Shrawan Prajapati , Lucknow V. Commissioner of Income Tax-II , Lucknow

ITA 367/LKW/2013

• Counselvise Citation: 36723714 RSA 2013
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 23-10-2013
• Assessment Year: 1998-1999
• Appeal Filed On: 23-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: DHARMENDRA KUMAR
• Keywords: Presumptive income; Revision of order; Opportunity of being heard; Reassessment proceedings
• Section: 133A; 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS.367 TO 373/LKW/2013 A.YRS.:1998 - 99 TO 2004 - 05 SHRI SHRAWAN PRAJAPATI, SECTOR - C, 1943/12, RAJAJIPURAM, LUCKNOW. PAN:AAVPP1660J VS. C.I.T. - II, LUCKNOW. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI DHARMENDRA KUMAR, C.A. RESPONDENT BY SHRI MANOJ KUMAR GUPTA, CIT, D.R. DATE OF HEARING 23/10/2013 DATE OF PRONOUNCEMENT 2 6 /11/2013 O R D E R PER BENCH: ALL THESE APPEALS, FILED BY THE ASSESSEE, ARE DIRECTED AGAINST SEPARATE ORDERS PASSED U/S 263 BY LEARNED CIT - II, LUCKNOW ALL DATED 20/03/2013 FOR SEVEN ASSESSMENT YEARS I.E. ASSESSMENT YEAR 1998 - 99 TO ASSESSMENT YEAR 2004 - 05. ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. BRIEF FACTS ARE THAT IN THE CASE OF THE ASSESSEE, A SEARCH & SEIZURE OPERATION HAD BEEN CONDUCTED ON 28/11/2003 RESULTING IN SEIZURE OF CASH AMOUNTING TO RS.50 LAKHS. SUBSEQUENTLY, A SURVEY U/S 133A OF THE I.T. ACT WAS CONDUCTED ON 02/12/2003 AND DURING TH ESE OPERATION S , VARIOUS 2 INCRIMINATING DOCUMENTS AND EVIDENCES WERE FOUND AND IMPOUNDED AND THE STATEMENT ON OATH OF THE ASSESSEE WAS ALSO RE CORDED. THEREAFTER, ORIGINAL ASSESSMENT U/S 153A/143 (3) WAS MADE ON 31/03/2006 BY WAY OF A CONSOLIDATED ORDER FOR ASSESSMENT YEAR 1998 - 99 TO ASSESSMENT YEAR 2003 - 2004 AND FOR ASSESSMENT YEAR 2004 - 2005, THE ASSESSMENT ORDER U/S 1 4 3 (3) OF THE ACT WAS PASSED ON 29/12/2006. THEREAFTER, THE ASSESSMENT ORDERS WERE SET ASIDE BY LD CIT - I, LUCKNOW AS PER ORDER U/S 263 OF THE ACT ON 25/03/2008. AGAINST THIS ORDER OF LD CIT, PASSED BY HIM U/S 263, THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL AND VIDE A CONSOLIDATED ORDER IN I.T.A. NO.797 TO 803/LKW/2008 DATED 31/12/2008, THESE ORDERS OF LEARNED CIT U/S 263 DATED 25/0 3 /2008 WERE SET ASIDE AND THE MATTER WAS RESTORED BACK TO THE FILE OF LEARNED CIT - I, LUCKNOW FOR FRESH ADJUDICATION. IN PURSUAN CE TO THIS TRIBUNAL ORDER, THE LEARNED CIT - II, LUCKNOW PASSED FRESH ORDERS U/S 263 ON 18/02/2010 AND AS PER THIS ORDER FOR ALL THE SEVEN ASSESSMENT YEARS, THE LEARNED CIT SET ASIDE THE ORIGINAL ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER U/S 153A/14 3(3) DATED 31/03/2006 FOR ASSESSMENT YEAR 1998 - 99 TO ASSESSMENT YEAR 2003 - 2004 AND ALSO THE ASSESSMENT ORDER PASSED BY ASSESSING OFFICER U/S143(3) FOR ASSESSMENT YEAR 2004 - 2005 ON 29/12/2006. THIS ORDER PASSED BY LEARNED CIT U/S 263 ON 18/02/2010 HAS BECO ME FINAL AND IN PURSUANCE TO THIS ORDER OF LEARNED CIT U/S 263, THE ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER ON 30/12/2010 U/S 143(3)/263 OF THE ACT FOR ALL THE SEVEN ASSESSMENT YEARS. AGAIN , LEARNED CIT - II, LUCKNOW ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE U/S 263 ON 06/02/2012 FOR ALL THE SEVEN ASSESSMENT YEARS AND AFTER CONSIDERING THE REPLY OF THE ASSESSEE DATED 13/03/2012 AND 21/11/2012, THE ORDER WAS PASSED BY LEARNED CIT - II, LUCKNOW ON 20/03/2013 AND IT WAS HELD BY HIM THAT ALL THESE ASSE SSMENT ORDERS PASSED BY THE ASSESSING 3 OFFICER ON 30/12/2010 FOR ALL THE SEVEN ASSESSMENT YEARS ARE ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE AND HE CANCELLED ALL THE ASSESSMENT ORDERS AND DIRECTED THE ASSESSING OFFICER TO FRAME A FRESH AS SESSMENT ORDER AS PER LAW AFTER MAKING NECESSARY ENQUIRIES AND AFTER AFFORDING A FAIR AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE FOR ALL THE SEVEN ASSESSMENT YEARS. THE PRESENT APPEALS OF THE ASSESSEE ARE FILED BY HIM AGAINST THESE ORDERS U /S 263 OF LEARNED CIT - II, LUCKNOW ALL DATED 20/03/2013 FOR ALL THE SEVEN ASSESSMENT YEARS. 3. THE GROUNDS RAISED BY THE ASSESSEE IN ALL THESE APPEALS ARE IDENTICAL AND HENCE, WE REPRODUCE THE GROUNDS RAISED BY THE ASSESSEE IN ASSESSMENT YEAR 1998 - 99 IN I. T.A. NO.367/LKW/2013, WHICH ARE AS UNDER: 1. THAT MULTIPLE REVISION PROCEEDINGS U/S 263 OF THE I.T. ACT, 1961 BY LEARNED CIT IS ILLEGAL. 2. THAT WHEN ASSESSING OFFICER CONSIDERED ALL THE POINTS RAISED IN ORDER PASSED U/S 263 OF THE I.T. ACT, WHILE FRAMI NG ASSESSMENT ORDER U/S 143(3)/263 OF THE ACT, HENCE, FURTHER ORDER PASSED U/S 263 BY LEARNED CIT FOR OTHER ISSUES OR IN ABSENCE OF MATERIAL IS ILLEGAL, ARBITRARY AND LIABLE TO BE QUASHED, BEING WITHOUT JURISDICTION. 3. THAT ORDER PASSED U/S 263 OF THE AC T IS BARRED BY LIMITATION. 4. THAT THE ORDER PASSED U/S 263 IS AGAINST THE MERIT, CIRCUMSTANCES AND LEGAL ASPECTS OF THE CASE. 5. THAT THE APPELLANT SEEKS PERMISSION TO MODIFY AND/OR ADD ANY OTHER GROUNDS OR GROUNDS OF APPEAL AS THE CIRCUMSTANCES OF THE CASE MIGHT REQUIRE OF JUSTIFY. 4 4. AT THE TIME OF HEARING OF THESE APPEALS, BOTH THE SIDES AGREED THAT FACTS IN ALL THESE YEARS ARE SIMILAR AND HENCE, ALL THE APPEALS CAN BE DECIDED ON THE BASIS OF FACTS OF ANY ONE YEAR AND FOR THE PURPOSE OF HEARING, THE FACTS OF ASSESSMENT YEAR 98 - 99 WERE EXAMINED AND EXPLAINED IN DETAIL. 5. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER FOR ALL THE SEVEN YEARS ARE NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTE REST OF REVENUE AND, THEREFORE, THESE ORDERS PASSED BY LEARNED CIT - II, LUCKNOW U/S 263 ARE NOT JUSTIFIED. HE ALSO SUBMITTED THAT IT MAY BE A CASE OF INADEQUATE ENQUIRY BUT IT IS NOT A CASE OF LACK OF ENQUIRY AND, THEREFORE, THE ASSESSMENT ORDER IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE. HE DRAWN OUR ATTENTION TO THE JUDGMENT OF HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF COMMISSIONER OF INCOME - TAX VS HINDUSTAN MARKETING AND ADVERTISING CO. LTD. [2012] 341 ITR 180 (DEL), COPY OF WHICH IS AVAILABLE FROM PAGES 24 TO 25 OF THE CASE LAWS PAPER BOOK AND IN PARTICULAR OUR ATTENTION WAS DRAWN TO PAGE NO.34 OF THE PAPER BOOK AND IT WAS POINTED OUT THAT IT WAS HELD BY HON'BLE DELHI HIGH COURT IN THIS CASE THAT COMMISSIONER CANNOT INITIATE PROCEEDINGS WITH A VIEW TO STARTING FISHING AND ROVING ENQUIRIES IN MATTERS OR ORDERS WHICH ARE ALREADY CONCLUDED. IT WAS ALSO POINTED OUT THAT THIS SECTION I.E. 263 DOES NOT VISUALIZE A CASE OF SUBSTITUTION OF THE JUDGMENT OF THE COMMISSIONER FOR THAT O F THE INCOME TAX OFFICER, WHO PASSED THE ORDER UNLESS THE DECISION IS HELD TO BE ERRONEOUS. 6. AS AGAINST THIS , THE LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS PASSED BY LEARNED CIT U/S 263 AND ALSO SUBMITTED THAT IT IS A CASE 5 OF NO ENQUIRY BY THE A SSESSING OFFICER AND NO APPLICATION OF MIND BY ASSESSING OFFICER AND THEREFORE, THE REVISIONAL ORDERS PASSED BY LEARNED CIT U/S 263 FOR ALL THE SEVEN ASSESSMENT YEARS ARE AS PER LAW AND SHOULD BE UPHELD. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND THE JUDGMENTS CITED BY LEARNED A.R. FOR THE ASSESSEE. BEFORE PROCEEDING TO DEAL WITH THE ARGUMENTS RAISED BY BOTH THE SIDES, WE FEEL IT PROPER THAT LET US EXAMINE THE INCOME ASSESSED BY THE ASSESSING OFFICER AS PER ORIGINAL ASSESSMENT ORDER PASSED BY HIM ON 31/03/2006 FOR SIX ASSESSMENT YEARS I.E. ASSESSMENT YEAR 1998 - 99 TO ASSESSMENT YEAR 2003 - 2004 AND DATED 29/12/2006 FOR THE 7 TH ASSESSMENT YEAR I.E. ASSESSMENT YEAR 2 004 - 2005 AND ALSO THE INCOME ASSESSED BY THE ASSESSING OFFICER AS PER THE SECOND ASSESSMENT ORDER PASSED BY HIM FOR ALL THE SEVEN YEARS ON 30/12/2010. THE YEAR - WISE CHART OF SUCH ASSESSED INCOME IS AS UNDER: ASSESSMENT YEAR ASSESSMENT ORDER DATED 31/03/2006 & 29/12/2006 ASSESSMENT ORDER DATED 30/12/2010 1998 - 19 99 1,50,000 1,22,860 1999 - 2000 1,50,000 1,26,380 2000 - 2001 3,93,637 4,20,824 2001 - 2002 3,56,658 3,10,750 2002 - 2003 11,47,037 12,04,290 2003 - 2004 15,55,030 15,38,227 2004 - 2005 76,24,372 51,24,140 7.1 FROM THE ABOVE CHART, IT IS SEEN THAT AS PER THE ORDER PASSED BY LEARNED CIT U/S 263 ON 18/02/2010, IT WAS HELD BY HIM THAT THE EARLIER ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER FOR THESE SEVEN ASSESSMENT YEARS ARE ERRONEOUS AND PR EJUDICIAL TO THE INTEREST OF REVENUE AND THIS ORDER OF LEARNED CIT U/S 263 HAS ATTAINED FINALITY . H ENCE, THIS HAS 6 ALSO ATTAINED FINALITY THAT THE ORIGINAL ASSESSMENT ORDER S PASSED BY THE ASSESSING OFFICER IN THE YEAR 2006 FOR THESE SEVEN ASSESSMENT YEAR S W ERE PREJUDICIAL TO THE INTEREST OF THE REVENUE. NOW , WE FIND TH A T AS PER ABOVE CHART, THE ASSESSED INCOME FOR ASSESSMENT YEAR 1998 - 99, 1999 - 2000, 2001 - 2002, 2003 - 2004 AND 2004 - 2005 ARE LESSER THAN THE INCOME ASSESSED BY THE ASSESSING OFFICER AS PER ORIG INAL ASSESSMENT ORDER PASSED IN THE YEAR 2006 FOR THESE FIVE ASSESSMENT YEARS. WE FAIL TO UNDERSTAND THAT WHEN AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IN THE YEAR 2006 WAS HELD TO BE PREJUDICIAL TO THE INTEREST OF THE REVENUE THEN HOW THE SUBS EQUENT ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER CAN BE AT AN INCOME LOWER THAN THAT INCOME AS PER THE ORIGINAL ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IN THE YEAR 2006. BE THAT AS IT MAY, BECAUSE AS PER THE ORDER PASSED BY LEARNED CIT U/S 263, THIS ASPECT IS NOT RAISED BY HIM BUT IN OUR CONSIDERED OPINION, THIS ASPECT IS OTHERWISE RELEVANT AND IT SUPPORTS HIS ULTIMATE FINDING THAT THESE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER IN THE YEAR 2010 WERE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE BECAUSE IT SHOWS THAT THE ASSESSING OFFICER HAS NOT EVEN KEPT IN MIND THIS SIMPLE ASPECT THAT REVISED ASSESSMENT ORDER AS PER THE DIRECTION OF LEARNED CIT U/S 263 CANNOT BE AT AN INCOME BELOW THE ORIGINAL ASSESSMENT ORDER BECAUSE TH E REVISIONARY PROCEEDINGS ARE NOT FOR THE BENEFIT OF THE ASSESSEE AND, THEREFORE, EVEN IF THE ASSESSING OFFICER DOES NOT FIND ANY DEFECT THEN ALSO , HE HAS TO COMPLETE THE ASSESSMENT AT THE SAME INCOME AT WHICH THE INCOME WAS ASSESSED BY THE ASSESSING OFFIC ER IN COURSE THE ORIGINAL ASSESSMENT PROCEEDINGS IN THE YEAR 2006. T HIS VIEW OF US FINDS SUPPORT FROM THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF COMMISSIONER OF INCOME - TAX VS SUN ENGINEERING WORKS P. LTD. [1992] 198 ITR 297 (SC) 7 WHEREIN I T WAS HELD BY HON'BLE APEX COURT THAT REASSESSMENT PROCEEDINGS ARE NOT FOR THE BENEFIT OF THE ASSESSEE. IN OUR OPINION, REASSESSMENT PROCEEDINGS AND REVISIONARY PROCEEDINGS ARE UNDERTAKEN FOR THE SAME PURPOSE I.E. TO BRING THAT INCOME TO TAX WHICH HAS ESCA PED ASSESSMENT. THE DIFFERENCE IS THAT REASSESSMENT PROCEEDING IS UNDERTAKEN BY THE ASSESSING OFFICER HIMSELF AFTER RECORDING REASONS WHEREAS REVISIONARY P ROCEEDINGS ARE INITIATED BY CIT. IN OUR CONSIDERED OPINION, THE REVISIONARY PROCEEDINGS U/S 263 ALS O CANNOT BE FOR THE BENEFIT OF THE ASSESSEE AND, THEREFORE, INCOME OF THE ASSESSEE AFTER VALID 263 PROCEEDINGS CANNOT BE AT AN AMOUNT LOWER THAN THE AMOUNT ASSESSED IN THE ORIGINAL ASSESSMENT ORDER. SINCE IN THE PRESENT CASE THE ASSESSING OFFICER HAS ASSE SSED THE INCOME OF THE ASSESSEE IN FIVE YEARS OUT OF TOTAL SEVEN YEARS AT AN INCOME LOWER THAN THE INCOME ASSESSED BY THE ASSESSING OFFICER IN ORIGINAL ASSESSMENT PROCEEDINGS, IT HAS TO BE ACCEPTED THAT THE ASSESSING OFFICER HAS NOT PROPERLY APPLIED HIS MI ND WHILE FRAMING THE ASSESSMENT IN THE YEAR 2010 AND, THEREFORE, THESE ASSESSMENT ORDERS ARE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE FOR THIS SIMPLE REASON FOR AT LEAST FIVE YEARS OUT OF TOTAL SEVEN YEARS. BUT SINCE THIS ASPECT IS NOT RAISED BY LEARNED CIT, WE DO NOT DECIDE THE ISSUE ON THIS BASIS BUT WE WILL KEEP THIS ALSO IN MIND. 8. NOW WE EXAMINE THE SPECIFIC ARGUMENT RAISED BY LEARNED A.R. OF THE ASSESSEE. THE ARGUMENT OF THE LEARNED A.R. OF THE ASSESSEE IS THAT THE ASSESSMENT ORDER PAS SED BY THE ASSESSING OFFICER IN THE YEAR 2010 IS PASSED AFTER MAKING PROPER ENQUIRY AND PROPER APPLICATION OF MIND AND THEREFORE, THESE ASSESSMENT ORDERS ARE NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE. NOW WE EXAMINE THE VERACITY OF THESE 8 CONTENTIONS. WE FIND THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IN THE YEAR 2010 WAS PASSED BY HIM IN PURSUANCE TO THE ORDER PASSED BY LEARNED CIT U/S 263 ON 25/03/2008. THIS ORDER OF LEARNED CIT DATED 25/03/2008 U/S 263 IS AVAILABLE IN THE PAPER BOOK FOR ASSESSMENT YEAR 98 - 99 ON PAGES 15 TO 23. IN THIS ORDER U/S 263 PASSED BY LEARNED CIT FOR ASSESSMENT YEAR 98 - 99, IT IS NOTED BY LEARNED CIT ON PAGE 8 OF THIS ORDER, AVAILABLE ON PAGE NO. 22 OF THE PAPER BOOK, THAT PAGE NO. 58 OF ANNE XURE - A9 OF IMPOUNDED MATERIAL CONTAINS DATE - WISE DETAILS OF WORK DONE BY THE ASSESSEE FOR SANSKRITI NIDESHALAYA AND LDA. IT WAS ALSO NOTED BY HIM THAT AS PER THIS DOCUMENT, TOTAL VALUE OF WORK FOR ASSESSMENT YEAR 98 - 99 IS TO THE TUNE OF RS.72.25 LAKHS AND DURING THE ASSESSMENT PROCEEDINGS, NO ENQUIRY/INVESTIGATION HAS BEEN MADE BY THE ASSESSING OFFICER AND THE INCOME HAS BEEN ASSESSED ONLY ON ESTIMATED BASIS. ON THE BASIS OF THESE OBSERVATIONS, IT WAS HELD BY LEARNED CIT THAT THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 98 - 99 IS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE BECAUSE THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT WITHOUT MAKING DETAILED ENQUIRY AND ACCEPTED THE CLAIM OF THE ASSESSEE ON FACE VALUE. NOW WE EXAMINE THE AS SESSMENT ORDER PASSED BY THE ASSESSING OFFICER ON 30/12/2010. IN PARA 4 OF THIS ORDER, IT IS NOTED BY THE ASSESSING OFFICER THAT THE ASSESSEE WAS ASKED TO EXPLAIN THE WORK DONE IN SANAKRITI NIDESHALAYA AND LDA OF RS.72,25,123/ - AS APPEARING ON PAGE 58 OF ANNEXURE - A9 OF IMPOUNDED MATERIAL. THEREAFTER, HE HAS NOTED THAT THE ASSESSEE SUBMITTED A REPLY DATED 27/12/2010 AND HE HAS REPRODUCED THE CONTENTS OF THIS REPLY. THEREAFTER HE HAS NOTED THAT THIS REPLY OF THE ASSESSEE HAS BEEN CONSIDERED AND HE HAS DECID ED THE ISSUE ON THE BASIS OF THIS REPLY AND THE SEIZED MATERIAL AND THERE IS NO REFERENCE TO ANY INDEPENDENT ENQUIRY 9 MADE BY THE ASSESSING OFFICER IN THIS REGARD. FOR THE SAKE OF READY REFERENCE, THIS PARA NO. 4 OF THE ASSESSMENT ORDER DATED 30/12/2010 FOR ASSESSMENT YEAR 98 - 99 IS REPRODUCED BELOW: 4. THE ASSESSEE WAS ALSO ASKED TO EXPLAIN THE WORK DONE FOR SANSKRITI NIDESHALAYA AND LDA OF RS.72,25,132/ - AS APPEARING IN PAGE NO. 58 OF ANNEXURE - 9 OF IMPOUNDED MATERIAL. IN ITS REPLY DATED 27/12/2010, IT HAS BEEN SUBMITTED BY THE ASSESSEE THAT .PAGE NO. 58 OF ANNEXURE - 9, AS NOTED IN PARA 9(F) OF THE ORDER PASSED BY L D. CIT - LL, LUCKNOW U/S 263 OF INCOME TAX ACT, 1961 IS ACTUALLY THE DETAILS OF WORK ORDER GRANTED BY DEPARTMENT OF GOVERNMENT OF U.P. TO THE ASSESSEE. IT IS NOT THE AMOUNT OF WORK EXECUTED BY THE ASSESSEE. ASSESSEE EXECUTED THE AFORESAID WORK IN DIFFERENT ASSESSMENT YEARS. DEPARTMENT OF GOVERNMENT OF U.P. HAD DULY DEDUCTED TAX AND ISSUED FORM 16AS ACCORDINGLY. IT IS NOTEWORTHY THAT THE TOTAL AMOUNT OF WORK ORDERS GRANTED TO THE ASSESSEE AS PER PAGE NO. 58 OF ANNEXURE A - 9 IS RS.78,09,132/ - , WHEREAS, TOTAL AMOUNT OF WORK EXECUTED BY ASSESSEE DURING A. Y. 1998 - 99 TO A.Y. 2004 - 05 WAS RS.2,24,91,068 / - ... THE ABOVE REPLY OF THE ASSESSEE HAS BEEN CONSIDERED. ON PERUSAL OF THE MATERIAL IMPOUNDED, ANNEX URE - 9, PA G E NO. 58, IT IS SEEN THAT IT IS A TYPE OF WORK ORDER THAT THE ASSESSEE HAS TO COMPLETE THE WORK OF DIFFERENT PROJECTS. THERE IS NO MENTION THAT THE WORK HAS BEEN COMPLETED BY THE ASSESSEE IN THE YEAR UNDER CONSIDERATION OR THE WORK HAS TO BE COMPLETED BY THE ASSESSEE IN THE SAME YEAR OF WORK CONTRACT. THE AMOUNT OF WORK CONTRACT COMPLETED BY THE ASSESSEE FROM A.Y. 1998 - 99 TO 2004 - 05 COMES TO RS.2,24,91,068/ - , WHICH ESTABLISHES THAT THE AMOUNT AS APPEARING ON THE PAGE NO.58 IS THE WORK ORDER IS SUED ON DIFFERENT DATES FOR MAKING OF STATUES AND THE CONTRACT RECEIPTS OF THE SAME ARE INCLUDED IN THE CONTRACT RECEIPTS RECEIVED BY THE ASSESSEE IN SUBSEQUENT YEARS FROM A.Y. 1998 - 99 TO 2004 - 0 5 FROM 10 SANSKRJTI NIDESHALAYA. TDS CERTIFICATES FILED HAVE BEEN VERIFIED. NO ADVERSE INFERENCE IS DRAWN. 8.1 FROM THE ABOVE PARA OF THE ASSESSING OFFICER, IT IS CLEAR THAT NO ENQUIRY WAS MADE BY THE ASSESSING OFFICER IN THIS REGARD, ALTHOUGH AS PER THE ORDER PASSED BY LEARNED CIT U/S 263 ON25/02/2008, THIS WAS THE F INDING OF LEARNED CIT THAT NO ENQUIRY WAS MADE BY THE ASSESSING OFFICER AND THE ORIGINAL ASSESSMENT ORDER WAS HELD TO BE ERRONEOUS FOR THIS REASON. AS PER THIS ASSESSMENT ORDER, PASSED BY THE ASSESSING OFFICER ON 30/10/201 0 , IT IS SEEN THAT NO ENQUIRY WAS MADE BY THE ASSESSING OFFICER IN THIS REGARD. 8.2 NOW WE WILL DISCUSS AND CONSIDER VARIOUS JUDGMENTS CITED BY LEARNED A.R. OF THE ASSESSEE, COPY OF WHICH ARE AVAILABLE IN A SEPARATE PAPER BOOK OF CASE LAWS, WHICH IS COMMON FOR ALL THE APPEALS. THE JUDG MENTS ARE AS UNDER: 1. MALABAR INDUSTRIAL CO. LTD. VS. CIT [2000] 243ITR 83(SC) 2. CIT VS. MAX INDIA LTD. [2007] 295 ITR 282 (SC) 3. CIT VS. GREENWORLD CORPORATION [2009] 181 TAXMAN 111 (SC) 4. SHOBHA DEVI VS. ADDL. CIT AND ANOTHER, ELEGALIX - ALLAHABAD HIGH COURT JUDGMENT INFORMATION SYSTEM (JUDGMENT/ORDER IN TEXT FORMAT) 5. CIT VS. GOYAL PRIVATE FAMILY SPECIFIC TRUST [1988] 171 ITR 0698(ALL) 6. CIT(A) VS. HINDUSTAN MARKETING & ADVERTISING CO. LTD. [2012] 341 ITR 180(DEL) 7. CIT(A) VS. VODAFONE ESSAR SO UTH LTD., I.T.A. NO.119/2012, DECIDED ON NOVEMBER 20, 2012 8. CIT(A) VS. INTERNATIONAL TRAVEL HOUSE LTD. [2012] 344 ITR 554 (DEL) 9. INCOME TAX OFFICER VS. D.G. HOUSING PROJECTS LTD. [2013] 212 TAXMAN 132(DEL) 10. CIT VS. VIKAS PLOYMERS [2010] 194 TAXMAN 5 7 (DEL) 11 11. CIT VS. MEPCO INDUSTRIES LTD. [2007] 294 ITR 121(MAD) 12. CIT VS. D. N. DOSANI [2006] 280 ITR 275(GUJ) 13. ACIT VS. MODERN CEMENT INDUSTRIES [2013] 212 TAXMAN 135 (GUJ) 14. CIT VS. GANPAT RAM BISHNOI [2008] 296 ITR 292 (RAJ) 15. CIT(A) VS. DEVE LOPMENT CREDIT BANK LIMITED [2011] 196 TAXMAN 329(BOM) 16. CIT VS. VINOD KUMAR GUPTA [2007] 165 TAXMAN 225 (P&H) 17. ADITI DEVELOPERS VS. ACIT [2012] 49 SOT 664 (MUMBAI) 8.3 THE RELIANCE ON THE ABOVE JUDGMENTS HAVE BEEN PLACED IN SUPPORT OF THESE CONTENTI ONS: (A) FOR INVOKING THE PROVISIONS OF SECTION 263, THE ASSESSMENT ORDER SHOULD BE ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE. (B) THE ASSESSMENT ORDER HAS NOT BEEN INTERFERED WITH ONLY BECAUSE ANOTHER VIEW IS POSSIBLE UNLESS IT IS SHOWN THAT SUCH ASSESSMENT ORDER IS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. (C) MERELY BECAUSE THE ASSESSMENT ORDER IS BRIEF AND CRYPTIC, THIS IN ITSELF IS NOT SUFFICIENT REASON TO BRAND THE ASSESSMENT ORDER AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. (D) ASSESSMENT ORDER CANNOT BE SET ASIDE FOR MAKING ROVING ENQUIRY WITHOUT POINTING OUT ANY ERROR IN THE ASSESSMENT ORDER AND THE CIT HAS TO DEMONSTRATE THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS. (E) ONE HAS TO SEE F ROM THE RECORD AS TO WHETHER THERE WAS APPLICATION OF MIND BY THE ASSESSING OFFICER OR NOT. (F) SECTION 263 CAN BE INVOKED FOR LACK OF ENQUIRY BUT NOT FOR INADEQUATE ENQUIRY. (G) THE ASSESSING OFFICER IS BOTH AN INVESTIGATOR AND ADJUDICATOR. AS AN INVESTIGATOR , IT IS INCUMBENT UPON THE ASSESSING OFFICER TO INVESTIGATE THE FACTS REQUIRED TO EXAMINE AND VERIFY THE COMPUTED TAXABLE INCOME AND IF THE ASSESSING OFFICER FAILS TO CONDUCT THE SAID INVESTIGATION, HE COMMITS AN ERROR AND THE WORD ERRONEOUS INCLUDES FAILURE TO MAKE THE ENQUIRY. 12 8.4 THERE IS NO QUARREL ON THE BROAD PROPOSITION LAID DOWN BY THE TRIBUNAL, VARIOUS HIGH COURTS AND HON'BLE APEX COURT IN THE ABOVE NOTED JUDGMENTS CITED BY LEARNED A.R. OF THE ASSESSEE. IT COMES OUT FROM THE ABOVE NO TED JUDGMENTS THAT IF THE ASSESSING OFFICER HAS FAILED TO MAKE ENQUIRY AND APPL Y HIS MIND , THEN THE ASSESSMENT ORDER IS ERRONEOUS AND IF THIS HAS RESULTED INTO LOSS OF REVENUE THEN IT IS PREJUDICIAL TO THE INTEREST OF REVENUE ALSO AND THEREFORE, IN THOSE C IRCUMSTANCES, LEARNED CIT IS JUSTIFIED IN INVOKING HIS REVISIONAL POWERS U/S 263 OF THE ACT. IN THE PRESENT CASE, WE HAVE NOTED ABOVE IN PARA 8.1 THAT INSPITE OF THIS FACT THAT AS PER THE ORDER PASSED BY LEARNED CIT U/S 263 ON 25/02/2008, THIS FINDING WAS GIVEN BY THE LEARNED CIT THAT NO ENQUIRY WAS MADE BY THE ASSESSING OFFICER BUT INSPITE OF THIS FINDING OF LEARNED CIT IN HIS ORDER U/S 263 ON 25/02/2008, WHICH HAS ATTAINED FINALITY, NO INDEPENDENT ENQUIRY WAS MADE BY THE ASSESSING OFFICER BEFORE PASSING THE ASSESSMENT ORDER PASSED BY HIM ON 30/12/2010 PURSUANT TO THAT ORDER PASSED BY LEARNED CIT(A) U/S 263 ON 25/03/2008. AS PER PARA 4 OF THE ASSESSMENT ORDER, WE HAVE NOTED THAT THE ASSESSING OFFICER HAS ASKED THE ASSESSEE TO EXPLAIN REGARDING THE WORK DO NE FOR SANSKRITI NIDESHALAYA AND LDA AND AFTER CONSIDERING THE REPLY OF THE ASSESSEE AND AFTER CONSIDERING THE IMPOUNDED MATERIAL, HE HAS DECIDED THE ISSUE WITHOUT MAKING ANY INDEPENDENT ENQUIRY FROM THE CONCERNED PERSON I.E. SANSKRITI NIDESHALAYA AND LDA. ASKING THE ASSESSEE TO EXPLAIN CANNOT BE SAID TO BE MAKING ENQUIRY BECAUSE IT IS NOT EXPECTED THAT THE ASSESSEE WILL BRING THOSE MATERIALS BEFORE THE ASSESSING OFFICER WHICH ARE GOING AGAINST THE ASSESSEE. AS AN INVESTIGATOR, WHICH THE ASSESSING OFFICER IS, HE SHOULD HAVE MADE INDEPENDENT ENQUIRY FROM THE CONCERNED PERSON BUT THIS WAS NOT DONE BY THE ASSESSING OFFICER IN THE PRESENT CASE AND, THEREFORE, WE FIND FORCE IN 13 THIS FINDING OF LEARNED CIT IN HIS ORDER PASSED U/S 263 THAT THE ASSESSING OFFICER FA ILED TO CONDUCT ANY ENQUIRY WITH UTTAR PRADESH SANSKRITI NIDESHALAYA TO FIND OUT THE NATURE OF CONTRACT AND THE TOTAL VALUE THEREOF. THIS FINDING IS GIVEN BY LEARNED CIT ON PAGE NO. 2 OF HIS ORDER. THE COPY OF QUESTIONNAIRE ISSUED BY THE ASSESSING OFFICE R IS AVAILABLE ON PAGE NO. 52 OF THE PAPER BOOK AND FOR THE SAKE OF READY REFERENCE, THE SAME IS REPRODUCED HERE BELOW: 1. PLEASE FURNISH THE CHART OF ASSET AND LIABILITIES/STATEMENT OF AFFAIRS. 2. DETAILS OF ALL BANK ACCOUNTS, SAVING BANK ACCOUNTS, THE IR COPIES. 3. WHETHER YOU HAVE MAINTAINED ANY BOOKS OF ACCOUNT IN SUPPORT OF YOUR INCOME RETURNED. IF NOT, THEN PRODUCE DAILY BOOK, DAILY CASH BOOK, WHATSOEVER MAINTAINED. 4. DETAILS OF CONTRACT RECEIPTS FROM U.P. GOVT. DEPARTMENTS AND OTHER PARTIES. 8.5 FROM THE ABOVE QUESTIONNAIRE, ISSUED BY THE ASSESSING OFFICER, FOR WHICH COMPLIANCE WAS TO BE MADE ON 19/11/2010, THE ASSESSING OFFICER HAS ASKED THE ASSESSEE TO FURNISH THE CHART OF ASSETS AND LIABILITIES/ STATEMENT OF AFFAIRS, DETAILS OF BANK ACCOUNT S, SAVING BANK ACCOUNTS AND THEIR COPIES ALONG WITH THE BOOKS OF ACCOUNT AND DETAILS OF CONTRACT RECEIPTS FROM U.P. GOVT. DEPARTMENTS AND OTHER PARTIES AND NO SPECIFIC QUERY WAS MADE BY THE ASSESSING OFFICER WITH REGARD TO RECEIPTS FROM SANSKRITI NIDESHALA YA AND LDA. THIS ALSO GOES TO SHOW THAT THE ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER WITHOUT MAKING ANY ENQUIRY ON THE RELEVANT ISSUES. 8.6 IN ADDITION TO THIS, THIS IS ALSO THE ALLEGATION OF THE LEARNED CIT THAT THE ASSESSING OFFICER FAILED TO MAKE ANY ENQUIRY ON VARIOUS OTHER ISSUES 14 ALSO, AS SUCH VAST DIFFERENCE IN THE CIVIL CONSTRUCTION WORK CONTRACT RECEIV ED DURING THIS YEAR FROM U.P. JAL NIGAM, LUCKNOW BEING RS.5.24 CRORES AS PER CONTRACT WORK GIVEN TO THE ASSESSEE AND RS.2.75 CRORES ONLY SHOWN BY THE ASSESSEE. REGARDING THE OTHER ASPECT S THAT THE INCOME DECLARED BY THE ASSESSEE @8.04% HAS BEEN ACCEPTED BY THE ASSESSING OFFICER WITHOUT MAKING ANY ENQUIRY, IT IS OBSERVED BY LEARNED CIT THAT THE ASSESSING OFFICER RELIED ON 8% OF PRESUMPTIVE INCOME IMPLIED FOR CIVIL CONSTRUCTION BUSINESS DESPITE THE FACT THAT THE ASSESSEE IS ENGAGED IN MAKING STATUE AND CREATION OF CUSTOMIZED CIVIL WORK WHERE THE NET PROFIT RATE WILL BE MUCH HIGHER THAN THAT OF THE NORMAL CIVIL CONTRACT WORK BUT THIS ASPECT W AS NOT ENQUIRED BY THE ASSESSING OFFICER BUT THE SAME WAS MERELY ACCEPTED BY THE ASSESSING OFFICER AS DECLARED BY THE ASSESSEE WITHOUT CONDUCTING ANY ENQUIRY. IT IS ALSO OBSERVED BY THE LEARNED CIT THAT THERE ARE HUGE CASH DEPOSITS AND CLEARING/TRANSFER E NTRIES IN VARIOUS BANK ACCOUNTS BUT THERE WAS NO DETAILED ENQUIRY RAISED BY THE ASSESSING OFFICER ON SUCH DEPOSIT/TRANSFER AND REGARDING SOURCE OF THESE CREDIT ENTRIES. HE HAS ALSO OBSERVED THAT THERE ARE HUGE CASH WITHDRAWALS BUT THE PURPOSE OF SUCH WITH DRAWALS WAS NOT ENQUIRED BY THE ASSESSING OFFICER AND, THEREFORE, SUCH CASH CREDIT ENTRIES IN THE BANK ACCOUNTS REMAINED UNEXPLAINED. WE HAVE REPRODUCED THE QUESTIONNAIRE ISSUED BY THE 15 ASSESSING OFFICER TO THE ASSESSEE, WHICH IS AVAILABLE AT PAGE NO. 52 O F THE PAPER BOOK AND FROM THE SAME , IT COMES OUT THAT NO SUCH QUERY WAS RAISED BY THE ASSESSING OFFICER ON THESE ASPECTS EVEN FROM THE ASSESSEE. THIS SUPPORTS THE CASE OF LEARNED CIT THAT ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER WITHOUT ENQUIRY A ND WITHOUT APPLICATION OF MIND AND, THEREFORE, IN OUR CONSIDERED OPINION , IN THE FACTS OF THE PRESENT CASE, THE REVISIONARY POWER EXERCISED BY LEARNED CIT U/S 263 IS PROPER AND JUSTIFIED AND NO INTERFERENCE IS CALLED FOR IN HIS ORDER. 8.7 IN THE LIGHT OF THE ABOVE DISCUSSION REGARDING THE FACTS OF THE PRESENT CASE, QUERIES MADE BY THE ASSESSING OFFICER FROM THE ASSESSEE AND LACK OF ANY INDEPENDENT ENQUIRY AND AFTER CONSIDERING THE VARIOUS JUDGMENTS CITED BY LEARNED A.R. OF THE ASSESSEE, WE HAVE NO HESITATI ON IN CONCLUDING THAT NO INTERFERENCE IS CALLED FOR IN THE ORDER OF LEARNED CIT PASSED BY HIM U/S 263 OF THE ACT. 9. REGARDING THE APPEALS FOR THE REMAINING SIX YEARS I.E. FROM THE ASSESSMENT YEAR 1999 - 2000 TO 2004 - 2005, IT WAS AGREED BY BOTH THE PARTIES THAT THE FACTS ARE IDENTICAL AND ALL THE APPEALS MAY BE DECIDED ON THE BASIS OF FACTS OF ANY ONE ASSESSMENT YEAR. STILL WE HAVE EXAMINED THE COPY OF QUESTIONNAIRE ISSUED BY THE ASSESSING OFFICER FOR THE REMAINING YEARS ALSO, WHICH ARE AVAILABLE IN THE PA PER BOOK OF THE RESPECTIVE YEARS AND WE FIND THAT THE QUESTIONNAIRE RAISED BY THE ASSESSING OFFICER IS MORE OR LESS IDENTICAL AND NO SPECIFIC QUERY WAS MADE BY THE ASSESSING OFFICER IN RESPECT OF VARIOUS POINTS NOTED BY LEARNED CIT IN HIS EARLIER ORDER 16 PAS SED BY HIM U/S 263 IN THE MONTH OF MARCH, 2008, WHICH HAS ATTAINED FINALITY AND, THEREFORE, IT HAS TO BE ACCEPTED IN ALL THE YEARS THAT THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER WITHOUT ENQUIRY AND APPLICATION OF MIND AND, THEREFORE, NO INTERFE RENCE IS CALLED FOR IN THE ORDER OF LEARNED CIT PASSED BY HIM U/S 263 OF THE ACT IN ANY OF THE YEARS. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 6 / 1 1 / 2 0 1 3 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. DR, ITAT, LUCKNOW ASSTT. REGISTRAR