SHRIMATI. LATA NARANG, JALANDHAR V. PRINCIPAL COMMISSIONER OF INCOME TAX -1, JALANDHAR

ITA 35/ASR/2021

AI Insights

The case involves an appeal by Smt. Lata Narang against the order of the Principal Commissioner of Income Tax, Jalandhar-1, which set aside the assessment order passed by the Assessing Officer under sections 143(3) and 147 of the Income Tax Act, 1961. The PCIT's order was based on the grounds that the source of cash deposits amounting to Rs. 35,50,000 in the assessee's bank account remained unverified and unexplained. However, the Tribunal found that the Assessing Officer had adequately verified the source of these deposits during the assessment proceedings. The Tribunal also noted that the assessee had opted for the Vivad Se Vishwas scheme, which resulted in a full and final settlement of tax arrears, and thus, the matter should not have been reopened.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 114474 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 15-02-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 24-05-2021
• Other Referred Cases: Malabar Industrial Co. Ltd vs. CIT, CIT Vs. Max India Ltd, Ultratech Cement Ltd vs State of Rajasthan Ors, PCIT vs. V. Dhana Reddy & Co., CIT Vs. Deepak Mittal, CIT vs. Sunbeam Auto Ltd, M/s Roshan lal Vegetable Products Pvt. Ltd. vs. ITO, CIT Vs. Hindustan Marketing and Advertising Co. Ltd, CIT vs. Amit Corporation, Braham Dev Gupta v. PCIT, CIT v. Nirav Modi, Hari Iron Trading Co. vs. Commissioner of Income-tax, CIT vs. Kelvinator of India Ltd, CIT v. Anil Kumar Sharnur, Leela Gupta vs PCIT-1, Jalandhar, Uma Corporation v. ACIT & Ors., Killick Nixon Ltd. v. Dy. CIT
• Laws Referred To: Income Tax Act, 1961, Direct Tax Vivad Se Vishwas Act, 2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: WAY OF ISSUING NOTICE US A QUESTIONNAIRE
• Keywords: Gift; Business income; Revision of order; Principle of natural justice; Difference of opinion; Assessment record; Change of opinion
• Section: 148; 6; 263; 143(3); 142(1); 5(2); 69A; 64

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T. A. No. 35/Asr/2021 Assessment Year: 2011-12 Smt. Lata Narang 271, Nizatam Nagar, Backside KGS Palace, Basti Nau, Jalandhar, Punjab [PAN: AEYPN 0415J] (Appellant) V. Principal Commissioner of Income Tax, Jalandhar-1. (Respondent) Appellant by : Sh. Ashray Sarna, CA Respondent by : Smt. Rajinder Kaur, CIT- DR Date of Hearing : 16.02.2023 Date of Pronouncement : 02.03.2023 ORDER Per Dr. M. L. Meena, AM: The present appeal has been filed by the assessee against the order of the Ld. Pr. Commissioner of Income Tax, (In short “the PCIT”) Jalandhar-1 dated 23.03.2021 in respect of Assessment Year 2011-12. 2. The assessee has raised the following grounds of appeal: ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 2 “1. That the order passed by the Hon’ble Principal Commissioner of Income Tax, Jalandhar-1 dated 23/03/2021 is against the law and facts of the case. 2. That having regard to the facts and circumstances of the case, Hon’ble Principal Commissioner of Income Tax has erred in law and on facts in setting aside the order of A.O. passed u/s 143(3) of Income Tax Act. 3. That having regard to the facts and circumstances of the case, Hon'ble Principal Commissioner of Income Tax has erred in law and on facts, stating in his order u/s 263 dated 23/03/2021 that return filed by assessee was accepted by the A.O. which is not correct as ITR filed by assessee was not accepted by A.O. and an addition of Rs. 523679/- was made by A.O. in the income of assessee vide assessment order dated 21.12.2018. 4. That having regard to the facts and circumstances of the case, Hon’ble Principal Commissioner of Income Tax has erred in law and on facts, stating in his order u/s 263 dated 23/03/2021 stating that perusal of assessment records reveals that source of cash deposits of Rs. 35,50,000/- has remained unverified /unexplained and that A.O. has finalised assessment without carrying out the necessary verification regarding source of cash deposited in bank account which is not correct the A.O. has made thorough verification of evidence of source of cash deposit submitted by assessee during the assessment proceedings and only after verification of cash deposit made by assessee the A.O. issued his Assessment order. 5. That having regard to the facts and circumstances of the case, Hon’ble Principal Commissioner of Income Tax has erred in law and on facts, ignoring the fact that assessee has opted for Vivad Se Vishwas scheme for dispute resolution and proceedings under the scheme are completed and Certificate in form no. 5 has been issued to the assessee which contains order for full and final settlement of tax arrears u/s 5(2) read with section 6 of The Direct Tax Vivad Se Vishwas Act, 2020. The (Vivad se Vishwas) scheme also highlights the point that once the taxpayers decide to resolve the dispute with the tax authority under this scheme, then the amount payable would be considered final and such cases will not be opened again for proceeding under the Income Tax Act. But Hon’ble Principal Commissioner of Income Tax ignored this fact and initiated ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 3 proceedings u/s 263 and set aside the Assessment made by A.O. u/s 147/143(3) of Income Tax Act, 1961 vide his order u/s 263 dated 23/03/2021 which is null and void. 6. That having regard to the facts and circumstances of the case, Hon'ble Principal Commissioner of Income Tax has erred in law and on facts, stating in his order u/s 263 that written submission and documents submitted by council of the assessee CA Inderjit Abhilashi needed to be verified since such verifications/enquiries have not been made by the A.O. at assessment stage, which is not correct because written submission and documents submitted by Council of the assessee during proceedings u/s 263 only contain submissions and documents which were submitted to the A.O. during assessment proceedings and thorough verification of the same was made by A.O. and there was only one matter in assessment proceedings which needed verification by A.O. which was verification of cash deposit of Rs. 35,50,000/- and full and thorough verification of the same was made by A.O. before finalising the Assessment 7. That the appellant craves the leave to add, modify, amend or delete any of grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other.” 3. The Ld. PCIT on perusal of assessment record for the assessment year 2011-12 observed that the assessment order had been framed on 21.12.2018 under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter refer to as The Act’). The examination of the assessment order and the facts on record, show certain discrepancies in the assessment order issued. A show-cause notice was therefore issued to the assessee under section 263 of the Act, vide letter No.3145 dated 16.03.2021 as follows:- Please refer to the Assessment order in your case framed u/s 143(3)r.w.s. 147 of the Income Tax Act on 21.12.2018 at an income of Rs. 7,07,679/-. The perusal of the assessment order and on examination of record for the asstt. year 2011-12, the following points have been noticed:- ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 4 “The proceedings u/s 147 of the Income Tax Act, 1961 for the Asstt.Year:2011-12 were initiated in your case as you did not file any information with respect to the source of cash deposited by you at Rs.35,50,000/- in your savings bank during the relevant period. In response to the notice u/s 148 of the Act, you filed the income tax return declaring income at Rs. 1,84,000/- on 27.08.2018. Assessment in your case was framed on 21.12.2018 u/s 143(3) of the Income Tax Act and return income was accepted. The perusal of the asstt. records reveals that the source of cash deposits of Rs.35,50,000/- has remained unverified/ unexplained. 2. Accordingly, in view of above facts and circumstances, it is apparent that the assessment has been finalized in your case by the then Assessing Officer, without carrying out the necessary verification regarding source of cash deposited in the Bank account. Accordingly, in view of provisions contained in clause (a) of Explanation 2 below sub section (1) of section 263 of the I.T.Act, 1961, I propose to hold the said order passed u/s 143(3) of the Income Tax Act, 1961 dated 21.12.2018 to be erroneous, in so far as it is prejudicial to the interests of revenue and take suitable remedial action, as per section 263 of the Income-tax Act, 1961. For sake of natural justice you are given an opportunity to file your reply/objections, if any, to the proposed action before the undersigned by 22.03.2021 on which date your case stands fixed for hearing at 11.00 A.M. in the office of the undersigned at Aayakar Bhawan, Rishi Nagar, Ludhiana. The reply alongwith supporting documentary evidence, if any, may kindly be sent online or email which shall be duly considered before taking final decision in the matter.”, 3.1 The PCIT discussed that above show cause notice was issued through Speed Post as well as through ITBA System on 16.03.2021. In response to the show cause notice, Sh. lnderjit Abhilashi.CA, attended the proceedings and filed written submission. I have considered the reply of the assessee on the issues raised in the show cause notice and the documents filed by the assessee which need to be verified since such ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 5 verifications/enquiries have not been made by the A.O. at assessment stage. Therefore, the order passed by the Assessing Officer is held to be erroneous and prejudicial to the interest of the revenue. The case is, therefore, set aside to the file of the A.O. for fresh assessment on the above mentioned issue. 4. The Ld. Counsel for the assesse argued that the impugned order u/s 263 dated 23/03/2021 stating that perusal of assessment records reveals that source of cash deposits of Rs. 35,50,000/- has remained unverified /unexplained is factually incorrect because the A.O. has finalized assessment after necessary verification regarding source of cash deposited in bank account thorough evidence of source of cash deposit submitted during the assessment proceedings. He has filed a paper book (Pgs. 1 - 25) with brief synopsis which reads as under: “1. The present appeal emanates from the order passed u/s 263 by the PCIT-1, Jalandhar 2. Before going into the issues in appeal, the brief facts of the case are being placed before the Honorable Bench. That the assessment proceedings in the instant case were initiated vide Notice u/s 148 of the Income Tax Act dated 27/03/2018 (copy enclosed as Annexure 1.) In response to the notice return declaring an income of Rs. 184000/-was filed. Subsequent to that notice u/s 142(1) along with questionnaire were issued by the AO and during the continuance of the assessment proceedings the Counsel of the appellant duly attended the proceedings and the case was discussed with ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 6 him. A perusal of para 2 Cash Deposits of the assessment order reads as under:- “As per information available with this office, Smt. Lata Narang was maintaining saving bank account number 2991000106021490 with Punjab National Bank, Basti Danishmandan, Jalandhar, wherein cash deposits of Rs.3500000/- were made during the year under consideration. Vide Notice u/s 142(1) questionnaire dated 08/10/2018 the assessee was asked to fde details of the bank accounts maintained and explain the source of cash with supporting documentary evidence. The assessee vide her replies dated 12/11/2018 and 12/12/2018 stated the source of cash deposits in the bank accounts the detailed of which find mention in paras 2.1 to 2.4 of the order passed by the AO, and in para 2.5 the AO has made an addition of Rs.490000/-on account of refund of advance of property and added the same to the income of the assessee u/s 69A. while assessing the income of the assessee at Rs.707679/- vide order dated 21/12/2018. Copy of order passed by the AO u/s 147/143(3) is attached as Annexure -2 for your kind perusal. Aggrieved by the additions made while passing the order u/s 147/143(3) the assessee had preferred an appeal before CIT(A) NFAC, New Delhi. The assessee as a matter of fact had paid the demand amounting to Rs.207696/- as had been created by the AO. However, in the meanwhile the option to opt for Vivad Se Viswas Scheme in cases where appeals were pending was announced by the Government and the assessee opted for Vivad Se Viswas Scheme on 24/6/2020 and same has been accepted by the PCIT/ Department after considering all the fact and submission filed and after such verification the Certificate in Form-5 had been issued by the PCIT-1, Jalandhar on 08/01/2021. Thus with the issue of the certificate by the PCIT-1, all the proceedings with regards the order passed by the AO dated 21/12/2018 got finalized and hence the said order of the AO could not have been made basis of issue of revision u/s 263 by the PCIT-1. The PCIT-1 in the show cause notice dated 16/03/2021 had raised the issue to which a detailed reply was filed with supporting details which the PCIT-1 failed to consider and appreciate. A perusal of the order passed u/s 263 reveal that the source of cash deposit of Rs.3550000/-remained unverified and unexplained and hence in view of the replies and evidences filed the PCIT observed that same need verification at assessment stage and therefore the order passed by the AO ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 7 is held to be erroneous and prejudicial to the interest of Revenue. Here the PCIT failed to appreciate and consider the contents of the reply dated 19/3/2021 filed before him. Copy enclosed as Annexure 3 wherein the cash flow with regards to cash deposit filed before the AO vide reply 12/12/2018 has been reproduced. The same had also been filed during course of proceedings initiated u/s 147/148 by the AO. Thus by way of the order passed u/s 263 it can be said the PCIT-1 has made a case of reexamination of facts and evidences already examined by the AO while passing the order u/s 147/143(3). Aggrieved by the findings of the PCIT-1 the appeal has been preferred and our submissions are as under:- That the PCIT-1 Jalandhar was not justified in initiating the proceedings u/s 263 for reexamining the cash deposit which had already been examined by the AO during the course of proceeding held u/s 147/148 as treating the order passed by the AO u/s 147/143(3) as