERE IS ANOTHER POSSIBLE VIEW OF THE MATTER. PERMITTING EXERCISE OF REVISIONAL POWER IN A SITUAT ION WHERE TWO VIEWS ARE POSSIBLE WOULD REALLY AMOUNT TO CONFERRING SOME KIND OF AN APPELLATE POWER IN THE REVISIONAL AUTHORITY. THIS I S A COURSE OF ACTION THAT MUST BE DESISTED FROM. 4.7. I]THE ORDER AS PASSED BY THE ASSESSING OFFICER WAS NOT ERRONEOUS, SINCE, THE VIEW AS TAKEN BY THE ASSESSIN G OFFICER WAS- ONE OF THE POSSIBLE VIEW THE BASIS OF DOCUMENTS AS FURNISHED BY THE ASSESSEE. HENCE, THE ORDER AS PASSED BY THE ASS ESSING OFFICER WAS NOT ERRONEOUS AND PREJUDICIAL ORDER. 4.7.2} THAT HON'BLE APEX COURT IN THE CASE OF CIT VS MAX I NDIA LIMITED AS REPORTED ~ 295 ITR 0282 HAS HELD THAT:- '2. AT THIS STAGE WE MAY CLARIFY THAT UNDER PARA 1 0 OF THE JUDGMENT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. (SUPRA) THIS COURT HAS TAKEN THE VIEW THAT THE PHRASE 'PREJUDICI AL TO THE INTEREST OF THE REVENUE' UNDER S. 263 HAS TO BE READ IN CONJUNCTION WITH THE EXPRESSION 'ERRONEOUS' ORDER PASSED BY THE AD. EVER Y LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE AD CANNOT BE TREATED AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. FOR EXA MPLE, WHEN THE 11'0 ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE; OR WHERE TWO VIEWS ARE POSSIBLE AND THE ITO HAS TAKEN ONE VIEW WITH WHICH THE CIT DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTEREST OF THE REVENUE, UNLESS THE VIEW TAKEN BY THE AO IS UNSUSTAINABLE IN LAW. ' 4.7.3 THAT HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS ASSOCIATED FOOD PRODUCTS (P) LTD AS REPORTED IN 280 ITR 0377 HAS HELD THAT:- 9. IN VIEW OF THE AFORESAID PRONOUNCEMENT OF LAW AN D TAKING INTO CONSIDERATION THE LANGUAGE EMPLOYED UNDER S. 263 OF THE ACT, IT IS CLEAR AS CRYSTAL THAT BEFORE EXERCISE OF POWERS TWO REQUISITES ARE IMPERATIVE TO BE PRESENT. IN THE ABSENCE OF SUCH FO UNDATION EXERCISE OF A SUO MOTU POWER IS IMPERMISSIBLE. IT SHOULD NOT BE PRESUMED THAT INITIATION OF POWER UNDER SUO MOTU REVISION IS MERELY AN ADMINISTRATIVE ACT. IT IS AN ACT QUASIJUDICIAL AUTHORITY AND BASED ON FORMATION OF AN OPINION WITH REGARD TO EXISTENCE OF ADEQUATE MATERIAL TO SATISFY THAT THE DECISION TAKEN BY THE AD IS' ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE . THE CONCEPT OF 'PREJUDICIAL TO THE INTERESTS OF THE REVENUE' HAS T O BE CORRECTLY SMT. SHWETA AGRAWAL /ITANO.280/IND/2019 12 .. 'DNCT'SOU.NDLY UNDERSTOOD. IT PRECISELY MEANS AN ORDER 'WHICH HA NOT BEEN PASSED IN' CONSONANCE WITH THE PRINCIPLES OF LAW WHICH HAS IN ULTIMATE EVENTUATE AFFECTED REALISATION OF LAWFU L REVENUE EITHER BY THE STATE HAS NOT BEEN REALISED OR IT HAS GONE BEYOND REALISATION. THESE TWO BASIC INGREDIENTS HAVE TO BE SATISFIED AS SINE QUA NON FOR EXERCISE OF SUCH POWER. ON A PERUSAL OF THE MATERIA L BROUGHT ON RECORD AND THE ORDER PASSED BY THE CIT IT IS PERCEPTIBLE THAT THE SAID AUTHORITY HAS NOT KEPT IN VIEW THE REQUIREMENT OF S. 263 OF THE ACT INASMUCH AS THE ORDER DOES NOT REFLECT ANY KIND OF SATISFACTION. AS IS MANIFEST THE SAID AUTHORITY HAS BEEN GOVERNED BY A SINGULAR FACTOR THAT THE ORDER OF THE AD IS WRONG. THAT MAY BE SO BUT THAT IS NOT ENOUGH WHAT WAS THE SEQUITUR OR CONSEQUENCE OF SUCH ORDER QUA PREJUDICIAL TO THE INTEREST OF THE REVENUE SHOULD H AVE BEEN FOCUSED UPON. THAT HAVING NOT BEEN DONE, IN OUR CONSIDERED OPINION, EXERCISE OF JURISDICTION UNDER S. 263 OF THE ACT IS TOTALLY ERRONEOUS AND CANNOT WITHSTAND SCRUTINY. HENCE, THE TRIBUNAL HAS CORRECT LY UNSETTLED AND DISLODGED THE ORDER OF THE CIT. 5 THAT IN VIEW OF THE ABOVE, 'IN THE PRESENT CASE, THE ASSESSING OFFICER MAKE DETAILED INQUIRY AND AFTER DULY VERIFI CATION. FROM THE DOCUMENTS AS SUBMITTED BY THE ASSESSEE, CLAIM OF LONG TERM. CAPITAL. GAIN AS EXEMPT U/ 10138) OF THE ACT WAS ACCEPTED BY THE ASSESSING OFFICER WHICH ON THE BASIS OF DOCUMENTS AS FURNISHED BY THE ASSESSEE WAS CORRECT AND ACCEPTABLE VIEW. HENCE, YOU ARE REQUESTED TO DROP THE SHOW CAUSE NOTICE AS ISSUED U/ S 263 OF THE ACT . 9. LD. PR. CIT AFTER CONSIDERING THE MATERIAL ON RE CORD AND SUBMISSIONS OF THE ASSESSEE REVISED THE ORDER THERE BY HE RESTORED THE ASSESSMENT ORDER TO THE FILE OF THE ASSESSING O FFICER TO EXAMINE THE ISSUE OF LONG TERM CAPITAL GAIN AND PASS AN ORD ER AS PER LAW AFTER MAKING PROPER ENQUIRY AND INVESTIGATION AS IN DICATED IN THE IMPUGNED ORDER. 10. WE HAVE HEARD THE RIVAL SUBMISSION, PERUSED THE MATERIAL AVAILABLE ON RECORDS AND GONE THROUGH THE SMT. SHWETA AGRAWAL /ITANO.280/IND/2019 13 IMPUGNED ORDER. WE FIND THAT LD. PR. CIT HAS REVIS ED THE ORDER BY OBSERVING AS UNDER :- 3. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE, THE ASSESSMENT RECORDS AND THE WRITTEN SUBMISSION GIVEN BY THE ASSESSEE. IT IS NOTED THAT THE CASE WAS SELECTED FOR SCRUTINY CASS WITH REASON WHICH HAS BEEN CLEARLY MENTIONED I N SHOW CAUSE ISSUED BY THIS OFFICE. IT IS OBSERVED FROM TH E RECORDS AS WELL AS FROM DETAILS FURNISHED BY THE ASSESSEE DURI NG THE COURSE OF PROCEEDINGS BEFORE THE UNDER SIGNED THAT THE ASS ESSING OFFICER HAS NOT MADE ANY ENQUIRY WHATSOEVER ON THE ISSUE OF THE GENUINENESS OF THE CLAIM OF LTCG. HE DIDN'T MAKE ANY INQUIRIES AT ALL ABOUT THE ISSUE. 3.1. IT IS NOTED FROM RECORDS THAT THE ASSESSING OFFICER DIDN'T RAISE ANY QUERY IN THE QUESTIONNAIRE ISSUED DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOR MADE ANY QUERY ON THE OR DER SHEET DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON THI S ISSUE. THE ASSESSEE IN ITS SUBMISSION HAS ALSO NOT BE ABLE TO GIVE ANY EVIDENCE REGARDING THE SAME. 3.1.1. THE SUBMISSION OF THE ASSESSEE ON TECHNICAL ISSUES RELATING TO APPLICABILITY OF SECTION 263 ARE DEALT WITH SEPARATELY ALONG WITH DISCUSSION ON THE .APPLICABLE JUDICIAL PRONOUNCEMENTS IN RESPECT OF THE SAME, IN UPCOMING PART OF THIS : ORDER. HOWEVER, ON MERITS, IT MAY BE NOTED ON A C AREFUL CONSIDERATION OF THE FACTS THAT THE ASSESSEE HAS SO LD 1,25,000 SHARES OF SUNRISE ASIAN LTD. AMOUNTING TO RS. 23,43 ,676/- IN F.Y. 2013-14. THESE SHARES ARE IDENTIFIED AS PENNY STOCK IN 84 BSE LISTED PENNY STOCK COMPANY . THE ASSESSEE HAS SAID THAT THE PURCHASE COST THESE SHARES AS ON 16.01.2012 WAS AMOUNTING RS. 1,20,000/-. IT IS EVIDENT THAT THE ASSESSEE HAS SHO WN BOGUS LTCG AMOUNTING TO RS. 22,10,437/- AND THE SAME SHOULD HA VE BEEN ADDED TO THE INCOME OF ASSESSEE, AFTER DUE EXAMINAT ION AND AFTER GIVING OPPORTUNITY TO THE ASSESSEE ON THE RES ULT OF SUCH EXAMINATION. THE ASSESSEE IN HIS SUBMISSION DURING THE COURSE OF PROCEEDINGS BEFORE ME HAS SUBMITTED THAT THE ISSUE HAS BEEN CONSIDERED BY THE AO WHICH IS NOT CORRECT INASMUCH A S NO ENQUIRIES HAVE BEEN REGARDING THE GENUINENESS OF SUCH PROFITS . IT IS NOT DENIED THAT ASSESSING OFFICER SPECIFICALLY ASKED FOR THE DETAILS OF SHARE TRANSACTIONS AND THE CONTRACT NOTES ETC WERE S UBMITTED DURING THE ASSESSMENT PROCEEDINGS BUT THE SAME, IF NOT SUBSTANTIATED BY THE OTHER PREREQUISITES OF A GENUINE TRANSACTION ; REMAINS SMT. SHWETA AGRAWAL /ITANO.280/IND/2019 14 UN VERIFIED. IT IS ALSO NOT DENIED THAT THE TRANSACTIO NS HAVE BEEN ROUTED THROUGH BANKING CHANNELS AND ESTABLISHED THR OUGH DEMAT ACCOUNT BUT THE SAME ALSO IS INSUFFICIENT TO HOLD ANY TRANSACTION TO BE GENUINE WITHOUT PROPER ENQUIRY IN THIS REGARD. 3.1.2. THE SUBMISSION OF THE ASSESSEE CANNOT BE ACCEPTED AS THE FACT REMAINS THAT THE AO HAS NOT EXAMINED THIS ASPECT .DURING THE COURSE OF SCRUTINY PROCEEDINGS. HE RECORDED THE STA TEMENT OF THE ASSESSEE BUT NO FURTHER ENQUIRY TO CORROBORATE THE FACTS STATED IN THE STATEMENT WAS DONE BY THE AO. IT IS NOTED THAT NOT EVEN THE TRADE DATA HAS BEEN CALLED FOR TO EXAMINE THE TRANS ACTIONS. NO ENQUIRY HAS BEEN MADE FROM THE EXCHANGES EITHER. NO EXAMINATIONS/ ENQUIRIES HAVE BEEN DONE FROM THE COM PANY WHOSE SHARES HAVE BEEN SUBJECTED TO SALE IN ORDER T O SHOW THE SAID LTCG., IN THIS CASE THERE WAS A REPORT OF DDT( INV), KOLKATA REGARDING MANIPULATIONS IN SCRIP AND IT HAS BEEN IN FORMED THAT THE SCRIP WAS USED TO CONVERT ONE'S, UNACCOUNTED IN COME INTO ACCOUNTED BY ADOPTING COLORABLE DEVICE. THE AO IGNORED THE REPORT AND DIDN'T MAKE ANY FURTHER VERIFICATION OR INQUIRY OR CORRESPONDENCE WITH THE INVESTIGATION WING, KOLKATA AND PROCEEDED TO PASS THE ORDER. THE ISSUE REQUIRED FURTHER VERIFICATION AND ENQUIR IES WHICH HAVE NOT BEEN DONE BY THE AO DURING THE COURSE OF SCRUTINY PROCEEDINGS. THEREFORE, THE ASSESSMENT IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE AS PER TH E DEFINITION GIVEN IN EXPLANATION 2 TO SEC. 263 ON THIS ISSUE. 4. THEREFORE, IN VIEW OF THE ABOVE DISCUSSIONS, THE AS SESSMENT ORDER U/ S 143(3) DATED 27.12.2016 FOR AY 2014-15 IS' ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF R EVENUE IN RESPECT OF THE ISSUES IN WHICH NECESSARY ENQUIRY AND INVESTIGA TIONS HAVE NOT BEEN CARRIED OUT BY THE AO AS INDICATED IN THE DISCUSSION; ABOUT THE RESPECTIVE' ISSUE. 'AO SHOULD HAVE' VERIFIED' ASPECTS RELATED' TO THE ISSUES MENTIONED ABOVE. HE COMPLETE D THE ASSESSMENT WITHOUT MAKING NECESSARY INVESTIGATION A ND ENQUIRIES WHICH WERE NECESSARY TO ARRIVE AT THE COR RECT TAXABLE INCOME OF THE ASSESSEE. IT MAY NOT BE OUT OF PLACE TO REFER TO THE PROVISIONS OF EXPLANATION-2 TO SECTION 263 WHICH RE ADS AS UNDER:- 'EXPLANATION 2.-FOR THE PURPOSES OF THIS SECTION, IT IS HEREBY DECLARED THAT AN ORDER PASSED BY THE ASSESSING OFFI CER SHALL BE DEEMED TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, IF, IN THE OPINION OF THE PRINCIPAL COMMISSIONER OR COMMISSIONER,- SMT. SHWETA AGRAWAL /ITANO.280/IND/2019 15 (A) THE ORDER IS PASSED WITHOUT MAKING INQUIRIES OR VERIFICATION WHICH SHOULD HAVE BEEN MADE ; (B) THE ORDER IS PASSED ALLOWING ANY RELIEF WITHOUT INQUIRING INTO T HE CLAIM; (C) THE ORDER HAS NOT BEEN MADE IN ACCORDANCE WITH ANY ORDER, DIRECTION OR INSTRUCTION ISSUED BY THE BOARD UNDER SECTION 119; OR (D) THE ORDER HAS NOT BEEN PASSED IN ACCORDANCE WIT H ANY DECISION WHICH IS PREJUDICIAL TO THE ASSESSEE' RENDERED ,BY THE JURISDICTIONAL HIGH COURT OR SUPREME COURT IN THE CASE