Mr. Abhisar Sharma, Noida V. DCIT, New Delhi

ITA 3285/DEL/2015

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 7253 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 22-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Unexplained expenditure; Revision of order; Salary income; Opportunity of being heard; Principle of natural justice; Period of limitation; Question of law; Difference of opinion; Corroborative evidences; Assessment record; Prejudicial to interest; Capital receipt; Time period of passing order; Change of opinion; Reassessment proceedings; Capital expenditure; TDS; Set aside
• Section: 69C; 143(3); 11A; 54F; 133(6); 143(1); 64; 43; 48; 13; 22; 147; 131; 68; 148; 263; 144

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : D : NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO. 3285 / DEL /201 5 ASSESSMENT YEAR : 20 05 - 06 MR. ABHISAR SHARMA, B - 602, PLOT NO.F - 2, THE CRESCENT, SECTOR - 50, NOIDA. PAN: AIGPS3840N VS DCIT, CIRCLE - 64(1), B - BLOCK, ROOM NO.314, PRATYAKSHKAR BHAWAN, CIVIC CENTRE, NEW DELHI. (APP ELL A NT ) (RESPONDENT) A SSESSEE BY : SHRI GAU TAM JAIN, ADVOCATE & SHRI LALIT MOHAN, CA RE VENUE BY : S HRI J.K. MISHRA, CIT - DR. DATE OF HEARING : 12 . 01 . 20 2 1 DATE OF PRONOUNCEMENT : 27 . 01 . 20 2 1 ORDER PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 30 TH MARCH, 2015 PASSED U/S 263 OF THE IT ACT BY THE PCIT - 22, DELHI, RELATING TO ASSESSMENT YEAR 2005 - 06. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 22 ND JULY, 2005 DECLARING INCOME OF RS.9,00,355/ - . THE ASSESSEE IN THE RETURN OF INCOME HAD DECLARED INCOME FROM SALARY AT RS.9,81,964/ - ITA NO. 3285 / DEL /2015 2 AND LOSS FROM HOUSE PROPERTY AT RS.81,609/ - . THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT ON 4 TH JULY, 2006 AT THE SAME INCOME. SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS REOPENED BY ISSUE OF NOTI CE U/S 148 OF THE ACT DATED 27 TH MARCH, 2012 AFTER OBTAINING PRIOR APPROVAL OF THE ADDL. CIT, RANGE - 7, NEW DELHI, VIDE HIS LETTER NO.526 DATED 27 TH MARCH, 2012. THE AO COMPLETED THE ASSESSMENT U/S 147/143(3) ON 28 TH MARCH, 2013, DETERMINING THE INCOME OF THE ASSESSEE AT RS.11,03,270/ - AS AGAINST THE RETURNED INCOME OF RS.9,00,355/ - WHEREIN HE MADE THE FOLLOWING ADDITIONS: - A) ADDITION MADE U/S 17(2) OF THE ACT RS.1,12,756 B) INCOME FROM OTHER SOURCES RS.4,554/ - C) UNACCOUNTED EXPENDITURE OF TICKET OF DAUGHTER RS.4,000/ - D) DISALLOWANCE OF LOSS FROM HOUSE PROPERTY RS.81,609/ - TOTAL RS.2,02,919/ - 3. SUBSEQUENTLY, ON 24.07.2013 THE CIT - 16, DELHI, CALLED FOR A REPORT FROM THE AO REGARDING ERRORS IN ASSESSMENT OF THE ASSESSEE AND HIS WIFE SMT. SH UMANA SEN. AN ORDER U/S 127 OF THE ACT WAS PASSED BY THE LD.CIT - 16 ON 27.08.2013 TRANSFERRING THE JURISDICTION OVER THE ASSESSEE S CASE FROM DCIT/ACIT, CIRCLE 47(4), DELHI TO DCIT/ACIT, CIRCLE 40(1), DELHI. THE DCIT, CIRCLE 40(1) SENT A REPORT ON 1 0 TH FE BRUARY, 2014 WHICH WAS FORWARDED BY THE ADDL.CIT, RANGE - 64 TO THE CIT ON 11 TH FEBRUARY, 2014, GIVING HIS COMMENTS AS CALLED FOR BY THE CIT. SUBSEQUENTLY, A REPORT BY THE ADDL. CIT, RANGE - 40, DELHI, DATED 31.03.2014 WAS ITA NO. 3285 / DEL /2015 3 FORWARDED TO THE CIT, WHEREIN HE STA TED THAT NO PROPER ENQUIRY WAS CONDUCTED BY THE AO IN THE CASE OF THE ASSESSEE FOR A.Y. 2005 - 06 AND THE AO HAS NOT CONSIDERED THE APPLICATION OF PROVISIONS U/S 68 OR 69C OF THE IT ACT FOR MAKING ASSESSMENT OF UNDISCLOSED INCOME ARISING OUT OF UNEXPLAINED E XPENDITURE DUE TO FOREIGN VISITS. THE DCIT, CIRCLE 40(1), IN HIS REPORT ALSO STATED THAT NO PROPER ENQUIRY HAS BEEN MADE BY THE AO ON ACCOUNT OF THE FOREIGN VISITS. 4. ON THE BASIS OF THE FACTS ARISING FROM THE RECORD AND THE REPORT OF THE ADDL.CIT AND T HE DCIT, THE LD. CIT ISSUED A SHOW CAUSE NOTICE U/S 263 OF THE ACT ON 21.08.2014 FOR THE A.Y. 2005 - 06 ON FOLLOWING ISSUES: - (7) AFTER CONSIDERING ALL THESE FACTS, A SHOW CAUSE NOTICE U/S 263 OF I.T[ ACT 196 ON 21/8/2014 FOR ASSTT. YEAR 2005 - 06 ON FOLLOWI NG ISSUES: - PURSUANT TO COMPLETION OF ASSESSMENT FOR A.Y. 2005 - 06 ON 28.03.2013, IT WAS REPORTED TO THIS OFFICE THAT THERE HAS BEEN SERIOUS ERRORS IN FRAMING THE ASSESSMENT AND THOSE ERRORS HAVE CAUSED SUBSTANTIAL AND SERIOUS PREJUDICE TO THE INTEREST OF REVENUE. IN VIEW OF THE SPECIFIC ISSUES OF LAW AND FACTS INVOLVED AND A FACTUAL REPORT RECEIVED FROM THE ASSESSING OFFICER THROUGH THE RANGE IN - CHARGE AND ON THE SAME BEING RECEIVED THE RECORDS OF THE ASSESSMENT FROM THE ASSESSING OFFICER WERE ALSO CALLED FOR AND HAS BEEN EXAMINED. THE CONCERNED A.O. (DC1T CIRCLE - 40(1), NEW DELHI AND ADDL. C1T, RANGE - 40, REPORT AS SUBMITTED TO UNDERSIGNED, HAVE RAISED FOLLOWING ISSUES IN THE MATTER OF ASSESSMENT COMPLETED BY THE ASSESSMENT ORDER DATED 28.03.2013 PASSED U/ S 147/143(3) IN YOUR CASE FOR A.Y. 2005 - 06 WHICH REQUIRES CONSIDERATION IN TERMS OF EXTANT PROVISIONS OF LAW: 1) 'THAT THE A.O. WAS NOT PROVIDED ANY EVIDENCE EITHER BY YOU OR THE WITNESSES EXAMINED BY YOU CLAIM ABOUT RECEIPT OF PERQUISITES FROM YOUR EMPLO YER/S BEING TAXABLE U/S 17(B)/FORM 121BA AND RULE REGARDING YOUR FOREIGN TRIP TO EUROPE WITH YOUR WIFE AND OTHER MEMBERS OF FAMILY AT THE TOST OF YOUR DESPITE NOT GETTING ANY EVIDENCE U/S 17(2) AS SUCH, THE A.O. HAS MADE ADDITION AS 'UNDISCLOSED PERQUISITE S PROVIDED BY M/S NDTV LTD. TO BE TAXED U/S 17(2), AND THERE IS NO EVIDENCE AVAILABLE EITHER FROM M/S NDTV LTD. OR FROM YOU TO SUBSTANTIATE THAT THE 'UN - EXPLAINED PERQUISITE' AS HELD BY THE ITA NO. 3285 / DEL /2015 4 ASSESSING OFFICER TO BE TAXED AS SUCH BECAUSE THERE IS NO PROVISI ON IN THE I.T. ACT, 1961 FOR TAXING 'UNEXPLAINED PERQUISITE' AND THE UNACCOUNTED EXPENDITURE THAT WAS INCURRED BY YOU ON THE TRIP 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 T HAT THE ADDITION ON ACCOUNT OF 'UNEXPLAINED PERQUISITE' CANNOT BE SUSTAINED IN APPELLATE PROCEEDINGS BEFORE THE APPELLATE AUTHORITIES, THE ASSESSMENT ORDER AS PASSED BY ASSESSING IS ERRONEOUS AND BECAUSE OF SUCH ERRORS HAS CAUSED SERIOUS PREJUDICE TO THE I NTEREST OF REVENUE. 2.) THAT THERE WERE CONTRADICTION BETWEEN THE STAND TAKEN BY M/S NDTV LTD. ABOUT NATURE THAT COMPANY ON YOUR FOREIGN TRIPS WITH FAMILY, YOUR OWN STAND ABOUT THE SAME WHERE EXPENDITURE INCURRED BY YOU WAS THE COST TO THE COMPANY AND THE STAND TAKEN BY YOUR I ABROAD WITH YOUR OTHER FAMILY MEMBERS, WAS PERSONAL TRIP AND IN VIEW OF THE CONTRADICTIONS IN THE STAND OF YOU AND YOUR WITNESSES, YOUR STAND SHOULD NOT HAVE BEEN ACCEPTED BY THE ASSESSING OFFICER WITHOUT WEIGHING THE RELATIVE MERIT OF VERSION OF THE EACH OF THE WITNESSES EXAMINED IN THE CASE. 3.) 'THAT THE COMPLAINANT IN YOUR CASE WAS NEITHER EXAMINED BY THE ASSESSING OFFICER NOR WAS ALLOWED TO CROSS - EXAMINE THE WITNESSES EXAMINED BY YOU IN SUPPORT OF YOUR STAND/CLAIMS AND AGAINST T HE STAND OF THE COMPLAINANT AS PER FACTS ON RECORD AND BEING IN VIOLATION OF DIRECTIONS UNDER SECTION 144A OF THE IT ACT, 1961 GIVEN BY THE ADDL. CIT TO THE CONCERNED AO DURING COURSE OF SUCH ASSESSMENT PROCEEDINGS AND THEREFORE IN TERMS OF CBDT INSTRUCTI ONS A APPLICABLE, THE ASSESSMENT FRAMED IN YOUR CASE IS ERRONEOUS AND BECAUSE OF SUCH ERROR, HAS CAUSED SERIOUS PREJUDICE TO THE INTEREST OF REVENUE. 4.) THAT, 'STATUTORY DIRECTIONS' U/S 144 A OF I.T. ACT, 1961 ISSUED BY THE ADDITIONAL CIT, RANGE - 40 WAS N OT FULLY CARRIED OUT, THE ASSESSMENT ORDER AS PASSED BY ASSESSING OFFICER IS ERRONEOUS AND BECAUSE OF SUCH ERRORS HAS CAUSED SERIOUS PREJUDICE TO THE INTEREST OF REVENUE.' IN VIEW OF THE ABOVE ERRORS REPORTED BY THE ASSESSING OFFICER AND ALSO THE ADDL. CI T, THE UNDERSIGNED HAS EXAMINED THE RELEVANT ASSESSMENT RECORDS FOR A.Y. 2005 - 06 IN YOUR CASE TO FIND OUT IF THE ASSESSMENT ORDER DATED 28.03.2013 AS PASSED FOR A. Y. 2005 - 06 IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AND WHETHER UNDERSIGNED I S REQUIRED TO ASSUMED JURISDICTION U/S 263 OF THE IT. ACT, 1961 QUA THE ASSESSMENT ORDER DATED 28.03.2013 FOR THE A.Y. 2005 - 06 AND DO THE NEEDFUL. ON EXAMINING THE ASSESSMENT RECORDS FOR A.Y. - 2005 - 06 IN YOUR CASE, THE FOLLOWING FACTS ARE REVEALED - 1. TH AT THE AO WAS NOT PROVIDED WITH ANY EVIDENCE EITHER BY YOU TO SUPPORT YOUR CLAIM ABOUT RECEIPT OF PERQUISITES FROM YOUR EMPLOYER/S BEING TAXABLE U/S 17(B)/FORM 12BA AND RULE 26A/FORM - 16 WITH RESPECT TO YOUR ITA NO. 3285 / DEL /2015 5 FOREIGN TRIP TO EUROPE WITH YOUR WIFE AND OTHER MEMBERS OF FAMILY AT THE COST OF YOUR EMPLOYER AND DESPITE NOT GETTING ANY EVIDENCE U/S 17(2) AS - SUCH, THE A.O. HAS PROCEEDED TO MDKE ADDITION AS 'UNDISCLOSED PERQUISITES' PROVIDED BY M/S NDTV LTD. TO BE TAXED U/S 17(2), IN SPITE >F THE FACT THAT THERE IS NO EVIDENCE AVAILABLE EITHER FROM M/S NDTV LTD. OR FROM YOU TO SUBSTANTIATE THE 'UN - DISC THERE IS NO PROVISION UNDER THE I.T. ACT, 1961 FOR TAXING UNEXPLAINED/UNDISCLOSED PERQUISITE AND THEREFORE, THIS UNACCOUNTED EXPENDITURE THAT WAS INCURRED BY YOU ON T HE TRIP ABROAD OF YOU AND YOUR FAMILY AS CONCLUDED BY THE AO WAS TO BE DEALT WITH ONLY U/S 69C OF THE INCOME TAX ACT, 1961, WHICH WAS NOT DO OF THIS ERROR ON THE PART OF ASSESSING OFFICER, THE TAX REQUIRED TO BE COLLECTED FROM EXPENDITURE OR UNEXPLAINED MO NEY CANNOT BE LAWFULLY COLLECTED AS THE ADDITION ON PERQUISITE' CANNOT BE SUSTAINED IN APPELLATE PROCEEDINGS BEFORE THE APPELLATE PROCEEDINGS BEFORE THE APPELLATE AUTHORITIES. 2. THAT THERE WERE CONTRADICTION BETWEEN THE STAND TAKEN BY M/S NDTV LTD.. ABOU T NATURE OF EXPENDITURE BY THAT COMPANY ON YOUR FOREIGN TRIPS WITH FAMILY, YOUR OWN STAND ABOUT THE SAME WHERE YOU ONLY STATED THAT THE EXPENDITURE INCURRED BY YOU WAS THE COST TO THE COMPANY AND THE STAND TAKEN BY YOUR, SPOUSE WHO ALSO TRAVELLED ABROAD W ITH YOUR OTHER FAMILY MEMBERS, THAT THE SAME WAS PERSONAL TRIP AND IN VIEW OF THE CONTRADICTIONS IN THE STAND OF YOU AND YOUR WITNESSES, YOUR STAND SHOULD NOT HAVE BEEN ACCEPTED BY THE ASSESSING OFFICER WITHOUT WEIGHING THE RELATIVE MERIT OF VERSION OF THE EACH OF THE WITNESSES EXAMINED IN THE CASE. 3. THE A.O. WHILE PASSING THE ASSESSMENT ORDER ON DATED 28.3.13 FOR AY2005 - 06 IN YOUR CASE DID NOT FOLLOW THE DIRECTIONS BY THE THEN ADDL. CIT U/S 144A OF THE IT ACT, WAS NEITHER EXAMINED NOR WAS ALLOWED TO CRO SS - EXAMINE THE WITNESSES EXAMINED BY YOU IN SUPPORT OF YOUR CLAIMS AND AGAINST THE STAND TAKEN BY THE COMPLAINANT THOUGH THE SAME WAS SPECIFICALLY AND STATUTORILY DIRECTED. 4. THAT, SINCE 'STATUTORY DIRECTIONS' U/S 144 A OF I. T. ACT, 1961 ISSUED BY THE A DDITIONAL CIT WERE NOT FULLY CARRIED OUT BY ASSESSING OFFICER THEREBY CAUSING ERRORS IN THE SAID ASSESSMENT ORDER AND BECAUSE OF SUCH ERRORS HAS CAUSED SERIOUS PREJUDICE TO THE INTEREST OF THE REVENUE, AS IT CANNOT PASS THE MUSTER OF APPEALS. 5. THAT BESI DES THE ABOVE ERRORS AND PREJUDICE TO REVENUE ANOTHER ASPECT THAT HAS NOT BEEN EXAMINED BY THE AO IS THE ESOPS. IT IS SEEN FROM THE NDTV S LETTER DATED 1.7.2006 AND 30.6.2005 AS EMPLOYER OF THE ASSESSEE FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS TH AT THE ASSESSEE SHRI ABHISAR SHAR WAS GRANTED ESOPS VIDE AGM HELD IN SEPT. 2004 TOTALING 3,750 SHARES OF NDTV VALUED AT RS.7,50,000/ - ACCRUED IN FY 2004 - 05 (AY 2005 - 06) WAS NOT ASSESSED TO TAXS BY THE AO WHILE PASSING THE ASSESSMENT ORDER IN HIS CASE FOR A Y 2005 - 06 ON 28.3.2013, HENCE, THE SAID ASSESSMENT ORDER IS ERRONEOUS ITA NO. 3285 / DEL /2015 6 AND PREJUDICIAL TO THE INTEREST OF REVENUE, SINCE THE SAID ESOP PERQUISITES HAS ESCAPED ASSESSMENT. 6. IT IS ALSO SEEN FROM THE RECORDS OF AY 2005 - 06 IN YOUR CASE THAT THE ABOVE STATED I SSUES BEFORE THE CIT (APPEALS). SO CONSIDERING ABOVE, THE UNDERSIGNED IS OF THE OPINION THAT THE SAID ASSESSMENT ORDER DATED 28.3.2013 IN YOUR CASE IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE 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 LAW LEADING TO SAID ASSESSMENT ORDER BEING ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE, AND IN SUPPORT, T HE FOLLOWING CASE LAWS ARE QUOTED FOR NECESSARY ACTION U/S 263 OF THE IT ACT, 1961 AGAINST THE ASSESSMENT ORDER DATED 28.3.13 PASSED U/S 147/143(3) FOR AY 2005 - 06 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 (4) CIT VS EASTERN MEDIKIT LTD. (DEL) 58 DTR 265; 337 ITR 56. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AND THE LAW GOVERNING THE ISSUES INVOLVED UNDERSIGN CON SIDERED VIEW THAT THE ASSESSMENT ORDERS DATED 28. 03.2013 AS PASSED BY THE ASSESSING OFFICER FOR A. YOUR CASE, ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AND AS SUCH ASSUMPTION OF JURISDICTION U/S 263 I.T ACT, 1961 BY UNDERSIGNED IN CASE OF THE S AID ASSESSMENT ORDER IS REQUIRED TO PROTECT THE INTEREST OF REVENUE. YOU ARE HEREBY REQUIRE TO SHOW CAUSE AS TO WHY THE ACTION U/S 263 SHOULD NOT BE TAKEN AGAINST THE SAID ASSESSMENT ORDER DATED 28.03.2013 IN YOUR CASE FOR A.Y. 2005 - 06. 5. IN RESPONSE TO THE SAID SHOW CAUSE NOTICE THE ASSESSEE FILED DETAILED REPLY CHALLENGING THE INITIATION OF PROCEEDINGS U/S 263 OF THE ACT. HOWEVER, THE LD. P CIT WAS NOT SATISFIED WITH THE SUBMISSIONS MADE BY THE ASSESSEE AND HELD THAT THE VARIOUS ISSUES RAISED IN THE N OTICE AT PARA 11A TO 11F WERE NOT PROPERLY EXAMINED AND NO CONCLUSIVE FINDINGS WERE ARRIVED AT BY THE AO IN THE ASSESSMENT ORDER FOR THE A.Y. 2005 - 06. THEREFORE, AMOUNTS TAXABLE HAVE ESCAPED ASSESSMENT EITHER IN THE HANDS OF THIS ASSESSEE OR IF EVIDENCES POINT OUT OTHERWISE, IN THE HANDS OF ANY ITA NO. 3285 / DEL /2015 7 OTHER ASSESSEE AS THE CASE MAY BE. THEREFORE, TO THIS EXTENT THE ORDER PASSED BY THE AO U/S 147/143(3) DATED 28 TH MARCH, 2013 IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. HE, THEREFORE, SET ASIDE T HE ORDER PASSED BY THE AO U/S 147/143(3) BY INVOKING THE REVISIONARY POWER U/S 263 OF THE ACT AND DIRECTED THE AO TO MAKE THE ASSESSMENT DENOVO AFTER EXAMINING THE ENTIRETY OF THE ISSUES CONSIDERED IN THE REVISION ORDER U/S 263 AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE RELEVANT OBSERVATION OF THE P CIT FROM PARA 11 - 13 OF HIS ORDER READ AS UNDER: - (11) I HAVE CONSIDERED THE REPORTS OF THE A.O. AND THE ADDL. COMMISSIONER, THE SUBMISSIONS OF THE ASSESSEE MADE IN RESPONSE 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 RELEVANT ISSUES. ON EXAMINATION OF ASSESSMENT RECORDS FOR ASSESSMENT YEAR 2005 - 06 IN THE CASE OF SAID ASSESSEE AND ON PERUSAL OF REPORTS OF ASSESSING OFFICER & ADDITIONAL COMMISSIONER VIS - A - VIS REPLIES SUBMITTED BY ASSESSEE, THE FOLLOWING NEW FACTS EMERGE WHICH HAVE NOT BEEN LOOKED INTO, EXAMINED AND CONSIDERED BY THE A.O. IN THE ORDER UNDER REVIE W ( 11)(A) THE ASSESSING OFFICER MADE ADDITION ON ACCOUNT OF UNEXPLAINED PERQUISITE U/S 17(2) OF I.T. ACT, 1961 WITHOUT INQUIRY SINCE COPY OF FORM 12BA AND FORM - 16 SUBMITTED BY M/S NDTV LTD. DID NOT SHOW ANY PERQUISITE U/S 17(2) FOR EXPENDITURE INCURRE D IN FOREIGN VISITS OF ASSESSEE ALONGWITH HIS FAMILY INCLUDING SPOUSE, AND ASSESSEE HIMSELF HAD FAILED TO SUBMIT EVIDENCE REGARDING SUCH PERQUISITE FROM HIS EMPLOYER I.E. M/S NDTV LTD. THERE IS NO PROVISION IN THE IT ACT TO TAX UNEXPLAINED PERQUISITE UND ER SECTION 17(2) FOR FOREIGN VISIT WHICH HAD NOT BEEN SHOWN IN FORM 12BA/FORM 16 FROM EMPLOYER AND ASSESSEE COULD NOT SUBMIT ANY EVIDENCE OF RECEIVING ANY PERQUISITE U/S 17(2) FOR FOREIGN VISIT EXPENSE FOR HIMSELF ALONG WITH HIS FAMILY. (11) (B) THE ASSES SING OFFICER WHILE MAKING ASSESSMENT IN ASSESSMENT YEAR 2005 - 06 DID NOT APPLY CORRECT PROVISION OF I.T. ACT AND INSTEAD OF MAKING ADDITION OF UNEXPLAINED EXPENDITURE U/S 69C OF THE I T ACT DUE TO ABSENCE OF EVIDENCE FROM EMPLOYER - M/S NDTV LTD. AS WELL AS FROM ASSESSEE HIMSELF, REGARDING PERQUISITE U/S 17(2) FOR FOREIGN VISIT EXPENSE OF ASSESSEE - EMPLOYEE, A.O. MADE WRONG APPLICATION OF I.T. ACT BY MAKING ADDITION AS UNEXPLAINED PERQUISITE U/S 17(2) OF I T ACT WHICH IS PATENTLY WRONG APPLICATION OF LAW. ITA NO. 3285 / DEL /2015 8 (11 )(C) THE ASSESSING OFFICER DID NOT CONDUCT ANY INQUIRY REGARDING TAXABILITY OF RECEIPT ARISING OUT OF ESOPS RECEIVED FROM EMPLOYER - M/S NDTV LTD SINCE IT IS SEEN FROM THE NDTV LTD. S LETTER DATED 01.07.2006 AND 30.06.2005, AS EMPLOYER OF THE ASSESSEE FILE D DURING THE COURSE OF ASSESSEMENT PROCEEDING IN A.Y. 2005 - 06, THE ASSESSEE WAS GRANTED ESOPS VIDE AGM HELD IN SEPT 2004 TOTALLING 3,750 SHARES OF NDTV VALUED AT RS.7,50,000/ - ACCRUED IN FY 2004 - 05 (A.Y. 2005 - 06). (11)(D) THE A.O., WHILE PASSING THE ASSES SMENT ORDER DATED 28.03.2013 FOR A.Y. 2005 - 06 IN THIS CASE DID NOT FOLLOW THE DIRECTIONS BY THE THEN ADDL. CIT U/S 144A OF THE IT ACT, 1961 AND THE EXAMINATION OF THE COMPLAINANT AND HIS CROSS EXAMINATION BY THE ASSESSEE IN SUPPORT OF HIS CLAIMS AND AGAIN ST THE STAND TAKEN BY THE COMPLAINANT THOUGH THE SAME WAS SPECIFICALLY AND STATUTORILY DIRECTED. (11)(E) SINCE ABOVE STATED FACTS ARE FRESH & NEW ARISING DURING ASSESSMENT PROCEEDINGS, BUT A.O. DID NOT CONDUCT ANY INQUIRY TO FIND OUT VERACITY OF SUCH FACT S, HENCE THE ISSUES ARISING OUT OF THESE FACTS ARE NOT THE SUBJECT MATTER OF APPEAL FILED BY ASSESSEE FOR A.Y. 2005 - 06. (11)(F) A.O. FAILED TO CONDUCT PROPER INQUIRY AND FAILED TO APPLY PROPER LAW LEADING TO SAID ASSESSMENT ORDER BEING ERRONEOUS AS WELL A S PREJUDICIAL TO THE INTEREST OF REVENUE, AND IN SUPPORT, THE FOLLOWING RELEVANT JUDICIAL VIEWS EXIST FOR SUPPORTING NECESSARY ACTION U/S 263 OF THE IT ACT, 1961 AGAINST THE ASSESSMENT ORDER DATED 28.03.2013 PASSED U/S 147/143(3) FOR A.Y 2005 - 06 IN THIS CA SE: (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. CIT (AIL) 187 ITR 412 (4) CIT VS EASTERN MEDIKIT LTD. (DEL) 58 DTR 265; 337 ITR 56. (12) AS AGAINST THE ABOVE NOTED FINDINGS, IT IS OBSERVED FROM THE WRITTEN SUBMISSIONS MADE BY ASSESSEE THAT OBJECTIONS ON THE FOLLOWING POINTS, RELEVANT TO THE NOTICE U/S 263 AND THE ISSUES RAISED THEREIN HAVE BEEN RAISED IN HIS WRITTEN SUBMISSIONS 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 ABOVE VERBATIM, ONLY VIEWS TAKEN ON THESE ISSUES OF OBJECTION ARE BEING PLACED BELOW: - (12)(A) VALIDITY OF NOTICE U/S 263 - AS AGAINST THE SUBMISSIONS MADE BY THE ASSESSEE, THE NOTICE U/S 263 IS VALIDLY ISSUED BASED ON FINDINGS FROM THE ASSESSMENT ORDER AND THE REPORTS OF A.O/ADDL. CIT EXTRACTED ABOVE SO AS TO AFFORD THE ASSESSEE OPPORTUNITY OF BEING HEARD BEFORE PROCE EDINGS U/S 263 ARE FINALIZED IN HIS CASE AS THE ORDER OF THE A.O. WAS FOUND TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THE ISSUES RAISED IN THE NOTICE U/S 263 ITA NO. 3285 / DEL /2015 9 ELABORATELY INDICATE ADEQUATE ERRORS IN THE ASSESSMENT ORDER CAUSING PREJUDICE T O THE INTEREST OF REVENUE (12)(B) JURISDICTION OF THIS OFFICE - AS AGAINST THE SUBMISSIONS MADE BY THE ASSESSEE, FLAW IN THE JURISDICTION OF THIS OFFICE OVER THIS CASE AS THE CASE OF THIS ASSESSEE WAS ORIGINALLY IN THE JURISDICTION OF THE DCIT/ACIT, CIRCLE - 47(1), DELHI UNDER THE CIT - XVI DELHI. BY HIS ORDER U/S 127 OF THE INCOME TAX ACT, 1961 DATED 27.08.2013, THE CIT - XVI, DELHI TRANSFERRED THE JURISDICTION OF THE ASSESSEE (W.E.F. 28.08.2013) TO DCIT/ACIT, CIRCLE - 40 (1), DELHI REDESIGNATED AS CIRCLE - 64(1), D ELHI AND IS PART OF RANGE - 64, DELHI UNDER THE CHARGE OF PRINCIPAL COMMISSIONER OF INCOME TAX - 22, DELHI (OLD DESIGNATION COMMISSIONER OF INCOME TAX - XIV, DELHI). THIS ORDER U/S 127 WAS PASSED WITH THE ADMINISTRATIVE APPROVAL OF CHIEF COMMISSIONER OF INCOME TAX, DELHI - XIII VIDE F.NO. CCIT - XIII/CENTRALIZATION/2013 - 14/640 DATED 26.08.2013. A COPY OF THIS ORDER HAS ALSO BEEN SENT TO THE ASSESSEE. SINCE AS PER SECTION 127(3) OF THE IT ACT, THERE IS NO REQUIREMENT OF ANY OPPORTUNITY OF BEING HEARD TO BE GIVEN TO THE ASSESSEE BEFORE SUCH TRANSFER, IF THE TRANSFER IS FROM ANY A.O. TO ANY OTHER A.O. WHOSE OFFICES ARE SITUATED IN THE SAME CITY, LOCALITY OR PLACE, AS WAS THE CASE OF THIS ASSESSEE, THEREFORE, THERE IS NO LACUNA IN THE JURISDICTION OF THIS OFFICE OVER TH E ASSESSEE S CASE. (12)(C) JUDICIAL VIEWS - THE ASSESSEE IN HIS SUBMISSIONS HAS CITED THE RULING OF HON BLE SUPREME COURT IN THAT THE MALABAR INDUSTRIAL CO. LTD. VS. CIT (2000) 243 ITR 83 (SC) AND HAS CLAIMED THAT THE CASE OF THE ASSESSEE IS SQUARELY COVE RED BY THE RULING WITHOUT DEMONSTRATING SUCH CLAIM. IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS CIT, THE HON BLE SUPREME COURT HELD THAT THE COMMISSIONER HAS TO BE SATISFIED OF TWIN CONDITIONS FOR TAKING REVISIONARY ACTION U/S 263, NAMELY: (I) THAT THE ORDER A.O. SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) THAT IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE HON BLE APEX COURT IN THE RULING HAS OPINED THAT AN INCORRECT ASSUMPTION OF FACT OR AN INCORRECT APPLICATION OF LAW, OR ORDERS PASSED WITHOUT APPLYING THE PRINCIPLES OF NATURAL JUSTICE OR WITHOUT APPLICATION OF MIND, WILL SATISFY THE REQUIREMENT OF THE ORDER BEING ERRONEOUS. AS REGARDS PREJUDICE TO INTEREST OF REVENUE, THE HON BLE COURT HAS RULED THAT T IS OF WIDE IMPORT AND NOT CONFINED TO LO SS OF TAX. IF DUE TO AN ERRONEOUS ORDER OF THE ITO, THE REVENUE IS LOSING TAX LAWFULLY PAYABLE BY A PERSON, IT WILL CERTAINLY BE PREJUDICIAL TO THE INTERESTS OF REVENUE. HOWEVER, THE APEX COURT HAS CLARIFIED THAT WHERE TWO VIEWS ARE POSSIBLE, AND THE ITO H AS TAKEN ONE VIEW WHICH THE COMMISSIONER DOES NOT AGREE TO, THE ORDER CANNOT BE ERRONEOUS AND PREJUDICIAL TO INTERESTS OF REVENUE UNLESS THE VIEW TAKEN BY THE ITO IS UNSUSTAINABLE IN LAW. IT IS THEREFORE DIFFICULT TO PERCEIVE AS TO HOW THIS RULING OF THE H ON BLE APEX COURT WOULD HELP THE CASE OF THE ASSESSEE AS IN THE ASSESSEE S CASE THERE WERE NO TWO VIEWS POSSIBLE. MOREOVER, THE ORDER HAS BEEN PASSED WITH INCORRECT ASSUMPTION OF FACTS, INCORRECT APPLICATION OF LAW, VIOLATING THE PRINCIPLES OF NATURAL JUST ICE AND WITHOUT APPLICATION OF MIND WHICH IS UNSUSTAINABLE IN LAW AS DEMONSTRATED; IN THE PARAS ABOVE. THEREFORE, ERRORS HAVE CREPT INTO THE ORDER AS ITA NO. 3285 / DEL /2015 10 POINTED OUT IN THE NOTICE U/S 263 WHICH HAVE CAUSED PREJUDICE TO THE INTERESTS OF REVENUE. IT HAS BEEN OBS ERVED BY THE HON BIE APEX COURT IN ANOTHER CASE OF CIT VS. SHREE MANJUATHESWARE TRADING PRODUCTS AND COMPHOR WORKS, REPORT IN (1988) 231 ITR 53, THAT THE REVISIONAL POWER CONFERRED ON THE COMMISSIONER OF INCOME TAX IS OF WIDE AMPLITUDE. THE HON BLE APEX CO URT IN THE CASE OF TARA DEVI AGGARWAL VS. CIT (1973) 88 ITR 232 HASF HELD THAT THE COMMISSIONER MAY CONSIDER AN ORDER OF THE ASSESSING OFFICER TO BE ERRONEOUS NOT ONLY IF THERE IS SOME APPARENT ERROR OF REASONING 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 FOR THE COMMISSIONER TO MAKE FURTHER INQUIRIES BEFORE CANCELLING TH E ASSESSMENT ORDER OF ASSESSING OFFICER. THE FACTS OF THE PRESENT CASE, IF JUDGED ON THE TOUCHSTONE OF ABOVE LEGAL POSITION PROPOUNDED BY THE HON BLE APEX COURT, AND SECTION 263 PER SE UNMISTAKABLY ESTABLISH THAT THE ORDER OF THE A.O. WAS ERRONEOUS AND PRE JUDICIAL TO THE INTEREST OF REVENUE. (12 )(D) CASE FOR REVIEW U/S 263 OF A.O S ORDER - AS AGAINST THE SUBMISSIONS MADE BY THE ASSESSEE THERE IS A VALID CASE FOR REVIEW U/S 263 OF IT ACT IN VIEW OF THE ERRONEOUS ORDER OF THE AO WHICH IS PREJUDICIAL TO THE I NTEREST OF REVENUE AS HAS BEEN ELABORATELY CLARIFIED IN THE PARAS ABOVE WHILE POINTING OUT ERRORS IN THE ASSESSMENT ORDER AND THE NEW FACTS WHICH REMAIN TO BE EXAMINED BY THE AO. THEREFORE, THE ASSESSEE S PLEA THAT THE FINDINGS IN THE SHOW CAUSE NOTICE H AVE ALREADY BEEN EXAMINED AND ARE IN THE AMBIT OF CHANGE OF OPINION DOES NOT APPEAR TO BE SUBSTANTIATED. (12)(E) ISSUE OF ESOP AS AGAINST THE SUBMISSIONS MADE BY THE ASSESSEE, THE ASSESSING OFFICER DID NOT CONDUCT COMPLETE INQUIRY REGARDING TAXABILITY OF RECEIPT ARISING OUT OF ESOPS RECEIVED FROM EMPLOYER - M/S NDTV LTD SINCE IT IS SEEN FROM THE NDTV LTD S LETTER DATED 01.07.2006 AND 30.06.2005, AS EMPLOYER OF THE ASSESSEE FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN A.Y. 2005 - 06, THE ASSESSEE WAS GRANTED ESOPS VIDE AGM HELD IN SEPT. 2004 TOTALLING 3,750 SHARES OF NDTV VALUED AT RS.7,50,000/ - ACCRUED IN FY 2004 - 05 (A.Y. 2005 - 06). AS HAS BEEN ADMITTED BY THE ASSESSEE IN HIS SUBMISSION, THE RELEVANT MATERIAL REGARDING THE ESOP WAS ON RECORD, WHIC H HAS CLEARLY BEEN OVER LOOKED BY THE A.O. AS TO WHETHER THEY WERE TAXABLE IN THE HANDS OF THE ASSESSEE IN THIS YEAR, THUS CONSTITUTING A NEW FACT OF MATTER WHICH HAS NOT BEEN EXAMINED BY THE AO WHICH IN ITSELF IS ADEQUATE ENOUGH TO JUSTIFY REVISION U/S 26 3. (12)(F) ISSUE REGARDING INSPECTION OF RECORDS: - AS REGARDS INSPECTION OF RECORDS, IT IS NOT THE CASE OF THE ASSESSEE THAT ANY ISSUE, FROM ANY PART OF THE RECORDS, WHICH IS BEING USED AGAINST HIS FOR REVIEW, HAS NOT BEEN FORWARDED TO HIM ALONG WITH THE SHOW CAUSE U/S 263. NEITHER IS IT THE CASE OF THE ASSESSEE THAT THE PRESENT ORDER U/S 263 IS BASED UPON ANY ISSUE, IN ANY PART OF THE RECORDS WHICH ARE NOT CONFRONTED TO THE ASSESSEE IN THE NOTICE U/S 263, BEFORE ITA NO. 3285 / DEL /2015 11 PROCEEDING U/S 263 ARE FINALIZED. THEREFO RE, IT IS DIFFICULT TO PERCEIVE JUSTIFICATION FOR INSPECTION OF RECORDS FOR FILING THE RESPONSES TO THE NOTICE U/S 263 ITSELF . (12)(G) ISSUE REGARDING TRANSFER OF CASE TO ANOTHER CHARGE: - AS REGARDS ASSESSEE S REQUEST TO TRANSFER HIS CASE TO ANY OTHER OFF ICER, IT IS OBSERVED THAT THE TRANSFER OF JURISDICTION HAS TAKEN PLACE AFTER DUE CONSIDERATION AND WITH THE ADMINISTRATIVE APPROVAL OF CHIEF COMMISSIONER OF INCOME - TAX, DELHI - XIII VIDE F.NO. CCIT - XIII/CENTRALIZATION/2013 - 14/640 DATED.26.08.2013. A COPY OF THIS ORDER HAS ALSO BEEN SENT TO THE ASSESSEE. THERE ARE NO VALID GROUNDS FOR ANY FURTHER TRANSFER PRESENTLY. SINCE AS PER SECTION 127(3) OF THE I.T. ACT, THERE IS NO REQUIREMENT OF ANY OPPORTUNITY TO BE GIVEN TO THE ASSESSEE BEFORE SUCH TRANSFER, IF THE TRANSFER IS FROM ANY A.O. TO ANY OTHER A.O., WHOSE OFFICES ARE SITUATED IN THE SAME CITY, LOCALITY OR PLACE, AS WAS THE CASE OF THIS ASSESSEE, THEREFORE, THERE IS NO LACUNA IN THE JURISDICTION OF THIS OFFICE OVER THE ASSESSEE S CASE. (13) TO SUM UP, IT I S THEREFORE OBSERVED THAT, DURING THE ASSESSMENTS PROCEEDINGS, THE ISSUES IN QUESTION UNDER] THIS ORDER U/S 263 AS PER THE FINDINGS GIVEN IN PARAS - LL (A) TO 11(F) ABOVE, WERE NOT PROPERLY EXAMINED AND NO CONCLUSIVE FINDINGS WERE ARRIVED AT BY THE ASSESSING OFFICER IN HIS ASSESSMENT ORDERS FOR A.Y. 2005 - 06. THEREFORE AMOUNTS TAXABLE HAVE ESCAPED ASSESSMENT EITHER IN THE HANDS OF THIS ASSESSEE OR IF EVIDENCES POINT OUT OTHERWISE, IN THE HANDS OF ANY OTHER ASSESSEES AS THE CASE MAY BE. TO THIS EXTENT IT IS HEL D THAT ORDER U/S 147/143(3) DATED 211/03/2013 IN THIS CASE IS ERRONEOUS AND ALSO PREJUDICIAL TO THE INTEREST OF THE REVENUE. THUS THE IMPUGNED ASSESSMENT ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE AND IS LIABLE TO BE SET - A SIDE. ACCORDINGLY, IN THE EXERCISE OF REVISIONARY POWER U/S 263 OF THE INCOME TAX THE ASSESSMENT OF A.Y. 2005 - 06 COMPLETED U/S 147/143(3) ON 28/03/2013 IS IS HEREBY CANCELLED AND RESTORED TO THE ASSESSING OFFICER TO MAKE ASSESSMENT DE - NOVO AFTER EXAMINING THE ENTIRETY OF THE ISSUES CONSIDERED IN THIS REVISION ORDER U/S 263 IN ASSESSEE S CASE AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE A.O. IS DIRECTED TO MAKE ALL NECESSARY INQUIRIES WITH THE CONCERNED AGENCIES TO ENSURE THAT A LL THE ISSUES WHICH ARE SUBJECT MATTER OF THIS REVISION ORDER U/S 263 AS PER THE FINDINGS GIVEN IN PARAS - LL(A) TO 11(F) ABOVE, ARE PROPERLY EXAMINED VIS - A - VIS THE EVIDENCES COLLECTED AND REQUIRED TO BE COLLECTED, THE CLAIMS MADE BY THE ASSESSEE REGARDING S UCH EVIDENCES AND THE POSITION OF LAW, SO AS TO ENSURE THAT THE ERRORS POINTED OUT IN THIS ORDER AND THE PREJUDICES CAUSED TO REVENUE AS FPER THIS ORDER ARE ELIMINATED AND THE AMOUNTS INVOLVED IN THESE ISSUES ARE TAXED IN THE HANDS OF THE ASSESSEE OR IN ANY OTHER HANDS AS PER LAW. ITA NO. 3285 / DEL /2015 12 6. AGGRIEVED WITH SUCH ORDER OF THE P CIT, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS: - (1) THAT THE ORDER PASSED UNDER SECTION 263 OF THE ACT BY THE PRINCIPAL CIT - 22, NEW DELHI IS ARBITRAT E, BIASED AND BAD IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE CASE. (2) THAT LEARNED PRINCIPAL C1T HAS GROSSLY ERRED IN ASSUMING JURISDICTION UNDER SECTION 263 OF THE ACT WHICH IS ILLEGAL AND HAD IN LAW. (3) THAT LEARNED PRINCIPAL CIT HAS GROSSLY ERRED IN HOLDING THAT THE ORDER PASSED BY THE ASSESSING OFFICER WAS ERRONEOUS AND ALSO PREJUDICIAL TO THE INTEREST OF REVENUE ON THE ISSUES DIRECTED TO BE RE - EXAMINED UNDER SECTION 263 OF THE ACT DESPITE THE ASSESSING OFFICER HAVING TAKEN A POSSIBLE VIEW. (4) T HAT LEARNED PRINCIPAL CIT HAS GROSSLY ERRED IN ASSUMPTION OF JURISDICTION UNDER SECTION 263 WHICH IS BAD IN LAW WITHOUT PREJUDICE TO WHICH ASSUMPTION OF JURISDICTION UNDER SECTION 263 COULD NOT HAVE BEEN MADE ALSO DUE TO THE DOCTRINE OF MERGER AS THE ISSUE S COVERED IN ASSESSMENT UNDER SECTION 147/148 OF THE ACT ARE THE SUBJECT MATTER OF APPELLATE PROCEEDINGS BEFORE THE CIT (APPEALS). (5) THAT THE LEARNED PRINCIPAL CIT HAS GROSSLY ERRED IN HOLDING, THAT PROPER ENQUIRY HAD NOT BEEN CONDUCTED BY THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER UNDER SECTION 147/148/143(3) WHEREAS THE ASSESSING OFFICER HAD CONDUCTED ENQUIRIES BEFORE FINALIZING THE ASSESSMENT. (6) THAT THE LEARNED PRINCIPAL CIT HAS GROSSLY ERRED IN HOLDING THAT THE ORDER OF THE ASSESSIN G OFFICER WAS ERRONEOUS WHICH IS AGAINST THE SETTLED LAW AS THE ASSESSING OFFICER HAD TAKEN A POSSIBLE VIEW ON THE ISSUE OF ALLEGED UNEXPLAINED EXPENDITURE ON FOREIGN TRIPS. (7) THAT THE LEARNED PRINCIPAL CIT HAS GROSSLY ERRED IN HOLDING THAT THE ASSESSIN G OFFICER HAD PASSED AN ORDER WHICH IS ERRONEOUS AS WELL PREJUDICIAL TO THE INTEREST OF REVENUE ON THE ISSUE OF GRANT OF ESOPS. (8) THAT WITHOUT PREJUDICE TO THE FACT THAT THE ASSUMPTION OF JURISDICTION BY THE LEARNED PRINCIPAL CIT IS BAD IN LAW THE ISSUE S WHICH HAVE BEEN DIRECTED TO BE EXAMINED BY THE LEARNED PRINCIPAL CIT ARE FULLY EXPLAINABLE ON MERIT. (9) THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE THE ABOVE GROUNDS OF APPEAL AT THE TIME OF HEARING. ITA NO. 3285 / DEL /2015 13 7. THE LD. COUNSEL FOR THE ASSESSEE ST RONGLY CHALLENGED THE INITIATION OF PROCEEDINGS U/S 263 BY THE LD.CIT. HE SUBMITTED THAT ON THE TAX EVASION PETITION OF SHRI S.K. SRIVASTAVA, CIT, OSD, ACTION U/S 147 WAS INITIATED AGAINST THE ASSESSEE AND HIS SPOUSE FOR F.Y.S 2004 - 05 TO 2007 - 08 RELEVANT TO A.Y. 2005 - 06 TO 2008 - 09 AND THE STATUS OF THE AFORESAID ACTION IS AS UNDER: - 8. REFERRING TO THE DECISION OF THE TRIBUNAL IN THE CASE OF THE WIFE OF THE ASSESSEE, VIDE ITA NO.3281 TO 3284/DEL/2015, ORDER DATED 11.10.2019, COPY OF WHICH IS PLACED IN T HE PAPER BOOK, PAGE 364 TO 435, HE SUBMITTED THAT THE COORDINATE BENCH OF THE TRIBUNAL HA S SET ASIDE THE COMBINED ORDER DATED 30 TH MARCH, 2015 FOR ALL THE ASSESSMENT YEARS. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE OF UNEXPLAINED PERQUISIT ES IS NO LONGER RES INTEGRA IN VIEW OF THE DECISION DATED 11.10.2019 OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF THE SPOUSE OF THE ASSESSEE IN ITA NO.3281 TO 3284/DEL/2015. HE SUBMITTED THAT IN ITA NO. 3285 / DEL /2015 14 THE CASE OF THE ASSESSEE S SPOUSE ALSO, THE CASE WAS RE OPENED U/S 147/143(3) ON THE BASIS OF THE COMPLAINT OF SHRI S.K. SRIVASTAVA, CIT - OSD AND FURTHER AGAINST THE ORDER U/S 147/143(3) OF THE ACT ACTION WAS TAKEN U/S 263 BY THE PCIT WHICH WAS SET ASIDE BY THE TRIBUNAL. HE SUBMITTED THAT WHEN THE APPEAL OF THE ASSESSEE WAS PENDING BEFORE THE CIT(A) , THE LD. P CIT COULD NOT HAVE INVOKED THE JURISDICTION U/S 263 OF THE IT ACT. HE SUBMITTED THAT THE ADDITION OF RS.1,12,756/ - MADE BY THE AO U/S 17(2) OF THE ACT WAS THE SUBJECT MATTER OF APPEAL BEFORE THE CIT(A). RELYING ON VARIOUS DECISIONS, HE SUBMITTED THAT AS PER EXPLANATION 1(C) TO SECTION 263(1) OF THE ACT WHEREIN ORDER REFERRED TO IN THE SUB - SECTION AND PASSED BY THE AO HAD BEEN THE SUBJECT MATTER OF ANY APPEAL FILED ON OR BEFORE OR AFTER THE FIRST DAY OF JU NE, 1988, THE POWERS OF THE PCIT OR CIT UNDER THIS SUB - SECTION WAS EXPLAINED AND SHALL BE DEEMED ALWAYS TO HAVE EXTENDED TO SUCH MATTERS AS HAD NOT BEEN CONSIDERED AND DECIDED IN SUCH APPEAL. IN OTHER WORDS, WHEN THE APPEAL IS PENDING BEFORE THE CIT(A), T HE EXERCISE OF JURISDICTION U/S 263 OF THE ACT IS BARRED. THE LD. COUNSEL IN HIS ANOTHER PLANK OF ARGUMENT SUBMITTED THAT A PERUSAL OF THE ASSESSMENT ORDER DATED 28 TH MARCH, 2013 PASSED U/S 147/143(3) WOULD SHOW THAT THERE WAS NO FOREIGN VISITS OF THE ASS ESSEE ALONG WITH HIS FAMILY INCLUDING SPOUSE IN THE F.Y. 2004 - 05 RELEVANT TO A.Y. 2005 - 06. THEREFORE, THERE IS NO QUESTION OF ANY UNEXPLAINED EXPENDITURE ON FOREIGN TRIPS AS ALLEGED BY THE PCIT IN THE ORDER PASSED U/S 263 OF THE IT ACT. REFERRING TO PAGE 9 OF THE ASSESSMENT ORDER, HE SUBMITTED THAT THE AO, AFTER EXAMINING THE COPY OF PASSPORT OF THE ASSESSEE AND HIS FAMILY MEMBERS AND OTHER DETAILS FURNISHED BEFORE HIM HAD GIVEN A CATEGORICAL ITA NO. 3285 / DEL /2015 15 FINDING THAT THE ASSESSEE HAS NOT TRAVELLED TO UK/EUROPE DURING THE RELEVANT YEAR BUT HAS TRAVELED TO PAKISTAN AND USA ON OFFICIAL WORK. HE SUBMITTED THAT THERE WAS NO FOREIGN VISIT OF THE ASSESSEE ALONG WITH HIS FAMILY INCLUDING THE SPOUSE IN THE F.Y. 2004 - 05 WHICH IS ALREADY ESTABLISHED FROM THE ORDER OF THE ASSESSM ENT IN CASE OF SPOUSE OF THE ASSESSEE WHICH HAS ATTAINED FINALITY AFTER THE ORDER OF THE TRIBUNAL, THEREFORE, THE ASSUMPTION OF JURISDICTION U/S 263 BY THE CIT IS NOT JUSTIFIED. THE LD. COUNSEL FURTHER SUBMITTED THAT THE EMPLOYER OF THE ASSESSEE HAS ALSO CONFIRMED THAT THE TICKETS WERE PHYSICALLY HANDED OVER IN THE F.Y. 2005 - 06 RELEVANT TO A.Y. 2006 - 07. FURTHER, 1000 USD WERE ALSO GIVEN TO THE ASSESSEE DURING THE F.Y. 2005 - 06 RELEVANT TO A.Y. 2006 - 07 ONLY AND THE EXPENSES FOR TWO TICKETS WERE BOOKED BY ND TV IN F.Y 2004 - 05 RELEVANT TO A.Y. 2005 - 06 TO EXPENSES OF 1000 USD WAS BOOKED IN NEXT ASSESSMENT YEAR I.E., A.YS 2006 - 07. HOWEVER, ADMITTEDLY, THE AO HAS MADE THE ADDITION FOR BOTH I.E., TWO TICKETS AND 1000 USD IN THE ASSESSMENT YEAR 2005 - 06 ONLY. THE LD. COUNSEL REFERRING TO VARIOUS PAGES OF THE PAPER BOOK SUBMITTED THAT THE AO HAS MADE PROPER ENQUIRY FROM THE ASSESSEE AND EVERY PARTIES LIKE SPOUSE OF THE ASSESSEE, EMPLOYER OF THE ASSESSEE AND EVEN FROM THE COMPLAINANT ALSO. THE LD. COUNSEL FILED THE FOLLOWING CHART STATING THE ENQUIRIES CONDUCTED BY THE AO: - ITA NO. 3285 / DEL /2015 16 ITA NO. 3285 / DEL /2015 17 ITA NO. 3285 / DEL /2015 18 9. SO FAR AS ESOPS IS CONCERNED, THE LD. COUNSEL SUBMITTED THAT THE FINDING OF THE PCIT ON THE ABOVE ISSUE IS NOT IN ACCORDANCE WITH THE LAW AND IS, THEREFORE, MISPLACED AND NOT TENABLE. HE SUBMITTED THAT DURING THE YEAR UNDER CONSIDERATION I.E., A.Y. 2005 - 06, THERE WAS NO PROVISION IN THE ACT TO TREAT THE ESOPS AS PERQUISITES IN THE HANDS OF THE ASSESSEE. HE SUBMITTED THAT THE AMENDMENT IN SECTION 17(2)(VI) OF THE ACT WAS W.E.F. 01.04.20 10. HE SUBMITTED THAT PRIOR TO SUCH AMENDMENT ESOPS WERE TREATED AS CAPITAL RECEIPTS IN THE HANDS OF RECIPIENT AND WERE TAXABLE ONLY AFTER THE SALE OF THE SHARES. THEREFORE, THE OBSERVATION OF THE PCIT THAT THE AO DID NOT CONDUCT ANY ENQUIRY REGARDING TAX ON RECEIPT ARISING OUT OF ESOPS RECEIVED FROM EMPLOYER IS NOT IN ACCORDANCE WITH LAW. SO FAR AS THE ALLEGATION THAT THE AO DID NOT FOLLOW THE DIRECTION IN EXAMINATION OF THE COMPLAINT AND HIS CROSS - EXAMINATION BY THE ASSESSEE IN SUPPORT OF HIS CLAIMS AND AGAINST THE STAND TAKEN BY THE COMPLAINANT THROUGH THE SAME, HE SUBMITTED THAT THESE ALLEGATIONS ARE CONTRARY AND ARE IN EXCESS OF SCOPE IN VIEW OF ORDER OF THE HON BLE ITA NO. 3285 / DEL /2015 19 HIGH COURT DATED 1 ST MARCH, 2013 IN THE CASE OF S.K. SRIVASTAVA VS. SHUMANA SEN AND A NR. IN CONT. APP. (C) 1/2013 AND CM NO.854/2013 (STAY). HE SUBMITTED THAT THE SAID ORDER ENCLOSED WITH CBDT LETTER DATED 6 TH MARCH, 2013 BEARING LETTER NO. HRD/AD/882/2/2012 - 13/3878 FORWARDED TO THE AO VIDE LETTER DATED 15 TH MARCH, 2013 FROM OFFICE OF THE CIT, DELHI - 16, NEW DELHI. HE DREW THE ATTENTION OF THE BENCH TO THE PAGE 32 OF THE ORDER DATED 28.03.2013 PASSED U/S 147/143(3). HE SUBMITTED THAT THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF SPOUSE OF THE ASSESSEE HAS ALSO PASSED CERTAIN COMMENTS AND DIRECTED THE CBDT TO INITIATE A DISCRETE ENQUIRY IN THIS CASE TO FIND OUT AS TO HOW AND UNDER WHAT CIRCUMSTANCES ON THE BASIS OF FALSE, FRIVOLOUS AND BASELESS ALLEGATIONS THAT TOO WITH MALA FIDE INTENTIONS PROCEEDINGS U/S 263 OF THE ACT HAVE BEEN INITIATE D APPARENTLY TO VICTIMIZE THE APPELLANT AND TO PROCEED AGAINST GUILTY OFFICIALS UNDER RULES AND TO FURTHER FRAME THE GUIDELINES TO DEAL WITH SUCH ABUSE OF POWERS BY SR. OFFICERS SO THAT SUCH INCIDENT SHOULD NOT REAPPEAR. WITHOUT PREJUDICE TO THE ABOVE, TH E LD. COUNSEL SUBMITTED THAT THE AO HAS DULY EXAMINED THE WITNESS PARTIES INCLUDING THE SPOUSE OF THE ASSESSEE AND EMPLOYER OF APPELLANT AND, THEREFORE, THE PRINCIPAL CIT COULD NOT HAVE I NVOKED THE JURISDICTION U/S 263 OF THE ACT. 10. THE LD. COUNSEL FOR THE ASSESSEE, RELYING ON VARIOUS DECISIONS SUBMITTED THAT IN ORDER TO ASSUME JURISDICTION U/S 263 OF THE ACT, THE TWIN CONDITIONS ARE SATISFIED THAT THE ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE MUST BE FULFILLED. HE SUBMITTED THAT IN THE INSTANT CASE, THE PCIT IGNORED ITA NO. 3285 / DEL /2015 20 OR RATHER FAILED TO APPRECIATE THAT ONCE THE AO ON EXAMINATION OF FACTS ON RECORD AND AFTER MAKING ALL POSSIBLE ENQUIRIES HAD MADE ADDITIONS THEN SUCH ORDER OF ASSESSMENT CANNOT BE ALLEGED TO BE ERRO NEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE ALLEGATION THAT THE AO DID NOT APPLY CORRECT PROVISIONS OF INCOME - TAX ACT, IN ANY CASE SATISFY THE CONDITION THAT ORDER OF ASSESSMENT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. HE SUBMITTED T HAT IN CASE THE ORDER OF THE AO IS ERRONEOUS, BUT IS NOT PREJUDICIAL TO THE INTEREST OF THE REVENUE, THE CIT IS NOT COMPETENT TO EXERCISE JURISDICTION U/S 263 OF THE ACT. THEREFORE, THE ORDER PASSED U/S 263 IS INVALID AND ILLEGAL AND SHOULD BE SET ASIDE. 11. THE LD. COUNSEL SUBMITTED THAT ADMITTEDLY, UNDISPUTEDLY AND UNDENIABLY IT IS NOT A CASE OF LACK OF ENQUIRY OR LACK OF INVESTIGATION. A PERUSAL OF THE SHOW CAUSE NOTICE ITSELF WOULD SHOW THAT IT HAS NOT BEEN STATED IN ANY MANNER HOW THE AO HAS FAILED TO APPLY HIS MIND PARTICULARLY WHEN IT HAS NOT BEEN DENIED OR DISPUTED THAT ALL INFORMATION INCLUDING BANK STATEMENT OF THE ASSESSEE, PASSPORT OF THE ASSESSEE AND HIS FAMILY, INFORMATION FROM EMPLOYER HAVE BEEN FURNISHED/COLLECTED IN THE COURSE OF ASSESSME NT PROCEEDINGS. REFERRING TO THE ASSESSMENT ORDER DATED 28 TH MARCH, 2013 PASSED U/S 147/143(3), HE SUBMITTED THAT THE ORDER IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE SINCE IT IS NOT BASED ON EITHER INCORRECT INFORMATION OF LAW OR FACT OR NON - APPLICATION OF MIND. THERE IS NOTHING TO SHOW THAT THE INCOME ASSESSED IS NOT IN ACCORDANCE WITH THE LAW. HE SUBMITTED THAT THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAD GIVEN ITA NO. 3285 / DEL /2015 21 DETAILED EXPLANATION AND THE AO, ON THE BASIS OF E NQUIRIES CONDUCTED BY HIM AND AFTER EXAMINATION OF THE REPLY GIVEN BY THE ASSESSEE HAD PASSED THE ORDER AND, THEREFORE, THE SAID ORDER CANNOT BE HELD TO BE ERRONEOUS AND, THEREFORE, THE PROVISIONS OF SECTION 263 CANNOT BE APPLIED. THE LD. COUNSEL ALSO REL IED ON THE FOLLOWING DECISIONS: - I) CIT VS. VIKAS POLYMERS, 341 ITR 537 (DEL); II) CIT VS. SUNBEAM AUTO LTD., 332 ITR 167 (DEL); III) CIT VS. DLF LTD., 350 ITR 555 (DEL); IV) CIT VS. MAX INDIA LTD., 295 ITR 282; V) ITO VS. DG HOUSING PROJECTS LTD., 343 ITR 329 (DEL); VI) DIRECTO R OF INCOME - TAX VS. JYOTI FOUNDATION, 357 ITR 388 (DEL); VII) PCIT VS. VINITA CHAURASIA, 394 ITR 758 (DEL); VIII) DELHI AIRPORT METRO EXPRESS (P) LTD., 398 ITR 8 (DEL) IX) SHRI ABHIMANYU GUPTA VS. PCIT, ITA NO. 771/CHD/2017; X) NARAYAN TATU RANE VS. ITO 70 TAXMANN.COM 227 ( MUMBAI TRIB.); XI) JEEWANLAL LTD. VS. ADDL. ICT, 108 ITR 407 (CAL); XII) B&A PLANTATION & INDUSTRIES LTD. VS. CIT, 290 ITR 395 (GAU); XIII) CIT VS. SUNBEAM AUTO LTD., 332 ITR 167 (DEL); XIV) CIT VS. WEAR EXPORTS LTD., 341 ITR 166 (DEL); XV) CIT VS. VIKAS POLYMERS, 341 ITR 537 (DE L); XVI) M/S KLAXON TRADING (P) LTD. VS. PCIT, ITA NO.7265/DEL/2017. ITA NO. 3285 / DEL /2015 22 12. THE LD. COUNSEL SUBMITTED THAT EVEN OTHERWISE IN A CASE WHERE TWO VIEWS ARE POSSIBLE AND THE AO HAS TAKEN A VIEW WITH WHICH THE PCIT DOES NOT AGREE THE SAID ORDER CANNOT BE TREATED AS ERRO NEOUS ORDER PREJUDICIAL TO THE INTEREST OF THE REVENUE. FOR THE ABOVE PROPOSITION, HE RELIED ON THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF CIT VS. DLF LTD. REPORTED IN 350 ITR 555. HE ALSO RELIED ON THE DECISION OF THE HON BLE SUPREME COURT IN TH E CASE OF CIT VS. MAX INDIA LTD., 295 ITR 282 AND MALABAR INDUSTRIAL CO. LTD. VS. CIT, 243 ITR 83 (SC); DIRECTOR OF INCOME - TAX VS. JYOTI FOUNDATION, 357 ITR 388 (DEL) AND VARIOUS OTHER DECISIONS OF THE COORDINATE BENCHES OF THE TRIBUNAL 13. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT FOR HOLDING THAT THE REASSESSMENT ORDER PASSED BY THE AO IS NOT ONLY PREJUDICIAL TO THE INTEREST OF THE REVENUE BUT IS ALSO ERRONEOUS THEN PCIT HAS TO PROCEED BY SOME IMMEDIATE ENQUIRY. HOWEVER, IN THE INSTANT CASE PCIT HAS NOT CONDUCTED ANY ENQUIRY AND, THEREFORE, THE EXERCISE OF JURISDICTION U/S 263 OF THE ACT BY THE PCIT IS LIABLE TO BE SET ASIDE. FOR THE ABOVE PROPOSITION, HE RELIED ON THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF PCIT VS. VINITA CHAURASI A, 394 ITR 758 (DEL) AND THE DECISION IN THE CASE DEL HI AIRPORT METRO EXPRESS (P) LTD., 398 ITR 8 (DEL) . RELYING ON VARIOUS DECISIONS, THE LD. COUNSEL FOR ASSESSEE SUBMITTED THAT SECTION 263 DOES NOT PERMIT REVISION OF ORDER ON THE BASIS OF SUSPICION, CON JECTURES AND SURMISES. FOR THE ABOVE PROPOSITION, HE RELIED ON THE ORDER OF THE HON BLE SUPREME COURT IN THE CASE OF SIRPUR PAPER MILLS LTD. VS. CWT, 77 ITR 6 AND ITA NO. 3285 / DEL /2015 23 JEEWANLAL LTD VS. ADDL. CIT, 108 ITR 407 (CAL). RELYING ON VARIOUS OTHER DECISIONS, THE LD. COUNSEL SUBMITTED THAT SECTION 263 OF THE ACT CANNOT BE INVOKED TO MAKE DEEPER ENQUIRY. THE LD. COUNSEL ALSO RELIED ON VARIOUS OTHER DECISIONS PLACED IN THE SYNOPSIS AND SUBMITTED THAT PROCEEDINGS U/S 263 CANNOT BE INITIATED FOR INADEQUATE ENQUIRY, BUT, ONLY FOR LACK OF ENQUIRY WHICH IS DISTINCT FROM INADEQUATE ENQUIRY. HE ACCORDINGLY SUBMITTED THAT THE ORDER PASSED BY THE CIT U/S 263 SETTING ASIDE THE ASSESSMENT ORDER PASSED U/S 147/143(3) IS LIABLE TO BE SET ASIDE AND THE GROUNDS RAISED BY THE ASSESSEE BE ALLOWED. 14. THE LD. DR, ON THE OTHER HAND, STRONGLY RELIED ON THE ORDER OF THE PCIT. HE SUBMITTED THAT THE LD. PCIT, AFTER GIVING VALID REASONS HAS SET ASIDE THE ORDER PASSED BY THE AO U/S 147/143(3) SINCE THE ORDER PASSED BY THE AO WAS BOTH ERRONEOUS A S WELL AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE LD. CIT HAS GIVEN DETAILED FINDING AS TO HOW THE ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THEREFORE, THE ORDER PASSED BY THE PCIT SHOULD BE UPHELD AND T HE GROUNDS RAISED BY THE ASSESSEE SHOULD BE DISMISSED. 15. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE PCIT AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISI ONS CITED BEFORE US. WE FIND, IN THE INSTANT CASE, THE ASSESSEE HAD FILED THE RETURN OF INCOME ON 22.07.2005 DECLARING AN INCOME OF RS.9,00,355/ - WHEREIN INCOME FROM SALARY AT RS.9,81,964/ - AND LOSS FROM HOUSE PROPERTY AT RS.81,609/ - WAS DECLARED. THIS R ETURN WAS PROCESSED U/S ITA NO. 3285 / DEL /2015 24 143(1) OF THE ACT ON 4 TH JULY, 2006. THIS CASE WAS REOPENED BY ISSUE OF NOTICE U/S 148 ON 27 TH MARCH, 2012 AND AN ORDER U/S 147/143(3) OF THE ACT DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.11,03,270/ - WAS PASSED ON 28 TH MAR CH, 2013 WHEREIN VARIOUS ADDITIONS WERE MADE TO THE TUNE OF RS.2,02,219/ - . WE FIND, THE LD. PCIT INVOKED THE PROVISIONS OF SECTION 263 OF THE IT ACT BY HOLDING THE IMPUGNED ORDER DATED 30 TH MARCH, 2015 AS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE ON THE GROUND THAT: A) THE AO MADE ADDITION ON ACCOUNT OF UNEXPLAINED PERQUISITE U/S 17(2) OF THE IT ACT, 1961 WITHOUT ANY E NQUIRY SINCE COPY OF FORM 12BA AND FORM - 16 SUBMITTED BY M/S NDTV LTD. DID NOT SHOW ANY PERQUISITE U/S 17(2) FOR THE EXPENDITUR E INCURRED FOR FOREIGN VISITS OF THE ASSESSEE ALONG WITH HIS FAMILY INCLUDING SPOUSE AND THE ASSESSEE HIMSELF; B) THE AO DID NOT CONDUCT ANY INQUIRY REGARDING TAXABILITY OF RECEIPT ARISING OUT OF ESOPS RECEIVED FROM EMPLOYER; C) THE AO DID NOT FOLLOW THE DIRECTI ONS BY THE THEN ADDL. CIT U/S 144A OF THE ACT; AND D) THE FACTS ARE FRESH AND NEW ARISEN DURING THE ASSESSMENT PROCEEDINGS, BUT, THE AO DID NOT CONDUCT ANY ENQUIRY TO FIND OUT THE VERACITY OF SUCH FACTS. 16. WE FIND, IDENTICAL ISSUE HAD COME UP BEFORE THE TRIB UNAL IN THE CASE OF SPOUSE OF THE ASSESSEE, NAMELY, MRS. SHUMANA SEN WHEREIN THE COORDINATE BENCH OF THE TRIBUNAL, VIDE ITA NO.3281 - 3284/DEL/2015 (PAGES 364 TO 435 OF THE PAPER ITA NO. 3285 / DEL /2015 25 BOOK II) HAD DECIDED IDENTICAL ISSUE. IN THAT CASE ALSO, THE CASE WAS REOPENED U/S 147/143(3) OF THE ACT ON THE BASIS OF A COMPLAINT OF SHRI S.K. SRIVASTAVA, CIT(OSD) AND FURTHER AGAINST THE ORDER PASSED U/S 147/143(3) OF THE ACT ACTION WAS TAKEN BY THE PCIT U/S 263 OF THE ACT . THE TRIBUNAL SET ASIDE THE ORDER OF THE PCIT BY OBSERV ING AS UNDER: - 10. THE BASIS FOR THE ENTIRE ASSESSMENT PROCEEDINGS AND ASSUMPTION OF JURISDICTION BY THE PCIT ARE BASED UPON THE COMPLAINTS MADE BY SHRI S.K. SRIVASTAVA. IT WOULD NOT BE OUT OF PLACE TO REFER 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 COURT HAS OBSERVED WITH REGARD TO SHRI S.K. SRIVASTAVA AS UNDER: NO COMMUNICATION ADDRESSED BY THE PETITIONERS QUA ANY ISSUE SHOULD BE GIVEN ANY COGNIZANCE OR T AKEN INTO CONSIDERATION AND FURTHER THE PETITIONER SHOULD NOT BE ENTRUSTED ANY WORK IN THE DEPARTMENT AS IT MAY AFFECT THE PUBLIC AT LARGE........... .. 15. WE HAVE GIVEN THOUGHTFUL CONSIDER ATION TO THE ORDERS OF THE AUTHORITIES BELOW. A PERUSAL OF THE AFOREMENTIONED FINDINGS OF THE PCIT SHOW THAT THE ENTIRE QUARREL IS IN RESPECT OF TRAVEL OF THE ASSESSEE ALONGWITH HER SPOUSE ABROAD AND THE EXPENDITURE INCURRED BY THE SPOUSE OF THE ASSESSEE. THE PCIT IS OF THE FIRM BELIEF THAT THE ASSESSING OFFICER FAILED TO CONDUCT PROPER ENQUIRY AND FAILED TO APPLY PROPER LAW LEADING TO THE SAID ASSESSMENT ORDER BEING ERRONEOUS 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 ASSESSMENT YEARS 2005 - 06 TO 2008 - 09.THE REASONS RECORDED FOR INITIATING THE REASSESSMENT PROCEEDINGS FO R 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 AND RESULTANT EVASION OF FAX OF HUG E 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 THE DEPARTMENT. IT ALSO CONTAINS DETAILS OF EXPENDITURE INCURRED ON FOREIGN TRAVELS BY MRS. SUMANA ITA NO. 3285 / DEL /2015 26 SEN ALONG WITH HER AUN TY STATED TO BE IN EXCESS OF RS. 3 CRORES. RELIANCE WAS ALSO PLACED ON THE COPY OF AN AFFIDAVIT SWORN BY MRS. SHUMANA SEN AND FILED BEFORE HON'BLE DELHI HIGH COURT IN WRIT PETITION (C) NO. 1373 OF 2011 WHEREIN SHE ADMITTED TO HAVE TRAVELED ABROAD WITH HER FAMILY SEVERAL 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 GRATIFICATION BY WAY OF EXPENDITURE INCURRED ON HER FOREIGN TRAVELS ALONGWITH HE R 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. AS PER THE TEP THE ESTIMATED VALUE OF SUCH GRATIFICATION AND CORRESPONDING E XPENDITURE INVOLVE IN THE REGION OF ABOUT RS. 3 - 5 CRORES. THE ADD/ CIT. RANGE - 40. NEW DELHI VIDE HIS LETTER DATED 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 T AKE NECESSARY ACTION AS PER APPLICABLE LAW. THE COMPLAINANT BEING AN IRS OFFICER OF 1087 BATCH AND HOLDING THE RANK OF COMMISSIONER OF INCOME TAX SUBSEQUENTLY ALSO PROVIDED A COPY OF THE LETTER DATED 17/10/2011 WRITTEN BY MRS. SUMANA SEN TO THE CHAIRPERS ON, 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 HUSBAND'S EMPLOYMENT WITH M/S NDTV LTD. BEFORE, DURING AND AFTER HER STINT IN CIRCLE - 13(1). NEW DELHI. PURSUANT TO THE RECEIPT OF THE COPY OF THE TEP THE MATTER WAS INDEPENDENTLY EXAMINED IN EXERCISE OF INDEPENDENT QUASIJUDICIAL DISCRETION BY THE UNDERSIGNED. IT WAS FOUND THAT THE RETURNS OF INCOME OF MRS. SUMANA SEN AN EXISTING ASSESSEE 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 OTHER PARTICULARS OF HER FOREIGN TRAVELLING AND THE EXPENDITURE INCURRED ON THAT INCLUDING THE SOURCE THEREOF, THE QUANTUM THEREOF THE STATUS OF THAT AMOUNT OF MONEY A TUT TAXABILITY OF THE SAME, IN VIEW OF THE FACT THAT THE PARTICULARS PERTAINING TO THE EXPENDITURE INCURRED ON FOREIGN TRAVELS HAS BEEN ADMITTED BEFORE HON'BLE DELHI HIGH COURT AND ALSO BEFORE THE DEPARTMENTAL AUTHORITIES, PRIMA - FACIE, A CASE OF NON - DISCLOSURE OF INFORMATION ABOUT EXPENDITURE INCURRED BY THE ASSESSEE IN THE RETURNS OF INCOME STANDS MADE OUT WHIC H PRIMAFACIE APPEARS TO HAVE ESCAPED THE INCIDENCE OF TAX BECAUSE OF NONDISCLOSURE AND NON - INCLUSION IN THE TAXABLE INCOME OF THE ASSESSEE. ITA NO. 3285 / DEL /2015 27 THE ASSESSEE IN THE AFFIDAVIT FILED BEFORE HON'BLE DELHI HIGH COURT AND IN HER LETTER DATED 17/10/2011 BEFORE DEPA RTMENTAL AUTHORITIES HAS CLAIMED STATED THAT THE EXPENDITURE INVOLVED ON HER FOREIGN TRAVELS WAS PAR T OF YEARLY VACATION ABROAD WITH FAMILY OF THE SALARY PACKAGE OF SH. ABHISAR SHARMA, HER SPOUSE, FROM THE EMPLOYER OF SH. ABHISAR SHARMA I.E. M/S. NDTV LTD. IT WAS FURTHER STATED BY THE ASSESSEE THAT SIMILAR PERQUISITES WERE GIVEN BY M/S. NDTV LTD. FROM TIME TO TIME TO OTHER EMPLOYEES OF THAT COMPANY AS WELL AS PEN T OF THEIR SALARY PACKAGE. THE COPY OF EMPLOYMENT CONTRACT OF SH. ABHISAR SHARMA WITH M/S. ND TV LTD. OR ANY OTHER DOCUMENT IS NOT AVAILABLE ON FILE TO CORROBORATE THE CLAIM OF SOURCE OF EXPENDITURE ON FOREIGN TRAVEL. NOR IS THERE ANY DOCUMENTARY EVIDENCE AVAILABLE TO SHOW INCLUSION OF THE EXPENDITURE INVOLVED ON HER FOREIGN TRAVELS IN TAXABLE INCO ME OF HER SPOUSE NAMELY SH. ABHISAR SHARMA WHO IS AN EXISTING ASSESSEE IN CHARGE OF AC IT, CIRCLE 48( I), NEW DELHI. THE EXPENDITURE ON FOREIGN TRAVEL OF ASSESSEE, IF IT IS A PART OF SALARY PACKAGE OF SH. ABHISAR SHARMA RECEIVED/RECEIVABLE 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 EMPLOYER. THESE PARTICULARS WERE ALSO REQUIRED TO BE FURNISHED INFORM NO. 12 BA ISSUED BY THE EMPLOYER TO THE EMPLOYEE. THIS WAS TO BE FURNISHED BY THE EMPLOYER WITH HIS/HER RETURN OF INCOME ALONGWITH FORM NO. 16 AND IN ADDITION TO THE FORM NO. 16. THE PROVISIONS OF RULE 26(2)(B) IS BEING RELIED UPON. THE ASSESSEE WHILE CLAIMING THAT THE EXP ENDITURE INCURRED BY HER ON HER FOREIGN TRAVELS ALONGWITH HER FAMILY WAS PART OF THE SALARY PACKAGE OF HER SPOUSE SH. ABHISAR SHARMA HAS NOT MADE ANY MENTION O F THE ABOVE REFER RED TO STATUTORY DOCUMENTS WHICH ARE MANDATORILY TO BE SUBMITTED BY THE CONCERN ED ASSESSEE NOR HAS INCLUDED ANY OF THESE DOCUMENTS EITHER WITH THE AFFIDAVIT FILED BY HER BEFORE HON BLE DELHI HIGH COURT NOR WITH OFFICIAL LETTER DATED 17/10 2011. IN VIEW OF THE ABOVE FACTS THERE IS AN ADMITTED POSITION ABOUT EXPENDITURE INCURRED ON F OREIGN TRAVELS OF THE ASSESSEE AND HER FAMILY DURING THE PERIOD F.Y. 2003 - 2004 TO F. Y. 2007 - 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 THE ASSESSEE ON HER TAXABLE INCOME. IN VIEW OF THE FACTS AND CIRCUMSTANCES STATED HEREINABOVE AND THE MATERIAL AVAILABLE ON THE RECORD OF THIS OFFICE. I HAVE REASONS TO BELIEVE THAT INCOME FAR IN EXCESS OF THE LIMIT PRESCRIBED 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 ASSESSMENT DIMING A. Y. 2005 - 2006,2006 - 2007, 2007 - 2008 & 2008 - 2009 AND TO BRING THE ESCAPED INCOME TO TAX, RE - ASSESSMENT PROCEEDINGS A RE ITA NO. 3285 / DEL /2015 28 REQUIRED TO BE INITIATED FOR A. Y. 2005 - 2006, 2006 - 2007. 2007 - 2008 & 2008 - 2009 U/S 147 OF THE INCOME TAX ACT, 1961 AND NOTICE U S 148 IS TO BE ISSUED WELT WITHIN THE LIMITATION PERIOD. IT IS FURTHER HIGHLIGHTED THAT THE COMPLAINANT IN HIS TAX EVASION PETITION HAS ALLEGED EVASION OF TAX AND CONCEALMENT OF INCOME DURING THE PERIOD OCTOBER. 2003 TO OCTOBER, 2007 WHICH 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 REOPEN ING IN TERMS OF PROVISION U/S 149 OF THE INCOME TAX ACT, 1961 BUT THE REMAINING FOUR YEARS ARE CAPABLE OF BEING REOPENED U/S 14N AND WHERE NOTICE CAN HE ISSUED U S 148 OF THE INCOME TAX ACT. 196 1 TO BRING THE INCOME ESCAPED FROM TAX TO TAX IT IS THEREFORE PROPOSED THAT ALL THESE FOUR ASSESSMENT YEARS MAY BE RE - OPENED TOGETHER FOR PROPER AND EFFECTIVE INQUIRY IN THE MATTER AND THE STATUTORY APPROVAL FOR THE SAME IS SOLICITED FROM ADD I. C1T, RANGE - 40, NEW DELHI. IN VIEW OF THE FACTS AND CIRCUMSTANCES STATED HEREINABOVE, THE NECESSARY APPROVAL OF ADD I CAT, RCMGE - 40, NEW DELHI IS BEING SOLICITED IN TERMS OF STATUTORY REQUIREMENT OF SECTION 147 OF THE INCOME TAX ACT, 1961 AND OTHER ENABLING PROVISIONS OF LAW TO ASSUME JURISDICTION U/S 147 AND ISSUE NOTICE U/S 1 48 IN TERMS OF REQUIREMENTS OF SECTION 149 OF INCOME TAX ACT. 1961 FOR A Y. 2005 - 2006 ,2006 - 2007, 2007 - 2008 & 2008 - 2009 RELEVANT FOR F. Y. 2004 - AMQPS5036G. ' 2. IN THE TEP FILED BY THE COMPLAINANT FOLLOWING MAIN ALLEGATIONS WERE LEVIED. 1 'IN WRIT PE TITION FILED BEFORE HON'BLE DELHI HIGH COURT THE ASSESSEE HAS CLAIMED THAT HER TRIP TO EUROPE AROSE BECAUSE OF YEARLY VACATION ABROAD WITH FAMILY BEING PART OF SALARY PACKAGE OF SH. ABHISAR SHANNA, HER SPOUSE AND AN EMPLOYEE OF NDTV LTD. 2 THE TRIP OF EU ROPE BY MS. SHUMANA SEN AND SHRI ABHISAR 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. 3.00.00.000 - 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 INCURRED ON YEARLY VACATION ABROAD BY SH. ABHISAR SHARMA AND SHUMANA SEN. PAID BY EMPLOYER OF SH. ABHISAR SHARMA IT/ 17 OF THE I T ACT, 1961 BEING THE INCO ME 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 ITA NO. 3285 / DEL /2015 29 DEDUCTED ANY TAX ON THAT NOR HAS INCLUDED ANY PERQUISITE IN THE FORM OF 16 ISSUED BY NDTV LTD. TO SH. ABHISAR SHARMA AND THEREBY IT IS CLEAR THAT EXPENDITURE INCURRED ON THE VACATION ABROAD OF MS SHUMANA SEN WAS NOT THE SALARY OF SH. ABHISAR SHARMA BUT BRIBE AND ILLEGAL GRATIFICATION RECEIVED BY MS. SHUMANA SEN AY DCIT CIR. 13(1), FOR FAV OURING 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 DELHI BY WAY OF WRIT PETITION AND THE SAID WRIT PETITION WAS DISPOSED OF BY THE HON'BLE HIGH COURT VID E ORDER DATED 19.10.2012 IN WP(C) NO. 4022/2012 CM APPEAL 8436 - 8438/2012. THE HON'BLE HIGH COURT HELD AS UNDER: IN THE CIRCUMSTANCES, WE ARE NOT INCLINED TO ACCEPT THE SUBMISSIONS OF THE PETITIONER. WE ACCORDINGLY HOLD THAT THE NOTICE ISSUED ON 28 03' 2 012 U S 148 OF THE ACT FOR AY 2005 - 06 WAS WITHIN THE JURISDICTION OF THE ASSESSING OFFICER. 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 VARIOUS ALLEGATIONS AND COUNTER ALLEGATIONS WHICH WERE EXCHANGED 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 HE RECORDED REASONS AND ISSUED NOTICE U/S 148' 18. SUBSEQUENTLY, THE REASSESSMENT PROCEEDINGS WERE STARTED. IN THE QUESTIONNAIRE, THE ASSESSEE WAS REQUIRED TO SUBMIT THE FOLLOWING INFORMATION: 'A) AS PER TAX EVASION PETITION FILED IN YO UR CASE IT HAS BEEN ALLEGED THAT YOU HAVE INCURRED UNACCOUNTED EXPENDITURE 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 RELEVANT PERIOD. D) A COPY OF YOUR PASSPORT E) DETAILS IN RESPECT OF FOREIGN TOURS PERFORMED BY YOU INDIVIDUALLY AND COLLECTIVELY WITH YOUR FAMILY DURING THE RELEVANT PERIOD, THE DATE OF TRAVEL, PLACES TRAVELLED, PURPOSE OF TRAVEL, T ICKET EXPENSES, BOARDING & LODGING ITA NO. 3285 / DEL /2015 30 EXPENSES, SIGHT - SEEING EXPENSES, SHOPPING FOR EACH SUCH FOREIGN TRAVEL ALONGWITH SOURCES OF INCURRING SUCH EXPENDITURE AND DOCUMENTARY EVIDENCE IN SUPPORT THEREOF PLUS REPLY SHOULD PERTAIN TO FOREIGN TRAVEL INCURRED DURIN G 39 THE F. Y. 2004 - 05. F) A COPY OF FORM NO. 16 ALONG WITH A COPY OF THE RETURN OF INCOME IF ALREADY FILED BY YOUR GOODSELF FOR THE ASSESSMENT YEAR 2005 - 06, WITH SUPPORTING EVIDENCE. G) A PHOTOCOPY OF RETURN OF INCOME OF SHRI ABHISAR SHARMA FOR THE ASS TT. 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 EXPENDI TURE 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 BE EN MENTIONED BY US ELSEWHERE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER CALLED FOR INFORMATION U/S 133(6) OF THE ACT FROM NDTV LTD IN THE CASE OF ABHISAR SHARMA [SPOUSE OF THE ASSESSEE]. THE FOLLOWING INFORMATION WAS CALLED FOR: SH. ABHISAR SHARMA WAS EMPLOYED BY M/S NDTV LTD. DURING OCTOBER 2003 TO OCTOBER 2007, I.E. FINANCIAL YEAR 2003 - 04,2004 - 05,2005 - 06,2006 - 07 AND 2007 - 08. YOU ARE REQUESTED TO PROVIDE THE FOLLOWING INFORMATION U/S 133(6) OF THE INCOME - TAX ACT, 1961 IN THE ABOVE MENTIONED FINANCIAL YEARS FOR THE PERIOD OCTOBER 2003 TO OCT, 2007, THERE ARE FIVE FINANCIAL YEARS INVOLVED I.E.2003 - 04 TO 2007 - 08, YOU ARE THEREFORE REQUIRED TO PROVIDE AUTHENTICATED COPIES OF: 1. THE EMPLOYMENT CONTRACT OF SH. ABHISAR SHARMA WIT H M/S NDTV LTD. FOR THIS PERIOD I.E. FROM OCT. 2003 TO OCT. 2007. 2. COPY OF FORM NO. 16 ISSUED TO SH. ABHISAR SHARMA FOR THIS PERIOD. 3. COPY OF FORM NO. 12BA( RULE ( 26A(2) ) PROVIDED TO SH ABHISAR SHARMA, MONTH WISE BREAK UP SALARY, SHOWING THE AMOU NT OF SALARY ACTUALLY PAID, TAX DEDUCTED AND VALUE OF PERQUISITES INCLUDED IN TOTAL EMOLUMENTS FOR EACH MONTH SEPARATELY. 4. AMOUNT OF EXPENDITURE INCURRED BY YOU ON THE ANNUAL VACATION ABROAD FOR EACH YEAR AND AMOUNT OF TDS THEREON. 5. LIST OF EMPLOYE ES OTHER THAN DIRECTORS OF THE COMPANY WHO WERE PROVIDED THE PERQUISITE OF ANNUAL VACATION ABROAD FOR SELF AND FAMILY DURING THE PERIOD 1 - 4 - 2003 TO 31.3.2008. ITA NO. 3285 / DEL /2015 31 6. AMOUNT OF GROSS EMOLUMENTS, TDS AND THE VALUE OF PERQUISITES IN TERMS OF SECTION 17(2) OF THE INCOME - TAX ACT. DURING THE PERIOD 1/472003 TO 31/3/2008 IN THE CASE OF EACH EMPLOYEE WHO WAS PROVIDED WITH THE PERQUISITE OF ANNUAL VACATION ABROAD FOR SELF AND FAMILY. 19. SIMULTANEOUSLY, INFORMATION U/S 133(6) OF THE ACT WAS CALLED FROM THE FOLLOWING PARTIES : A). FROM ACIT (FINANCE) O/O CCIT - I, NEW DELHI REGARDING 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 2008 - 09. C) FROM ACIT(HQ)(PERSONNES) O /O CCIT - 1, NEW DELHI REGARDING INTIMATIONS GIVEN BY THE ASSESSEE AND PERMISSIONS ACCORDED FOR FOREIGN TRAVEL. FROM BRITISH AIRWAYS REGARDING JOURNEYS CONDUCTED ABROAD BY THE ASSESSEE FROM AY.2008 - 09 TO AY.2008 - 09 VIDE THEIR CARRIERS. 20. REPLIES RECEIVE D FROM THE AFORESAID PARTIES ARE SUMMARIZED BY THE ASSESSING OFFICER AS UNDER: A) ACIT (FINANCE) INFORMED THAT SALARY OF THE ASSESSEE IS CREDITED INTO SYNDICATE BANK ACCOUNT NO 90672010049291 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 PERMITTE D TO TRAVEL ABROAD DURING AY 2005 - 06. D) M/S BRITISH AIRWAYS STATED THAT THEY DON'T HAVE RECORD BEYOND 3YEARS ON THEIR SYSTEM. NO INFORMATION WAS PROVIDED BY THEM DUE TO THIS REASON. 21. THE ASSESSEE REPLIED VIDE LETTER DATED 11.03.2013 IN RESPONSE TO THE QUESTIONNAIRE, STATEMENT OF THE COMPLAINANT, EXHIBIT FILED BY THE COMPLAINANT OF YEAR WISE DETAILS OF ALLEGED UNACCOUNTED AND UNDISCLOSED INCOME, EXPENDITURE AND INVESTMENT SUBMITTED BY SHRI S.K. SRIVASTAVA AND DETAILED POINT WISE REPLY WAS FILED BEFO RE THE ASSESSING OFFICER. SUBSEQUENTLY, ON 22.03.2013, IN RESPONSE TO SUMMONS U/S 131 OF THE ACT, STATEMENT OF THE ASSESSEE WAS RECORDED. THE RELEVANT PORTION READS AS UNDER: ITA NO. 3285 / DEL /2015 32 IN RESPONSE TO SUMMON U/S 131 OF THE L.T. ACT, 1961, THE ASSES SEE EEL THE E ASE ON 25/3/2013 AND STATEMENT ON 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 RS. 3 CRORES OR MORE ON SUCH FOREIGN TRAVELS DURING THE FINANCIAL YEAR 2004 - 05 2005 - 06 2006 - 07 AND 200 - 08, WHETHER YOU 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 W ITH DOCUMENTARY EVIDENCE? ANS: AS PER THE ALLEGATION MADE BY SH. S.K SRIVASTAVA IS CONCERNED, THE SAME IS COMPLETELY FALSE, BASELESS AND MALICIOUS. THEY ARE ALSO UNSUBSTANTIATED, WITHOUT ANY EVIDENCE OR ANY BASIS. 1 WOULD LIKE TO POINT OUT HERE THAT SH. S.K SRIVASTAVA HAS BEEN IN THE HABIT OJ MAKING SUCH ALLEGATIONS. CONSEQUENTLY, HE HAD TO TENDER AN APOLOGY BEFORE THE HON.HIE HIGH COURT OF DELHI FOR MAKING SUCH UNSUBSTANTIATED ALLEGATIONS AND HAD WITHDRAWN THE SAME, WITH THE UNDERTAKING THAT HE WOULD DES IST FROM REPEATING SUCH ALLEGATIONS IN FACT, HE HAS BEEN SENTENCED TO 15 DAYS OF IMPRISONMENT BY THE HON.BLE HIGH COURT OF DELHI FOR CONTEMPT OF COURT WHICH AROSE OUT OF THE FACT THAT HE REPEATED SUCH ALLEGATIONS. IT IS CATEGORICALLY DENIED THAT I HAD IN CURRED 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 AUSTRALIA IN A. Y 2006 - 07. THE COST INCURRED ON WHICH WAS RS. 80,000/ TO I LAKH AS FAR AS TRIP TO UK IS CONCERNED AND THE EXPENDITURE INCURRED WAS FROM THE SALARY AND SAVINGS OF MY SPOUSE SH. ABHISAR SHARMA. FOR THE TRIP TO AUSTRALIA, AN APPROXIMATE COST OF RS. 1,25,000/ - TO RS.1,35,000/ - WAS INCURRED BY THE ENTIRE FAMILY. CONSISTING OF MY SPO USE, MY MINOR DAUGHTER AND MYSELF. AS STATED ABOVE, THE SOURCE OF THE SAME WAS SALARY AND SAVINGS OF MY HUSBAND. IN THE A Y 2007 - 08, 1 TOOK A TRIP WITH MY FAMILY TO IRELAND & UK. THE COST INCURRED THEREIN WAS APPROXIMATELY RS 90,000/ - . THE SOURCE WAS THE S ALARY AND SAVINGS OF MY HUSBAND ' Q.9 SH. S.K SRIVASTAVA THE COMPLAINANT SUBMITTED DOCUMENTARY EVIDENCE IN SUPPORT OF HIS STATEMENT EXHIBIT I TO EXIBIT 36 AND YEARWISE DETAILS OF UNACCOUNTED AND UNEXPLAINED INCOME, EXPENDITURE AND INVESTMENT SUBMITTED, F OR THE A. Y 2005 - 06 . POINT AO. 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 - POINT NO I TO 4. WHAT IS YOUR REPLY ON THESE ALLEGATIONS. ANS IT IS WRONG ON YOUR PART TO SAY THAT SH. SRIVASTAVA HAS SUBMITTED DOC UMENTARY EVIDENCE. A PERUSAL OF THE DOCUMENTS THAT YOU ARE REFERRING TO CLEARLY SHOW THAT THESE ARE NOT IN THE NATURE OF ANY EVIDENCE RATHER, THESE ARE ITA NO. 3285 / DEL /2015 33 AGAIN EITHER REPITITIONS OF THE VULGAR AND BASELESS ALLEGATIONS THAT SH. S K SRIVASTAVA IS IN THE HABIT OF MAKING OR ARE NEW ALLEGATIONS LEVELED BY HIM WHICH ARE EQUALLY BASELESS AND SCURRILOUS. 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 ALLEGAT IONS LEVELED, ALONG WITH THE FACTS AND THE DOCUMENTARY EVIDENCE WHERE EVER APPLICABLE HAVE BEEN PROVIDED. 0. 10 IN YOUR REPLY DATED 11/03/2013, IN PARA 1 YOU HAVE REPLIED THAT ALL SUCH ALLEGATIONS MADE HAD BEEN EXAMINED BY THE VIGILANCE DIRECTORATE OF TH E 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 SAME, IT IS STATED THAT THESE ALLEGATIONS HAVE BEEN WITHDRAWN BY THE COMPLAINANT AS ALREADY BEEN STATED ABOVE BY ME AND THEREFORE HAVE NO BEARING TO THE IM PUGNED ASSESSMENT PROCEEDINGS. 22. PROCEEDING FURTHER, THE ASSESSING OFFICER ISSUED SUMMONS U/S 131 OF THE ACT TO SHRI ABHISAR SHARMA, HUSBAND OF THE ASSESSEE WHOSE STATEMENT WAS RECORDED ON OATH ON 29.03.2013. THE RELEVANT PART OF THE STATEMENT READS A S UNDER: 'Q NO 7 AS PER TAX EVASION PETITION, SH. S. K SRIVASTAVA ALLEGED TO MS SHUMANA SEN H O SH. ABHISAR SHARMA HAVE 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, 2006 - 07 AND 2007 - 08. WHETHER THESE TRIPS ARE OFFICIAL OR PERSONAL? ANS ALL ALLEGATIONS MADE BY SH. S.K. SRIVASTAVA ARE FALSE, BASELESS AND MALICIOUS. NO EXPEN DITURE OF RS. 3 CRORES OR MORE WERE INCURRED ON THESE TRIPS. THE DETAIL OF THE EXPENDITURE ACTUALLY INCURRED HAVE BEEN GIVEN TO MY A.O. VIDE LETTER DATED 24.2.2012. THESE TRIPS WERE PERSONAL IN NATURE. Q.NO. 8.AS YOU HAVE TOLD IN YOUR ANSWER OF O.NO.7 TH AT YOU HAVE TRAVELLED PERSONALLY, PLEASE GIVE DETAILS WITH EXPENDITURE INCURRED ON TICKETS, FOODING & LODGING, ON LOCAL SITE SEEN AND OTHER EXPENSES ETC.7 ALSO PROVIDE DOCUMENTARY EVIDENCE? ANS.8 THE DETAILS ARE AS UNDER: - THERE WAS NO FOREIGN VISIT WI TH FAMILY FOR A. Y. 2005 - 06. I. IN APRIL 2005. A.Y. 2006 - 07 ITA NO. 3285 / DEL /2015 34 A VISIT WAS MADE TO THE U.K. FOR TOURISM PURPOSE. THE EXPENDITURE INCURRED WAS APPROX. RS. 80,000/ - TO RS. I LAC. THE SOURCE OF THE SAME WAS MY SALARY, WHEREIN TWO TICKETS AND 1000 DOLLER WERE PROVIDED TO ME BY MY EX - EMPLOYER AND ALSO I HAD SUBSTANTIAL SAVINGS AT THAT TIME. BOARDING AND LODGING FOR MOST OF THE TRIP WAS PROVIDED BY MY WIFE'S AUNT, WHO IS A RESIDENT OF U. K. THE TRIP WAS FOR A DURATION OF 7 TO 10 DAYS 2. NOV. DEC. 2005: A. Y.2 006 - 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 BALANCE OF.RS. 1,89,565 - IN MY ACCOUNT AT THAT TIME IN STANDARD CHARTERED BANK. C HEQUES WERE ISSUED FROM THE SAME FOR THE PURPOSE OF PURCHASING TICKETS, VISA FEES, BOARDING AND LODGING AND FOR SITE SEEN. AN APPROX. EXPENDITURE OF RS. 1,25,000/ - TO RS. 1.35.000 - WAS INCURRED FOR THE SAME. THIS TRIP WAS UNDERTAKEN BY MYSELF AND MY FAMIL Y CONSISTING OF MY WIFE AND MY DAUGHTER WHO WAS AT THAT TIME ONE YEAR AND 10 MONTHS OLD. 3. AUG. 2006: A. Y.2007 - 08: U.K. AND REPUBLIC OF IRELAND. AN EXPENDITURE OF APPROXIMATELY RS. 90,000/ - WAS INCURRED IN THIS TRIP, WHICH WAS UNDERTAKEN BY MYSELF AN D 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. 1,32,996/ - PER ANNUM AND MY SAVINGS. 1 H AD 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 AND LODGING WAS THROUGH A PACKAGE TOUR, MADE BY TRAVEL AGENT THE TRIP WAS FOR 7 TO 10 DAYS. 4. THERE W AS NO FOREIGN TRIP WITH FAMILY FOR THE ASSTT. YEAR. 2008 - 09 0.9. MS SHUMAN SEN YOUR WIFE HAS CLAIMED IN HER WRIT PARA3.43. PAGE 17 AND 18, A COPY OF AFFIDAVIT SUBMITTED IN HON'BLE DELHI HIGH COURT THAT HER TRIP TO EUROPE AROSE BECAUSE OF A YEARLY VACATIO N ABROAD WITH FAMILY BEING PART OF SALARY PACKAGE OF SH. ABHISAR SHARMA DECLARED TO BE HER SPOUSE AND AN EMPLOYEE TO M/S NDTV LTD. IN THIS CONTEXT WHAT DO YOU WANT TO SAY? ANS. 9. IT HAS BEEN CORRECTLY STATED BY MY WIFE THAT 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 ' COPY OF BANK STATEMENT OF ABHISAR SHARMA WITH STANDARD BANK ALSO EXAMINED TO VERIFY THE WITHDRAWALS FOR FOREIGN TRIP. ITA NO. 3285 / DEL /2015 35 23. DURING THE COURSE O F ASSESSMENT PROCEEDINGS, THE ASSESSEE BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER THAT THE ALLEGATION PERTAINING TO HER MISDEMEANOR REGARDING NDTV LTD ALLEGATIONS HAVE BEEN EXAMINED IN DETAIL BY THE VIGILANCE DIRECTORATE OF INCOME TAX DEPARTMENT AND TH E FILE HAS BEEN CLOSED. TO CONFIRM THE FACTS MENTIONED BY THE ASSESSEE, THE ASSESSING OFFICER CALLED FOR INFORMATION U/S 133(6) OF THE ACT FROM THE DIT [VIGILANCE] - II, NEW DELHI, WHO, VIDE LETTER NO. 07116 DATED 30.03.2013 INFORMED AS UNDER: IN THIS REG ARD I AM DIRECTED TO SUBMIT THAT THE COMPLIANT CONCERNING NDTV LTD MADE BY SH. S.K. SRIVASTAVA AGAINST 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 OF ANY VIGILANCE ANGLE AND IN VIEW OF HON'BLE DELHI HIGH COURT'S ORDER/DIRECTIONS. 24. PROCEEDING FURTHER, THE ASSESSING OFFICER ONCE AGAIN CALLED FOR INFORMATION U/S 133(6) OF THE ACT FROM THE ACIT, CIRCLE 47(1), NEW DELHI WHO IS THE ASSESSING OFFICER OF SHRI ABHISAR SHARMA, HUSBAND OF THE ASSESSEE. INFORMATION PROVIDED BY THE CONCERNED ASSESSING OFFICER READS AS UNDER: A) DETAILS OF FOREIGN TRAVEL INCURRED BY ABHISAR SHARMA 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 SHARMA. 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 ON 11/03/2013. 25. ASSESS MENT ORDER FRAMED U/S 143(3) R.W.S 147 OF THE ACT IN THE CASE OF SHRI ABHISAR SHARMA FOR ASSESSMENT YEAR 2005 - 06 WAS ALSO CALLED FOR AND WAS DULY RECEIVED. 26. THE GIST OF THE ENQUIRIES CONDUCTED BY THE ASSESSING OFFICER READ AS UNDER: ITA NO. 3285 / DEL /2015 36 THE PROCEEDING PARAS OUTLINE THE COMPLETE DETAILS OF INVESTIGATIONS CONDUCTED IN THIS CASE. BRIEFLY STATED THE SAME ARE AS UNDER: A) .INFORMATION U/S 133(6) OF IT ACT, 1961 WAS OBTAINED FROM M/S NDTV L.TD. REGARDING EMPLOYMENT CONTRACTS OF ABHISAR SHARMA FOR AY. 2005 - 0 6 TO AY.2008 - 09. B) .INFORMATION U/S 133(6) OF IF ACT, 1961 WAS OBTAINED FROM DIT(VIGILANCE) - II, NEW DELHI REGARDING OUTCOME VIGILANCE PROCEEDINGS IN CASE OF THE ASSESSEE VISA VIS NDTV LTD. C) . INFORMATION U/S 133(6) OF IT ACT, 1961 FROM ACIT CIRCLE 4 7(1), NEW DELHI REGARDING INVESTIGATIONS CONDUCTED 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. E) BANK STATEMENT S OF ABHISAR SHARMA WITH STANDARD CHARTERED BANK AND THAT OF THE ASSESSEE WITH SYNDICATE BANK WERE EXAMINED VIS A VIS THESE FOREIGN TRIPS. BANK STATEMENT WITH ICICI BANK (JOINT ACCOUNT OF ASSESSEE WITH HER HUSBAND) WERE EXAMINED. F) APART FROM IT INFORMA TION U/S 133(6) WAS CALLED FROM 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 SHARMA WERE EXAMINED FOR VERIFICATION OF THESE FO REIGN TRAVELS BY UNDERSIGNED AND ACIT CIRCLE 47(1), NEW DELHI 27. ON THE BASIS OF THE AFORESAID ENQUIRIES, THE ASSESSING OFFICER FINALLY CONCLUDED AS UNDER; AS A RESULT OF ABOVE MENTIONED INVESTIGATIONS CONDUCTED 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 RELEVANT TO AY2006 - 07. SOURCES OF THE SAME WAS STATED TO BE SALARY SAVINGS OF ABHISAR SHARMA AND TWO TICKETS ALONGWITH US $ 1000 PROVIDED BY M/S NDTV LTD. BOARDING AND ITA NO. 3285 / DEL /2015 37 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 AUSTRALIA 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. ABHISAR 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. ABHISAR SHARMA AND THEIR DAUGHTER WHOSE AGE WAS LYEAR 1 OMONTHS AT THAT POINT OF TIME. D) . IN AUGUST 2006 R ELEVANT 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 WAS FOREIGN TRAVEL ALLOWANCE AND SAVINGS OF SH. ABHISAR SHARMA AND BOARDING & LODGING IN U.K. WAS ASSESS EE'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. RELATING TO A Y.2008 - 09 BY THE ASSESSEE AND HER FAMILY. G) THESE FACTS OF FOREIGN TRAVEL HAS BEEN CONFORMED FROM PA SSPORTS OF ASSESSEE AND HER HUSBAND. FOREIGN TRAVEL 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 L TD. HAS CONFIRMED THAT FOREIGN TRAVEL ALLOWANCE HAS BEEN PROVIDED TO ABHISAR SHARMA AS PART OF TRAVEL ALLOWANCE. I) SH. ABHISAR SHARMA AND ASSESSEE HAS CONFORMED UNDER OATH IN THEIR STATEMENTS RECORDED U/S 131 OF ID ACT. 1961 THAT THE SOURCES OF THESE FO REIGN 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 FAMILY MEMBERS. THERE ARE SUPPORTING WITHDRAWALS IN THE BANK ACCOUNT OF ABHISAR SHARMA REGARDING THEIR FO REIGN TRAVELS. J). A COMPLAINT TO THIS EFFECTS WAS BEING PROCESSED BY VIGILANCE DIRECTORATE OF INCOME TAX DEPARTMENT AGAINST THE ASSESSEE WHICH HAS BEEN CLOSED AS PER DETAILS OUTLINED IN PROCEEDING. PARAGRAPHS. THE FACTS OF THE COMPLAINT WERE SAME AND RE LATED FOREIGN TRAVELS OF THE ASSESSEE W.R.T. M/S NDTV 1 TD. K). THE ASSESSING OFFICER OF SH. ABHISAR SHARMA HAS MADE AN ADDITION FOR UNDISCLOSED PERQUISITES IN HANDS OF ABHISAR SHARMA IN AY. 2005 - 06 IN REGARD TO THE TWO ECONOMY TICKETS AND US $ 1000 RECEI VED BY HIM FROM M/S NDTV LTD. 55 ITA NO. 3285 / DEL /2015 38 1) THUS, THE REASONS OUTLINED IN REOPENING OF ASSESSMENT DO NOT STAND PROVED IN VIEW OF THE EMPLOYMENT CONTRACT PROVIDED BY M/S NDTV LTD. AND OTHER INVESTIGATIONS CONDUCTED AS ELABORATED ABOVE M). THE STATEMENTS RECORDE D OF SH ABHISAR SHARMA U/S 131 OF IT ACT,1961 IS SEPARATELY BEING FORWARDED TO ACIT CIRCLE 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 T HIS FACT THAT FOREIGN TRAVELS WERE UNDERTAKEN THROUGH HIS SOURCES AND SAVINGS AND HIS WIFE AND DAUGHTER ACCOMPANIED HIM AS 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 ACIT, CIRCLE 47(1), NEW DELHI IN HIS STATEMENT RECORDED ON 11/03/2013. O). THERE WAS NO FOREIGN TRIP UNDERTAKEN FOR AY 2005 - 06 AND AY.2008 - 09. P). NO EVIDENCE COULD BE GATHERED IN THESE INVESTIGATIONS THAT THE ASSESSEE HAD INCURRED UNACCOUNTED EXPENDITURE FOR THESE FOREIGN TRAVELS. Q). THE GENUINENESS OF THE EXPENDITURE SHOWN FOR THESE FOREIGN TRAVELS CAN ONLY BE ASCERTAINED BY THE ASSESSING OFFICER OF SH. ABHISAR SHARMA BECAUSE SH. ABHISAR SHARMA HAS OWNED UP THE ENTIRE E XPENDITURE INCURRED ON THESE FOREIGN TRAVELS. THE STATEMENTS RECORDED OF SH. ABHISAR SHARMA ON THIS ISSUE SHALL BE FORWARDED TO AC1T CIRCLE 47(1), NEW DELHI FOR INFORMATION AND ACTION, AS DEEMED FIT. R). HENCE, IT IS CONCLUDED THAT THE ASSESSEE ACCOMPANI ED 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 HANDS 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 VIS A VIS THE ISSUES RAISED BY THE PCIT WOULD SHOW THAT THE PCIT HAS ASSUMED JURISDICTION ON THE GROUND THAT NO PROPER ENQUIRIES WERE CONDUCTED BY THE ASS ESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. WHEREAS, THE FACTS ON RECORD AND AS DISCUSSED HEREINABOVE CLEARLY REVEAL THAT THOROUGH AND INVESTIGATIVE ENQUIRIES WERE CONDUCTED BY THE ASSESSING OFFICER, NOT ONLY FROM THE ASSESSEE, BUT ALSO FRO M ALL THE CONCERNED PERSONS. AS MENTIONED ELSEWHERE, THE ENTIRE INVESTIGATION/ ENQUIRY REVOLVE AROUND THE MALICIOUS AND SCURRILOUS ALLEGATIONS MADE 57 BY SHRI S.K. SRIVASTAVA. WE HAVE BEEN TOLD THAT SHRI S.K. SRIVASTAVA ITA NO. 3285 / DEL /2015 39 HAS BEEN REMOVED FROM SERVICES BY TH E GOVERNMENT OF INDIA UNDER FUNDAMENTAL RULE 56(J) OF CENTRAL CIVIL SERVICES (PENSION) RULES, 1972. 29. ADVERTING TO THE FACTS OF THE CASE, WE FIND THAT IT IS A SETTLED POSITION OF LAW THAT POWERS U/S 263 OF THE ACT CAN BE EXERCISED BY THE COMMISSIONER O N SATISFACTION OF TWIN CONDITIONS, I.E., THE ASSESSMENT ORDER SHOULD BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST 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 REVISIONAL POWER BE EXERCISED FOR DIRECTING A FULLER ENQUIRY TO FIND OUT 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 INADEQ UATE INQUIRY. OUR VIEW IS FORTIFIED BY 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 SUPPORTED BY THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF SHRI PRAKASH 58 BHAGCHAND KHATRI IN TAX APPEAL NO. 177 WITH TAX APPEAL NO.178 OF 2016, WHEREIN THE HON'BLE GUJARAT HIGH COURT WAS SEIZED WITH THE FOLLOWING SUBSTANTIAL QUESTION OF LAW: - 'WHETHER THE TRIBUNAL IS RIGHT IN LAW AND ON FACTS IN UPHOLDING THE ORDER PASSED BY THE CIT UNDER SECTION 263 OF THE ACT ON MERITS AND STILL STORING THE ISSUE OF ALLOWABILITY OF DEDUCTION UNDER SECTION OF THE ACT TO THE FILE OF ASSESSING OFFICER EVEN THOUGH 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 THE FACTS, HELD AS UNDER: - '6. IT CAN THUS BE SEEN THAT THOUGH FINAL ORDER OF ASSESSMENT WAS SILENT ON THIS ASPECT, TH E ASSESSING OFFICER HAD CARRIED OUT INQUIRIES ABOUT THE NATURE OF SALE OF LAND AND ABOUT THE VALIDITY OF THE ASSESSEE'S CLAIM OF DEDUCTION UNDER SECTION 54F OF THE ACT. LEARNED COUNSEL FOR THE REVENUE HOWEVER SUBMITTED THAT THESE INQUIRIES WERE CONFINED TO THE CLAIM OF DEDUCTION UNDER SECTION 54F OF THE ACT IN THE CONTEXT OF FULFILLING CONDITIONS CONTAINED THEREIN AND MAY POSSIBLY HAVE NO RELEVANCE TO THE QUESTION WHETHER THE SALE OF LAND GAVE RISE TO A LONG TERM CAPITAL GAIN. LOOKING TO THE TENOR OF QUERIE S BY THE ASSESSING OFFICE AND DETAILS . A.Y. 2009 - 10 59 SUPPLIED BY THE ASSESSEE, WE ARE UNABLE TO ACCEPT SUCH A CONDITION. IN THAT VIEW OF THE MATTER, THE OBSERVATION OF THE TRIBUNAL THAT THE ASSESSING OFFICER HAVING MADE INQUIRIES AND WHEN 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 ITA NO. 3285 / DEL /2015 40 PROCEEDINGS, NOTHING STATED IN THIS ORD ER WOULD AFFECT EITHER SIDE IN CONSIDERATIONS OF SUCH CLAIM. 7. NO QUESTION OF LAW ARISES. TAX APPEALS ARE DISMISSED.' 31. THE HON'BLE SUPREME COURT IN MALABAR INDUSTRIAL CO. LTD., 243 ITR 83, HAS LAID DOWN THE FOLLOWING RATIO: 'A BARE READING OF SEC TION 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 OF THE INCOMETAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF TH E REVENUE. THE COMMISSIONER HAS TO BE SATISFIED OF TWIN CONDITIONS, NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THEM IS ABSENT -- IF THE ORDER OF THE INCOME - TAX OFFICER IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IS PREJUDICIAL 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 MI STAKE OR ERROR COMMITTED BY THE ASSESSING OFFICER, IT IS ONLY 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 CASE OF CIT VS. ANIL KUMAR REPORTED IN 335 ITR 83 HAS HELD THAT WHERE IT WAS DI SCERNIBLE FROM RECORD THAT THE A.O HAS APPLIED 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 DEL HI HIGH COURT IN THE CASE 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 INCUMBENT UPON THE CIT BEFORE EXERCISING REVISIONAL POWERS TO : (I) CALL FOR AND EXAMINE THE RECORD, AND (II) GIVE THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND THEREAFTER TO MAKE OR CAUSE TO BE MADE SUCH ENQUIRY AS HE DEEMS NECESSARY. IT IS ONLY ON FULFILMENT OF THESE TWIN CONDITIONS THAT THE CIT MAY PASS AN ORD ER EXERCISING HIS POWER OF REVISION. MINUTELY EXAMINED, THE PROVISIONS OF THE SECTION ENVISAGE THAT THE CIT MAY CALL FOR THE 61 RECORDS AND IF HE PRIMA FACIE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE AO IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE, HE MAY AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH ENQUIRY AS HE DEEMS NECESSARY, ITA NO. 3285 / DEL /2015 41 PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY. THE TWIN REQUIREMENTS OF T HE SECTION ARE MANIFESTLY FOR A PURPOSE. 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 ASSESSEE MUST BE CALLED, HIS EXPLANATION SOUGHT FOR AND EXAMINED BY THE CIT AND THEREAFTER IF THE CIT STILL FEELS THAT THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, THE CIT MAY PASS REVISIONAL ORDERS. IF, ON THE OTHER HAND, THE CIT IS SATISFIED, AFTER HEARING THE ASSESSEE , THAT THE ORDERS ARE NOT ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, HE MAY CHOOSE NOT TO EXERCISE HIS POWER OF REVISION. THIS IS FOR THE REASON THAT IF A QUERY IS RAISED DURING THE COURSE OF SCRUTINY BY THE AO, WHICH WAS ANSWERED TO THE SAT ISFACTION OF THE AO, BUT NEITHER THE QUERY NOR THE ANSWER WERE REFLECTED IN THE ASSESSMENT ORDER, THIS WOULD NOT BY ITSELF LEAD TO THE CONCLUSION THAT THE ORDER OF THE AO CALLED FOR INTERFERENCE AND REVISION. IN THE INSTANT CASE, FOR EXAMPLE, THE CIT HAS O BSERVED IN THE ORDER PASSED BY HIM THAT THE ASSESSEE HAS NOT FILED CERTAIN DOCUMENTS ON THE RECORD AT THE TIME OF ASSESSMENT. ASSUMING IT TO BE SO, IN OUR OPINION, THIS DOES NOT JUSTIFY THE CONCLUSION ARRIVED AT BY THE CIT THAT THE AO HAD SHIRKED HIS RESPO NSIBILITY OF EXAMINING AND INVESTIGATING THE CASE. MORE SO, IN VIEW OF THE FACT THAT THE ASSESSEE EXPLAINED THAT THE CAPITAL INVESTMENT MADE BY THE PARTNERS, WHICH HAD BEEN CALLED INTO QUESTION BY THE CIT WAS DULY REFLECTED 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 CONSID ERING THE VARIOUS SUBMISSIONS MADE BY THE ASSESSEE FROM TIME TO TIME AND HAS TAKEN A POSSIBLE VIEW, THEREFORE, MERELY BECAUSE 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 DECISIONS THAT WHEN THE A.O HAS MADE ENQUIRY TO HIS SATISFACTION AND IT IS NOT A CASE OF NO ENQUIRY AND THE DIT/CIT WANTS THAT THE CASE COULD HAVE BEEN INVESTIGATED/ PROBED IN A PARTICULAR MANNER, HE CANNOT ASSUME JURISD ICTION U/S 263 OF THE ACT. IN VIEW OF THE ABOVE DISCUSSION, WE HOLD THAT THE ASSUMPTION OF JURISDICTION 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 ITA NO. 3927/DEL/2016 ORDER DATED 04.07.2018, THE CO - ORDINATE 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 ITA NO. 3285 / DEL /2015 42 CIRCUMSTANCES SPECIFIED THEREIN EXIST. TWO CIRCUMSTANCES MUST EXIST TO ENABLE THE COMMISSIONER TO EXE RCISE POWER OF REVISION UNDER THIS SUB - SECTION, VIZ., (I) THE ORDER IS ERRONEOUS; (II) BY VIRTUE OF THE ORDER BEING ERRONEOUS PREJUDICE HAS BEEN CAUSED TO THE INTERESTS OF THE REVENUE. IT HAS, THEREFORE, TO BE CONSIDERED FIRSTLY AS TO WHEN AN ORDER CAN BE SAID TO BE ERRONEOUS. WE FIND THAT THE EXPRESSIONS 'ERRONEOUS', 'ERRONEOUS ASSESSMENT' AND 'ERRONEOUS JUDGMENT' HAVE BEEN DEFINED IN BLACK'S LAW DICTIONARY. ACCORDING TO THE DEFINITION, 'ERRONEOUS' MEANS 'INVOLVING ERROR; DEVIATING FROM THE LAW'. 'ERRONEOU S ASSESSMENT' REFERS TO AN ASSESSMENT THAT DEVIATES FROM THE LAW AND IS, THEREFORE, INVALID, AND IS A DEFECT THAT IS JURISDICTIONAL IN ITS NATURE, AND DOES NOT REFER TO THE JUDGMENT OF THE ASSESSING OFFICER IN FIXING THE AMOUNT OF VALUATION OF THE PROPERTY . SIMILARLY, 'ERRONEOUS JUDGMENT' MEANS 'ONE RENDERED ACCORDING TO COURSE AND PRACTICE OF COURT, BUT CONTRARY TO LAW, UPON MISTAKEN VIEW OF LAW; OR UPON ERRONEOUS APPLICATION OF LEGAL PRINCIPLES'. 12. FROM THE AFORESAID DEFINITIONS IT IS CLEAR THAT AN OR DER CANNOT BE TERMED AS ERRONEOUS UNLESS IT IS NOT IN ACCORDANCE WITH LAW. IF AN INCOME - TAX OFFICER ACTING IN ACCORDANCE WITH LAW MAKES A CERTAIN ASSESSMENT, THE SAME CANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE, ACCORDING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY 64 THIS SECTION DOES NOT VISUALISE A CASE OF SUBSTITUTION OF THE JUDGMENT OF THE COMMISSIONER FOR THAT OF THE INCOME - TAX OFFICER, WHO PASSED THE ORDER UNLESS THE DECISION IS HELD TO BE ERRONEOUS. CASES MAY BE VISUALISED WHERE THE INCOME - TAX OFFICER WHILE MAKING AN ASSESSMENT EXAMINES THE ACCOUNTS, 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 ESTIMATE HI MSELF. THE COMMISSIONER, ON PERUSAL OF THE RECORDS, MAY BE OF THE OPINION THAT THE ESTIMATE MADE BY THE OFFICER CONCERNED WAS ON THE LOWER SIDE AND LEFT TO THE COMMISSIONER HE WOULD HAVE ESTIMATED THE INCOME AT A FIGURE HIGHER THAN THE ONE DETERMINED BY TH E INCOME - TAX OFFICER. THAT WOULD NOT VEST THE COMMISSIONER WITH POWER TO RE - EXAMINE THE ACCOUNTS AND DETERMINE THE INCOME HIMSELF AT A HIGHER 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 DOES NOT FEEL SATISFIED WITH THE CONCLUSION. IT MAY BE SAID IN SUCH A CASE THAT IN THE OPINION OF THE COMMISSIONER THE ORDER IN QUESTION IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. BUT THAT BY ITSELF WILL NOT BE ENOUGH TO VEST THE COMMISSIONER WITH THE POWER OF SUO MOTU REVISION BECAUSE THE FIRST REQUIREMENT, VIZ., THAT THE ORDER IS ERRONEOUS, IS ABSENT. SIMILARLY, IF AN ORDER IS ERRON EOUS BUT NOT PREJUDICIAL TO THE INTERESTS OF THE REVENUE, THEN ALSO THE POWER OF SUO MOTU REVISION CANNOT BE EXERCISED. ANY AND EVERY ERRONEOUS ORDER CANNOT BE THE SUBJECT - MATTER OF REVISION BECAUSE THE SECOND REQUIREMENT ALSO MUST BE FULFILLED. THERE MUST BE SOME PRIMA FACIE MATERIAL ON RECORD TO SHOW THAT TAX WHICH WAS LAWFULLY EXIGIBLE HAS NOT BEEN IMPOSED OR THAT BY THE APPLICATION OF THE RELEVANT STATUTE ON AN INCORRECT OR INCOMPLETE INTERPRETATION A LESSER TAX THAN WHAT WAS JUST HAS BEEN IMPOSED. ITA NO. 3285 / DEL /2015 43 WE, THEREFORE, HOLD THAT IN ORDER TO EXERCISE POWER UNDER SUB - SECTION (1) OF SECTION 263 OF THE ACT THERE MUST BE MATERIAL BEFORE THE COMMISSIONER TO CONSIDER THAT THE ORDER PASSED BY THE INCOME - TAX OFFICER WAS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE I NTERESTS 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 PASSED BY THE INCOME - TAX OFFICER WITHOUT MAKING ANY ENQUIRY IN UNDUE HASTE. WE HAVE ALSO HELD AS TO WHAT IS PREJU DICIAL TO THE INTERESTS OF THE REVENUE. AN ORDER CAN BE SAID TO BE PREJUDICIAL TO THE INTERESTS OF THE REVENUE IF IT IS NOT IN ACCORDANCE WITH THE LAW IN CONSEQUENCE WHEREOF THE LAWFUL REVENUE DUE TO THE STATE HAS NOT BEEN REALISED OR CANNOT BE REALISED. T HERE MUST BE MATERIAL AVAILABLE ON THE RECORD CALLED FOR BY THE COMMISSIONER TO SATISFY HIM PRIMA FACIE THAT THE AFORESAID TWO REQUISITES ARE PRESENT. IF NOT, HE HAS NO AUTHORITY TO INITIATE PROCEEDINGS FOR REVISION. EXERCISE OF 66 POWER OF SUO MOTU REVISI ON 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 FACTS, THE AUTHORITY BEFORE EXERCISING SUCH POWER MUST HAVE MATERIALS ON RECORD TO SATISFY IT IN THAT REGARD. IF THE ACTION OF THE AUTHORITY IS CHALLENGED BEFORE THE COURT IT WOULD BE OPEN TO THE COURTS TO EXAMINE WHETHER THE RELEVANT OBJECTIVE FACTORS WERE AVAILABLE FROM THE RECORDS CALLED FOR AND EXAMINED BY SUCH AUTHORITY. THE INCOME - TAX OFFICER IN THIS CASE HAD MADE ENQUIRIES IN REGARD TO THE NATURE OF THE EXPENDITURE INCURRED BY THE ASSESSEE. THE ASSESSEE HAD GIVEN DETAILED EXPLANATION IN THAT REGARD BY A LETTER IN WRITING. ALL THESE ARE PART OF THE RECORD OF THE CASE. E VIDENTLY, THE CLAIM WAS ALLOWED BY THE INCOMETAX OFFICER ON BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE. SUCH DECISION OF THE INCOME - TAX OFFICER CANNOT BE HELD TO BE 'ERRONEOUS' SIMPLY BECAUSE IN HIS ORDER HE DID NOT MAKE AN ELABORATE DISCUSSION I N THAT REGARD. MOREOVER, 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 RE VENUE EXPENDITURE BUT AN EXPENDITURE OF CAPITAL NATURE. HE SIMPLY ASKED THE INCOME - TAX OFFICER TO RE - EXAMINE THE MATTER. THAT, IN OUR OPINION, IS NOT PERMISSIBLE. HENCE THE PROVISIONS OF SECTION 263 OF THE ACT WERE NOT APPLICABLE TO THE INSTANT CASE AND, T HEREFORE, THE COMMISSIONER WAS NOT JUSTIFIED IN SETTING ASIDE THE ASSESSMENT ORDER. 34. THE LD. DR, IN HIS WRITTEN SUBMISSIONS, HAS RELIED 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 FACTS 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 ITA NO. 3285 / DEL /2015 44 DISTINGUISHA BLE ON FACTS AS IN THAT CASE, THE ASSESSING OFFICER DID NOT GO INTO THE ISSUE WITH RESPECT TO WHOLE CLAIM OF DEPRECATION AND THAT WAS CONSIDERED AS AN ERROR JUSTIFYING THE ASSUMPTION OF JURISDICTION U/S 263 OF THE ACT. WHEREAS THE FACTS OF THE CASE, AS DIS CUSSED HEREINABOVE, CLEARLY SHOW THAT THE REASONS ON WHICH THE PCIT ASSUMED JURISDICTION ARE THE VERY REASONS FOR REOPENING THE ASSESSMENT AND THE ASSESSING OFFICER HAS NOT ONLY MADE THOROUGH ENQUIRY, BUT HAS ALSO DONE DETAILED INVESTIGATIVE WORK BY CALLIN G FOR 68 INFORMATION U/S 133(6) OF THE ACT FROM VARIOUS PARTIES MENTIONED ELSEWHERE. 36. SIMILAR IS THE FATE OF THE DECISION IN THE CASE OF RAJMANDIR ESTATES 386 ITR 162 WHEREIN THE ASSESSING OFFICER DID NOT MAKE ANY ENQUIRY IN RESPECT OF HUGE PREMIUM CO LLECTED BY THE ASSESSEE WITH A SMALL AMOUNT OF AUTHORISED SHARE CAPITAL AND, THEREFORE, IT WAS HELD THAT THE COMMISSIONER WAS JUSTIFIED IN TREATING THE ASSESSMENT ORDER AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 37. ANOTHER DECISION REL IED UPON BY THE LD. DR WHICH 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 USED IN SEC. 263 (1) OF THE AC T WOULD MEAN THE RECORD AS IT STANDS AT THE TIME OF EXAMINATION BY THE COMMISSIONER, BUT NOT AS IT STANDS 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 M IND, THE PCIT WOULD HAVE KNOWN THE FATE OF FRIVOLOUS COMPLAINTS MADE BY SHRI S.K. SRIVASTAVA AND HIS CONVICTION BY 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 TOTALITY, IN THE LIGHT OF JUDICIAL DECISIONS DISCUSSED HEREINABOVE, SUPPORTED BY A VORTEX OF EVIDENCES, EXAMINED AND ANALYSED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, FURTHE R SUPPORTED BY THOROUGH INVESTIGATIONS/ENQUIRIES MADE BY THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS, WE ARE OF THE CONSIDERED VIEW THAT THERE REMAINS NOTHING FOR THE PCIT TO ASSUME JURISDICTION U/S 263 OF THE ACT TO SAY THAT THE ASSESSMENT ORD ER IS NOT ONLY ERRONEOUS BUT PREJUDICIAL TO THE INTEREST OF THE REVENUE. WE ARE OF THE CONSIDERED VIEW THAT THE PCIT HAS WRONGLY ASSUMED JURISDICTION U/S 263 OF THE ACT, HENCE HIS COMBINED ORDER FOR ALL THE A.YS DESERVES TO BE SET ASIDE. WE, ACCORDINGLY, S ET ASIDE THE ORDER OF THE PCIT AND RESTORE THAT OF THE ASSESSING OFFICER. WE ORDER ACCORDINGLY. 40. BEFORE PARTING WITH THE PRESENT ORDER, WE ARE CONSTRAINED TO BRING ON RECORD, TO BE LOOKED INTO BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT) THAT PROCEEDIN GS U/S 263 OF THE ACT HAVE BEEN INITIATED IN THIS CASE APPARENTLY ON ITA NO. 3285 / DEL /2015 45 THE BASIS OF FALSE, FRIVOLOUS AND BASELESS ALLEGATIONS WITH MALAFIDE INTENTION OF THE QUARTER CONCERNED WHICH WERE ALSO EXAMINED AND FOUND NOT SUSTAINABLE BY THE VIGILANCE DIRECTORATE OF INCOME - TAX DEPARTMENT. NO DOUBT, PROCEEDINGS U/S 263 OF THE ACT HAVING BEEN INITIATED AND COMPLETED ON THE ALLEGATIONS LEVELED BY A SENIOR OFFICER OF THE INCOME - TAX DEPARTMENT IS AN ORDER PASSED BY A QUASI - JUDICIAL AUTHORITY BUT IT SANS JUDICIOUS APPROACH REQUIRED TO BE EXERCISED BY THE QUASI - JUDICIAL AUTHORITY. QUASI - JUDICIAL PROCEEDINGS INITIATED APPARENTLY ON THE BASIS OF FALSE, FRIVOLOUS AND BASELESS ALLEGATIONS HAVE NOT ONLY PREJUDICED APPELLANT RATHER IT HAS ALSO WASTED THE VALUABLE TIME OF THE TRIBUN AL. FACTS AND CIRCUMSTANCES OF THE CASE, AVAILABLE ON RECORD AS DISCUSSED IN THE PRECEDING PARAS PROVE, THAT THE SENIOR OFFICER OF THE REVENUE DEPARTMENT HAD NOT ONLY GOT THE PROCEEDINGS U/S 263 INITIATED AGAINST APPELLANT ON FALSE, FRIVOLOUS AND BASELESS ALLEGATIONS RATHER CONTINUED TO LITIGATE AGAINST THE APPELLANT AS WELL AS AGAINST THE REVENUE DEPARTMENT BY FILING FRIVOLOUS APPLICATIONS ONE AFTER THE OTHER BEFORE THE HON BLE HIGH COURT OF DELHI AS WELL AS THE TRIBUNAL. 41. IN THESE CIRCUMSTANCES, WE D IRECT THE CBDT TO INITIATE A DISCREET ENQUIRY IN THIS CASE TO FIND OUT, AS TO HOW AND UNDER 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 APPELLANT, TO PROCEED AGAINST THE GUILTY OFFICIALS UNDER RULES AND TO FURTHER 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 ASSESSEE IN ITA NOS. 3281 TO 3284/DEL/2015 ARE ALLOWED. 17. SINCE THE FACTS OF THE INSTANT CASE ARE IDENTICAL TO THE FACTS OF THE CASE ALREADY DECIDED BY THE TRIBUNAL IN THE CASE OF THE SPOUSE OF THE ASSESSEE, NAMELY, MRS. SHUMANA SEN IN SO FAR AS ALLEGATION NO. (A), (C) AND (D) OF PARA 15 OF THIS ORDER, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL IN THE CASE OF THE SPOUSE OF THE ASSESSEE MRS. SHUMANA SEN (SUPRA), WE HOLD THAT THE PCIT HAS WRONGLY ASSUMED JURISDICTION U /S 263 OF THE ACT ON THESE ISSUES . ITA NO. 3285 / DEL /2015 46 18. SO FAR AS THE ALLEGATION OF NOT CONDUCTING ANY ENQUIRY REGARDING ESOP IS CONCERNED, WE FIND THE YEAR UNDER CONSIDERATION IS A.Y. 2005 - 06 AND THERE WAS NO PROVISION IN THE ACT TO TREAT THE ESOPS AS PERQUISITES IN THE HA NDS OF THE ASSESSEE. THE AMENDMENT IN SECTION 17(2)(VI) OF THE ACT WAS W.E.F. 01.04.2010 AND PRIOR TO SUCH AMENDMENT ESOPS WERE TREATED AS CAPITAL RECEIPTS IN THE HANDS OF THE RECIPIENT AND WERE TAXABLE ONLY AFTER THE SALE OF THE SHARES. THEREFORE, WE FI ND MERIT IN THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE OBSERVATION OF THE PCIT THAT THE AO DID NOT CONDUCT ANY ENQUIRY REGARDING TAX ON RECEIPT ARISING OUT OF ESOPS RECEIVED FROM EMPLOYER IS NOT IN ACCORDANCE WITH LAW. THEREFORE, THE PCIT, IN OUR OPINION, IS NOT JUSTIFIED IN ASSUMING JURISDICTION U/S 263 ON THE ISSUE OF NON - EXAMINATION OF TAXABILITY OF RECEIPTS OF ESOPS FROM THE EMPLOYER. 19. IT IS THE SETTLED PROPOSITION OF LAW THAT IN ORDER TO ASSUME JURISDICTION U/S 263 OF THE ACT, THE TWIN CONDITIONS NAMELY, (A) THAT THE ORDER IS ERRONEOUS AND (B) THAT THE ORDER IS PREJUDICIAL TO THE INTEREST OF THE REVENUE MUST BE SATISFIED. IN THE INSTANT CASE, THE AO AFTER EXAMINING THE FACTS ON RECORD AND AFTER CONDUCTING ALL POSSIBLE ENQUIRIES HAD PASS ED THE ORDER BY MAKING CERTAIN ADDITIONS. THEREFORE, MERELY BECAUSE THE LD. PCIT DOES NOT AGREE WITH THE ORDER OF THE AO CANNOT MAKE THE ORDER ERRONEOUS AS LONG AS THE SAME WAS PASSED AFTER ALL POSSIBLE ENQUIRIES AND DUE VERIFICATION OF FACTS ON RECORD. IT IS NOT A CASE OF LACK OF ENQUIRY OR LACK OF INVESTIGATION SO AS TO INVOKE THE PROVISIONS OF SECTION 263 OF THE IT ACT, 1961. FURTHER, THE PCIT HIMSELF HAS NOT CONDUCTED ANY ENQUIRY SO AS TO GIVE A DEFINITE ITA NO. 3285 / DEL /2015 47 FINDING THAT THE ORDER PASSED BY THE AO IS ERR ONEOUS. EVEN OTHERWISE ALSO WHEN TWO VIEWS ARE POSSIBLE AND THE AO HAS ADOPTED ONE POSSIBLE VIEW, THE ORDER OF THE AO CANNOT BE SAID TO BE ERRONEOUS SO AS TO ASSUME THE JURISDICTION U/S 263 SINCE THE TWIN CONDITIONS CANNOT BE FULFILLED. 20. IN THIS VIEW OF T HE MATTER, WE HOLD THAT THE PCIT WAS NOT JUSTIFIED IN ASSUMING JURISDICTION U/S 263 OF THE IT ACT, 1961. WE, THEREFORE, SET ASIDE THE ORDER OF THE PCIT PASSED U/S 263 AND T HE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 21. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 27 TH JANUARY, 202 1 . SD/ - SD/ - ( SUCHITRA KAMBLE ) ( R. K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27 TH JANU ARY, 202 1 . DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI