Appeal Details
Counselvise Citation
[2014] 140 COUNSELVISE.COM (IT) 73435 (ITAT-CHANDIGARH)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
1 year(s) 9 month(s) 14 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
30-01-2014
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
A
Next Hearing Date
03-12-2013
Assessment Year
2008-2009
Appeal Filed On
16-04-2012
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 421 TO 423/CHD/2012 ASSESSMENT YEAR: 2006-07, 2007-08 & 2008-09 BASSERA REALTORS (P) LTD., VS THE CIT (CENTRAL), LUDHIANA LUDHIANA PAN NO. AACCB7360D ITA NO. 424 TO 426/CHD/2012 ASSESSMENT YEARS: 2006-07, 2007-08 & 2008-09 SHRI SURESH KUMAR KHANNA, VS THE CIT (CENTRAL), LUDHIANA LUDHIANA PAN NO. AHAPK0939M ITA NO. 427 & 428/CHD/2012 ASSESSMENT YEARS: 2007-08 & 2008-09 SHRI RUPINDERDEEP SINGH, VS THE CIT (CENTRAL), LUDHIANA LUDHIANA PAN NO. AFIPS3714E & ITA NO. 429 & 430/CHD/2012 ASSESSMENT YEARS: 2007-08 & 2008-09 SHRI DEEPAK CHAUHAN, VS THE CIT (CENTRAL), LUDHIANA LUDHIANA PAN NO. AFIPS3714E (APPELLANT) (RESPONDENT) DATE OF HEARING : 15.01.2014 DATE OF PRONOUNCEMENT : 30.01.2014 APPELLANT BY : SHRI V.K. TULSIAN RESPONDENT BY : SHRI MANJIT SINGH 2 ORDER PER BENCH THE APPEALS FILED BY THE DIFFERENT ASSESSEES RELAT ING TO DIFFERENT ASSESSMENT YEARS ARE DIRECTED AGAINST THE SEPARATE ORDERS ALL DATED 22.02.2012 OF LD. CIT(CENTRAL), LUDHIANA. 2. BOTH PARTIES POINTED OUT THAT IN CASE OF BASERA REALTORS P LTD, THE APPEAL FOR ASSESSMENT YEAR 2008-09 IN ITA NO. 423/CHD/2012 WHICH IS DETAILED ONE BE TAKEN FOR HEARING, THEREFORE, THE SAME WAS TAKEN FO R DETAILED HEARING. 3. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS:- 1. WHETHER THE LD. CIT WAS JUSTIFIED TO INVOKE HIS POWER U/S 263 JUST BASED ON THE LD. AOS LETTER AND TREAT ING THE LETTER, EVEN WITHOUT APPRISING HIMSELF OF THE RECOR D, AS THE ORDER AS ERRONEOUS AND PREJUDICIAL TO THE INTERES T OF THE REVENUE. 2. WHETHER THE LD. CIT WAS JUSTIFIED TO ASSUME JURISDICTION U/S 263 PARTICULARLY WHEN THE ASSESSME NT WAS COMPLETED U/S 153 A/C READ WITH SEC. 143(3) BASED U PON THE SEIZED / IMPOUNDED MATERIAL AND BASED UPON THE DISC LOSURE STATEMENT. 3. WHETHER THE LD. CIT WAS JUSTIFIED TO REVIEW THE ASSESSMENT / FOR FURTHER VERIFICATION UNDER THE GAR B OF SECTION 263 ON THE GROUND OF LACK OF ENQUIRY / WHEN THE LD. AO TOOK A FAIR AND REASONABLE VIEW ON THE SEIZED / IMPOUNDED DOCUMENT / PAPERS AND APPRAISAL REPORT ET C. 4. WHETHER THE LD. CIT WAS JUSTIFIED BY EXERCISING THE POWER AND PASSING THE ORDER U/S 263 ON THE PREMISE THAT SEIZED / IMPOUNDED DOCUMENTS WERE NOT PROPERLY EXAM INED FROM THE ANGLE OF INVESTMENT AND VIOLATION OF SECTI ON 40(A)3 3 DESPITE THE FACT THAT THE SAME WERE VERY MUCH EXAMI NED AS APPEARS FROM THE ASSESSMENT ORDER / AND VARIOUS SUBMISSIONS. 4. IN ADDITION TO ABOVE, THE ASSESSEE HAS MOVED AN APPLICATION DT 22.6.2013 FOR ADMISSION OF FOLLOWING ADDITIONAL GROUND:- WHETHER THE LD. CIT(A) WAS JUSTIFIED BY ASSUMING JU RISDICTION U/S 263 IN SETTING ASIDE THE ASSESSMENT ORDER U/S 2 63 WITHOUT ANY FIRM AND FINAL FINDING. 5. BOTH THE PARTIES WERE HEARD FOR ADMISSION OF THI S ADDITIONAL GROUND. 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE FIND THAT NO SEPARATE DISPUTE HAS BEEN PROJECTED IN THIS GROUND AND IT IS IN FACT ONE OF THE ARGUMENT FOR NOT SUSTAINING THE ORDER PASSED U/S 263 AND THEREFORE, THIS GROUND IS NOT BEING ADMITTED FOR SEPARATE ADJUDICATION. HOWEVER, WE EN DORSE THAT THIS ISSUE WOULD BE CONSIDERED AS PART OF THE ARGUMENT. 7. THOUGH VARIOUS GROUNDS HAVE BEEN RAISED, THE ONL Y DISPUTE IS WHETHER REVISIONARY ORDER PASSED U/S 263 HAS BEEN PASSED VA LIDLY OR NOT AND, THEREFORE, WE ADJUDICATE ALL GROUNDS TOGETHER. 8. AFTER HEARING BOTH THE PARTIES WE FIND THAT IN T HIS CASE A SEARCH WAS CONDUCTED IN THE PREMISES OF SHRI SURESH KUMAR KHAN NA, SHRI RUPINDERDEEP SINGH AND SHRI DEEPAK CHAUHAN. DURING THE SEARCH, INCRIMINATING DOCUMENTS SHOWING SALES / PURCHASES OF PROPERTIES WERE FOUND. SIMULTANEOUSLY, A SURVEY U/S 133A WAS ALSO CARRIED OUT BY INVESTIGATION WING OF THE DEPARTMENT AT THE BUSINESS PREMISES OF THE ASSESSEE COMPANY I.E. BAS ERA REALTORS P. LTD. DURING SURVEY ALSO CERTAIN INCRIMINATING DOCUMENTS WERE FO UND AND IMPOUNDED. MOST OF THE DOCUMENTS FOUND DURING SEARCH AND SURVEY RELATE D TO THE ASSESSEE COMPANY. 4 DURING THE SEARCH IN THE RESIDENTIAL PREMISES OF SH RI DEEPAK CHAUHAN WHO IS BROTHER IN LAW OF SHRI SURESH KUMAR KHANNA, DIRECTO R OF THE COMPANY AND WAS ALSO EMPLOYEE OF THE ASSESSEE COMPANY STATED THAT D OCUMENTS FOUND IN HIS PLACE ACTUALLY BELONGED TO THE ASSESSEE COMPANY M/S BASER A REALTORS P. LTD. AND POINTED OUT THAT THIS FACT HAS ALREADY BEEN ADMITTE D BY SHRI SURESH KUMAR KHANNA WHO IN HIS STATEMENT U/S 132(4) ON 21.2.2008 ADMITTED THAT DOCUMENTS WERE FOUND DURING SEARCH AT THE RESIDENTIAL PREMISE S OF SHRI DEEPAK CHAUHAN ALSO BELONG TO THE COMPANY AND ULTIMATELY A SUM OF RS. 8.5 CRORES WAS SURRENDERED AS INCOME. FURTHER, A LETTER ON THE SA ME DATE WAS GIVEN WHICH WAS SIGNED BY ALL THE DIRECTORS OF THE COMPANY CONFIRMI NG THE SURRENDER OF RS. 8.5 CRORES. AGAIN ON 24.3.2008 I.E. AFTER A MONTH, OFF ER OF SURRENDER OF RS. 8.5 CRORES WAS CONFIRMED. A NOTICE U/S 153C WAS ISSUED TO THE COMPANY AND IN RESPONSE, RETURN DECLARING INCOME OF RS. 3,37,85,72 8/- WAS FURNISHED. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE APPEARED O N VARIOUS DATES AND SOME INFORMATION WAS FILED AND IT SEEMS THAT CASE WAS DI SCUSSED WITH THE ASSESSING OFFICER. THEN, THERE WAS CHANGE IN THE INCUMBENT I N MARCH 2009 AND THE NEW OFFICER NOTED THAT INFORMATION FILED BY THE ASSESSE E WAS INCOMPLETE AS THE COMPLETE EXPLANATION OF THE ASSESSEE COMPANY WAS NO T AVAILABLE ON EACH AND EVERY DOCUMENTS SEIZED / IMPOUNDED DURING SEARCH / SURVEY OPERATION AND, THEREFORE, FRESH NOTICE U/S 143(2) READ WITH SECTIO N 142(1) WAS ISSUED ON 16.6.2009. LATER ON, AGAIN VARIOUS ADJOURNMENTS WE RE SOUGHT AND SOME INFORMATION WAS FILED BUT GENERALLY THERE WAS NON C OOPERATION, THEREFORE, ULTIMATELY THE ASSESSING OFFICER WENT ON TO MAKE AN ASSESSMENT U/S 144. THE ASSESSMENT WAS COMPLETED ON 30.12.2009 BY MAKING TH E FOLLOWING OBSERVATIONS IN PARA 16 OF THE ASSESSMENT ORDER. 16. FROM THE FACTS ADDUCED ABOVE, IT IS EVIDENT TH AT THE DOCUMENT SEIZED / IMPOUNDED REMAINED UNEXPLAINED AN D UNVERIFIABLE AND AS SUCH THE TRANSACTIONS RECORDED IN THESE DOCUMENTS ARE REQUIRED TO BE ADDED TO THE INCOME RE TURNED. 5 HOWEVER, TO BE FAIR AND REASONABLE, THE UNDERSIGNED IS OF THE VIEW THAT THE ASSESSMENT AT THE SURRENDERED AMOUNT OF RS. 8,50,00,000/- WILL MEET THE END OF JUSTICE. THEREFO RE THE INCOME OF THE ASSESSEE, FOR THE A.Y. 2008-09 UNDER CONSIDERATION, IS ASSESSED AT RS. 8,50,00,000/- AS SURRENDERED BY THE ASSESSEE COMPANY U/S U/S 132(4) OF THE I.T. ACT DURING SEARCH OPERATION ON 21.02.2008 AND SUBSEQUENTLY, REAFFIRMED AFTER A PERIOD OF MORE THA N ONE MONTH ON 24.03.2008 AS AGAINST THE RETURNED INCOME OF RS. 3,37,85,728/-. THEREFORE, THE BALANCE AMOUNT OF RS. 5,12,14,272/- (8,50,00,000-3,37,85,728) IS ADDED TO THE INCOME RETURNED. ACCORDINGLY, AN ADDITION OF RS. 5,12,14,272/- IS MADE TO THE INCOME RETURNED. PENAL TY PROCEEDINGS U/S 271(1)(C) FOR FURNISHING INACCURATE PARTICULARS OF INCOME THEREBY RESULTING IN CONCEALM ENT OF INCOME ARE INITIATED. 9. LATER ON, THE ASSESSING OFFICER SENT A PROPOSAL TO THE COMMISSIONER INCOME TAX (CENTRAL ) LUDHIANA THROUGH ADDITIONAL C OMMISSIONER OF I.TAX, CENTRAL RANGE, LUDHIANA FOR INITIATING ACTION U/S 2 63 ON 10.1.2012. THROUGH THIS PROPOSAL, ASSESSING OFFICER GAVE A BRIEF HISTO RY OF THE SEARCH, VARIOUS DOCUMENTS FOUND AND VARIOUS EXPLANATIONS GIVEN BY T HE ASSESSEE AND HOW THE SAME WERE NOT COMPLETE AND HE ALSO POINTED OUT THAT HOW ORDER WAS ERRONEOUS. THIS PROPOSAL WAS SENT TO THE LD. COMMISSIONER BY A DDL. COMMISSIONER, CENTRAL CIRCLE ON 11.1.2012. THE LD. COMMISSIONER AFTER EXAMINING THE SAME ISSUED A SHOW CAUSE NOTICED DATED 13.1.2012. MORE OR LESS THIS NOTICE IS COPY OF THE PROPOSAL SENT BY ASSESSING OFFICER. BEFORE THE LD. COMMISSIONER CERTAIN REPLIES ALONG WITH EXPLANATIONS WERE FURNISHED BUT HE WAS NOT SATISFIED AND OBSERVED THAT ASSESSING OFFICER HAS NOT CONDUCTED P ROPER ENQUIRIES AND THEREFORE, ASSESSMENT WAS ERRONEOUS AND PREJUDICIA L TO THE INTEREST OF REVENUE. ULTIMATELY, THE ASSESSMENT WAS SET ASIDE AND ASSESS ING OFFICER WAS DIRECTED TO COMPLETE THE ASSESSMENT DE NOVO AFTER PROPER EXAMIN ATION OF VARIOUS DOCUMENTS AND MAKING PROPER ENQUIRIES VIDE PARA 20 OF HIS ORD ER WHICH IS AS UNDER:- 6 20. IN VIEW OF THE ABOVE DISCUSSION AND ALSO FOR TH E REASONS DISCUSSED IN SHOW-CAUSE NOTICE DATED 13.01. 2012, IT IS APPARENT THAT A.O. HAS NOT PROPERLY APPRECIATED THE FACTS OF THE CASE AND COMMITTED A GRIEVOUS ERROR IN NOT O NLY NOT CONDUCTING PROPER INQUIRIES WITH REGARD TO THE ENTR IES MADE IN THE SEIZED DOCUMENTS BUT ALSO IN NOT MAKING THE ADDITION AND THEREFORE ASSESSMENT ORDER DATED 30.12.2009 FOR A.Y. 2008-09 IS HELD TO BE ERRONEOUS AND SAME IS ALSO PR EJUDICIAL TO THE INTEREST OF REVENUE. IN VIEW OF ABOVE DISCUS SION, ASSESSMENT MADE BY THE A.O. VIDE ORDER DATED 30.12. 2009 PASSED U/S 143(3) R.W.S; 153C/153A IS SET ASIDE WIT H THE DIRECTIONS TO MAKE FRESH ASSESSMENT DE-NOVO AFTER P ROPERLY EXAMINING AND APPRECIATING THE SEIZED MATERIAL AND CONDUCTING PROPER ENQUIRY AND AFTER AFFORDING AND OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. BEFORE US, LD. COUNSEL FOR THE ASSESSEE NARRATE D THE FACTS AND POINTED OUT THAT IN THIS CASE THE ASSESSING OFFICER HAD SENT A PROPOSAL FOR PASSING OF REVISIONARY ORDER U/S 263 TO THE COMMISSIONER THROU GH ADDL. CIT. THE CAREFUL READING OF THE PROPOSAL WOULD SHOW THAT ASSESSING O FFICER WANTS TO REVIEW HIS OWN ORDER WHICH IS NOT POSSIBLE. IN THIS REGARD HE REFERRED TO PAGE 4 OF THE PROPOSAL AND POINTED OUT THAT ASSESSING OFFICER HAS NOTED THE FACTS AND IN CASE ASSESSING OFFICER HAS COMMITTED A MISTAKE HE HAS NO AUTHORITY TO REVIEW HIS OWN ORDER. HE ALSO POINTED OUT THAT ASSESSEE HAS FI LED AN APPEAL AGAINST THE ASSESSMENT BEFORE THE CIT(A) WHO ASKED FOR A REMAND REPORT AND ASSESSING OFFICER HAS SENT HIS REPORT VIDE LETTER DATED 25.8 .2011, COPY OF WHICH IS AVAILABLE AT PAGES 168 TO 171 OF THE PAPER BOOK. R EADING OF THIS LETTER WOULD CLEARLY SHOW THAT WHATEVER STAND THE ASSESSING OFFI CER HAS TAKEN BEFORE THE CIT(A), HE HAS TAKEN A CONTRARY STAND BEFORE THE CO MMISSIONER, IN THE PROPOSAL WHICH FURTHER FORTIFIES THE ARGUMENT THAT THE ASSES SING OFFICER WANTS TO REVIEW HIS ORDER WHICH IS NOT PERMISSIBLE UNDER THE LAW H E PARTICULARLY REFERRED TO VARIOUS COMMENTS AT PAGE 171 WHEREIN ASSESSING OFFI CER HAS STATED THAT MATTER 7 WAS STILL UNDER INVESTIGATION WHICH CLEARLY SHOWS T HAT ALL THE PAPERS WERE AVAILABLE BEFORE THE ASSESSING OFFICER AT THE TIME OF ASSESSMENT. IN ANY CASE, ONCE THE SIMILAR ISSUE IS PENDING BEFORE THE APPELL ATE AUTHORITY THEN THE COMMISSIONER WOULD NOT HAVE ANY JURISDICTION TO PAS S A REVISIONARY ORDER ON THE SIMILAR ISSUE U/S 263 OF THE ACT. IN THIS REG ARD HE RELIED ON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF AERENS INFR ASTRUCTURE AND TECHNOLOGY LTD V CIT 271 ITR 15(DELHI) 11. THE LD. COUNSEL POINTED OUT THAT IN THIS CASE T HE COMMISSIONER HAS NOT EXAMINED THE FULL RECORDS BEFORE ISSUING THE SHOW C AUSE NOTICE. IN FACT, IN THIS CASE ASSESSMENT RECORDS AND SEIZED MATERIAL RECORD CONSISTED OF SIX VOLUMES WHEREAS IN THE LETTER DATED 11.1.2012 WRITTEN BY TH E ADDL. COMMISSIONER, REFERENCE IS MADE ONLY TO FOUR VOLUMES, WHICH WERE FORWARDED TO THE COMMISSIONER, WHICH MEANS SOME OF THE MATERIAL HAS NOT BEEN EXAMINED BY THE COMMISSIONER. IN FACT COMMISSIONER HAS BEEN DICTAT ED BY THE ASSESSING OFFICER TO INITIATE A PROPOSAL FOR REVISION OF THE ORDER WH ICH IS NOT POSSIBLE. HE ADMITTED THAT THOUGH IT WAS POSSIBLE FOR ASSESSING OFFICER TO SEND A PROPOSAL FOR REVISION BUT SUBMITTED THAT COMMISSIONER CANNOT BE DICTATED BY THE ASSESSING OFFICER TO REVISE THE ORDER ON PARTICULAR LINES. HE CONTENDED THAT READING OF THE SHOW CAUSE NOTICE WOULD SHOW THAT IT IS A VERBATIM COPY OF THE PROPOSAL WHICH WAS SENT BY ASSESSING OFFICER WHICH CLEARLY SHOWS THAT THE COMMISSIONER HAD NOT CALLED FOR / EXAMINED THE RECO RD AND THUS HAD NOT APPLIED HIS MIND BEFORE ISSUING THE NOTICE, THEREFORE, ORDE R PASSED BY HIM IS NOT SUSTAINABLE UNDER THE LAW. HE REFERRED TO THE DECI SION OF KOLTAKA BENCH OF ITAT IN THE CASE OF J. THOMAS & CO PVT. LTD IN ITA NO. 570/KOL./2012 FOR ASSESSMENT YEAR 2007-08, COPY OF WHICH IS FILED A T PAGES 1 TO 7 OF THE PAPER BOOK DEALING WITH THE CASE LAWS. IN THIS CASE IT IS CLEARLY OBSERVED THAT IF COMMISSIONER HAS BORROWED ONLY FORM REVENUE AUDIT O BJECTION ON THE BASIS OF WHICH REVISIONARY PROCEEDINGS WERE INITIATED AND, T HEREFORE, COMMISSIONER DID 8 NOT FORMED HIS OWN OPINION AND SUCH REVISIONARY OR DER WAS NOT SUSTAINABLE. IN THIS REGARD HE ALSO REFERRED TO THE DECISION OF ITA T JAIPUR BENCH IN THE CASE OF SHRI RAJIV ARORA VS CIT-III, 131 ITD 58 (JP) WHEREI N SIMILAR OBSERVATION WAS MADE. HE ALSO REFERRED TO THE DECISION OF HON'BLE P UNJAB & HARYANA HIGH COURT IN THE CASE OF HARI IRON TRADING COMPANY V CIT, 263 ITR 437 (P&H) W HEREIN IT WAS CLEARLY HELD THAT BEFORE INITIATING THE PROCEED INGS U/S 263, COMMISSIONER MUST CALL FOR RECORDS AND AFTER EXAMINATION AND OBT AINING SATISFACTION, ISSUE SHOW CAUSE NOTICE. IN THE CASE BEFORE US, NO SATISF ACTION HAS BEEN RECORDED AND IN THIS REGARD HE RELIED ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF PVS BEEDIS (P) LTD 237 ITR 13. HE ALSO REFERRED TO ANOTHER DECISION OF CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASE OF JAS WINDER SINGH VS CIT ITA NO. 690/CHD/2010 (2012) / 150 TTJ (CHD)(UO)33 WHERE IN IT WAS OBSERVED THAT BEFORE ISSUING NOTICE, THE COMMISSIONER SHOULD CALL FOR THE RECORDS AND EXAMINE THE SAME AND RECORD THE SATISFACTION AND THEN ISSUE THE SHOW CAUSE NOTICE. HE ALSO REFERRED TO THE DECISION OF HON'BLE MADRAS HIG H COURT IN THE CASE OF MADURA COATS LTD, MADURAI V COLLECTOR OF CENTRAL EX CISE, MADURAI & OTHERS 1979 (4) E.L.T. (J16)(MAD.) WHEREIN IT WAS OBSERVED THAT DEPARTMENT WHILE ISSUING SHOW CAUSE NOTICE SHOULD EXAMINE THE FACTS PROPERLY AND SHOULD NOT BEHAVE IN A PARROT LIKE FASHION. HE ALSO REFERRED TO THE DECISION OF HON'BLE SUPREME COURT IN THE CASE CIT VS SHRI MANJUNATH EES HWARE PACKING PRODUCTS AND CAMPHOR WORKS 231 ITR 53 (SC) WHEREIN THE MEANI NG OF WORD RECORD WAS EXPLAINED AND IT WAS HELD THAT IF THE ASSESSING OFF ICER SENDS A PROPOSAL TO COMMISSIONER AGAINST HIS OWN ORDER WHICH IS IN THE NATURE OF DICTATION TO COMMISSIONER THEN THE REVISION IS NOT POSSIBLE AND IF ORDER IS BASED ON SUCH LINES THE SAME IS NOT MAINTAINABLE. HE ALSO RELIED ON THE FOLLOWING DECISIONS:- I. APOLLO TYRES LTD V ACIT ITAT COCHIN BENCH IN ITA NO . 774 (COCH) OF 1995 II. EMPEE BREWERIES LTD V DCIT, ITAT CHENNAI BENCH [201 1] 48 SOT 104 (CHENNAI) III. HINDUSTAN LEVER LTD V CIT {2011] 335 ITR 108 (CAL.) 9 IV. MRS KHATIZA S. OOMERBHOY V ITO 100 ITD 173 (MUM) 12. HE AGAIN REFERRED TO THE PROPOSAL AND POINTED O UT THAT ADDL. COMMISSIONER OF I. TAX HAS WRITTEN A LETTER DATED 1 1.1.2012 ON THE BASIS OF WHICH THE COMMISSIONER HAS GIVEN DIRECTIONS TO ISSUE NOTI CE WHICH BECOMES CLEAR FROM HIS NOTING ON THIS LETTER ITSELF ON 12.1.2012. THI S ITSELF SHOWS THAT COMMISSIONER HAS NOT APPLIED HIS MIND BECAUSE IT IS NOT POSSIBLE TO EXAMINE THE ASSESSMENT RECORDS AND VOLUMINOUS SEIZED MATERIAL IN ONE DAY. IN THIS REGARD HE RELIED ON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF DLF COMMERCIAL PROJECTS CORPORATION VS ACIT , 212 TAXMAN 43 (DEL.) THE L D. COUNSEL SUBMITTED THAT ONCE ASSESSMENT WAS COMPLETED ON THE BASIS OF SEIZE D MATERIAL AND UNDER CONTROL OF CIT, THEN NO REVISION OF THE SAME WAS POSSIBLE. RELIANCE WAS PLACED ON 196 ITR 188 (SC). HE ALSO REFERRED TO THE PARA 16 OF THE ASSESSMENT ORDER AND SUBMITTED THAT IN THIS CASE DURING THE SEARCH ASSES SEE HAS SURRENDERED A SUM OF RS. 8.5 CRORES BUT THE RETURN WAS FILED FOR RS. 3,3 7,85,728/-. THE ASSESSING OFFICER HAS ULTIMATELY ASSESSED THE INCOME AT RS. 8 .5 CRORES WHICH MEANS THAT ASSESSING OFFICER HAS TAKEN ONE OF THE POSSIBLE V IEW AND, THEREFORE, THE ASSESSMENT ORDER CANNOT BE CALLED ERRONEOUS AND PRE JUDICIAL TO THE INTEREST OF REVENUE. IN THIS REGARD HE RELIED ON THE DECISION O F HON'BLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD V CIT 243 ITR 83 (SC) AND CIT VS MAX INDIA LTD. 295 ITR 282 (SC). 13. THE LD. COUNSEL ALSO SUBMITTED THAT COMMISSIONE R HAS NOT RECORDED ANY SATISFACTION IN THE SHOW CAUSE NOTICE THAT THE ORDE R IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THE ORDER ONLY TALKS O F THE UNDER ASSESSMENT OF INCOME. IN ANY CASE, IN THE ORDER PASSED BY THE CO MMISSIONER, NO SPECIFIC FINDING HAS BEEN GIVEN TO SHOW THAT ASSESSMENT ORDE R IS ERRONEOUS AND PREJUDICIAL TO THE REVENUE. 10 14. HE ALSO REFERRED TO LETTER DATED 23.3.2009, COP Y OF WHICH IS AVAILABLE FROM PAGES 80 TO 84 OF THE PAPER BOOK. HE PARTICULARLY INVITED OUR ATTENTION TO PAGE 83 IN WHICH EXPLANATION WAS GIVEN HOW PRACTICALLY T HE SURRENDERED INCOME OF RS. 8.5 CRORES WAS OFFERED IN VARIOUS HANDS. HE ALS O REFERRED TO THE LETTER ADDRESSED BY THE ASSESSING OFFICER TO ADDL. COMMIS SIONER OF I.TAX, RANGE-3 (AT PAGE 131), WHICH SHOWS THAT PAPERS WERE FILED I N CASE OF RUPINDER SINGH ALSO AND THAT IS WHY THE ASSESSING OFFICER HAS TAKE N THE PAIN TO GIVE INFORMATION TO THE ADDL. COMMISSIONER FOR TAKING FURTHER ACTION WHICH CLEARLY SHOWS THAT VARIOUS REPLIES WERE FILED BY THE ASSESSEE. HE ALS O REFERRED TO PAGES 86 TO 88 OF THE PAPER BOOK WHICH IS COPY OF THE LETTER DATED 22 .12.2009 IN WHICH IT WAS CLARIFIED HOW SOME SHARES OF PROPERTY IN THE CONCE RNED PAPERS FOUND DURING THE SEARCH DID NOT BELONG TO THE ASSESSEE. 15. THE LD. COUNSEL HAD RELIED ON LETTER DATED 3.12 .2013 WHICH CONTAINED MODIFIED ANALYSIS OF VARIOUS DOCUMENTS FILED BY HIM THROUGH WHICH ACCORDING TO HIM THE ASSESSEE HAS EXPLAINED TO THE ASSESSING OFF ICER THE NATURE OF TRANSACTIONS CONTAINED IN THESE DOCUMENTS AND HOW S OME OF THEM DID NOT BELONG TO ASSESSEE. WE HAVE CONSIDERED THIS LETTER ALSO. HE ALSO RELIED ON LETTER DATED 6.11.2013 THROUGH WHICH COPY OF THE ASSESSMENT ORDE R HAS BEEN FILED IN THE CASE OF SHRI HARINDER SINGH. HE POINTED OUT THAT DURING ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER WAS CLEARLY INFORMED THAT IN MANY PROPERTIES, SHRI HARINDER SINGH WAS HOLDING 50% SHARE AND THAT IS WHY A SUM O F RS. 2,98,39,000/- WAS OFFERED IN HIS HANDS ON ACCOUNT OF DOCUMENTS FOUND DURING SEARCH. WE HAVE CONSIDERED THESE PAPERS ALSO. THROUGH LETTER DATED 19.2.2013, THE LD. COUNSEL OF THE ASSESSEE HAS SOUGHT TO DISTINGUISH DECISIONS RELIED ON BY THE COMMISSIONER IN HIS ORDER. WE HAVE CONSIDERED THESE OBSERVATIONS ALSO. 16. THE LD. COUNSEL WHILE CONCLUDING THE ARGUMENTS SUBMITTED THAT DOCUMENTS HAVE BEEN FILED AND EXPLAINED DURING THE ASSESSMENT PROCEEDINGS IN 11 THE CASE OF ASSESSEE COMPANY AND OTHER DIRECTORS. IT WAS FURTHER POINTED OUT THAT NO REASONS HAVE BEEN RECORDED BY THE COMMISSIO NER HENCE NO PROCEEDINGS U/S 263 OF THE ACT WERE POSSIBLE. IN THIS REGARD, HE RELIED ON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS NEW DELHI TELEVISION LTD 360 ITR 44 (DELHI) AND PARTICULARLY REFERRED TO THE OBS ERVATIONS AT PAGE 59 OF THIS ORDER 17. ON THE OTHER HAND, LD. DR SUBMITTED THAT PERU SAL OF THE ASSESSMENT ORDER WOULD CLEARLY SHOW THAT ASSESSEE WAS NOT COOP ERATING IN THE ASSESSMENT PROCEEDINGS. IN THIS REGARD HE REFERRED TO COPIES OF NOTING SHEE TS FILED AT PAGES 5 TO 9 OF THE DEPARTMENTAL PAPER BOOK . THE ASSESSEE WAS FILING SOME INFORMATIONS UP TO MARCH, 2009 BUT WHEN THE INCUMBENT ASSESSING OFFICER GOT TRANSFERRED AND NEW ASSESSING OFFICER CAME THEN ASSESSEE HARDLY MAD E ANY APPEARANCE AND NO PROPER INFORMATION WAS FILED. IN THIS REGARD HE CA RRIED US THROUGH VARIOUS PARTS OF THE ASSESSMENT ORDER. HE POINTED OUT THAT IN TH IS CASE A SEARCH WAS CONDUCTED IN THE PREMISES OF SHRI SURESH KUMAR KHANNA WHO IS DIRECTOR OF THE ASSESSEE COMPANY. VARIOUS DOCUMENTS SHOWING PURCHASE OF VARI OUS PROPERTIES WERE FOUND. SIMULTANEOUSLY, A SEARCH WAS CONDUCTED IN T HE PREMISES OF ONE SHRI DEEPAK CHAUHAN, WHO IS BROTHER-IN-LAW OF SHRI SURES H KUMAR KHANNA AMD VARIOUS DOCUMENTS WERE FOUND AT HIS RESIDENCE ALSO AND HE CLEARLY STATED THAT THESE DOCUMENTS BELONGS TO BASERA REALTORS PVT LTD. THIS FACT WAS ADMITTED BY SHRI SURESH KUMAR KHANNA. ULTIMATELY ON 21.2.2008, SHRI SURESH KUMAR KHANNA ADMITTED THE FACT OF THE INCRIMINATING DOCU MENTS AND OFFERED TO DECLARE A SUM OF RS. 8.5 CRORES IN FINANCIAL YEAR 2007-08. THIS WAS FURTHER CONFIRMED BY A LETTER DATED 21.2.2008 IN WHICH ALL THE DIRECT ORS HAVE SIGNED AND OFFER OF SURRENDER OF RS. 8.5 CRORES WAS REITERATED. AGAIN, THE STATEMENT OF SHRI SURESH KUMAR KHANNA WAS RECORDED ON 24.3.2008 IN WHICH HE AGAIN CONFIRMED THE FACT OF SURRENDER OF RS. 8.5 CRORES. DESPITE THIS SURRE NDER, THE RETURN WAS FILED ONLY FOR RS. 3,37,85,728/-. THIS SHOWS THAT ASSESSEE WA S NOT COOPERATING WITH THE 12 DEPARTMENT. WHEN THE RETURN WAS FILED ONLY FOR RS. 3.37 CORES, THE ASSESSING OFFICER SHOULD HAVE BEEN MORE VIGILANT TO VERIFY VA RIOUS DOCUMENTS AND COMPLETED THE ASSESSMENT ACCORDINGLY WHICH HAS NOT BEEN DONE PERHAPS THE ASSESSING OFFICER WAS CONSCIOUS OF THIS FACT AND MA Y BE THIS WAS BECAUSE OF NON APPEARANCE OF THE ASSESSEE AND THAT IS WHY HE SENT A PROPOSAL FOR REVISION OF THE ORDER TO THE CONCERNED COMMISSIONER THROUGH ADDL. C OMMISSIONER. IN THIS BACKGROUND, IT WAS SUBMITTED THAT FIRST OF ALL THER E IS NO BAR ON SENDING OF THE PROPOSAL BY THE ASSESSING OFFICER FOR REVISION OF T HE ORDER AND IN THIS REGARD, HE RELIED ON THE DECISION OF HON'BLE ALLAHABAD HIGH CO URT IN THE CASE OF CIT VS BHAGAT SHYAM & CO. 188 ITR 608 (ALL.) IN THE CASE O F JAGDISH KUMAR GULATI V CIT (269 ITR 71) THEREFORE, THE ASSESSING OFFICER HAS FULL POWER TO SEND A PROPOSAL TO THE COMMISSIONER FOR REVISION OF THE OR DER. 18. HE FURTHER SUBMITTED THAT IT IS NOT CORRECT THAT SHOW CAUSE NOTICE IS VERBATIM COPY OF THE PROPOSAL SENT BY THE ASSESSING OFFICER. NO DOUBT, THE REFERENCE TO THE NOTICE AND NON-APPEARANCE BY THE A SSESSEE HAS BEEN COPIED FROM THE PROPOSAL. SIMILARLY, THE RELEVANT PORTION OF T HE STATEMENT OF SHRI SURESH KUMAR KHANNA REGARDING DISCLOSURE AND THE LETTER WR ITTEN BY ALL FOUR DIRECTORS IS ALSO A COPY. SIMILARLY, DOCUMENTS FOUND DURING THE SEARCH AS WELL AS DETAILS OF PAYMENTS MADE IN CASH HAVE ALSO BEEN COPIED BUT THE COMMISSIONER COULD NOT DEVIATE FROM THE FACTUAL MATRIX. THE LD. COMMISSION ER HAS VERY CLEARLY IN PARA 6, 7 & 8 OF THE SHOW CAUSE NOTICE GIVEN THE REASONS WHY THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. FURTHE R, THIS HAS TO BE EXAMINED IN THE LIGHT OF THE CONDUCT OF THE ASSESSEE BY NOT AP PEARING BEFORE THE ASSESSING OFFICER PARTICULARLY AFTER CHANGE OF INCUMBENT OFFI CER IN MARCH 2009. IN THIS REGARD HE REFERRED TO THE DECISION OF HON'BLE PATNA HIGH COURT IN THE CASE OF CIT V SMT. RITA KESHRI 242 CTR 318 (PATNA) WHEREIN THE HON'BLE HIGH COURT PASSED STRICTURES AGAINST THE ASSESSEE WHILE UPHOLD ING THE REVISIONARY ORDER U/S 263 OF THE ACT AND IN THIS REGARD HE PARTICULARLY R EFERRED TO PARA 11 OF THE 13 JUDGMENT. HE REFERRED TO THE ASSESSMENT ORDER PA SSED BY ASSESSING OFFICER AND POINTED OUT THAT ASSESSEE HAS NOT APPEARED ON V ARIOUS DATES AND DID NOT FILE RELEVANT INFORMATION. AT THE SAME TIME, WHATEVER I NFORMATION WAS FILED HAS NOT BEEN EXAMINED BY THE ASSESSING OFFICER AND IT IS A SIMPLE CASE OF NO ENQUIRY WHICH ITSELF WOULD MAKE THE ASSESSMENT ORDER ERRONE OUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AND IN THIS REGARD HE RELIED ON THE DECISIONS CITED BY LD. COMMISSIONER. HE ALSO STRONGLY RELIED ON THE DECISI ON OF HON'BLE DELHI HIGH COURT IN THE CASE OF GEE VEE ENTERPRISES V ADDL. CO MMISSIONER OF INCOME TAX 99 ITR 375 (DELHI). THERE IS NO FORCE IN THE SUBMISSIONS THAT ASSESSING OFFICER HAS TAKEN ONE OF THE POSSIBLE VIEW MERELY BECAUSE A SSESSING OFFICER HAS MADE ASSESSMENT AT THE SURRENDERED AMOUNT. WHEN ASSESSE E HAS NOT HONOURED THE SURRENDER, THEN THE ASSESSING OFFICER WAS DUTY BOUN D TO EXAMINE ALL THE DOCUMENTS AND THEN REACH TO PROPER ASSESSABLE INCOM E. HE SUBMITTED THAT IF INCOME IS ASSESSED AT SURRENDERED AMOUNT WITHOUT IN QUIRY SUCH ORDER WOULD BE TREATED AS ERRONEOUS AND PREJUDICIAL TO THE INTERES T OF REVENUE AND IN THIS REGARD HE RELIED ON THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF SMT. LAJJA WATI SINGHAL V CIT 226 ITR 527 (ALL.). 19. THE LD. DR POINTED OUT THAT THERE IS NO FORCE I N THE SUBMISSIONS THAT ASSESSEE COMPANY ALONGWITH OTHERS HAS ALREADY SURRE NDERED MORE OR LESS THE SAME AMOUNT WHICH WAS DECLARED DURING THE SEARCH. THIS FACT WAS STATED BEFORE THE COMMISSIONER VIDE LETTER DATED 5.7.2011 WHICH I S AVAILABLE IN ASSESSEES PAPER BOOK AT PAGES 164 TO 167, WHEREIN THE DETAILS OF INCOME DECLARED / SURRENDERED HAS BEEN GIVEN. IN THIS REGARD, HE REF ERRED TO THE DETAILS GIVEN IN THE REVENUES PAPER BOOK AT PAGES 2 & 3 WHICH IS DE TAILS OF RETURNED INCOME AND ASSESSED INCOME OF ASSESSEE COMPANY AND ITS DIR ECTORS. THIS CLEARLY SHOWS THAT ASSESSEE HAS NEVER OFFERED FOR TAXATION THE AM OUNT SURRENDERED. IN FACT, ASSESSEE HAS FILED ONLY RETURN FOR RS. 3.37 CRORES IN ASSESSMENT YEAR 2007-08. IN CASE OF SHRI DINESH CHAUHAN, SHRI UPIDNER SINGH AND SHRI SURESH KUMAR 14 KHANNA, RETURNS WERE FIELD FOR NORMAL INCOME AND AS FAR AS RETURN OF SHRI HARINDER SINGH IS CONCERNED, THE AMOUNT OF RS. 298. 39 LAKHS IS THE INCOME ASSESSED BY ASSESSING OFFICER ON ACCOUNT OF SUPPRES SED DOCUMENTS AND THE RETURN OF INCOME WAS ONLY RS. 1,50,0000/-. WHEN TH IS DIFFERENCE WAS NOTICED BY THE BENCH, THE SAME WAS PUT TO THE LD. COUNSEL OF T HE ASSESSEE WHO TRIED TO EXPLAIN IT BUT THE REPLY WAS EVASIVE. HE SIMPLY SU BMITTED THAT RETURNS HAVE BEEN FILED FOR SIX YEARS AND IF INCOME FOR SIX YEARS WAS COUNTED THEN THE SAME WOULD REACH THIS FIGURES. WE SHALL DEAL WITH THE SAME WH ILE GIVING OUR FINDINGS . SIMILARLY, LD. DR REFERRED TO SOME OTHER DOCUMENTS REFERRED TO BY THE LD. COUNSEL AND SUBMITTED THAT THESE DOCUMENTS DO NOT E XPLAIN HOW THEY DO NOT BELONG TO THE COMPANY OR BELONG TO SOMEBODY ELSE. 20. HE FURTHER SUBMITTED THAT THE LD. COUNSEL HAD S UBMITTED THAT HE HAS ALREADY EXPLAINED THAT HOW NOTICE WAS COMPLETE VERB ATIM COPY OF THE PROPOSAL. EVEN IF IT IS PRESUMED THAT THE NOTICE WAS COPY OF THE PROPOSAL, THE LD. COMMISSIONER HAS GIVEN DETAILED FINDINGS AND THEREF ORE, IT CANNOT BE SAID THAT COMMISSIONER HAD NOT APPLIED HIS MIND. IN THIS REG ARD, HE REFERRED TO PAGE 14 OF THE ORDER PASSED U/S 263 WHEREBY LD. COMMISSIONE R HAS GIVEN THE DETAILED FINDINGS FROM PAGES 14 TO 34 AND HAS RELIED ON VAR IOUS DECISIONS AT PAGES 31 TO 34. THE READING OF THE PAGES CLEARLY SHOWS THAT CO MMISSIONER HAS AFTER DETAILED EXAMINATION OF THE RECORDS REACHED THE CONCLUSION T HAT ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E. 21. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREF ULLY IN THE LIGHT OF MATERIAL ON RECORD AS WELL AS THE PAPER BOOK FILED BY BOTH THE PARTIES AND ALSO THE JUDGMENTS RELIED UPON BY BOTH THE PARTIES. BE FORE WE PROCEED FURTHER IT IS PERTINENT TO NOTE THAT THIS CASE WAS HEARD ON VARIO US DATES AND THE LD. COUNSEL HAD MADE REPETITIVE ARGUMENTS ON VARIOUS DATES. HE HAD ALSO RELIED ON CERTAIN JUDGMENTS UNDER SALES TAX LAWS OR OTHER LAWS (NOT R EPORTED IN ITRS) FOR WHICH 15 COPIES WERE NOT AVAILABLE WITH HIM, THEREFORE, WE H AD CLEARLY TOLD THE LD. COUNSEL THAT IN THE ABSENCE OF COPIES OF THE JUDGME NTS, SUCH JUDGMENTS COULD NOT BE CONSIDERED BECAUSE TRIBUNAL LIBRARY DOES NOT HAVE THOSE BOOKS. EVEN IN THE PAPER BOOK DEALING WITH THE CITATIONS, VOLUMINO US JUDGMENTS WERE RELIED UPON AND THEREFORE, WE ASKED HIM TO POINT OUT THE J UDGMENTS WHICH ARE RELEVANT TO THE CASE AND WHATEVER JUDGMENTS WERE POINTED OUT HAVE BEEN CONSIDERED ABOVE WHILE RECORDING HIS SUBMISSIONS. FURTHER, DUR ING THE COURSE OF HEARING IT WAS NOTICED THAT PAPER BOOK NO.1 CONTAINED MANY DOC UMENTS WHICH WERE NOT AVAILABLE IN THE RECORDS OF THE REVENUE. LD. COUNS EL HAD SOUGHT SOMETIME TO VERIFY THIS AND LATER ON VIDE LETTER DATED 15.1.201 4 HE HAS SOUGHT TO WITHDRAW THE PAPER BOOK AND REPLACED THE SAME WITH MODIFIED PAPER BOOK WHICH WAS FILED ON 11.10.2013 AND, THEREFORE, THIS PAPER BOOK HAS B EEN CONSIDERED BY US. 22. M/S BASERA REALTORS (P) LTD IS A COMPANY INCORP ORATED ON 15.9.2005 AND IS ENGAGED IN THE BUSINESS OF REAL ESTATE. THE COMP ANY HAD FOLLOWING DIRECTORS. 1. SHRI SURESH KHANNA 2. SHRI RUPINDERDEEP SINGH 3. SHRI SAHIBIT SINGH 4. SHRI JAI INDER SINGH 23. A SEARCH WAS CONDUCTED AT THE RESIDENTIAL PREMI SES OF SHRI SURESH KUMAR AND SHRI RUPINDERDEEP SINGH, DIRECTORS OF THE COMPA NY ON 21.2.2008. A SEARCH WAS ALSO CONDUCTED IN THE RESIDENTIAL PREMISES OF O NE SHRI DEEPAK CHAUHAN WHO IS BROTHER-IN-LAW OF SHRI SURESH KHANNA, DIRECTOR AND WAS ALSO AN EMPLOYEE OF THE COMPANY. A SURVEY WAS ALSO CONDUCTED IN THE PRE MISES OF THE ASSESSEE COMPANY. DURING THE SEARCH / SURAVEY, VARIOUS INCR IMINATING DOCUMENTS WERE FOUND WITH THOSE PERSONS. IN THE STATEMENT RECORDED SHRI SURESH KHANNA CLEARLY STATED THAT ALL THE DOCUMENTS BELONG TO THE COMPANY AND HE OFFERED TO SURRENDER 16 A SUM OF RS. 8.5 CRORES IN THE HANDS OF THE ASSESSE E COMPANY FOR FINANCIAL YEAR 2007-08. THE RELEVANT ANSWERS TO THE QUESTIONS IN THIS RESPECT ARE AS UNDER:- Q. 16. YOUR PASSPORT AND SOME DOCUMENTS IN A BAG A RE FOUND BY ANOTHER SEARCH PARTY FROM THE RESIDENCE OF SH. DEEP AK CHAUHAN, # K-6 SOUTH CITY LUDHIANA. YOU ARE REQUEST ED TO EXPLAIN THE REASON OF THESE DOCUMENTS BEING THERE ? ANS. I CAN EXPLAIN THIS ONLY AFTER GOING THROUGH TH E DOCUMENTS IN THAT BAG. Q. DURING THE COURSE OF SEARCH AND SEIZURE OPERATIO N AT THE RESIDENCE OF SH. DEEPAK CHAUHAN K-6, SOUTH CITY, CE RTAIN DOCUMENTS IN YOU NAME HAVE BEEN FOUND AND SEIZED. T HE DOCUMENTS IN THE FORM OF DIARIES AND REGISTERS, AGR EEMENTS HAVE BEEN FOUND WHICH CONTAINS A DETAILS OF CASH PA YMENTS MADE BY YOU OR OTHER DIRECTORS OF M/S BASERA GROUP AND PAYMENT RECEIVED BY YOU IN CASH FROM DIFFERENT PART IES. I AM SHOWING YOU THAT ANNEXURE AND PANCHNAMA A-1 TO A-35 FOUND AND SEIZED FRO THE RESIDENCE OF SH. DEEPAK CHAUHAN. ANS: I HAVE GONE THROUGH THE ABOVE ANNEXURE A-1 TO A-35 AND STATE THAT THESE ANNEXURES CONTAINS THAT THE DETAIL S OF BOTH ACCOUNTED AS WELL AS UNCOUNTED TRANSACTIONS MADE BY ME OR OTHER GROUP MEMBERS OF BASERA GROUP. AT THE TIME IT IS DIFFICULT TO RECONCILE ALL THE PAPERS. HOWEVER, I H AVE CONSULTED MY COUNSEL SH. ANIL KHANNA CA AND OTHER DIRECTORS AND TO AVAIL THE OPPORTUNITY U/S 132 (4) OF THE I.T. ACT, 1961 VOLUNTARILY DISCLOSED AN ADDITIONAL INCOM E OF RS. 850 LAKHS FOR THE FINANCIAL YEAR 2007-08. THIS DISC LOSURE IS OVER AND ABOVE OUR NORMAL INCOME AND IS IN THE HAND S OF OUR COMPANY M/S BASERA REALTORS PVT. LTD. LUDHIANA, 10 CANAL VIEW, SOUTH CITY, LUDHIANA. THIS DISCLOSURE IS BEIN G MADE ON BEHALF OF MY COMPANY AND IS SUBJECT TO NO PENAL ACT ION. 17 FURTHER, A LETTER DATED 21.2.2008 WAS ALSO GIVEN BY THE COMPANY WHICH WAS SIGNED BY ALL THE DIRECTORS OF THE COMPANY CONFIRMI NG THE AMOUNT OF SURRENDER. THE LETTER READS AS UNDER:- (II) LETTER DATED 21.02.2008 SIGNED BY S/SH. SURES H KUMAR KHANNA, SH. RUPINDERDEEP SINGH, SAHIBJIT SINGH & JA I INDER SINGH APPLICATION FOR DISCLOSURE OF ADDITIONAL INCOME FO R F.Y. 2006-07, 2007-08 UNDER SEC 132(4) OF INCOME TAX ACT , 1961 (2006-07 AND 2007-08): TODAY A SEARCH UNDER SEC 132 OF INCOME TAX ACT, 1 961 IS CONDUCTED AT OUR VARIOUS PREMISES (OFFICES & RES IDENCES ) WHICH IS STILL GOING ON DURING COURSE OF SEARCH & S URVEY AT OUR VARIOUS OFFICES, RESIDENCES, CERTAIN LOOSE PAPE RS HAVE BEEN FOUND. TO PURCHASE PEACE OF MIND AND TO AVOID LITIGATION WE HEREBY OFFER TO DISCLOSE AN ADDITIONA L INCOME OF RS. 850 LACS (RS. EIGHT CRORE & FIFTY LAC) ONLY FOR THE FINANCIAL YEAR 2006-07 & 2007-08 IN ADDITION TO OUR NORMAL INCOME IN THE HANDS OF OUR CO. M/S BASERA REALTORS PVT. LTD. 10 CANAL VIEW SOUTH CITY LUDHIANA. THIS OFFER OF DI SCLOSURE HAS BEEN MADE SUBJECT TO NO PENALTY. THIS DISCLOSUR E HAS BEEN MADE WITHOUT PRESSURE AND IS VOLUNTARILY. THANKING YOU YOURS FAITHFULLY FOR BASERA REALTORS (P) LTD. SD/- SD/- SD/- SD/- SURESH KUMAR JAI INDER SINGH RUPINDERDEEP SINGH SAHIBJIT SINGH (III) STATEMENT DATED 24.03.2008 Q. I AM CONDUCTING THE OPERATION OF SEALED PREMISE S U/S 132(3) TODAY AT YOUR HOUSE PREMISES, HAVE YOU SAY ANYTHING MORE ? 18 ANS. NO I HAVE ALREADY GIVEN A SURRENDER LETTER OF RS. 8.5 CRORE, WHEREIN I HAD DISCLOSED ADDITIONAL INCOME FO R F/Y 2006-07 & 2007-08 IN THE HANDS OF M/S BASERA REALTORS PVT. LTD. LUDHIANA, WHICH I AGAIN CONFIRM TO A CORRECT & WITHOUT ANY PRESSURE I WILL DEPOSIT THE D UE TAXES WITHIN THE PRESCRIBED TIME. THIS WAS CONFIRMED IN THE STATEMENT RECORDED ON 24. 3.3008. THEREAFTER, A NOTICE U/S 143(2) WAS ISSUED AND ASSESSEE COMPANY FILED A RETURN DECLARING INCOME OF RS. 3,37,85,728/-. THE ASSESSEE COMPANY ATTENDED S OME OF THE ASSESSMENT PROCEEDINGS AND FILED CERTAIN PAPERS BEFORE 25.3.20 09. THE CASE WAS DISCUSSED BY THE THEN ASSESSING OFFICER WITH THE ASSESSEE BUT ORDER WAS NOT FINALIZED. ON THAT DATE, THE INCUMBENT ASSESSING OFFICER WAS TRAN SFERRED AND NEW OFFICER TOOK THE CHARGE. ON PERUSAL OF THE RECORDS, HE NOTICED THAT COMPLETE INFORMATION AND DETAILS WERE NOT AVAILABLE, THEREFORE, FRESH NOTICE WAS ISSUED U/S 143(2) ON 16.6.2009, 18.9.2009 AND 26.10.2009. IT HAS BEEN O BSERVED BY THE ASSESSING OFFICER IN PARA 2 OF THE ASSESSMENT ORDER THAT ASSE SSEE IS NOT COOPERATING AND HAS NOT FILED COMPLETE INFORMATION; THEREFORE, HE H AS PROCEED TO FINALIZE THE ASSESSMENT U/S 144. THE REVENUE HAS FILED BEFORE U S COPIES OF VARIOUS NOTING SHEETS DURING THE ASSESSMENT PROCEEDINGS AND NOTING SHEETS STARTING FROM 16.6.2009 TILL 30.12.2009 READS AS UNDER:- 16.06.2009 NOTICE U/S 143(2) AND 142(1) ALONGWITH QUESTIONNAI RE FOR 25.06.2009 ISSUED. 25.06.2009 NONE ATTENDED. ISSUE FRESH NOTICE 18.06.2009 NOTICE U/S 143(2) AND 142(1) ALONGWITH QUESTIONNAI RE FOR 29.09.2009 ISSUED. 29.09.2009 LETTER FOR ADJOURNMENT. THE PERIOD FOR COMPLIANCE OF NOTICE U/S 142(1) IS EXTENDED TO 09.10.2009 09.10.2009 LETTER FOR ADJOURNMENT. THE PERIOD FOR COMPLIANCE OF NOTICE U/S 142(1) IS EXTENDED TO 21.10.2009. 26.10.2009 NONE ATTENDED. NOTICE U/S 143(2) AND 142(1) ALONGW ITH SHOW CASE NOTICE AND DETAILED EXAMINATION NOTE AS P ER SEIZED DOCUMENTS AS PER ANNEXURE-C ISSUED FOR 03.11.2009 19 01.11.2009 DUE TO TRAINING AT SHIMLA ON 03.11.2009, THE CASE CANT BE TAKEN UP. THE CASE IS ACCORDINGLY ADJOURNED TO 0 6.11.2009 AND INFORMED SH. ASIM ATREY, CA ON HIS MOBILE PHONE NO. 98723-44556 AT 10.07 AM. 09.11.2009 PRESENT SH. ASIM ATREY, CA AND SOUGHT EXTENSION OF TIME FOR COMPLIANCE OF NOTICES. THE PERIOD FOR COMP LIANCE OF NOTICE IS EXTENDED TO 13.11.09. 13.11.2009 PRESENT SH. ASIM ATREY, CA AND SOUGHT EXTENSION OF TIME FOR COMPLIANCE OF NOTICES. THE PERIOD FOR COMP LIANCE OF NOTICES IS EXTENDED TO 19.11.2009. 19.11.2009 NOTICE U/S 142(1) ALONGWITH PENALTY NOTICE U/S 271( 1)(B) FOR 24.11.2009 ISSUED. 24.11.2009 ASSESSEES REQUEST FOR INSPECTION OF FILES RECEIVE D. ASKED TO HAVE INSPECTION. 03.12.2009 REPLY TO THE NOTICES NOT RECEIVED THOUGH THE INSPE CTION OF FILES ALREADY COMPLETED ON 27.11.2009. SHOWN CAU SE NOTICE FOR 04.12.2009 ISSUED. 08.12.2009 NOTICE U/S 143(2)/142(1) ALONGWITH SHOW CAUSE NOTI CE FOR 11.12.2009 ISSUED AS NO COMPLIANCE TO EARLIER N OTICES RECEIVED. 11.12.2009 PRESENT SH. HARI OM ARORA, ADVOCATE ALONGWITH SH. GURPREET SINGH, ADVOCATE AND SH. ASIM ATTREY, CA ON BEHALF OF ASSESSEE. REPLY DATED 04.12.2009/11.12.2009 FILED. CASE DISCUSSED. DURING ASSESSMENT PROCEEDINGS, IT IS STATED THAT TH E LETTERS AND THE DISCUSSION REFERRED TO IN THE LETTER DATED 11.1 2.2009 PERTAINS TO THOSE LETTER AND DISCUSSION HELD WITH MY PREDECESSO R. LIST OF STOCK INVENTORY ALSO SUPPLIED FOR COMMENTS AND RECONCILIA TION, IF ANY. ASKED TO FURNISH FOLLOWING DETAILS/DOCUMENTS, IF DE EM FIT ON THE FOLLOWING POINTS/ISSUE: I) COMMENTS ON STOCK INVENTORY, A COPY OF WHICH SUPPLI ED. II) COMMENTS W.R.T. THE STATEMENT OF SH. JAI INDER SING H. III). TO FURNISH A COPY EACH FOR THE A.Y. 2006-07, 2007-08 AND 2008-09 OF CASH BOOK/LEDGER/JOURNAL ETC. FOR RECONC ILIATION OF DOCUMENTS ON REPORTEDLY RECORDED IN THE BOOKS OF A/ CS. IV) ANY OTHER SUPPORTING DOCUMENT/CLASSIFICATION W. R.T SEIZED MATERIAL WHICH THE ASSESSEE INTENDED TO FILE IN SUP PORT OF SEIZED MATERIAL. V) PEN DRIVE WAS SEIZED WHICH WAS OPERATED UPON IN MARCH 2009 A COPY OF WHICH WERE ALSO SUPPLIED TO THE ASSESSEE AND RETAINED BY THIS OFFICE. IN CASE THE ASSESSEE INTEN D TO OPERATE THE PEN DRIVE AGAIN, HIS CONSENT AND PRODUCE THE TW O WITNESSES FOR OPERATION WITH PRIOR INTIMATION SO THAT IT IS O PERATED BEFORE THE NEXT DATE OF HEARING. 20 THE CASE IS FINALLY ADJOURNED TO 15.12.2009 AS DES IRED WHEN THE PROCEEDINGS WILL BE CLOSED BE BEING A LIMITATIO N MATTER. 15.12.2009 PRESENT SH. ASIM ATTREY, CA. PART REPLY FILED. BOO KS OF A/C NOT PRODUCED. ASKED TO FILE REMAINING INFORMATI ON SUPPORTED WITH DOCUMENTARY EVIDENCE SO THAT THE SUBMISSIONS MADE C OULD BE VERIFIED. ADJOURNED TO 17.12.2009. THIS IS CONSOLIDATED REPLY IN RESPECT OF ALL THE TH REE YEARS OF ASSESSMENT PENDING. THE ASSESSEE ALSO SUBMITTED A C ONSOLIDATED ASSETS AND LIABILITIES STATEMENT FOR THESE YEARS OF THE COY BUT IT IS ACCOMPANIED WITH SUPPORTING DOCUMENTS. ASKED TO FUR NISH DOCUMENTARY EVIDENCE IN SUPPORT OF ACCRETION TO ASS ETS AND LIABILITIES. ALSO ASKED TO FURNISH SUPPORTIVE EVIDE NCE OF EARLIER REPLY DATED 11.12.2009 RUNNING INTO 32 PAGES FILED. ADJOU RNED TO 17.12.2009. 18.12.2009 NONE ATTENDED. NOTICE U/S 142(1) ALONGWITH SHOW CA USE NOTICE FOR 22.12.2009 ISSUED. 22.12.2009 REPLY TO THE SHOW CAUSE NOTICE DATED 18.12.2009 RECEIVED AND PLACED ON RECORD. 30.12.2009 ORDER U/S 153C/143(3)/PENALTY NOTICE U/S 271(1)(C) ISSUED. FBT ORDER ALSO ISSUED. 24. THE ABOVE CLEARLY SHOWS THAT ON MOST OF THE DAT ES THE ASSESSEE APPLIED FOR ADJOURNMENTS AND VERY LITTLE INFORMATION WAS SUBMIT TED THAT IS WHY THE ASSESSING OFFICER WAS FORCED TO FRAME THE ASSESSMEN T U/S 144. AFTER NARRATING THE SEQUENCE OF EVENTS HOW INFORMATION WAS NOT FILE D AND WHATEVER WAS FILED WAS NOT COMPLETE, THE ASSESSING OFFICER MADE FOLLO WING OBSERVATION IN PARA 16 OF HIS ORDER. 16. FROM THE FACTS ADDUCED ABOVE, IT IS EVIDENT TH AT THE DOCUMENT SEIZED / IMPOUNDED REMAINED UNEXPLAINED AN D UNVERIFIABLE AND AS SUCH THE TRANSACTIONS RECORDED IN THESE DOCUMENTS ARE REQUIRED TO BE ADDED TO THE INCOME RE TURNED. HOWEVER, TO BE FAIR AND REASONABLE, THE UNDERSIGNED IS OF THE VIEW THAT THE ASSESSMENT AT THE SURRENDERED AMOUNT OF RS. 8,50,00,000/- WILL MEET THE END OF JUSTICE. THEREFO RE THE INCOME OF THE ASSESSEE, FOR THE A.Y. 2008-09 UNDER CONSIDERATION, IS ASSESSED AT RS. 8,50,00,000/- AS SURRENDERED BY THE ASSESSEE COMPANY U/S U/S 132(4) OF THE I.T. ACT DURING SEARCH OPERATION ON 21.02.2008 AND SUBSEQUENTLY, REAFFIRMED AFTER A PERIOD OF MORE THA N ONE 21 MONTH ON 24.03.2008 AS AGAINST THE RETURNED INCOME OF RS. 3,37,85,728/-. THEREFORE, THE BALANCE AMOUNT OF RS. 5,12,14,272/- (8,50,00,000-3,37,85,728) IS ADDED TO THE INCOME RETURNED. ACCORDINGLY, AN ADDITION OF RS. 5,12,14,272/- IS MADE TO THE INCOME RETURNED. PENAL TY PROCEEDINGS U/S 271(1)(C) FOR FURNISHING INACCURATE PARTICULARS OF INCOME THEREBY RESULTING IN CONCEALM ENT OF INCOME ARE INITIATED. LATER ON, ASSESSING OFFICER SENT A PROPOSAL TO THE COMMISSIONER VIDE HIS LETTER DATED DCIT CC-1/LDH/263/11-12 DATED 10.1.2012 FOR I NITIATING ACTION U/S 263 THROUGH THE ADDL. COMMISSIONER. THE ADDL. COMMISSI ONER PUT UP THIS PROPOSAL BEFORE THE COMMISSIONER VIDE HIS LETTER NO. ADDL.CI T(C) LDH/11-12/703 DATED 11.1.2012. THE LD. COMMISSIONER HAS MADE THE FOLLO WING REMARKS ON THIS LETTER ITSELF. DCIT HQ PROPOSAL WITH ASSESSMENT RECORDS EXAMINED - PUT UP SHOW CAUSE NOTICE AS DIRECTED SD/- DATED 12.01.2012 IN RESPECT OF THESE ISSUES, THE MAIN CONTENTION OF THE ASSESSEE IS THAT COMMISSIONER HAS NOT EXAMINED THE RECORDS. HE HAS NOT APPLIED HIS MIND BEFORE ISSUANCE OF NOTICE AND HAS NOT RECORDED ANY SATISFACTION. IT WAS NOT POSSIBLE TO EXAMINE VOLUMINOUS RECORDS IN SUCH SHOR T TIME BECAUSE PROPOSAL WAS PUT UP ON 11.1.2012 AND NOTICE WAS DIRECTED TO BE I SSUED ON 12.1.2012. FIRST OF ALL, WE WOULD LIKE TO POINT OUT THAT THERE IS NO BA R IN SECTION 263 TO SHOW THAT PROPOSAL CANNOT BE PUT FOR REVISION BY ASSESSING OF FICER HIMSELF. THE REVENUE IN THIS RESPECT RELIED ON THE DECISION OF HON'BLE A LLAHABAD HIGH COURT IN THE CASE OF CIT V BHAGAT SHAYAM & COMPANY (SUPRA). IN T HIS CASE, THE HEAD NOTE READS AS UNDER:- THERE IS NO BAR TO THE INCOME-TAX OFFICER BRINGING MATERIALS TO THE NOTICE OF THE COMMISSIONER OF INCOME-TAX FOR INITIATION 22 OF REVISION PROCEEDINGS. BUT THE COMMISSIONER MUST APPLY HIS MIND TO THE MATERIAL PLACED BEFORE HIM AND SATISFY HIMSELF THAT IT IS A CASE WHERE HE OUGHT TO EXERCISE HIS REVISIO NAL POWER: 25. SIMILARLY, IN THE CASE OF JAGDISH KUMAR GULATI V CIT (SUPRA), WHICH WAS ALSO RELIED ON BY THE REVENUE THE HEAD NOTE READS A S UNDER:- THE REVISIONAL POWER OF THE COMMISSIONER UNDER SEC TION 263 OF THE INCOME-TAX ACT, 1961, IS OF WIDE AMPLITUDE. IT ENABLES THE COMMISSIONER TO CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDINGS UNDER THE ACT. IT EMPOWERS THE COMMISSI ONER TO MAKE OR CAUSE TO BE MADE SUCH INQUIRY AS HE DEEMS N ECESSARY IN ORDER TO FIND OUT IF ANY ORDER PASSED BY THE ASS ESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. AFTER EXAMINING HE RECORD S AND AFTER MAKING OR CAUSING TO BE MADE AN INQUIRY IF HE CONSI DERS THE ORDER TO BE ERRONEOUS HE CAN PASS THE ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, I.E., ENHANCE TH E ASSESSMENT OR MODIFY THE ASSESSMENT, CANCEL THE ASSESSMENT AND DIRECT A FRESH ASSESSMENT. THERE IS NO STATUTORY BAR IN MAKI NG AN OFFICE NOTE. THERE IS ALSO NO STATUTORY BAR ON THE COMMISSIONER RELYING ON THE OFFICE NOTE UNDER SECTI ON 263 READING OF THESE DECISIONS CLEARLY SHOWS THAT THERE IS NO BAR ON THE PROPOSAL SENT BY THE ASSESSING OFFICER FOR REVISION OF THE O RDER. THIS HAS TO BE PARTICULARLY SEEN IN THE CONTEXT OF THE CONDUCT OF THE ASSESSEE WHICH CLEARLY SHOWS THAT ASSESSEE DID NOT FULLY COOPERATED IN THE ASSESSMENT PROCEEDINGS AS OBSERVED EARLIER. FURTHER, THE HON'BLE PATNA HIGH C OURT IN THE CASE OF CIT V RITA KESHRI (SUPRA) WHERE SEARCH WAS CONDUCTED IN T HE PREMISES OF THE ASSESSEE BUT ASSESSEE DID NOT COOPERATED IN THE ASSESSMENT P ROCEEDINGS AND ULTIMATELY ASSESSMENT WAS COMPLETED ON WHATEVER INFORMATION WA S AVAILABLE AND THESE ORDERS WERE ULTIMATELY HELD TO BE ERRONEOUS AND PRE JUDICIAL TO THE INTEREST OF REVENUE. THE TRIBUNAL QUASHED THESE REVISIONARY OR DERS. THE FOLLOWING OBSERVATIONS WERE MADE FROM PARA 7 TO 11, WHICH ARE AS UNDER:- 23 7. WE HAVE PERUSED THE MATERIALS ON RECORD AND CONSIDERED THE SUBMISSIONS OF THE LEARNED COUNSEL F OR THE PARTIES. THE THREE ITEMS IN THE RETURNS OF THE TWO ASSESSES ARE IN QUESTION, AND HAVE BEEN DISCUSSED IN DETAIL IN T HE ORDERS OF THE AUTHORITIES UNDER THE ACT. THOSE ARE WITH RESPE CT TO DIFFERENT BANK ACCOUNTS, THEIR INVESTMENT IN SHOP N OS. 203 AND 204, AND THEIR INVESTMENT IN THE A.C. MARKET. I T APPEARS THAT THEE WAS A SEARCH AND SEIZURE IN THE BUSINESS PREMISES OF THE ASSESSES ON 15 TH DEC., 2004, AND IN JANUARY 2005. LARGE MASS OF INCRIMINATING MATERIALS WAS SEIZED AND WAS TAKEN INTO ACCOUNT BY THE LEARNED AO. IT IS MANIFEST FROM A PERUSAL OF THE ASSESSMENT ORDERS THAT THE TWO ASSESSES ASSU MED AN ABNORMALLY DEFIANT APPROACH, AND REFUSED TO DISCLOS E INFORMATION CALLED FOR BY THE LEARNED AO IN SPITE O F REPEATED NOTICES AND CALLS. IT IS EVIDENT ON A PERUSAL OF TH E FOUR ASSESSMENT ORDERS THAT THE LEARNED AO FELT EXASPERA TED AND HELPLESS IN THE MATTER AND PASSED ORDERS OF ASSESSM ENT UNDER SEVERE CONSTRAINTS. THE ORDERS OF ASSESSMENT CREATE A CLEAR IMPRESSION IN OUR MINDS THAT THE ASSESSES ARE EXTRE MELY DISHONEST PERSONS WHO HAVE NO RESPECT FOR THE LAWS OF THE LAND, THE ESTABLISHED PROCEDURE, AND THE AUTHORITIE S CHARGED WITH THE DUTIES UNDER THE ACT. 8. SEC. 263 OF THE ACT IS HEADED REVISION OF ORDER S PREJUDICIAL TO REVENU, AND CONFERS SUO MOTU POWERS OF REVISION ON THE LEARNED CIT TO TAKE STEPS FOR ANNUL MENT, MODIFICATION, CANCELLATION ETC. OF AN ORDER OF ASSE SSMENT UNDER THE CIRCUMSTANCES INDICATED THEREIN. THE FOUR ORDERS OF ASSESSMENT IN QUESTION ATTRACTED THE ATTENTION OF T HE LEARNED CIT WHO RIGHTLY INVOKED THE POWER UNDER S.263 OF TH E ACT AND, IN HIS ELABORATE DISCUSSION N HIS TWO REVISION AL ORDERS DEALING WITH THE TWO ASSESSES FOR THE FOUR PERIODS IN QUESTION, NOTICED VITAL FLAWS IN THE ORDERS OF ASSESSMENT ENT IRELY ATTRIBUTABLE TO THE EXTREMELY DISHONEST AND DEFIANT APPROACH OF THE ASSESSES. THE LEARNED CIT IN HIS ELABORATE, LUCID, AND ELOQUENT ORDER HAS POINTED OUT VITAL FLAWS IN THE O RDERS OF ASSESSMENT, AND HAS OBSERVED THAT THE VITAL MATERIA LS COULD NOT BE TAKEN INTO ACCOUNT BECAUSE OF THE ASSESSES R EFUSAL TO 24 COOPERATE. WE ENTIRELY AGREE WITH THE DISCUSSION IN THE ORDER OF THE LEARNED CIT. 9. WE FEEL EXTREMELY UNHAPPY WITH THE MODE AND MANN ER IN WHICH THE LEARNED TRIBUNAL HAS DEALT WITH THE OR DER AND HAS, BY A VERY PERFUNCTORY APPROACH, SET ASIDE THE ORDERS OF THE LEARNED CIT. IT HAS TAKEN INTO ACCOUNT THE MATE RIALS WHICH WERE NOTICED BY THE LEARNED AO, BUT HAS REFUS ED TO TAKE INTO ACCOUNT THE VITAL MATERIALS OR ASPECTS OF THE MATTER POINTED OUT BY THE LEARNED CIT WHICH WERE NOT CONSI DERED BY THE LEARNED AO. IN OTHER WORDS, THE LEARNED TRIBUNA L HAS FAILED TO ATTACH DUE IMPORTANCE TO THE VITAL OMISSI ONS INDICATED BY THE LEARNED CIT. IN SUCH A SITUATION, THE TWO JUDGMENTS RELIED ON BY THE LEARNED COUNSEL FOR THE ASSESSES ARE INAPPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. THE ISSUES ARE INDEED NOT CONCLUDED BY FINDIN GS OF FACTS. 10. THERE IS YET ANOTHER ASPECT OF THE MATTER. THE SUPERIOR COURT OF QUASI-JUDICIAL AUTHORITY SHOULD NORMALLY A CT WITH RESTRAINT WHILE SETTING ASIDE THE IMPUGNED ORDER WI TH A VIEW TO REMIT THE MATTER TO THE SAME AUTHORITY OR THE CO URT, BECAUSE SUCH AN ORDER OR REMAND SETS AT NAUGHT THE ENTIRE EFFORT MADE TILL THEN TO RESOLVE THE DISPUTE. THE F UNCTION OF THE APPELLATE COURT IS TO RECTIFY THE ERRORS AND TH E MISTAKES COMMITTED IN THE IMPUGNED ORDER. AN ORDER OF REMAND CAN BE PASSED UNDER LIMITED CIRCUMSTANCES SO THAT NO INJUS TICE IS DONE TO ANY SIDE. IT IS EQUALLY WELL-SETTLED THAT T HE SUPERIOR COURT OR QUASI-JUDICIAL AUTHORITY DOES NOT NORMALLY INTERFERE WITH AN ORDER OF REMAND WHERE THE PARTIES WILL HAVE ADEQUATE AND REASONABLE OPPORTUNITY TO PRESENT THEIR CASES. IN THE PRESENT CASE, THE LEARNED CIT REMITTED THE MATTER F OR VALID REASONS DISCUSSED IN DETAIL IN HIS ORDERS, AND THE LEARNED TRIBUNAL ERRED IN INTERFERING WITH THE SAME FOR UNC ONVINCING REASONS AND PERFUNCTORY APPROACH. IN THE PRESENT SI TUATION, THE LEARNED CIT COULD NOT HAVE RECTIFIED THE ERRORS IN THE ORDERS OF THE LEARNED AO BECAUSE ENTIRE MATERIALS W ERE NOT ON RECORD DUE TO THE UNCOOPERATIVE APPROACH OF THE ASSESSES. 25 AS INDICATED ABOVE, THE LEARNED CIT HAD POINTED OUT VITAL OMISSIONS IN THE ASSESSMENT ORDERS WHICH COULD BE T AKEN CARE OF ONLY AFTER RECEIVING FULL FACTUAL MATERIAL ON RE CORD, AND HAS RIGHTLY SET ASIDE THE ORDERS OF ASSESSMENT WHIC H ARE TO THE PREJUDICE OF THE REVENUE, AND WITH WHICH WE ENT IRELY AGREE. 11. AS INDICATED HEREINABOVE, THE LEARNED AO HAS MA DE DETAILED REFERENCE TO THE DEFIANT AND EXTREMELY UNC OOPERATIVE ATTITUDE ADOPTED BY HE ASSESSES, WHICH SPEAKS OF A VERY DISHONEST APPROACH. IT IS IMPOSSIBLE FOR THIS COURT TO COUNTENANCE SUCH AN APPROACH WHICH IS INSPIRED BY C OMPLETE LACK OF RESPECT FOR THE ESTABLISHED LAWS OF THE LAN D, AND THE PRESCRIBED PROCEDURE. IN THAT VIEW OF THE MATTER, T HE DIRECTOR GENERAL OF INVESTIGATION, BIHAR, AND / OR THE CHIEF CIT, BIHAR, PATNA, WOULD BE WELL ADVISED TO KEEP THE ENT IRE GROUP UNDER CONSTANT SURVEILLANCE SO THAT THE REVENUE DOE S NOT SUFFER, AND THE COURTS ARE NOT BURDENED WITH UNWANT ED MATTERS. 26. AS OBSERVED BY HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF BHAGAT SHYAM & COMPANY (SUPRA), THERE IS NO BAR IF THE PRO POSAL IS SENT BY ASSESSING OFFICER BUT THE COMMISSIONER IS DUTY BOUND TO EXAMI NE THE RECORDS BEFORE ISSUING OF SHOW CAUSE NOTICE. ADMITTEDLY IN THE CAS E BEFORE US, THE ASSESSMENT RECORDS ALONG WITH SOME SEIZED MATERIAL WERE BROUGH T TO THE NOTICE OF THE LD. COMMISSIONER ON 11.1.2012 AND HE EXAMINED THE SAME AND DIRECTED TO PUT UP A SHOW CAUSE NOTICE WHICH WE HAVE ALREADY REPRODUCED ABOVE. THE OBJECTION OF THE LD. COUNSEL WAS THAT IN SHORT SPAN OF 24 HOURS THE PARTS OF RECORDS ARE NOT EXAMINED AND EVEN TOTAL RECORD WHICH CONSISTED OF S IX VOLUMES WHEREAS REFERENCE HAS BEEN MADE TO FOUR VOLUMES, WE MAY NO TE THAT IN OUR OPINION AT THE STAGE OF ISSUING OF SHOW CAUSE NOTICE, WHAT IS REQUIRED IS PRELIMINARY SATISFACTION OF THE COMMISSIONER THAT THE RELEVANT ASSESSMENT ORDER IS ERRONEOUS. A DETAILS INVESTIGATION HAS TO BE MADE WHEN THE ORDER IS PASSED. SECTION 263 OF THE ACT READS AS UNDER;- 26 SECTION 263 (1) THE COMMISSIONER MAY CALL FOR AND EXAMINE THE R ECORD OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDE RS THAT ANY ORDER PASSED THEREIN BY THE [ASSESSING] OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVEN UE, HE MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH I NQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORD ER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLIN G THE ASSESSMENT AND DIRECTING A FRESH ASSESSMENT . 27. THE PROVISION CLEARLY SHOWS THAT THERE IS NO MA NDATE FOR RECORDING OF SATISFACTION BUT WHAT IS REQUIRED IS THAT IF THE CO MMISSIONER CONSIDERS THAT ORDER IS ERRONEOUS IN SO FAR AS THE SAME IS PREJUDICIAL T O THE INTEREST OF REVENUE, THEN A SHOW CAUSE NOTICE CAN BE ISSUED. THE BARE PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT IT IS A CASE OF NO ENQUIRY WHICH ITSELF WOULD MAKE THE ASSESSMENT ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AND PERHAPS NOTHING ELSE WAS REQUIRED TO BE EXAMINED AT THIS STAGE. HOW EVER, SINCE THE COMMISSIONER HAS CLEARLY APPENDED A NOTE THAT PROPO SAL WITH THE ASSESSMENT RECORDS WAS EXAMINED, WE HAVE TO PRESUME THAT THE L D. COMMISSIONER WAS AFTER GOING THROUGH THE ASSESSMENT RECORDS AND WHATEVER M ATERIAL WAS MADE AVAILABLE BEFORE HIM, HE WAS SATISFIED THAT THE ORDER WAS ERR ONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THE LD. COUNSEL FOR THE ASSES SEE HAD IN THIS REGARD RELIED ON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF DLF COMMERCIAL PROJECTS CORPORATION V ACIT (SUPRA). WE HAVE PERUS ED THAT DECISION CAREFULLY. IN THAT CASE, THE QUESTION WAS WHETHER THE SPECIAL AUDIT WAS RIGHTLY ORDERED TO BE CONDUCTED. IN THAT CASE THE ASSESSING OFFICER I SSUED A NOTICE ON 21.11.2011 THAT WHY A SPECIAL AUDIT U/S 144 (2A) OF THE INCOM E TAX ACT SHOULD NOT BE ORDERED IN RESPONSE TO WHICH ON 24.11.2011, THE ASS ESSEE FILED A REPLY CONTAINING 21 PAGES (EXCLUDING ANNEXURES) CONTENDIN G THAT ASSESSEE HAS ALSO REPLIED TO THE QUERIES REGARDING COMPLEXITY OF THE ACCOUNTS. NEXT DAY, THE 27 ASSESSING OFFICER CHANGED HIS MIND AND WROTE A LETT ER TO COMMISSIONER SEEKING APPROVAL FOR GRANT OF SPECIAL AUDIT WHO IN TURN GRA NTED THE APPROVAL ON THE SAME DAY. THIS ORDER REGARDING CONDUCT OF THE SPECI AL AUDIT WAS QUASHED BY THE HON'BLE DELHI HIGH COURT IN A WRIT PETITION BY OBSE RVING THAT IN 24 HOURS POSSIBLY THE CHIEF COMMISSIONER COULD NOT HAVE GONE THROUGH THE COMPLEXITY OF THE ACCOUNTS, THEREFORE, CLEARLY IN THAT CASE THE C HIEF COMMISSIONER WAS REQUIRED TO GO THROUGH THE ACCOUNTS AND REACH A CON CLUSION WHETHER SUCH ACCOUNTS WERE REALLY COMPLEX CALLING FOR A SPECIAL AUDIT WHICH CANNOT BE DONE IN 24 HOURS. IN THE CASE BEFORE US, THE LD. COMMIS SIONER WAS REQUIRED TO EXAMINE THE ASSESSMENT ORDER AND ASSESSMENT RECORDS WHICH HE HAS ALREADY EXAMINED AND AS OBSERVED EARLIER IT IS A CASE OF NO ENQUIRY, IT WAS EASY TO REACH A CONCLUSION AT LEAST AT THE STAGE OF ISSUE OF SHOW CAUSE NOTICE THAT ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THEREFORE, IN OUR OPINION, THE DECISION IN THE CASE OF DLF COMMERCIAL PROJECTS CORPORATION VS ACIT (SUPRA) CANNOT BE OF ANY HELP OF THE CASE OF T HE ASSESSEE. 28. THE NEXT THRUST OF THE CONTENTION IS THAT LD. C OMMISSIONER HAS ISSUED A SHOW CAUSE NOTICE WHICH IS A VERBATIM COPY OF THE P ROPOSAL GIVEN BY THE ASSESSING OFFICER WHICH HAS BEEN DONE WITHOUT EXAMI NATION AND ANY APPLICATION OF HIS MIND. AS OBSERVED EARLIER AT THE STAGE OF IS SUANCE OF NOTICE, DETAILED EXAMINATION IS NOT REQUIRED. WHAT IS REQUIRED IS PR IMA FACIE SATISFACTION ON THE PART OF THE COMMISSIONER THAT A PARTICULAR ASSESSME NT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. WE FIND THA T IT IS NOT TOTALLY CORRECT THAT SHOW CAUSE NOTICE IS TOTALLY VERBATIM COPY OF THE P ROPOSAL. THE FIRST TWO PARAS OF THE SHOW CAUSE NOTICE ARE NOT THERE IN THE PROPO SAL. SIMILARLY PARAS 6, 7 & 8 OF THE NOTICE ARE ALSO NOT THERE IN THE PROPOSAL. R EST OF THE PARTS SEEMS TO BE VERBATIM COPY OF THE PROPOSAL BUT HERE AGAIN IT HAS TO BE SEEN THAT THESE PARTS BASICALLY CONTAIN ALL THE CONTENTS OF THE STATEMENT S RECORDED DURING THE SEARCH, COPY OF THE LETTER OF SURRENDER BY THE COMPANY, DET AILS OF VARIOUS DOCUMENTS 28 FOUND DURING THE SEARCH. NOW THESE FACTS HAVE BEEN BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER BY WAY OF PROPOSAL BUT EVEN THEY WERE EXAMINED OTHERWISE THE LD. COMMISSIONER HAS TO QUOTE THESE DOCUMENTS I N THE SAME LANGUAGE IN WHICH THEY ARE PREPARED. AS FAR AS THE COMMISSIONE R IS CONCERNED, BEFORE GIVING THE DIRECTION OF PUTTING UP A NOTICE, HE HAD RECORDED HIS SATISFACTION ON THE LETTER GIVEN BY ADDL. COMMISSIONER ITSELF WHICH WE HAVE ALREADY REPRODUCED ABOVE. PARAS 6, 7 AND 8 OF THE SHOW CAUSE NOTICE R EADS AS UNDER:- 6. FROM THE DISCUSSION MADE ABOVE, IT IS SEEN THAT WHILE MAKING ASSESSMENT IN YOUR CASE FOR A.Y. 2008-09, EN TIRE SEIZED MATERIAL AND VARIOUS OTHER ISSUES HAVE NOT B EEN PROPERLY EXAMINED AND APPRECIATED AND NO PROPER INQ UIRIES HAVE BEEN CONDUCTED LEADING TO UNDER ASSESSMENT. 7. FROM THE FACTS DISCUSSED ABOVE, IT IS ALSO NOTIC ED THAT IN MANY CASES, DATE/PERIOD ON WHICH THE PROPERTIES MENTIONED IN THE ABOVE AGREEMENTS WERE REQUIRED TO BE REGISTE RED HAD ALREADY EXPIRED EVEN BEFORE THE DATE OF SEARCH CONS EQUENT TO WHICH FINAL PAYMENTS AS WERE AGREED UPON IN THE AFO RESAID AGREEMENTS HAVE BEEN MADE BY YOU SOURCE OF WHICH SH OULD HAVE ALSO BEEN EXAMINED AT THE TIME OF ASSESSMENT, WHICH HAS NOT BEEN DONE. 8. IN VIEW OF THE ABOVE, I PROPOSE TO REVISE THE AB OVE ASSESSMENT ORDER U/S 263 OF THE ACT AND YOU ARE HER EBY GIVEN AN OPPORTUNITY TO EXPLAIN AS TO WHY YOUR INCOME SH OULD NOT BE ENHANCED AND / OR THE ABOVE ASSESSMENT ORDER SH OULD NOT BE MODIFIED / SET ASIDE WITH THE DIRECTIONS TO THE A.O. TO MAKE THE FRESH ASSESSMENT DE-NOVO AFTER CONDUCTING PROPE R INQUIRIES AND CONSIDERING THE ENTIRE SEIZED MATERIA L AND OTHER RELEVANT ISSUES ARISING IN THIS CASE. YOUR CASE HAS BEEN FIXED FOR HEARING BEFORE THE UNDERSIGNED ON 20.01.2012 AT 11.30 29 A.M. IN MY CHAMBER SITUATED AT C.R. BUILDING, DANDI SWAMI CHOWK, CIVIL LINES, LUDHIANA. 29. READING OF THE ABOVE PARAS CLEARLY SHOWS THAT A LL THE DOCUMENTS WHICH WERE FOUND DURING THE SEARCH WERE NOT EXAMINED BY A SSESSING OFFICER DURING ASSESSMENT PROCEEDINGS. THIS CLEARLY SHOWS THAT LD . COMMISSIONER CAME TO THE CONCLUSION THAT ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. IN THIS REGARD, THE LD. COUNSEL HAS RELIED ON VARIOUS DECISIONS AND WE SHALL NOW EXAMINE THE SAME. 30. FIRST CASE RELIED IS IN CASE DECIDED BY CALCUTT A BENCH OF THE TRIBUNAL IN CASE OF J. THOMAS PVT LTD (SUPRA). IN THIS CASE IT WAS NOTED BY THE TRIBUNAL THAT FOLLOWING NOTICE WAS SENT BY CONCERNED LD. COMMISSI ONER OFFICE OF THE COMMISSIONER OF INCOME TAX, KOLKATA-II, KOLKATA AAYAKAR BHAWAN, 3RD FLOOR, P-7, CHOWRINGHEE SQARE, KOLKATA 700069 NO. CIT-II/KOL/U/S.263/C-12/2011-12/9424 DARTED 10. 2.2012 TO THE PRINCIPAL OFFICER M/S J. THOMAS & CO. PVT LTD NILHAT HOUSE 11, R.N. MUKHERJEE ROAD KOLKARA 700001 SUB: NOTICIE U/S 263 OF THE INCOME -TAX ACT, 1961 I N YOUR CASE FOR ASSESSMENT YEAR 2007- 08 FIXATION OF HEARING MATTER REGARDING I HAVE CALLED FOR AN EXAMINED THE ASSESSMENT RECORD IN YOUR CASE FOR ASSESSMENT YEAR 2007- 08. IT APPEARS THAT THE ORDER PASSED BY THE ASSESS ING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE. YOU ARE REQUESTED TO APPEAR BEFORE ME EITHER PERSON ALLY OR THROUGH AUTHORIZED REPRESENTATIVE IN THIS REGRD ON 21.2.2012 AT 2.00 P .M. SD/- COMMISSIONER OF INCOME TAX, KOLKATA II, KOLKA KTA THE ASSESSEE FILED CERTAIN REPLIES BEFORE THE LD. C OMMISSIONER WHO DID NOT AGREE WITH THE SAME AND ULTIMATELY PASSED THE ORDER U/S 263. ON THESE FACTS THE TRIBUNAL OBSERVED THAT SHOW CAUSE NOTICE SHOWS THAT THERE WAS NO REASON 30 WHATSOEVER SHOWN IN THE NOTICE THAT HOW THE ASSESSM ENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. IT WAS ALSO OBSERVED THAT THOUGH IN THE IMPUGNED ORDER THE LD. COMMISSIONER DOES MEN TION FEW POINTS BORROWED FROM THE REVENUE AUDIT OBJECTIONS ON THE BASIS OF W HICH REVISIONARY PROCEEDINGS WERE INITIATED BUT IT WAS A CASE WHICH SHOWS THAT THE LD. COMMISSIONER HAD NOT FORMED HIS OWN OPINION. 31. FROM THE ABOVE, IT BECOMES CLEAR THAT THE LD. C OMMISSIONER HAS NOT GIVEN ANY REASONS IN THE SHOW CAUSE NOTICE WHY THE ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. IN THE CASE BEFORE US, THE LD. COMMISSIONER HAS CLEARLY SET OUT THE REASONS WHY TH E ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE VIDE PARA 6, 7 & 8 WHICH HAVE BEEN ALREADY REPRODUCED. WE FURTHER FIN D THAT IN CASE BEFORE US THE ISSUE WAS DISCUSSED IN DETAIL BY THE LD. COMMISSION ER WHILE RECORDING HIS FINDING IN PARA 3 TO 19 WHERE HE HAS DISCUSSED VARI OUS DOCUMENTS IN DETAIL. THEREFORE, IN OUR OPINION, THE DECISION OF J. THOMA S PVT LTD (SUPRA) IS OF NO HELP. 32. NEXT DECISION RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE IS THAT OF JAIPUR BENCH OF THE TRIBUNAL IN CASE OF RAJIV ARORA VS. CIT (SUPRA). IN THAT CASE ALSO THERE WAS A CHANGE OF INCUMBENT ASSESSING OFFICER IN MID OF THE ASSESSMENT PROCEEDINGS AND NEW ASSESSING OFFICER HA S SENT THE PROPOSAL FOR REVISIONARY ASSESSMENT ORDER. THE TRIBUNAL HAS REC ORDED A FINDING THAT THE DETAILED REPLIES WERE FILED BEFORE THE LD. COMMISSI ONER BUT THE SAME HAS NOT BEEN CONSIDERED. AT PARA 11 OF THE ORDER IT IS OBS ERVED AS UNDER: THE PROVISIONS OF SECTION 263 ITSELF PROVIDED THA T THE CIT MAY EXAMINE THE RECORD. HOWEVER, IN THE PRESENT C ASE, THE CIT HAS NOT APPLIED HIS MIND BUT THE MATTER WAS REF ERRED BY 31 THE ASSESSING OFFICER THROUGH ADDL COMMISSIONER FO R INITIATING PROCEEDINGS U/S 263. ON THE BASIS OF ABOVE OBSERVATIONS AS WELL AS THE F ACT THAT THE LD. COMMISSIONER HAS NOT CONSIDERED THE REPLY GIVEN BY THE ASSESSEE, REVISIONARY ORDER PASSED U/S 263 WAS QUASHED. WE HAVE ALREADY SHOWN ABOVE THAT THE LD. COMMISSIONER HAS DULY EXAMINED THE RECORD AND HAS APPLIED HIS MIND B Y RECORDING DETAILED FINDING RUNNING INTO 20 PAGES FROM PAGE 14 TO 34 OF HIS ORD ER. THEREFORE EVEN THIS CASE IS OF NO HELP TO THE ASSESSEE. 33. NEXT DECISION RELIED ON IS THAT OF HON'BLE PUNJ AB AND HARYANA HIGH COURT IN CASE OF HARI IRON TRADING CO. (SUPRA) FOR THE PR OPOSITION THAT BEFORE INITIATING THE PROCEEDINGS U/S 263 THE LD. COMMISSIONER MUST C ALL FOR THE RECORD AND AFTER EXAMINING THE SAME RECORD HIS SATISFACTION AND THEN ISSUE THE NOTICE. THERE IS NO QUARREL WITH THE PROPOSITION. HOWEVER, WE HAVE ALR EADY SHOWN IN THE ABOVE NOTED PARAS HOW AT THE TIME OF ISSUE OF NOTICE THE LD. COMMISSIONER HAS SEEN THE RECORDS AND THEN APPLIED HIS MIND TO THE EXTENT IT WAS REQUIRED AND RECORDED HIS SATISFACTION ON THE NOTE PUT UP BY ADDL COMMISS IONER AND NOTICE WAS ISSUED THEREAFTER. THEREFORE CLEARLY THE FACTS IN CASE BEF ORE US ARE TOTALLY DIFFERENT AND RATIO OF THIS DECISION IS NOT APPLICABLE. 34. THE LD. COUNSEL FOR THE ASSESSEE HAD ALSO RELIE D ON THE DECISION OF HON'BLE SUPREME COURT IN CASE OF CIT VS. PVS BEEDIE S PVT LTD, 237 ITR 13. THIS CASE WAS RELIED FOR THE PROPOSITION THAT IF TH E ASSESSING OFFICER IS NOT AUTHORIZED TO ACT UNDER COMPULSION THEN HOW SENIOR OFFICERS OF THE DEPARTMENT LIKE LD. COMMISSIONER IS EXPECTED TO ACT UNDER THE COMPULSION OF THE ASSESSING OFFICER. WE ARE AFRAID THIS IS TOTALLY MISPLACED. IN THE CASE OF PVS BEEDIES PVT LTD (SUPRA), THE SHORT ISSUE WAS INVOLVED WHETHER R EOPENING IS POSSIBLE ON THE BASIS OF AUDIT OBJECTION AND THE HON'BLE SUPREME CO URT HELD THAT IF INTERNAL AUDIT PARTY RAISES AN OBJECTION POINTING TO WRONG F ACT THEN REOPENING IS POSSIBLE. 32 THE JUDGMENT IS VERY SHORT AND WE ARE REPRODUCING T HE WHOLE JUDGMENT IN THIS ORDER: THESE CASES RELATE TO THE ASSESSMENT YEARS 1974-75 AND 1975-76.THE RELEVANT ACCOUNTING YEAR ENDED ON MARCH 31,1974 AND MARCH 31,1975, RESPECTIVELY. ORIGINALLY , THE ASSESSMENT WAS COMPLETED ON JUNE 21,1977. THERE WER E VARIOUS OTHER PROCEEDINGS WHICH ENDED IN THE TRIBUN AL. THE TRIBUNAL AFTER CONSIDERING ALL THE ASPECTS OF THE C ASES REMANDED THE CASES BACK TO THE INCOME-TAX OFFICER F OR PASSING A FRESH ORDER IN ACCORDANCE WITH LAW. ONE O F THE POINTS RAISED BEFORE THE INCOME-TAX OFFICER WAS THA T OF JUSTIFICATION FOR REOPENING OF THE ASSESSMENT. IT W AS POINTED OUT THAT REOPENING HAS BEEN DONE ON THE BASIS OF TH E REPORT MADE BY THE AUDIT DEPARTMENT. THE CONTENTION WHICH FOUND FAVOUR WITH THE TRIBUNAL WAS THAT REOPENING UNDER S ECTION 147(B) IS NOT PERMISSIBLE ON THE BASIS OF A REPORT GIVEN BY THE AUDIT DEPARTMENT. THIS VIEW WAS ALSO TAKEN BY THE H IGH COURT. WE HAVE CONSIDERED THE MATTER. IT APPEARS THAT THE REOPENING WAS DONE BECAUSE IN THE ORIGINAL ASSESSMENT DONATIO NS MADE TO A BODY KNOWN AS P.V.S. MEMORIAL CHARITABLE TRUST WAS HELD BY THE INCOME-TAX OFFICER TO BE ELIGIBLE FOR D EDUCTION UNDER SECTION 80G. BUT SUBSEQUENTLY IT WAS POINTED OUT BY THE INTERNAL AUDIT PARTY THAT THE RECOGNITION WHICH HAD BEEN GRANTED TO THE P.V.S MEMORIAL CHARITABLE TRUST HAD EXPIRED ON SEPTEMBER 22,1972. THAT MEANS IT HAD EXPIRED BEF ORE APRIL 1,1973. THEREFORE, IN THE RELEVANT YEARS OF A CCOUNT THIS TRUST WAS NOT A RECOGNIZED CHARITABLE TRUST. IN THA T VIEW OF THE MATTER, THE DONATION TO P.V.S. MEMORIAL CHARITA BLE TRUST DID NOT QUALIFY FOR DEDUCTION UNDER SECTION 80G AS A DONATION MADE TO A RECOGNIZED CHARITY. WE ARE OF THE VIEW THAT BOTH THE TRIBUNAL AND THE HIGH COURT WERE IN ERROR IN HOLDING THAT THE INFORMATION GIVEN BY THE INTERNAL AUDIT PARTY COULD NOT BE TREATED AS IN FORMATION WITHIN THE MEANING OF SECTION 147(B) OF THE INCOME- TAX ACT. 33 THE AUDIT PARTY HAS MERELY POINTED OUT A FACT WHICH HAS BEEN OVERLOOKED BY THE INCOME-TAX OFFICER IN THE ASSESSM ENT. THE FACT THAT THE RECOGNITION GRANTED TO THIS CHARITABL E TRUST HAD EXPIRED ON SEPTEMBER 22, 1972, WAS NOT NOTICED BY T HE INCOME-TAX OFFICER. THIS IS NOT A CASE OF INFORMATI ON ON A QUESTION OF LAW. THE DISPUTE AS TO WHETHER REOPENIN G IS PERMISSIBLE AFTER THE AUDIT PARTY EXPRESSES AN OPIN ION ON A QUESTION OF LAW IS NOW BEING CONSIDERED BY A LARGER BENCH OF THIS COURT. THERE CAN BE NO DISPUTE THAT THE AUDIT PARTY IS ENTITLED TO POINT OUT A FACTUAL ERROR OR OMISSION I N THE ASSESSMENT. REOPENING OF THE CASE ON THE BASIS OF A FACTUAL ERROR POINTED OUT BY THE AUDIT PARTY IS PERMISSIBLE UNDER LAW. IN VIEW OF THAT WE HOLD THAT REOPENING OF THE CASE UNDER SECTION 147(B) IN THE FACTS OF THIS CASE WAS ON THE BASIS OF FACTUAL INFORMATION GIVEN BY THE INTERNAL AUDIT PAR TY AND WAS VALID IN LAW. THE JUDGMENT UNDER APPEAL IS SET ASID E TO THIS EXTENT. THE ABOVE CLEARLY SHOW THAT THERE ARE NO OBSERVATIO N AS MENTIONED BY THE LD. COUNSEL FOR THE ASSESSEE AND WE FAIL TO UNDERSTAND WHY THIS CASE WAS CITED BEFORE US. 35. NEXT CASE RELIED ON IS THE DECISION OF THIS BEN CH OF THE TRIBUNAL IN CASE OF JASWINDER SINGH VS. CIT (SUPRA). IN THAT CASE THE ASSESSEE WAS HAVING INCOME FROM OWN TRUCKS AND HIRED TRUCKS AND FILED RETURN O F INCOME. NO BOOKS OF ACCOUNTS WERE PRODUCED, THEREFORE ASSESSMENT WAS CO MPLETED U/S 144 AND INCOME WAS ESTIMATED. FROM THE PERUSAL OF THE ASSE SSMENT ORDER THE LD. COMMISSIONER NOTED THAT THE ASSESSEE HAS NOT APPLIE D THE PROVISIONS OF SECTION 40(A)(IA) FOR DEDUCTION OF TAX FROM SOME PARTIES. THE EXPENDITURE OF LOADING AND UNLOADING WAS NOT PROPERLY EXAMINED AND THEREFO RE THE ORDER WAS ERRONEOUS. THE ASSESSEE FILED APPEAL AGAINST THIS REVISIONARY ORDER PASSED U/S 263 BEFORE THE TRIBUNAL. THE TRIBUNAL QUASHED THE ORDER BY OB SERVING THAT IN NO CASE REVISIONARY ORDER CAN BE PASSED ON THE BASIS OF AU DIT OBJECTION. FURTHER MERELY 34 AN ASSESSMENT ORDER CANNOT BE CALLED ERRONEOUS MERE LY BECAUSE IN THE OPINION OF THE LD. COMMISSIONER PERCENTAGE ADOPTED BY THE ASSE SSING OFFICER WAS ON LOWER SIDE. THE FACTS OF THIS CASE ARE TOTALLY DIFFERENT FROM THE FACTS IN THE CASE BEFORE US AND WE FAIL TO UNDERSTAND WHAT ASSISTANCE CAN BE DERIVED FROM THIS CASE. 36. NEXT CASE RELIED ON IS IN CASE OF MADURA COATS LTD. MADURAI VS. COLLECTOR OF CENTRAL EXCISE, MADURAI & OTHERS (SUPRA). THIS CASE WAS RELIED FOR THE PROPOSITION THAT THE FACTS SHOULD BE PROPERLY EXAMI NED BEFORE ISSUANCE OF THE NOTICE. IN FACT THIS CASE HAS BEEN RELIED ON FOR F OLLOWING OBSERVATION BY THE COURT: THE DEPARTMENT WILL ISSUE SHOW CAUSE NOTICE AND EX AMINE THE FACTS PROPERLY AND SHOULD NOT BEHAVE IN A PARROT PICK FAS HION WE HAVE NO QUARREL WITH THIS OBSERVATION BUT WE HAV E SHOWN IN ABOVE PARAS HOW THE LD. COMMISSIONER HAS EXAMINED THE RECORD AND AF TER BEING SATISFIED HAD ISSUED THE SHOW CAUSE NOTICE. 37. NEXT CASE RELIED IS THE DECISION OF HON'BLE SUP REME COURT IN CASE OF CIT V. SHREE MANJUNATHESWARE PACKING PRODUCTS AND CAMPH OR WORKS, 231 ITR 53 S.C). THIS CASE WAS RELIED ON FOR THE PROPOSITION THAT AFTER THE ASSESSING OFFICERS PROPOSAL WHICH IS A MERE DIRECTION IN THI S CASE THEN SUCH PROPOSAL IS NOT TENABLE BECAUSE THE ASSESSING OFFICER WANTS TO REVIEW HIS ORDER. HOWEVER, THE FACTS IN THAT CASE ARE TOTALLY DIFFERENT. IN T HAT CASE THE ASSESSEE HAD CONSTRUCTED A CINEMA THEATRE AND IN THE RETURN FILE D HAD SHOWN COST OF CONSTRUCTION AT RS. 20,28,498/- (RS. 23,78,242 MINU S RS. 3,49,644 FOR ELECTRIC PORTION) .THE ITO SENT THE ISSUE OF COST OF CONSTRU CTION TO THE DVO FOR DETERMINING THE CORRECT COST OF CONSTRUCTION OF THE THEATRE. THE VO EXPRESSED HIS INABILITY TO GIVE HIS VALUATION REPORT BY MARCH 31, 1980 BY WHICH DATE THE ASSESSMENT WAS TO BE COMPLETED THE ITO, THEREFORE WITHOUT WAITING FOR THIS REPORT PASSED AN THE ASSESSMENT ORDER ACCEPTING THE VALUE SHOWN BY THE 35 ASSESSEE. THE VO LATER ON SUBMITTED HIS REPORT ON 16.12.1980 IN WHICH THE COST OF CONSTRUCTION WAS DETERMINED AT RS. 34,58,600/-. ON THESE FACTS THE LD. COMMISSIONER ISSUED A SHOW CAUSE NOTICE U/S 263 THA T THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. IT WAS MAINLY CONTENDED THAT THE REPORT WAS NOT AVAILABLE TO THE ASSESSING OFFICER AT THE TIME OF COMPLETION OF ASSESSMENT AND THEREFORE SAME WOUL D NOT CONSTITUTE THE RECORD WHICH CAN BE EXAMINED BY THE LD. COMMISSIONER AND I N THIS REGARD RELIANCE WAS PLACED ON THE DECISION OF HON'BLE CALCUTTA HIGH COU RT IN CASE OF GANGA PROPERTIES VS. ITO, 118 ITR 447. THE HON'BLE SUPRE ME COURT CONSIDERED THE PROVISIONS OF THE ACT AND JUDGMENT OF HON'BLE HIGH COURT. ULTIMATELY IT WAS OBSERVED AT PAGE 62-63 OF THE REPORT AS UNDER: IT, THEREFORE, CANNOT BE SAID, AS CONTENDED BY LEA RNED COUNSEL FOR THE RESPONDENT, THAT THE CORRECT AND SE TTLED LEGAL POSITION, WITH RESPECT TO THE MEANING OF THE WORD RECORD TILL JUNE 1 ,1988, WAS THAT IT MEANT THE RECORD WHI CH WAS AVAILABLE TO THE INCOME-TAX OFFICER AT THE TIME OF PASSING OF THE ASSESSMENT ORDER. FURTHER, WE DO NOT THINK THAT SUCH A NARROW INTERPRETATION OF THE WORD RECORD WAS JUST IFIED, IN VIEW OF THE OBJECT OF THE PROVISION AND THE NATURE AND SCOPE OF THE POWER CONFERRED UPON THE COMMISSIONER. THE REVISIONAL POWER CONFERRED ON THE COMMISSIONER UNDE R SECTION 263 IS OF WIDE AMPLITUDE. IT ENABLES THE CO MMISSIONER TO CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDIN G UNDER THE ACT. IT EMPOWERS THE COMMISSIONER TO MAKE OR CA USE TO BE MADE SUCH ENQUIRY AS HE DEEMS NECESSARY IN ORDER TO FIND OUT IF ANY ORDER PASSED BY THE ASSESSING OFFICER IS ERR ONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. AFTER EXAMINING THE RECORD AND AFTER MAKING OR CAUS ING TO BE MADE AN ENQUIRY IF HE CONSIDERS THE ORDER TO BE ERR ONEOUS THEN HE CAN PASS THE ORDER THEREON AS THE CIRCUMSTA NCES OF THE CASE JUSTIFY. OBVIOUSLY, AS A RESULT OF THE ENQ UIRY HE MAY COME INTO POSSESSION OF NEW MATERIAL AND HE WOULD B E ENTITLED TO TAKE THAT NEW MATERIAL INTO ACCOUNT. IF THE MATERIAL, WHICH WAS NOT AVAILABLE TO THE INCOME-TAX OFFICER 36 WHEN HE MADE THE ASSESSMENT COULD THUS BE TAKEN INT O CONSIDERATION BY THE COMMISSIONER AFTER HOLDING AN ENQUIRY, THERE IS NO REASON WHY THE MATERIAL WHICH HAD ALREA DY COME ON RECORD THOUGH SUBSEQUENTLY TO THE MAKING OF THE ASSESSMENT CANNOT BE TAKEN INTO CONSIDERATION BY HI M. MOREOVER, IN VIEW OF THE CLEAR WORDS USED IN CLAUSE (B) OF THE EXPLANATION TO SECTION 263(1), IT HAS TO BE HELD TH AT WHILE CALLING FOR AND EXAMINING THE RECORD OF ANY PROCEED ING UNDER SECTION 263(1) IT IS AND IT WAS OPEN TO THE COMMISS IONER NOT ONLY TO CONSIDER THE RECORD OF THAT PROCEEDING BUT ALSO THE RECORD RELATING TO THAT PROCEEDING AVAILABLE TO HIM AT THE TIME OF EXAMINATION. FROM THE ABOVE IT BECOMES CLEAR THAT THE ISSUE INVO LVED BEFORE THE COURT WAS TOTALLY DIFFERENT FROM THE ISSUE BEFORE US. RATHER THE HON'BLE SUPREME COURT HAS EXPANDED THE MEANING OF THE RECORD AND HAS ALSO CATEGORICALLY HELD REVISIONARY POWERS CONFERRED ON THE COMMISSIONER AR E OF WIDE AMPLITUDE AND ENABLES THE COMMISSIONER TO EXAMINE THE RECORD AND FURTHER EMPOWERS THE COMMISSIONER TO MAKE SUCH ENQUIRIES AS HE DEEMS NEC ESSARY TO FIND OUT IF ANY ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. IN OUR OPINION, THIS CASE IS RATHER AGAINST THE ASSESSEE. 38. WE HAVE ALSO PERUSED THE DECISION OF HON'BLE CA CUTTA HIGH COURT IN CASE OF HINDUSTAN LEVER LTD. VS. CIT (SUPRA). IN THAT CA SE WHILE MAKING ASSESSMENT U/S 143(3) FOR ASSESSMENT YEAR 1995-96. THE ASSESS ING OFFICER ALLOWED CESS PAID ON GREEN TEA LEAVE TO THE GOVT. AS BUSINESS EX PENDITURE. SUBSEQUENTLY A PROPOSAL U/S 263 HAD BEEN SENT BY THE CONCERNED ASS ESSING OFFICER TO THE COMMISSIONER OF INCOME-TAX DEPARTMENT ON THE GROUND THAT WHILE COMPLETING ASSESSMENT OF ABOVE MENTIONED ORDER, THE ASSESSING OFFICER HAD ALLOWED CESS OF GREEN TEA LEAVE PAID TO THE GOVT BY THE ASSESSEE-CO MPANY AS BUSINESS EXPENDITURE BY IGNORING THE FACT THAT HON'BLE GAUHA TI HIGH COURT IN CASE OF 37 JOREHAUT GROUP LTD VS. AGRICULTURAL ITO (SUPRA) WHE REIN IT WAS HELD THAT CESS PAID TO THE GOVT WAS NOT DEDUCTIBLE. ON THE BASIS OF THIS PROPOSAL THE LD. COMMISSIONER ISSUED A SHOW CAUSE NOTICE AND LATER O N AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DIRECTED THE ASSESSING OFFICER TO ADD EXPENDITURE OF CESS PAID BY THE ASSESSEE TO THE INCOME OF THE ASSE SSEE. ON THESE FACTS HON'BLE HIGH COURT OBSERVED CESS PAID TO THE GREEN TEA LEAV E WAS ALREADY HELD TO BE ALLOWABLE BUSINESS EXPENDITURE BY THE DIVISION BENC H OF THE SAME COURT IN CASE OF AFT INDUSTRIES LTD. VS. CIT, AND THEREFORE REVIS IONARY ORDER PASSED U/S 263 WAS QUASHED. AGAIN WE ARE REALLY SURPRISED IN WHAT SENSE THIS CASE CAN HELP THE CASE OF THE ASSESSEE. 39. WE HAVE ALSO CONSIDERED THE DECISION OF : I APOLLO TYRES LTD VS. ACIT II EMPEE BREWERIES LTD III MRS. KHATIZA S. OOMERBHOY VS. ITO 40. WE HAVE CAREFULLY PERUSED THE JUDGMENT AND FIND THAT SAME ARE DISTINGUISHABLE ON FACTS AND THESE DECISIONS HAVE N OTHING COMMON WITH THE CASE OF THE ASSESSEE AND FOR THE SAKE OF BREVITY NOT DIS CUSSING THE FACTS OF THESE CASES. THE LD. COUNSEL OF THE ASSESSEE HAD ALSO RE LIED ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF BAJAJ TEMPO LI MITED VS CIT 196 ITR 192 (SC). IN THAT CASE THE ISSUE WAS WHETHER THE AS SESSEE WAS ENTITLED TO DEDUCTION U/S 15C OF THE INDIAN INCOME TAX ACT, 192 2 DESPITE STARTING A NEW BUSINESS IN THE BUILDING WHICH WAS PREVIOUSLY USED FOR THE OLD UNIT. ULTIMATELY, THE HON'BLE SUPREME COURT OBSERVED THAT EXEMPTION P ROVISIONS UNDER THE ACT SHOULD BE LIBERALLY CONSTRUED. WE FAIL TO UNDERSTA ND WHAT PROPOSITION THIS JUDGMENT WAS CITED FOR AND FURTHER FIND THAT IT IS OF NO ASSISTANCE TO THE ASSESSEE. 38 41. THE NEXT MAJOR CONTENTION WAS THAT ASSESSING OF FICER HAS ON THE ONE HAND JUSTIFIED HIS ORDER BEFORE THE CIT(A) THROUGH VARI OUS REMAND REPORTS PARTICULARLY THE REMAND REPORT DATED 25.8.2011, COP Y OF WHICH IS PLACED AT PAGES 168 TO 171 AND ON THE OTHER HAND HAS TAKEN A CONTRA RY VIEW BY MAKING A PROPOSAL BEFORE THE COMMISSIONER SUGGESTING THAT AS SESSMENT WAS NOT PROPERLY DONE. IN FACT THE ASSESSING OFFICER WANTS TO REVIE W HIS ORDER. WE HAVE EXAMINED THE PROPOSAL AND THE REMAND REPORT CAREFUL LY AND DO NOT FIND ANY FORCE IN THE CONTENTION OF LD. COUNSEL FOR THE ASSESSEE. THROUGH VARIOUS REMAND REPORTS, THE ASSESSING OFFICER IS TRYING TO JUSTIF Y WHY THE ASSESSMENT WAS COMPLETED U/S 144 AND HOW SOME OF THE SUBMISSIONS L IKE PART OF THE INVESTMENT AMOUNTING TO RS. 50 LAKHS WHICH IS OWNED BY U LIKE PROMOTERS (P) LTD AS A NEW PLEA, THEREFORE, THE ASSESSING OFFICER IS ONLY GIVI NG COMMENTS ONLY ON THE QUESTIONS RAISED BY THE CIT(A) IN THE APPELLATE PRO CEEDINGS. WHEREAS IN THE PROPOSAL, THE ASSESSING OFFICER HAS POINTED OUT BEF ORE COMMISSIONER HOW SEARCH WAS CONDUCTED, VARIOUS DOCUMENTS WHICH WERE FOUND DURING THE SEARCH AND HOW THE ASSESSEE HAS NOT COOPERATED? AFTER THAT HE HAS NOTED IN PARA 5.2 AS UNDER:- 5.2 DURING THE F.Y. 2007-08 RELEVANT TO THE A.Y. 2 008-09, THERE WAS AN INVESTMENT OF RS. 6,81,06,129/- AND TH E ASSESSEES SHARE @ 100% OUT OF THAT TOTAL INVESTMEN T COMES TO RS. 6,81,06,129/-. THE SOURCE OF INVESTMENT OF R S. 6,81,06,129/- AS PER THE AGREEMENTS FOR THE PURCHAS E OF ABOVE PROPERTIES WAS NOT FULLY DISCLOSED TO THE DEP ARTMENT. DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASK ED TO FURNISH DETAILS OF THE IMMOVABLE PROPERTIES PURCHAS ED / SOLD / CONSTRUCTED TOGETHER WITH SOURCE THEREOF ALONGWIT H ADVANCES RECEIVED OR PAID AGAINST SUCH PROPERTIES. THOUGH NO DETAILS OF THE PROPERTIES PURCHASED / SOLD DURIN G THE YEAR WERE FURNISHED BUT SOME OF THE DETAILS OF SUCH PROP ERTIES PURCHASED WERE FURNISHED AS PER HIS LETTERS DATED N IL RECEIVED ON 06.03.09, 09.03.09,20.03.09 ETC. AS PER THESE LETTERS, THE ASSESSEE INFORMED THAT THE INVESTED HA S BEEN 39 MADE OUT OF THE SALE PROCEEDS OF LAND. IT IS FURTHE R STATED THAT AN AMOUNT OF RS. 89,48,200/- WAS PAID BY THE O THER PARTNER HAVING 50% SHARE OUT OF ITS OWN FUNDS. THE ASSESSEE COMPANY THROUGH ITS DIRECTOR SH. SURESH KHANNA ALSO FILED AN AFFIDAVIT CERTIFYING THEREIN THAT THE 50% SHARE OF INVESTMENT HAS BEEN MADE BY THE OTHER PARTNER. HOWE VER, NO SOURCE OF INVESTMENT BY THE OTHER PARTNER HAVING 50 % SHARE WAS EXPLAINED. FURTHER, AS STATED SUPRA, THE PAYMEN T OF INVESTMENT WAS MADE IN CASH IN CONTRAVENTION OF THE PROVISIONS OF SECTION 40A(3) OF THE I.T. ACT AND AS SUCH, NECESSARY DISALLOWANCE WERE CALLED FOR. THIS SHOWS THAT THE INCOME OF RS. 6,81,06,129/- HAS APPARENTLY BEEN UND ER ASSESSED. IN VIEW OF THESE FACTS, THE ORDER OF ASSE SSMENT DATED 30.12.09 IS NOT ONLY ERRONEOUS BUT ALSO PREJU DICIAL TO THE INTEREST OF REVENUE. THEREFORE, THE MATTER IS R EFERRED TO YOUR GOODSELF FOR INITIATING NECESSARY REMEDIAL ACT ION WITHIN THE MEANING OF SEC. 263 OF THE I.T. ACT. 42. THE ABOVE CLEARLY SHOWS THAT ASSESSING OFFICER IS OF THE VIEW THAT ISSUE REGARDING SECTION 40A(3) I.E. ISSUE OF CASH PAYMENT AND CERTAIN INVESTMENTS COULD NOT BE EXAMINED BECAUSE OF THE NON-COOPERATIO N OF THE ASSESSEE. THESE ARE TWO DIFFERENT ISSUES AND CANNOT BE LINKED. NO DOUB T, THE ASSESSING OFFICER HAS NO POWER TO REVIEW HIS OWN ORDER BUT AS DISCUSSED E ARLIER HE HAD DEFINITELY POWER TO PUT UP A PROPOSAL FOR REVISION AND THIS PO SITION WAS ADMITTED EVEN BY THE LD. COUNSEL FOR THE ASSESSEE. THEREFORE, WE FI ND NO FORCE IN THESE SUBMISSIONS. 43. THE NEXT CONTENTION GIVEN BY THE LD. COUNSEL FO R THE ASSESSEE IS THAT ASSESSING OFFICER HAS ULTIMATELY ACCEPTED THE SURRE NDERED AMOUNT MEANING THEREBY BY THAT ASSESSING OFFICER HAS TAKEN ONE OF THE POSSIBLE VIEW AND, THEREFORE, ORDER CANNOT BE CALLED ERRONEOUS. THE C AREFUL PERUSAL OF THE ASSESSMENT ORDER CLEARLY SHOWS THAT ASSESSING OFFIC ER HAS NOT EXAMINED THE VARIOUS DOCUMENTS FOUND DURING THE SEARCH AND HAS S IMPLY ASSESSED THE INCOME 40 AT RS. 8.5 CRORES WHICH WAS SURRENDERED AMOUNT. THE ASSESSING OFFICER SHOULD HAVE EXAMINED ALL THE DOCUMENTS PARTICULARLY BECAUS E THE ASSESSEE HAS NOT FILED THE RETURN FOR SURRENDERED AMOUNT OF RS. 8.5 CRORES . IN FACT, THE ASSESSEE HAD RETURNED ONLY INCOME OF RS. 3.37 CRORES. THEREFORE, ASSESSING OFFICER SHOULD HAVE BEEN MORE THEN CAREFUL AND SHOULD HAVE EXAMINE D ALL THE DOCUMENTS FOUND DURING THE SEARCH REGARDING PURCHASE OF PROPERTIES AND THEN DETERMINE INCOME WHICH HAS NOT BEEN DONE. IN ANY CASE, MERE ACCEPTA NCE OF THE SURRENDERED INCOME WITHOUT INQUIRY WOULD MAKE THE ORDER ERRONEO US AND PREJUDICIAL TO THE INTEREST OF REVENUE. THE HON'BLE ALLAHABAD HIGH CO URT IN THE CASE OF SMT. LALLA WATI SINGHAL V CIT 226 ITR 327 (SUPRA), WHICH WAS RELIED BY REVENUE HAS TAKEN THE SAME VIEW. THE HEAD NOTE READS AS UN DER:- IF CERTAIN AMOUNTS ARE NOT TAXABLE IN THE HANDS OF THE ASSESSEE AND IF THEY ARE SURRENDERED BY THE ASSESSE E FOR BEING TAXED, THEN THE ORDERS PASSED BY THE ASSESSING AUTH ORITY WILL BE PREJUDICIAL TO THE INTERESTS OF THE REVENUE. ONE MAY SURRENDER A GIVEN INCOME WITH AN ULTERIOR M OTIVE. THE DUTY OF THE ASSESSING AUTHORITY IN SUCH A CASE IS TO MAKE A FULL INQUIRY AND SATISFY HIMSELF THAT THE INCOME SURRENDERED WAS, IN FACT, EARNED BY THE ASSESSEE. NO DOUBT HON'BLE SUPREME COURT IN THE CASE OF MALAB AR INDUSTRIAL CORPORATION LTD (SUPRA), HAS HELD THAT IF THE ASSESSING OFFICER HAS TAKEN ONE OF THE POSSIBLE LEGAL VIEW, THEN ORDER CANNOT BE HELD TO BE ERRONEO US AND PREJUDICIAL TO THE INTEREST OF REVENUE. THIS WAS REITERATED BY THE HON 'BLE APEX COURT IN THE CASE OF CIT V MAX INDIA LTD (SUPRA) BUT IN THE CASE OF M AX INDIA LTD (SUPRA) THE FACTS WERE REGARDING ALLOWABILITY OF DEDUCTION U/S 80HHC OF THE ACT. THE MEANING OF PROFITS IN SECTION 80HHC WAS OPEN TO TWO INTERPRETATIONS WHICH WERE AMENDED LATER ON BY 2005 AMENDMENT AND THEREFO RE, THE COURT OBSERVED THAT SINCE ASSESSING OFFICER HAS TAKEN ONE OF THE P OSSIBLE VIEW, THE ORDER CANNOT BE CALLED ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. BUT IN THE CASE 41 BEFORE US, THE ISSUE IS TOTALLY DIFFERENT. THE ASS ESSING OFFICER COULD NOT HAVE ACCEPTED THE INCOME OF RS. 8.5 CRORES PARTICULARLY WHEN THE ASSESSEE ITSELF HAS NOT HONOURED THE OFFER OF SURRENDER AND FILED RETUR N ONLY FOR RS. 3.37 CORES, THE ASSESSING OFFICER WAS DUTY BOUND TO EXAMINE ALL THE DOCUMENTS AND THEN HE SHOULD HAVE DETERMINED THE INCOME ACCORDINGLY. IN THIS REGARD, REFERENCE MAY BE MADE TO THE DECISION RELIED UPON BY THE REVENUE IN THE CASE OF GEE VEE ENTERPRISES (SUPRA). IN THAT CASE THE HON'BLE DELH I HIGH COURT HAS SHOWN THE REASON WHY ASSESSING OFFICER WAS DUTY BOUND TO MAKE ENQUIRY. THE FOLLOWING PARA AT PAGE 376 IS RELEVANT. IT IS NOT NECESSARY FOR THE COMMISSIONER TO MAKE F URTHER INQUIRIES BEFORE CANCELLING THE ASSESSMENT ORDER OF THE INCOME-TAX OFFICER. THE COMMISSIONER CAN REGARD THE ORDER AS ERRONEOUS ON THE GROUND THAT IN THE CIRCUMSTANCE S OF THE CASE THE INCOME-TAX OFFICER SHOULD HAVE MADE FURTHE R INQUIRIES BEFORE ACCEPTING THE STATEMENTS MADE BY H E ASSESSEE IN HIS RETURN. THE REASON IS OBVIOUS. THE POSITION AND FUNCTION OF THE INCOME-TAX OFFICER IS VERY DIFFEREN T FROM THAT OF A CIVIL COURT. THE STATEMENTS MADE IN A PLEADING PROVED BY THE MINIMUM AMOUNT OF EVIDENCE MAY BE ADOPTED BY A CIVIL COURT IN THE ABSENCE OF ANY REBUTTAL. THE CIVIL COU RT IS NEUTRAL. IT SIMPLY GIVES DECISION ON THE BASIS OF T HE PLEADING AND EVIDENCE WHICH COMES BEFORE IT. THE INCOME-TAX OFFICE IS NOT ONLY AN ADJUDICATOR BUT ALSO AN INVESTIGATOR. H E CANNOT REMAIN PASSIVE IN THE FACE OF A RETURN WHICH IS APP ARENTLY IN ORDER BUT CALLS FOR FURTHER INQUIRY. IT IS HIS DUTY TO ASCERTAIN THE TRUTH OF THE FACTS STATED IN THE RETURN WHEN TH E CIRCUMSTANCES OF THE CASE ARE SUCH AS TO PROVOKE AN INQUIRY. IT IS BECAUSE IT IS INCUMBENT ON THE INCOME-TAX OFF ICER TO FURTHER INVESTIGATE THE FACTS STATED IN THE RETURN WHEN CIRCUMSTANCES WOULD MAKE SUCH AN INQUIRY PRUDENT TH AT THE WORD ERRONEOUS IN SECTION 263 INCLUDES THE FAILUR E TO MAKE SUCH AN ENQUIRY. THE ORDER BECOMES ERRONEOUS BECAUS E SUCH AN INQUIRY HAS NOT BEEN MADE AND NOT BECAUSE THERE IS ANYTHING WRONG WITH THE ORDER IF ALL THE FACTS STAT ED THEREIN ARE ASSUMED TO BE CORRECT. 42 SINCE ASSESSING OFFICER HAS FAILED TO MAKE ANY INQU IRY, THEREFORE, WE ARE OF THE OPINION THAT IT CANNOT BE SAID THAT ASSESSING OFFIC ER HAS TAKEN ONE TO THE POSSIBLE VIEW. 44. THE NEXT CONTENTION MADE BY THE LD. COUNSEL FOR THE ASSESSEE IS THAT IF THE MATTER IS PENDING BEFORE THE APPELLATE AUTHORITY, T HEN SUCH ORDER CANNOT BE REVISED. THE LD. COUNSEL HAD RAISED STRONG RELIANC E ON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF AERENS INFRASTRUCTU RE AND TECHNOLOGY LTD V CIT (SUPRA). IN THIS CASE, BLOCK ASSESSMENT U/S 158BC WAS MADE AND ASSESSEE HAD FILED APPEAL IN RESPECT OF VARIOUS ADDITIONS. LATE R ON, THE COMMISSIONER PASSED AN ORDER U/S 263 WITH REGARD TO THE SAME BLOCK ASSE SSMENT ORDER. AN APPEAL WAS FILED BEFORE THE HON'BLE HIGH COURT AND RELIANCE WA S PLACED ON THE DECISION OF HON'BLE MADRAS HIGH COURT IN THE CASE OF CWT V SAMP ATHMAL CHORDIA, EXECUTOR TO THE ESTATE OF LATE NENI KAVUR BAI 256 I TR 440 (MAD.) TO SHOW THAT SHOW CAUSE NOTICE ITSELF WOULD BE WITHOUT JURISDICT ION. THE HON'BLE HIGH COURT DID NOT ACCEPT THIS BY OBSERVING AS UNDER:- WE FEEL THAT THE DECISION OF THE MADRAS HIGH COUR T WOULD NOT BE OF ANY HELP TO THE PETITIONER. IN THE SAID DECISION, THE REVISION HAD BEEN HELD TO BE INVALID AS THE SUBJEC T-MATTER OF THE REVISION WAS THE SAME AS THAT OF THE PENDING AP PEAL. THEREFORE, IT DOES NOT HOLD THAT IN ALL CASES, AND, PARTICULARLY WHERE THE ISSUES IN THE REVISION ARE DIFFERENT FRO M THOSE IN THE APPEAL, PROCEEDINGS UNDER SECTION 263 WOULD BE INVALID DURING THE PENDENCY OF AN APPEAL. MR. BAJPAI, WHO APPEARS FOR THE PETITIONER, SUBMITS THAT APART FROM THE MAD RAS HIGH COURT DECISION HE ALSO RELIES ON OTHER GROUNDS. AL L THESE GROUNDS ARE AVAILABLE TO HIM AND HE CAN INCORPORAT E THE SAME IN HIS REPLY TO THE IMPUGNED SHOW CAUSE NOTIC E. THE COMMISSIONER, AFTER TAKING NOTICE OF THE OBJECTIONS , SHALL PASS AN ORDER IN ACCORDANCE WITH LAW. OUR INTERFER ENCE AT 43 THIS STAGE IS NOT CALLED FOR. THE WRIT PETITION IS DISPOSED OF. HOWEVER, IT IS MADE CLEAR THAT WE HAVE NOT EXPRESS ED ANY OPINION ON THE MERITS OF THE CASE. 45. IN OUR OPINION, THIS DECISION IS AGAINST THE AS SESSEE AND NOT IN FAVOUR OF THE ASSESSEE. IN ANY CASE, THE ISSUE REGARDING PAS SING OF A REVISIONARY ORDER AGAINST THE VARIOUS ISSUES WHICH ARE PENDING BEFORE THE APPELLATE AUTHORITY HAD BEEN ADJUDICATED BY HON'BLE SUPREME COURT IN THE CA SE OF CIT VS SHRI ARBUDA MILLS LTD 321 ITR 50 (SC) WHERE THE WHOLE POSITIO N HAS BEEN CLARIFIED. IN THAT CASE ASSESSMENT WAS COMPLETED U/S 143(3) READ WITH SECTION 144B ON 31.3.1978 IN RESPECT OF ASSESSMENT YEAR 1975-76. IN THE ASSE SSMENT, NET BUSINESS LOSS WAS COMPUTED AT RS. 3,61,086/- AND INCOME UNDER THE HEA D CAPITAL GAIN WAS DETERMINED AT RS. 38,874/-. THE ITO HAD MADE CERTA IN ADDITIONS AND DISALLOWANCES WHILE COMPUTING THE LOSS AND ACCEPTED THE INCOME ABOVE AND HAD ALSO ACCEPTED THE FOLLOWING CLAIMS:- (I) DEDUCTION OF A SUM OF RS. 23,82,621 BY WAY OF P ROVISION FOR GRATUITY ; (II) DEPRECIATION ON RS. 4,21,000 WHICH WAS PAID BY THE ASSESSEE TO UNITED TEXTILE INDUSTRIES AS CONSIDERAT ION FOR TRANSFER OF INSTALLED PROPERTY OF 17,480 SPINDLES A ND 400 LOOMS OF OLD MANEK CHOWK MILLS ; (III) LOSS ON ACCOUNT OF DIFFERENCE IN EXCHANGE RAT E WHICH WAS REFERABLE TO THE PURCHASE OF MACHINERY, ETC., A S REVENUE EXPENDITURE. FOR THE PURPOSES OF THE PRESENT MATTER , IT IS ONLY THESE THREE ITEMS OF CLAIM WHICH ARE RELEVANT. 46. IN THE APPEAL FILED BY THE ASSESSEE VARIOUS ADD ITIONS EXCEPT FOR THE ABOVE THREE ITEMS WERE CHALLENGED. THE COMMISSIONER PASS ED REVISIONARY ORDER U/S 263 IN RESPECT OF THESE THREE ITEMS. IT WAS CONTEND ED BEFORE THE HON'BLE 44 SUPREME COURT THATS SINCE APPEAL IS PENDING, THERE FORE, ASSESSMENT ORDER WAS NOT AVAILABLE FOR REVISION. THE HON'BLE SUPREME COU RT OBSERVED AS UNDER:- WE MAY REFER TO THE AMENDMENT MADE IN SECTION 263 OF THE INCOME TAX ACT BY THE FINANCE ACT, 1989, WITH RETRO SPECTIVE EFFECT FROM JUNE 1, 1988. THE RELEVANT PART THEREOF FOR THE PRESENT CASE IS AS UNDER : EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HERE BY DECLARED THAT, FOR THE PURPOSES OF THIS SUB-SECTION ,. . . (C) WHERE ANY ORDER REFERRED TO IN THIS SUB-SECTION AND PASSED BY THE ASSESSING OFFICER HAD BEEN THE SUBJECT-MATTE R OF ANY APPEAL FILED ON OR BEFORE OR AFTER JUNE 1, 1988, TH E POWERS OF THE COMMISSIONER UNDER THIS SUB-SECTION SHALL EXTEN D AND SHALL BE DEEMED ALWAYS TO HAVE EXTENDED TO SUCH MAT TERS AS HAD NOT BEEN CONSIDERED AND DECIDED IN SUCH APPEAL. THE CONSEQUENCE OF THE SAID AMENDMENT MADE WITH RETROSPECTIVE EFFECT IS THAT THE POWERS UNDER SECTI ON 263 OF THE COMMISSIONER SHALL EXTEND AND SHALL BE DEEMED A LWAYS TO HAVE EXTENDED TO SUCH MATTERS AS HAD NOT BEEN CONSI DERED AND DECIDED IN AN APPEAL. ACCORDINGLY, EVEN IN RESPECT OF THE AFORESAID THREE ITEMS, THE POWERS OF THE COMMISSION ER UNDER SECTION 263 SHALL EXTEND AND SHALL BE DEEMED ALWAYS TO HAVE EXTENDED TO THEM BECAUSE THE SAME HAD NOT BEEN CONS IDERED AND DECIDED IN THE APPEAL FILED BY THE ASSESSEE. TH IS IS SUFFICIENT TO ANSWER THE QUESTION WHICH HAS BEEN RE FERRED. THE QUESTION REFERRED IS, THEREFORE, ANSWERED IN TH E NEGATIVE, IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE. FROM THE ABOVE, IT BECOMES CLEAR THAT ONLY THOSE MA TTERS WHICH HAVE BEEN APPEALED AGAINST ARE NOT AVAILABLE FOR REVISION. T HE MATTERS WHICH HAVE NOT BEEN APPEALED ARE CLEARLY AVAILABLE FOR REVISION U/ S 263. IN THE CASE BEFORE US, SINCE THE ASSESSING OFFICER HAS NOT MADE ENQUIRIES IN RESPECT OF THE DOCUMENTS 45 FOUND REGARDING PURCHASE OF PROPERTIES AND, THEREFO RE, THE WHOLE ORDER WOULD BE AVAILABLE FOR REVISION. IN FACT, THE REVISIONARY POWERS HAVE BEEN EXERCISED BY THE LD. COMMISSIONER FOR MAKING ADDITIONS U/S 40A( 3) AND SOME MORE ADDITIONS ON ACCOUNT OF INVESTMENTS MADE IN PROPERTIES DETECT ED DURING THE SEARCH FOR WHICH NO ENQUIRY HAS BEEN MADE AND THOSE MATTERS HA VE NOT BEEN APPEALED BY THE ASSESSEE. THEREFORE, WE FIND NO FORCE IN THIS C ONTENTION AND REJECT THE SAME. 47. THE LD. COUNSEL ALSO TRIED TO EXPLAIN HOW ASSES SEE HAS ALREADY HONOURED THE SURRENDERED AMOUNT AND IN THIS REGARD HE HAD RE FERRED TO PAGES 83 OF THE SUBMISSIONS BEFORE THE ASSESSING OFFICER WHICH IS P ART OF THE SUBMISSIONS BEFORE THE ASSESSING OFFICER. IN FACT, FURTHER DE TAILS IS AVAILABLE AT PAGE 167 WHICH IS PART OF THE LETTER SUBMITTED BEFORE THE CI T(A). THE DETAILS OF WHICH READS AS UNDER;- 1. IN THE HANDS OF COMPANY 337.63 2. IN THE HANDS OF DIRECTORS A) SH. SURESH KHANNA B) SH. RUPINDERDEEP SINGH C) SH. DEEPAK CHOUHAN SUB TOTAL 78.30 48.30 6.50 470.73 3. INVESTMENT OWNED BY U LIKE PROMOTERS (P) LTD. 5 0.00 4. SHARE OF SH. HARINDER SINGH 298.39 819.12 REPETITION OF DOCUMENTS 30.88 TOTAL 850.00 IN CONTRAST, THE REVENUE GAVE THE FOLLOWING DETAILS AT PAGES 2 & 3 OF ITS PAPER BOOK. BANK DETAILS OF BASERA REALTORS GROUP BASERA REALTORS (P)LTD. PARTICULARS A.Y. 2008-09 A.Y. 2007-08 A.Y. 2006-07 INCOME DECLARED DURING SEARCH 8.50 CR. NIL* NIL INCOME SHOWN IN RETURN OF INCOME 3.37 CR. NIL* NIL 46 INCOME ASSESSED BY A.O. 8.50 CR. NIL ACCEPTED NIL ACCEPTED REMARKS ADDITION OF 5.12 CR. FOR THE SOLE REASON THAT ASSESSEE HAD SURRENDERED 8.50 CR. U/S 132(4) DURING SEARCH. *ALTHOUGH STATED IN LETTER DATED 21.02.2008 THAT 8.50 CR. IS FOR TWO YEARS NO BIFURCATION GIVEN NOR SHOWN IN RETURN OF INCOME. DEEPAK CHAUHAN PARTICULARS A.Y. 2008-09 A.Y. 2007-08 INCOME DECLARED DURING SEARCH NIL NIL INCOME SHOWN IN RETURN OF INCOME 3,01,800/- 2,66,800/- INCOME ASSESSED BY A.O. 4,01,800/- 3,46,800/- REMARKS *ADDITION OF 1,00,000/- ON A/C OF LOW HOUSEHOLD WITHDRAWALS. * ADDITION OF 80,000/- ON A/C OF LOW HOUSEHOLD WITHDRAWALS. RUPINDERDEEP SINGH PARTICULARS A.Y. 2008-09 A.Y. 2007-08 INCOME DECLARED DURING SEARCH NIL NIL INCOME SHOWN IN RETURN OF INCOME 4,73,412/- 5,79,978/- INCOME ASSESSED BY A.O. 5,89,410/- 6,93,980/- REMARKS *ADDITION OF 1,16,000/- ON A/C OF LOW HOUSEHOLD WITHDRAWALS. * ADDITION OF 1,14,000/- ON A/C OF LOW HOUSEHOLD WITHDRAWALS. SURESH KUMAR KHANNA PARTICULARS A.Y. 2008-09 A.Y. 2007-08 A.Y. 2006-07 INCOME DECLARED DURING SEARCH NIL NIL NIL INCOME SHOWN IN RETURN OF INCOME 11,24,450/- 4,21,315/- 26,81,837/- INCOME ASSESSED BY A.O. 17,10,620/- 7,12,440/- 29,75,840/- REMARKS *ADDITION OF 2,98,855/- ON A/C OF UNEXPLAINED JEWELLERY FOUND DURING SEARCH. *ADDITION OF 2,76,000/- ON A/C OF LOW HOUSEHOLD WITHDRAWALS. *ADDITION OF 93,121/- ON A/C OF DISALLOWANCE OF BUSINESS LOSS. * ADDITION OF 1,98,000/- ON A/C OF LOW HOUSEHOLD WITHDRAWAL. *ADDITION OF 2,94,000/- ON A/C OF LOW HOUSEHOLD WITHDRAWALS. 48. THE CAREFUL READING OF THE ABOVE TWO TABLES SHO W THAT THE CONTENTION OF THE ASSESSEE IS NOT CORRECT BECAUSE IN THE CASE OF THE COMPANY, RETURN WAS FILED 47 ONLY FOR RS. 3.37 CRORES. IT HAS BEEN SUBMITTED THA T IN THE HANDS OF SHRI SURESH KUMAR KHANNA, SURRENDER HAS BEEN MADE FOR RS. 78.30 LAKHS WHEREAS REVENUE HAS CLEARLY SHOWED THAT HE HAS FILED A RETURN FOR R S. 26,81,837/- FOR ASSESSMENT YEAR 2006-07 WHICH CONSISTED INCOME OF RS. 27,06,54 2/- FROM SHARE TRADING COMMISSION INCOME AND RS. 10,000/- AS INCOME FROM O THER SOURCES. THIS WAS ASSESSED AT RS. 29,75,837/- WHICH INCLUDED ADDITION OF RS. 2,94,000/- ON ACCOUNT OF LOW WITHDRAWALS. FURTHER, IN ASSESSMENT YEAR 2 007-08, REVENUE HAD CLEARLY SHOWED THAT HE HAD FILED A RETURN OF RS. 4,21,315/- FOR ASSESSMENT YEAR 2007-08 WHICH CONSISTED OF BUSINESS INCOME OF RS. 2,12,229/ -, LONG TERM CAPITAL GAINS FROM SALE OF LAND AT RS. 2,81,443/- AND INCOME FROM OTHER SOURCES AT RS. 1,392/-. THIS INCOME WAS ASSESSED AT RS. 7,12,440/-. THE TWO ADDITIONS AMOUNTING TO RS. 93,121/- IS ON ACCOUNT OF DISALLOWANCE OF EXPENDITU RE AND RS. 1,98,000/- IS ON ACCOUNT OF LOW WITHDRAWALS. FOR ASSESSMENT YEAR 20 08-09, THE RETURN WAS FILED FOR RS. 11,24,450/- WHICH CONSISTED OF RS. 4,50,000 /- AS SALARY INCOME, RS. 1,00,000/-AS BUSINESS COMMISSION INCOME AND RS. 5, 64,450/- AS INCOME FROM SALE OF CAPITAL ASSET AND RS. 10,000/- AS INCOME FO RM OTHER SOURCES. THIS WAS ASSESSED AT RS. 17,10,624/- BY INCLUDING SOME BANK INTEREST AMOUNTING TO RS. 11,289/- WHICH WAS NOT INCLUDED BY THE ASSESSEE AND RS. 2,98,885/- ON ACCOUNT OF UNACCOUNTED JEWELLERY AND RS. 2,76,000/- ON ACCO UNT OF LOW HOUSE HOLD WITHDRAWALS. FROM THESE FIGURES IT BECOME ABSOLUTE LY CLEAR THAT NONE OF THE ITEMS PERTAIN TO SURRENDERED INCOME AND, THEREFORE, IT CANNOT BE SAID THAT A SUM OF RS. 78,30,000/- WAS SURRENDERED IN THE HANDS OF SHRI SURESH KHANNA. THE LD. COUNSEL WAS CONFRONTED WITH THIS VARIATION AND SPEC IFIC QUESTION WAS POSED TO HIM AS TO HOW HE JUSTIFIED THE FIGURE OF RS. 78,30, 000/- SHOWN AS SURRENDERED INCOME. HE GAVE EVASIVE REPLY AND SUBMITTED THAT THIS WOULD BE PART OF INCOME OF SIX YEARS, HOWEVER, NO DOCUMENT IS AVAILABLE IN THIS REGARD. SIMILAR IS THE SITUATION WITH SHRI RUPINDERDEEP SINGH AND SHRI DE EPAK CHAUHAN. AS FAR AS THE CASE OF SHRI HARINDER SINGH IS CONCERNED, THE L D. COUNSEL FOR THE ASSESSEE HAS FILED COPY OF THE ASSESSMENT ORDER IN CASE OF SHRI HARINDER SINGH VIDE LETTER 48 DATED 6.11.2013. THE ASSESSMENT ORDER CLEARLY SHOW S THAT ASSESSEE HAD DECLARED INCOME FROM BUSINESS. IN THIS CASE THE SUM OF RS. 2,98,39,000/- HAS BEEN ADDED BY WAY OF ADDITION AND SAME DID NOT FORM PART OF TH E RETURNED INCOME. THEREFORE, THIS IS WRONG TO SAY THAT ASSESSEE HAS O FFERED THE SURRENDERED INCOME IN VARIOUS HANDS. 49. THROUGH LAST CONTENTION THAT ASSESSEE HAS SUBMI TTED VARIOUS DETAILS BEFORE THE ASSESSING OFFICER AND COMMISSIONER WHICH HAVE N OT BEEN EXAMINED BY THE COMMISSIONER AND, THEREFORE, THE REVISIONARY ORDER HAS BEEN PASSED WITHOUT APPLICATION OF MIND. WE FIND NO FORCE IN THIS CONT ENTION. FIRSTLY, THE LD. COUNSEL COULD NOT POINT OUT THAT WHICH DETAILS HAVE BEEN FILED WHICH HAVE NOT BEEN CONSIDERED. IN FACT, SOME DETAILS HAVE BEEN F ILED BEFORE US VIDE LETTER DATED 3.12.2013, WHICH READS AS UNDER:- ANNEXURE WITH PG.NO. AS PER PROPOSAL AND SCN REPLY TO CIT AS APPEARS IN PB PG.NO. REPLY TO AO DATE OF AGREEMENT SQUARE YARD AND RATE, VALVE SITUATION, SHARES IN PROPERTY, AND ONE PROPERTY CONSIDERED SEVERAL WAY. A-1(R-2)61- 63 14-15 PB NO. 49 & IN DEEPAK CHAUHAN ITA NO. 429&430/12 PB NO. 120 16.10.06 12 BIGHA @ RS. 1.35 CR. PER ACRE VILLAGE JHANDE ONLY 1/3 SHARE IN THE HANDS OF DEEPAK CHAUHAN A-1(R-2)39- 43 16 PB NO. 48 PARA 3 AND ALSO IN DEEPAK CHAUHAN IN HIS PB NO. 120 05.10.05 4 BIGHA, 8 BIGHA, 16 BIGHA @ RS. 47.80 LACS VILLAGE JHANDE ONLY SHARE IN THE HANDS OF THE COMPANY A-1(R-2) 31-36 16-17 IN DEEPAK CHAUHAN IN HIS PB NO. 119 10.11.07 3367 SQ. YDS. VILLAGE JHANDE A-1 (R-2) 48-50 15 PB NO. 48 49 & IN DEEPAK CHAUHAN ITA NO. 429 & 430/12 PB NO. 120 30.11.04 4840 SQ. YDS. VILLAGE MANDIALI PERTAIN TO SOME OTHER PERSON A-1 (R-2) 18-20 17-18 PB NO. 48 PARA 2 AND ALSO IN DEEPAK IN HIS PB NO. 119 07.11.06 2550 SQ. YDS. VALUED AT RS. 3.05CR. 1/3 SHARE OF SURESH KUMAR WHILE 100% CONSIDERED 49 A-1 (R-2) 4- 9 18-19 PB NO. 48 PARA 1 AND ALSO IN DEEPAK PB NO. 119 12.06.06 333 BIGHA @ RS. 81 LACS PER ACRE VILLAGE JHANDE A-1(R-2) 1- 2 19 IN DEEPAK PB 119,129 577 SQ. YDS. @ RS. 10700 PER SQ. YD. SITUATED AT LUDHIANA AND SURESH WAS ONLY ACTING AS A POA OF THE SELLER FAMILY AS APPEARS FROM AGREEMENT ITSELF. A-2(R-2)20- 25 19-20 PB NO. 49 PARA 2 15.11.07 600 SQ. YD. @ RS. 6400 PER SQ. YD. AT AYALI. A TRADING PROFIT HAS BEEN SHOWN A-3(R-2) 30-33 20 IN DEEPAK PB 120 12.12.07 250 SQ. YD. @ RS. 8100 PER SQ. YD. THIRD PARTY PAPERS FOR COMMISSION BUSINESS A-3 (R-2) 27-29 20 PB NO. 49 & IN DEEPAK PB NO. 120 19.07.07 4000 SQ. YD. @ 2850 PER SQ. YD. AT JHANDE. PROFIT TAKEN IN DECLARED INCOME A-3 (R-2) 13-18 20-21 PB NO. 49 PARA 3 14.12.08 540 SQ. YD. ON PLOT NO. F 118 AT LUDHIANA SUBSEQUENT AGREEMENT CANCELLED A-3)R-2) 1- 6 21 DOES NOT BELONG TO ASSESSEE 08.02.08 200 SQ. YD @ RS. 9000 PER SQ. YD. PLOT NO. M-28. THIRD PARTY AGREEMENT NO CONNECTION A-5 (R-2) 1- 4 21-22 PB NO. 49-50 PARA 4 455 SQ. YD. E-50. TRADING & PROFIT IN DECLARED INCOME A-9 (R-2) 5 22 PB. NO. 49 & IN DEEPAK PB NO. 121 600 SQ. YD. @ RS. 9600 PER SQ. YD. F- 157 AYALI TRADING & PROFIT IN DECLARED INCOME `A-9 (R-2) 16-21 22 PB NO. 50 PARA 5 & DEEPAK PB NO. 121 08.03.07 1475 SQ. YD. @ RS. 9800/- SQ. YD. SHARE IN DEEPAK AND SOLD AT PROFIT AND PART OF DECLARED INCOME A-12(R-2) 16-21 PB NO. 50 PARA 7 1 TXN. & IN DEEPAK PB NO. 122 500 SQ. YD. @ RS. 13000/- PER SQ. YD. ONLY TRADING A-12 (R-2) 11-15 23 PB NO. 50 PARA.7 & IN DEEPAK PB NO. 122 10.01.08 500 SQ. YD. @ RS. 14750/- A-13(R-2) 44-49 23-24 256.66 SQ. YD. A-13 (R-2) 26-27 24 21.08.07 256.66 SQ.YD. @ RS. 7470 B-56 AYALI KALAN A-13(R-2) 14-19 24-25 PB NO. 50-51 PARA. 8 07.11.07 256.66 SQ. YD. @ 8100/- A-15 (R- 2)34-39 25 PB NO. 51 PARA. 9 & IN DEEPAK PB NO. 122 01.01.08 500 SQ. YDS. @ 7500/- PER SQ.YD. E-X85 AT AYALLI TRADING PROFIT SHOWN A-19 (R- 2)2-7 25 PB NO. 51 PARA 10 19.02.08 A-22 (R-2) 26 IN DEEPAK PB GPA 200 SQ. YDS@ 2500/- PER SQ. YD. PLOT NO. M-135 M-135 50 1-3, 17-20 NO. 126 A-23 (R-2) 15-20 26 IN DEEPAK PB NO. 126 700 SQ. YD. @ 7200/- PER SQ. YD. SOLD AT PROFIT DECLARED IN INCOME RS. 350000/- A-24(R-2) 30-32 26-27 IN DEEPAK PB NO. 126 UNSIGNED AGREEMENT DT. 25.04.07 600 SQ. YD. @ 9600/- AT EX-85 AT AYALI KALAN. FROM THE ABOVE, NOBODY CAN MAKE OUT ANY RECONCILIAT ION. IT IS NOT CLEAR WHICH PROPERTY BELONG TO WHICH PERSON. TO A SPECIFIC QUER Y BY THE BENCH, THE COUNSEL COULD NOT GIVE ANY RECONCILIATION IN THIS RESPECT, THEREFORE, IT BECOME CLEAR THAT THESE DOCUMENTS ARE NOT CLEAR BEFORE US THEN HOW TH E ASSESSING OFFICER COULD HAVE UNDERSTOOD ANYTHING BUT AT THE SAME TIME THE A SSESSING OFFICER HAS NOT EXAMINED THESE DOCUMENTS, WHICH MAKES THE ASSESSMEN T ORDER ERRONEOUS . 50. IT IS WRONG TO SAY THAT COMMISSIONER HAS NOT EX AMINED ANYTHING. THE PERUSAL OF THE REVISIONARY ORDER CLEARLY SHOWS THA T LD. COMMISSIONER HAS RECORDED HIS FINDING AT PARA 3 TO 20 WHICH RUNS INT O 20 PAGES FROM PAGES 14 TO 34. THE LD. COMMISSIONER HAS EXAMINED VARIOUS DOCU MENTS FOUND DURING THE SEARCH AND HAS ALSO GONE THROUGH THE SUBMISSIONS. FOR THE SAKE OF BREVITY, WE ARE REPRODUCING HIS ANALYSIS IN RESPECT OF SOME OF THE DOCUMENTS WHICH ARE AS UNDER:- 5. AS FAR AS INVESTMENT IN THE PROPERTIES AND PROF ITS THEREON IS CONCERNED, THE SAME ARE DISCUSSED BELOW: ANNEXURE NO. A-1(R-2), PAGE NO. 61-63: THESE DOCUMENTS WHICH ARE PHOTOCOPY OF AN AGREEMEN T DATED 16.10.2006 BETWEEN SOME PERSONS AND SH. DEEPAK CHAU HAN PERTAIN TO THE PROPERTY MEASUING 12 BIGHE @ RS. 1.35 CR. PE R ACRE FOR WHICH A BIANA OF RS. 15 LAC AND RS. 5 LAC (TOTAL RS . 20 LAC) HAVE BEEN PAID AND FURTHER BALANCE WOULD BE PAID AT THE TIME OF REGISTRY I.E. 30.07.2007. IN RESPECT OF THE ABOVE PROPERTY, AR HAS SUBMITTED THAT THIS AGREEMENT WAS OWNED BY ASSESSEE COMPANY A ND THE PAYMENT MADE WAS OUT OF THE ADVANCES RECEIVED FROM THE BUYERS. 51 THESE DETAILS ARE CLAIMED TO HAVE BEEN FILED BEFORE A.O. REGARDING PROVISIONS U/S 40A(3). AR HAS SUBMITTED THAT CASH P AYMENTS ARE EXEMPT U/R 6DD(G) AS ON DATE OF PAYMENT VILLAGE JHA NDE WHERE THE LAND IS SITUATED AND THE SELLER IS THE RESIDENT WAS NOT SERVED BY ANY BANK. THE VERACITY OF THIS CLAIM HAS NOT BEEN EXAMI NED BY THE A.O. AS PER ABOVE AGREEMENT, TOTAL ADVANCE OF RS. 20 LAC HAS BEEN PAID IN THE PERIOD FALLING IN A.Y. 2007-08, SO URCE OF WHICH HAS NOT BEEN EXPLAINED AND A.O. HAS ALSO NOT TAKEN COGNIZANCE OF THE ABOVE ADVANCE OF RS. 20 LAC. OTHERWISE ALSO INV ESTMENT IN 12 BIGHE OF LAND I.E. 3 ACRES OF LAND @ RS. 1.35 PER A CRE COMES TO RS. 4.05 CR. WHICH ACCORDING TO THE ABOVE AGREEMENT WAS TO BE REGISTERED ON 30.07.2007 RELEVANT TO A.Y. 2008-09. NEITHER ANY ADDITION ON ACCOUNT OF INVESTMENT OF RS. 4.05 CR. O F THE ABOVE PROPERTY HAS BEEN MADE IN A.Y. 2008-09 NOR ANY INQU IRIES FROM DIFFERENT QUARTERS INCLUDING THE REGISTRAR OF PROPE RTIES / TEHSILDAR AND SELLERS HAVE BEEN MADE BY THE A.O. IN THIS REGA RD. FURTHER, PAYMENT OF RS. 26 LAC MADE ON 14.05.2007 AS NOTED O N THE BACKSIDE OF THE ABOVE DOCUMENT, HAS NOT BEEN EXAMIN ED BY THE A.O. ANNEXURE NO. A-1(R-2), PAGE NO. 48-50: THESE DOCUMENTS ARE PHOTOCOPY OF AN AGREEMENT DATED 30.11.2004. AR HAS SUBMITTED THAT BUYER PERSONS WER E AGENTS OF M/S U-LIKE PROMOTERS(P) LTD., NEW DELHI AND THE PAY MENTS SO MADE AN THE DEAL HAS BEEN OWNED BY THE NEW DELHI CO MPANY VIDE THEIR LETTER DATED 06.03.2009 WRITTEN AND SUBMITTED TO ACIT, CENTRAL CIRCLE-I, LUDHIANA AND AS SUCH THERE WAS NE ITHER ANY INVESTMENT NOR INFRINGEMENT OF PROVISIONS OF SECTIO N 40A(3). NO DOUBT A LETTER DATED 06.03.2009 FROM M/S U-LIKE PRO MOTERS(P) LTD. HAS BEEN FILED AT PAGE 95 OF THE REPLY DATED 0 8.02.2012 FILED IN THE COURSE OF PROCEEDINGS U/S 263 FOR A.Y. 2008- 09 FROM WHICH THE PROPERTY IN QUESTION HAS BEEN ADMITTED AS BEING PURCHASED BY M/S U-LIKE PROMOTERS(P) LTD. BUT FACT OF ASSESSEES INTEREST IN THE SAME HAS NOT BEEN EXAMINED BY THE A.O. ASSESSEE COMPANY IS A BUSINESS VENTURE COMPANY AND IS NOT DOING CHARITY A ND THEREFORE EVEN IT IS ADMITTED THAT ABOVE PROPERTY WAS BEING P URCHASED BY M/S U-LIKE PROMOTERS (P) LTD., ASSESSEE WOULD BE HA VING SOME 52 INTEREST IN THE FORM OF EARNING SOME INCOME BY WAY OF COMMISSION AND IN ANY OTHER MANNER WHICH HAS NOT BEEN EXAMINED BY THE A.O. ASSESSEE HAS NOT EXPLAINED HIS INTEREST AND ICOME F ROM THE AFORESAID TRANSACTIONS MADE THROUGH M/S U-LIKE PRO MOTERS (P) LTD. NOR A.O. HAS EXAMINED THE ISSUE SPECIALLY WHEN ABOVE AGREEMENT IS BETWEEN VARIOUS PERSONS ON THE ONE HAN D AND SH. SAHIBJIT SINGH (DIRECTOR OF THE ASSESSEE COMPANY ) AND OTHERS ON THE OTHER HAND. ANNEXURE NO. A-1 (R-2), PAGE NO. 39-43 ACCORDING TO THESE DOCUMENTS WHICH ARE AN AGREEMENT -CUM- REGISTRY DATED 05.10.2005 FOR LAND MEASURING 4B-8B- 16B @ RS. 47,80,000/- BETWEEN SMT. HARJINDER KAUR AND OTHERS AND SH. SAHIBJIT SINGH (HALF SHARE) AND SH. HARINDER SINGH (HALF SHARE) FOR WHICH A BIANA OF RS. 13,26,000/- HAS BEEN PAID AND BALANCE WOULD BE PAID AT THE TIME OF REGISTRY I.E. 25.03.2007. IN THIS REGARD, AR HAS SUBMITTED THAT THIS AGREEMENT / DEAL WAS OWNED BY ASSESSEE COMPANY AND THE PAYMENT WAS MADE OUT OF THE ADVANCE S RECEIVED FROM THE BUYERS. INITIAL INVESTMENT WAS MADE OUT OF SHARE APPLICATION MONEY CONTRIBUTED BY THE PROMOTERS / DI RECTORS OF COMPANY. AR HAS SUBMITTED THE COPY OF STATEMENT OF PURCHASE AND SALE OF LAND AND OTHER DEVELOPMENT EXPENSES IN ANNE XURE-6 OF THE ABOVE REPLY. AR HAS ALSO STATED THAT VILLAGE JHANDE WHERE THE LAND IS SITUATED WAS NOT SERVED WITH ANY BANK AND PAYMEN TS MADE IN CASH ARE EXEMPT UNDER RULE 6DD(G) AND THEREFORE PRO VISIONS OF SECTION 40A(3) ARE NOT APPLICABLE. THE VERACITY OF THIS CLAIM HAS NOT BEEN EXAMINED BY THE A.O. AS FAR AS ARS SUBMISSION THAT PAYMENT HAS BEEN MAD E OUT OF ADVANCES RECEIVED FROM THE BUYERS, SAME IS NOT V ERIFIABLE AS NO EVIDENCE HAS BEEN FILED EVEN BEFORE THE A.O. EVEN O THERWISE, AR HAS ADMITTED IN PARA 4 OF THE REPLY FILED BEFORE TH E UNDERSIGNED THAT TRANSACTIONS REGARDING SALE AND PURCHASE OF LA ND AT VILLAGE JHANDE AND FOR OTHER OUT OF BOOKS TRADING COMMISSIO N INCOME, ASSESSEE HAD COMPILED A NET INCOME FIGURE WHICH WAS INCORPORATED IN THE REGULAR BOOKS OF ACCOUNTS ON A NET BASIS AND ADMITTEDLY NO ITEM-WISE DETAILS HAVE BEEN PROVIDED BY THE AUDITOR S IN THE AUDIT REPORT. FROM THE ABOVE, IT IS EVIDENT THAT ASSESSEE IS NOT IN A 53 POSITION TO EXPLAIN THE SOURCE OF ADVANCE AND INVES TMENT MADE IN THE ABOVE PROPERTIES WHICH FALLS IN THE PERIOD RELE VANT NOT ONLY TO A.Y. 2008-09; THE YEAR UNDER CONSIDERATION BUT ALSO TO A.Y. 2006- 07 AND A.Y. 2007-08. A.O. HAS NOT EXAMINED THIS ASP ECT. IN RESPECT OF DISALLOWANCES MADE U/S 40A(3), A.O. HAS NOT VERI FIED THE CORRECTNESS AND GENUINENESS OF THE ASSESSEES CLAIM WHETHER AFORESAID VILLAGE WAS NOT SERVED BY ANY BANK OR WHE THER PROVISIONS OF SECTION 40A(3) WERE APPLICABLE. FURTH ER, AS PER NOTINGS GIVEN ON BACKSIDE OF ABOVE DOCUMENT, PAYMEN T OF RS. 50 LAC HAS ALSO BEEN MADE ON 27.02.2006 TOTALLING RS. 90 LAC WHICH HAS ALSO NOT BEEN EXAMINED. SIMILARLY, THE PAYMENTS OF RS. 20,43,800/- AND RS. 15,43,782/- IN THE NAMES OF SH. BHUPINDER SIGH S/O SH. HARBANS SINGH AND SH. BALWINDER SINGH S/O SH. HARBANS SINGH RESPECTIVELY ON 27.06.2006 AS NOTED O N THE BAKSIDE OF THE ABOVE DOCUMENT, HAVE ALSO NOT BEEN EXAMINED. 51. WE ARE NOT REPRODUCING THE ANALYSIS DONE BY LD. COMMISSIONER IN RESPECT OF ALL THE DOCUMENTS FOR THE SAKE OF BREVITY BUT TH E READING OF THE ANALYSIS OF THE ABOVE THREE DOCUMENTS CLEARLY SHOWS THAT LD. COMMIS SIONER HAS POINTED OUT WHAT ARE THE DIFFERENT FACETS WHICH HAVE NOT BEEN E XAMINED BY THE ASSESSING OFFICER. 52. THE LD. COMMISSIONER HAD ALSO RELIED ON THE PL ETHORA OF CASE LAWS TO SUPPORT HIS ORDER. THE LD. COUNSEL HAD FILED A LE TTER DATED 19.2.2013 IN WHICH THESE CASE LAWS HAVE BEEN DISTINGUISHED. WE ARE NOT DISCUSSING THESE CASE LAWS BECAUSE IT IS TRITE LAW THAT IF PROPER ENQUIRY HAS NOT BEEN MADE THEN THE ASSESSMENT ORDER PASSED BY HIM HAS TO BE CONSIDERED ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. WE HAVE AREADY REFERRED TO THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF GEE VEE ENTERPRISES (SUPRA). IN THIS CASE, IT IS CLEARLY HELD THAT IF PROPER ENQUIRIES ARE NOT MADE THEN THE ASSESSMENT ORDER WOULD BE ERRONEOUS AND RELIANCE WAS PLACED BY THE C OURT ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF SMT. TARA DEVI AGGARWAL V CIT 88 ITR 323 (SC). THE HEAD NOT READS AS UNDER:- 54 WHERE AN ASSESSEE IS ASSESSED ON AN INCOME VOLUNTA RILY RETURNED, IT IS NOT PREJUDICIAL TO THE INTERESTS OF THE REVENUE ONLY IF IT IS FOUND THAT THE ASSESSMENT WAS MADE ON THE BASIS THAT THE INCOME HAD BEEN EARNED BY THE ASSESSEE WHI CH WAS ASSESSABLE. WHERE AN INCOME HAS NOT BEEN EARNED AND IS NOT ASSESSABLE, MERELY BECAUSE THE ASSESSEE WANTS IT TO BE ASSESSED IN HIS OR HER HANDS IN ORDER TO ASSIST SOM E ONE ELSE WHO WOULD HAVE BEEN ASSESSED TO A LARGER AMOUNT, AN ASSESSMENT SO MADE WILL BE ERRONEOUS AND PREJUDICIA L TO THE REVENUE AND THE COMMISSIONER HAS JURISDICTION UNDER SECTION 33B OF THE INDIAN INCOME-TAX ACT, 1922, TO CANCEL T HE ASSESSMENT AND PROCEEDINGS FOR ASSESSMENT MAY BE IN ITIATED UNDER THE PROVISIONS OF THE ACT AGAINST SOME OTHER ASSESSEE WHO ACCORDING TO THE INCOME-TAX AUTHORITIES WOULD B E LIABLE FOR THE INCOME THEREOF. 53. IN VIEW OF THE ABOVE DISCUSSION, IT BECOMES TOT ALLY CLEAR THAT ASSESSING OFFICER HAS NOT MADE PROPER ENQUIRIES AND THEREFORE , ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E WHICH HAS BEEN CORRECTLY REVISED BY THE LD. COMMISSIONER BY PASSING AN ORDER U/S 263. ACCORDINGLY WE UPHOLD THE SAME. IN THE RESULT, THE APPEAL IS DIS MISSED. 54. ITA NOS. 421 & 422/CHD/2012 : SINCE THE FACTS AND CONTENTIONS OF BOTH THE PARTIE S ARE IDENTICAL TO THE FACTS IN ITA NO. 423/CHD/2012 WHICH WE HAVE ADJUDIC ATED ABOVE, AND FOLLOWING THE ABOVE ORDER, WE UPHOLD THE REVISIONARY ORDER IN THESE TWO APPEALS ALSO. IN THE RESULT, APPEALS ARE DISMISSED. 55. ITA NOS. 424 TO 426/CHD/2012, 427 & 428/CHD/2012 AN D 429 & 430/CHD/2012: IN ALL THESE APPEALS, BOTH THE PARTIES MADE IDENTI CAL CONTENTIONS WHICH WERE RAISED IN ITA NO. 423/CHD/2012. FURTHER, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IF A DOCUMENT HAD BEEN CONSIDERED IN THE HANDS OF A DIRECTOR, 55 THEN THE SAME CANNOT BE CONSIDERED IN THE HANDS OF COMPANY OR VICE-VERSA BECAUSE THAT WOULD AMOUNT TO DUPLICATION AND LEAD T O DOUBLE TAXATION. FURTHER, THE PERUSAL OF ASSESSMENT ORDER IN ALL THESE CASES CLEARLY SHOWS THAT ALL THE DOCUMENTS FOUND AND THEIR IMPLICATIONS HAVE NOT BEE N EXAMINED IN THE HANDS OF THE DIRECTORS. THEREFORE, IN OUR OPINION, THESE ORD ERS ARE RIGHTLY HELD TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E AND WE HAVE NO HESITATION IN UPHOLDING THE REVISIONARY ORDER PASSED BY LD. CO MMISSIONER IN THESE CASES. IN THE RESULT, THESE APPEALS ARE ALSO DISMISSED. 56. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE S IN ITA NOS. 421/CHD/2012 TO 430/CHD/2013 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.10.2014 SD/- SD/- (SUSHMA CHOWLA) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 30 TH JANUARY, 2014 RKK/SK/AG COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR BY ORDER ASSISTANT REGISTRAR, ITAT, CHANDIGARH 56
Other Referred Cases
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Laws Referred To
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Tax Holiday Secrets for Startups
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Tax Holiday Secrets for Startups
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1:1 Consultation with family dentist -Your Smile Deserves the Best Care!
₹250
Rectification Letter - Application for rectification of mistake under Section 154 of I.T. Act
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Assignment of Registered Trademark
Mehul₹500
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