Sh. Narain Singla, Mandi Gobindgarh V. Principal Commissioner of Income Tax, Ludhiana

ITA 427/CHANDI/2015

• Counselvise Citation: 42721514 RSA 2015
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 21-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Assessee Lawyers: SUDHIR SEHGAL
• Keywords: Revision of order; Opportunity of being heard; Difference of opinion; Assessment record
• Section: 68; 263; 132; 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI H.L.KARWA, VICE PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO.427/CHD/2015 (ASSESSMENT YEAR : 2011-12) SH.NARAIN SINGLA, VS. PRINCIPAL COMMISSIONER PROP. M/S NARAIN & COMPANY, OF INCOME TAX, (CENTRAL), 379, SECTOR 3-C, BLOCK C, LUDHIANA. MANDI GOBINDGARH. PAN: AEFPS0754N ITA NO.423/CHD/2015 (ASSESSMENT YEAR : 2011-12) SMT. SHASHI SINGLA, VS. PRINCIPAL COMMISSIONER OF MANDI GOBINDGARH INCOME TAX (CENTRAL), LUDHIANA PAN: AEFPS0750J ITA NO.425/CHD/2015 (ASSESSMENT YEAR : 2011-12) SH. GOPAL SINGLA, VS. PRINCIPAL COMMISSIONER OF MANDI GOBINDGARH INCOME TAX (CENTRAL), LUDHIANA PAN: AEWPS7387E & ITA NO.426/CHD/2015 (ASSESSMENT YEAR : 2011-12) SMT. LATA SINGLA, VS. PRINCIPAL COMMISSIONER OF MANDI GOBINDGARH INCOME TAX (CENTRAL), LUDHIANA PAN: AEFPS0751K (APPELLANT) (RESPONDENT) 2 APPELLANT BY : SHRI SUDHIR SEHGAL RESPONDENT BY : SHRI S.K.MITTAL, DR DATE OF HEARING : 19.08.2015 DATE OF PRONOUNCEMENT : 31.08.2015 O R D E R PER RANO JAIN, A.M . : THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), LUDHIANA DATED 2.3.2015 FOR ASSESSMENT Y EAR 2011-12 IN ALL THE CASES. 2. SINCE THE ISSUES ARE THE SAME IN ALL THE APPEALS , WE ARE ADJUDICATING THEM TOGETHER. FIRST, WE WILL TAKE UP APPEAL IN ITA NO. 427/CHD./2015. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE FILED HIS RETURN OF INCOME AS ON 24.9.2011 DECLARING INCO ME OF RS.1,94,75,810/-. THE ASSESSMENT WAS COMPLETED UND ER SECTION 143(3) R.W.S. 153A OF THE ACT AS ON 31.1.20 13 ASSESSING THE INCOME AT RS.1,98,15,490/-. 4. LATER ON, ON PERUSAL OF THE ASSESSMENT RECORD T HE LEARNED COMMISSIONER OF INCOME TAX FORMED THE VIEW THAT THE ORDER SO MADE BY THE ASSESSING OFFICER WAS ERRONEOU S TO THE EXTENT OF BEING PREJUDICAL TO THE INTEREST OF REVEN UE AND ISSUED A SHOW CAUSE NOTICE UNDER SECTION 263 OF THE ACT DATED 8.1.2015, WHICH READS AS UNDER : 3 'SUB:- SHOW-CAUSE NOTICE U/S 263(1) OF THE I. T. ACT, 1961 IN THE CASE OF SH. NARAIN SINGLA PROP. M/S NARAIN & COMPAN Y, MANDI GOBINDGARH - PAN: AEFPS0754N - ASSTT. YEAR: 2011-12 -REGARDING- A SEARCH U/S 132 OF THE I.T. ACT, 1961 WAS CONDUCTE D ON 30.06.2010 IN NARAIN & COMPANY GROUP OF CASES. THE ASSESSEE SH. N ARAIN SINGLA PROP. NARAIN & CO., MANDI GOBINDGARH BELONGS TO NARAIN AND COMPANY GROUP OF CASES. THE RETURN OF INCOME FOR A. Y. 2011-12 DECLARING INCOME OF RS. 1,94,75,810/- WAS FILED ON 24.09.2011. ASSESSMENT WAS COMPLETED DETERMINING TO TAL INCOME OF RS.1,98,15,490/- VIDE ORDER DATED 31.01.2013 PASSED U/S 143(3) R.W.S. 153B(L)(B)/153A OF THE I.T. ACT. 2. AFTER GOING THROUGH THE ASSESSMENT RECORDS, IT I S NOTICED THAT ASSESSMENT ORDER IS ERRONEOUS IN AS MUCH AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE FOR THE REASONS GIVEN BELOW :- IN THE COURSE OF SEARCH AT THE RESIDENTIAL PREMISES OFSH. NARAIN SINGLA AT H. NO. 379, SECTOR-3C, MANDI GOBIANDARH, JEWELLERY OF RS.93,65,165/- WAS FOUND OUT OF WHICH JEWELLERY OF RS.33,85,573/- WAS SEIZED. WH EN ASKED TO EXPLAIN, ASSESSEE VIDE HIS REPLY DATED NIL EXPLAINED THE JEWELLERY AS UNDER :- 'DURING THE COURSE OF SEARCH FROM THE VARIOUS RESID ENTIAL PREMISES, FOLLOWING JEWELLERY WERE FOUND AND SEIZED : PARTICULARS: OTY. IN CRAMS RESIDENCE OF SH. NARAIN SINGLA& SMT. SHASHI SINGLA 2809.910 SH. ASHISH SINGLA AND RUCHI SINGLA 469.370 SH. MANISH SINGLA AND RICHA SINGLA 563.110 SMT. SHASHI SINGLA & NARAIN SINGLA 48.640 TOTAL JEWELLERY FOUND DURING SEARCH 3891.030 LESS: JEWELLERY ALLOWED AS PER BOARD CIRCULAR BEING ISTRIDHAN GRAMS SMT. SHASHI SINGLA 500.00 SMT. RUCHI SING LA 500.00 SMT. RICHA SINGLA 500.00 SH. NARAIN SINGLA 150.00 SH. ASHISH SINGLA 150.00 SH. MANISH SINGLA 150.00 JEWELLERY DECLARED IN VDIS, 1997 IN HAND OF SHASHI SINGLA 1334.00 3284.00 (THE COPY OF VDIS LETTER IS ENCLOSED) 607.030 JEWELLERY EXCESS FOUND THE TOTAL AMOUNT OF EXCESS JEWELLERY COMES TORS. 607.030 X 1910 RS.1159428.00 THE APPLICANT ALREADY SURRENDER OF RS. 15.00 LACS ON ACCOUNT OF UNACCOUNTED JEWELLERY, NO ADVERSE INFERENCE CAN BE TAKEN IN THIS REGARD'. 3. IN THE ABOVE REPLY, ASSESSEE HAS CLAIMED BENEFI T OF 1334 GMS. OF GOLD JEWELLERY DECLARED UNDER VDIS SCHEME, 1997 IN THE H ANDS OF HIS WIFE SMT. SHASHI SINGLA. EVEN THOUGH ASSESSEE HAS FILED VDIS CERTIFI CATES IN SUPPORT OF THE DECLARATION OF 1334 GMS. BUT SAME HAS BEEN ACCEPTED BY THE ASSESSING OFFICER WITHOUT ANY ENQUIRY. TO EXPLAIN THE SOURCE OF JEWEL LERY FOUND DURING THE SEARCH, ASSESSEE HAS PRODUCED VDIS CERTIFICATES AS AN EVIDE NCE. HOWEVER, ASSESSEE SH.NARAIN SINGLA AND HIS WIFE SMT. SHASHI SING/A HAVE FILED T HEIR WEALTH-TAX RETURNS AFTER THE DATE OF SEARCH AS UNDER:- 4 SR. NO. NAME OF THE ASSESSES ASSTT. YEAR FOR WHICH THE WEALTH- TAX RETURN IS FILED DATE OF FILING THE WEALTH- TAX RETURN IS FILED WEALTH DECLARED IN THE WEALTH- TAX RETURN (IN RS.) WEIGHT OF JEWELLERY DECLARED IN THE WEALTH-TAX RETURN REM ARKS RETURN TAX RETURN 1. SH. NARAIN SINGLA (THE ASSESSEE) 2012-13 30.03.13 2512000/- 807.39 GMS. (VALUED AT RS.1799826/-) -DO- 2013-14 27.12.13 2633600/- 807.39 GMS. 2. SMT. SHASHI SINGLA W/O SH. NARAIN SINGLA 2012-13 30.03.13 3998800/- 1794 GMS. (VALUED AT RS.39,98,826/- ) -DO- 2013-14 27.12.13 4223100/- 1794 GMS. (VALUED AT RS.42,23,076/- FROM THE ABOVE DETAILS, IT IS NOTICED THAT SMT. SHA SHI SINGLA W/O THE ASSESSEE SH. NARAIN SINGLA HAS SHOWN 1794 GMS. OF J EWELLERY VALUED AT RS.39,98,826/- FOR THE FIRST TIME IN HER WEALTH-TAX RETURN FILED FOR ASSESSMENT YEAR 2012-13. FURTHER, ASSESSEE HIMSELF HAS SHOWN J EWELLERY WEIGHING 807.39 GMS. VALUED AT RS.17,99,672/- IN HIS WEALTH-TAX RETURN F ILED FOR THE ASSESSMENT YEAR 2012-13 FOR THE FIRST TIME. THE ASSESSING OFFICER HAS ACCEPTED THE CLAIM OF THE ASSESSEE WITH REGARD TO THE DECLARATION OF JEWELLERY UNDER VDIS SCHEME, 1997 IN THE NAME OF SMT SHASHI SINGLA AS SUCH WITHOUT MAKING ANY ENQUIRY. SIMILARLY, A.O. HAS ACCEPTED THE CLAIM OF ASSESSEE WITH REGARD OF JEWELLERY WEIG HING 807.39 GMS. WITHOUT MAKING ANY ENQUIRY. HOWEVER, THE FACTS SHOW THAT THE ASSESSEE WAS NOT FILING WEALTH-TAX RETURNS PRIOR TO THE SEARCH ON HIS PREMI SES WHICH OTHERWISE WERE REQUIRED TO BE FILED, HAD THE ASSESSEES CLAIM OF J EWELLERY UNDER VDIS SCHEME, 1997 DECLARED BY HIS WIFE SMT. SHASHI SINGLA BEEN T RUE. EVEN OTHERWISE A. O. DID NOT ENQUIRE WHETHER SAME JEWELLERY CONTINUED TO BE HELD BY SMT SHASHI SINGLA EVEN AT THE TIME OF SEARCH. ALL THESE ASPECTS HAV E BEEN ACCEPTED WITHOUT ENQUIRY. IN THE LIGHT OF THE AFORESAID FACTS, IT IS CONSIDER ED THAT THE ORDER PASSED U/S 143(3) R.W.S. 153B(L)(B)/153A OF THE ACT DATED 31.01..2013 BY THE DOT, CENTRAL CIRCLE-ILL, LUDHIANA IS PRIMA FACIE ERRONEO US IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE. YOU ARE, THEREFORE, REQUES TED TO SHOW CAUSE AS TO WHY THE AFORESAID ORDER 143(3) R.W.S. 153B(L)(B)/ 153A OF THE ACT DATED 31.01..2013 FOR THE A. Y.2011-12 SHOULD NOT BE REVISED/MODIFIED/ EN HANCED OR SET ASIDE WITH THE DIRECTIONS TO MAKE THE ASSESSMENT DENOVO. 5. FOR THIS PURPOSE, YOU ARE HEREBY GIVEN AN OPPORT UNITY OF BEING HEARD EITHER IN PERSON OR THROUGH AN AUTHORIZED REPRESENT ATIVE IN MY OFFICE SITUATED AT KITCHLU NAGAR, 2 ND FLOOR, NEAR B.V.M. SCHOOL, LUDHIANA ON 20.01.2015 AT 12.30 P.M. ON THAT DATE, YOU MAY SUBMIT YOUR OBJECTIONS WITH E VIDENCE, IF ANY, TO THE PROPOSED ACTION IN WRITING. IN CASE OF YOUR FAILURE TO ATTEN D ON THE AFORESAID DATE OR TO SUBMIT WRITTEN REPLY -BY THAT DATE, IT WILL BE PRESUMED TH AT YOU HAVE NO OBJECTION TO THE PROPOSED ACTION AND MATTER SHALL BE DECIDED ON MERI TS'. 5 5. IN REPLY TO THE SAID SHOW CAUSE, THE ASSESSEE SUBMITTED THAT THE ASSESSMENT WAS COMPLETED AFTER D UE APPLICATION OF MIND AND AFTER COMPLETE ANALYSIS OF VARIOUS SUBMISSIONS MADE BY THE ASSESSEE DURING THE ASSESSM ENT PROCEEDINGS. THE DETAILED SUBMISSIONS WITH REGARD TO THE MERITS OF THE CASE WERE ALSO MADE BEFORE THE LEARNE D COMMISSIONER OF INCOME TAX. HOWEVER, THE LEARNED COMMISSIONER OF INCOME TAX REJECTED THE CONTENTION OF THE ASSESSEE AND HELD THAT THE SUBSTANTIAL JEWELLERY W AS FOUND IN THE COURSE OF SEARCH, IN RESPECT OF WHICH IT WAS CL AIMED THAT 1334GMS JEWELLERY WAS DECLARED UNDER VDIS 1997 BY SMT.SHASHI SINGLA WIFE OF THE ASSESSEE. THE ASSESS ING OFFICER HAD ACCEPTED THE CLAIM OF THE ASSESSEE WITHOUT VERI FYING AND ENQUIRING INTO THE FACTS AND THE ISSUE UNDER CONSID ERATION. THE ASSESSING OFFICER HAD NOT VERIFIED WHETHER THE SAME JEWELLERY CONTINUED TO BE HELD BY SMT.SHASHI SINGLA WIFE OF THE ASSESSEE EVEN AT THE TIME OF SEARCH. AS PER T HE LEARNED COMMISSIONER OF INCOME TAX, THE FILING OF A CERTIFI CATE OF VDIS 1997 DOES NOT PROVIDE IMMUNITY FROM ENQUIRIES THAT WERE REQUIRED TO BE CONDUCTED BY THE ASSESSING OFFICER. IT IS ALSO SEEN FROM THE COPIES OF RETURNS OF NET WEALTH FILED THAT WEALTH TAX RETURNS WERE FILED FOR ASSESSMENT YEARS 2009-10 AND 2010-11 BY THE ASSESSEE AND FOR ASSESSMENT YEARS 20 09-10 AND 2010-11 BY SMT.SHASHI SINGLA ONLY ON 30.3.2011 I.E. AFTER THE DATE OF SEARCH. WITH REGARD TO FILING OF COMPU TATION OF WEALTH TAX RETURNS, SINCE THE ASSESSEE HAS CLAIMED THAT ALL THESE DETAILS AND RETURNS HAD BEEN FILED ONLY AFTER THE DATE OF SEARCH, IT WAS ALL THE MORE NECESSARY FOR THE ASSES SING OFFICER 6 TO CONDUCT PROPER ENQUIRIES IN THIS RESPECT INSTEAD OF BLINDLY BELIEVING ASSESSEES CLAIM OF DECLARATION OF JEWELL ERY UNDER VDIS 1997. IN VIEW OF THIS, THE LEARNED COMMISSION ER OF INCOME TAX HELD THE ASSESSMENT ORDER TO BE ERRONEO US IN SO FAR AS PREJUDICAL TO THE INTEREST OF THE REVENUE. THE LEARNED COMMISSIONER OF INCOME TAX RELYING ON A NUMBER OF JUDICIAL PRONOUNCEMENTS SET ASIDE THE ASSESSMENT ORDER WITH THE DIRECTION TO THE ASSESSING OFFICER TO MAKE FRESH AS SESSMENT DE-NOVO AFTER PROPERLY EXAMINING THE FACTS OF THE C ASE AND RELEVANT LEGAL PROVISIONS AND CONDUCTING PROPER ENQ UIRY AND AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. 6. NOW, THE ASSESSEE HAS COME UP IN APPEAL BEFORE US RAISING FOLLOWING GROUNDS OF APPEAL : 1. THAT THE WORTHY PRINCIPAL COMMISSIONER OF INCOME TAX (CENTRAL) HAS ERRED IN INVOKING THE PROCEEDINGS U/S 263 AND PASSING THE ORDER U/S 263 OF THE INCOME TAX ACT, 1961 THEREBY SETTING ASIDE THE ORDER OF THE ASSESSING OFFI CER WITH THE DIRECTION TO MAKE FRESH ASSESSMENT. 2. THAT THE WORTHY PRINCIPAL CIT (CENTRAL) HAS ALSO E RRED IN SETTING ASIDE THE EARLIER ASSESSMENT AND GIVING T HE DIRECTION TO THE ASSESSING OFFICER TO MAKE A FRESH ASSESSMENT DENOVO. 3. THAT THE WORTHY PRINCIPAL CIT (CENTRAL) HAS FAILE D TO CONSIDER THE FACTS THAT THE EARLIER ASSESSMENT AS FRAMED BY THE ASSESSING OFFICER VIDE ORDER, DATED 31.01.2013 HAVE BEEN PASSED AFTER DUE APPLICATION OF MIND BY THE CONCERN ED ASSESSING OFFICER AND THE CIT(C) HAS ERRED IN NOT CON SIDERING THE DETAILED SUBMISSIONS MADE DURING THE COURSE OF PROCEEDINGS BEFORE HIM. 4. THAT THE WORTHY CIT(C) HAS FAILED TO APPRECIATE THAT THE 7 VDIS CERTIFICATE AS WELL AS WEALTH TAX RETURNS WERE AVAILABLE WITH THE ASSESSING OFFICER AT THE TIME OF FRAM ING THE ASSESSMENT AND, THUS, NO FURTHER ENQUIRIES WERE LIABL E TO BE MADE. 5. THAT THE VARIOUS JUDGMENTS AS CITED BY THE WORTHY PRINCIPAL CIT (CENTRAL) ARE DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS OF THE CASE. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOSED OFF. 7. DURING THE COURSE OF HEARING, THE LEARNED COUNS EL FOR THE ASSESSEE TOOK US TO VARIOUS PAGES OF THE PA PER BOOK FILED BY THE ASSESSEE. OUR ATTENTION WAS INVITED T O PAGE 5 OF THE PAPER BOOK WHICH IS A QUESTIONNAIRE ISSUED BY T HE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT P ROCEEDINGS AS ON 14.8.2012. AT POINT NO.5 OF THIS QUESTIONNA IRE, THE ASSESSING OFFICER HAD SPECIFICALLY ASKED THE ASSESS EE TO GIVE DETAILS OF MOVABLE PROPERTIES I.E. VEHICLES, JEWELL ERY, ETC. PURCHASED IN HIS NAME OR IN THE NAME OF HIS FAMILY MEMBERS. THE SAID QUESTIONNAIRE WAS REPLIED BY THE ASSESSEE VIDE HIS LETTER PLACED AT PAGE 10 OF THE PAPER BOOK, WHEREBY AT POINT NO.5, IT HAS BEEN CLARIFIED THAT NO MOVABLE PROPERT Y I.E. VEHICLES, JEWELLELRY, ETC. PURCHASED EITHER IN ASSE SSEES NAME OR IN THE NAME OF ANY OF HIS FAMILY MEMBERS. AT PA GE 15 OF THE PAPER BOOK IS ANOTHER LETTER FILED BY THE ASSES SEE TO THE ASSESSING OFFICER (RELEVANT PAGE 21), WHEREBY AT PO INT NO.18, THE ASSESSEE HAD GIVEN THE DETAILS OF SOURCE OF TOT AL JEWELLERY FOUND DURING THE COURSE OF SEARCH WEIGHING 3891.030 GMS. IN THE FORM OF A CHART. OUT OF 3891.030 GMS OF JEWELL ERY, 1950 8 GMS WAS CLAIMED TO BE THE ISTRI DHAN OF THE LADIES OF THE FAMILY AS PER CIRCULAR OF THE CBDT NO.1916 DATED 11 .5.1994. FURTHER, 1334 GMS OF JEWELLERY WAS CLAIMED TO BE DE CLARED IN VDIS 1997 IN THE HANDS OF SMT. SHASHI SINGLA. IN THIS WAY, THE TOTAL JEWELLERY WEIGHING 3284 GMS WAS EXPLAINED . JEWELLERY OF 607.030 GMS. REMAINED UNEXPLAINED FOR WHICH IT WAS SUBMITTED THAT THE ASSESSEE HAD ALREADY SURREND ERED AN AMOUNT OF RS.15 LACS ON ACCOUNT OF UNACCOUNTED JEWE LLERY. AT PAGE 23 OF THE PAPER BOOK A CERTIFICATE UNDER SECTI ON 68 OF VDIS 1997 ISSUED BY THE COMMISSIONER OF INCOME TAX, PATIALA DATED 28.12.1997 WAS ENCLOSED. AT PAGES 25 AND 26 OF THE PAPER BOOK, COPY OF THE VALUERS REPORT WAS ENCLOSE D. PAGE 27 ONWARDS WERE THE COPIES OF WEALTH TAX RETURNS. T HESE EVIDENCES WERE SUBMITTED BEFORE THE ASSESSING OFFIC ER IN PROCEEDINGS U/S 153A. ALL THESE DOCUMENTS WERE SHOW N TO US TO EMPHASIZE THE FACT THAT THE ASSESSING OFFICER WA S OPEN TO THE ISSUE OF JEWELLERY FOUND DURING THE COURSE OF S EARCH AND HE HAS TAKEN THIS VIEW ONLY AFTER APPRAISAL OF SAID DOCUMENTS. AT PAGES 33 AND 34 OF THE PAPER BOOK, ASSESSMENT O RDER MADE UNDER SECTION 143(3) R.W.S. 153A OF THE ACT WAS ENC LOSED. FURTHER, OUR ATTENTION WAS SPECIFICALLY INVITED TO PAGE 35 OF THE PAPER BOOK, WHICH WAS AN OFFICE NOTE APPENDED T O THE ASSESSMENT ORDER. IT WAS STATED AT BAR THAT THIS C OPY OF THE OFFICE NOTE WAS OBTAINED BY THE ASSESSEE ON INSPECT ION OF THE ASSESSMENT RECORD IN THIS OFFICE NOTE SPECIFICALL Y IT HAS BEEN MENTIONED BY THE ASSESSING OFFICER THAT THE JEWELLE RY FOUND DURING THE COURSE OF SEARCH HAS BEEN EXPLAINED BY T HE ASSESSEE. IN VIEW OF THE SAID SUBMISSIONS AND EVID ENCES, THE 9 LEARNED COUNSEL FOR THE ASSESSEE AGAIN EMPHASIZED T O THE POINT THAT THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAD APPLIED HIS MIND TO ALL THE EVIDENCES AND EXPLANATION FURNISHED BY THE ASSESSEE REGARDING THE JEWELLERY FOUND DURING THE COURSE OF SEARCH, FORMED HIS OPINION AND THEREAFTER MADE ASSESSMENT O RDER. IN VIEW OF THIS, IT WAS PRAYED THAT THE JURISDICTION A SSUMED BY THE LEARNED COMMISSIONER OF INCOME TAX UNDER SECTI ON 263 OF THE ACT IS NOT AS PER LAW. 8. THE LEARNED D.R. RELIED UPON THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX AND SUBMITTED TH AT SINCE THE PROPER INVESTIGATION REGARDING THE JEWELLERY FO UND DURING THE COURSE OF SEARCH WAS NOT MADE BY THE ASSESSING OFFICER, THE LEARNED COMMISSIONER OF INCOME TAX WAS RIGHT IN ASSUMING THE JURISDICTION UNDER SECTION 263 OF THE ACT. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON PERUSAL OF THE QUERIES RAISED BY THE ASSESSING OFFICER AND THE REPLIES THE RETO FILED BY THE ASSESSEE IT CANNOT BE SAID THAT ASSESSING OFFIC ER HAS NOT APPLIED HIS MIND TO THE ISSUE OF SEIZED JEWELLERY. THE ASSESSING OFFICER WAS FULLY AWARE OF THE MATTER, HE HAS APPRAISED THE EVIDENCES FILED BY THE ASSESSEE AND THEN HAS FORMED A VIEW TO ACCEPT THE SAME. EVEN THE CIT IN HIS SHOW CAUSE NOTICE U/S 263 HAS REPRODUCED THE REPLY FILED BY THE ASSESSEE. CERTAINLY THIS IS NOT A CASE OF LACK OF ENQUIRY / INVESTIGATION. THE FACT THAT ON APPRAISAL OF EVIDEN CE AND EXPLANATION FILED BY THE ASSESSEE THE ASSESSING OFF ICER FORMS 10 AN OPINION WHICH IS NOT IN CONSONANCE WITH THE OPIN ION OF THE CIT, IT DOES NOT GIVE HIM POWER TO REVISE THE ORDER SO MADE BY THE ASSESSING OFFICER. THIS IS CERTAINLY NOT A CAS E OF LACK OF ENQUIRY. 10. IN OUR VIEW THREE ISSUES AROSE IN THE MIND OF C IT WHILE ASSUMING JURISDICTION U/S 263 AS IS APPARENT FROM T HE SHOW CAUSE NOTICE. FIRSTLY, AS PER THE CIT THE ASSESSIN G OFFICER HAS ACCEPTED VDIS CLAIM WITHOUT ENQUIRY. HOWEVER THE RE CORD SHOWS THAT THE ASSESSEE HAS FILED THE VDIS CERTIFIC ATE ISSUED TO HIM BY THE COMMISSIONER OF INCOME TAX, WHICH IS QUITE A VALID DOCUMENT TO PROVE THE POSSESSION OF JEWELLERY BY THE ASSESSEE, WHICH THE ASSESSING OFFICER ACCEPTED AS S UCH. SECONDLY, AS PER CIT, THE ASSESSEE HAD FILED WEALTH TAX RETURN ONLY AFTER THE SEARCH. EVEN IF THERE IS SOMETHING N OT AS PER LAW IN NOT FILING THE WEALTH TAX RETURN EARLIER TO THE DATE OF SEARCH, IT DOES NOT AFFECT THE FACT THAT ASSESSEE W AS HAVING THE JEWELLERY AS PER THE VDIS CERTIFICATE. THIRDLY, THE CITS OBJECTION IS THAT THE ASSESSING OFFICER DID NOT ENQ UIRE WHETHER THE SAME JEWELLERY CONTINUED TO BE HELD BY SMT. SHA SHI SINGLA EVEN AT THE TIME OF SEARCH. FOR THIS THERE IS NOTHI NG ON RECORD TO SHOW THAT SHE HAS TRANSFERRED THE JEWELLERY DECL ARED UNDER VDIS BEFORE THE DATE OF SEARCH. IN VIEW OF THIS, AS SESSING OFFICERS FORMATION OF BELIEF THAT SHE WAS HAVING T HE SAME AMOUNT OF JEWELLERY AT THE TIME OF SEARCH IS NOT OU T OF PLACE. OTHERWISE ALSO THESE ARE ALL QUESTION OF FACT, ON W HICH THE ASSESSING OFFICER HAS FORMED AN OPINION. 11 11. NOW ON THE LEGALITY OF ASSUMPTION OF JURISDICT ION BY THE CIT(A) U/S 263 OF THE ACT, AN ORDER CAN BE REVI SED UNDER SECTION 263 OF THE ACT BY THE LEARNED COMMISSIONER OF INCOME TAX ONLY IF IT SATISFIES THE TWIN CONDITIONS OF BEI NG ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTERESTS OF REVENUE. IN THE PRESENT CASE, WE FIND NO ERROR IN THE ORDER OF THE ASSESSING OFFICER. OUR VIEW GETS STRENGTHEN BY THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF MALABAR INDUSTRI AL CO. LTD. VS. CIT(2000) 243 ITR 83 (SC), WHEREIN IT WAS HELD AS UNDER : WHEN AN INCOME TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTEREST OF THE REVENUE UNLESS THE VIEW TAKEN BY THE INCOME TAX OFFICER IS UNSUSTAINABLE IN LAW. 12. THE SAID VIEW HAS ALSO BEEN HELD IN A JUDGMENT OF THE HON'BLE JURISDICTIONAL PUNJAB & HARYANA HIGH CO URT IN THE CASE OF CIT VS. INDO GERMAN FABS, ITA NO.248 O F 2012, DATED 24 TH DECEMBER, 2014, IN THE FOLLOWING WORDS : SECTION 263 OF THE ACT CONFERS POWER TO EXAMINE AN ASSESSMENT ORDER SO AS TO ASCERTAIN WHETHER IT IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE BUT DOES NOT CONFER JURISDICTION UPON THE CIT TO SUBSTITUTE HIS OPINION FOR THE OPINION OF THE ASSESSING OFFICER. THE WORDS PREJUDICIAL AND ERRONEOUS HAVE TO BE READ IN CONJUNCTION AND THEREFORE, IT IS NOT EACH AND EVERY ERROR IN AN ASSESSMENT THAT INVITES EXERCISE OF POWERS UNDER SECTION 263 OF THE ACT, BUT ONLY ORDERS THAT ARE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 12 12. ONE SITUATION IN SUCH A BACKGROUND OF FACTS, FO R CIT TO ASSUME JURISDICTION U/S 263 IS THAT IN CASE, ON AN APPRAISAL OF SUCH ENQUIRY, THE ASSESSING OFFICER TAKES A VIEW WHICH IS NOT IN ACCORDANCE WITH LAW. PRESENT IS NOT A CASE W HERE SOMETHING AS PRESCRIBED UNDER THE LAW HAS NOT BEEN DONE BY THE ASSESSING OFFICER. ANOTHER SITUATION IN WHICH CIT CAN ASSUME JURISDICTION U/S 263 IS THAT HE BRINGS ON RE CORD SOMETHING TO DISPROVE THE FINDING ARRIVED AT BY THE ASSESSING OFFICER. I.E. IN SUCH CASES, WHERE THOUGH APPARENTL Y NOTHING ILLEGAL HAS BEEN DONE BY THE ASSESSING OFFICER, CIT HAS TO COME TO A CONCLUSION HIMSELF AND DECIDES THAT THE O RDER IS ERRONEOUS BY CONDUCTING NECESSARY ENQUIRY, IF REQUI RED BEFORE HE PASSES THE ORDER U/S 263. IN THE PRESENT CASE, NO SUCH FINDING HAS BEEN RECORDED BY CIT AND THE MATTER IS RESTORED TO THE ASSESSING OFFICER TO MAKE FURTHER ENQUIRY/INVES TIGATION. IN THIS CONTEXT, OUR VIEW GET STRENGTHENED BY THE J UDGMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF ITO VS. D. G. HOUSING PROJECTS LTD (2012) 343 ITR 329 (DELHI.), WHEREIN I T HAS BEEN HELD THAT THE MATTER CANNOT BE REMITTED TO THE ASSE SSING OFFICER FOR FRESH ADJUDICATION BY THE CIT WITHOUT R ECORDING A FINDING THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS. 14. THE LEARNED COMMISSIONER OF INCOME TAX CAN AL SO INVOKE JURISDICTION UNDER SECTION 263 OF THE ACT IN A SITUATION WHEN THERE IS A LACK OF ENQUIRY. IF THERE IS AN IN QUIRY, HOWEVER, INADEQUATE IT MAY BE, IT DOES NOT GIVE JUR ISDICTION TO THE LEARNED COMMISSIONER OF INCOME TAX UNDER SECTI ON 263 OF THE ACT TO SUBSTITUTE HIS OPINION. IN THE PRESENT CASE CIT HIMSELF HAS QUOTED THE REPLY OF THE ASSESSEE IN HIS SHOW 13 CAUSE. THOUGH IT MAY NOT BE PROPER IN HIS OPINION . IN CASE OF DIFFERENCE OF OPINION, THE LEARNED COMMISSIONER OF INCOME TAX CANNOT INVOKE THE JURISDICTION UNDER SECTION 26 3 OF THE ACT. THIS VIEW ALSO GET SUPPORTED BY THE LANDMARK JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF GA BRIEL INDIA LTD. (1993) 203 ITR 108 (BOM). 15. IT IS A MATTER OF FACT THAT THE ASSESSING OFFIC ER BEING AN ADJUDICATING OFFICER HAS TO FORM AN OPINION ON THE BASIS OF EVIDENCE, WHICH HE HAS DULY DONE. IF THE LD. CIT O N THE SAME SET OF EVIDENCE FORMS AN OPINION, IT BEING A QUESTI ON OF FACT, DOES NOT GIVEN HIM JURISDICTION TO REVISE THE SAME U/S 263 OF THE ACT. THIS IS CERTAINLY A CASE OF DIFFERENCE OF OPINION BETWEEN ASSESSING OFFICER AND CIT. THE ONLY CONTENT ION OF THE CIT SEEMS THAT THE ASSESSING OFFICER SHOULD HAVE MA DE FURTHER ENQUIRES / INVESTIGATION, WHICH HE HAS NOT DONE. HO WEVER, FOR ASSUMING JURISDICTION U/S 263, ONE HAS TO KEEP IN M IND THE DISTINCTION BETWEEN LACK OF INQUIRY AND INADEQUATE ENQUIRY. IF THERE WAS AN ENQUIRY, EVEN INADEQUATE, THAT WOULD N OT BY ITSELF GIVE OCCASION TO THE CIT TO PASS ORDER U/S 2 63, MERELY BECAUSE HE HAS A DIFFERENT OPINION IN THE MATTER. IT IS ONLY IN CASE OF LACK OF INQUIRY THAT SUCH A CAUSE OF ACTI ON COULD BE OPEN. ASSESSING OFFICER CALLED FOR ACTION, ASSESSEE REPLIED TO THE ASSESSING OFFICER, ASSESSING OFFICER ACCEPTED AND EVEN IN THE OFFICE NOTE MEANT FOR INTERNAL PURPOSES HE MENT IONS THAT THE ASSESSEE HAS SUBSTANTIATED THE JEWELLERY SEIZE D. IN VIEW OF THESE EVIDENCES, THIS IS NOT A CASE OF LACK OF I NQUIRY EITHER. 14 16. IN VIEW OF THE ABOVE ANALYSIS, WE DO NOT FIND A NY ERROR IN THE ORDER OF ASSESSING OFFICER. HENCE, WE SET ASIDE THE ORDER OF LD. CIT MADE U/S 263 OF THE ACT AS THE ORDER OF THE ASSESSING OFFICER IS NOT FOUND TO BE ERRONEOUS. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ITA NOS. 423/CHD/2015, 425 & 426/CHD/2015:- 18. THESE THREE APPEALS FILED BY THE ASSESSES RELAT E TO THE GROUP MEMBERS OF SH. NARAIN SINGLA. THE CIT IN HIS ORDER U/S 263 HAS RELIED ON HIS FINDINGS GIVEN IN THE CASE OF SHRI NARAIN SINGHLA IN ITA NO. 427/CHD/2015 AS THE FACTS OF TH ESE CASES BEING SIMILAR TO THE CASE OF SHRI NARAIN SINGLA. 19. BOTH THE COUNSELS HAVE RAISED SIMILAR CONTENTI ONS AS WERE RAISED IN THE APPEAL IN ITA NO. 427/CHD/2015. 20. WE OBSERVE THAT ISSUES RAISED VIDE THESE APPEAL S AND THE FACTS & CIRCUMSTANCES OF THE CASE ARE IDENTICAL TO THE CASE OF SHRI NARAIN SINGHLA IN ITA N. 427/CHD/2015, WHICH W E HAVE ADJUDICATED HEREINABOVE. THEREFORE, FOLLOWING THE SAME, THE APPEALS OF THE ASSESSEE STANDS ALLOWED. 21. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE S ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF AUGUST, 2015. SD/- SD/- (H.L.KARWA) (RANO JAIN) VICE PRESIDENT ACOUNTANT MEMBER DATED : 31 ST AUGUST, 2015 15 *RATI/RKK* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH FIT FOR PUBLICATION SD/- SD/- (H.L.KARWA) (RANO JAIN) VICE PRESIDENT ACOUNTANT MEMBER