erroneous and prejudicial to the interest of Revenue. The AO during the course of proceedings u/s 147/148 has enquired about the source of cash and after verification had passed the order u/s 147/143(3) which has been made part of the submissions supra. Thus when the issue has already been examined by the AO during the course of assessment proceedings, the fresh examination under garb of Section 263 by the PCIT is not called for .In the above case an order has been passed after making inquiry on an issue and after having examined the replies of the assessee with due application of mind. It is not the case where no inquiry was made. Therefore, such a case cannot be treated as a case of “no inquiry” and thus proceedings u/s 263 of the Act cannot be initiated in such a case. Further, an assessment order should not be subject to revision u/s 263 merely because another view is possible on the issue decided by the AO. Following judgments are being relied by the assessee in this regard Where an Assessing Officer takes one of the two views permissible in law and which the Commissioner does not agree with and which results in a loss of revenue, it cannot be treated as erroneous order prejudicial to the interest of revenue, unless the view taken by the Assessing Officer is completely unsustainable in law. Reference is drawn to the findings of the Hon’ble Supreme Court in case of Malabar Industrial Co. Ltd vs. CIT 243 ITR 83(SC) wherein in has been held that the phrase ‘prejudicial to the interests of the revenue’ has to be read in conjunction with an erroneous order passed by the Assessing Officer and every loss of revenue as a consequence of the order of the Assessing Officer cannot be treated as prejudicial to the interest of revenue. It was further held that whereto views are possible and the Income Tax Officer has taken one ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 8 view with which the Commissioner does not agree, the order passed by the Assessing Officer cannot be treated as erroneous order prejudicial to the interest of the revenue. The principles laid down in the aforesaid decision were reiterated by the Supreme Court in ‘CIT Vs. Max India Ltd, 295 ITR 282 (SC) and recently in ‘Ultratech Cement Ltd vs State of Rajasthan Ors, Civil Appeal No. 2773/202 decided on 17.07.2020. Further in the case of PCIT vs. V. Dhana Reddy & Co. - [2018] 100 taxmann.com 358 (SC) it has been held that If AO had adopted a plausible view, revision u/s 263 not sustainable Further the Hon'ble Punjab & Haryana High Court in the case of CIT Vs. Deepak Mittal [2010] 324 ITR411 (P&H) has held that "Change of opinion by reappraising the evidence is not within the para-meters of provisional jurisdiction of the Commissioner under section 263 of the Income-tax Act, 1961. ” Lack of enquiry/no enquiry is different from inadequate enquiry and it is only in case of no enquiry by the AO, Pr. CIT/C1T can exercise jurisdiction u/s 263 of the Act and not in case where the AO has made enquiries as seems appropriate in the facts and circumstances of the case. In the case inquiry on relevant issues made by AO hence no action invited u/s 263 and Reliance in this regard is placed on CIT vs. Sunbeam Auto Ltd. 332 ITR 167 (Del.). Where in it was held as under: - “One has to keep in mind the distinction between 'lack of inquiry' and 'inadequate inquiry'. If there was any inquiry, even inadequate, that would not, by itself, give occasion to the Commissioner to pass orders under section 263 merely because he has different opinion in the matter. It is only in cases of 'lack of inquiry' that such a course of action would be open. ” Reliance is also placed on the decision of jurisdictional lTAT Amritsar Bench, in the case of M/s Roshan lal Vegetable Products Pvt. Ltd. vs. ITO, in ITA 06(Asr)/2010, for the proposition that where the relevant issues have duly been considered and adjudicated by the Assessing Officer while making the assessment, the CIT is not competent to re-adjudicate the same issue by invoking the provisions of section 263. The Hon'ble Delhi High Court in the case of CIT Vs. Hindustan Marketing and Advertising Co. Ltd [2012] 341 ITR 180 (Delhi) held as under:-"/?ev/s/o« - ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 9 Powers of Commissioner - Assessment after enquiry -No error in order - Order cannot be revised on ground of enquiry -Should have been more detailed." The Hon'ble Gujarat High Court in the case of CIT vs. Amit Corporation 21 Taxman.Com 64 (Gujarat) held that where Assessing officer after detailed verification of record and making inquiry had framed assessment, the CIT cannot revise it u/s 263 of the I. T. Act. Reference is also invited to the following judgments in this regard. Braham Dev Gupta v. PCIT— [2017] 88 taxmann.com 831 (1TAT Delhi) CIT v. Nirav Modi - [2016] 71 taxmann.com 272 (Bombay) [’s SLP dismissed by SC] Further reference is invited to the decision of the Punjab and Haryana High Court in the case of Hari Iron Trading Co. vs. Commissioner of Income-tax: 263 ITR 437, wherein it was held that even though the assessment orderly as silent with respect to the issues raised in the 263 order, that by itself did not vest the Commissioner with valid jurisdiction, considering that such issues were considered by the assessing officer and formed part of the assessment record. The aforesaid judgment has been followed with approval by the Delhi High Court in the case of CIT v,y. Eicher Limited: 294 ITR 310. The relevant observations are reproduced hereunder: "15. In Hari Iron Trading Co. v. Commissioner of Income 7nx. (2003) 263 ITR 437, a Division Bench of Punjab and Haryana High Court observed that an assessee has no control over the way an assessment order is drafted. It was observed that generally, the issues which are accepted by the Assessing Officer do not find mention in the assessment order and only such points are taken note of on which the assessee's explanations are rejected and additions / disallowances are made. We agree. 16. Applying the principles laid down by the Full Bench of this court as well as the observations of the Punjab and Haryana High Court we find that if the entire material had been placed by the assessee before the Assessing Officer at the time when the original assessment was made and the Assessing Officer applied his mind to that material and accepted the view canvassed by the assessee, then merely because he did not express this in the assessment order, that by itself would not give him a ground to conclude that income has escaped assessment and, therefore, the assessment needed to be reopened. On the other hand, if the ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 10 Assessing Officer did not apply his mind and committed a lapse, there is no reason why the assessee should be made to suffer the consequences of that lapse." (Emphasis supplied) Reliance is also placed on the decision of the Delhi High Court, which has been affirmed by the Supreme Court in the case reported as CIT vs. Kelvinator of India Ltd.: 320 ITR 561.To the same effect is the decision of the Delhi High Court in the case of CIT v.v. Anil Kumar Sharnur. 335 ITR 83, where it was held that “though the assessment order did not patently indicate that the issue in question had been considered by the assessing officer, the record showed that the assessing officer had applied his mind and once such application of mind was discernible from the record, proceedings under Section 263 of the Act would fall into the arena of the Commissioner having a different opinion, which was impermissible in law." The Honorable jurisdictional Amritsar Bench while disposing and allowing the appeal in I.T.A. No.75/Asr/2022 vide order dated 15/9/2022 in the case of Leela Gupta vs PCIT-1, Jalandhar has held that “During the notice u/s 142(1) the assessee submitted the relevant documents before the revenue authorities. On basis of these documents the order was passed by the Id. AO. It cannot be said that the issue was untouched and unverified by the assessing authority. Mere change of opinion an order cannot be called as erroneous. We directed that the order passed by the PCIT is unjust for, and the order is setting aside. ” Thus the action of the PCIT on this account is bad and the revision order passed deserves to be cancelled. The other issue which requires consideration of the Honorable Bench is that the assessee against the order passed by the AO had preferred an appeal before the CIT(A) challenging the addition made by the AO. During the pendency of the appeal the assessee opted for Vivad Se Viswas Scheme by filing form 1 and the PCIT after considering all the facts of the case and evidences filed issued order of full and final settlement of Tax Arrears in Form 5 on 8/1/2021 and when on the one hand the PCIT is issuing form 5 after verifying all facts on record and evidences filed then after a lapse of over two months the PCIT is issuing a show cause notice and then passing the order u/s 263 is very hard to understand as with the issuance of Form 5 the proceedings closed and there was no valid order remaining for the PCIT to resort to such action. Reference in this regard is drawn ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 11 to Section 5 (3) of the Direct Tax Vivad Se Vishwas Act, 2020,wherein it has been stated that every order passed under sub section 5(1) , determining the amount payable under this Act shall be conclusive as to the matter stated therein and no matter covered by such order reopened in any proceedings under the Income -tax Act. Attention in this regard is invited to the case of Uma Corporation v. ACIT & Ors. (2006) 204 CTR 282 / 284 ITR 67 (Bom.) (HC) the Court held that Income disclosed under VDIS for which certificate is issued by the authority. Reassessment proceeding in respect of such disclosed income is not valid. And also to the case of Killick Nixon Ltd. v. Dy. CIT (2002) 258 ITR 6 2 7 /1 7 8 CTR 387(SC) wherein the Honourable Apex Court held that once declaration is accepted reassessment is not permissible .Accordingly after issue of certificate in respect of tax in dispute revision u/s 263 is not permissible. Thus on this account also the action of the PCIT u/s 263 is bad and deserves to be cancelled. Hence it is prayed that appreciating the above facts and submissions the order passed by the PCIT -1, Jalandhar u/s 263 would be cancelled.” 5. Per contra, the Ld DR although supported the impugned order, however, he has not filed any rebuttal to the contention raised by the counsel. 6. Heard rival contentions, perused the material on record, impugned order, written submission and case law cited before us. It is noted that the AO based on AIR information stated that Smt. Lata Narang was maintaining saving bank account number 2991000106021490 with Punjab National Bank, Basti Danishmandan, Jalandhar, wherein cash deposits of Rs.3500000/- were made during the year under consideration. Appellants case was reopened by issuing notice u/s 148 of the act and subsequently, ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 12 the assessee was issued Notice u/s 142(1) vide questionnaire dated 08/10/2018, she was asked to file details of her bank accounts maintained as above to explain the source of cash deposit therein with supporting documentary evidence. The assessee vide her replies dated 12/11/2018 and 12/12/2018 stated that the source of cash deposits in the bank accounts have been explained with supporting evidences as detailed mentioned in paras 2.1 to 2.4 of the order passed by the AO. The AO being satisfied accepted the source of the disputed cash deposits in the bank account as explained in para 2.5 the Assessment Order subject to an addition of Rs.490000/-on account of refund of advance of property u/s 69A of the act, which was also settled under VSVS scheme. In this regard, the relevant part of the Assessment Order reads as under: 2.1 Vide her replies filed on 12.11.2018 and 12.12.2018, the assessee stated that the source of cash deposits in bank account was on account of receipts from her business and cash received from husband, who had entered into an agreement for sale of property and received advance of Rs.20,00,000/-. Vide reply dated 12.12.2018, the cash flow was filed as under. - Opening Balance (istridhan & business income) 1,50,000.00 08/07/2010 Cash received From Husband As Gift 20,00,000.00 Total 21,50,000.00 10/07/2010 (-) cash deposited 7,00,000.00 12/07/2010 (-) cash deposited 3,00,000.00 11,50,000.00 ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 13 24/08/2010 (+) cash withdrawal 2,00,000.00 06/09/2010 (+) cash withdrawal 6,00,000.00 19,50,000.00 04/10/2010 (-) cash deposited 8,50,000.00 11,00,000.00 22/12/2010 (+) cash withdrawal 3,00,000.00 14,00,000.00 20/01/2011 (+) cash withdrawal 4,50,000.00 18,50,000.00 25/01/2011 (-) cash deposited 17,00,000.00 Balance 1,50,000.00 31/01/2011 (+) cash withdrawal 8,00,000.00 9,50,000.00 14/02/2011 (+) cash withdrawal 10,000.00 Cash in hand 9,60,000.00 2.2 A perusal of the above cash flow chart revealed that the assessee had received an amount of Rs.20,00,000/- from her husband, Sh. Rajeshwar Kumar, who had In turn entered into an agreement to sell his parental property to Sh. Deepak Aggarwal and had received an amount of Rs.20,00,000/- as Advance in lieu of said agreement/transaction. Vide order sheet entry dated 12.12.2018, the assesses was asked to produce Sh. Deepak Aggarwal, purchaser of said property. On 14.12.2018 and 15.12.2018, Sh. Deepak Aggarwal attended the proceedings, whose statement was recorded. In the statement recorded, he confirmed having made the said agreement; filed documents in support of advance given and further stated that the said agreement was subsequently cancelled as he couldn't get loan due to the fact that the property in question was not transferred in the name of Sh. Rajeshwar Kumar. He further stated that advance of Rs.20,00,000/- given in lieu of said agreement had been returned to him in the months of January 2011 and February 2011. 2.3 In view of above facts, the assessee, vide order sheet entry dated 19.12.2018, was asked to furnish the evidence of refund of Rs.20,00,000/- along with supporting documents. In response, the assessee filed detailed reply stating that the agreement was made by her husband, and the amount was refunded by him. Further, she filed the details of sources of payment made, along with copy of bank account of Sh. Rajeshwar Kumar, as under- Cash received from Lata Narang as per cash flow filed on 12/12/2018 9,60,000 Cash withdrawal from Salaried Saving Bank Account 1,00,000 ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 14 Cash Withdrawal from Personal Saving Bank Account 4,50,000 Cash Received from friends and family 4.90.000 20,00,000 2.4 In view of reply filed by the assessee, she, vide order sheet entry dated 21.12.2018, was asked to furnish details of the friends and family in respect of cash received at Rs.4,90,000/-. However, the counsel of the assessee stated that he was not able to provide the said details. Further, as regards the fact that amount has been refunded by her husband, there is no force in her plea as while explaining the sources of cash, in cash flow chart, the assessee is claiming credit of the amount received by her husband; in the sources of payment filed, she is mentioning the amount of cash in hand available with her. Therefore, she cannot deny the refund of said amount received. When confronted, the counsel of the assessee stated that in the absence of details of friends and family, the assessee was ready to pay tax on the amount of Rs.4,90,000/-. 7. From the Assessment order, it is evident that the AO has conducted necessary enquiries as regards to the source the cash deposit in the bank accounts of the assessee by way of issuing Notice u/s 142(1) with a questionnaire dated 08/10/2018, wherein she was asked to file details of her bank accounts maintained as above to explain the source of cash deposit therein with supporting documentary evidence. The AO has discussed that on perusal of the cash flow chart as above, it is revealed that the assessee had received an amount of Rs.20,00,000/- from her husband, Sh. Rajeshwar Kumar, who had in turn entered into an agreement to sell his parental property to Sh. Deepak Aggarwal and had received an amount of Rs.20,00,000/- as Advance in lieu of said agreement/transaction. Vide order sheet entry dated 12.12.2018, the assesses was asked to produce Sh. Deepak Aggarwal, purchaser of said property and that ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 15 on 14.12.2018 and 15.12.2018, Sh. Deepak Aggarwal attended the proceedings, whose statement was recorded wherein he has confirmed the fact of having made the said agreement and filed documents in support of advance given and further stated that the said agreement was subsequently cancelled as he couldn't get loan due to the fact that the property in question was not transferred in the name of Sh. Rajeshwar Kumar. He further stated that advance of Rs.20,00,000/- given in lieu of said agreement had been returned to him in the months of January 2011 and February 2011. 8. It is seen that in compliance to the show cause notice dated 16/03/2021 issue by the Ld. PCIT, the appellant has filed a detailed reply with supporting material evidence, however, the PCIT-1 has failed to consider and appreciate the documentary evidence. In our view, the Ld. PCIT ought to have rebutted the documentary evidences filed by the assesse and the view of the AO in accepting the source of cash deposits as explained by way of pointing out deficiencies and directing specific enquiries in respect of source of particular amount of cash deposit or the source of cash deposit of Rs.3550000/- remained unverified or unexplained. Meaning thereby, the PCIT’s general and vague observation that the source of cash deposit of Rs.3550000/- remained unverified or ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 16 unexplained and same need verification at assessment stage without appreciating the facts on record and holding the order passed by the AO to be erroneous and prejudicial to the interest of Revenue is against the intention of the legislation and bad in law. It is pertinent to mention that by way of the impugned order passed u/s 263, it can be said the PCIT-1 has attempted to made a case for reexamination of facts and evidences already examined by the AO while passing the order u/s 143/147 of the act. Such an action of PCIT is not justified in law and on the facts of the case. 9. The Hon’ble Supreme Court in case of “Malabar Industrial Co. Ltd vs. CIT”, 243 ITR 83(SC) has observed that the phrase ‘prejudicial to the interests of the revenue’ has to be read in conjunction with an erroneous order passed by the Assessing Officer and every loss of revenue as a consequence of the order of the Assessing Officer cannot be treated as prejudicial to the interest of revenue. It was further held that where two views are possible and the Income Tax Officer has taken one view with which the Commissioner does not agree, the order passed by the Assessing Officer cannot be treated as erroneous order prejudicial to the interest of the revenue. The principles laid down in the aforesaid decision were reiterated by the Supreme Court in ‘CIT Vs. Max India Ltd, 295 ITR ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 17 282 (SC) and recently in ‘Ultratech Cement Ltd vs State of Rajasthan Ors, Civil Appeal No. 2773/202 decided on 17.07.2020. Further in the case of PCIT vs. V. Dhana Reddy & Co. - [2018] 100 taxmann.com 358 (SC) it has been held that If AO had adopted a plausible view, revision u/s 263 not sustainable. 10. In another case of CIT Vs. Deepak Mittal [2010] 324 ITR411 the Hon'ble Punjab & Haryana High Court has held that "Change of opinion by reappraising the evidence is not within the para-meters of provisional jurisdiction of the Commissioner under section 263 of the Income-tax Act, 1961.” 11. We have to understand that lack of enquiry/no enquiry is different from inadequate enquiry and it is only in case of no enquiry by the AO, Pr. CIT/C1T can exercise jurisdiction u/s 263 of the Act and not in case where the AO has made enquiries as seems appropriate in the facts and circumstances of the case. In the instance case inquiry on relevant issue has been made by AO, hence no action invited u/s 263. Our view gets support from the Judgement given by the Hon’ble Delhi High Court in case of “CIT vs. Sunbeam Auto Ltd”, 332 ITR 167 (Del.) where in it was held as under: - ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 18 “One has to keep in mind the distinction between 'lack of inquiry' and 'inadequate inquiry'. If there was any inquiry, even inadequate, that would not, by itself, give occasion to the Commissioner to pass orders under section 263 merely because he has different opinion in the matter. It is only in cases of 'lack of inquiry' that such a course of action would be open”. 12. On similar facts, the coordinate Bench has allowed the appeal in I.T.A. No.75/Asr/2022 vide order dated 15/9/2022 in the case of ‘Leela Gupta vs PCIT-1’, Jalandhar wherein it has held that- “During the notice u/s 142(1) the assessee submitted the relevant documents before the revenue authorities. On basis of these documents the order was passed by the Id. AO. It cannot be said that the issue was untouched and unverified by the assessing authority. Mere change of opinion an order cannot be called as erroneous. We directed that the order passed by the PCIT is unjust for, and the order is setting aside.” Thus the action of the PCIT on this account is bad and the revision order passed deserves to be cancelled. The other issue which requires consideration of the Honorable Bench is that the assessee against the order passed by the AO had preferred an appeal before the CIT(A) challenging the addition made by the AO. During the pendency of the appeal the assessee opted for Vivad Se Viswas Scheme by filing form 1 and the PCIT after considering all the facts of the case and evidences filed issued order of full and final settlement of Tax Arrears in Form 5 on 8/1/2021 and when on the one hand the PCIT is issuing form 5 after verifying all facts on record and evidences filed then after a lapse of over two months the PCIT is issuing a show cause notice and then passing the order u/s 263 is very hard to understand as with the issuance of Form 5 the proceedings closed and there was no valid order remaining for the PCIT to resort to such action. Reference in this regard is drawn to Section 5 (3) of the Direct Tax Vivad Se Vishwas Act, 2020, wherein it has been stated that every order passed under sub section 5(1) , determining the amount payable under this Act shall be conclusive as to the matter stated therein and no matter covered by such order reopened in any proceedings under the Income -tax Act. Attention in this regard is invited to the case of Uma Corporation v. ACIT & Ors. (2006) 204 CTR 282 / 284 ITR 67 (Bom.) (HC) the Court held that Income disclosed under VDIS for which certificate is issued by ITA No. 35/Asr/2021 Lata Narang v. Pr. CIT 19 the authority. Reassessment proceeding in respect of such disclosed income is not valid. And also to the case of Killick Nixon Ltd. v. Dy. CIT (2002) 258 ITR 6 2 7 /1 7 8 CTR 387(SC) wherein the Honourable Apex Court held that once declaration is accepted reassessment is not permissible. Accordingly, after issue of certificate in respect of tax in dispute revision u/s 263 is not permissible. Thus on this account also the action of the PCIT u/s 263 is bad and deserves to be cancelled. 13. In the above view, we hold that the impugned order passed by the PCIT is perverse to facts on record in holding assessment order erroneous and prejudice to the interest of revenue on account of lack of enquiry. Accordingly, the order passed by the PCIT -1, Jalandhar u/s 263 is cancelled being bad in law. 14. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 02.03.2023 Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr./P.S.* Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By Order