MANJUL CHANDANI, BHARATPUR V. CIT, Alwar

ITA 414/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5105 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 21-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Peak credit; Difference of opinion; Corroborative evidences; Assessment record; Change of opinion
• Section: 143(3); 131; 263; 63

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH , - MH - TSU U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI A.D. JAIN, JM & SHRI VIKRAM SINGH YADA V, AM VK;DJ VIHY LA- @ ITA NO. 414/JP/2016 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2011-12 MANJUL CHANDANI, 18, MURLI BHAWAN, VIDEH KAUR COLONY, KILA, NEAR AGRAWAL NURSING HOME, BHARATPUR- 321001. CUKE VS. COMMISSIONER OF INCOME TAX, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABBPC 6050 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI RAJENDRA AGARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI M.S. MEENA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 08/09/2016 MN?KKS'K .KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 15/09/2016 VKNS'K@ ORDER PER: A.D. JAIN, J.M. THIS IS ASSESSEES APPEAL FOR A.Y. 2011-12 FILED AG AINST THE ORDER DATED 14/03/2016 PASSED BY THE LD. PRINCIPAL COMMIS SIONER OF INCOME TAX, ALWAR, CONTENDING THAT THE LD. CIT HAS ERRED IN I NITIATING THE PROCEEDINGS U/S 263 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AND IN CANCELLING THE ASSESSMENT ORDER PASSED BY THE AS SESSING OFFICER U/S ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 2 143(3) OF THE ACT ON 07/01/2014 AND DIRECTING THE A SSESSING OFFICER TO PASS ASSESSMENT ORDER AFRESH. 2. VIDE ORDER DATED 07/01/2014, PASSED U/S 143(3) O F THE ACT, THE ASSESSING OFFICER OBSERVED THAT IT WAS SEEN THAT THE ASSESSEE HAD CARRIED OUT THE BUSINESS OF EARNING COMMISSION OF DEALINGS OF RECHARGE VOUCHERS OF VARIOUS PREPAID MOBILE COMPANIES. THE ASSESSEE HA D EARNED NET COMMISSION INCOME OF RS. 1,82,275/- ON TOTAL TRANSA CTIONS OF MOBILE RECHARGE VOUCHERS OF RS. 46,72,000/- TOWARDS SERVICE RENDERED. THE ASSESSEE WAS REQUIRED TO PRODUCE BOOKS OF ACCOUNT AL ONGWITH OTHER SUPPORTING EVIDENCE REGARDING JUSTIFICATION IN RESP ECT OF ARRIVING AT COMMISSION INCOME OF RS. 1,82,275/-. HOWEVER, THE AS SESSEE FAILED TO PRODUCE ANY DOCUMENTARY EVIDENCE EXPRESSED HIS INAB ILITY TO PRODUCE THE EVIDENCE IN RESPECT OF THE ARRIVING AT COMMISSION I NCOME OF RS. 1,82,275/-. THE ASSESSING OFFICER OBSERVED THAT LOOK ING AT THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN ABSENCE OF ANY DOC UMENTARY EVIDENCE IN RESPECT OF THE ASSESSEE HAVING SHOWN COMMISSION I NCOME OF RS. 1,82,275/-, HE (ASSESSING OFFICER) WAS LEFT WITH NO O PTION BUT TO COMPUTE THE TOTAL COMMISSION INCOME ON THE BASIS OF ESTIMAT ION. THE ASSESSING OFFICER ESTIMATED THE INCOME OF THE ASSESSEE FROM C OMMISSION AT 5% OF THE TOTAL MOBILE RECHARGE VOUCHERS OF RS. 46,72,000 /-. THIS AMOUNTED TO ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 3 RS. 2,33,600/-. SUBTRACTING THE STATED COMMISSION I NCOME OF RS. 1,82,275/- FROM THE AFORESAID COMMISSION ARRIVED AT BY THE ASSESSING OFFICER AT RS.2,33,600/-, THE REMAINDER OF RS. 51,3 25/- WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 3. THE LD. CIT WAS OF THE OPINION THAT THE ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE R EVENUE, INASMUCH AS, THE ASSESSING OFFICER HAD NOT MADE PROPER ENQUIRIES ON THE FOLLOWING POINTS, AS COMMUNICATED TO THE ASSESSEE VIDE THE NO TICE U/S 263 OF THE ACT, IS AS FOLLOWS:- 1 AS PER SL. NO. 14 OF THE QUESTIONNAIRE ISSUED V IDE NO. 696 DATED 05/09/2013 THE FOLLOWING QUERY WAS RAISED BY T HE ASSESSING OFFICER: 14 FURNISH SOURCE OF CASH DEPOSITS IN SAVING BANK ACCOUNTS WITH JUSTIFICATION. PERUSAL OF ASSESSMENT RECORD REVEALS THAT AS PER WR ITTEN REPLY DATED 10/12/2013 FILED BY ASSESSING OFFICER/R THE FOLLOWING REPLIES HAS BEEN SUBMITTED:- 14. THE ENTIRE CASH DEPOSITS IN SAVINGS ACCOUNTS WE RE DEPOSITED OUT OF CASH RECEIVED FROM THE RECHARGE VOUCHERS TRA NSACTIONS OF RS. 46,72,000/- MADE DURING THE YEAR CONCERNED. 20. COMPLETE BOOKS OF ACCOUNTS ARE BEING PRODUCED HEREWITH FOR YOUR KIND VERIFICATION. ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 4 2. AS PER REPLY TO QUESTION NO. 5 & 6 OF YOUR STATE MENTS RECORDED ON 02/01/2014 U/S 131 OF THE ACT, YOU HAD STATED THAT YOU DO NOT MAINTAIN ANY DETAILS OR BOOKS OF AC COUNT ETC. IN RESPECT OF THE BUSINESS TRANSACTIONS. 3. FURTHER, AS PER PARA 7 OF THE ASSESSMENT ORDER I T HAS BEEN HELD BY THE ASSESSING OFFICER AS. THE ASSESSEE WAS REQUIRED TO PRODUCE THE BOOKS OF A/C ALONGWITH OTHER SUPPORTI NG EVIDENCES REGARDING JUSTIFICATION IN RESPECT OF ARR IVING AT COMMISSION INCOME OF RS. 1,82,275/-. HOWEVER, ASSESS EE FAILED TO PRODUCE DOCUMENTARY EVIDENCE IN THIS REGA RD AND EXPRESSED HIS INABILITY TO PRODUCE ANY DOCUMENTARY EVIDENCE IN RESPECT OF ARRIVING AT COMMISSION INCOM E OF RS. 1,82,275/-. 4. PERUSAL OF ASSESSMENT RECORD REVEALS THAT DURING THE PERIOD RELEVANT TO THE ASSESSING OFFICER UNDER CONSIDERATI ON CASH DEPOSITS TO THE TUNE OF RS. 46,58,400/- WERE MADE IN YOUR SAVINGS BANK ACCOUNT HELD WITH IDBI BANK. THE ASSESSI NG OFFICER HAD MADE ONLY CURSORY ENQUIRIES ON THE ISSU E AND HAD FAILED TO MAKE VERIFICATION OF THE SAID CASH DE POSITS SINCE THERE IS NOTHING ON RECORD TO SUGGEST THE MANNER OF VERIFICATION OF THE SAID CASH DEPOSITS IN THE FORM OF MAINTENANCE OF CASH BOOK OR FILING OF ANY CASH FLOW STATEMENT BY THE ASSESSEE AND IN THE ABSENCE OF HAV ING BROUGHT ON RECORD ANY SUCH DETAILS IT IS NOT CLEAR AS TO HOW THE ASSESSING OFFICER DREW THE CONCLUSION REGARDING THE SOURCE OF THE CASH DEPOSITS IN THE BANK ACCOUNT BEI NG FOUND ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 5 VERIFIABLE. THE ABOVE FACTUAL MATRIX REVEALS THAT TH E ASSESSING OFFICER HAD ISSUED THE ASSESSMENT ORDER WI THOUT MAKING ENQUIRIES OR VERIFICATION WHICH SHOULD HAVE B EEN MADE TO ASCERTAIN THE SOURCE AND NATURE OF CASH DEP OSITS TO THE TUNE OF RS. 46,58,400/- DURING THE PERIOD UNDER CONSIDERATION. 4. IN RESPONSE, THE ASSESSEE FILED THE FOLLOWING WRIT TEN SUBMISSIONS BEFORE THE LD. CIT ON 15/2/2016, WHICH IS AS UNDER:- 1. YOUR HONOUR HIMSELF STATED THAT AS PER QUESTION NAIRE THE LD. A.O. RAISED THE QUERY OF SOURCES OF CASH DEPOSITS I N THE SAVING ACCOUNT AND THE ASSESSEE SUBMITTED THE DETAI LED SUBMISSIONS IN REGARD TO SOURCES OF THE ENTIRE CASH DEPOSITS OF RS. 46,72,000/- TO THE UTMOST SATISFACTION OF T HE LD. A.O. AND BEING SATISFIED FROM THE FACTS AND CIRCUMSTANCE S OF THE CASE AND THE DETAILED SUBMISSIONS OF THE ASSESSEE B Y WAY OF WRITTEN SUBMISSIONS AND REPLIES DURING THE COURSE OF STATEMENTS OF THE ASSESSEE RECORDED ON 02/01/2014, THE LD. A.O. CONSIDERED THE SUBMISSIONS AND REPLIES AND COMPLETED THE ASSESSMENT BY ESTIMATING INCOME FROM COMMISSION AT RS. 2,33,600/- (5% OF TOTAL MOBILE RE -CHARGE VOUCHERS OF RS. 46,72,000/-, THE ENTIRE CASH DEPOSI TS IN THE BANK ACCOUNT) AGAINST THE INCOME OF RS. 1,82,275/- SHOWN BY THE ASSESSEE. 2. FURTHER AS EVIDENT FROM THE BANK STATEMENT OF ID BI ITSELF IT IS EVIDENT THAT OPENING BALANCE AS ON 01/04/2010 WAS RS. ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 6 83,436/- AND CLOSING BALANCE AS AT 31.03.2011 WAS RS . 544/- MEANING THEREBY THERE WAS NO PEAK CREDIT BUT T HAT THERE WAS PEAK WITHDRAWALS OF RS. 82,892/- (RS. 83,436 MINUS RS. 544/-), HENCE WHERE THERE IS NO PEAK CRED IT NO FURTHER JUSTIFICATION OF SOURCES OF WERE WARRANTED AS SALES RECEIPTS OF RECHARGE VOUCHERS RECEIVED AT TIME TO T IME WERE DEPOSITED IN THE BANK ACCOUNT TO PURCHASES THE RECH ARGE VOUCHERS FROM THE OPEN MARKET. 3. WHATEVER BOOKS OF ACCOUNTS MAINTAINED BY THE ASS ESSEE VIZ. BANK STATEMENT ETC. WERE EXAMINED BY THE LD. A. O. IN DEPTH AND AFTER HIS UTMOST SATISFACTION AND LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE AS EVIDENT FROM PARA NO. 7 AT PAGE 2 OF THE ASSESSMENT ORDER U/S 143(3) DATED 07/01/2014, HE ESTIMATED THE TOTAL INCOME FROM COMMISSION ON THE BASIS OF ESTIMATION AND HE ESTIMA TED TOTAL COMMISSION INCOME @ 5% OF TOTAL MOBILE RECHARG E OF RS. 46,72,000/- AT RS. 2,33,600/- AGAINST THE INCOM E OF RS. 1,82,275/- SHOWN BY THE ASSESSEE. 4. THE BUSINESS ACTIVITY OF THE TRADING RECHARGE VOU CHERS HAS NOT BEEN DISPUTED AT ANY TIME EITHER BY THE LD. A.O . OR BY YOUR HONOR. 5. THE ENTIRE CASH DEPOSIT OF RS. 46,72,000/- IS REL ATED TO RECEIPT OF MOBILE VOUCHERS SOLD HAS NEVER DISPUTED EITHER OF THE LD. A.O. OR BY YOUR HONOUR. ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 7 WITHOUT PREJUDICE TO ABOVE, IT IS HUMBLY SUBMITTED TO YOUR HONOUR THAT THE LD. A.O. AFTER GOING THROUGH THE MA TERIAL ON RECORD AFTER MAKING UTMOST EXAMINATION AND VERIF ICATION OF THE BOOKS OF ACCOUNTS AND COMPLETE RECORDS MAINT AINED AND AFTER CONSIDERING THE EXPLANATION OF THE ASSESS EE COMPLETED THE ASSESSMENT PROCEEDINGS AND THE LD. A. O. HAS ALREADY APPLIED HIS MIND AND CONSIDERED BOTH T HE ABOVE ISSUES AND AFTER MAKING HIS UTMOST SATISFACTI ON AND APPLYING HIS MIND, HE COMPLETED THE ASSESSMENT PROCEEDINGS U/S 143(3) OF THE IT ACT, 1961. THE HONBLE APEX COURT IN THE CASE OF CIT VS MAX IND IA LTD. (2007) 295 ITR 0282 (SC) HELD THAT THE PHRASE PREJUDICIAL TO THE INTEREST OF REVENUE IN SECTION 263 OF THE ACT, HAS TO BE READ IN CONJUNCTION WITH THE EXPRESSI ON ERRONEOUS ORDER PASSED BY THE AO. EVERY LOSS OF R EVENUE AS A CONSEQUENCE OF AN ORDER OF THE A.O. CANNOT BE TREATED AS PREJUDICIAL TO THE INTEREST OF REVENUE. FOR EXAM PLE, WHEN THE A.O. ADOPTS ONE OF THE TWO COURSE OF PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE, OF WHERE TWO VIEWS ARE POSSIBLE AND THE A.O. HAS TAKEN ONE VIEW WITH WHIC H THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREAT ED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE REVENUE, UNLE SS THE VIEW TAKEN BY THE A.O. IS UNSUSTAINABLE IN LAW. THE RATIO OF THIS JUDGMENT OF THE HONBLE APEX COURT HAS BEE N FOLLOWED IN JUDGMENT OF HONBLE JODHPUR BENCH OF ITA T IN ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 8 THE CASE OF M/S DEVIJI EXPORTS, JODHPUR VS. ITO 48 TAX WORLD 99. THE HONBLE INDORE BENCH OF ITAT IN THE CASE OF MANI SH KUMAR VS. CIT 134 ITD 27 (INDORE) (TRIB) HAS HELD THA T IF THE A.O. ACTING IN ACCORDANCE WITH LAW MAKES CERTAIN ASSESSMENT, SAME CANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE HE DISAGREES WITH THE VI EW OF THE A.O. OR ACCORDING TO HIM THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY. THEREFORE, SECTION 263 DOES NOT VISUALIZE A CASE OF SUBSTITUTION OF JUDGMENT OF COM MISSION FROM THE ITO, WHO PASSED ORDER, UNLESS DECISION IS HE LD TO BE ERRONEOUS. IN THE CASE OF CIT VS GIRDHARI LAL (2002) 176 CTR (R AJ) 0092/258 ITR 331 (RAJ) DBIT REF. NO. 3 OF 1987 (JURISDICTIONAL HIGH COURT) HELD THAT WHEN THE A.O. AFTER GOING THROUGH THE MATERIAL ON RECORD AND AFTER CONS IDERING THE EXPLANATION OF THE ASSESSEE, COMPLETED THE ASSESSMENT, IT CANNOT BE SAID THAT HE HAS NOT APPLI ED HIS MIND. IN THE CASE OF M/S HYCRON INDIA VS. ACIT (ITA NO. 622/JP/1996) ITAT JODHPUR BENCH 30 TAX WORLD 232 HEL D THAT AN ASSESSMENT ORDER PASSED BY A.O. CANNOT BE SUBJECTED TO REVISION U/S 263 ON THE ISSUE ON WHICH THE A.O. HAS APPLIED HIS MIND WHILE PASSING THE ORDER. F URTHER HELD THAT MERELY THE POSSIBILITY OF ANOTHER VIEW OF THE ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 9 MATTER WILL NOT JUSTIFY INVOKING OF THE PROVISIONS O F SECTION 263. EVERY LOSS OF REVENUE AS A CONSEQUENCE OF THE ORDER OF THE A.O. CANNOT BE TREATED AS PREJUDICIAL TO THE INTEREST OF REVENUE. PROVISIONS OF SECTION 263 CANNOT BE INV OKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR COMMITTED BY THE A.O. IT HAS ALSO BE HELD THAT A.O. HAD APPLIED HIS MIND TO THE FACTS OF THE CASE BEFORE ALLOWING EXEMPTION A ND THIS IS ONLY A CASE OF SUBSTITUTION OF OPINION BY THE HI GHER AUTHORITIES. IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS. CIT (2000) 243 ITR 83 (SC) IT RULES THAT THIS PROVISION CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE O R ERROR COMMITTED BY THE A.O. IN THE CASE OF GABERIERL INDIA LTD. 203 ITR 108 (B OM) HELD THAT CIT CANNOT REVISE ORDER MERELY BECAUSE HE DISAG REES WITH CONCLUSION ARRIVED BY THE ITO AND CONCLUSION AR RIVED BY THE ITO CANNOT BE TERMED AS ERRONEOUS SIMPLY BEC AUSE THE CIT DOES NOT FEEL SATISFIED WITH THE CONCLUSION O F THE ITO. IN THE CASE OF BALJEES VS. ACIT (2004) 85 TTJ (CHD) 543 HELD THAT CIT CANNOT SUBSTITUTE HIS SUBJECTIVE VIEW I N PLACE OF FINDINGS OF A.O. THE CIT CANNOT SIT IN JUDGMENT FO R THE DISCRETION EXPRESSED BY A.O. WHERE DETAILED ENQUIRI ES HAVE BEEN MADE BY THE A.O., CIT WAS NOT JUSTIFIED IN CANCE LLING THE ASSESSMENT U/S 263 ON THE GROUND THAT ASSESSMEN T ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 10 HAD BEEN MADE IN UNDUE HASTE WITHOUT MAKING DESIRED ENQUIRIES. IN THE CASE OF CIT VS ARVIND JEWELLERS 124 TAXMAN 615 (GUJ) HELD THAT WHERE ALL THE MATERIAL WERE ON RECOR D, THE SAID MATERIAL WAS CONSIDERED BY THE ITO AND PARTICULA R VIEW WAS TAKEN, THE MERE FACT THAT DIFFERENT VIEW COUL D BE TAKEN, SHOULD NOT BE THE BASIS FOR AN ACTION U/S 26 3. HENCE, THEREFORE, THE ASSESSMENT ORDER PASSED U/S 143(3) BY THE LD. A.O. IS NOT ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE ON THE TWO GROUNDS MENTIONED BY YOUR HONOUR. THEREFORE, YOUR HONOUR IS KINDLY PRAYED TO P LEASE DROP THE PROCEEDINGS INITIATED BY YOUR HONOUR U/S 2 63 OF THE IT ACT, 1961 AND OBLIGE. 5. DISSATISFIED, VIDE LETTER DATED 22/2/2016, THE L D. CIT REQUIRED THE ASSESSEE TO FILE A WRITTEN REPLY, DULY SUPPORTED BY DOCUMENTARY EVIDENCE. 6. IN HIS REPLY DATED 03/3/2016, THE ASSESSEE REQUE STED THE LD. CIT TO CONSIDER THE WRITTEN SUBMISSIONS FILED BY THE ASSESS EE ON 15/2/2016. 7. BY VIRTUE OF THE IMPUGNED ORDER, THE LD. CIT SET ASIDE THE ASSESSMENT ORDER AND DIRECTED THE ASSESSING OFFICER TO PROPERLY EXAMINE ALL THE ISSUES RAISED AND TO PASS A FRESH ASSESSMEN T ORDER AFTER MAKING PROPER ENQUIRIES AND AFTER AFFORDING ADEQUATE OPPOR TUNITY TO THE ASSESSEE. THE LD. CIT OBSERVED THAT NO DETAILS REGARD ING THE BUSINESS OF ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 11 RECHARGE VOUCHERS HAD BEEN FURNISHED IN THE ASSESSM ENT PROCEEDINGS, NOR ANY SUCH DETAILS HAD BEEN FILED IN THE REVISION PROCEEDINGS. DUE TO WHICH, THE ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDI CIAL TO THE INTEREST OF REVENUE. IT WAS OBSERVED AS UNDER:- 1. THE ASSESSING OFFICER HAS FAILED TO MAKE PROPER INVESTIGATION TO DETERMINE THE SOURCE OF THE CASH D EPOSITS IN THE BANK ACCOUNTS. THE SOURCE OF THE APPARENT SOURCE IS A RELEVANT ENQUIRY. THAT, THE ASSESSING OFFICER HAS FA ILED TO APPLY HIS MIND TO ALL ASPECTS OF THE CASE IS THEREF ORE SELF- EVIDENT. SUCH NON-APPLICATION OF MIND CONSTITUTED P ASSING OF AN ERRONEOUS ORDER WHICH IS ALSO PREJUDICIAL TO THE INTEREST OF REVENUE. 1.2. WHEN THE REQUISITE ENQUIRY WAS NOT MADE, THE O RDER IS BOUND TO BE ERRONEOUS AND PREJUDICIAL TO THE INTERE ST OF THE REVENUE. NO INQUIRY ON THE SALE/PURCHASE OF MOBILE RECHARGE COUPONS AND THE NATURE OF CASH DEPOSITS IN BANK ACCOUNT AT BHARATPUR AND WITHDRAWN AT JAIPUR WAS MADE BY THE ASSESSING OFFICER. THE ONUS TO EXPLAIN THE SAME WAS ON THE ASSESSEE WHICH IT HAS FAILED TO DISCHARGE. FURTH ER, DURING THE AY 2010-11, THE ASSESSEE HAS DECLARED IN COME FROM TUITION AND NOT MOBILE RECHARGE. IF THE RELEVA NT ENQUIRY WAS NOT MADE IT MAY IN APPROPRIATE CASES AMOUNT TO N O ENQUIRY AND MAY ALSO BE A CASE OF NON-APPLICATION O F MIND. ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 12 1.3 WHERE THE RELEVANT ENQUIRY WAS NOT UNDERTAKEN, A S IN THIS CASE, THE ORDER IS ERRONEOUS AND PREJUDICIAL TOO AN D THEREFORE REVISABLE. INVESTIGATION SHOULD ALWAYS BE FAITHFUL AND FRUITFUL. UNLESS ALL FRUITFUL AREAS OF ENQUIRY ARE PURSUED THE ENQUIRY CANNOT BE SAID TO HAVE BEEN FAITHFULLY CONDUCTED. 1.4 IN A. GOVINDARAJULU MUDALIAR V. CIT [1958] 34 ITR 807, THE HON'BLE SUPREME COURT OBSERVED THAT IT WAS NOT THE D UTY OF THE REVENUE TO ADDUCE EVIDENCE TO SHOW FROM WHAT SOUR CE, INCOME WAS DERIVED AND WHY IT SHOULD BE TREATED AS CONCEALED INCOME. THE ASSESSEE MUST PROVE SATISFACTO RILY THE SOURCE AND NATURE OF CASH RECEIVED DURING THE ACCOUNTING YEAR. SIMILAR OBSERVATIONS WERE MADE IN C IT VS. M. GANAPATHI MUDALIAR [1964] 53 ITR 623 (SC), INTER ALIA HOLDING THAT IT WAS NOT NECESSARY FOR THE REVENUE TO LOCATE THE EXACT SOURCE. 8. THE LD. CIT HELD THAT IN THE PRESENT CASE, NO ENQ UIRY/VERIFICATION HAD BEEN CONDUCTED BY THE ASSESSING OFFICER ON THE ISSUES COVERED BY THE NOTICE ISSUED U/S 263 OF THE ACT. THE LD. CIT CON CLUDED BY HOLDING AS UNDER:- IN VIEW OF THE ABOVE, THE ORDER PASSED BY THE AO FO R ASSESSMENT YEAR 2011-12 DATED 07/01/2014 IS DEEMED TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT ERESTS OF THE REVENUE, AS I AM OF THE OPINION THAT THE ORDER HAS BEEN ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 13 PASSED WITHOUT MAKING INQUIRIES OR VERIFICATION WHICH SHOULD HAVE BEEN MADE. I, THEREFORE, CANCEL THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) ON 07/01 /2014 WITH THE DIRECTION TO THE ASSESSING OFFICER TO PASS THE ASSESSMENT ORDER AFTER CONSIDERING THE ABOVE MENTIO NED ISSUE, APART FROM OTHER ISSUES DISCUSSED IN THE ASS ESSMENT ORDER DATED 07/01/2014 AND ALSO THE ISSUES WHICH MA Y SUBSEQUENTLY COME INTO THE NOTICE OF THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS U/S 143(3)/263 OF THE INCOME TAX ACT, 1961. CONSEQUENTLY, THE ORDER PASSE D U/S 143(3) OF THE ACT IS SET ASIDE UNDER SECTION 263 OF THE ACT WITH THE DIRECTION THAT THE AO SHOULD PROPERLY EXAMINE A LL THE ISSUES RAISED IN THE FOREGOING PARAS AND PASS THE A SSESSMENT ORDER AFRESH AFTER MAKING PROPER ENQUIRIES AND AFTE R AFFORDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. 9. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE LD. CIT(A) HAS ERRED IN INITIATING PROCEEDINGS U/S 2 63 OF THE ACT AND CANCELLING THE ASSESSMENT ORDER, DIRECTING THE ASSE SSING OFFICER TO PASS A FRESH ASSESSMENT ORDER; THAT THE ORDER PASSED BY TH E ASSESSING OFFICER IS NOT AT ALL EITHER ERRONEOUS OR PREJUDICIAL TO THE I NTERESTS OF THE REVENUE; THAT VIDE THE QUESTIONNAIRE ISSUED BY THE ASSESSING OFFICER THE ASSESSEE, THE ASSESSING OFFICER HAD MADE ENQUIRY ABOUT THE S OURCES OF THE CASH DEPOSITS IN THE SAVINGS ACCOUNT OF THE ASSESSEE; TH AT THE ASSESSEE HAD SUBMITTED DETAILS SUBMISSIONS; THAT IT WAS ONLY ON B EING SATISFIED WITH THE ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 14 ASSESSEES REPLY, THAT THE ASSESSING OFFICER COMPLE TED THE ASSESSMENT BY ESTIMATING THE ASSESSEES INCOME FROM COMMISSION AT RS. 2,33,600/-, I.E., 5% OF THE TOTAL MOBILE RECHARGE VOUCHERS OF RS. 46, 72,000/-, THE ENTIRE CASH DEPOSITS IN THE BANK ACCOUNT, AGAINST THE INCO ME OF RS. 1,82,275/-, AS SHOWN BY THE ASSESSEE; THAT EVEN AS PER BANK STA TEMENT OF IDBI, AS FILED BY THE ASSESSEE, THERE WAS NO PEAK CREDIT, THE SALES RECEIPTS OF RECHARGE VOUCHERS HAVING BEEN DEPOSITED BY THE ASSE SSEE FROM TIME TO TIME; THAT AS AVAILABLE FROM PARA 7 OF THE ASSESSME NT ORDER ITSELF, THE ASSESSING OFFICER DULY EXAMINED THE MATERIAL ON REC ORD AND IT WAS SORTED THAT HE ESTIMATED THE TOTAL COMMISSION INCOME, THAT THE BUSINESS ACTIVITY OF THE ASSESSEE HAS NOT BEEN CHALLENGED, NOT ONLY B Y THE ASSESSING OFFICER BUT ALSO BY THE LD. CIT; THAT IT HAS ALSO NO T BEEN DISPUTED THAT THE ENTIRE CASH DEPOSITS RELATES TO RECEIPT OF MOBILE V OUCHERS SOLD; THAT THE ASSESSING OFFICER CARRIED OUT EXAMINATION OF THE MA TTER TO HIS SATISFACTION AND PASSED ASSESSMENT ORDER ON DUE APPLICATION OF M IND; THAT ALL POSSIBLE ENQUIRIES WERE DULY MADE BY THE ASSESSING OFFICER; THAT THE STATEMENT OF THE ASSESSEE U/S 131 OF THE ACT WAS REC ORDED ON 02/1/2014; THAT THE LD. CIT HAS ERRED IN REFERRING T O THE AMENDMENT TO SECTION 263 OF THE ACT, WHICH WAS BROUGHT ABOUT ONLY AFTER THE PASSING OF THE ASSESSMENT ORDER; THAT AS SUCH, ORDER UNDER APP EAL IS UNSUSTAINABLE ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 15 IN LAW; AND THAT, THEREFORE, THE ORDER UNDER APPEAL BE CANCELLED AND THE ASSESSMENT ORDER BE MAINTAINED. 10. ON THE OTHER HAND, THE CIT DR HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER. IT HAS BEEN SUBMITTED THAT UNDISPUT EDLY, THE ASSESSING OFFICER HAD NOT MADE PROPER ENQUIRIES WITH REGARD T O THE SOURCE OF THE CASH DEPOSITS IN THE ASSESSEES SAVINGS BANK ACCOUN T; THAT THE ASSESSEE HAD HIMSELF STATED BEFORE THE ASSESSING OFFICER THA T HE DID NOT MAINTAIN ANY DETAILS OR BOOKS OF ACCOUNT, ETC., IN RESPECT O F HIS BUSINESS TRANSACTIONS; THAT IN PARA 7 OF THE ASSESSMENT ORDE R, THE ASSESSING OFFICER HIMSELF OBSERVED THAT THE ASSESSEE FAILED T O PRODUCE DOCUMENTARY EVIDENCE AND EXPRESSED HIS INABILITY TO DO SO WITH R EGARD TO ARRIVING AT THE COMMISSION INCOME OF RS. 1,82,275/-; THAT WITH R EGARD TO THE CASH DEPOSITS, THE ASSESSING OFFICER DID NOT CARRY OUT R EQUISITE ENQUIRIES; THAT THE ASSESSING OFFICER MADE ONLY CURSORY ENQUIRIES, FAILING TO MAKE VERIFICATION OF THE CASH DEPOSITS. PARTICULARLY, IN ABSENCE OF NOTHING ON RECORD TO SHOW THE MANNER OF VERIFICATION OF THE CAS H DEPOSITS; THAT THERE WAS NO CASH BOOKS MAINTAINED BY THE ASSESSEE; THAT N O CASH FLOW STATEMENT WAS ALSO FILED; THAT AS SUCH, THE ASSESSME NT ORDER DOES NOT EVINCE AS TO HOW THE ASSESSING OFFICER ARRIVED AT TH E CONCLUSION WHICH HE DID, CONCERNING THE SOURCE OF CASH DEPOSIT; THAT TH E ASSESSING OFFICER ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 16 PASSED THE ASSESSMENT ORDER WITHOUT MAKING ENQUIRIES OR VERIFICATION WHICH SHOULD HAVE BEEN MADE SO AS TO ASCERTAIN THE S OURCE AND NATURE OF THE CASH DEPOSITS AMOUNTING TO RS. 46,58,400/-; THAT AS CORRECTLY OBSERVED BY THE LD. CIT, THE SOURCE OF THE APPARENT SOURCE IS A RELEVANT ENQUIRY, WHICH WAS NOT MADE BY THE ASSESSING OFFICER IN THE PRESENT CASE; THAT THE ASSESSING OFFICER DID NOT MAKE ANY E NQUIRY REGARDING THE SALE/PURCHASE OF MOBILE RECHARGE COUPONS AND THE NA TURE OF CASH DEPOSITS IN THE BANK ACCOUNT AT BHARATPUR AND WITHDR AWALS MADE AT JAIPUR; THAT IT DOES NOT STAND DISPUTED THAT AS OBS ERVED BY THE LD. CIT, DURING A.Y. 2010-11, I.E., THE IMMEDIATELY PRECEDIN G ASSESSMENT YEAR, THE ASSESSEE HAD DECLARED INCOME FROM TUITION AND N OT FROM MOBILE RECHARGE; THAT NO RELEVANT ENQUIRY WAS UNDERTAKEN BY THE ASSESSING OFFICER IN THIS REGARD; THAT, THEREFORE, OBVIOUSLY, THE LD. CIT WAS CORRECT IN INITIATING THE PROCEEDINGS U/S 263 OF THE ACT AND I N SETTING ASIDE THE ASSESSMENT ORDER TO BE PASSED AFRESH AFTER MAKING P ROPER ENQUIRIES; AND THAT, THEREFORE, THE APPEAL FILED BY THE ASSESSEE D OES NOT CARRY ANY MERIT AND THE SAME BE DISMISSED. 11. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON THE RECORD. AS PE R THE RECORD, THE ASSESSEE DERIVES INCOME FROM SHORT TERM CAPITAL GAI N, INCOME FROM OTHER ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 17 SOURCES AND INCOME FROM COMMISSION OF MOBILE RECHAR GES. FOR THE YEAR UNDER CONSIDERATION, THE ASSESSING OFFICER NOTICED THE ASSESSEE TO HAVE CARRIED OUT THE BUSINESS OF EARNING COMMISSION ON D EALINGS OF RECHARGE VOUCHERS OF VARIOUS PREPAID MOBILE COMPANIES. THE AS SESSEE HAD EARNED NET COMMISSION INCOME OF RS. 1,82,275/- ON TOTAL TR ANSACTIONS OF MOBILE RECHARGE VOUCHERS OF RS. 46,72,000/-, TOWARDS SERVIC E RENDERED. THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNT ALONGWITH OTHER SUPPORTING EVIDENCE, SO AS TO JUSTI FY ARRIVING AT THE COMMISSION INCOME OF RS. 1,82,275/-. THE ASSESSEE, H OWEVER, FAILED TO PRODUCE ANY DOCUMENTARY EVIDENCE IN THIS REGARD. THE ASSESSEE EXPRESSED HIS INABILITY TO PRODUCE ANY DOCUMENTARY EVIDENCE IN RESPECT OF ARRIVING AT THE COMMISSION INCOME OF RS. 1,82,275/- . THE ASSESSING OFFICER OBSERVED THAT LOOKING AT THE FACTS AND CIRC UMSTANCES OF THE CASE AND IN ABSENCE OF ANY DOCUMENTARY EVIDENCE CONCERNI NG OF SHOWING OF COMMISSION INCOME AT RS. 1,82,275/-, HE WAS LEFT WITH NO OPTION BUT TO COMPUTE THE TOTAL INCOME ON THE BASIS OF ESTIMATION . THE ASSESSING OFFICER ARRIVED AT AN ESTIMATED INCOME OF COMMISSIO N OF RS. 2,33,600/-, WHICH WAS 5% OF THE TOTAL MOBILE RECHARGE VOUCHERS OF RS. 46,72,000/-. 12. THE LD. CIT IS OF THE VIEW THAT THE ASSESSING OFFI CER HAD NOT MADE PROPER ENQUIRIES REGARDING THE SOURCE OF THE CASH D EPOSITS BY THE ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 18 ASSESSEE IN HIS SAVINGS BANK ACCOUNT. AS PER THE LD . CIT, DESPITE THE FACT THAT, IN HIS REPLY, IN HIS STATEMENT RECORDED U/S 1 31 OF THE ACT, WHEREBY, THE ASSESSEE HAD STATED THAT HE DID NOT MAINTAIN AN Y DETAIL OR BOOKS OF ACCOUNT ETC. IN RESPECT OF BUSINESS TRANSACTIONS AN D DESPITE THE FACT THAT THE ASSESSEE FAILED TO PRODUCE DOCUMENTARY EVIDENCE REGARDING JUSTIFICATION IN RESPECT OF ARRIVING AT COMMISSION INCOME OF RS. 1,82,275/-. THE ASSESSING OFFICER DID NOT MAKE PROPER ENQUIRIES INTO THE MATTER. THE LD. CIT IS OF THE OPINION THAT THERE IS NOTHING ON R ECORD AS TO THE MANNER OF VERIFICATION CARRIED OUT BY THE ASSESSING OFFICE R WITH REGARD TO THE CASH DEPOSITS. THUS, ACCORDING TO THE LD. CIT, THE ASSESSI NG OFFICER HAD MADE ONLY CURSORY ENQUIRES ON THE ISSUE. THE LD. CIT HAS O BSERVED THAT THE ASSESSING OFFICER DID NOT BRING ON RECORD ANY DETAI LS WITH REGARD TO THE CASH DEPOSITS, LIKE MAINTENANCE OF CASH BOOK OR FIL ING OF ANY CASH FLOW STATEMENT BY THE ASSESSEE AND SO, IT IS NOT CLEAR A S TO HOW, THE ASSESSING OFFICER DREW THE CONCLUSION REGARDING THE SOURCE OF THE CASH DEPOSITS HAVING BEEN FOUND VERIFIABLE. THE LD. CIT HAS FURTHER OBSERVED THAT DESPITE THE ASSESSEE HAVING BEEN PROVIDED AN OPPORT UNITY TO FILE A WRITTEN REPLY DULY SUPPORTED WITH DOCUMENTARY EVIDENC E, THE ASSESSEE DID NOT DO SO. HE OBSERVED THAT NEITHER ANY DETAILS REGARDING THE CARRYING OUT THE SO CLAIMED BUSINESS OF RECHARGE VOUCHERS WER E FOUND TO HAVE ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 19 BEEN FURNISHED DURING THE ASSESSMENT PROCEEDINGS, N OR ANY SUCH DETAILS TO PROVE SUCH ACTIVITIES WERE ADDUCED BEFORE HIM (LD . CIT). IT WAS OBSERVED THAT THE SOURCE OF THE APPARENT SOURCE IS A RELEVANT ENQUIRY AND THE ASSESSING OFFICER FAILED TO MAKE PROPER INVESTI GATION TO DETERMINE THE SOURCE OF CASH DEPOSITS; THAT THE ASSESSING OFFICER FAILED TO APPLY HIS MIND TO ALL ASPECTS OF THE CASE; THAT NO REQUISITE ENQUIRY WAS MADE BY THE ASSESSING OFFICER; THAT RELEVANT ENQUIRY WAS NOT UNDERTAKEN BY THE ASSESSING OFFICER; AND THAT AS SUCH, THE ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. 13. IT IS SEEN THAT IN THE QUESTIONNAIRE ISSUED TO THE ASSESSEE BY THE ASSESSING OFFICER, THE ASSESSING OFFICER RAISED THE QUERY REGARDING THE SOURCE OF CASH DEPOSIT. THE REPLY FILED BY THE ASSES SEE WAS CONSIDERED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER NEVER Q UESTIONED THE ASSESSEES BUSINESS OF EARNING COMMISSION ON DEALIN GS OF RECHARGE VOUCHERS OF VARIOUS PREPAID MOBILE COMPANIES. THE AS SESSEE FAILED TO PRODUCE DOCUMENTARY EVIDENCE. HOWEVER, HIS STATEMENT U/S 131 OF THE ACT WAS RECORDED AND HIS REPLIES FILED WERE TAKEN INT O CONSIDERATION. THE ASSESSING OFFICER ESTIMATED THE INCOME OF COMMISSIO N AT RS. 2,33,600/- BEING 5% OF TOTAL MOBILE RECHARGE VOUCHERS AT RS. 4 6,72,000/-, WHICH REPRESENTED THE ENTIRE CASH DEPOSITS MADE BY THE AS SESSEE IN HIS BANK ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 20 ACCOUNT. AS PER THE BANK STATEMENT OF IDBI, THE OPE NING BALANCE IN THE ACCOUNT AS ON 01/4/2010 WAS OF RS. 83,436/-, THE CLO SING BALANCE AS ON 31/3/2011 WAS OF RS. 544/-. AS SUCH, THERE WAS NO PEA K CREDIT BUT THERE WERE WITHDRAWALS OF RS. 82,892/-. THE RECEIPTS OF RECHA RGE VOUCHERS WERE DEPOSITED IN THE BANK ACCOUNT, THE ASSESSEE HAS MAINTAINED SO. IT WAS ON THE BASIS OF THE ABOVE, THAT THE ESTIMATION WA S RESORTED TO BY THE ASSESSING OFFICER. IN FACT, THE ASSESSING OFFICER H AS HIMSELF OBSERVED THAT IT WAS LOOKING AT THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN ABSENCE OF ANY DOCUMENTARY EVIDENCE WITH REGARD TO SHOWING OF COMMISSION INCOME AT RS. 1,82,275/-, THAT THE TOTAL COMMISSION INCOME WAS BEING COMPUTED ON THE BASIS OF ESTIMATION. 14. THE LD. CIT, IT IS SEEN, HAS GONE BY THE AMENDMEN T OF SECTION 263 OF THE ACT, BROUGHT IN ON 01/6/2015. AS PER THIS AM ENDMENT, INTER ALIA, IT HAS BEEN PROVIDED THAT AN ORDER PASSED BY THE ASSES SING OFFICER SHALL BE DEEMED TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICI AL TO THE INTERESTS OF THE REVENUE, IF, IN THE OPINION OF THE PRINCIPAL COMMIS SIONER OR COMMISSIONER, THE ORDER IS PASSED WITHOUT MAKING ENQ UIRIES OR VERIFICATION WHICH SHOULD HAVE BEEN MADE. A READING OF THE IMPUGNED ORDER SHOWS THAT THE STRESS OF THE LD. CIT IS ON EN QUIRIES OR VERIFICATION WHICH SHOULD HAVE BEEN MADE. ON THROUGH THE ORDER U NDER APPEAL, THE ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 21 LD. CIT IS OF THE OPINION THAT THE ASSESSING OFFICER HAS NOT MADE ENQUIRIES, WHICH SHOULD HAVE BEEN MADE OR PROPER I NVESTIGATION, OR REQUISITE ENQUIRY, OR RELEVANT ENQUIRY. THE LD. CIT, HOWEVER, HAS REMAINED OBLIVIOUS OF THE FACT THAT WHEREAS THE AFOR ESAID AMENDMENT IN SECTION 263 HAS BEEN BROUGHT ABOUT W.E.F. 01/6/2015, THE ASSESSMENT ORDER UNDER CONSIDERATION WAS PASSED ON 07/1/2014. TH AT BEING SO, THE AMENDED PROVISIONS OF SECTION 263 DID NOT APPLY TO THE ASSESSMENT ORDER IN QUESTION. THE LAW HAS APPLICABLE TO THE PRE-AMENDE D PROVISIONS OF SECTION 263 IS THAT, INTER ALIA, ONLY IN CASE OF NO ENQUIRY OR IN A CASE OF AN ILLEGAL ORDER AND THE PROVISIONS OF SECTION 263 BE INVOKED. THE PRESENT, ON THE OTHER HAND, IS NOT A CASE OF NO ENQUIRY. AS DISCUSSED, THE ASSESSING OFFICER HAS MADE ENQUIRY AND INVESTIGATION INTO THE MATTER ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. THE E STIMATION OF THE INCOME SHOWS DUE APPLICATION OF MIND BY THE ASSESSIN G OFFICER. IT IS ONLY THAT THE LD. CIT HAS SOUGHT TO SUBSTITUTE HIS OPINIO N FOR THAT OF THE ASSESSING OFFICER, WHICH IS IMPERMISSIBLE IN LAW. 15. IN CIT VS. MAX INDIA LTD., (2007) 295 ITR 282 ( SC), IT HAS BEEN HELD THAT THE PHRASE PREJUDICIAL TO THE INTEREST O F REVENUE IN SECTION 263 OF THE ACT HAS TO BE READ IN CONJUNCTION WITH TH E EXPRESSION ERRONEOUS ORDER PASSED BY THE ASSESSING OFFICER; THAT EVERY LOSS OF THE ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 22 REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSI NG OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVE NUE; THAT WHEN THE ASSESSING OFFICER ADOPTS ONE OF THE TWO COURSES PERM ISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE, OR WHERE TWO VIEWS AR E POSSIBLE AND THE ASSESSING OFFICER HAS TAKEN ONE VIEW WITH WHICH THE CO MMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS OR DER PREJUDICIAL TO THE REVENUE, UNLESS, THE VIEW TAKEN BY THE ASSESSING OFF ICER IS UNSUSTAINABLE IN LAW. IN THE PRESENT CASE, IT HAS NOT BEEN SHOWN TH AT THE COURSE ADOPTED BY THE ASSESSING OFFICER WAS NOT A COURSE PE RMISSIBLE IN LAW, NOR HAS THE VIEW TAKEN BY THE ASSESSING OFFICER BEING SH OWN TO BE UNSUSTAINABLE IN LAW. 16. IN CIT VS GIRDHARI LAL, 258 ITR 331 (RAJ), IT H AS BEEN HELD BY THE HONBLE JURISDICTIONAL HIGH COURT THAT WHEN THE ASSE SSING OFFICER COMPLETED THE ASSESSMENT AFTER GOING THROUGH THE MA TERIAL ON RECORD AND AFTER CONSIDERING THE EXPLANATION OF THE ASSESS EE, IT CANNOT BE SAID THAT HE HAS NOT APPLIED HIS MIND. IN THE CASE BEFOR E US, THE ASSESSING OFFICER HAS ESTIMATED INCOME OF THE ASSESSEE AFTER GOING THROUGH THE MATERIAL ON RECORD AND CONSIDERING THE EXPLANATION OF THE ASSESSEE. 17. IN GABERIAL INDIA LTD., 203 ITR 108 (BOM), IT HAS BEEN HELD THAT THE CIT CANNOT REVISE THE ASSESSMENT ORDER MERELY BE CAUSE HE DISAGREES ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 23 WITH THE CONCLUSION ARRIVED AT BY THE ASSESSING OFFI CER AND THE CONCLUSION ARRIVED AT BY THE ASSESSING OFFICER CANNOT BE TERME D AS ERRONEOUS, SIMPLY BECAUSE THE CIT DOES NOT FEEL SATISFIED WITH THE CONC LUSION OF THE ASSESSING OFFICER. 18. IN BABERWAD SHIKSHA SAMITEE VS CIT(E), (2016) 1 77 TTJ 380 (JP), THIS BENCH OF THE TRIBUNAL HAS HELD THAT WHERE THE AS SESSING OFFICER HAS FORMED A VIEW BUT THE LD. CIT HAS FORMED ANOTHER VIEW ON THE SAME FACTS AND CIRCUMSTANCES OF THE CASE, CHANGE OF OPINION IS NOT POSSIBLE UNDER THE LAW. IN MANISH KUMAR VS CIT, 134 ITD 27 (INDORE ) (TRIB), IT HAS BEEN HELD THAT IF THE ASSESSING OFFICER, ACTING IN ACCORDANCE WITH LAW, MAKES CERTAIN ASSESSMENT, THE SAME CANNOT BE BRANDE D AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE HE DISAGREES WITH TH E VIEW OF THE ASSESSING OFFICER OR, ACCORDING TO HIM, THE ORDER S HOULD HAVE BEEN WRITTEN MORE ELABORATELY; AND THAT SECTION 263 DOES NOT VISUALIZE A CASE OF SUBSTITUTION OF JUDGMENT OF THE COMMISSIONER FOR THAT OF THE ASSESSING OFFICER, WHO PASSED THE ORDER, UNLESS HIS DECISION I S HELD TO BE ERRONEOUS. 19. IN VIEW OF THE ABOVE DISCUSSION, WE HOLD THAT TH E LD. CIT ERRED IN INITIATING PROCEEDINGS U/S 263 OF THE ACT AND IN SE TTING ASIDE THE ASSESSMENT ORDER DIRECTING THE ASSESSING OFFICER TO FRAME THE ASSESSMENT ITA 414/JP/2016_ MANJUL CHANDANI VS CIT 24 AFRESH AFTER MAKING PROPER ENQUIRIES. ACCORDINGLY, THE ORDER UNDER APPEAL IS CANCELLED AND THE ORDER PASSED BY THE ASSESSING OFFICER IS REVIVED. 20. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15/09/2016. SD/- SD/- FOE FLAG ;KNO , - MH TSU (VIKRAM SINGH YADAV) (A.D. JAIN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 15 TH SEPTEMBER, 2016 * RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI MANJUL CHANDANI, BHARATPUR. 2. IZR;FKHZ@ THE RESPONDENT- THE CIT, ALWAR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 414/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR