Mrs. Shumana Sen, Noida V. DCIT, New Delhi

ITA 3282/DEL/2015

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6250 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 22-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPIKA MITTAL
• Assessee Lawyers: SHUMANA SEN
• Keywords: Unexplained expenditure; Opportunity of being heard; Principle of natural justice; Question of law; Difference of opinion; Corroborative evidences; Assessment record; Change of opinion; Revenue expenditure; Reassessment proceedings; Capital expenditure; TDS; Set aside
• Section: 69C; 143(3); 54F; 133(6); 64; 147; 131; 148; 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI C BEN CH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI KULDIP SINGH, JUDICIAL MEM BER ITA NO. 3281/DEL/2015 [A.Y 2005-06] ITA NO. 3282/DEL/2015 [A.Y 2006-07] ITA NO. 3283/DEL/2015 [A.Y 2007-08] ITA NO. 3284/DEL/2015 [A.Y 2008-09] SMT. SHUMANA SEN VS. THE D.C.I.T. B 602, PLOT NO. F-2 CIRCLE 64(1) CRESCENT SECTOR 50, NOIDA [UP] NEW DELHI PAN: AMQPS 5036 G (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI SHUMANA S EN, ASSESSEE DEPARTMENT BY : SMT. DEEPIKA MITT AL, CIT- DR DATE OF HEARING : 26.09.2019 DATE OF PRONOUNCEMENT : 11.10.2019 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THE ABOVE FOUR APPEALS BY THE ASSESSEE ARE PREFERRE D AGAINST THE CONSOLIDATED ORDER OF THE PRINCIPAL COMMISSIONER OF INCOME TAX [APPEALS] - 22, NEW DELHI DATED 30.03.2015 PERTAINI NG TO ASSESSMENT YEARS 2005-06 TO 2008-09. 2 2. THE COMMON GRIEVANCE IN ALL THESE APPEALS RELATE S TO THE CHALLENGE OF ASSUMPTION OF JURISDICTION U/S 263 OF THE INCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT FOR SHOR T], STRONGLY CONTENDING THAT THE ORDER PASSED BY THE ASSESSING O FFICER IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE RE VENUE. 3. SINCE THE PCIT HAS ASSUMED JURISDICTION U/S 263 OF THE ACT FOR ALL THE FOUR A.YS UNDER CONSIDERATION BY A CONSOLIDATED ORDER AND SINCE IN ALL THESE APPEALS THE ASSESSEE HAS CHALLENGED THE A SSUMPTION OF JURISDICTION, THESE APPEALS ARE BEING DISPOSED OFF BY A COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 4. FIRST OF ALL, WE WOULD DISPOSE OF APPLICATIONS D ATED 04.02.2019 & 13.02.2019 MOVED BY ONE SHRI S.K. SRIVASTAVA, CIT ( A)-I, NODIA (HEREINAFTER REFERRED TO AS APPLICANT) TO BE IMPL EADED AS NECESSARY PARTY IN THESE APPEALS. DURING APPELLATE PROCEEDIN GS TO DISPOSE OFF THESE APPLICATIONS, INTERIM ORDER DATED 30.05.2019 WAS PASSED BY THE BENCH FRAMING FOLLOWING QUESTION TO BE DECIDED BEFO RE PROCEEDING WITH THE PRESENT APPEALS :- 3 AS TO WHETHER PRESENCE OF APPLICANT, SHRI S.K. SRI VASTAVA, IN THE PRESENT APPEALS IS NECESSARY FOR EFFECTIVE AND COMPLETE ADJUDICATION OF THE CONTROVERSY AT HAND CHALLENGING THE IMPUGNED ORDER OF PR. CIT U/S 263 OF THE INCOME-TAX ACT, 1961? 5. TO DECIDE THE AFORESAID QUESTION, RESPONDENT/REV ENUE, ALREADY BEING REPRESENTED THROUGH LD. CIT DR, SHRI J.K. MIS HRA TO DEFEND THE INTEREST OF THE REVENUE AS WELL AS APPELLANT WERE C ALLED UPON TO FILE PARAWISE REPLY TO THE APPLICATIONS WHO HAVE FILED T HE SAME WHICH IS PART AND PARCEL OF THE JUDICIAL FILE. 6. RESPONDENT/REVENUE BY FILING REPLY OPPOSED THE I NTERVENING APPLICATIONS MOVED BY THE INTERVENER ON THE GROUNDS INTER ALIA THAT THE APPLICANT BEING A THIRD PARTY HAS NO LOCUS STANDI T O BE AN INTERVENER IN THE PRESENT APPEALS; THAT EVEN HONBLE HIGH COURT VIDE ORDER DATED 01.03.2013 IN CONT.APP.(C) 1/2013 AND CM NO.854/201 3 (STAY) IN THE CASE OF S.K. SRIVASTAVA VS. SHUMANA SEN & ANR. A CONNECTING MATTER HAS ORDERED THAT, NO COMMUNICATION ADDRESSED BY THE PETITIONER QUA ANY ISSUE SHOULD BE GIVEN ANY COGNIZ ANCE OR TO BE TAKEN INTO CONSIDERATION ; THAT THE INTERVENER IS NOT AN AFFECTED PARTY IN A NY MANNER AS THE APPEALS BEFORE THE TRIBUNAL ARE BETWE EN THE DEPARTMENT AND THE APPELLANT ONLY. THE APPELLANT A LSO OPPOSED THE 4 APPLICATION MOVED BY THE INTERVENER ON THE ALMOST I DENTICAL GROUNDS RAISED BY THE REVENUE. 7. BARE PERUSAL OF THE AVERMENTS MADE IN THE APPLIC ATIONS AND REPLY FILED THERETO AND THE FACTS AND CIRCUMSTANCES OF TH E CASE APPARENTLY PROVE THAT EXCEPT FOR WRITING A DO LETTER/COMPLAINT BY THE APPLICANT BEING CIT (OSD) ADDRESSED TO CIT-XIV, NEW DELHI ALL EGING THAT THE ASSESSEE HAD INCURRED EXPENDITURE ON FOREIGN TRAVEL S ALONG WITH HIS FAMILY THAT WAS IN EXCESS OF RS.3 CRORES, ON THE BA SIS OF WHICH PROCEEDINGS U/S 263 WAS INITIATED, THE APPLICANT HA S NO LOCUS STANDI WHATSOEVER TO BE A PARTY IN THE PRESENT APPEALS. M OREOVER, THE REVENUE DEPARTMENT HAS ALREADY APPOINTED SHRI J.K. MISHRA, CIT DR TO PROTECT THE INTEREST OF THE REVENUE. IN THESE CIRC UMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT WHEN PRESENT LIS IS BETWEEN SHUMANA SEN, APPELLANT AND THE REVENUE DEPARTMENT/ RESPONDENT, T HE APPLICANT BEING A THIRD PARTY HAS NO INTEREST WHATSOEVER TO B E INTERVENER IN THE PRESENT APPEALS. EVEN OTHERWISE ALSO, APPELLANT, B EING DOMINUS LITUS (MASTER) OF THE PRESENT APPEALS CANNOT BE COMPELLED TO LITIG ATE AGAINST THE THIRD PARTY WHO IS NEITHER A NECESSARY PARTY NO R HIS PRESENT IS REQUIRED FOR EFFECTIVE AND COMPLETE ADJUDICATION OF THE CONTROVERSY AT HAND. 5 8. SO, WITHOUT ENTERING INTO THE MERITS OF AVERMENT S/ALLEGATIONS MADE IN THE INTERVENING APPLICATION, WE ARE OF THE CONSIDERED VIEW THAT SHRI S.K. SRIVASTAVA, APPLICANT IS NOT A NECES SARY PARTY NOR HIS PRESENCE IS REQUIRED FOR EFFECTIVE AND COMPLETE ADJ UDICATION OF THE CONTROVERSY AT HAND, HENCE APPLICATION UNDER CONSID ERATION IS HEREBY DISMISSED WITHOUT PREJUDICE TO THE MERITS OF THIS C ASE. 9. HAVING SAID ALL THAT, WE WILL NOW ADDRESS THE PR ESENT APPEAL. 10. THE BASIS FOR THE ENTIRE ASSESSMENT PROCEEDINGS AND ASSUMPTION OF JURISDICTION BY THE PCIT ARE BASED UPON THE COMP LAINTS MADE BY SHRI S.K. SRIVASTAVA. IT WOULD NOT BE OUT OF PLACE TO R EFER TO THE DIRECTIONS OF THE HON'BLE HIGH COURT OF DELHI ON 01.03.2013 IN AN INTERIM ORDER IN APPEAL [C] NO. 1 OF 2013 WHEREIN THE HON'BLE HIGH C OURT HAS OBSERVED WITH REGARD TO SHRI S.K. SRIVASTAVA AS UNDER: NO COMMUNICATION ADDRESSED BY THE PETITIONERS QUA A NY ISSUE SHOULD BE GIVEN ANY COGNIZANCE OR TAKEN INTO CONSID ERATION AND FURTHER THE PETITIONER SHOULD NOT BE ENTRUSTED ANY WORK IN THE DEPARTMENT AS IT MAY AFFECT THE PUBLIC AT LARGE.... ....... 6 11. IN SPITE OF THESE BINDING OBSERVATIONS OF THE H ON'BLE HIGH COURT OF DELHI, THE PCIT HAS ACTED UPON IN ASSUMING THE JURI SDICTION U/S 263 OF THE ACT. BE THAT AS IT MAY, ASSUMING THE JURISDICT ION U/S 263 OF THE ACT, THE PCIT ISSUED SHOW CAUSE NOTICE U/S 263 OF T HE ACT FOR A.YS 2005-06, 2006-07 AND 2008-09. THE SUM AND SUBSTANC E OF THE NOTICES FOR EACH A.Y IS THE SAME AND IT WOULD SUFFICE TO RE FER TO THE SHOW CAUSE NOTICE FOR A.Y 2006-07 WHICH READS AS UNDER: SHOW CAUSE NOTICE U/S 263 OF I.T. ACT (FOR A.Y. 2006-07) PURSUANT TO COMPLETION OF ASSESSMENT FOR A.Y. 2006 -07 ON 31.03.2013, IT WAS REPORTED TO THIS OFFICE THAT THE RE HAS BEEN SERIOUS ERRORS IN FRAMING THE ASSESSMENT AND THOSE ERRORS HAVE CAUSED SUBSTANTIAL PREJUDICE TO THE INTEREST O F REVENUE. IN VIEW OF THE SPECIFIC ISSUES OF LAW AND FACTS INV OLVED, A FACTUAL REPORT WAS RECEIVED FROM THE ASSESSING OFFI CER (A.O.) THROUGH THE RANGE IN-CHARGE AND ON THE SAME BEING RECEIVED THE RECORDS OF ASSESSMENT FROM THE ASSESSI NG OFFICER WERE ALSO CALLED FOR AND HAS BEEN EXAMINED. THE CONCERNED A.O. [DCIT CIRCLE 40 (1)], NEW DELHI AND ADDL.CIT, RANGE- 40, NEW DELHI IN THEIR FACTUAL REP ORT AS SUBMITTED TO UNDERSIGNED, HAVE RAISED FOLLOWING ISS UES IN THE MATTER OF ASSESSMENT COMPLETED BY THE ASSESSMENT OR DER DATED 31.3.13 PASSED U/S 147/143(3) IN YOUR CASE FO R A Y 7 2006-07 WHICH REQUIRES CONSIDERATION IN TERMS OF EX TANT PROVISIONS OF LAW: 1. 'THAT THE AO HAS MADE ASSESSMENTS U/S 148/143(3) FO R A.Y.2006-07 BY ACCEPTING THE RETURNED INCOME WITHOU T CONDUCTING PROPER ENQUIRIES AND WITHOUT RAISING ANY DEMAND CONTRARY TO FACTS AND RECORDS. 2. THAT THE MAIN ISSUE OF EXPENDITURE INCURRED DUE TO FOREIGN VISITS IN THE ASSESSMENT YEARS 2005 -06 TO 2008-09 BY YOU WAS ACCEPTED BY THE A.O. IN THE A.Y. 2005-06 TO 200 8-09, BUT WITHOUT MAKING PROPER ENQUIRIES REGARDING YOUR INVOLVEMENT IN FUNDING THESE FOREIGN VISITS SINCE Y OU BY YOURSELF HAS FILED AN AFFIDAVIT BEFORE THE HON'BLE HIGH COURT OF DELHI AS WIFE OF THE ASSESSEE SHRI ABHISAR SHARMA (PAN AIGPS3840N) BEFORE THE HON'BLE HIGH COURT OF DELHI IN WRIT PETITION (CIVIL) NO. 1373 OF 2011 STATING THAT A YEARLY VACATION ABROAD WITH FAMILY W AS PART OF THE SALARY PACKAGE OF SHRI ABHISAR SHARMA FROM T HE EMPLOYER M/S NDTV LTD. AND SIMILAR PERQUISITES ARE ALSO GIVEN TO OTHER EMPLOYEES OF NDTV FROM TIME TO TIME AND IS PART OF THEIR SALARY PACKAGE. HOWEVER TO THE CONTRA RY IN THE ASSESSMENT ORDER OF YOUR HUSBAND SHRI ABHISAR SHARMA FOR THE A.Y. 2006-07 DATED 28-03-2014 U/S 147/143(3) AN ADDITION ON ACCOUNT OF UNDISCLOSED IN COME ARISING OUT OF UNDISCLOSED EXPENDITURE U/S 69C OF T HE IT 8 ACT 1961 HAS BEEN MADE PROTECTIVELY IN THE HANDS OF SHRI ABHISAR SHARMA STATING FOR THE SAID ADDITION TO BE MADE SUBSTANTIVELY IN THE HANDS OF SHUMANA SEN IN A. Y. 2006- 07 ON THE GROUNDS THAT THE DOCUMENTARY EVIDENCE OF THE ACTUAL PAYMENTS, DETAILS OF TRAVELS TO COUNTRIES, D ATES AND FLIGHT NOS. OF DEPARTURE AND ARRIVAL, DETAILS OF EX PENSES INCURRED FOR STAY, BOARDING AND LODGING ETC. WERE N OT PRODUCED DURING THE COURSE OF ASSESSMENT PROCEEDING S. 3. THAT IT IS SEEN FROM THE ASSESSMENT ORDER OF SHRI A BHISAR SHARMA, YOUR SPOUSE IN A. Y.2006-07 MADE ON 28.03.2 014 THAT THE FOREIGN VISITS HAVE NEVER BEEN DENIED BY Y OU AND SINCE THERE IS NO EVIDENCE TO ESTABLISH THAT EXPEND ITURE INCURRED IN FOREIGN VISITS FOR THE SAID ASSESSMENT YEAR WAS ACTUALLY FINANCED BY YOUR HUSBAND SHRI ABHISAR SHAR MA WHO IS A SEPARATE ASSESSEE WITH DIFFERENT PAN, ADDI TION ON ACCOUNT OF UNEXPLAINED EXPENDITURE INCURRED DUE TO SUCH FOREIGN VISITS HAS BEEN MADE OF AN AMOUNT OF RS.7,5 1,786/- ON SUBSTANTIVE AND PROTECTIVE BASIS, SINCE NEITHER SHRI ABHISAR SHARMA NOR THE ASSESSEE HAS SUBMITTED ANY DETAILS WHETHER HE FUNDED FOREIGN TRIPS OF HIS WIFE OR NOT AS SUCH 50% OF SUCH AMOUNT OF RS.3,75,893/- HAS BEE N ASSESSED AS SUBSTANTIVE AND THE BALANCE AMOUNT OF R S. 3,75,893/- IS TO BE ASSESSED ON PROTECTIVE BASIS, A S RS.3,75,893/- IS TO BE SUBSTANTIVELY ASSESSED IN YO UR HANDS I.E. MS. SHUMANA SEN (PAN AMQPS5036G) WHO IS 9 SEPARATELY ASSESSED IN THE A.Y.2006-07 BY FOLLOWING LALJI HARIDAS VS ITO & ANR.(SC) 43 ITR 387. 4. THAT THE ASSESSMENT ORDER PASSED BY THE A.O. IN YOU R CASE FOR AY 2005-06 TO 2008-09 U/S 148/143(3) BY ACCEPTI NG THE RETURNED INCOME IN THESE A. YS. ARE ERRONEOUS A ND PREJUDICIAL TO THE INTEREST OF THE REVENUE AS THE A .O. HAS NOT CONDUCTED PROPER ENQUIRES IN YOUR CASE SUGGESTI NG FOR REMEDIAL ACTION U/S 263 OF THE I. T. ACT, 1961 AND IN VIEW OF THE FOLLOWING CASE LAWS: 1. RAMPYARI DEVI SARAOGI VS CIT(SC) 67 ITR 84 2. MALABAR INDUSTRIAL CO. LTD. VS CIT(SC) 243 ITR 83 3. SWARUP VEGETABLE PRODUCTS INDUSTRIES LTD. VS CIT(AI L) 187 ITR 412 4. CITVS EASTERN MEDIKIT LTD. (DEL) 58DTR 265; 337 IT R 56. ' IN VIEW OF THE ABOVE ERRORS REPORTED BY THE ASSESSI NG OFFICER AND ALSO THE ADDL. CIT, THE UNDERSIGNED HAS CALLED FOR AND EXAMINED THE RELEVANT ASSESSMENT RECORDS FO R AY 2005-06 TO 2008-09 IN YOUR CASE TO FIND OUT IF THE ASSESSMENT ORDER DATED 31.03.2013 AS PASSED FOR A.Y . 2006- 07 IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AND WHETHER UNDERSIGNED IS REQUIRED TO ASSUME JURISDICT ION U/S 263 OF THE I.T. ACT, 1961 QUA THE ASSESSMENT ORDER, DATED 31.03.2013FOR THE A. Y. 2006-07 AND DO THE NEEDFUL. 10 ON EXAMINING THE ASSESSMENT RECORDS IN YOUR CASE, I T IS FOUND: 1. THAT THE AO HAS MADE ASSESSMENTS U/S 148/143(3) FOR A. Y.2006-07 BY ACCEPTING THE RETURNED INCOME WITHO UT CONDUCTING PROPER ENQUIRIES AND WITHOUT APPRECIATIN G THE ISSUES RAISED IN ITS SATISFACTION FOR ASSUMING JURI SDICTION U/S 147/148 OF I.T. ACT, 1961 WAS CHALLENGED BY YOU BEF ORE HON'BLE DELHI HIGH COURT IN CWP NC-4022 OF 2012 TIT LED AS 'SHUMANA SEN VS. CIT DELHI XIV & ORS.' AND VIDE JUD GMENT DT. 19.10.2012 STOOD UPHELD BY HON'BLE DELHI HIGH COURT AND WAS ACCEPTED BY YOU AND HAS ATTAINED FINALITY AND UNLES S IT WAS PROVED BY YOU BEYOND REASONABLE DOUBTS THAT THE CON TENT AND ISSUES OF LAW INVOLVED IN THE SATISFACTION NOTE OF THE ASSESSING OFFICER WAS NOT BORNE OUT FROM RECORD, THE SAME COU LD NOT HAVE BEEN REJECTED AND AS ASSESSING OFFICER HAS NOT DONE THE SAME, THE ASSESSMENT ORDER DATED. 31.03.2013 IS BAD IN LAW AND IS ERRONEOUS AND HAS CAUSED PREJUDICE TO REVENU E. 2. THAT BASED UPON MATERIAL AVAILABLE ON RECORD THE ASSESSMENTS FOR A. Y. 2005-06 ONWARDS AND UPTO 2008 -09 WERE REOPENED ON THE CONCLUSION THAT AN INCOME EXCE EDING RS. 1,00,000/- IN EVERY ASSESSMENT YEAR HAD ESCAPED ASS ESSMENT AND THE SAME HAD ON BEING CHALLENGED BEFORE HON'BLE DELHI HIGH COURT BEEN UPHELD BY ORDER DT. 19.10.2012. THU S, IT WAS INCUMBENT UPON THE ASSESSING OFFICER TO INQUIRE INT O THE CORRECTNESS OR OTHERWISE OF THE GROUNDS BASED UPON WHICH 11 ASSESSMENTS WERE REOPENED. BUT THE ASSESSING OFFICE R HAS FAILED TO INQUIRE INTO THE CORRECTNESS OF THOSE GRO UNDS BASED UPON WHICH IT WAS CONCLUDED THAT AN INCOME EXCEEDIN G RS. 1,00,000/- HAD ESCAPED ASSESSMENT IN EACH OF THE AS SESSMENT YEARS. IN VIEW OF THAT THERE IS BOTH ERROR AND PREJ UDICE CAUSED TO THE REVENUE IN SO MUCH AS TAX ON INCOME I N EXCESS OF RS. 1,00,000/- IN EACH OF YEAR HAS ESCAPED TAX AND HENCE ASSESSMENTS ARE LIABLE TO BE SET ASIDE AND TO BE DO NE DE-NOVO AS PER LAW. 3. THAT THE COMPLAINANT IN YOUR CASE WAS NOT ALLOWED TO CROSS- EXAMINE YOU AND YOUR WITNESSES AS PER FACTS ON RECO RD DURING COURSE OF SUCH ASSESSMENT PROCEEDINGS WHILE ON THE OTHER HAND THE A. O. HAS RECORDED THE STATEMENT OF YOUR S POUSE SHRI ABHISAR SHARMA AT YOUR RESIDENCE BUT SIMILAR O PPORTUNITY WAS NOT OFFERED TO THE COMPLAINANT FOR CROSS EXAMIN ATION. 4. THAT IT IS SEEN FROM THE ASSESSMENT ORDER OF SHRI A BHISAR SHARMA, YOUR SPOUSE IN A. Y.2006-07 MADE ON 28.03.2 014 THAT AN ADDITION ON ACCOUNT OF UNEXPLAINED EXPENDITURE I NCURRED DUE TO SUCH FOREIGN VISITS HAS BEEN MADE OF AN AMOU NT OF RS. 7,51,786/- ON SUBSTANTIVE AND PROTECTIVE BASIS, SIN CE THE ASSESSEE HAS NOT SUBMITTED ANY DETAILS WHETHER HE F UNDED FOREIGN TRIPS OF HIS WIFE OR NOT AND AS SUCH 50% OF SUCH AMOUNT OF RS.3,75,893/- IS ASSESSED AS SUBSTANTIVE AND THE BALANCE AMOUNT OF RS. 3,75,893/- IS TO BE ASSESSED ON PROTECTIVE BASIS, AS RS. 3,75,893/- IS TO BE SUBSTA NTIVELY 12 ASSESSED IN THE HANDS OF ASSESSEE'S WIFE MS. SHUMAN A SEN (PAN AMQPS5036G) WHO IS SEPARATELY ASSESSED IN THE A.Y. 2006-07 BY FOLLOWING LALJI HARIDAS VS ITO & ANR.(SC ) 43 ITR 387. 5. THAT THE A.O. WAS NOT PROVIDED ANY EVIDENCE EITHER BY YOU OR THE WITNESSES EXAMINED BY YOU IN CASE OF ABHISAR SH ARMA YOUR SPOUSE TO SUPPORT YOUR CLAIM ABOUT RECEIPT OF PERQU ISITES FROM YOUR SPOUSE'S EMPLOYER/S BEING TAXABLE U/S 17(B)/FO RM 12BA AND RULE 26A/FORM-16 REGARDING YOUR FOREIGN TRIP TO EUROPE WITH YOUR SPOUSE AND OTHER MEMBERS OF FAMILY AT THE COST OF HIS EMPLOYER AND DESPITE NOT GETTING ANY EVIDENCE U /S 17 (2) AS SUCH, THE A.O. HAS MADE ADDITION AS 'UNDISCLOSED PE RQUISITES' PROVIDED BY M/S NDTV LTD. TO BE TAXED U/S 17 (2). T HERE IS NO EVIDENCE AVAILABLE EITHER FROM M/S NDTV LTD. OR FRO M YOU TO SUBSTANTIATE THAT THE 'UN-EXPLAINED PERQUISITE' AS HELD BY THE ASSESSING OFFICER TO BE TAXED AS SUCH BECAUSE THERE IS NO PROVISION IN THE IT. ACT, 1961 FOR TAXING 'UNEXPLAI NED PERQUISITE' AND THE UNACCOUNTED EXPENDITURE THAT WA S INCURRED BY YOU ON THE TRIPS ABROAD OF YOU AND YOUR FAMILY WAS TO BE DEALT WITH ONLY U/S 69C OF THE INCOME TAX ACT , 1961, WHICH WAS NOT DONE BY THE AO AND BECAUSE OF SUCH ER ROR ON THE PART OF ASSESSING OFFICER, ADDITION ON ACCOUNT OF 'UNEXPLAINED PERQUISITE' CANNOT BE SUSTAINED IN APP ELLATE PROCEEDINGS BEFORE THE APPELLATE AUTHORITIES. 13 6. THAT THERE WERE CONTRADICTION BETWEEN THE STAND TAK EN BY M/S NDTV LTD. ABOUT NATURE OF EXPENDITURE INCURRED BY THAT COMPANY ON YOUR FOREIGN TRIPS WITH FAMILY, YOUR OWN STAND ABOUT THE SAME WHERE YOU ONLY STATED THAT THE EXPEN DITURE INCURRED BY YOUR SPOUSE WAS THE COST TO THE COMPANY AND THE STAND TAKEN BY YOUR SPOUSE WHO ALSO TRAVELLED ABROA D WITH YOUR OTHER FAMILY MEMBERS, WAS PERSONAL TRIP AND IN VIEW OF THE CONTRADICTIONS IN THE STAND OF YOU AND YOUR WIT NESSES, YOUR STAND SHOULD NOT HAVE BEEN ACCEPTED BY THE ASS ESSING OFFICER WITHOUT WEIGHING THE RELATIVE MERIT OF VERS ION OF THE EACH OF THE WITNESSES EXAMINED IN THE CASE. 7. THAT, YOU FAILED TO BRING ANY EVIDENCE ON RECORD TH AT 'YEARLY VACATION ABROAD WITH FAMILY WAS PART OF SALARY PACK AGE OF SRI ABHISAR SHARMA AND SIMILAR PERQUISITES WERE ALLOWED TO OTHER EMPLOYEES AS WELL' AND M/S NDTV LTD. HAS CATEGORICA LLY DECLINED VIDE ITS LETTER DATED 25.02/12.03.2013 TO HAVE EVER PROVIDED ANY SUCH PERQUISITE *TO YOUR SPOUSE SRI AB HISAR SHARMA OR ANY OTHER EMPLOYEE AND HENCE THE CLAIM ON YOUR PART IN CWP NO.-1373 OF 2011 OF THE DELHI HIGH COUR T APPEARS TO BE INCORRECT. 8. THAT, EMPLOYMENT CONTRACT OF SRI ABHISAR SHARMA WAS NOT EXAMINED AND CONSIDERED BY THE A.O. , THAT THE PASS PORT WAS NEITHER PRODUCED BEFORE THE A. O. FOR VERIFICATION NOR EXAMINED BY HIM AND THE DETAILS OF EXPENDITURE INCU RRED IN COURSE OF FOREIGN VISITS WERE ALSO NOT EXAMINED. 14 THUS, CONSIDERING THE ABOVE, THE UNDERSIGNED IS OF THE OPINION THAT THE SAID ASSESSMENT ORDER DATED 31.3.2013 IN Y OUR CASE IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E AS SUCH SINCE, NO PROPER ENQUIRY HAS BEEN CONDUCTED AND NO PROPER LAW HAS BEEN INVOKED IN THE SAID ASSESSMENT ORDER AS THE AO FAILED TO CONDUCT PROPER ENQUIRY AND FAILED TO APPLY PROPER L AW LEADING TO SAID ASSESSMENT ORDER BEING AS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE, AND IN SUPPORT, THE FOL LOWING CASE LAWS ARE QUOTED FOR NECESSARY ACTION U/S 263 OF THE IT A CT, 1961 AGAINST THE ASSESSMENT ORDER DATED 31.3.13 PASSED U /S 147/143(3) FOR AY 2006-07 IN YOUR CASE. (1) RAMPYARI DEVI SARAOGI VS CIT(SC) 67ITR 84 (2) MALABAR INDUSTRIAL CO. LTD. VS CIT(SC) 243 ITR 83 (3) .SWARUP VEGETABLE PRODUCTS INDUSTRIES LTD. VS CIT(AIL) 187 ITR 412 1 (4) CIT VS EASTERN MEDIKIT LTD. (DEL) 58DTR 265; 33 7 ITR 56. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AND TH E LAW GOVERNING THE ISSUES INVOLVED UNDERSIGNED IS OF THE CONSIDERED VIEW THAT, PRIMA-FACIE, THE ASSESSMENT ORDER DATED 31.03.2013 AS PASSED BY THE ASSESSING OFFICER FOR A Y 2006- 07 IN YOUR CASE, APPEARS TO BE ERRONEOUS AND PREJUD ICIAL TO THE INTEREST OF REVENUE AND AS SUCH ASSUMPTION OF J URISDICTION U/S 263 OF THE ACT BY UNDERSIGNED IN THE CASE OF TH E SAID ASSESSMENT ORDER IS REQUIRED TO PROTECT THE INTERES T OF 15 REVENUE. YOU ARE HEREBY REQUIRED TO SHOW CAUSE AS TO WHY THE ACTION U/S 263 SHOULD NOT BE TAKEN AGAINST THE SAID ASSESS MENT ORDER DATED 31.3.13 IN YOUR CASE FOR A Y 2006-07. 12. IN A COMBINED REPLY, THE ASSESSEE REPLIED TO TH E SHOW CAUSE NOTICES STATING THAT THE ASSUMPTION OF JURISDICTION BY THE PCIT IS BAD IN LAW AS IT IS MERELY A CHANGE OF OPINION. THE ASSES SEE STRONGLY RELIED UPON THE JUDGMENT OF THE HON'BLE SUPREME COURT IN T HE CASE OF MALABAR INDUSTRIAL COMPANY LTD 243 ITR 83. 13. IN ITS REPLY, THE ASSESSEE FURTHER EXPLAINED TH E VERIFICATION DONE BY THE ASSESSING OFFICER DURING THE COURSE OF ASSES SMENT PROCEEDINGS AND BROUGHT TO THE NOTICE OF THE PCIT THAT ALL THE ALLEGATIONS MADE BY HIM HAVE ALREADY BEEN VERIFIED BY THE ASSESSING OFF ICER DURING THE ASSESSMENT PROCEEDINGS ITSELF. THEREFORE, BY ASSUM ING JURISDICTION, THE PCIT IS CHANGING THE OPINION OF THE ASSESSING O FFICER BY HIS OWN. 14. AFTER CONSIDERING THE DETAILS SUBMISSIONS AND O BJECTIONS RAISED BY THE ASSESSEE, THE PCIT HELD AS UNDER: 16 14. I HAVE CONSIDERED THE REPORTS OF THE A.O. AND THE ADDL. CIT, THE SUBMISSIONS OF THE ASSESSEE, MADE IN RESPO NSE TO THE NOTICES U/S 263 OF THE I.T. ACT, 1961, THE FACTS OF THE CASE VIS-A-VIS THE STATUTORY PROVISIONS U/S 263 OF THE I .T. ACT, THE JUDICIAL VIEWS TAKEN AND RULINGS GIVEN ON THE RELEV ANT ISSUES. ON EXAMINATION OF ASSESSMENT RECORDS FOR ASSESSMENT YEAR 2005-06 TO A.Y, 2008-09 IN THE CASE OF THE ASSESSEE AND ON PERUSAL OF REPORTS OF ASSESSING OFFICER & ADDITIONA L COMMISSIONER VIS-A-VIS REPLIES SUBMITTED BY THE ASS ESSEE, THE FOLLOWING NEW FACTS EMERGE WHICH HAVE NOT BEEN LOOK ED INTO, EXAMINED AND CONSIDERED BY THE A.O. IN THE ORDERS U NDER REVIEW : (14)(A) THE AO IN THE ASSESSEES CASE HAS MADE ASSESSMENTS U/S 148/143(3) FOR A.Y.S 2005- 06, 2006-07, 2007-08 & 2008-09, BY ACCEPTING THE RETURNED INCOME WITHOUT CONDUCTING PROPER ENQUIRIES AND WITHOUT APPRECIATIN G THE ISSUES RAISED IN THE SATISFACTION FOR ASSUMING JURI SDICTION U/S 147/148 OF I.T. ACT, 1961 WHICH WAS CHALLENGED BY T HE ASSESSEE BEFORE HON'BLE DELHI HIGH COURT IN CWP NO- 4022 OF 2012 TITLED AS 'SHUMANA SEN VS. CIT DELHI XIV & ORS ,' AND VIDE JUDGMENT DT. 19.10.2012 STOOD UPHELD BY HON'BL E DELHI HIGH COURT AND WAS ACCEPTED BY THE ASSESSEE AND HAS ATTAINED FINALITY AND UNLESS IT WAS PROVED BY THE A SSESSEE BEYOND REASONABLE DOUBTS THAT THE CONTENT AND ISSUE S OF LAW INVOLVED IN THE SATISFACTION NOTE OF THE ASSESSING OFFICER WAS 17 NOT BORNE OUT FROM RECORD, THE SAME COULD NOT HAVE BEEN REJECTED AND AS ASSESSING OFFICER HAS NOT DONE THE SAME, THE ASSESSMENT ORDERS DATED. 31.03.2013 ARE BAD IN-LAW AND ERRONEOUS AND HAVE CAUSED PREJUDICE TO REVENUE. 14(B) BASED UPON MATERIAL AVAILABLE ON RECORD, THE ASSESSMENTS FOR A.Y.S 2005-06, 2006- 07, 2007-08 & 2008- 09 WERE REOPENED ON THE CONCLUSION THAT AN INCOME E XCEEDING RS. 1,00,000/- IN EVERY ASSESSMENT YEAR HAD ESCAPED ASSESSMENT AND THE SAME HAD, ON BEING CHALLENGED BE FORE HON'BLE DELHI HIGH COURT, BEEN UPHELD BY ORDER DT. 19.10.2012. THUS, IT WAS INCUMBENT UPON THE ASSESSI NG OFFICER TO INQUIRE INTO THE CORRECTNESS OR OTHERWISE OF THE GROUNDS BASED UPON WHICH ASSESSMENTS WERE REOPENED. BUT THE ASSESSING OFFICER HAS FAILED TO INQUIRE INTO THE CO RRECTNESS OF THOSE GROUNDS BASED UPON WHICH IT WAS CONCLUDED THAT AN INCOME EXCEEDING RS. 1,00,000/- HAD ESCAPED ASSESSM ENT IN EACH OF THE ASSESSMENT YEARS. IN VIEW OF THE FACT T HAT THERE IS BOTH ERROR AND PREJUDICE CAUSED TO THE REVENUE I N SO MUCH AS TAX ON INCOME IN EXCESS OF RS. 1,00,000/- IN EAC H OF THE FOUR YEARS HAS ESCAPED TAX AND HENCE ASSESSMENTS AR E LIABLE TO BE SET ASIDE AND TO BE DONE DE-NOVO AS PER LAW. (14)(C) THE COMPLAINANT IN THE ASSESSEES CASE FOR A.Y.2005 - 06, 2006-07, 2007-08 & 2008- 09, WAS NOT ALLOWED TO CROSS- EXAMINE THE ASSESSEE AND HER WITNESSES AS PER FACTS ON 18 RECORD, DURING COURSE OF SUCH ASSESSMENT PROCEEDING S, WHILE ON THE OTHER HAND THE A.O. HAS RECORDED THE STATEME NT OF HER SPOUSE SHRI ABHISAR SHARMA BUT SIMILAR OPPORTUN ITY WAS NOT OFFERED TO THE COMPLAINANT FOR CROSS EXAMINATIO N. ( 14)(D) THERE WERE CONTRADICTIONS FOUND BETWEEN THE STAND TAKEN BY EMPLOYER OF ASSESSEES SPOUSE, M/'S NDTV L TD., ABOUT NATURE OF EXPENDITURE INCURRED BY THAT COMPAN Y ON ASSESSEES FOREIGN TRIPS WITH FAMILY, ASSESSEES OW N STAND ABOUT THE SAME, WHERE ASSESSEE HERSELF STATED THAT THE EXPENDITURE INCURRED BY HER SPOUSE WAS THE COST TO THE COMPANY AND THE STAND TAKEN BY ASSESSEES SPOUSE, WHO ALSO TRAVELLED ABROAD WITH OTHER FAMILY MEMBERS, THAT IT WAS A PERSONAL TRIP. IN VIEW OF THE CONTRADICTIONS IN THE STANDS TAKEN BY THE ASSESSEE AND HER WITNESSES, HER STAND SHOULD NOT HAVE BEEN ACCEPTED BY THE ASSESSING OFFICER WITHOUT WEIGHING THE RELATIVE MERIT OF VERSIONS OF THE EACH OF THE WITNESSES EXAMINED IN THE CASE. 14(E) THE ASSESSEE HAS FAILED TO BRING ANY EVIDENCE ON RE CORD THAT YEARLY VACATION ABROAD WITH FAMILY WAS PART OF THE SALARY PACKAGE OF HER SPOUSE, SRI ABHISAR SHARMA AND SIMIL AR PERQUISITES WERE ALLOWED TO OTHER EMPLOYEES AS WELL AND M/S NDTV LTD. HAS CATEGORICALLY DECLINED VIDE ITS LETTE R DATED 25.02/12.03.2013 TO HAVE EVER PROVIDED ANY SUCH PER QUISITE TO HER SPOUSE, SHRI ABHISAR SHARMA OR ANY OTHER EMP LOYEE 19 AND HENCE THE CLAIM ON HER PART IN CWP NO.-1373 OF 2011 OF THE DELHI HIGH COURT APPEARS TO BE INCORRECT. THE E MPLOYMENT CONTRACT OF SRI ABHISAR SHARMA WAS NOT EXAMINED AND CONSIDERED BY THE A.O. AND THE PASSPORT WAS NEITHER PRODUCED BEFORE THE A.O. FOR VERIFICATION NOR EXAMINED AND T HE DETAILS OF EXPENDITURE INCURRED IN COURSE OF FOREIGN VISITS WERE ALSO NOT EXAMINED. 14(F) DURING THE ASSESSMENT PROCEEDINGS OF ASSESSES SPOU SE (SH. ABHISAR SHARMA), HIS A.O. WAS NOT PROVIDED ANY EVIDENCE EITHER BY THE ASSESSEES SPOUSE OR THE WITNESSES EX AMINED BY THE ASSESSEES SPOUSE, TO SUPPORT HIS CLAIM ABOUT R ECEIPT OF PERQUISITES FROM THE EMPLOYER/S OF ASSESSEES SPOUS E BEING TAXABLE U/S 17(2)/FORM 12BA AND RULE 26A/FORM-16 REGARDING ASSESSEES FOREIGN TRIP TO EUROPE WITH HE R SPOUSE AND OTHER MEMBERS OF FAMILY AT THE COST OF THE SPOU SES EMPLOYER. DESPITE NOT GETTING ANY EVIDENCE U/S 17 ( 2) AS SUCH, THE A.O. OF ASSESSEES SPOUSE HAS MADE ADDITION IN THE HANDS OF ASSESSSES SPOUSE AS 'UNDISCLOSED PERQUISITES' P ROVIDED BY M/S NDTV LTD. TO BE TAXED U/S 17 (2). THERE IS NO E VIDENCE AVAILABLE EITHER FROM M/S NDTV LTD. OR FROM SH. ABH ISAR SHARMA TO SUBSTANTIATE THE 'UN-EXPLAINED PERQUISITE ' AS HELD BY THE ASSESSING OFFICER TO BE TAXED AS SUCH, BECAU SE THERE IS NO PROVISION IN THE I.T. ACT. 1961 FOR TAXING 'U NEXPLAINED PERQUISITE' AND THE UNACCOUNTED EXPENDITURE THAT WA S INCURRED BY THE ASSESSEE ON THE TRIPS ABROAD OF THE ASSESSEE 20 AND HER FAMILY WAS TO BE DEALT WITH ONLY U/S 69C OF THE INCOME TAX ACT, 1961, WHICH WAS NOT DONE BY THE AO AND BECAUSE OF SUCH ERROR ON THE PART OF ASSESSING OFFI CER, ADDITION ON ACCOUNT OF 'UNEXPLAINED PERQUISITE' IN THE HANDS OF ASSESSES SPOUSE IS PATENTLY WRONG APPLICATION O F LAW WHICH NEEDS TO BE CORRECTED IN THAT CASE AND NECESSARY AD DITION U/S 69C OF THE I T ACT NEEDS TO BE MADE IN THE ASSESSEE S HANDS IF EVIDENCES ARE FOUND TO EXIST FOR SUCH UNEXPLAINE D EXPENDITURE ON FOREIGN TRAVEL. 14(G) IT IS SEEN FROM THE ASSESSMENT ORDER OF SHRI ABHISAR SHARMA (ASSESSEES SPOUSE), IN A.Y.2006-07 MADE ON 28.03.2014 THAT AN ADDITION ON ACCOUNT OF UNEXPLAIN ED EXPENDITURE INCURRED DUE TO SUCH FOREIGN VISITS HAS BEEN MADE OF AN AMOUNT OF RS.7,51,786/- PARTLY ON SUBSTANTIVE AND PARTLY ON PROTECTIVE BASIS. SINCE SHRI ABHISAR SHARMA, HAS NOT SUBMITTED ANY DETAILS WHETHER HE FUNDED FOREIGN TRI PS OF HIS SPOUSE ( THE ASSESSEE) , THEREFORE RS.3,75,893/- IS TO BE SUBSTANTIVELY ASSESSED IN THE HANDS OF THE ASSESSEE , MS. SHUMANA SEN , IN A.Y. 2006-07 FOLLOWING LALJI HARID AS VS ITO & ANR.(SC) 43 ITR 387 AND SIMILAR AMOUNTS ARE ALSO REQUIRED TO BE DETERMINED AND ADDITIONS TO BE MADE IN THE AS SESSEES HANDS AFTER NECESSARY ENQUIRIES IN A.Y. 2005-06, A. Y. 2007- 08 AND A.Y. 2008-09 ALSO ON SIMILAR GROUNDS BY FOLL OWING LALJI HARIDAS .(SC) 43 ITR 387 IN THESE YEARS TOO IF EVID ENCES ARE FOUND TO EXIST OF SUCH UNEXPLAINED EXPENDITURES. 21 14(H) THE A.O., WHILE PASSING THE ASSESSMENT ORDERS FOR A .Y.S 2005-06, 2006-07, 2007- OS & 2008-09 IN THIS C ASE, DID NOT FOLLOW THE DIRECTIONS BY THE THEN ADDL, CIT U/S 144A OF THE I.T. ACT, 1961 ABOUT THE EXAMINATION OF THE COM PLAINANT AND HIS CROSS EXAMINATION BY THE ASSESSEE IN SUPPOR T OF ASSESSEES CLAIMS AND AGAINST THE STAND TAKEN BY TH E COMPLAINANT THOUGH THE SAME WAS SPECIFICALLY AND ST ATUTORILY DIRECTED. 14(I) SINCE ABOVE STATED FACTS ARE FRESH & NEW ARISING DU RING ASSESSMENT PROCEEDINGS, BUT A.O.. DID NOT CONDUCT A NY INQUIRY TO FIND OUT VERACITY OF SUCH FACTS, HENCE THE ISSUE S ARISING OUT OF THESE FACTS ARE NOT THE SUBJECT MATTER OF APPEAL FILED BY ASSESSEE FOR A.Y. 2005-06 TO A.Y. 2008-09. 14(J) A.O. FAILED TO CONDUCT PROPER INQUIRY AND FAILED T O APPLY PROPER LAW LEADING TO SAID ASSESSMENT ORDERS BEING ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE, AND IN SUPPORT, THE FOLLOWING CASE LAWS EXIST IN SUPPORT O F NECESSARY ACTION U/S 263 OF THE I.T. ACT, 1961 AGAINST THE AS SESSMENT ORDERS PASSED U/S 147/143(3) FOR A.Y. 2005-06 TO A. Y. 2008- 09 IN THIS CASE: (1) RAMPYARI DEVI SARAOGI VS CIT(SC) 67 ITR 84 (2) MALABAR INDUSTRIAL CO. LTD. VS CIT(SC) 243 ITR 83 (3) SWARUP VEGETABLE PRODUCTS INDUSTRIAL LTD, 22 CIT(AIL) 187 ITR 412 (4) CIT VS EASTERN MEDIKIT LTD. (DEL) 58 DTR 265; 337 ITR 56. 15. AS AGAINST THE ABOVE NOTED FINDINGS, IT IS OBSERVE D FROM THE WRITTEN SUBMISSIONS MADE BY THE ASSESSEE THAT OBJEC TIONS ON THE FOLLOWING POINTS, RELEVANT TO THE NOTICE U/S 26 3 AND THE ISSUES RAISED THEREIN, HAVE BEEN MADE IN WRITTEN SU BMISSIONS FILED BEFORE THIS OFFICE (FOR THE SAKE OF BREVITY, THE WRITTEN SUBMISSIONS OF THE ASSESSEE ON THESE ISSUES ARE NOT BEING REPEATED, AS THESE HAVE ALREADY BEEN EXTRACTED ABOV E VERBATIM, ONLY COMMENTS AND VIEWS TAKEN ON THESE IS SUES OF OBJECTIONS RAISED ARE BEING PLACED BELOW) 15(A) IN THE FIRST PLACE, AS REGARDS THE PRELIMINA RY OBJECTIONS RAISED BY THE ASSESSEE BY HER LETTER DA TED 20.03.2015 (RECEIVED BY SPEED POST ON 23.03.2015), THE FOLLOWING ,. OBSERVATIONS ARE MADE: THE PROCEEDINGS U/S 263 IN THIS ASSESSEES CASE HA VE BEEN TAKEN UP BY THE PREDECESSORS OF THE UNDERSIGNED SIN CE THE INITIAL SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSE E ON 22.08.2014 CONTAINING ALL THE ISSUES IN QUESTION. T HESE PROCEEDINGS WERE CONTINUING AND ARE BARRED BY THE L IMITATION DATE ON 31.03.2015 BEFORE WHICH THE FINAL ORDERS HA VE TO BE PASSED BY THIS OFFICE. THE UNDERSIGNED TOOK OVER TH E ADDITIONAL CHARGE OF THIS OFFICE (PRINCIPAL COMMISS IONER OF 23 INCOME TAX-22, DELHI) ON 30.01.2015 AND AFTER THAT THE NEXT NOTICE TO THIS ASSESSEE, IN THIS CASE, HAS BEEN ISSUED ON 13.02.2015, AFFORDING THE ASSESSEE OPPORTUNITY OF B EING HEARD BY THE UNDERSIGNED IN THIS CASE. IF THESE OBJ ECTIONS WERE RECEIVED EARLIER, THESE COULD HAVE BEEN CONSID ERED BY THE HIGHER AUTHORITIES IN DUE TIME FOR SUITABLE ACT ION IN THIS REGARD. THEREFORE, IT APPEARS THAT THESE PRELIMINA RY OBJECTIONS HAVE BEEN RAISED BY THE ASSESSEE TOO LA TE IN THE DAY, AS ON THE DATE OF RECEIPT OF THESE OBJECTIONS, THERE WERE ONLY SIX WORKING DAYS LEFT TO TAKE CONSEQUENTIAL AC TION ON THESE OBJECTIONS BY THE AUTHORITIES CONCERNED AND A NY NEW INCUMBENT TO TAKE OVER, ISSUE FRESH NOTICES, ALLOW SERVICE AND RESPONSE TIME, CONDUCT HEARINGS OF THE CASE, TAKE A VIEW AND PASS AN ORDER U/S 263 BEFORE THE STATUTORY TIME BAR OF 31.03.2015 EXPIRES FOR ORDERS TO BE PASSED IN THIS CASE. IN SPITE OF SUCH TIME CONSTRAINTS, THE ASSESSEES PRE LIMINARY OBJECTIONS HAVE BEEN REFERRED TO THE HIGHER AUTHOR ITIES ON 23.03.2015 ITSELF, FOR A SUITABLE VIEW TO BE TAKEN ON THESE OBJECTIONS. IN ANY EVENT, THE PRELIMINARY OBJECTIO NS RAISED BY THE ASSESSEE COULD NOT PERCEIVABLY HAVE HAD ANY IMPACT ON THE ISSUES RAISED IN THE PROCEEDINGS U/S 263 IN THI S CASE IN VIEW OF THE FACT THAT, THESE ISSUES HAD ALREADY BEE N RAISED IN SHOW CAUSE NOTICES ISSUED DURING THE TENURE OF THE PREDECESSORS OF THE UNDERSIGNED, BASED UPON REPORTS OF THE LOWER AUTHORITIES, MUCH BEFORE THE UNDERSIGNED TOOK OVER THIS ADDITIONAL CHARGE OF PCIT-22, DELHI ON 30.01.2015 A ND TOOK UP 24 THE MATTER IN VIEW OF THE EXPIRY OF THE TIME BAR OF 31.03.2015 IN THIS CASE. NEEDLESS TO MENTION HERE T HE PLETHORA OF JUDGEMENTS AGAINST RAISING SUCH TECHNIC AL OBJECTIONS WITH A SPECIFIC PURPOSE OF STALLING THE PROCEEDINGS AND TO DIVERT THE FOCUS FROM SUBSTANCE TO THE FORM, ALTHOUGH THE ISSUES INVOLVED IN THESE PROCEEDINGS U/S 263, I N THE CASE OF THE ASSESSEE, HAVE NOTHING TO DO WITH THE PERIOD OF HER SERVICE TENURE UNDER THE CHARGE OF THE UNDERSIGNED THAT THE ASSESSEE HAS ALLUDED TO, IN THE PRELIMINARY OBJEC TIONS, STILL THE PRELIMINARY OBJECTIONS RAISED BY THE ASSESSE E AT THE TIME OF CONCLUSION OF PROCEEDINGS HAVE BEEN CONSIDE RED, DELIBERATED UPON AND KEPT IN MIND WHILE ADJUDICATIN G ON THE MAIN ISSUES DISCUSSED HEREAFTER ONLY TO ENSURE A CL INICAL ANALYSIS OF MATERIAL AVAILABLE ON RECORD. HAVING OB SERVED THUS, THESE ORDERS ARE NOW BEING PASSED WITH FULL AWARENE SS OF THE OBJECTIONS RAISED BY THE ASSESSEE AND WITH FULL CON SCIOUSNESS OF THE RESPONSIBILITY CAST UPON THE UNDERSIGNED IN THIS MATTER WHICH IS BEING CONSIDERED WITH AS ROBUST A SENSE OF OBJECTIVITY AS IS IN COMMAND OF THE UNDERSIGNED. 15(B) VALIDITY OF NOTICE U/S 263- THE NOTICE U/S 26 3 IS VALIDLY ISSUED BASED ON FINDINGS FROM THE ASSESSMENT ORDER AND THE REPORTS OF A.O/ADDL. CIT EXTRACTED ABOVE SO AS TO A FFORD THE ASSESSEE OPPORTUNITY OF BEING HEARD BEFORE PROC EEDINGS U/S 263 ARE FINALIZED IN THE CASE AS THE ORDER OF T HE A.O. WAS 25 FOUND TO BE ERRONEOUS AND PREJUDICIAL TO THE INTERE ST OF REVENUE THE ISSUES RAISED IN THE NOTICE U/S 263 ELA BORATELY INDICATE ADEQUATE ERRORS IN THE ASSESSMENT ORDER CA USING PREJUDICE TO THE INTEREST OF REVENUE. 15(C) JUDICIAL VIEWS - THE ASSESSEE IN HER SUBMISS IONS HAS CITED THE RULING OF HONBLE SUPREME COURT IN THE CA SE OF MALABAR INDUSTRIAL CO. LTD. VS CIT (2000) 243 ITR 8 3 (SC) AND HAS CLAIMED THAT THE CASE OF THE ASSESSEE IS SQ UARELY COVERED BY THE RULING WITHOUT DEMONSTRATING SUCH CL AIM. IN MALABAR INDUSTRIAL CO. LTD, VS CIT, THE HONBLE SUP REME COURT HELD THAT THE COMMISSIONER HAS TO BE SATISFIE D OF TWIN CONDITIONS FOR TAKING REVISIONARY ACTION U/S 263, N AMELY: (I) THAT THE ORDER OF THE A.O. SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) THAT IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE HONBLE APEX COURT IN THE RULING HAS OPINED THA T AN INCORRECT ASSUMPTION OF FACT OR AN INCORRECT APPLIC ATION OF LAW. OR ORDERS PASSED WITHOUT APPLYING THE PRINCIPL ES OF NATURAL JUSTICE OR WITHOUT APPLICATION OF MIND, WAL L SATISFY THE REQUIREMENT OF THE ORDER BEING ERRONEOUS. AS REGARD S PREJUDICE TO INTERESTS OF REVENUE, THE HONBLE COUR T HAS RULED THAT IT IS OF WIDE IMPORT AND NOT CONFINED TO LOSS OF TAX. IF DUE TO AN ERRONEOUS ORDER OF THE ITO, THE REVENUE I S LOSING TAX LAWFULLY PAYABLE BY A PERSON, IT WILL CERTAINLY BE PREJUDICIAL TO THE INTERESTS OF REVENUE. HOWEVER, THE APEX COUR T HAS 26 CLARIFIED THAT WHERE TWO VIEWS ARE POSSIBLE, AND TH E ITO HAS TAKEN ONE VIEW WHICH THE COMMISSIONER DOES NOT AGRE E TO, THE ORDER CANNOT BE ERRONEOUS AND PREJUDICIAL TO INTERE STS OF REVENUE UNLESS THE VIEW TAKEN BY THE ITO IS UNSUSTA INABLE IN LAW. IT IS THEREFORE DIFFICULT TO PERCEIVE AS TO HO W THIS RULING OF THE APEX COURT WOULD HELP THE CASE OF THE ASSESS EE AS IN THE ASSESSEES CASE THERE WERE NO TWO VIEWS POSSIBL E. MOREOVER, THE ORDER HAS BEEN PASSED WITH INCORRECT ASSUMPTION OF FACTS, INCORRECT APPLICATION OF LAW. VIOLATING THE PRINCIPLES OF NATURAL JUSTICE AND WITHOUT APPLICATI ON OF MIND WHICH IS UNSUSTAINABLE IN LAW AS DEMONSTRATED IN TH E PARAS ABOVE THEREFORE, ERRORS HAVE CREPT INTO THE ORDER A S POINTED OUT IN THE NOTICE U/S 263 WHICH HAVE CAUSED PREJUDI CE TO THE INTERESTS OF REVENUE. IN THE CASE OF CIT VS. SHREE MANJUATHESWARE TRADING PRODUCTS AND COMPHOR WORKS, REPORT IN (1988) 231 ITR 53, IT IS OBSERVED BY THE HONBLE APEX COURT THAT THE REVISIONARY POWER CONFERRED ON THE COMMISSIONER OF INCOME TAX IS OF WIDE AMPLITUDE. HO NBLE APEX COURT IN THE CASE OF SMT. TARA DEVI AGGARWAL V S. CIT(1973) 88 ITR 232 HAS HELD THAT THE COMMISSIONER MAY CONSIDER AN ORDER OF THE ASSESSING OFFICER TO BE ER RONEOUS NOT ONLY IF THERE IS SOME APPARENT ERROR OF REASONI NG OR OF LAW OR OF FACT BUT ALSO WHERE IT IS A STEREOTYPED ORDER WHICH SIMPLY ACCEPTS WHAT THE ASSESSEE HAS STATED IN HIS RETURN AND FAILS TO MAKE INQUIRIES WHICH ARE CALLED FOR IN THE CIRCUMSTANCES OF THE CASE AND IT IS NOT NECESSARY F OR THE 27 COMMISSIONER TO MAKE FURTHER INQUIRIES BEFORE CANCE LLING THE ASSESSMENT ORDER OF ASSESSING OFFICER. THE FACTS OF THE PRESENT CASE, IF JUDGED ON THE TOUCHSTONE OF ABOVE LEGAL POSITION PROPOUNDED BY THE HONBLE APEX COURT, AND SECTION 263 PER SE UNMISTAKABLY ESTABLISH THAT THE ORDER OF THE A.O. WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF RE VENUE. 15(D) CASE FOR REVIEW U/S 263 OF A.O S ORDER. AS AG AINST THE SUBMISSIONS MADE BY THE ASSESSEE, THERE IS A VALID CASE FOR REVIEW U/S 263 OF) T ACT IN VIEW OF THE ERRONEOUS O RDER OF THE A.O. WHICH IS PREJUDICIAL TO THE INTERESTS OF R EVENUE AS HAS BEEN ELABORATELY CLARIFIED IN THE PARAS ABOVE W HILE POINTING OUT ERRORS IN THE ASSESSMENT ORDER AND THE NEW FACTS WHICH REMAIN TO BE EXAMINED BY THE A.O. THEREFORE, THE ASSESSSEES PLEA THAT THE FINDINGS IN THE SHOW CAUS E NOTICE HAVE ALREADY BEEN EXAMINED AND ARE IN THE AMBIT OF CHANGE OF OPINION DOES NOT APPEAR TO BE SUBSTANTIATED. 15(E) ISSUE REGARDING INSPECTION OF RECORDS:- AS RE GARDS INSPECTION OF RECORDS, IT IS NOT THE CASE OF THE AS SESSEE THAT ANY ISSUE FROM ANY PART OF THE RECORDS, WHICH IS BE ING RAISED AGAINST THE ASSESSEE, HAS NOT BEEN FORWARDED TO HER ALONG WITH THE SHOW CAUSE NOTICE U/S 263 NEITHER IS IT TH E CASE OF THE ASSESSEE THAT THE PRESENT NOTICE U/S 263 IS BAS ED UPON ANY ISSUE IN ANY PART OF THE RECORDS WHICH ARE NOT CONFRONTED 28 TO THE ASSESSEE IN THE NOTICE U/S 263, BEFORE PROCE EDINGS U/S 263 ARE FINALIZED. THEREFORE, IT IS DIFFICULT TO PE RCEIVE JUSTIFICATION FOR INSPECTION OF RECORDS FOR FILING THE RESPONSES TO THE NOTICE U/S 263 ITSELF. 15(F) ISSUE REGARDING TRANSFER OF CASE TO ANOTHER C HARGE:- AS REGARDS ASSESSEES REQUEST TO TRANSFER HER CASE TO ANY OTHER OFFICER, IT IS OBSERVED THAT THERE ARE NO VALID GRO UNDS FOR ANY TRANSFER PRESENTLY, AS THERE IS NO LACUNA THAT EXIS T IN THE JURISDICTION OF THIS OFFICE OR OF THE R AOS OFFICE OVER THE ASSESSEES CASE 16. TO SUM. UP, IT IS THEREFORE OBSERVED THAT, DURING T HE ASSESSMENT PROCEEDINGS, THE ISSUES IN QUESTION UNDE R THIS ORDER U/S 263 AS PER THE FINDINGS GIVEN IN PARAS-(1 4)(A) TO (14)(J) ABOVE, WERE NOT PROPERLY EXAMINED AND NO CO NCLUSIVE FINDINGS WERE ARRIVED AT BY THE A.O. IN HIS ASSESSM ENT ORDERS FOR A.Y.S 2005-06, 2006-07, 2007-08 & 2008-09. THER EFORE THE AMOUNTS TAXABLE HAVE ESCAPED ASSESSMENT EITHER IN THE HANDS OF THIS ASSESSEE OR IF EVIDENCES POINT OUT OT HERWISE, IN THE HANDS OF ANY OTHER ASSESSEES AS THE CASE MAY BE THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT WITH OUT MAKING REQUISITE ENQUIRIES AND ALSO WITHOUT DUE APP LICATION OF MIND. TO THIS EXTENT IT IS HELD THAT ORDERS U/S 147 /143(3) DATED 31.03.2013 FOR A.Y.S 2005-06, 2006-07, 2007-0 8 & 29 2008-09 OF THE A O. IN THIS CASE ARE ERRONEOUS AND ALSO PIC;UD!CM! M THE INTEREST OF THE REVENUE AND' ARE L IABLE TO TE SET-ASIDE ACCORDINGLY IN THE EXERCISE OF REVISIONAR Y POWER U/S 263 OF THE INCOME TAX ACT, 1961, THE ASSESSMENT ORDERS OF A.Y.S 2005-06. 2006-07, 2007 08 S 2008-09 COMPLE TED U/S 147/143(3) ON 31.03.2013 ARE HEREBY CANCELLED A ND RESTORED TO THE ASSESSING OFFICER TO MAKE ASSESSMEN TS DE- NOVO AFTER EXAMINING THE ENTIRETY OF THE ISSUES CON SIDERED IN THIS REVISION ORDER U/S 263 IN ASSESSEE'S CASE AFTE R AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THE A.O. IS DIRECTED TO MAKE ALL NECESSARY INQUIRIES WI TH THE CONCERNED AGENCIES TO ENSURE THAT ALL THE ISSUES WH ICH ARE SUBJECT MATTER OF THIS REVISION ORDER U/S 263 AS PE R THE FINDINGS GIVEN IN PARAS-(14)(A) TO (14)(J) ABOVE, A RE PROPERLY EXAMINED VIS -A-VIS THE EVIDENCES COLLECTED AND REQ UIRED TO BE COLLECTED, THE CLAIMS MADE BY THE ASSESSEE REGARDIN G SUCH EVIDENCES AND THE POSITION OF LAW, SO AS TO ENSURE THAT THE ERRORS POINTED OUT IN THIS ORDER AND THE PREJUDICES ERASED TO REVENUE AS PER THIS ORDER ARE ELIMINATED AND THE AM OUNTS INVOLVED IN THESE ISSUES ARE TAXED IN THE HANDS OF THE ASSESSEE OR IN ANY OTHER HANDS AS PER LAW. 15. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE O RDERS OF THE AUTHORITIES BELOW. A PERUSAL OF THE AFOREMENTIONED FINDINGS OF THE PCIT SHOW THAT THE ENTIRE QUARREL IS IN RESPECT OF TRAVE L OF THE ASSESSEE 30 ALONGWITH HER SPOUSE ABROAD AND THE EXPENDITURE INC URRED BY THE SPOUSE OF THE ASSESSEE. THE PCIT IS OF THE FIRM BEL IEF THAT THE ASSESSING OFFICER FAILED TO CONDUCT PROPER ENQUIRY AND FAILED TO APPLY PROPER LAW LEADING TO THE SAID ASSESSMENT ORDER BEING ERRONEOU S AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. 16. LET US NOW SEE WHAT HAPPENED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. PURSUANT TO THE TAX EVASION PETITION, THE CASE OF THE ASSESSEE WAS REOPENED U/S 148 OF THE ACT FOR ASSESS MENT YEARS 2005-06 TO 2008-09.THE REASONS RECORDED FOR INITIATING THE REASSESSMENT PROCEEDINGS FOR ALL THE FOUR ASSESSMENT YEARS READ AS UNDER: 2 'THIS OFFICE RECEIVED A COPY OF DO. LETTER FROM SH. S. L SRIVASTAVA, CIT(OSD). DELHI ADDRESSED TO CIT. DELHI - XIV' NEW DELHI DISCLOSING DETAILS OF CONCEALMENT OF INCOME A ND RESULTANT EVASION OF FAX OF HUGE AMOUNT DURING THE PERIOD 2003-2004 ONWARDS AND UPTO F. Y. 2007-2008 BY MRS. SUMANA SEN. IRS CURRENTLY WORKING IN THE RANK OF JC/T IN T HE DEPARTMENT . IT ALSO CONTAINS DETAILS OF EXPENDITURE INCURRED ON FOREIGN TRAVELS BY MRS. SUMANA SEN ALONG WITH HER A UNTY STATED TO BE IN EXCESS OF RS. 3 CRORES. RELIANCE WAS ALSO PLA CED ON THE COPY OF AN AFFIDAVIT SWORN BY MRS. SHUMANA SEN AND FILED BE FORE HON'BLE DELHI HIGH COURT IN WRIT PETITION (C) NO. 1373 OF 2 011 WHEREIN SHE 31 ADMITTED TO HAVE TRAVELED ABROAD WITH HER FAMILY SE VERAL TIMES DURING THAT PERIOD. THE SAID AFFIDAVIT WAS ENCLOSED ALONGWITH THE D.O. LETTER OF SH. S. K. SRIVASTAVA. THE SAID TEP ALLEGED THAT THE ASSESSEE RECEIVED GRA TIFICATION BY WAY OF EXPENDITURE INCURRED ON HER FOREIGN TRAVELS ALONGWITH HER FAMILY BY MS. NDTV LTD . DURING THE PERIOD UNDER CONSIDERATION IN LIEU OF FAVORS GRANTED BY HER TO .YTS. NDTV LTD. AS IT'S ASSESSING OFFICER BEING AC IT. CIRCLE-13(1 ), NEW DELHI. A S PER THE TEP THE ESTIMATED VALUE OF SUCH GRATIFICATION AND CORRESPON DING EXPENDITURE INVOLVE IN THE REGION OF ABOUT RS. 3-5 CRORES. THE ADD/ CIT. RANGE-40. NEW DELHI VIDE HIS LETTER D ATED 02 12 2011 FORWARDED TO TEP AND LETTER OF CIT, DELHI-XLV. NEW DELHI IN THE CASE OF MRS. SUMANA SEN AN EXISTING ASSESSEE IN THIS CHARGE TO TAKE NECESSARY ACTION AS PER APPLICABLE LAW. THE COMPLAINANT BEING AN IRS OFFICER OF 108 7 BATCH AND HOLDING THE RANK OF COMMISSIONER OF INCOME TAX SUBSEQUENTLY ALS O PROVIDED A COPY OF THE LETTER DATED 17/10/2011 WRITTEN BY MRS. SUMANA SEN TO THE CHAIRPERSON , COMPLAINT COMMITTEE ON SEXUAL HARASSMENT, NEW DELHI WHEREIN ALSO MRS. SUMANA SEN HAS ADMITTED THAT SHE HAD TRAVELLED ABROAD SEVERAL TIMES AT THE TIME OF HER H USBAND'S EMPLOYMENT WITH M/S NDTV LTD. BEFORE, DURING AND AF TER HER STINT IN CIRCLE-13(1). NEW DELHI. 32 PURSUANT TO THE RECEIPT OF THE COPY OF THE TEP THE MATTER WAS INDEPENDENTLY EXAMINED IN EXERCISE OF INDEPENDENT Q UASI- JUDICIAL DISCRETION BY THE UNDERSIGNED . IT WAS FOUND THAT THE RETURNS OF INCOME OF MRS. SUMANA SEN AN EXISTING AS SESSEE IN THIS OFFICE FOR THE RELEVANT PERIOD I.E. A.Y. 2004-2005, 2005- 2006, 2006-200 7, 200 7-2008 & 2008- 2009 RELEVANT FOR F. Y. 2003- 2004, 2004- 2005, 2005-2006, 2006-2007 SI 2007-2008 DOES NOT DISCLOSE IN ANY MANNER WHATSOEVER THE DETAILS AND O THER PARTICULARS OF HER FOREIGN TRAVELLING AND THE EXPENDITURE INCUR RED ON THAT INCLUDING THE SOURCE THEREOF, THE QUANTUM THEREOF T HE STATUS OF THAT AMOUNT OF MONEY A TUT TAXABILITY OF THE SAME, IN VIEW OF THE FACT THAT THE PARTICULARS PERTAINING TO THE EXPENDI TURE INCURRED ON FOREIGN TRAVELS HAS BEEN ADMITTED BEFORE HON'BLE DE LHI HIGH COURT AND ALSO BEFORE THE DEPARTMENTAL AUTHORITIES, PRIMA -FACIE, A CASE OF NON-DISCLOSURE OF INFORMATION ABOUT EXPENDITURE INC URRED BY THE ASSESSEE IN THE RETURNS OF INCOME STANDS MADE OUT W HICH PRIMA- FACIE APPEARS TO HAVE ESCAPED THE INCIDENCE OF TAX BECAUSE OF NON- DISCLOSURE AND NON- INCLUSION IN THE TAXABLE INCOME OF THE ASSESSEE. THE ASSESSEE IN THE AFFIDAVIT FILED BEFORE HON'BLE DELHI HIGH COURT AND IN HER LETTER DATED 17/10/2011 BEFORE DEPARTMEN TAL AUTHORITIES HAS CLAIMED STATED THAT THE EXPENDITURE INVOLVED ON HER FOREIGN TRAVELS WAS PAR! OF YEARLY VACATION ABR OAD WITH FAMILY OF THE SALARY PACKAGE OF SH. ABHISAR SHARMA, HER SP OUSE, FROM THE EMPLOYER OF SH. ABHISAR SHARMA I.E. M/S. NDTV LTD. IT WAS FURTHER 33 STATED BY THE ASSESSEE THAT SIMILAR PERQUISITES WER E GIVEN BY M/S. NDTV LTD. FROM TIME TO TIME TO OTHER EMPLOYEES OF T HAT COMPANY AS WELL AS PEN T OF THEIR SALARY PACKAGE. THE COPY OF EMPLOYMENT CONTRACT OF SH. ABHISAR SHAR MA WITH M/S. NDTV LTD. OR ANY OTHER DOCUMENT IS NOT AVAILABLE ON FILE TO CORROBORATE THE CLAIM OF SOURCE OF EXPENDITURE ON F OREIGN TRAVEL. NOR IS THERE ANY DOCUMENTARY EVIDENCE AVAILABLE TO SHOW INCLUSION OF THE EXPENDITURE INVOLVED ON HER FOREIGN TRAVELS IN TAXABLE INCOME OF HER SPOUSE NAMELY SH. ABHISAR SHARMA WHO IS AN EXISTING ASSESSEE IN CHARGE OF AC IT, CIRCLE 48( I), NEW DEL HI. THE EXPENDITURE ON FOREIGN TRAVEL OF ASSESSEE, IF I T IS A PART OF SALARY PACKAGE OF SH. ABHISAR SHARMA RECEIVED/RECEI VABLE FROM M/S, NDTV LTD. IS TAXABLE PERQUISITE U/S 17 OF THE INCOME TAX ACT, 1961. UPTO A. Y. 2007-2008 IT WAS REQUIRED TO BE DISCLOSED IN RETURN OF INCOME AND FORM NO. 16 ISSUED BY THE EMPL OYER. THESE PARTICULARS WERE ALSO REQUIRED TO BE FURNISHED INFO RM NO. 12 BA ISSUED BY THE EMPLOYER TO THE EMPLOYEE. THIS WAS TO BE FURNISHED BY THE EMPLOYER WITH HIS/HER RETURN OF INCOME ALONG WITH FORM NO. 16 AND IN ADDITION TO THE FORM NO. 16. THE PROVISIO NS OF RULE 26(2)(B) IS BEING RELIED UPON. THE ASSESSEE WHILE CLAIMING THAT THE EXPENDITURE IN CURRED BY HER ON HER FOREIGN TRAVELS ALONGWITH HER FAMILY WAS PAR T OF THE SALARY PACKAGE OF HER SPOUSE SH. ABHISAR SHARMA HAS NOT MA DE ANY MENTION OJ THE ABOVE REFER RED TO STATUTORY DOCUMEN TS WHICH ARE 34 MANDATORILY TO BE SUBMITTED BY THE CONCERNED ASSESS EE NOR HAS INCLUDED ANY OF THESE DOCUMENTS EITHER WITH THE AFF IDAVIT FILED BY HER BEFORE HONBLE DELHI HIGH COURT NOR WITH OFFICI AL LETTER DATED 17/10 2011. IN VIEW OF THE ABOVE FACTS THERE IS AN ADMITTED POS ITION ABOUT EXPENDITURE INCURRED ON FOREIGN TRAVELS OF THE ASSE SSEE AND HER FAMILY DURING THE PERIOD F.Y. 2003-2004 TO F. Y. 20 07-2003. THE SOURCES OF EXPENDITURE INCURRED BY THE ASSESSEE ON HER FOREIGN TRAVELS DURING THE ABOVE MENTIONED PERIOD REQUIRED TO BE VERIFIED TO ASCERTAIN THE CORRECT AND FULL TAX PAYABLE BY TH E ASSESSEE ON HER TAXABLE INCOME. IN VIEW OF THE FACTS AND CIRCUMSTANCES STATED HEREI NABOVE AND THE MATERIAL AVAILABLE ON THE RECORD OF THIS OFFICE. I HAVE REASONS TO BELIEVE THAT INCOME FAR IN EXCESS OF THE LIMIT PRES CRIBED IN LAW AND MUCH MORE THAN THE LIMIT OF RS. ONE LAKH PRESCRIBED IN SECTION 149/1 KB) OF THE INCOME TAX ACT. 1961 HAS ESCAPED A SSESSMENT DIMING A. Y. 2005-2006,2006-2007, 2007-2008 & 2008- 2009 AND TO BRING THE ESCAPED INCOME TO TAX, RE-ASSESSMENT P ROCEEDINGS ARE REQUIRED TO BE INITIATED FOR A. Y. 2005-2006, 2006- 2007. 2007- 2008 & 2008-2009 U/S 147 OF THE INCOME TAX ACT, 196 1 AND NOTICE U S 148 IS TO BE ISSUED WELT WITHIN THE LIMI TATION PERIOD. 35 IT IS FURTHER HIGHLIGHTED THAT THE COMPLAINANT IN H IS TAX EVASION PETITION HAS ALLEGED EVASION OF TAX AND CONCEALMENT OF INCOME DURING THE PERIOD OCTOBER. 2003 TO OCTOBER, 2007 WH ICH IS MATERIAL FOR A. Y. 2004-2005. 2005-2006. 2006-2007, 2007-2008 & 2008-2009. OUT OF THIS THE A. Y. 2004-2005 IS NO LONGER OPEN FOR REOPENING IN TERMS OF PROVISION U/S 149 OF THE INCOME TAX ACT , 1961 BUT THE REMAINING FOUR YEARS ARE CAPABLE OF BE ING RE- OPENED U/S 14 N AND WHERE NOTICE CAN HE ISSUED U S 148 OF THE INCOME TAX ACT. 196! TO BRING THE INCOME ESCAPED FR OM TAX TO TAX IT IS THEREFORE PROPOSED THAT ALL THESE FOUR ASSESS MENT YEARS MAY BE RE-OPENED TOGETHER FOR PROPER AND EFFECTIVE INQU IRY IN THE MATTER AND THE STATUTORY APPROVAL FOR THE SAME IS S OLICITED FROM ADD I. C1T, RANGE-40, NEW DELHI. IN VIEW OF THE FACTS AND CIRCUMSTANCES STATED HEREI NABOVE, THE NECESSARY APPROVAL OF ADD I CAT, RCMGE-40, NEW DELH I IS BEING SOLICITED IN TERMS OF STATUTORY REQUIREMENT OF SECT ION 147 OF THE INCOME TAX ACT, 1961 AND OTHER ENABLING PROVISIONS OF LAW TO ASSUME JURISDICTION U/S 147 AND ISSUE NOTICE U/S 14 8 IN TERMS OF REQUIREMENTS OF SECTION 149 OF INCOME TAX ACT. 1961 FOR A Y. 2005-2006 ,2006- 2007, 2007-2008 & 2008-2009 RELEVA NT FOR F. Y. 2004- AMQPS5036G. ' 2. IN THE TEP FILED BY THE COMPLAINANT FOLLOWING MAIN ALLEGATIONS WERE LEVIED. 36 1 'IN WRIT PETITION FILED BEFORE HON'BLE DELHI HIGH C OURT THE ASSESSEE HAS CLAIMED THAT HER TRIP TO EUROPE AROSE BECAUSE OF YEARLY VACATION ABROAD WITH FAMILY BEING PART OF SA LARY PACKAGE OF SH. ABHISAR SHANNA, HER SPOUSE AND AN EMPLOYEE O F NDTV LTD. 2 THE TRIP OF EUROPE BY MS. SHUMANA SEN AND SHRI ABHI SAR SHARMA DURING F.Y. 2005-06 ( APRIL 12TH 2005 TO APRIL 20TH 2005) BY BRITISH AIRWAYS FLIGHT BA 142 AND BA 143. COST NOT I LTD ABOUT RS 1.00,00.000 AND BY THAT YARDSTICK , MS. SHUMANA SEN AND SHRI ABHISAR SHARMA HAVE EVADED THE TAXABLE INCOME DURING THE PERIOD 2003 TO OCT. 2007 IN THE RANGE OF RS. 3.00.0 0.000 - TO RS 5,00.00.000/-. 3 APART FROM THAT, CLAIM OJ SHUMANA SEN IS INCORRECT IN SO MUCH EXPENDITURE INCURRED ON THE TRIP WAS BRIBE PAID TO MS SHUMANA SEN DCIT, CIR. 13(1) AND ASSESSING OFFICER OF NDTV LTD. AT THE MATERIAL TIME, THE ENTIRE AMOUNT OF EXPENDITURE INC URRED ON YEARLY VACATION ABROAD BY SH. ABHISAR SHARMA AND SH UMANA SEN. PAID BY EMPLOYER OF SH. ABHISAR SHARMA IT/ 17 OF TH E I T ACT, 1961 BEING THE INCOME OJ THE ASSESSEE. 4 M/S NDTV LTD. HAS ALSO NOT INCLUDED THE EXPENDITURE INCURRED ON VACATION ABROAD OF MS SHUMANA SEN IN THE SALARY OF SH. ABHISAR SHARMA . AND HAS NOT DEDUCTED ANY TAX ON THAT NOR H AS INCLUDED ANY PERQUISITE IN THE FORM OF 16 ISSUED BY NDTV LTD . TO SH. 37 ABHISAR SHARMA AND THEREBY IT IS CLEAR THAT EXPENDI TURE INCURRED ON THE VACATION ABROAD OF MS SHUMANA SEN W AS NOT THE SALARY OF SH. ABHISAR SHARMA BUT BRIBE AND ILLEGAL GRATIFICATION RECEIVED BY MS. SHUMANA SEN AY DCIT CIR. 13(1), FOR FAVOURING M/S NDTV LTD. ILLEGALLY . 17. THE REOPENING VIS A VIS NOTICES U/S 148 OF THE ACT WAS CHALLENGED BY THE ASSESSEE BEFORE THE HON'BLE HIGH COURT OF DE LHI BY WAY OF WRIT PETITION AND THE SAID WRIT PETITION WAS DISPOSED OF BY THE HON'BLE HIGH COURT VIDE ORDER DATED 19.10.2012 IN WP(C) NO. 4022 /2012 CM APPEAL 8436-8438/2012. THE HON'BLE HIGH COURT HELD AS UND ER: IN THE CIRCUMSTANCES, WE ARE NOT INCLINED TO ACCEP T THE SUBMISSIONS OF THE PETITIONER. WE ACCORDINGLY HOLD THAT THE NOTICE ISSUED ON 28 03' 2012 U S 148 OF THE ACT FOR AY 2005- 06 WAS WITHIN THE JURISDICTION OF THE ASSESSING OFF ICER. THE AO IS DIRECTED TO DISPOSE OFF THE OBJECTIONS FILED BY THE PETITIONER WITHIN A REASONABLE TIME AND AT ANY RATE NOT LATER THAN 30/11/2012, IF NOT DISPOSED OFF WE REFRAIN FROM EXPRESSING ANY OPINION ON THE VARIO US ALLEGATIONS AND COUNTER ALLEGATIONS WHICH WERE EXCH ANGED BETWEEN THE PETITIONS AND RESPONDENT NO 4 IN OTHER PROCEEDINGS. IN COMING TO OUR DECISION WE HAVE KEPT IN VIEW ONLY THE MATERIAL BEFORE T)AVAO ON BASIS OF WHICH H E RECORDED REASONS AND ISSUED NOTICE U/S 148' 38 18. SUBSEQUENTLY, THE REASSESSMENT PROCEEDINGS WERE STARTED. IN THE QUESTIONNAIRE, THE ASSESSEE WAS REQUIRED TO SUBMIT THE FOLLOWING INFORMATION: ' A ) A S P ER TAX EVASION PETITION FILED IN YOUR CASE IT HAS B EEN ALLEGED THAT YOU HAVE INCURRED UNACCOUNTED EXPENDIT URE TO THE TUNE OJ RS. 3 CRORES ON SUCH FOREIGN TRAVELS. IN THIS CONNECTION YOU ARE HEREBY ASKED TO SUBMIT A DETAILED REPLY ON THIS ALLEGATION ALONGWITH SUPPORTING EVIDENCE, IF ANY, FOR THE YEAR UNDER CONSIDERATION B ) STATEMENT OF YOUR TAXABLE INCOME FOR THE YEAR UNDER CONSIDERATION. C ) A COPY OF YOUR BANK ACCOUNT IN WHICH THE SALARY WAS BEING CREDITED FOR THE RELEVANT ACCOUNTING PERIOD AND ALL OTHER BANK ACCOUNTS IN YOUR NAME OR IN JOINT NAME FOR THE RELE VANT PERIOD. D ) A COPY OF YOUR PASSPORT E) DETAILS IN RESPECT OF FOREIGN TOURS PERFORMED BY YOU INDIVIDUALLY AND COLLECTIVELY WITH YOUR FAMILY DURI NG THE RELEVANT PERIOD, THE DATE OF TRAVEL, PLACES TRAVELLED, PURPO SE OF TRAVEL, TICKET EXPENSES, BOARDING & LODGING EXPENSES, SIGHT -SEEING EXPENSES, SHOPPING FOR EACH SUCH FOREIGN TRAVEL ALO NGWITH SOURCES OF INCURRING SUCH EXPENDITURE AND DOCUMENTARY EVIDE NCE IN SUPPORT THEREOF PLUS REPLY SHOULD PERTAIN TO FOREIGN TRAVEL INCURRED DURING 39 THE F. Y. 2004-05. F) A COPY OF FORM NO. 16 ALONG WITH A COPY OF THE R ETURN OF INCOME IF ALREADY FILED BY YOUR GOODSELF FOR THE AS SESSMENT YEAR 2005- 06, WITH SUPPORTING EVIDENCE. G) A PHOTOCOPY OF RETURN OF INCOME OF SHRI ABHISAR SHARMA FOR THE ASSTT. YEAR 2005-06, ALONGWITH COPY OF FORM NO. 16 AND A COPY OF HIS PASSPORT. H) MOVEABLE OR IMMOVABLE PROPERTY SOLD OR PURCHASED , INDIVIDUALLY OR JOINTLY, DURING THE RELEVANT PERIOD I.E F Y2004- 05 ALONGWITH THE SALE PURCHASE DEED AND SOURCE OF SUCH EXPENDITURE OR UTILIZATION OF SALE PROCEEDS RECEIVED IF ANY PHOTOCOPY OF IMMOVABLE PROPERTY DECLARED IN YOUR OFFICE FOR THE RELEVANT PERIOD' 18. IN HER REPLY, INTER ALIA, THE ASSESSEE REFERRED TO THE OBSERVATIONS OF THE HON'BLE HIGH COURT OF DELHI WHICH HAVE BEEN MENTIONED BY US ELSEWHERE. DURING THE COURSE OF ASSESSMENT PROCEEDI NGS, THE ASSESSING OFFICER CALLED FOR INFORMATION U/S 133(6) OF THE AC T FROM NDTV LTD IN THE CASE OF ABHISAR SHARMA [SPOUSE OF THE ASSESSEE] . THE FOLLOWING INFORMATION WAS CALLED FOR: 40 SH. ABHISAR SHARMA WAS EMPLOYED BY M/S NDTV LTD. D URING OCTOBER 2003 TO OCTOBER 2007, I.E. FINANCIAL YEAR 2 003-04,2004- 05,2005-06,2006-07 AND 2007-08. YOU ARE REQUESTED T O PROVIDE THE FOLLOWING INFORMATION U/S 133(6) OF THE INCOME- TAX ACT, 1961 IN THE ABOVE MENTIONED FINANCIAL YEARS FOR THE PERI OD OCTOBER 2003 TO OCT, 2007, THERE ARE FIVE FINANCIAL YEARS I NVOLVED I.E.2003- 04 TO 2007-08, YOU ARE THEREFORE REQUIRED TO PROVID E AUTHENTICATED COPIES OF: 1. THE EMPLOYMENT CONTRACT OF SH. ABHISAR SHARMA WITH M/S NDTV LTD. FOR THIS PERIOD I.E. FROM OCT. 2003 TO OC T. 2007. 2. COPY OF FORM NO. 16 ISSUED TO SH. ABHISAR SHARMA F OR THIS PERIOD. 3. COPY OF FORM NO. 12BA( RULE ( 26A(2) ) PROVIDED TO SH ABHISAR SHARMA , MONTH WISE BREAK UP SALARY, SHOWING THE AMOUNT OF SALARY ACTUALLY PAID, TAX DEDUCTED AND VALUE OF PERQUISITES INCLUDED IN TOTAL EMOLUMENTS FOR EACH MONTH SEPARAT ELY. 4. AMOUNT OF EXPENDITURE INCURRED BY YOU ON THE AN NUAL VACATION ABROAD FOR EACH YEAR AND AMOUNT OF TDS THEREON. 41 5. LIST OF EMPLOYEES OTHER THAN DIRECTORS OF THE C OMPANY WHO WERE PROVIDED THE PERQUISITE OF ANNUAL VACATION ABR OAD FOR SELF AND FAMILY DURING THE PERIOD 1-4-2003 TO 31.3.2008. 6. AMOUNT OF GROSS EMOLUMENTS, TDS AND THE VALUE O F PERQUISITES IN TERMS OF SECTION 17(2) OF THE INCOME-TAX ACT. DU RING THE PERIOD 1/472003 TO 31/3/2008 IN THE CASE OF EACH EM PLOYEE WHO WAS PROVIDED WITH THE PERQUISITE OF ANNUAL VACA TION ABROAD FOR SELF AND FAMILY. 19. SIMULTANEOUSLY, INFORMATION U/S 133(6) OF THE A CT WAS CALLED FROM THE FOLLOWING PARTIES : A). FROM ACIT (FINANCE) O/O CCIT-I, NEW DELHI RE GARDING BANK A/CS OF THE ASSESSEE. B) FROM ACIT CIRCLE 47(1), NEW DELHI REGARDING COPIES OF ITR'S AND FORMNO 16 OF SH. ABHISAR SHARMA FOR AY.2005-06 TO 2 008- 09. C) FROM ACIT(HQ)(PERSONNES) O/O CCIT-1, NEW DELHI REGA RDING INTIMATIONS GIVEN BY THE ASSESSEE AND PERMISSIONS A CCORDED FOR FOREIGN TRAVEL. FROM BRITISH AIRWAYS REGARDING JOURNEYS CONDUCTED A BROAD BY THE ASSESSEE FROM AY.2008-09 TO AY.2008-09 VIDE THEIR CARRIERS. 42 20. REPLIES RECEIVED FROM THE AFORESAID PARTIES ARE SUMMARIZED BY THE ASSESSING OFFICER AS UNDER: A) ACIT (FINANCE) INFORMED THAT SALARY OF THE ASSESSE E IS CREDITED INTO SYNDICATE BANK ACCOUNT NO 90672010049 291 IN CR BUILDING. NEW DELHI. W.E.F. MARCH 2009. B) ACIT CIRCLE 47(1), NEW DELHI PROVIDED FORM NOL6 OF SH. ABHISAR SHARMA FOR AY. 2005-06, 2007-08 AND 2008-09 . COPY TO FORM NO 12BA FOR AY2005-06 SUBMITTED BY NDTV LTD . WAS ALSO PROVIDED. C) ACIT(HQ)(PERSONNEL) O/O CCTT-1, NEW DELHI INFORMED THAT ASSESSEE WAS PERMITTED TO TRAVEL ABROAD DURING AY 2 005-06. D) M/S BRITISH AIRWAYS STATED THAT THEY DON'T HAVE RE CORD BEYOND 3YEARS ON THEIR SYSTEM. NO INFORMATION WAS P ROVIDED BY THEM DUE TO THIS REASON. 21. THE ASSESSEE REPLIED VIDE LETTER DATED 11.03.20 13 IN RESPONSE TO THE QUESTIONNAIRE, STATEMENT OF THE COMPLAINANT, EX HIBIT FILED BY THE COMPLAINANT OF YEAR WISE DETAILS OF ALLEGED UNACCOU NTED AND UNDISCLOSED INCOME, EXPENDITURE AND INVESTMENT SUBM ITTED BY SHRI S.K. SRIVASTAVA AND DETAILED POINT WISE REPLY WAS F ILED BEFORE THE ASSESSING OFFICER. SUBSEQUENTLY, ON 22.03.2013, IN RESPONSE TO SUMMONS U/S 131 OF THE ACT, STATEMENT OF THE ASSESS EE WAS RECORDED. 43 THE RELEVANT PORTION READS AS UNDER: IN RESPONSE TO SUMMON U/S 131 OF THE L.T. ACT, 1961, THE ASSES SEE EEL THE EASE ON 25/3/2013 AND STATEMENT O N OATH WAS RECORDED. THE RELEVANT PORTION IS AS UNDER:- '08. AS PER TAX EVASION PETITION. SH S.K SRIVASTAVA ALLEGED THAT YOU HAVE INCURRED EXPENDITURE TO THE TUNE OF R S. 3 CRORES OR MORE ON SUCH FOREIGN TRAVELS DURING THE F INANCIAL YEAR 2004-05 2005-06 2006-07 AND 200-08, WHETHER Y OU HAVE GONE TO FOREIGN TRIP DURING THE FINANCIAL YEAR 2004-05. 2005-06. 2006-07 AND 2007-08. WHAT IS THE SOURCE OF THE EXPENDITURE INCURRED, AND HOW MUCH EXPENDITURE YOU HAVE ACTUALLY INCURRED WITH DOCUMENTARY EVIDENCE? ANS: AS PER THE ALLEGATION MADE BY SH. S.K SRIVASTA VA IS CONCERNED, THE SAME IS COMPLETELY FALSE, BASELESS A ND MALICIOUS. THEY ARE ALSO UNSUBSTANTIATED, WITHOUT A NY EVIDENCE OR ANY BASIS. 1 WOULD LIKE TO POINT OUT HERE THAT S H. S.K SRIVASTAVA HAS BEEN IN THE HABIT OJ MAKING SUCH ALL EGATIONS. CONSEQUENTLY, HE HAD TO TENDER AN APOLOGY BEFORE TH E HON.HIE HIGH COURT OF DELHI FOR MAKING SUCH UNSUBSTANTIATED ALLEGATIONS AND HAD WITHDRAWN THE SAME, WITH THE UN DERTAKING THAT HE WOULD DESIST FROM REPEATING SUCH ALLEGATION S IN FACT, HE HAS BEEN SENTENCED TO 15 DAYS OF IMPRISONMENT BY THE 44 HON.BLE HIGH COURT OF DELHI FOR CONTEMPT OF COURT W HICH AROSE OUT OF THE FACT THAT HE REPEATED SUCH ALLEGAT IONS. IT IS CATEGORICALLY DENIED THAT I HAD INCURRED AN EXPENDITURE OF RS. 3 CRORES AND ABOVE ON SUCH TRIPS . IN THE ASSESSMENT YEAR 2005-06, THERE WAS NO FOREIGN TRIP UNDERTAKEN BY ME. I UNDERTOOK TRIPS TO UK AND AUSTR ALIA IN A. Y 2006-07. THE COST INCURRED ON WHICH WAS RS. 80,00 0/ TO I LAKH AS FAR AS TRIP TO UK IS CONCERNED AND THE EXPE NDITURE INCURRED WAS FROM THE SALARY AND SAVINGS OF MY SPOU SE SH. ABHISAR SHARMA. FOR THE TRIP TO AUSTRALIA, AN APPRO XIMATE COST OF RS. 1,25,000/- TO RS.1,35,000/- WAS INCURRE D BY THE ENTIRE FAMILY. CONSISTING OF MY SPOUSE, MY MINOR DA UGHTER AND MYSELF. AS STATED ABOVE, THE SOURCE OF THE SAME WAS SALARY AND SAVINGS OF MY HUSBAND. IN THE A Y 2007-08, 1 TO OK A TRIP WITH MY FAMILY TO IRELAND & UK. THE COST INCURRED T HEREIN WAS APPROXIMATELY RS 90,000/-. THE SOURCE WAS THE SALAR Y AND SAVINGS OF MY HUSBAND ' Q.9 SH. S.K SRIVASTAVA THE COMPLAINANT SUBMITTED DOCUMENTARY EVIDENCE IN SUPPORT OF HIS STATEMENT EX HIBIT I TO EXIBIT 36 AND YEARWISE DETAILS OF UNACCOUNTED AND U NEXPLAINED INCOME, EXPENDITURE AND INVESTMENT SUBMITTED, FOR T HE A. Y 2005- 06 . POINT A O. L, 2,3 AND 4, FOR THE A.YS 2006-0'- POINT NO I TO 6. 2007-08-POINT NO 1 TO 6 AND 2008-09- POI NT NO I TO 4. WHAT IS YOUR REPLY ON THESE ALLEGATIONS7 45 ANS IT IS WRONG ON YOUR PART TO SAY THAT SH. SRIVAS TAVA HAS SUBMITTED DOCUMENTARY EVIDENCE. A PERUSAL OF THE DO CUMENTS THAT YOU ARE REFERRING TO CLEARLY SHOW THAT THESE A RE NOT IN THE NATURE OF ANY EVIDENCE RATHER, THESE ARE AGAIN EITHER REPITITIONS OF THE VULGAR AND BASELESS ALLEGATIONS THAT SH. S K SRIVASTAVA IS IN THE HABIT OF MAKING OR ARE NEW ALL EGATIONS LEVELED BY HIM WHICH ARE EQUALLY BASELESS AND SCURR ILOUS. MY AVERMENTS IN REPLY 8 ABOVE ARE REITERATED. IN THIS REGARD, MY DETAILED REPLY IN MY LETTER DATED 11703/2013, WHICH GIVES POINT WISE REPLY TO EACH AND EVERY ALLEGATIONS LEVE LED, ALONG WITH THE FACTS AND THE DOCUMENTARY EVIDENCE WHERE E VER APPLICABLE HAVE BEEN PROVIDED. 0. 10 IN YOUR REPLY DATED 11/03/2013, IN PARA 1 YOU HA VE REPLIED THAT ALL SUCH ALLEGATIONS MADE HAD BEEN EXA MINED BY THE VIGILANCE DIRECTORATE OF THE DEPARTMENT AS WELL AS SENIORS AND FILE HAD BEEN CLOSED PURSUANT TO THE SAME. SO, HAVE YOU ANY DOCUMENTARY EVIDENCE FOR THIS VERIFICATION? ANS: I HAVE NO DOCUMENTS IN MY POSSESSION REGARDING THE SAME HOWEVER, AS HAD BEEN REQUESTED BY MY LETTER DATED 11/03/2013. A COPY OF THE REPORT MAY BE SOUGHT FROM THE CONCERNED AUTHORITIES. WITHOUT PREJUDICE TO THE SAM E, IT IS STATED THAT THESE ALLEGATIONS HAVE BEEN WITHDRAWN B Y THE COMPLAINANT AS ALREADY BEEN STATED ABOVE BY ME AND 46 THEREFORE HAVE NO BEARING TO THE IMPUGNED ASSESSMEN T PROCEEDINGS. 22. PROCEEDING FURTHER, THE ASSESSING OFFICER ISSUE D SUMMONS U/S 131 OF THE ACT TO SHRI ABHISAR SHARMA, HUSBAND OF T HE ASSESSEE WHOSE STATEMENT WAS RECORDED ON OATH ON 29.03.2013. THE RELEVANT PART OF THE STATEMENT READS AS UNDER: 'Q NO 7 AS PER TAX EVASION PETITION , SH. S.I< SRIVASTAVA ALLEGED TO MS SHUMANA SEN H O SH. ABHISAR SHARMA HA VE INCURRED EXPENDITURE TO THE TUNE OF RS. 3 CRORES OR MORE ON SUCH FOREIGN TRAVELS DURING THE FINANCIAL YEAR 2004 -05, 2005- 06, 2006- 07 AND 2007-08 . WHETHER YOU HAVE GONE TO FOREIGN TRIP DURING THE FINANCIAL YEAR 2004-05, 2005-06, 20 06-07 AND 2007-08. WHETHER THESE TRIPS ARE OFFICIAL OR PERSON AL? ANS ALL ALLEGATIONS MADE BY SH. S.K. SRIVASTAVA ARE FALSE, BASELESS AND MALICIOUS. NO EXPENDITURE OF RS. 3 CRO RES OR MORE WERE INCURRED ON THESE TRIPS. THE DETAIL OF THE EXP ENDITURE ACTUALLY INCURRED HAVE BEEN GIVEN TO MY A.O. VIDE L ETTER DATED 24.2.2012. THESE TRIPS WERE PERSONAL IN NATURE. Q.NO. 8.AS YOU HAVE TOLD IN YOUR ANSWER OF O.NO.7 T HAT YOU HAVE TRAVELLED PERSONALLY, PLEASE GIVE DETAILS WITH EXPENDITURE INCURRED ON TICKETS, FOODING & LODGING, ON LOCAL SI TE SEEN AND OTHER EXPENSES ETC. 7 ALSO PROVIDE DOCUMENTARY EVIDENCE? 47 ANS.8 THE DETAILS ARE AS UNDER:- THERE WAS NO FOREIGN VISIT WITH FAMILY FOR A. Y. 20 05-06. I. IN APRIL 2005. A.Y. 2006-07 A VISIT WAS MADE TO THE U.K. FOR TOURISM PURPOSE. T HE EXPENDITURE INCURRED W AS APPROX. RS. 80,000/- TO RS. I LAC. THE SOURCE OF THE SAME WAS MY SALARY, WHEREIN TWO TICKE TS AND 1000 DOLLER WERE PROVIDED TO ME BY MY EX-EMPLOYER A ND ALSO I HAD SUBSTANTIAL SAVINGS AT THAT TIME. BOARDING AND LODGING FOR MOST OF THE TRIP WAS PROVI DED BY MY WIFE'S AUNT, WHO IS A RESIDENT OF U. K. THE TRIP WA S FOR A DURATION OF 7 TO 10 DAYS 2. NOV. DEC. 2005: A. Y.2006-07 A TRIP WAS MADE TO AUSTRALIA FOR A PERIOD OF 7 DAYS TO 10 DAYS IN WAS MY SALARY OF WHICH FOREIGN TRAVEL ALLOWANCE OF RS 1,32.996 - PER ANNUM WAS A COMPONENT I HAD A BALANC E OF.RS. 1,89,565 - IN MY ACCOUNT AT THAT TIME IN STANDARD C HARTERED BANK. CHEQUES WERE ISSUED FROM THE SAME FOR THE PUR POSE OF PURCHASING TICKETS, VISA FEES, BOARDING AND LODGING AND FOR SITE SEEN. AN APPROX. EXPENDITURE OF RS. 1,25,000/- TO R S. 1.35.000 - WAS INCURRED FOR THE SAME. THIS TRIP WAS UNDERTAK EN BY MYSELF AND MY FAMILY CONSISTING OF MY WIFE AND MY D AUGHTER WHO WAS AT THAT TIME ONE YEAR AND 10 MONTHS OLD. 3. AUG. 2006: A. Y.2007-08 : 48 U.K. AND REPUBLIC OF IRELAND. AN EXPENDITURE OF APPROXIMATELY RS. 90,000/- WAS INCURRED IN THIS TRIP, WHICH WAS UNDERTAKEN BY MYSELF AND MY FAMILY, CONSISTING OF MY WIFE AND MY DAUGHTER, WHO WAS AT THAT TIME 2 YEARS AND 8 MONTHS OLD. THE SOURCE OF MY EXPENDITURE WAS MY SALARY CONSISTING OF FOREIGN TRAVEL ALLOWANCE OF FOREIGN TRAVEL ALLOWANCE OF RS. 1,32,9 96/- PER ANNUM AND MY SAVINGS. 1 HAD A BALANCE OF APPROX. RS . 1,65,271 - IN MY ACCOUNT AT THAT TIME. BOARDING AND LODGING IN U.K. WAS AT MY WIFE'S AUNT PLACE AND IN IRELAND THE BOARDING AN D LODGING WAS THROUGH A PACKAGE TOUR, MADE BY TRAVEL AGENT TH E TRIP WAS FOR 7 TO 10 DAYS. 4. THERE WAS NO FOREIGN TRIP WITH FAMILY FOR THE ASST T. YEAR. 2008-09 0.9. MS SHUMAN SEN YOUR WIFE HAS CLAIMED IN HER WRI T PARA3.43. PAGE 17 AND 18, A COPY OF AFFIDAVIT SUBMITTED IN HO N'BLE DELHI HIGH COURT THAT HER TRIP TO EUROPE AROSE BECAUSE OF A YEARLY VACATION ABROAD WITH FAMILY BEING PART OF SALARY PA CKAGE OF SH. ABHISAR SHARMA DECLARED TO BE HER SPOUSE AND AN EMP LOYEE TO M/S NDTV LTD. IN THIS CONTEXT WHAT DO YOU WANT TO S AY? ANS. 9. IT HAS BEEN CORRECTLY STATED BY MY WIFE THA T FOREIGN TRAVEL ALLOWANCE WAS PART OF MY SALARY PACKAGE. THE SAME IS EVIDENT FROM THE SUBMISSIONS MADE BY ME IN MY REPLY ABOVE IN Q NO. 8 ' 49 COPY OF BANK STATEMENT OF ABHISAR SHARMA WITH STAND ARD BANK ALSO EXAMINED TO VERIFY THE WITHDRAWALS FOR FO REIGN TRIP. 23. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, TH E ASSESSEE BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER THAT THE ALLEGATION PERTAINING TO HER MISDEMEANOR REGARDING NDTV LTD AL LEGATIONS HAVE BEEN EXAMINED IN DETAIL BY THE VIGILANCE DIRECTORAT E OF INCOME TAX DEPARTMENT AND THE FILE HAS BEEN CLOSED. TO CONFIR M THE FACTS MENTIONED BY THE ASSESSEE, THE ASSESSING OFFICER CA LLED FOR INFORMATION U/S 133(6) OF THE ACT FROM THE DIT [VIG ILANCE]-II, NEW DELHI, WHO, VIDE LETTER NO. 07116 DATED 30.03.2013 INFORMED AS UNDER: IN THIS REGARD I AM DIRECTED TO SUBMIT THAT THE CO MPLIANT CONCERNING NDTV LTD MADE BY SH. S.K. SRIVASTAVA AGA INST ADS SHUMANA SEN WAS REGISTERED AS FCR-A/SD/NZ/56/13 AND SAME HAS BEEN DOSED BY DGIT(VIG.) ON 15/02/2013 IN ABSENCE O F ANY VIGILANCE ANGLE AND IN VIEW OF HON'BLE DELHI HIGH C OURT'S ORDER/DIRECTIONS. 50 24. PROCEEDING FURTHER, THE ASSESSING OFFICER ONCE AGAIN CALLED FOR INFORMATION U/S 133(6) OF THE ACT FROM THE ACIT, CI RCLE 47(1), NEW DELHI WHO IS THE ASSESSING OFFICER OF SHRI ABHISAR SHARMA, HUSBAND OF THE ASSESSEE. INFORMATION PROVIDED BY THE CONCERNE D ASSESSING OFFICER READS AS UNDER: A) DETAILS OF FOREIGN TRAVEL INCURRED BY ABHISAR S HARMA AND HIS FAMILY FROM FY.2003-04 TO FY.2008-09, ALONGWITH RELEVANT PAGES OF BANK STATEMENT SHOWING SOURCES AND EXPENDI TURE INCURRED FOR FOREIGN TRIPS. B) INFORMATION U/S 133(6) RECEIVED FROM NDTV LTD. BY ACIT 47(1), NEW DELHI. C) SALARY AND REIMBURSEMENT STATEMENT OF ABHISAR SH ARMA. D) COPY OF PASSPORT OF ABHISAR SHARMA. E) COPY OF PASSPORT OF MS. SHUMANA SEN F) COPY OF STATEMENTS OF ABHISAR SHARMA RECORDED U/ S 131 OF IT ACT, 1961 BY ACIT CIRCLE 47( 1), NEW DELHI ON 4/03/2013. G). COPY OF STATEMENT OF M/S SHUMANA SEN RECORDED U/S 131 OF IT ACT, 1961, BY ACIT CIRCLE 47( 1), NEW DELHI O N 11/03/2013. 51 25. ASSESSMENT ORDER FRAMED U/S 143(3) R.W.S 147 OF THE ACT IN THE CASE OF SHRI ABHISAR SHARMA FOR ASSESSMENT YEAR 200 5-06 WAS ALSO CALLED FOR AND WAS DULY RECEIVED. 26. THE GIST OF THE ENQUIRIES CONDUCTED BY THE ASSE SSING OFFICER READ AS UNDER: THE PROCEEDING PARAS OUTLINE THE COMPLETE DETAILS OF IN VESTIGATIONS CONDUCTED IN THIS CASE. BRIEFLY STATED THE SAME ARE AS UNDER: A) .INFORMATION U/S 133(6) OF IT ACT, 1961 WAS OBTAINE D FROM M/S NDTV L.TD. REGARDING EMPLOYMENT CONTRACTS OF AB HISAR SHARMA FOR AY. 2005-06 TO AY.2008-09. B) .INFORMATION U/S 133(6) OF IF ACT, 1961 WAS OBTAINE D FROM DIT(VIGILANCE)-II, NEW DELHI REGARDING OUTCOME VIG ILANCE PROCEEDINGS IN CASE OF THE ASSESSEE VISA VIS NDTV L TD. C) . INFORMATION U/S 133(6) OF IT ACT, 1961 FROM ACIT CIRCLE 47(1), NEW DELHI REGARDING INVESTIGATIONS CO NDUCTED IN CASE OF ABHISAR SHARMA AND ASSESSMENT ORDER PASSED FOR AY.2005-06 BY HIM. D) STATEMENTS RECORDED U/S 131 OF IT ACT,1961 OF SH. S.K. SRIVASTAVA, SH. ABHISAR SHARMA AND THE ASSESSEE. 52 E) BANK STATEMENTS OF ABHISAR SHARMA WITH STANDARD CHARTERED BANK AND THAT OF THE ASSESSEE WITH SYNDIC ATE BANK WERE EXAMINED VIS A VIS THESE FOREIGN TRIPS. BANK S TATEMENT WITH ICICI BANK (JOINT ACCOUNT OF ASSESSEE WITH HER HUSBAND) WERE EXAMINED. F) APART FROM IT INFORMATION U/S 133(6) WAS CALLED FRO M ACIT(FINANCE) O/O CCIT-I, NEW DELHI, ACIT(PERSONNEL ) O/O CCIT-I, NEW DELHI AND M/S BRITISH AIRWAYS AND SAME WAS OBTAINED. G) COPIES OF PASSPORTS OF THE ASSESSEE AND ABHISAR SHA RMA WERE EXAMINED FOR VERIFICATION OF THESE FOREIGN TRAVELS BY UNDERSIGNED AND ACIT CIRCLE 47(1), NEW DELHI 27. ON THE BASIS OF THE AFORESAID ENQUIRIES, THE AS SESSING OFFICER FINALLY CONCLUDED AS UNDER; AS A RESULT OF ABOVE MENTIONED INVESTIGATIONS CONDU CTED THE FOLLOWING FACTS EMERGE:- A) . SH. ABHISAR SHARMA WAS GIVEN TWO ECONOMY TICKETS AND US $ 1000 TOWARDS TRAVEL ALLOWANCE FOR AY.2005-06 BY M/S NDTV LTD. WAS FOR EUROPE TRIP. HOWEVER FOREIGN TRIP WAS UNDERTAKEN IN AY.2005-06 BY ASSESSEE AND HER FAMILY. B) . THIS FOREIGN TRIP WAS UNDERTAKEN IN APRIL 2005 RE LEVANT TO AY2006-07. SOURCES OF THE SAME WAS STATED TO BE SAL ARY 53 SAVINGS OF ABHISAR SHARMA AND TWO TICKETS ALONGWITH US $ 1000 PROVIDED BY M/S NDTV LTD. BOARDING AND LODGING WAS PROVIDED BY ASSESSEE'S AUNT IN UK. THE DURATION OF STAY WAS 7-10DAYS. C) IN AY.2006-07 ANOTHER TRIP WAS UNDERTAKEN TO AUSTR ALIA FOR 7- LO DAYS. SOURCE WAS STATED TO BE FOREIGN TRAVEL ALLOWANCE OF RS. 1,32,996/- OF SH. ABHISAR SHARMA. CHEQES FOR THIS PURPOSE HAVE BEEN ISSUED FROM BANK A/C OF SH. ABHIS AR SHARMA WITH STANDARD CHARTERED BANK FOR PURCHASE OF TICKETS, VISA FEES, BOARDING/LODGING ETC. THIS TRIP WAS UNDERTAKEN BY THE ASSESSEE, HER HUSBAND I.E. SH. AB HISAR SHARMA AND THEIR DAUGHTER WHOSE AGE WAS LYEAR 1 OMO NTHS AT THAT POINT OF TIME. D) . IN AUGUST 2006 RELEVANT TO AY. 2007-08 A FOREIGN TRAVEL WAS UNDERTAKEN TO U.K AND REPUBLIC OF IRELAND FOR 7 TO LODAYS BY ASSESSEE, HER HUSBAND AND HER DAUGHTER. SOURCE W AS FOREIGN TRAVEL ALLOWANCE AND SAVINGS OF SH. ABHISAR SHARMA AND BOARDING & LODGING IN U.K. WAS ASSESSEE'S AUNT. BOARDING TO LODGING IN IRELAND WAS THROUGH PACKAGE ARRANGED BY A TRAVEL AGENT. E) THERE WAS NO FOREIGN TRIP CONDUCTED IN F.Y. RELATIN G TO A Y.2008-09 BY THE ASSESSEE AND HER FAMILY. G) THESE FACTS OF FOREIGN TRAVEL HAS BEEN CONFORMED FR OM PASSPORTS OF ASSESSEE AND HER HUSBAND. FOREIGN TRAV EL 54 ALLOWANCE OF SH. ABHISAR SHARMA HAS BEEN CONFIRMED FROM EMPLOYMENT CONTRACT OF SH. ABHISAR SHARMA WITH NDTV LTD. WITHDRAWAL'S IN THIS REGARD APPEARS IN SH. ABHISAR SHRAMA'S BANK ACCOUNT H) M/S NDTV LTD. HAS CONFIRMED THAT FOREIGN TRAVEL ALL OWANCE HAS BEEN PROVIDED TO ABHISAR SHARMA AS PART OF TRAV EL ALLOWANCE. I) SH. ABHISAR SHARMA AND ASSESSEE HAS CONFORMED UNDER OATH IN THEIR STATEMENTS RECORDED U/S 131 OF ID ACT. 196 1 THAT THE SOURCES OF THESE FOREIGN TRAVELS WAS FOREIGN TRAVEL ALLOWANCE PROVIDED BY M/S NDTV LTD. AND HIS PERSONAL SAVINGS AND THE ASSESSEE AND HER DAUGHTER HAD ACCOMPANIED HIM AS FA MILY MEMBERS. THERE ARE SUPPORTING WITHDRAWALS IN THE BA NK ACCOUNT OF ABHISAR SHARMA REGARDING THEIR FOREIGN T RAVELS. J). A COMPLAINT TO THIS EFFECTS WAS BEING PROCESSE D BY VIGILANCE DIRECTORATE OF INCOME TAX DEPARTMENT AGAINST THE AS SESSEE WHICH HAS BEEN CLOSED AS PER DETAILS OUTLINED IN PR OCEEDING. PARAGRAPHS. THE FACTS OF THE COMPLAINT WERE SAME AN D RELATED FOREIGN TRAVELS OF THE ASSESSEE W.R.T. M/S NDTV 1 T D. K). THE ASSESSING OFFICER OF SH. ABHISAR SHARMA HAS MADE AN ADDITION FOR UNDISCLOSED PERQUISITES IN HANDS OF AB HISAR SHARMA IN AY. 2005-06 IN REGARD TO THE TWO ECONOMY TICKETS AND US $ 1000 RECEIVED BY HIM FROM M/S NDTV LTD. 55 1) THUS, THE REASONS OUTLINED IN REOPENING OF ASSES SMENT DO NOT STAND PROVED IN VIEW OF THE EMPLOYMENT CONTRACT PRO VIDED BY M/S NDTV LTD. AND OTHER INVESTIGATIONS CONDUCTED AS ELABORATED ABOVE M). THE STATEMENTS RECORDED OF SH ABHISAR SHARMA U/ S 131 OF IT ACT,1961 IS SEPARATELY BEING FORWARDED TO ACIT CIRC LE 47(1), NEW DELHI FOR INFORMATION AND ACTION, AS DEEMED FIT . SH. ABHISAR SHARMA IN HIS STATEMENT AND SUBMISSIONS BEFORE ACIT CIRCLE 47(1), NEW DELHI HAS CONFIRMED THIS FAC T THAT FOREIGN TRAVELS WERE UNDERTAKEN THROUGH HIS SOURCES AND SAVINGS AND HIS WIFE AND DAUGHTER ACCOMPANIED HIM A S FAMILY MEMBERS. REFERENCE IS DRAWN TO THIS LETTER DATED 13 /02/2013 AND HIS STATEMENT RECORDED ON 04/03/2013. SIMILARLY THE ASSESSEE REITERATED THE SAME BEFORE A CIT, CIRCLE 47(1), NEW DELHI IN HIS STATEMENT RECORDED O N 11/03/2013. O). THERE WAS NO FOREIGN TRIP UNDERTAKEN FOR AY 200 5-06 AND AY.2008- 09. P). NO EVIDENCE COULD BE GATHERED IN THESE INVESTIG ATIONS THAT THE ASSESSEE HAD INCURRED UNACCOUNTED EXPENDITURE F OR THESE FOREIGN TRAVELS. 56 Q). THE GENUINENESS OF THE EXPENDITURE SHOWN FOR TH ESE FOREIGN TRAVELS CAN ONLY BE ASCERTAINED BY THE ASSE SSING OFFICER OF SH. ABHISAR SHARMA BECAUSE SH. ABHISAR S HARMA HAS OWNED UP THE ENTIRE EXPENDITURE INCURRED ON THE SE FOREIGN TRAVELS. THE STATEMENTS RECORDED OF SH. ABH ISAR SHARMA ON THIS ISSUE SHALL BE FORWARDED TO AC1T CIR CLE 47(1), NEW DELHI FOR INFORMATION AND ACTION, AS DEEMED FIT . R). HENCE, IT IS CONCLUDED THAT THE ASSESSEE ACCOMP ANIED HER HUSBAND DURING THESE FOREIGN TRIPS AND SOURCES SUCH FOREIGN TRIPS WAS OUT OF FOREIGN TRAVEL ALLOWANCE PROVIDED TO HER HUSBAND AND HIS SAVINGS. NO ADVERSE INFERENCE IN HA NDS OF THE ASSESSEE IS DRAWN. ASSESSED IN VIEW OF THE ABOVE RETURNED INCOME AT RS . 1,8TV85/- IS ACCEPTED ISSUE NECESSARY FORMS. 28. A CONSPECTUS READING OF THE ASSESSMENT ORDER VI S A VIS THE ISSUES RAISED BY THE PCIT WOULD SHOW THAT THE PCIT HAS ASS UMED JURISDICTION ON THE GROUND THAT NO PROPER ENQUIRIES WERE CONDUCT ED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT P ROCEEDINGS. WHEREAS, THE FACTS ON RECORD AND AS DISCUSSED HEREI NABOVE CLEARLY REVEAL THAT THOROUGH AND INVESTIGATIVE ENQUIRIES WE RE CONDUCTED BY THE ASSESSING OFFICER, NOT ONLY FROM THE ASSESSEE, BUT ALSO FROM ALL THE CONCERNED PERSONS. AS MENTIONED ELSEWHERE, THE ENTI RE INVESTIGATION/ ENQUIRY REVOLVE AROUND THE MALICIOUS AND SCURRILOUS ALLEGATIONS MADE 57 BY SHRI S.K. SRIVASTAVA. WE HAVE BEEN TOLD THAT SH RI S.K. SRIVASTAVA HAS BEEN REMOVED FROM SERVICES BY THE GOVERNMENT OF INDIA UNDER FUNDAMENTAL RULE 56(J) OF CENTRAL CIVIL SERVICES (P ENSION) RULES, 1972. 29. ADVERTING TO THE FACTS OF THE CASE, WE FIND THA T IT IS A SETTLED POSITION OF LAW THAT POWERS U/S 263 OF THE ACT CAN BE EXERCISED BY THE COMMISSIONER ON SATISFACTION OF TWIN CONDITIONS, I. E., THE ASSESSMENT ORDER SHOULD BE ERRONEOUS AND PREJUDICIAL TO THE IN TEREST OF THE REVENUE. BY 'ERRONEOUS' IT IS MEANT CONTRARY TO LAW . THUS, THIS POWER CANNOT BE EXERCISED UNLESS THE COMMISSIONER IS ABLE TO ESTABLISH THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THUS, WHERE THERE ARE TWO POSSIBLE VIEWS AND THE ASSESSING OFFICER HAS TAKEN ONE OF THE POSSIBLE VIEWS, NO ACTION TO EXERCISE POWERS OF REVISION CAN ARISE, NOR CAN REVI SIONAL POWER BE EXERCISED FOR DIRECTING A FULLER ENQUIRY TO FIND OU T IF THE VIEW TAKEN IS ERRONEOUS. THIS POWER OF REVISION CAN BE EXERCISED ONLY WHERE NO ENQUIRY, AS REQUIRED UNDER THE LAW, IS DONE. IT IS NOT OPEN TO ENQUIRE IN CASE OF INADEQUATE INQUIRY. OUR VIEW IS FORTIFIED B Y THE DECISION OF HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. NIRAV MODI, [2016] 71 TAXMANN.COM 272 (BOMBAY). THIS VIEW IS FURTHER S UPPORTED BY THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE C ASE OF SHRI PRAKASH 58 BHAGCHAND KHATRI IN TAX APPEAL NO. 177 WITH TAX APP EAL NO.178 OF 2016, WHEREIN THE HON'BLE GUJARAT HIGH COURT WAS SE IZED WITH THE FOLLOWING SUBSTANTIAL QUESTION OF LAW:- ' WHETHER THE TRIBUNAL IS RIGHT IN LAW AND ON FACTS I N UPHOLDING THE ORDER PASSED BY THE CIT UNDER SECTION 263 OF THE ACT ON MERITS AND STILL STORING THE ISSUE OF ALLOWABILITY OF DEDU CTION UNDER SECTION 54 OF THE ACT TO THE FILE OF ASSESSING OFFICER EVEN T HOUGH THE WORKING OF ALLOWABILITY OF DEDUCTION UNDER SECTION 54F IS AVAILABLE IN THE ORDER UNDER SECTION 263 WHICH IS NOT DISPUTED BY THE ASSESSEE BEFORE ITAT.' 30. AND THE HON'BLE HIGH COURT, AFTER CONSIDERING T HE FACTS, HELD AS UNDER:- '6. IT CAN THUS BE SEEN THAT THOUGH FINAL ORDER OF ASSESSMENT WAS SILENT ON THIS ASPECT, THE ASSESSING OFFICER HAD CA RRIED OUT INQUIRIES ABOUT THE NATURE OF SALE OF LAND AND ABOU T THE VALIDITY OF THE ASSESSEE'S CLAIM OF DEDUCTION UNDER SECTION 54F OF THE ACT. LEARNED COUNSEL FOR THE REVENUE HOWEVER SUBMITTED T HAT THESE INQUIRIES WERE CONFINED TO THE CLAIM OF DEDUCTION U NDER SECTION 54F OF THE ACT IN THE CONTEXT OF FULFILLING CONDITIONS CONTAINED THEREIN AND MAY POSSIBLY HAVE NO RELEVANCE TO THE Q UESTION WHETHER THE SALE OF LAND GAVE RISE TO A LONG TERM CAPITAL G AIN. LOOKING TO THE TENOR OF QUERIES BY THE ASSESSING OFFICE AND DETAIL S . A.Y. 2009-10 59 SUPPLIED BY THE ASSESSEE, WE ARE UNABLE TO ACCEPT S UCH A CONDITION. IN THAT VIEW OF THE MATTER, THE OBSERVATION OF THE TRIBUNAL THAT THE ASSESSING OFFICER HAVING MADE INQUIRIES AND WHE N TWO VIEWS ARE POSSIBLE, REVISIONAL POWERS COULD NOT BE EXERCISED, CALLED FOR NO INTERFERENCE. SINCE WITH RESPECT TO COMPUTATION AND ASSERTIONS OF OTHER ASPECTS OF DEDUCTION UNDER SECTION 54FOFTHE ACT, THE TRIBUNAL HAS REMANDED THE PROCEEDINGS, NOTHING STAT ED IN THIS ORDER WOULD AFFECT EITHER SIDE IN CONSIDERATIONS OF SUCH CLAIM. 7. NO QUESTION OF LAW ARISES. TAX APPEALS ARE DISMI SSED.' 31. THE HON'BLE SUPREME COURT IN MALABAR INDUSTRIAL CO. LTD., 243 ITR 83, HAS LAID DOWN THE FOLLOWING RATIO: ' A BARE READING OF SECTION 263 OF THE INCOME-TAX ACT, 1961, MAKES IT CLEAR THAT THE PREREQUISITE FOR THE EXERCISE OF JURISDICTION BY THE COMMISSIONER SUO MOTU UNDER IT, IS THAT THE ORDER O F THE INCOME- TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDI CIAL TO THE INTERESTS OF THE REVENUE. THE COMMISSIONER HAS TO B E SATISFIED OF TWIN CONDITIONS, NAMELY, (I) THE ORDER OF THE ASSES SING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS P REJUDICIAL 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 PREJ UDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IS PREJUDICIA L TO THE REVENUE-- RECOURSE CANNOT BE HAD TO SECTION 263(1) OF THE ACT. THE PROVISION 60 CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE ASSESSING OFFICER, IT IS ONL Y WHEN AN ORDER IS ERRONEOUS THAT THE SECTION WILL BE ATTRACTED. AN INCORRECT ASSUMPTION OF FACTS OR AN INCORRECT APPLICATION OF LAW WILL SATISFY THE REQUIREMENT OF THE ORDER BEING ERRONEOUS '. 32. THE CO-ORDINATE BENCH IN THE CASE OF TECHNIP UK LTD, ITA NO. 1116/DEL/2014 VIDE ORDER DATED 17.12.2018 HAS HELD AS UNDER: 62. WE FIND THE HON'BLE DELHI HIGH COURT IN THE CA SE OF CIT VS. ANIL KUMAR REPORTED IN 335 ITR 83 HAS HELD THAT WHERE IT WAS DISCERNIBLE FROM RECORD THAT THE A.O HAS APPLIE D HIS MIND TO THE ISSUE IN QUESTION, THE LD. CIT CANNOT INVOKE SECTION 263 OF THE ACT MERELY BECAUSE HE HAS DIFFERENT OPINION. RELEVANT OBSERVATION OF THE HIGH COURT READS AS UNDER: 63. WE FIND THE HON'BLE DELHI HIGH COURT IN THE CAS E OF VIKAS POLYMER REPORTED IN 341 ITR 537 HAS HELD AS UNDER: WE ARE THUS OF THE OPINION THAT THE PROVISIONS OF S. 263 OF THE ACT, WHEN READ AS A COMPOSITE WHOLE MAKE IT INC UMBENT UPON THE CIT BEFORE EXERCISING REVISIONAL POWERS TO : (I) CALL FOR AND EXAMINE THE RECORD, AND (II) GIVE THE ASSES SEE AN OPPORTUNITY OF BEING HEARD AND THEREAFTER TO MAKE O R CAUSE TO BE MADE SUCH ENQUIRY AS HE DEEMS NECESSARY. IT IS O NLY ON FULFILMENT OF THESE TWIN CONDITIONS THAT THE CIT MA Y PASS AN ORDER EXERCISING HIS POWER OF REVISION. MINUTELY EX AMINED, THE PROVISIONS OF THE SECTION ENVISAGE THAT THE CIT MAY CALL FOR THE 61 RECORDS AND IF HE PRIMA FACIE CONSIDERS THAT ANY OR DER PASSED THEREIN BY THE AO IS ERRONEOUS INSOFAR AS IT IS PRE JUDICIAL TO THE INTEREST OF THE REVENUE, HE MAY AFTER GIVING TH E ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTER MAKING OR C AUSING TO BE MADE SUCH ENQUIRY AS HE DEEMS NECESSARY, PASS SU CH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY. T HE TWIN REQUIREMENTS OF THE SECTION ARE MANIFESTLY FOR A PU RPOSE. MERELY BECAUSE THE CIT CONSIDERS ON EXAMINATION OF THE RECORD THAT THE ORDER HAS BEEN ERRONEOUSLY PASSED SO AS TO PREJUDICE THE INTEREST OF THE REVENUE WILL NOT SUFFICE. THE A SSESSEE MUST BE CALLED, HIS EXPLANATION SOUGHT FOR AND EXAM INED BY THE CIT AND THEREAFTER IF THE CIT STILL FEELS THAT THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE, THE CIT MAY PASS REVISIONAL ORDERS. IF, ON THE OTHER HA ND, THE CIT IS SATISFIED, AFTER HEARING THE ASSESSEE, THAT THE ORDERS ARE NOT ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE, HE MAY CHOOSE NOT TO EXERCISE HIS POWER OF REVISION. T HIS IS FOR THE REASON THAT IF A QUERY IS RAISED DURING THE COU RSE OF SCRUTINY BY THE AO, WHICH WAS ANSWERED TO THE SATIS FACTION OF THE AO, BUT NEITHER THE QUERY NOR THE ANSWER WERE R EFLECTED IN THE ASSESSMENT ORDER, THIS WOULD NOT BY ITSELF L EAD TO THE CONCLUSION THAT THE ORDER OF THE AO CALLED FOR INTE RFERENCE AND REVISION. IN THE INSTANT CASE, FOR EXAMPLE, THE CIT HAS OBSERVED IN THE ORDER PASSED BY HIM THAT THE ASSESS EE HAS NOT FILED CERTAIN DOCUMENTS ON THE RECORD AT THE TIME O F ASSESSMENT. ASSUMING IT TO BE SO, IN OUR OPINION, T HIS DOES NOT JUSTIFY THE CONCLUSION ARRIVED AT BY THE CIT THAT T HE AO HAD SHIRKED HIS RESPONSIBILITY OF EXAMINING AND INVESTI GATING THE CASE. MORE SO, IN VIEW OF THE FACT THAT THE ASSESSE E EXPLAINED THAT THE CAPITAL INVESTMENT MADE BY THE PARTNERS, W HICH HAD BEEN CALLED INTO QUESTION BY THE CIT WAS DULY REFLE CTED IN THE 62 RESPECTIVE ASSESSMENTS OF THE PARTNERS WHO WERE I.T . ASSESSEES AND THE UNSECURED LOAN TAKEN FROM M/S STUTEE CHIT & FINANCE (P) LTD. WAS DULY REFLECTED IN THE ASSESSMENT ORDER OF THE SAID CHIT FUND WHICH WAS ALSO AN ASSESSEE. 64. SINCE IN THE INSTANT CASE THE A.O AFTER CONSIDE RING THE VARIOUS SUBMISSIONS MADE BY THE ASSESSEE FROM TIME TO TIME AND HAS TAKEN A POSSIBLE VIEW, THEREFORE, MERELY BE CAUSE THE DIT DOES NOT AGREE WITH THE OPINION OF THE A.O, HE CANNOT INVOKE THE PROVISIONS OF SECTION 263 TO SUBSTITUTE HIS OWN OPINION. IT HAS FURTHER BEEN HELD IN SEVERAL DECIS IONS THAT WHEN THE A.O HAS MADE ENQUIRY TO HIS SATISFACTION A ND IT IS NOT A CASE OF NO ENQUIRY AND THE DIT/CIT WANTS THAT THE CASE COULD HAVE BEEN INVESTIGATED/ PROBED IN A PARTICULAR MANN ER, HE CANNOT ASSUME JURISDICTION U/S 263 OF THE ACT. IN VIEW OF THE ABOVE DISCUSSION, WE HOLD THAT THE ASSUMPTION OF JU RISDICTION BY THE DIT U/S 263 OF THE ACT IS NOT IN ACCORDANCE WITH LAW. WE, THEREFORE, QUASH THE SAME AND GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 33. IN YET ANOTHER CASE, JUBILANT ENERGY [P] LTD IT A NO. 3927/DEL/2016 ORDER DATED 04.07.2018, THE CO-ORDINA TE BENCH UNDER SIMILAR FACTS AND CIRCUMSTANCES, HAS HELD AS UNDER: 19. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF GABRIEL INDIA LTD 203 ITR 108 HAS HELD AS UNDER : THE POWER OF SUO MOTU REVISION UNDER SUBSECTION (1 ) IS IN THE NATURE OF SUPERVISORY JURISDICTION AND THE SAME CAN BE 63 EXERCISED ONLY IF THE CIRCUMSTANCES SPECIFIED THERE IN EXIST. TWO CIRCUMSTANCES MUST EXIST TO ENABLE THE COMMISSI ONER TO EXERCISE POWER OF REVISION UNDER THIS SUB-SECTION, VIZ., (I) THE ORDER IS ERRONEOUS; (II) BY VIRTUE OF THE ORDER BEI NG ERRONEOUS PREJUDICE HAS BEEN CAUSED TO THE INTERESTS OF THE R EVENUE. IT HAS, THEREFORE, TO BE CONSIDERED FIRSTLY AS TO WHEN AN ORDER CAN BE SAID TO BE ERRONEOUS. WE FIND THAT THE EXPRE SSIONS 'ERRONEOUS', 'ERRONEOUS ASSESSMENT' AND 'ERRONEOUS JUDGMENT' HAVE BEEN DEFINED IN BLACK'S LAW DICTIONA RY. ACCORDING TO THE DEFINITION, 'ERRONEOUS' MEANS 'INV OLVING ERROR; DEVIATING FROM THE LAW'. 'ERRONEOUS ASSESSME NT' REFERS TO AN ASSESSMENT THAT DEVIATES FROM THE LAW AND IS, THEREFORE, INVALID, AND IS A DEFECT THAT IS JURISDI CTIONAL IN ITS NATURE, AND DOES NOT REFER TO THE JUDGMENT OF THE A SSESSING OFFICER IN FIXING THE AMOUNT OF VALUATION OF THE PR OPERTY. SIMILARLY, 'ERRONEOUS JUDGMENT' MEANS 'ONE RENDERED ACCORDING TO COURSE AND PRACTICE OF COURT, BUT CONT RARY TO LAW, UPON MISTAKEN VIEW OF LAW; OR UPON ERRONEOUS A PPLICATION OF LEGAL PRINCIPLES'. 12. FROM THE AFORESAID DEFINITIONS IT IS CLEAR THAT AN ORDER CANNOT BE TERMED AS ERRONEOUS UNLESS IT IS NOT IN A CCORDANCE WITH LAW. IF AN INCOME-TAX OFFICER ACTING IN ACCORD ANCE WITH LAW MAKES A CERTAIN ASSESSMENT, THE SAME CANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE, AC CORDING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELA BORATELY 64 THIS SECTION DOES NOT VISUALISE A CASE OF SUBSTITUT ION OF THE JUDGMENT OF THE COMMISSIONER FOR THAT OF THE INCOME -TAX OFFICER, WHO PASSED THE ORDER UNLESS THE DECISION I S HELD TO BE ERRONEOUS. CASES MAY BE VISUALISED WHERE THE INC OME-TAX OFFICER WHILE MAKING AN ASSESSMENT EXAMINES THE ACC OUNTS, MAKES ENQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINES THE INCOME EITHER BY ACCEPTING THE ACCOUNTS OR BY MAKING SOME ESTIMAT E HIMSELF. THE COMMISSIONER, ON PERUSAL OF THE RECORD S, MAY BE OF THE OPINION THAT THE ESTIMATE MADE BY THE OFFICE R CONCERNED WAS ON THE LOWER SIDE AND LEFT TO THE COM MISSIONER HE WOULD HAVE ESTIMATED THE INCOME AT A FIGURE HIGH ER THAN THE ONE DETERMINED BY THE INCOME-TAX OFFICER. THAT WOULD NOT VEST THE COMMISSIONER WITH POWER TO RE-EXAMINE THE ACCOUNTS AND DETERMINE THE INCOME HIMSELF AT A HIGH ER FIGURE. IT IS BECAUSE THE INCOME-TAX OFFICER HAS EXERCISED THE QUASI-JUDICIAL POWER VESTED IN HIM IN ACCORDANCE WI TH LAW AND ARRIVED AT CONCLUSION AND SUCH A CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS SIMPLY BECAUSE THE COMMISSIONER DOE S NOT FEEL SATISFIED WITH THE CONCLUSION. IT MAY BE SAID IN SUCH A CASE THAT IN THE OPINION OF THE COMMISSIONER THE OR DER IN QUESTION IS PREJUDICIAL TO THE INTERESTS OF THE REV ENUE. BUT THAT BY ITSELF WILL NOT BE ENOUGH TO VEST THE COMMI SSIONER WITH THE POWER OF SUO MOTU REVISION BECAUSE THE FIR ST REQUIREMENT, VIZ., THAT THE ORDER IS ERRONEOUS, IS ABSENT. SIMILARLY, IF AN ORDER IS ERRONEOUS BUT NOT PREJUDI CIAL TO THE 65 INTERESTS OF THE REVENUE, THEN ALSO THE POWER OF SU O MOTU REVISION CANNOT BE EXERCISED. ANY AND EVERY ERRONEO US ORDER CANNOT BE THE SUBJECT-MATTER OF REVISION BECAUSE TH E SECOND REQUIREMENT ALSO MUST BE FULFILLED. THERE MUST BE S OME PRIMA FACIE MATERIAL ON RECORD TO SHOW THAT TAX WHICH WAS LAWFULLY EXIGIBLE HAS NOT BEEN IMPOSED OR THAT BY THE APPLIC ATION OF THE RELEVANT STATUTE ON AN INCORRECT OR INCOMPLETE INTERPRETATION A LESSER TAX THAN WHAT WAS JUST HAS BEEN IMPOSED. WE, THEREFORE, HOLD THAT IN ORDER TO EXER CISE POWER UNDER SUB-SECTION (1) OF SECTION 263 OF THE ACT THERE MUST BE MATERIAL BEFORE THE COMMISSIONER TO CONSIDER THAT T HE ORDER PASSED BY THE INCOME-TAX OFFICER WAS ERRONEOUS IN S O FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. WE HAVE ALREADY HELD WHAT IS ERRONEOUS. IT MUST BE AN ORDER WHICH IS NOT IN ACCORDANCE WITH THE LAW OR WHICH HAS BEEN PA SSED BY THE INCOME-TAX OFFICER WITHOUT MAKING ANY ENQUIRY I N UNDUE HASTE. WE HAVE ALSO HELD AS TO WHAT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. AN ORDER CAN BE SAID TO B E PREJUDICIAL TO THE INTERESTS OF THE REVENUE IF IT I S NOT IN ACCORDANCE WITH THE LAW IN CONSEQUENCE WHEREOF THE LAWFUL REVENUE DUE TO THE STATE HAS NOT BEEN REALISED OR C ANNOT BE REALISED. THERE MUST BE MATERIAL AVAILABLE ON THE R ECORD CALLED FOR BY THE COMMISSIONER TO SATISFY HIM PRIMA FACIE THAT THE AFORESAID TWO REQUISITES ARE PRESENT. IF NOT, H E HAS NO AUTHORITY TO INITIATE PROCEEDINGS FOR REVISION. EXE RCISE OF 66 POWER OF SUO MOTU REVISION UNDER SUCH CIRCUMSTANCES WILL AMOUNT TO ARBITRARY EXERCISE OF POWER. IT IS WELL-SETTLED THAT WHEN EXERCISE OF STATUTORY POWER IS DEPENDENT UPON THE EXISTENCE OF CERTAIN OBJECTIVE F ACTS, THE AUTHORITY BEFORE EXERCISING SUCH POWER MUST HAVE MA TERIALS ON RECORD TO SATISFY IT IN THAT REGARD. IF THE ACTI ON OF THE AUTHORITY IS CHALLENGED BEFORE THE COURT IT WOULD B E OPEN TO THE COURTS TO EXAMINE WHETHER THE RELEVANT OBJECTIV E FACTORS WERE AVAILABLE FROM THE RECORDS CALLED FOR AND EXAM INED BY SUCH AUTHORITY. THE INCOME-TAX OFFICER IN THIS CASE HAD MADE ENQUI RIES IN REGARD TO THE NATURE OF THE EXPENDITURE INCURRED BY THE ASSESSEE. THE ASSESSEE HAD GIVEN DETAILED EXPLANATI ON IN THAT REGARD BY A LETTER IN WRITING. ALL THESE ARE PART O F THE RECORD OF THE CASE. EVIDENTLY, THE CLAIM WAS ALLOWED BY TH E INCOME- TAX OFFICER ON BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE. SUCH DECISION OF THE INCOME-TAX OFFICER C ANNOT BE HELD TO BE 'ERRONEOUS' SIMPLY BECAUSE IN HIS ORDER HE DID NOT MAKE AN ELABORATE DISCUSSION IN THAT REGARD. MOREOV ER, IN THE INSTANT CASE, THE COMMISSIONER HIMSELF, EVEN AFTER INITIATING PROCEEDINGS FOR REVISION AND HEARING THE ASSESSEE, COULD NOT SAY THAT THE ALLOWANCE OF THE CLAIM OF THE ASSESSEE WAS ERRONEOUS AND THAT THE EXPENDITURE WAS NOT REVENUE EXPENDITURE BUT AN EXPENDITURE OF CAPITAL NATURE. H E SIMPLY 67 ASKED THE INCOME-TAX OFFICER TO RE-EXAMINE THE MATT ER. THAT, IN OUR OPINION, IS NOT PERMISSIBLE. HENCE TH E PROVISIONS OF SECTION 263 OF THE ACT WERE NOT APPLICABLE TO TH E INSTANT CASE AND, THEREFORE, THE COMMISSIONER WAS NOT JUSTI FIED IN SETTING ASIDE THE ASSESSMENT ORDER. 34. THE LD. DR, IN HIS WRITTEN SUBMISSIONS, HAS REL IED UPON THE JUDGMENT DATED 20.07.2018 OF THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF BRAHAM DEV GUPTA 907 OF 2017. WE FIND THAT THE FACTS OF THE CASE IN HAND ARE NOT EVEN REMOTELY RELATED TO THE F ACTS OF THIS CASE. 35. RELIANCE WAS ALSO PLACED ON THE DECISION OF THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF BSES RAJADHANI POWER LTD 399 ITR 228 IS AGAIN DISTINGUISHABLE ON FACTS AS IN THAT CASE, THE ASSESSING OFFICER DID NOT GO INTO THE ISSUE WITH RESPECT TO WHOLE CLAIM O F DEPRECATION AND THAT WAS CONSIDERED AS AN ERROR JUSTIFYING THE ASSU MPTION OF JURISDICTION U/S 263 OF THE ACT. WHEREAS THE FACTS OF THE CASE, AS DISCUSSED HEREINABOVE, CLEARLY SHOW THAT THE REASON S ON WHICH THE PCIT ASSUMED JURISDICTION ARE THE VERY REASONS FOR REOPENING THE ASSESSMENT AND THE ASSESSING OFFICER HAS NOT ONLY M ADE THOROUGH ENQUIRY, BUT HAS ALSO DONE DETAILED INVESTIGATIVE W ORK BY CALLING FOR 68 INFORMATION U/S 133(6) OF THE ACT FROM VARIOUS PART IES MENTIONED ELSEWHERE. 36. SIMILAR IS THE FATE OF THE DECISION IN THE CASE OF RAJMANDIR ESTATES 386 ITR 162 WHEREIN THE ASSESSING OFFICER D ID NOT MAKE ANY ENQUIRY IN RESPECT OF HUGE PREMIUM COLLECTED BY THE ASSESSEE WITH A SMALL AMOUNT OF AUTHORISED SHARE CAPITAL AND, THERE FORE, IT WAS HELD THAT THE COMMISSIONER WAS JUSTIFIED IN TREATING THE ASSESSMENT ORDER AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. 37. ANOTHER DECISION RELIED UPON BY THE LD. DR WHIC H IS IN THE CASE OF MANJUNATHESWARE PACKING PRODUCTS AND CAMPHOR WORKS 231 ITR 53, WOULD, IN FACT, DO GOOD TO THE ASSESSEE BECAUSE IN THAT CASE, THE HON'BLE SUPREME COURT HELD THAT THE WORD RECORD U SED IN SEC. 263 (1) OF THE ACT WOULD MEAN THE RECORD AS IT STANDS A T THE TIME OF EXAMINATION BY THE COMMISSIONER, BUT NOT AS IT STAN DS AT THE TIME THE ORDER WAS PASSED BY THE ASSESSING OFFICER. 38. RECORDS WHICH WERE EXAMINED BY THE PCIT, HAD IT BEEN EXAMINED BY DUE APPLICATION OF MIND, THE PCIT WOULD HAVE KNO WN THE FATE OF FRIVOLOUS COMPLAINTS MADE BY SHRI S.K. SRIVASTAVA A ND HIS CONVICTION BY 69 THE HON'BLE HIGH COURT. THE OTHER DECISIONS RELIED UPON BY THE LD. COUNSEL FOR THE REVENUE ARE ALSO MISPLACED AND NEED NO SEPARATE DISCUSSION. 39. CONSIDERING THE FACTS OF THE CASE IN HAND, IN T OTALITY, IN THE LIGHT OF JUDICIAL DECISIONS DISCUSSED HEREINABOVE, SUPPOR TED BY A VORTEX OF EVIDENCES, EXAMINED AND ANALYSED BY THE ASSESSING O FFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, FURTHER SUPPORTED BY THOROUGH INVESTIGATIONS/ENQUIRIES MADE BY THE ASSESSING OFFI CER DURING THE ASSESSMENT PROCEEDINGS, WE ARE OF THE CONSIDERED VI EW THAT THERE REMAINS NOTHING FOR THE PCIT TO ASSUME JURISDICTION U/S 263 OF THE ACT TO SAY THAT THE ASSESSMENT ORDER IS NOT ONLY ERRONE OUS BUT PREJUDICIAL TO THE INTEREST OF THE REVENUE. WE ARE OF THE CONS IDERED VIEW THAT THE PCIT HAS WRONGLY ASSUMED JURISDICTION U/S 263 OF TH E ACT, HENCE HIS COMBINED ORDER FOR ALL THE A.YS DESERVES TO BE SET ASIDE. WE, ACCORDINGLY, SET ASIDE THE ORDER OF THE PCIT AND RE STORE THAT OF THE ASSESSING OFFICER. WE ORDER ACCORDINGLY. 40. BEFORE PARTING WITH THE PRESENT ORDER, WE ARE C ONSTRAINED TO BRING ON RECORD, TO BE LOOKED INTO BY THE CENTRAL B OARD OF DIRECT TAXES (CBDT) THAT PROCEEDINGS U/S 263 OF THE ACT HAVE BEE N INITIATED IN THIS 70 CASE APPARENTLY ON THE BASIS OF FALSE, FRIVOLOUS AN D BASELESS ALLEGATIONS WITH MALAFIDE INTENTION OF THE QUARTER CONCERNED WH ICH WERE ALSO EXAMINED AND FOUND NOT SUSTAINABLE BY THE VIGILANCE DIRECTORATE OF INCOME-TAX DEPARTMENT. NO DOUBT, PROCEEDINGS U/S 2 63 OF THE ACT HAVING BEEN INITIATED AND COMPLETED ON THE ALLEGATI ONS LEVELED BY A SENIOR OFFICER OF THE INCOME-TAX DEPARTMENT IS AN O RDER PASSED BY A QUASI-JUDICIAL AUTHORITY BUT IT SANS JUDICIOUS APPR OACH REQUIRED TO BE EXERCISED BY THE QUASI-JUDICIAL AUTHORITY. QUASI-J UDICIAL PROCEEDINGS INITIATED APPARENTLY ON THE BASIS OF FALSE, FRIVOLO US AND BASELESS ALLEGATIONS HAVE NOT ONLY PREJUDICED APPELLANT RAT HER IT HAS ALSO WASTED THE VALUABLE TIME OF THE TRIBUNAL. FACTS AN D CIRCUMSTANCES OF THE CASE, AVAILABLE ON RECORD AS DISCUSSED IN THE P RECEDING PARAS PROVE, THAT THE SENIOR OFFICER OF THE REVENUE DEPAR TMENT HAD NOT ONLY GOT THE PROCEEDINGS U/S 263 INITIATED AGAINST APPEL LANT ON FALSE, FRIVOLOUS AND BASELESS ALLEGATIONS RATHER CONTINUED TO LITIGATE AGAINST THE APPELLANT AS WELL AS AGAINST THE REVENUE DEPART MENT BY FILING FRIVOLOUS APPLICATIONS ONE AFTER THE OTHER BEFORE T HE HONBLE HIGH COURT OF DELHI AS WELL AS THE TRIBUNAL. 71 41. IN THESE CIRCUMSTANCES, WE DIRECT THE CBDT TO I NITIATE A DISCREET ENQUIRY IN THIS CASE TO FIND OUT, AS TO HOW AND UND ER WHAT CIRCUMSTANCES ON THE BASIS OF FALSE, FRIVOLOUS AND BASELESS ALLEGATIONS, THAT TOO WITH MALAFIDE INTENTIONS, PROCEEDINGS U/S 263 OF THE ACT HAVE BEEN INITIATED APPARENTLY TO VICTIMIZE THE APPELLAN T, TO PROCEED AGAINST THE GUILTY OFFICIALS UNDER RULES AND TO FUR THER FRAME THE GUIDELINES TO DEAL WITH SUCH ABUSE OF POWERS BY THE SENIOR OFFICERS, SO THAT SUCH INCIDENT SHOULD NOT REOCCUR. 42. IN THE RESULT, ALL THE FOUR APPEALS OF THE ASS ESSEE IN ITA NOS. 3281 TO 3284/DEL/2015 ARE ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 11.10. 2019. SD/- SD/- [ KULDIP SINGH] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11 TH OCTOBER, 2019 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI 72 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGIST RAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER