VINOD KUMAR KUNDANMALJI JAIN, CHENNAI V. PCIT-8, CHENNAI

ITA 310/CHNY/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 7160 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 24-08-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Revision of order; Set aside; Capital Gains
• Section: 263; 143(3); 250; 143(2); 22

Judgement Text

आयकरअपीलीयअिधकरण,‘डी’ यायपीठ,चे ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘D’ BENCH, CHENNAI ी जी मंजूनाथा, लेखा सद के सम , ी अिनके श बनज , ाियक सद एवं BEFORE SHRI G. MANJUNATHA, ACCOUNTANT MEMBER AND SHRI ANIKESH BANERJEE, JUDICIAL MEMBER आयकर अपील सं./I.T.A No.:307/Chny/2021 िनधा रण वष /Assessment Year: 2013 - 2014 Shri. Tarun Kumar Kundanmalji Jain, No.44/39, Ekambareshwar Agraharam Street, Park Town, Chennai – 600 003. PAN : AAFPJ 8314B Vs. The Principal Commissioner of Income Tax - 8, Chennai – 600 003, Tamil Nadu. (अपीलाथ /Appellant) ( यथ /Respondent) आयकर अपील सं./I.T.A No.:308/Chny/2021 िनधा रण वष /Assessment Year: 2013 - 2014 Tarun Kumar Kundanmal [HUF] No.44/39, Ekambareshwar Agraharam Street, Park Town, Chennai – 600 003. PAN : AAACHT 1849Q Vs. The Principal Commissioner of Income Tax - 8, Chennai – 600 003, Tamil Nadu. (अपीलाथ /Appellant) ( यथ /Respondent) आयकर अपील सं./I.T.A No.:309/Chny/2021 िनधा रण वष /Assessment Year: 2013 - 2014 Vinod Kumar Kundanmal [HUF] No.44/39, Ekambareshwar Agraharam Street, Park Town, Chennai – 600 003. PAN : AADHV 1841H Vs. The Principal Commissioner of Income Tax - 8, Chennai – 600 003, Tamil Nadu. (अपीलाथ /Appellant) ( यथ /Respondent) ::2 :: I.T.A. Nos.307 to 310/Chny/2021 आयकर अपील सं./I.T.A No.:310/Chny/2021 िनधा रण वष /Assessment Year: 2013 - 2014 Shri Vinod Kumar Kundanmalji Jain No.36/174, Wall Tax Road, Sowcarpet, Chennai – 600 079. PAN : AAHPJ 1249H Vs. The Principal Commissioner of Income Tax - 8, Chennai – 600 003, Tamil Nadu. (अपीलाथ /Appellant) ( यथ /Respondent) अपीलाथ क ओरसे/Appellant by : Shri. M. Abhishek, C.A. यथ क ओरसे/Respondent by : Dr. S. Palani Kumar, CIT सुनवाई क तारीख/Date of Hearing : 13.06.2022 घोषणा क तारीख/Date of Pronouncement : 15.06.2022 आदेश आदेशआदेश आदेश /O R D E R PER ANIKESH BANERJEE, JM: These four instant appeals of the two Assessees filed against the order of the learned Principal Commissioner of Income Tax-8, Chennai (in brevity “the PCIT”) are identical and having separate orders that were passed u/s.263 of the Income Tax Act, 1961 (in brevity “the Act”), all dated 25.03.2021 but revising their respective assessment orders, passed by the learned Income Tax Officer, Non-Corporate Ward – 6(4), Chennai passed u/s.143(3). r.w.s.147 of the Act accepting the Long Term Capital Gains [LTCG] involving proceedings u/s.263 of the Act. Both the parties stated at the outset that, the ::3 :: I.T.A. Nos.307 to 310/Chny/2021 relevant factual backdrop as well as the issues involved in all the cases are identical. We, therefore treat the first Assessee’s appeal, I.T.A. No.307/Chny/2021 for the Assessment Year 2013 – 2014 as the lead case. 2. At the outset, it is noticed all the appeals of the Assessee bearing Nos. I.T.A No.:307 to 310/Chny/2021 are time barred by 86 days due to circumstances beyond the control of the Assessee because of the outbreak of ‘Covid-19’ pandemic. The Hon’ble Bench took into cognizance the Order of the Hon’ble Supreme Court the “Suo Moto WP 03/2020 dated 20.03.2020 while considering the condonation of delay. It is a fact that ‘Covid-19’ pandemic was prevalent and in term of the directions issued by the Hon’ble Supreme Court in Miscellaneous Application No.21/2022 in Suo Motu Writ Petition No.3 of 2020, we condone the delay of 86 days in all these appeals and admit the appeals for adjudication on merits. 3. We advert to the basic relevant facts. The Assessee filed his return of income u/s.143(1) of the Act for the Assessment Year 2013 – 2014 on 07.07.2013 declaring a total income of Rs.3,43,380/- and the same stood summarily processed. The learned Assessing Officer thereafter issued a ::4 :: I.T.A. Nos.307 to 310/Chny/2021 notice u/s.148 of the Act for verification of the Long Term Capital Gains [LTCG] amounting to Rs.31,01,256/- dated 27.03.2018 which was duly served to the Assessee. After verification of the Long Term Capital Gains which was accepted by the learned Assessing Officer. The observation of the learned Assessing Officer in assessment order is extracted as under: “During the course of the scrutiny proceedings, the Authorized Representative has submitted the purchase and sale details of the shares and contract notes. It is seen from the submissions of the Authorized Representative that the Assessee had purchased 9500 shares of M/s. Twenty First Century (India) Limited on 08.10.2009 for a value of Rs.1,00,000/- by a contract note. These shares were sold by the Assessee on 27.11.2012 and 29.11.2012 for Rs.31,01,256/-. As such, the Assessee held these shares for about three years after purchase from the date of purchase to the date of sales. It is also hoped that one cannot foresee and expect to get an accommodation entry after three years. As such, it is concluded that the Assessee’s transactions seems to be genuine, as the Assessee held the shares for three years and sold. Income admitted in the return is accepted and assessment is completed accordingly.” 3.1. It emerges from a perusal of the case file that the learned PCIT issued notice u/s.263 of the Act dated 11.03.2021 and an opportunity of hearing was allowed on 19.03.2021. The ::5 :: I.T.A. Nos.307 to 310/Chny/2021 Assessee had submitted the details electronically before the learned PCIT but the same was objected by the learned PCIT who passed the order accordingly. The response of the Assessee and the observations of the learned PCIT is extracted as under: “3. In view of the above, a notice for hearing in respect of Revision proceedings u/s 263 of the Income tax Act 1961 in A.Y.2013-14 dated 11.03.2021 was issued and the assessee was given an opportunity of being heard on 19.03.2021 at 12.10 PM. The assessee submitted his response electronically, stating as under: a) Off Market purchase of shares is not illegal. The said proposition is affirmed by the Hon ‘ble Mumbai High Court in the case of Mukesh Ratilal Marolia upheld by the Apex Court. b) The transaction of purchase was off market value while the sale transaction was only through online medium of stock exchange and payments were made only through account payee cheques and reflected in the books of accounts. c) Although various investigation were carried out by different agencies, there is no evidence against the assessee to hold that the assessee was a beneficiaiy to the modus operandi adopted by different entries/brokers/entry operators d) No evidence to prove that there is any allegation in of SEBI and or the enquiry report of Investigation Wing to the effect that the Assessee or his broker was party to the price rigging or manipulation of price to BSE ::6 :: I.T.A. Nos.307 to 310/Chny/2021 e) There is no direct evidence to hold that the assessee introduced its own unaccounted money by way of bogus LTCG. In the absence of the same disallowance cannot be made as against the assessee. Assessee places reliance of judgment of Delhi High Court in the case of PCIT Vs Laxman Industrial Resources. f) The Assessee was a registered share holder of the company which remains undisputed by the department. Therefore, the genuinity of the holding cannot be disputed. g) The period of holding of the said shares and the fact that the Assessee has sold the shares after holding the same for a period exceeding 36 months would itself vindicate the stand that the transaction was genuine. h) The Assessee has furnished all evidences in support of the claim that it earned LTCG on transactions of his investment in shares. The purchase of shares has been accepted by the department in the earlier years. i) The purchase of shares and the sale of shares were also reflected in Demat account statement. The sale of shares suffered STT, Brokerage etc. In the facts and circumstances of the case, it cannot be held that the transactions were bogus. j) The assessee has furnished all evidences in support of the genuineness of the transaction based on which the AO has accepted the assessee claim. It is not enough to show circumstances which might create suspicion based on which an assessment can be revise. k) The Assessment order should not be revised merely on the basis of General Investigation carried on by the Investigation ::7 :: I.T.A. Nos.307 to 310/Chny/2021 Wing wherein these persons accepted to have provided accommodation entries of various natures including L TCG to different persons other than the assessee. Assessee places reliance of Judgment of the Delhi High Court in the case of PCIT Vs Laxman Industrial Resources. 4. I have carefully considered the facts of the case and the submission made by the assessee. I have also gone through the details furnished by the assessee. It is ascertained from the submissions of the assessee that the assessee has purchased 250 shares of Dignity Suppliers Private Limited on 08 10 2009 On amalgamation of Dignity Suppliers P Ltd with Twenty First Century the assessee has got 9500 shares of M/s Twenty First Century (India) Ltd on 04062010 and the purchase cost shown by the assessee was Rs 1,00 000!- (Purchase cost Rs 10 52) The assessee sold the said shares during the F Y 2012-13 the shares were sold for Rs 31 01 256 /-(sold Rs 320 per share approx) This itself proved that the shares are penny stock only Besides the assessment was reopened for the reasons that information received from the Investigation wing of Income-tax Department about various beneficiaries who have taken accommodation entries in the form of Long Term Capital Gain/Short Term Capital Gain in the scrip of twenty First Century (India) Limited’ listed in Calcutta Stock Exchange It has been established that Twenty First Century (India ‘ Limited is a paper/Shell/bogus company and the directors known are entry operators in Kolkata It is also noticed that in the Penny Stock issue the Jurisdictional High Court passed the following orders in favour of Revenue: A. Tarakumari vs. ITO [TCA. No. 128 of 2019 dated 11.02.2019] ::8 :: I.T.A. Nos.307 to 310/Chny/2021 B. The CIT vs. Mrs. Manish D. Jam HUF in [TCA No. 223/2020 dated 16.12.2020] 4.1 There is no material or evidence on record to show that the Assessing Officer indeed applied his mind and came to a judicious conclusion in respect of the issues raised in show cause notice, which is clear from the discussion made in the order. He has passed the order in undue haste without calling for the required details and without applying mind to relevant material. The Assessing Officer has passed the order without conducting necessary investigation which he was prima- facie required to do making the order an erroneous assessment warranting revision u/s 263. Reference in this regard may be made to the decision of Hon’ble ITAT (SB), Chennai, in the case of Rajalakshmi Mills Ltd Vs ITO 313 ITR(AT)182, wherein it was held that Commissioner of Income tax can regard order as erroneous on the ground that Assessing Officer should have made further enquiries before accepting statement made by assessee in his return. Passing an order without applying mind to relevant facts would certainly be an erroneous assessment requiring exercise of Jurisdiction u/s263. This view is supported by the decision of Hon’ble Guhati High Court in CIT Vs Jawahar Bhattacharjee 341 ITR 434 (Gau((FB). In 41 ITR 286 (Ker), it was held that when AO passed a cryptic order which does not contain details and claims were accepted without enquiry, the assessment order was erroneous and order u/s 263 was justified. In case of Supercloth, 99 lTD 300 (Chn), it was held that lack of enquiry by AO was sufficient to invoke revisionary jurisdiction u/s 263. In case of Rampyari Devi 67 ITR 84 (SC), it was held that accepting the issue without conduction enquiry is valid ground for invoking proceedings u/s 263. In case of the assessee, the Assessing Officer has neither applied her ::9 :: I.T.A. Nos.307 to 310/Chny/2021 mind nor made any enquiry called for all required details to come to a proper conclusion, in fact, many of the explanation given by the assessee during the present proceedings were never put forth during the assessment proceedings. But the Assessing Officer completed the assessment without applying mind to the relevant facts and without causing necessary enquiry. Since twin conditions of the order being erroneous and also being prejudicial to the interests of revenue are satisfied revisionary proceedings u/s 263 of the Act have been rightly initiated 5 Thus, the conditions for invoking revisional jurisdiction u/s 263 of the Act are satisfied and I hold that the Assessment Order dated 30 05 2018 passed u/s 143(3) r.w.s 147 of the Act for the A Y 2013-14 is to be subjected to revision u/s 263 Hence the Assessment Order is hereby set aside with a direction to examine the aspect discussed in the body of the order (supra) and pass the fresh Assessment Order within the stipulated time after providing sufficient opportunities to the assessee The assessee has full liberty to present any material which was not submitted earlier before the Assessing Officer at the time of assessment proceedings 4. The learned Counsel of the Assessee vehemently argued and mentioned that this particular issue was already verified and discussed in the order sheet by ld AO. So the assessment order cannot be said as an erroneous order. 5. The learned CIT-DR vehemently argued and submitted a written submission. As per his argument, the learned ::10 :: I.T.A. Nos.307 to 310/Chny/2021 Assessing Officer did not issue any notice u/s.143(2) of the Act nor u/s.142(1) of the Act for processing of the assessment u/s.143(3) / U/s.147 of the Act. He prepared a chart for all the three years and submitted along with the written submission which is kept in the records. The chart is inserted herewith, as under: Name Tarun Kundanmal [HUF] A.Y. 2013-14 Vinod Kumar Kundanmal [HUF] A.Y.2012-13 Vinod Kumar Kundanmal A.Y. 2013-14 Date of recording of reasons 19.03.2018 19.03.2018 19.03.2018 Notice u/s.148 27.03.2018 27.03.2018 27.03.2018 Notice u/s.143(2) NIL NIL NIL Notice u/s.142(1) NIL NIL NIL Hearings dates recorded 11.04.2018 08.05.2018 30.05.2018 11.04.2018 08.05.2018 30.05.2018 11.04.2018 08.05.2018 30.05.2018 Date of filing of return 29.05.2018 29.05.2018 29.05.2018 Date of Assessment Order 30.05.2018 30.05.2018 30.05.2018 Date of Demand Notice 31.05.2018 31.05.2018 31.05.2018 5.1 The learned CIT-DR also produced reasons recorded by the learned Assessing Officer extracted as under: 11. * Reasons for the belief that income has escaped assessment Information has been received from the Investigation Wing of the Income Tax Department that the Assessee has taken accommodation entries in the form of Long Term Capital Gains to the tune of Rs.31,06,070/- in the scrip of Twenty First Century (India) Limited listed in Calcutta Stock Exchange (CSE). It has been established that Twenty First Century (India) Limited is a paper / shell / bogus company ::11 :: I.T.A. Nos.307 to 310/Chny/2021 and the Directors of the company are known as entry operators in Kolkata. Hence, I have a reason to believe that the income of Rs.31,06,070/- which is chargeable to Income Tax, has escaped assessment for the Assessment Year 2013-14 within the meaning of Section 147 of the Income Tax Act, 1961. 5.2 He argued that the assessment order is passed in a very casual manner. 5.3. The ld Counsel further stated that the completion of assessment without issuing the notice Under Section 143(2) of the Act would be caused the entire assessment order non-est. So, the order Under Section 263 has no leg to stand. 6. We have given our thoughtful consideration to the rival submissions. The sole issue that arises for our adjudication in the facts of the instant case is as to whether the learned PCIT has rightly exercised his revision jurisdiction vested u/s.263 of the Act of not? There is no dispute that the learned Assessing Officer has accepted the Assessee’s Long Term Capital Gains [LTCG] as genuine. As per his discussions in the assessment order, he had verified all necessary facts during the course of scrutiny. This fact very much emerges from the body of the assessment order where the Assessee’s had discussed in detail. ::12 :: I.T.A. Nos.307 to 310/Chny/2021 The learned Counsel of the Assessee referred to the judgments of the Hon’ble Madras High Court in the case of Virtusa Consulting Services (P) Limited vs. Deputy Commissioner of Income Tax, Chennai reported in [2021] 128 Taxmann.com 22 (Madras), wherein the Assessing Officer after conducting an enquiry had called for the documents and records from the Assessee and after considering such documents as submitted by the Assessee had discussed the case with the Assessee and had allowed the claim of the Assessee. In that case, the invocation of Section 263 of the Act was unjustified. In the order passed u/s.263 of the Act, the learned PCIT specially pointed out that the value of the shares was mechanically increased and this particular share of the Twenty First Century (India) Limited listed in the Calcutta Stock Exchange [CSE] relates to paper / shell / bogus company and the Directors of the company known are entry operators in Kolkata. But it is not to be observed that this particular opinion whether it is related to the Assessee or not? The information was gathered from the Investigation Department. But this particular information as to whether it is related to the Assessee or not was not clearly discussed in the order u/s. 263 of the Act. A generalized believe is formed to formation issuanece of notice under the Act. ::13 :: I.T.A. Nos.307 to 310/Chny/2021 The Hon’ble Andhra Pradesh High Court in the case of Spectra Shares and Scrips Pvt. Ltd. V CIT (AP) 354 ITR 35 had considered a number of judgments on this issue of exercise of jurisdiction u/s 263 of the Act by the Principal Commissioner of Income Tax and culled the principles laid down in the judgments as below : “24. In Malabar Industrial Co.Ltd. ( 2 Supra), the Supreme Court held that a bare reading of Sec.263 makes it clear that the prerequisite for the exercise of jurisdiction by the Commissioner suomotu under it, is the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent – if the order of the Income Tax Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous but it is prejudicial to the Revenue – recourse cannot be had to Sec.263 (1) of the Act. It also held at pg-88 as follows: "The phrase "prejudicial to the interests of the Revenue" has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law. It has been held by this Court that where a sum not earned by a person is assessed as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the Revenue. RampyarideviSaraogi v. CIT (1968) 67 ITR 84 (SC) and in Smt. Tara Devi Aggarwal V. CIT (1973) 88 ITR 323 (SC)". 25. In Max India Ltd. (3 Supra), reiterated the view in Malabar Industrial Co.Ltd. (2 Supra) and observed that every loss of Revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income Tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue; or where two views are possible and the Income Tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income Tax Officer is unsustainable in law. On the facts of that case, Sec.80HHC(3) as it then stood was interpreted by the Assessing Officer but the Revenue contended that in view of the 2005 Amendment which is clarificatory and retrospective in nature, the view of the Assessing Officer was unsustainable in law and the Commissioner was correct in invoking Sec.263. But the Supreme Court rejected the said contention and held that when the Commissioner passed his order ::14 :: I.T.A. Nos.307 to 310/Chny/2021 disagreeing with the view of the Assessing Officer, there were two views on the word "profits" in that section; that the said section was amended eleven times; that different views existed on the day when the Commissioner passed his order; that the mechanics of the section had become so complicated over the years that two views were inherently possible; and therefore, the subsequent amendment in 2005 even though retrospective will not attract the provision of Sec.263. 26. In Vikas Polymers (4 Supra), the Delhi High Court held that the power of suomotu revision exercisable by the Commissioner under the provisions of Sec.263 is supervisory in nature; that an "erroneous judgment" means one which is not in accordance with law; that if an Income Tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as "erroneous" by the Commissioner simply because, according to him, the order should have been written differently or more elaborately; that the section does not visualize the substitution of the judgment of the Commissioner for that of the Income Tax Officer, who passed the order unless the decision is not in accordance with the law; that to invoke suomotu revisional powers to reopen a concluded assessment under Sec.263, the Commissioner must give reasons; that a bare reiteration by him that the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show that the enhancement or modification of the assessment or cancellation of the assessment or directions issued for a fresh assessment were called for, and must irresistibly lead to the conclusion that the order of the Income Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons in respect of each and every disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny by the Assessing Officer, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer called for interference and revision. 27. In Sunbeam Auto Ltd.( 5 Supra), the Delhi High Court held that the Assessing Officer in the assessment order is not required to give a detailed reason in respect of each and every item of deduction, etc.; that whether there was application of mind before allowing the expenditure in question has to be seen; that if there was an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Sec.263 merely because he has a different opinion in the matter; that it is only in cases of lack of inquiry that such a course of action would be open; that an assessment order made by the Income Tax Officer cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately; there must be some prima facie material on record to show that the tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a lesser tax than what was just, has been imposed. In that case, the Delhi High Court held that the Commissioner in the exercise of revisional power could not have objected to the finding of the Assessing Officer that expenditure on tools and dies by the assessee, a manufacturer of Car parts, is revenue expenditure where the said claim was allowed by the latter on being satisfied with the explanation of the ::15 :: I.T.A. Nos.307 to 310/Chny/2021 assessee and where the same accounting practice followed by the assessee for number of years with the approval of the Income Tax Authorities. It held that the Assessing Officer had called for explanation on the very item from the assessee and the assessee had furnished its explanation. Merely because the Assessing Officer in his order did not make an elaborate discussion in that regard, his order cannot be termed as erroneous. The opinion of the Assessing Officer is one of the possible views and there was no material before the Commissioner to vary that opinion and ask for fresh inquiry. 28. In Gabriel India Ltd. (6 Supra), the Bombay High Court held that a consideration of the Commissioner as to whether an order is erroneous in so far as it is prejudicial to the interests of the Revenue, must be based on materials on the record of the proceedings called for by him. If there are no materials on record on the basis of which it can be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. It held that the Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded; that the department cannot be permitted to begin fresh litigation because of new views they entertain on facts or new versions which they present as to what should be the inference or proper inference either of the facts disclosed or the weight of the circumstance; that if this is permitted, litigation would have no end except when legal ingenuity is exhausted; that to do so is to divide one argument into two and multiply the litigation. It held that cases may be visualized where the Income Tax Officer while making an assessment examines the accounts, makes inquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the account or by making some estimate himself; that the Commissioner, on perusal of the record, may be of the opinion that the estimate made by the Officer concerned was on the lower side and left to the Commissioner he would have estimated the income at a figure higher than the one determined by the Income Tax Officer; but that would not vest the Commissioner with power to reexamine the accounts and determine the income himself at a higher figure; there must be material available on the record called for by the Commissioner to satisfy him prima facie that the order is both erroneous and prejudicial to the interests of the Revenue. Otherwise, it would amount to giving unbridled and arbitrary power to the revising authority to initiate proceedings for revision in every case and start re-examination and fresh inquiry in matters which have already been concluded under law. 29. In M.S. Raju(15 Supra), this Court has held that the power of the Commissioner under Sec.263 (1) is not limited only to the material which was available before the Assessing Officer and, in order to protect the interests of the Revenue, the Commissioner is entitled to examine any other records which are available at the time of examination by him and to take into consideration even those events which arose subsequent to the order of assessment. 30. In Rampyari Devi Saraogi(21 Supra), the Commissioner in exercise of revisional powers cancelled assessee’s assessment for the years 1952-1953 to 1960-61 because he found that the income tax officer was not justified in accepting the initial capital, the gift received and sale of jewellery, the income from business etc., without any enquiry or evidence whatsoever . He directed the income tax officer to do fresh assessment after making proper enquiry and investigation in regard to the jurisdiction. The assessee complained before the ::16 :: I.T.A. Nos.307 to 310/Chny/2021 Supreme Court that no fair or reasonable opportunity was given to her. The Supreme Court held that there was ample material to show that the income tax officer made the assessments in undue hurry; that he had passed a short stereo typed assessment order for each assessment year; that on the face of the record, the orders were pre-judicial to the interest of the Revenue; and no prejudice was caused to the assessee on account of failure of the Commissioner to indicate the results of the enquiry made by him, as she would have a full opportunity for showing to the income tax officer whether he had jurisdiction or not and whether the income tax assessed in the assessment years which were originally passed were correct or not" 31. From the above decisions, the following principles as to exercise of jurisdiction by the Commissioner u/s.263 of the Act can be culled out: a) The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If erroneous but is not prejudicial to the Revenue or if it is not erroneous but it is prejudicial to the Revenue – recourse cannot be had to Sec.263 (1) of the Act. b) Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income- tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law. c) To invoke suomotu revisional powers to reopen a concluded assessment under Sec.263, the Commissioner must give reasons; that a bare reiteration by him that the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show that the and must irresistibly lead to the conclusion that the order of the Income Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons in respect of each and every disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny by the Assessing Officer, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer called for interference and revision. e) The Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded; that the department cannot be permitted to begin fresh litigation because of new views they entertain on facts or new circumstance; that if this is permitted, litigation would have no end except when legal ingenuity is exhausted f) Whether there was application of mind before allowing the expenditure in question has to be seen; that if there was an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Sec.263 merely because he has a different opinion in the matter; that it is only in cases of lack of inquiry that such a course of action would be open; that an assessment ::17 :: I.T.A. Nos.307 to 310/Chny/2021 order made by the Income Tax Officer cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately; there must be some prima facie material on record to show that the tax which was lawfully eligible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a lesser tax than what was just, has been imposed. g) The power of the Commissioner under Sec.263 (1) is not Commissioner is entitled to examine any other records which are available at the time of examination by him and to take into consideration even those events which arose subsequent to the order of assessment. The learned Assessing Officer, after taking all the documents in hand had completed the assessment of the Assessee. Ld Assessing Officer accepted the Long Term Capital Gains [LTCG] from the same company. It is made clear that we have dealt with the instance of the learned Assessing Officer himself for having accepted the Assessee’s Long Term Capital Gains after examining the relevant facts of the case. We therefore do not deem it appropriate to restore the very issue back to him for yet another round of assessment. The Assessee’s sole substantive grievance as well as the lead appeal in I.T.A. No.307/Chny/2021 is accepted therefore. 7. In the result, the appeals of the Assessees in I.T.A Nos.:307 to 310/Chny/2021 are allowed. Order pronounced in the court on 15 th June,2022 at Chennai. Sd/- Sd/- (जीमंजूनाथा) (G. MANJUNATHA) (अिनके श बनज ) (ANIKESH BANERJEE) ::18 :: I.T.A. Nos.307 to 310/Chny/2021 लेखा सद /ACCOUNTANT MEMBER ाियकसद एवं /JUDICIAL MEMBER चे ई /Chennai, िदनांक/Dated, the 15 th June, 2022 IA, Sr. PS आदेशकी#ितिलिपअ&ेिषत/Copy to: 1. अपीलाथ /Appellant 2. #(थ /Respondent 3. आयकरआयु+ (अपील)/CIT(A) 4. आयकरआयु+/CIT 5. िवभागीय#ितिनिध/DR 6. गाड0फाईल/GF