ASHISH GEMS, MUMBAI V. PR CIT 19, MUMBAI

ITA 3531/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8376 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 15-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DR K SHIVARAM
• Keywords: Bogus purchase; Revision of order; Opportunity of being heard; Source of fund; Accommodation entries
• Section: 143(3); 263; 15

Judgement Text

P A G E | 1 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, M UMBAI BEFORE SHRI G.S. PANNU, AM AND SHRI RAVISH SOOD, JM ITA NO. 3531/MUM/2017 ( / ASSESSMENT YEAR:2009 - 10) M/S. ASHISH GEMS DE 5060, BHARAT DIAMOND BOURSE, BKC, BANDRA (E), MUMBAI 400 051 / VS. PR. COMMISSIONER OF INCOME TAX - 19, R. NO. 228, 2 ND FLOOR, MATRU MANDIR, TARDEO ROAD, MUMBAI - 400 007 ./ ./ PAN NO. AAAFA3396D ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : DR. K. SHIVARAM, SR. ADVOCATE / RESPONDENT BY : SHRI RAJESH YADAV, D .R / DATE OF HEARING : 06. 1 0 .201 7 / DATE OF PRONOUNCEMENT : 06 .12 .201 7 / O R D E R PER RAVISH SOOD, JUDICIAL MEMBER: THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE PRINCIPAL COMMISSIONER OF INCOME - TAX - 19, MUMBAI, DATED 24.03.2017, UNDER SECTION 263 OF THE INCOME - TAX ACT, 1961 (FOR SHORT ACT'), WHICH IN ITSELF ARISES FROM THE ORDER PASSED BY THE A.O UNDER SEC. 143(3) R.W.S 147, DATED. 27.03.2015. T HE ASSESSEE ASSAILING THE ORDER OF THE PRINCIPAL COMMISSIONER OF INCOME - TAX - 19 (FOR P A G E | 2 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 SHORT PRINCIPAL CIT'), HAD RAISED BEFORE US THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS OF THE CASE AND IN LAW, THE LEARNED CIT ERRED IN CANCELLING THE ASSESSMENT ORDER DATED. 27/03/20 15 U/S 143(3) R.W.S 147 OF THE I. T ACT, 1961 DETERMINING THE TOTAL INCOME AT RS. 69,00,8501 - BY EXERCISING POWERS U/S 263 OF THE TT ACT, 1961 BASED ON SURMISES AND SPECULATION WHEN THE ADDITION MADE ON THE BASIS OF GROSS PROFIT MARGIN IN SAID ASSESSMENT ORDER WAS IN CONFORMITY WITH VARIOUS DECISIONS RENDERED BY THE HON'BLE JURISDICTIONAL INCOME TAX APPELLATE TRIBUNALS AS WELL AS VARIOUS HON'BLE HIGH COURTS AND NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE. 2. ON THE FACTS OF THE CASE AND IN LAW, THE ORDER OF REVISION IS BAD IN LAW AS THOUGH VARIOUS CLINCHING EVIDENCES ESTABLISHING THE GENUINENESS OF THE PURCHASE ALONGWITH THE QUANTITATIVE TALLY OF THE STOCK, STATEMENTS OF THE PROPRIETORS OF M/S JEWEL DIAM AND MOHIT ENTERPRISES, COPIES OF BANK STATEMENT REFLECTING THE SAID PAYMENT TH ROUGH PROPER BANKING CHANNELS WERE PRODUCED BY THE APPELLANT DURING THE ASSESSMENT PROCEEDINGS, THE LEARNED CIT BASED ON THE SURMISES AND SPECULATION IN THE ASSESSMENT ORDER ERRED IN HOLDING THAT THE APPELLANT HAD OBTAINED ONLY BILLS WITHOUT ACTUALLY GETTI NG THE MATERIAL FROM M/S JEWEL DIAM AND MOHIT ENTERPRISE AND HAD BOUGHT DIAMONDS FROM GREY MARKET BY PAYING CASH. 3. ON THE FACTS OF THE CASE AND IN LAW, THE ORDER OF REVISION IS BAD IN LAW AS THOUGH ALL THE PAYMENTS MADE BY THE APPELLANT WERE MADE BY PROPER BANKING CHANNELS AND NO EVIDENCE WAS ON RECORD TO ESTABLISH THAT ANY CASH PAYMENT WAS ACTUALLY MADE, THE LEARNED CIT ERRONEOUSLY HELD THAT THE ASSESSING OFFICER HAD FAILED TO MAKE ADDITIO N IN RESPECT OF ALLEGED CASH PAID FOR PROCURING THE MATERIAL WORTH RS. 67,95,6591 - . 4. THE APPEL LANT CRAVES LEAVE TO ADD, AMEND , ALTER OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 2. B RIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE FIRM WHICH IS A TRADER AND EXPORTER OF PRECIOUS STONES, VIZ. DIAMONDS, HAD FILED ITS RETURN OF INCOME FOR A.Y. 2009 - 10 ON 18.09.2009, DECLARING TOTAL INCOME AT RS.63,57,192/ - . THE RETURN OF INCOME FILED BY THE ASSESSEE WAS PROCESSED AS SUCH UNDER SEC. 143(1) OF THE 'ACT'. THAT ON THE BASIS OF INFORMATION RECEIVED BY THE A.O FROM THE DGIT(INV.), MUMBAI, THAT THE ASSESSEE HAD TAKEN ACCOMMODATION ENTRIES OF BOGUS PURCHASES FROM VARIOUS CONCERNS OF SHRI BHANWARLAL J AM & OTHERS DURING THE YEAR UNDER CONSIDERATION, THE CASE OF THE ASSESSEE WAS REOPENED UNDER SEC. 147. P A G E | 3 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 3. THE A.O DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OBSERVED THAT THE INFORMATION RECEIVED FROM THE OFFICE OF THE DGIT(INV), MUMBAI, REVEALED THA T THE FACTS WHICH HAD EMERGED DURING THE COURSE OF THE SEARCH & SEIZURE PROCEED INGS CONDUCTED ON BHANWARLAL JAIN GROUP, CONCLUSIVELY PROVED THAT 70 DUMMY CONCERNS OF THE SAID GROUP WERE ENGAGED IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES OF BOGUS PURCHASES TO VARIOUS BENEFICIARIES. THE A.O IN THE BACKDROP OF THE INFORMATION RECEIVED BY HIM FROM THE OFFICE OF THE DGIT(INV.), MUMBAI, THAT THE ASSESSEE HAD ALSO AS A BENEFICIARY TAKEN ACCOMMODATION ENTRIES FROM THE AFORESAID DUMMY CONCERNS, THERE FORE, CALLED UPON THE ASSESSEE TO PROVE THE GENUINENESS AND VERACITY OF THE PURCHASES WHICH WERE CLAIMED BY IT TO HAVE BEEN MADE FROM THE AFORESAID GROUP CONCERNS DURING THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2009 - 10, AS UNDER: S. NO. NAME OF THE PROVIDER AMOUNT 1. M/S JEWEL DIAM RS.23,77,897/ - 2. M/S MOHIT ENTERPRISES RS.44,17,762/ - TOTAL RS.67,95,659/ - 4. THE ASSESSEE DURING THE COURS E OF THE ASSESSMENT PROCEEDINGS FAILED TO SUBSTANTIATE THE GENUINENESS AND VERACITY OF THE PURCHASES WHICH WERE CLAIMED TO HAVE BEEN MADE FROM THE AFORESAID CONCERNS. THE A.O AFTER DELIBERATING ON THE MATERIAL MADE AVAILABLE ON RECORD BY THE ASSESSEE IN ITS ATTEMPT TO PROVE THE AUTHENTICITY OF THE PURCHASE TRANSACTIONS UNDER CONSIDERATION, THEREIN BEING O F THE VIEW THAT AS NEITHER THE DOCUMENTARY , EVIDENCE PLACED ON RECORD BY THE ASSESSEE TO FORTIFY THE GENUINENESS OF THE PURCHASES INSPIRED ANY CONFIDENCE, NOR THE FACT THAT THE PAYMENTS TO THE AFORESAID PARTIES WERE MADE THROUGH ACCOUNT PAYEE CHEQUES P A G E | 4 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 CONCLUSIVELY PROVED THE AUTHENTICITY OF THE PURCHASE TRANSACTIONS, THEREFORE, DECLINED TO ACCEPT THE CLAIM OF THE ASSESSEE THAT IT HAD PURCHASED THE GOODS UNDER CONSIDERATION FROM THE AFORESAID CONCERNS. HOWEVER, THE A.O OBSERVED THAT THE PURCHASES CLAIMED BY THE ASSESSEE TO HAVE BEEN MADE FROM THE AFORESAID DUMMY CONCERNS WERE ENTERED IN THE STOCK REGISTER, AS WELL AS THE CORRESPONDING SALES OF THE SAME WERE ALSO RECORDED IN THE BOOKS OF ACCOUNTS. THE A.O IN THE BACKDROP OF THE AFORESAID FACTS OBSERVED THA T THE ASSESSEE HAD MADE PURCHASES OF THE GOODS UNDER CONSIDERATION, THOUGH NOT FROM THE AFORESAID DUMMY CONCERNS, BUT FROM THE OPEN/GREY MARKET, AND THEREAFTER IN ORDER TO FACILITATE ROUTING OF THE PURCHASE/SALE TRANSACTIONS THROUGH ITS BOOKS OF ACCOUNT, H AD OBTAINED BILLS FROM THE AFORESAID PAR TIES BELONGING TO BHANWARLAL JAIN GROUP. THE A.O ON THE BASIS OF HIS AFORESAID CONVICTION CONCLUDED THAT THE ASSESSEE BY PURCHASING THE GOODS UNDER CONSIDERATION FROM THE OPEN/GREY MARKET, MUST HAVE BENEFITED FROM PR OCURING THE SAME AT A LOWER PRICE BY SAVING ON VAT, INCIDENTAL CHARGES ETC., THEREFORE, WORKED OUT THE SAID ADDITIONAL BENEFIT IN THE HANDS OF THE ASSESSEE @8% OF THE AGGREGATE VALUE OF SUCH BOGUS PURCHASES, AND MADE AN ADDITION OF RS. 5,43,653/ - ON THE SAID COUNT IN THE HANDS OF THE ASSESSEE. 5. THE PRINCIPAL CIT - 19, MUMBAI, AFTER DELIBERATING ON THE RECORDS OF THE ASSESSEE, THEREIN HELD A CONVICTION THAT THE A.O WHILE FRAMING THE ASSESSMENT HAD FAILED TO ASCERTAIN THE SOURCE OF CASH THAT WAS PAID BY THE ASSESSEE FOR PURCHASING THE GOODS UNDER CONSIDERATION FROM THE OPEN/GREY MARKET. THE PRINCIPAL CIT ON THE BASIS OF HIS AFORESAID OBSERVATION, THEREIN BEING OF THE VIEW THAT THE FAILURE ON THE PART OF THE A.O TO MAKE NEC ESSARY VERIFICATIONS HAD RENDERED THE ASSESSMENT ORDER ERRONEOUS AND PREJUDICIAL TO P A G E | 5 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 THE INTEREST OF THE REVENUE, CALLED UPON THE ASSESSEE TO PUT FORTH AN EXPLANATION AS TO WHY THE ORDER PASSED BY THE A.O MAY NOT BE REVISED UNDER SEC. 263 OF THE ACT. THE ASSESSEE IN ITS REPLY SUBMITTED BEFORE THE PRINCIPAL CIT THAT IT HAD MADE GENUINE PURCHASES FROM THE AFOREMENTIONED PARTIES, AND TO DRIVE HOME ITS AFORESAID CONTENTION, PLACED ON RECORD DOCUMENTARY EVIDENCE TO SUBSTANTIATE THE VERACITY OF THE PURCHASE TRANSACTIONS. ALTERNATIVELY, IT WAS SUBMITTED B Y THE ASSESSEE THAT EVEN OTHERWISE IN CASES WHERE THE GENUINENESS OF THE PURCHASE TRANSACTIONS WAS NOT BEING ACCEPTED B Y THE DEPARTMENT, THERE AN ADDITION RANGING BETWEEN 3% TO 5% WAS BEING MADE, AND NO SEPARATE ADDITION ON THE PRESUMPTION OF CASH PURCHASES WAS SEPARATELY BEING MADE. HOWEVER, THE PRINCIPAL CIT NOT BEING PERSUADED TO ACCEPT THE AFORESAID SUBMISSIONS OF THE ASSESSEE, THEREIN HOLDING A CONVICTION THAT THE A.O WHILE FRAMING THE ASSESSMENT HAD FAILED TO MAKE ANY ENQUIRY OR VERIFICATION REGARDING THE PAYMENT MADE BY THE ASSESSEE FOR PURCHASE OF THE GOODS FROM THE OPEN/GREY MARKET, THEREFORE, CANCELLED THE ASSESSMENT ORDER DATED 27.03.2015 PASSED BY TH E A.O UNDER SEC. 143(3) R.W.S 147, AND DIRECTED HIM TO DETERMINE THE INCOME OF THE ASSESSEE AFRESH, AFTER MAKING PROPER ENQUIRY AND AFFORDING OPPORTUNITY TO THE ASSESSEE. 6. AGGRIEVED, THE ASSESSEE HAD ASSAILED BEFORE US THE ORDER PASSED BY THE PRINCIPAL CIT UNDER SEC. 263 OF THE ACT. DR. K. SHIVARAM, THE ID. AUTHORISED REPRESENTATIVE (FOR SHORT 'A.R') FOR THE ASSESSEE AT THE VERY OUTSET SUBMITTED THAT THE PRINCIPAL CIT HAD WRONGLY REVISED THE ORDER PASSED BY THE A.O UNDER SEC. 143(3) R.W.S. 147, DATED. 27 .03.2015. THE ID. A.R TOOK US THROUGH THE 'SHOW CAUSE' NOTICE ISSUED BY THE PRINCIPAL CIT UNDER SEC. 263 (PAGE 123) OF THE 'PAPER BOOK' (FOR SHORT 'APB'), REPLIES FILED BY THE P A G E | 6 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 ASSESSEE (PAGE 124 - 164 OF 'APB'), THE ASSESSMENT ORDER PASSED BY THE A.O UNDER SEC. 143(3) R.W.S 147, DATED 27.03.2015 (PAGE 106 OF 'APB'), THE RELEVANT OBSERVATIONS OF THE A.O THAT THE ASSESSEE HAD TAKEN ACCOMODATION ENTRIES FROM THE DUMMY CONCERNS OF BHANWARLAL JAIN GROUP, VIZ. M/S JEWEL DIAM AND M/S MOHIT ENTERPRISES (PAGE 116 OF 'APB'), AND THE RELIANCE BY THE A.O ON THE BENIGN ASSESSMENT PROCEDURE (BAP) IN THE COURSE OF ESTIMATION OF THE PROFIT ELEMENT INVOLVED IN MAKING OF PURCHASES BY THE ASSESSEE FROM THE OPEN/GREY MARKET. THE L D. A.R SUBMITTED THAT THE ASSESSEE BEING AGGRIEVED WITH THE REFUSAL ON THE PART OF THE A.O TO ACCEPT THE GENUINENESS OF THE PURCHASE TRANSACTIONS UNDER CONSIDERATION, THEREIN LEADING TO A CONSEQUENTIAL ADDITION OF RS. 5,43,653/ - , VIZ. @8% OF THE PURCHASE VALUE OF THE GOODS UNDER CONSIDERATION, HAD CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A), WHICH WAS PENDING BEFORE THE SAID FIRST APPELLATE AUTHORITY. THE L D. A.R SUBMITTED THAT THE ASSESSEE HAD DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS PLACED ON RECORD THE AFFIDAVITS' OF THE RESPECTIVE PROPRIETORS OF THE SUPPLIER PARTIES, VIZ. M/S JEWEL DIAM AND M/S MOHIT ENTERPRISE, WHICH HOWEVER WERE BRUSHED ASIDE BY THE A.O WHILE DUBBING THE PURCHASE TRANS ACTIONS AS BOGUS. THE L D. A.R IN ORDER TO SUPPORT HIS AFORESAID CONTENTION, TOOK US THROUGH THE COPIES OF THE AFFIDAVITS OF THE SAID PERSONS AT PAGE 61 - 62 OF 'APB'. THE ID. A.R FURTHER TAKING SUPPORT OF A LETTER DATED 06.10.2014 FILED BY THE ASSESSEE WITH THE AD DURING THE COURS E OF THE ASSESSMENT PROCEEDINGS (PAGE 49 OF THE 'APB'), THEREIN AVERRED THAT THOUGH THE ASSESSEE HAD DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS PLACED ON RECORD DOCUMENTARY EVIDENCE TO SUBSTANTIATE THE VERACITY OF THE PURCHASE TRANSACTIONS, VIZ. (I). COPIES OF LEDGER ACCOUNTS OF PARTIES IN ITS BOOKS OF ACCOUNT; (II). COPIES OF THE PURCHASE INVOICES; (III). COPIES OF BANK STATEMENTS P A G E | 7 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 EVIDENCING MAKING OF PAYMENT OF PURCHASE CONSIDERATION TO THE SAID PARTIES VIDE CHEQUES; AND (IV) COPY OF THE STOCK REGISTER WHEREIN THE PURCHASE TRANSACTIONS UNDER CONSIDERATION WERE RECORDED, HOWEVER, THE SAME WERE IN A WHIMSICAL MANNER BRUSHED ASIDE BY THE A.O, WHO WITHOUT DISPROVING THE GENUINENESS OF THE SAID DOCUMENTS HELD THE PURCHASE TRANSACTIONS AS NOT GE NUINE. THE L D. A.R FURTHER SUBMITTED THAT THE ASSESSMENT OF THE ASSESSEE FOR A.Y. 2007 - 08 WAS ALSO REOPENED ON THE BASIS OF THE INFORMATION RECEIVED BY THE A.O FROM THE DGIT(INV), MUMBAI, THAT THE ASSESSEE HAD TAKEN ACCOM M ODATION ENTRY OF BOGUS PURCHASES FROM THE DUMMY CONCERNS BELONGING TO BHA NVARLAL JAIN GROUP. IT WAS SUBMITTED BY THE ID. A.R THAT THE ASSESSMENTS IN THE HANDS OF THE ASSESSEE FOR A.Y. 2007 - 08, WHICH INVOLVED SAME FACTS AS THOSE INVOLVED IN THE YEAR UNDER C ONSIDERATION, VIZ. A.Y. 2009 - 10, WAS ALSO FRAMED BY THE A.O UNDER SEC. 143(3) R.W.S 147 ON THE SAME DATE, VIZ. 27.03.2015 (PAGE 170 - 183 OF 'APB'). THE LD. A.R SUBMITTED THAT THE SIMILARITY IN THE FACTS INVOLVED IN THE CASE OF THE ASSESSEE FOR THE YEAR UNDE R CONSIDERATION, VIZ. A.Y. 2009 - 10 AND A.Y. 2007 - 08 COULD BE GATHERED FROM THE VERY FACT THAT THE ASSESSEE HAD DURING THE AN 2007 - 08 MADE PURCHASES FROM M/S JEWEL DIAM, WHICH WAS ONE OF THE TWO CONCERNS FROM WHOM THE ASSESSEE HAD MADE PURCHASES DURING THE YEAR UNDER CONSIDE RATION, VIZ. A.Y. 2009 - 10. THE L D. A.R IN THE BACKDROP OF HIS AFORESAID SUBMISSIONS AVERRED THAT NOW WHEN THE ASSESSMENT FRAMED IN THE CASE OF THE ASSESSEE FOR A.Y. 2007 - 08 HAD BEEN ACCEPTED BY THE DEPARTMENT, AND NO ADVERSE INFERENCES AS REGARDS ADDITIONS TOWARDS PRESUMED CASH PURCHASES HAD BEEN DRAWN IN THE SAID YEAR, THEREFORE, IT WAS IMPERMISSIBLE ON THE PART OF THE DEPARTMENT TO ADOPT AN INCONSISTENT APPROACH AND REVISE THE ASSESSMENT FRAMED IN ITS CASE FOR A.Y. 2009 - 1 0. THE L D. A.R FURTHER SUBMITTED THAT P A G E | 8 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 SIMILAR STATE OF AFFAIRS PREVAILED IN THE CASE OF THE ASSESSEE FOR A.Y.2013 - 14 AND A.Y. 2014 - 15, WHEREIN TOO IN THE BACKDROP OF SIMILAR FACTS THE RESPECTIVE ASSESSMENTS WERE FRAMED UNDER SEC. 143(3)(II), VIDE ORDER DATED. 28.03.2016, AND UNDER SEC. 143(3), VIDE ORDER DATED 28.10.2016, RESPECTIVELY. THE L D. A.R ESTABLISHING THE SIMILARITY IN THE FACTS INVOLVED IN THE YEAR UNDER CONSIDERATION, AS AGAINST THOSE INVOLVED IN THE AFORESAID YEARS, VIZ. A.Y. 2013 - 14 AND A.Y. 2014 - 15, THEREIN SUBMITTED THAT IN BOTH OF THE SAID TWO YEARS, ONE OF THE CONCERN FROM WHOM PURCHASES WERE MADE BY THE ASSESSEE, VIZ. M/S MOHIT ENTERPRISES, WAS ONE OF THE TWO CONCERNS FROM WHOM PURCHASES WERE MADE BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2009 - 10. THUS, IN THE BACKDROP OF THE AFORESAID FACTS, IT WAS SUBMITTED BY THE ID. A.R THAT THE REVENUE CANNOT BE PERMITTE D TO ADOPT AN INCONSISTENT APPROACH, AND THEREIN ON ONE HAND ACCEPT THE OBSERVATIONS OF THE A.O FOR A.YS 2007 - 08, 2013 - 14 AND 2014 - 15, WHILE FOR REVISE THE ASSESSMENT FRAMED FOR THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2009 - 10 UNDER SEC. 263, BY REFUSING TO ACCEPT THE SAME OBSERVATIONS OF THE A.O. THE ID. A.R SUBMITTED THAT FOR VALID ASSUMPTION OF JURISDICTION UNDER SEC. 263, THE CIT HAS TO BE SATISFIED OF TWIN CONDITIONS, NAMELY (I) THE ORDER OF THE AO SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS PREJU DICIAL TO THE INTERESTS OF THE REVENUE. IT WAS AVERRED BY THE ID. A.R THAT IN THE ABSENCE OF EITHER OF THE AFORESAID PRECONDITIONS, THE CIT COULD NOT VALIDLY ASSUME JURISDICTION AND REVISE THE ASSESSMENT ORDER PASSED BY THE A.O. THE ID. A.R IN SUPPORT OF H IS AFORESAID CONTENTION RELIED ON THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS. COMMISSIONER OF INCOME TAX (2000) 243 ITR 0083 (SC). THE L D. A.R FURTHER AVERRED THAT NOW WHEN THE A.O WHILE FRAMING THE ASSESSMENT HAD TAKEN ONE OF THE P A G E | 9 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 PLAUSIBLE VIEW, THEREFORE, IT WAS NOT PERMISSIBLE FOR THE CIT TO ASSUME JURISDICTION AND REVISE THE ORDER UNDER SEC. 263, FOR THE REASON THAT AS PER HIM THE OTHER VIEW SHOULD HAVE BEEN ADOPTED BY THE A.O. THE ID. A.R IN ORDE R TO DRIVE HOME HIS AFORESAID CONTENTION RELIED ON THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. MAX INDIA LTD. (2007) 295 ITR 282 (SC). THE L D. A.R FURTHER RELIED ON THE JUDGMENT OF THE HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF COMMISSIONER OF INCOME - TAX VS. FINE JEWELLERY (INDIA) LTD., AND SUBMITTED THAT AS THE A.O AFTER DELIBERATING ON THE FACTS OF THE CASE AND MAKING NECESSARY VERIFICATIONS HAD RESTRICTED THE ADDITION TO THE EXTENT OF 8% OF THE VALUE OF THE PURCHASES UNDER CON SIDERATION, THEREFORE, THE PRINCIPAL CIT COULD NOT HAVE ASSUMED JURISDICTION UNDER SEC. 263, FOR THE REASON THAT THE OBSERVATIONS OF AO QUA THE SAID VERIFICATIONS DID NOT FIND MENTIO N IN THE ASSESSMENT ORDER. THE L D. A.R IN THE BACKDROP OF HIS AFORESAID SUBMISSIONS AVERRED THAT THE ORDER PASSED BY THE PRINCIPAL CIT UNDER SEC. 263 COULD NOT BE SUSTAINED, AND THUS THE SAME M AY BE VACATED. PER CONTRA, THE L D. DEPARTMENTAL REPRESENTATIVE (FOR SHORT 'D.R') SUPPORTED THE ORDER PASSED BY THE PRINCI PAL CIT UNDER SEC. 263. THE L D. D.R SUBMITTED THAT AS THE A.O HAD NOT MADE THE INQUIRY AND APPLIED HIS MIND TO THE FACTS OF THE CASE WHILE FRAMING THE ASSESSMENT, THEREFORE, THE PRINCIPAL CIT HAD RIGHTLY CANCELLED THE ASSESSMENT AND RESTORED THE MATTER TO THE FILE OF THE A.O FOR FRESH ADJUDICATION AFTER MAKING NECESSARY VERIFICATIONS AND AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ID. D.R AVERRED THAT THE ORDER OF THE PRINCIPAL CIT CANCELLING THE ASSESSMENT IN EXERCISE OF POWERS UNDER SEC. 263 , WAS WELL IN ORDER, AND IN SUPPORT OF HIS AFORESAID CONTENTION RELIED ON THE JUDGMENT OF THE HON'BLE HIGH COURT OF GAUHATI IN P A G E | 10 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 THE CASE OF COMMISSIONER OF INCOME - TAX VS. JAWAHAR BHATTACHARJEE (2012) 342 ITR 74 (GAU). 7. WE HAVE HEARD THE AUTHORISED REPRESENTATIVES FOR BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT OUR INDULGENCE IN THE PRESENT CASE HAS BEEN SOUGHT FOR ADJUDICATING THE VALIDITY OF THE ORDER OF REVISION PASSED BY THE PRINCIPAL COMMISSIONER OF INCOME - TAX UNDER SEC. 263 OF THE ACT. WE FIND THAT A.O IN THE BACKDROP OF THE INFORMATION RECEIVED FROM THE DGIT(INV.), MUMBAL, THAT THE ASSESSEE AS A BENEFICIARY HAD TAKEN ACCOMMODATION ENTRIES OF BOGUS PURCHASES FROM THE DUMMY CONCERNS BELONGING TO BHANWARLAL JAIN GROUP, THEREIN DELIBERATED ON THE MATERIAL PLACED ON RECORD BY THE ASSES SEE TO PROVE THE AUTHENTICITY OF THE PURCHASES WHICH WERE CLAIMED TO HAVE BEEN MADE FROM THE SAID CONCERNS, VIZ. (1). M/ S JEWEL DIAM; AND (II). M/S MOHIT ENTERPRISES. WE FIND THAT AS THE MATERIAL PLACED ON RECORD BY THE ASSESSEE DID NOT INSPIRE ANY CONFIDENCE AS REGARDS THE AUTHENTICITY OF THE PURCHASE TRANSACTIONS, THEREFORE, THE A.O CONCLUDED THAT THE ASSESSEE HAD AS A MATTER OF FACT NOT MADE ANY GENUINE PURCHASES FROM THE SAID DUMMY CONCERNS. HOWEVER, THE A.O OBSERVED THAT THE PURCHASE S OF GOODS WHICH WERE CLAIMED BY THE ASSESSEE TO HAVE BEEN MADE FROM THE AFORESAID DUMMY CONCERNS WERE ENTERED BY THE ASSESSEE IN ITS STOCK REGISTER, AS WELL AS THE CORRESPONDING SALES OF THE SAME WERE ALSO RECORDED IN THE BOOKS OF ACCOUNT. WE FIND THAT IT WAS IN THE BACKDROP OF THE AFORESAID FACTS AS HAD SO EMERGED, THE A.O CONCLUDED THAT THE ASSESSEE HAD MADE PURCHASES OF THE GOODS UNDER CONSIDERATION, THOUGH NOT FROM THE AFORESAID DUMMY CONCERNS, BUT FROM THE OPEN/GREY MARKET. WE FIND THAT THE A.O ON THE BASIS OF HIS AFORESAID CONVICTION CONCLUDED THAT AS THE ASSESSEE P A G E | 11 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 HAD PURCHASED THE GOODS UNDER CONSIDERATION FROM THE OPEN/GREY MARKET, THEREFORE, IT MUST HAVE BENEFITED FROM PROCURING THE SAME AT A LOWER PRICE, I.E BY SAVING ON VAT, INCIDENTAL CHARGES ET C., AND ON THE BASIS OF HIS SAID VIEW ESTIMATED THE SAID ADDITIONAL BENEFIT IN THE HANDS OF THE ASSESSEE @8% OF THE AGGREGATE VALUE OF SUCH BOGUS PURCHASES AND MADE AN ADDITION OF RS. 5,43,653/ - IN THE HANDS OF THE ASSESSEE. 8. WE FIND THAT THE PRINCIPAL CIT BEING OF THE VIEW THAT AS THE A.O WHILE FRAMING THE ASSESSMENT HAD FAILED TO ASCERTAIN THE SOURCE OF CASH THAT WAS PAID BY THE ASSESSEE FOR MAKING PURCHASES OF THE GOODS UNDER CONSIDERATION FROM THE OPEN/GREY MARKET, THERE FORE, THE ASSESSMENT ORDER WAS RENDERED AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE OBSERVATIONS OF THE PRINCIPAL CIT AND ARE UNABLE TO PERSUADE OURSELVES TO BE IN AGREEMENT WITH THE SAME. WE ARE OF THE CONSIDERED VIEW THAT NOW WHEN UNDISPUTEDLY BOTH THE PURCHASES AND SALES OF THE GOODS UNDER CONSIDERATION WERE RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE, THEREFORE, THERE CAN BE NO DOUBT AS REGARDS THE SOURCE OF MAKING OF THE PURCHASES OF THE GOODS UNDER CONSIDERATION. WE FIND THAT THE SOURCE OF THE PURCHASES MADE BY THE ASSESSEE WAS NEVER IN QUESTION, BUT RATHER, IT WAS THE GENUINENESS OF THE CLAIM OF THE ASSESSEE THAT IT HAD MADE THE PURCHASES OF THE GOODS UNDER CONSIDERATION FROM THE AFOREMENTIONED CONCERNS, VIZ. (I) M/S JEWEL DIAM; AND (II). M/S MOHIT ENTERPRISE, WHICH IN THE ABSENCE OF IRREFUTABLE DOCUMENTARY EVIDENCE TO SUBSTANTIATE THE GENUINENESS OF THE PURCHASE TRANSACTIONS, WAS NOT ACCEPTED BY THE A.O. WE ARE OF THE CONSIDERED VIEW THAT NOW WHEN THE SOURCE OF THE PURCHASES UNDER CONSIDERATION WAS DULY RECORDED IN THE BOOKS OF ACCOUNT OF P A G E | 12 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 THE ASSESSEE, THEREFORE, NO ADVERSE INFERENCE AS REGARDS THE SOURCE OF PURCHASES MADE BY THE ASSESSEE FROM THE OPEN/GREY M ARKET WAS LIABLE TO BE DRAWN. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ISSUE BEFORE US, AND ARE OF THE VIEW THAT IT WAS THE CLAIM OF THE ASSESSEE AS REGARDS THE SOURCE OF PURCHASE OF THE GOODS WHICH WAS NOT ACCEPTED BY THE A.O, BUT HOWEVER, THE SAME WOULD IN NO WAY ADVERSELY AFFECT THE AVAILABILITY OF THE FUNDS WHICH AS A MATTER OF RECORD WERE UTILISED BY THE ASSESSEE FOR PURCHASING THE GOODS UNDER CONSIDERATION. WE ARE OF THE CONSIDERED VIEW THAT IT IS NOT THE CASE OF THE DEPARTMENT THAT THERE IS DUPLICATION OF PURCHASES BY THE ASSESSEE, I.E THE ASSESSEE HAD MADE THE PURCHASES FROM THE AFORESAID DUMMY CONCERNS, AS WELL AS FROM THE OPEN/GREY MARKET, IN WHICH CASE ONE COULD COMPREHEND THAT THE ASSESSEE WAS SUPPOSED TO EXP LAIN THE SOURCE OF FUNDS FROM WHERE THE PURCHASES WERE MADE BY HIM FROM THE OPEN/ GREY MARKET. WE THUS, ARE OF THE CONSIDERED VIEW THAT NOW WHEN BOTH THE PURCHASE AND SALES OF THE GOODS UNDER CONSIDERATION ARE RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESS EE, THEREFORE, NO DOUBTS AS REGARDS THE SOURCE OF FUNDS FOR MAKING OF PURCHASES UNDER CONSIDERATION COULD ARISE. WE ARE UNABLE TO PERSUADE OURSELVES TO BE IN AGREEMENT WITH THE VIEW TAKEN BY THE PRINCIPAL CIT AS REGARDS THE ISSUE UNDER CONSIDERATION, ON TH E BASIS OF WHICH HE HAD ASSUMED JURISDICTION UNDER SEC. 263 AND HAD REVISED THE ORDER PASSED BY THE A.O UNDER SEC. 143(3) R.W.S 147 OF THE ACT. 9. WE HAVE FURTHER GIVEN A THOUGHTFUL CONSIDERATION TO THE CONTENTION OF THE LD. A.R THAT NOW WHEN ON THE BASIS OF THE SAME FACTS AS WERE INVOLVED IN THE CASE OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2009 - 10, THE ASSESSMENT IN THE CASE OF THE ASSESSEE FOR A.Y. 2007 - 08, A.Y. 2013 - 14 AND A.Y. P A G E | 13 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 2014 - 15 WAS FRAMED, WHEREIN TOO THE ADDITION IN THE HANDS OF THE ASSESSEE AS IN A.Y. 2009 - 10 WAS RESTRICTED TO THE PROFIT ELEMENT IN MAKING OF PURCHASES FROM THE OPEN/GREY MARKET, AND WERE NOT DISTURBED AND ALLOWED TO ATTAIN FINALITY, THEREFORE, IT WOULD NOT B E PERMISSIBLE ON THE PART OF THE PRINCIPAL CIT TO HAVE ADOPTED A PICK AND CHOOSE POLICY AND DISTURB THE ASSESSMENT ORDER PASSED BY THE A.O ON THE SAME LINES IN THE CASE OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION, VIZ A.Y. 2009 - 10. WE HAVE DELIBERATED ON THE ASSESSMENT ORDERS FOR THE AFORESAID YEARS, AND FIND THAT INTERESTINGLY WHILE FOR THE ASSESSMENT ORDER U/S 143(3) R.W.S 147 IN THE CASE OF THE ASSESSEE FOR A.Y. 2007 08, WAS ALSO PASSED ON 27.03.2015, I.E THE SAME DATE ON WHICH THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2009 - 10 WAS FRAMED, ON THE OTHER HAND THE RESPECTIVE ASSESSMENT ORDERS U/S 143(3)(11), DATED. 28.03.2016 FOR A.Y. 2013 - 14 AND U/S 143(3), DATED. 28.10.2016 FOR A.Y. 2014 - 15 WERE ALSO PASSED DURING THE PENDENCY OF THE REVISION PROCEEDINGS U/S 263 FOR THE YEAR UNDER CONSIDERATION, VIZ A.Y. 2009 - 10 BEFORE THE PRINCIPAL CIT, WHICH CULMINATED ON 24.03.2017. BE THAT AS IT MAY, THE AFORESAID FACTS CLEARLY REVEALS THAT THE PRINCIPAL CIT BY ADOPTING A N INCONSISTENT APPROACH, DESPITE THE FACT THAT SIMILAR FACTS WERE INVOLVED IN THE CASE OF THE ASSESSEE FOR ALL OF THE AFORESAID YEARS, SO MUCH SO THAT SOME OF THE SUPPLIER PARTIES FROM WHOM THE ASSESSEE HAD IN ALL THE SAID YEARS MADE PURCHASES, WERE THE SAME. THAT TO BE MORE PRECISE, WE FIND THAT THE ASSESSEE HAD DURING THE AN 2007 - 08 MADE PURCHASES FROM M/S JEWEL DIAM, WHICH WAS ONE OF THE TWO CONCERNS FROM WHOM PURCHASES WERE MADE DURING THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2009 - 10. SIMILARL Y, IN THE OTHER YEARS, VIZ. A.Y. 2013 - 14 AND A.Y. 2014 - 15, WE FIND THAT ONE OF THE CONCERN FROM WHOM PURCHASES WERE MADE BY THE ASSESSEE IN BOTH OF THE P A G E | 14 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 AFORESAID YEARS, VIZ. M/S MOHIT ENTERPRISES, WAS ONE OF THE TWO CONCERNS FROM WHOM THE ASSESSEE HAD MADE PURCHASES DURING THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2009 - 10. WE ARE OF THE CONSIDERED VIEW THAT NOW WHEN THE REVENUE HAD WHILE FRAMING THE ASSESSMENT FOR THE AFORESAID YEARS, ACCEPTED THE VIEW OF THE A.O THAT ADDITION IN RESPECT OF BOGUS PURCHASES WA S LIABLE TO BE RESTRICTED ONLY TO THE EXTENT OF THE PROFIT ELEMENT INVOLVED IN MAKING OF SUCH PURCHASES FROM THE OPEN/GREY MARKET, AND THE SAID OBSERVATIONS OF THE A.O, SPECIFICALLY THOSE ARRIVED AT BY THE A.O VIDE HIS ORDER OF EVEN DATE FOR A.Y. 2007 - 08 H AD NOT BEEN DISLODGED AND HAVE BEEN ALLOWED TO ATTAIN FINALITY, THEREFORE, IT CAN SAFELY AND RATHER INESCAPABLY BE CONCLUDED THAT SUCH A VIEW OF THE A.O WAS ONE OF THE PLAUSIBLE VIEW ARRIVED AT BY HIM DURING THE YEAR UNDER CONSIDERATION. WE FIND THAT THERE IS NEITHER ANYTHING AVAILABLE ON RECORD, NOR ANY AVERMENT HAD BEEN MADE BEFORE US BY THE ID. D.R, WHICH COULD GO TO PERSUADE US TO CONCLUDE THAT THE FACTS OF THE OTHER YEARS WERE DISTINGUISHABLE AS AGAINST THOSE FOR THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2009 - 10. WE FIND OURSELVES AS BEING IN AGREEMENT WITH THE VIEW OF THE ID. A. R, THAT AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF MAX INDIA LTD. (INDIA) (SUPRA), WHERE THE A.O HAD TAKEN ONE OF THE PLAUSIBLE VIEW, THE CIT CANNOT ASSUME JURISDICTION UNDER SEC. 263 AND REVISE THE ORDER PASSED BY THE A.O, FOR THE REASON THAT AS PER HIM THE OTHER VIEW SHOULD HAVE BEEN TAKEN. 10. WE HAVE PERUSED AT LENGTH THE ORDER PASSED BY THE A.O, AND FIND THAT THE A.O WHILE FRAMING THE ASSESSMENT HAD EXHAUSTIVELY DELIBERATED ON THE MODUS OPERANDI OF MAKING OF PURCHASES FROM THE OPEN/GREY MARKET, AS WELL THE NATURE OF FUNCTIONING OF THE ACCOMMODATION ENTRY PROVIDERS. WE FURTHER P A G E | 15 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 FIND THAT THE A.O NOT BEING INSPIRED BY THE DOCUMENTS PLACED ON RECORD BY THE ASSESSEE IN ITS ATTEMPT TO FORTIFY THE GENUINENESS OF THE PURCHASE TRANSACTIONS UNDER CONSIDERATION, THUS REJECTED THE SAME. WE ARE OF THE CONSIDERED VIEW THAT THE A.O AFTER GIVING A THOUGHTFUL CONSID ERATION TO THE FACTS, OBSERVING THAT THE PURCHASES UNDER CONSIDERATION WERE ENTERED IN THE STOCK REGISTER, AS WELL AS THE CORRESPONDING SALES WERE RECORDED IN THE BOOKS OF ACCOUNT, THEREFORE, CONCLUDED THAT THE ADDITION IN THE HANDS OF THE ASSESSEE WAS LIA BLE TO BE RESTRICTED TO THE EXTENT OF THE PROFIT ELEMENT INVOLVED IN MAKING OF PURCHASES BY THE ASSESSEE FROM THE OPEN/GREY MARKET. WE ARE OF THE CONSIDERED VIEW THAT AS THE A.O OBSERVED THAT THE PURCHASES AND SALES OF THE GOODS UNDER CONSIDERATION WERE DULY RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE, HE THEREFORE TOOK A PLAUSIBLE VIEW THAT THERE REMAINED NO OCCASION FOR LOOKING INTO THE SOURCE OF THE PURCHASES. THAT IN THE BACKDROP OF OUR AFORESAID OBSERVATIONS, AS THE A.O ON THE BASIS OF HIS AFORESAID PLAUSIBLE VIEW HAD NO REASON TO HAVE ANY DOUBTS AS REGARDS THE DULY RECORDED SOURCE OF PURCHASES, HE THEREFORE DISPENSED WITH MAKING OF ANY MENTION OF SUCH ACCEPTED STATE OF AFFAIRS IN THE ASSESSMENT ORDER. WE ARE OF THE CONSIDERED VIEW THAT AS HELD BY THE HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF FINE JEWELLERY (INDIA) LTD. (SUPRA), NOW WHEN THE A.O AFTER MAKING NECESSARY VERIFICATIONS, WAS SATISFIED AS REGARDS THE SOURCE OF PURCHASES MADE BY THE ASSESSEE FROM THE OPEN/GREY MARKET, AND THUS PROMPTED BY HIS SAID PLAUSIBLE VIEW, HAD THUS NOT DISCUSSED SUCH VIEW OF HIS IN THE ASSESSMENT ORDER, THE PRINCIPAL CIT ON THE SAID GROUND COULD NOT HAVE ASSUMED JURISDICTION UNDER SEC. 263 BY ALLEGING THAT THE A.O HAD FAILED TO MAKE NECESSARY VERIFICATIONS AND NOT APPLIED HIS MIND AS REGARDS THE ISSUE UNDER CONSIDERATION. WE THUS, IN THE BACKDROP O F OUR AFORESAID OBSERVATIONS, ARE OF THE CONSIDERED VIEW THAT NEITHER P A G E | 16 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 THE VIEW TAKEN BY THE PRINCIPAL CIT FOR ASSUMING JURISDICTION AND REVISING THE ASSESSMENT ORDER PASSED BY THE A.O U/S 143(3) R.W.S 147 CAN BE ACCEPTED ON MERITS, NOR THE ASSUMPTION OF JU RISDICTION UNDER SEC. 263 CAN BE JUSTIFIED FOR DISLODGING THE PLAUSIBLE VIEW TAKEN BY THE A.O. WE RATHER, ARE OF THE CONSIDERED VIEW THAT NOW WHEN ON SIMILAR FACTS INVOLVED IN THE CASE OF THE ASSESSEE FOR A.YS. 2007 - 08, 2013 - 14 AND 2014 - 15), A SIMILAR VIEW OF THE A.O HAD BEEN ACCEPTED AND ALLOWED TO ATTAIN FINALITY, THEREFORE, EVEN ON THE SAID COUNT SUCH INCONSISTENT APPROACH OF THE PRINCIPAL CIT FOR THE YEAR UNDER CONSIDERATION CANNOT BE SUSTAINED. ALTERNATIVELY, NOW WHEN A SIMILAR VIEW OF THE A.O FOR THE SAID OTHER YEARS, VIZ. A.Y. 2007 - 08, 2013 - 14 AND 2014 - 15, INVOLVING SAME FACTS, HAD BEEN ACCEPTED BY THE REVENUE AND ALLOWED TO PERPETUATE AS SUCH, AS PER WHICH THE ADDITION IN RESPECT OF BOGUS PURCHASES WAS TO BE RESTRICTED ONLY QUA THE PROFIT ELEMENT INV OLVED IN MAKING OF SUCH PURCHASES FROM THE OPEN/GREY MARKET, AND NO ADVERSE INFERENCES AS REGARDS THE SOURCE OF MAKING OF PURCHASES FROM THE OPEN/GREY MARKET WAS DRAWN, THEREFORE, IT CAN SAFELY BE CONCLUDED THAT SUCH A VIEW ARRIVED AT BY THE A.O DURING THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2009 - 10, AS ACCEPTED BY THE REVENUE IN THE OTHER Y EARS, WAS A PLAUSIBLE VIEW. THUS, EVEN ON THE SAID COUNT, NOW WHEN THE A.O HAD TAKEN A PLAUSIBLE VIEW, THEREFO RE, THE SAME COULD NOT HAVE BEEN DISLODGED BY THE PRINCIPAL CIT UNDER SEC. 263, FOR THE REASON THAT AS PER HIM A DIFFERENT VIEW WAS POSSIBLE. WE THUS IN TERMS OF OUR AFORESAID OBSERVATIONS SET ASIDE THE ORDER PASSED BY THE PRINCIPAL CIT UNDER SEC. 263 AND RESTORE THE ASSESSMENT ORDER PASSED BY THE A.O UNDER SEC. 143(3) R.W.S 147, DATED. 27.03.2015. 10. THE APPEAL OF THE ASSESSEE IS ALLOWED. P A G E | 17 ITA NO.3531/MUM/2017 AY: 2009 - 10 M/S ASHISH GEMS VS. PR. CIT - 19 ORDER PASSED IN THE OPEN COURT ON 06 /12/2017. SD/ - SD/ - (G.S. PANNU ) ( RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 06 .12 .2018 * / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI