RAMSWAROOP SHARMA, Jaipur V. CIT-III, Jaipur

ITA 430/JPR/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78061 (ITAT-JAIPUR)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 02-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S KOTHARI CIT DHK
• Assessee Lawyers: RAJEEV PANDEY
• Keywords: Prejudicial to interest; Reassessment proceedings
• Section: 40A(3); 143(3); 147; 148; 263

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA -@ ITA NO. 430/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2006-07. RAMSWAROOP SHARMA, VILLAGE- GONER, TEHSIL, SANGANER, JAIPUR. CUKE VS. COMMISSIONER OF INCOME TAX-III, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ATSPS 5965 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJEEV PANDEY (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI D.S. KOTHARI (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12/02/2016. MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 11/04/2016. VKNS'K@ ORDER PER T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 30/03/2014 OF THE LEARNED C.I.T.-III, JAIPUR FOR A.Y . 2006-07. THE EFFECTIVE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT THE ORDER PASSED BY THE LEARNED CIT U/S 263 OF THE I.T. ACT, 1961 IS BAD IN LAW FOR WANT OF JURISDICT ION. 2. THAT THE LEARNED CIT HAS ERRED IN LAW AS WELL IN F ACTS OF THE CASE IN PASSING ORDER U/S 263 OF THE I.T. ACT , THE ENTIRE PROCEEDINGS ARE PURELY BASED UPON WHIMS, 2 ITA NO. 430/JP/2014 RAMSWAROOP SHARMA VS CIT. SURMISES & SUSPICION AND LACKS BED ROCK CONDITION F OR EXERCISING REVISIONARY CONDITION. 3. THAT THE WHOLE EXERCISE OF REVISIONARY JURISDICTI ON U/S 263 IS JUST IMPROVEMENT OF CASE BY THE LEARNED CIT WITHOUT APPRECIATING THE FACT THAT ORDER U/S 143(3)/ 147 AT 16.12.2011 MIGHT BE PREJUDICIAL TO INTEREST OF REVENUE BUT WAS NOT ERRONEOUS WITHIN FOUR CORNERS OF LAW. 4. THAT THE EXERCISE OF REVISIONARY JURISDICTION U/ S 263 BEYOND PERIOD OF SIX YEAR FROM END OF RELEVANT A.Y. , IS BARRED BY LIMITATION. 2. ALL THE GROUND OF APPEAL ARE INTERLINKED AND AGA INST PASSING ORDER U/S 263 OF THE INCOME TAX ACT, 1961 (IN SHORT THE AC T) ON WHIMS, SURMISES AND SUSPICION, WHICH IS BAD IN LAW AND ALSO POWER U/S 263 OF THE ACT IS BARRED BY LIMITATION. IN THIS CASE, ORIGINAL ASSESSEES APPEAL WAS DISMISSED BY APPLYING THE DECISION OF 38 ITD 320 (DE LHI) IN THE CASE OF CIT VS MULTIPLAN INDIA LTD.. THEREAFTER, THE ASSESSEES APPEAL ORDER WAS RECALLED VIDE ORDER DATED 26/06/2015 AND THE CASE WA S HEARD IN DETAIL. IN THIS CASE, SCRUTINY ASSESSMENT U/S 143(3) OF THE AC T WAS COMPLETED ON 10/07/2008 BY THE ASSESSING OFFICER AND A LUMP SUM ADDITION WAS MADE RS. 50,000/-. THEREAFTER THE ASSESSEES CASE WAS REOP ENED U/S 147 AND ASSESSMENT WAS COMPLETED AGAIN ON ASSESSED INCOME OF RS. 1,74,000/- ON 16/12/2011. THE LD CIT HAS OBSERVED THAT ON EXAMINA TION OF ASSESSMENT 3 ITA NO. 430/JP/2014 RAMSWAROOP SHARMA VS CIT. RECORD FOR A.Y. 2006-07 INDICATED THAT THE ASSESSME NT ORDER PASSED U/S 143(3)/147 OF THE ACT BY THE ITO, WARD 7(2), JAIPUR ON 16/12/2011IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. THE CASE WAS REOPENED ON THE GROUND THAT THE PAYMENTS TO THE TUN E OF RS. 35,53,212/- WAS MADE TO THE VEHICLE OWNERS FROM WHOM VEHICLES WERE TAKEN ON HIRE, OTHERWISE THAN BY ACCOUNT PAYEE CHEQUES IN EXCESS OF RS. 20,000/- IN VIOLATION OF PROVISIONS OF SECTION 40A(3) OF THE AC T. THE AUDITOR IN THEIR REPORT IN FORM 3CD COLUMN 17(B) ALSO POINTED OUT TH AT PAYMENTS OVER RS. 20,000/- WERE MADE OTHERWISE THAN BY ACCOUNT PAYEE CH EQUE, THOUGH HE DID NOT IDENTIFY THE SPECIFIC TRANSACTIONS, BUT DUR ING THE REASSESSMENT PROCEEDINGS, THE DETAILS WERE NOT PROPERLY COLLECTED AND DUE VERIFICATION WERE NOT MADE AND ASSESSMENT WAS COMPLETED WITHOUT MAK ING ANY ADDITION ON THE GROUND ON WHICH THE CASE WAS REOPENED . THE LD CIT GAVE SHOW CAUSE NOTICE TO THE ASSESSEE. THE ASSESSEE ALSO SUBMITTED REPLY VIDE LETTER DATED 28/03/2014, WHICH HAS BEEN REPRODUCED B Y THE LD CIT ON PAGE 2 AND 3 OF THE ORDER. IT HAS BEEN HELD BY THE LD CIT THAT AR OF THE ASSESSEE ADMITTED THAT THE PARTYWISE DETAILS WERE NOT AVAILABLE WITH THE ASSESSEE. ON THE BASIS OF OWNERS OF CARS TAKEN ON HI RE, THESE DETAILS WERE POSSIBLE TO BE PREPARED EVEN IF THEY WERE NOT AVAILA BLE READILY. THUS, IN ABSENCE OF PARTY WISE DETAILS, THE VERACITY OF PAYM ENTS MADE TO THE 4 ITA NO. 430/JP/2014 RAMSWAROOP SHARMA VS CIT. OWNERS OF DIFFERENT VEHICLES REMAINS UNVERIFIED AND EXPENSES INCURRED THROUGH SUCH PAYMENTS CANNOT BE ALLOWED. HE DID NOT FIND LUMP SUM DISALLOWANCES MADE BY THE ASSESSING OFFICER RS. 50,0 00/- SUFFICIENT TO COVER THE LEAKAGE OF INCOME ARISING OUT OF THE AFOR ESAID DISCREPANCY. HE FURTHER HELD THAT THIS ADDITION WAS MADE IN THE ORIG INAL ORDER U/S 143(3) OF THE ACT DATED 10/07/2008. SUBSEQUENTLY, THE CASE WAS REOPENED U/S 147 OF THE ACT ON THE QUESTION OF ALLOWABILITY TO THE TU NE OF RS. 35,53,212/- AND DISALLOWANCE U/S 40A(3) OF THE ACT BUT IN THE RE ASSESSMENT PROCEEDINGS, THE LD ASSESSING OFFICER NEITHER MADE PROPER VERIFICATION NOR MADE ANY ADDITION. THEREFORE, RELIANCE OF THE ASSESS EE IN LUMP SUM ADDITION OF RS. 50,000/- MADE IN ORIGINAL ORDER U/S 143(3) OF THE ACT WAS HIMSELF MISPLACED. OTHERWISE ALSO THIS AMOUNT WAS VER Y MEAGRE WITH REFERENCE TO DISCREPANCY FOUND BY THE ASSESSING OFF ICER. IT IS FURTHER FOUND BY THE LD CIT THAT IN THE REASSESSMENT PROCEEDINGS, THE LEDGER ACCOUNT WERE MAINTAINED VEHICLE WISE WITHOUT MENTION THE NAME OF THE OWNERS OR THE ACTUAL PAYEES. THE LD ASSESSING OFFICER HAD NOT MADE ADDITION ON THE GROUND THAT THE JDA PAID MONTHLY RENTAL OF VEHICLE @ 8,599/- PER MONTH, SO NO PAYMENT OF EXCESS OF RS. 20,000/- IN CASH WAS MADE BY THE APPELLANT. THE LD ASSESSING OFFICER HAD NOT CHECKED PARTY WISE PAYMENT DETAILS BEFORE REACHING TO THE ABOVE CONCLUSION. MO REOVER, FOR THE 5 ITA NO. 430/JP/2014 RAMSWAROOP SHARMA VS CIT. VOUCHERS OF VEHICLE WERE PAYMENTS EVEN THE NAMES, AD DRESSES OF THE PAYEES ARE NOT ASCERTAINABLE. STILL, THE LD ASSESSI NG OFFICER HAD NOT BOTHERED TO FIND OUT WHOM DID THE VEHICLES BELONG AN D WHETHER THE PAYMENTS SHOWN IN CASH WERE MADE TO SUCH OWNERS AT ALL . THEREFORE, OTHERWISE ALSO THE GENUINENESS OF PAYMENTS ALSO REMA INED UNVERIFIED. THE LD ASSESSING OFFICER DID NOT MAKE PROPER VERIFICATI ON BEFORE ALLOWING THE EXPENSES EVEN DETAILS BROUGHT ON RECORD WERE ALSO NO T VERIFIED BY HIM. HE GAVE THE EXAMPLE OF TWO VEHICLES IN A SCHEDULE AND H ELD THAT PAYMENTS WERE MUCH MORE THAN THE PAYMENT FOR THE SAME VEHICLE , FOR WHICH THEY WERE GIVEN ON HIRE TO JDA. THIS CASTS SERIOUS DOUBT O N VERACITY OF THESE PAYMENTS. THEREFORE, HE FOUND THAT RECORDS WERE NOT E XAMINED PROPERLY AND PAYMENTS WERE NOT VERIFIED. THE LD AR OF THE ASS ESSEE ADMITTED THAT THE ASSESSEE RECEIVED RS. 11,607/- PER MONTH PER VE HICLE FROM JDA AS AGAINST THE STIPULATED RATE OF RS. 8,599/- PER MONT H PER VEHICLE DUE TO EXCESS RUNNING OF THE VEHICLE AS PROVIDED IN THE CO NTRACT WITH JDA BUT NO CORRELATION OF RECEIPT AND EXPENDITURE WAS GIVEN. IN FACT, EVEN THE BOOKS OF ACCOUNT AND COPIES OF CONTRACTS WITH VARIOUS PART IES WERE ALSO NOT PRODUCED BEFORE THE UNDERSIGNED DESPITE BEING ASKED SPECIFICALLY. THE MAJOR PAYMENTS WERE MADE THROUGH BEARER CHEQUE, WHIC H IS ALSO CONFIRMED IN AUDIT REPORT BY THE AUDITOR. THE CASE L AWS REFERRED BY THE LD 6 ITA NO. 430/JP/2014 RAMSWAROOP SHARMA VS CIT. AR WERE ALSO NOT FOUND APPLICABLE IN THE CASE OF ASS ESSEE. HE FURTHER RELIED ON THE DECISION OF HON'BLE RAJASTHAN HIGH CO URT IN THE CASE OF SMT. RENU GUPTA VS. CIT (2008) 301 ITR 45 (RAJ). THE LIMIT ATION CLAIMED BY THE AR BEFORE HIM UNDER RULE 6F(5) OF THE INCOME TAX RUL ES, 1962 (IN SHORT THE RULES) WAS ALSO NOT FOUND CONVINCING TO HIM BUT THE LIMITATION FOR PASSING ORDER U/S 263 IS PROVIDED IN SUB-SECTION (2 ) ITSELF, WHICH IS TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH TH E ORDER SOUGHT TO BE REVISED WAS PASSED. THE LD CIT ALSO ASKED THE ASSESSEE TO PRODUCE AUDITED COMPLETE BOOKS OF ACCOUNT, NAMES AND ADDRES SES OF THE PARTIES TO WHOM THE CONTRACT IS MADE AND REPLY HAS BEEN SUBMITT ED TO THE AUDITOR FOR MAKING EXCESSIVE PAYMENT OF RS. 20,000/-. AS PE R ORDER OF THE LD CIT, THE ASSESSEE DID NOT PRODUCE THE REQUIRED DETAILS. HE FURTHER HELD THAT THE LD ASSESSING OFFICER FAILED TO EXAMINE THE GENUINEN ESS OF PAYMENTS MADE TO THE VEHICLE OWNERS OTHER THAN BY ACCOUNT PAYEE CH EQUES AND THE APPLICABILITY OF PROVISIONS OF SECTION 40A(3) OF TH E ACT WHILE PASSING THE ORDER U/S 143/147 OF THE ACT. THEREFORE, ORDER DATE D 16/12/2011 WAS FOUND BY HIM ERRONEOUS AND PREJUDICIAL TO THE INTER EST OF THE REVENUE. ACCORDINGLY, ASSESSMENT ORDER DATED 16/12/2011 WAS C ANCELLED U/S 263 OF THE ACT AND LD ASSESSING OFFICER WAS DIRECTED TO MAK E FRESH ASSESSMENT. HE FURTHER DIRECTED TO THE ASSESSING OFFICER TO EXA MINE THE BOOKS OF 7 ITA NO. 430/JP/2014 RAMSWAROOP SHARMA VS CIT. ACCOUNT, AUDIT FILED BY THE AUDITOR TO FIND OUT THE BASIS OF HIS MAKING REMARKS, OWNERSHIP OF VEHICLE TO FOUND OUT APPLICABI LITY OF PROVISIONS OF SECTION 40A(3) OF THE ACT AND GENUINENESS OF PAYMEN TS. 3. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT IN THIS CASE ORIGINAL ASSESSMENT U/S 143(3) WAS COMPLETED ON 10/07/2008. THE RETURN OF INCOME WAS SU PPORTED WITH STATEMENT OF FINAL ACCOUNTS BEING BALANCE SHEET AND INCOME AND EXPENDITURE ACCOUNT WITH ANNEXURES AND TAX AUDIT REP ORT IN PRESCRIBED FORM NO. 3CD. THE ASSESSMENT WAS COMPLETED BY THE ASS ESSING OFFICER AFTER EXAMINING THE BOOKS OF ACCOUNT AND SUBMISSION OF REPLY TO THE QUERY DATED 26/5/2008. HE HAS DRAWN OUR ATTENTION ON PAPE R BOOK PAGE NO. 14 AND 15 AND ARGUED THAT IN ITEM NO. 8, THE LD ASSES SING OFFICER HAS VERIFIED EVERY ITEM OF EXPENSES PARTICULARLY VEHICLES PAYMEN TS OF RS. 44,89,877/- VIDE LETTER DATED 26/05/2008. THE ASSESSEE ALSO SUBM ITTED COPY OF BANK STATEMENT, COPY OF STATEMENT OF VEHICLES, WHICH WERE PLIED, CONTRACT WITH JDA AND THE RATE OF CONTRACT AND STATEMENT ACCOUNT GIVING DETAILS OF PAYMENT TO VARIOUS PERSONS, VENDORS AND EACH PAYMEN T DOES NOT EXCEED RS. 20,000/- IN CASH. HE HAS FURTHER DRAWN OUR ATTE NTION ON PAGE NO. 33 TO 34 OF THE PAPER BOOK, WHICH WAS THE COPY OF CONTRACT MADE BETWEEN THE 8 ITA NO. 430/JP/2014 RAMSWAROOP SHARMA VS CIT. ASSESSEE AND JDA. HE HAS FURTHER DRAWN OUR ATTENTION ON PAGE NO. 21 AND 22 OF THE PAPER BOOK AND ARGUED THAT ALL THE DETAIL S OF TDS AND PAYMENTS MADE TO THE PAYEES/VEHICLE OWNERS WERE SUBMITTED TO THE ASSESSING OFFICER. AFTER CONSIDERING THESE DETAILS, THE LD AS SESSING OFFICER PASSED ORDER ON 10/07/2008 U/S 143(3) AT RS. 1,74,000/-. 3.1. THE ASSESSEES CASE WAS REOPENED U/S 147 BY ISSU ING NOTICE U/S 148 DATED 23/09/2011. THE ASSESSEE FURNISHED REPLY VIDE LETTER DATED 31/10/2011 AND REQUESTED THAT ORIGINAL RETURN FILED WAS TO BE TREATED IN PURSUANCE TO THE NOTICE U/S 148 OF THE ACT. THE PROC EEDINGS U/S 147 WAS ALSO CHALLENGED BEFORE THE ASSESSING OFFICER AS ALL THE PARTICULARS HAS ALREADY BEEN FILED BY THE ASSESSEE DURING THE FIRST SCRUTINY ASSESSMENT. HE HAS DRAWN OUR ATTENTION ON PAGE NO. 56 AND 57 OF TH E PAPER BOOK AND ARGUED THAT COPY OF CONTRACT WAS AGAIN FILED BEFORE THE ASSESSING OFFICER ALONGWITH COPY OF BANK ACCOUNT AND AUDITED BOOKS OF ACCOUNT. HE HAS ALSO DRAWN OUR ATTENTION ON PAGE NOS. 28 TO 55 OF THE PAP ER BOOK AND ARGUED THAT COPY OF BANK ACCOUNT AS SUBMITTED IN WHICH ALL THE DEPOSITS WERE FROM JDA. THE ASSESSEE AGAIN SUBMITTED THE DETAILS OF WITH DRAWALS FROM THE BANK AND PAYMENTS MADE TO THE VEHICLE OWNERS. COPY O F LIST OF EACH VEHICLE FOR WHOLE YEAR WAS ENCLOSED. OTHER RELEVANT D OCUMENTS INCLUDING 9 ITA NO. 430/JP/2014 RAMSWAROOP SHARMA VS CIT. CASH BOOK WERE PRODUCED BEFORE THE ASSESSING OFFICER AND NECESSARY VERIFICATION HAS BEEN MADE BY HIM. DURING THE IMMED IATE PRECEDING YEAR, THE TOTAL RECEIPTS WERE RS. 20,48,781/-, THUS THE AS SESSEE WAS NOT LIABLE TO TAX DEDUCTED AT SOURCE. HE HAS FURTHER DRAWN OUR ATT ENTION ON LEDGER ACCOUNT THAT NO PAYMENTS OF EXCESSIVE RS. 20,000/- WERE MADE BY THE ASSESSEE. NOW THE LD CIT HAS INITIATED PROCEEDING U/S 263 OF THE ACT ON SAME FACTS. IT IS FURTHER SUBMITTED BEFORE HIM THAT NO PAYMENT EXCESSIVE RS. 20,000/- WERE MADE, ALL THE DETAILS WERE GIVEN T O THE ASSESSING OFFICER AT THE TIME OF ASSESSMENT INCLUDING COPY OF BANK AC COUNT AND ALSO PRODUCED COMPLETE BOOKS OF ACCOUNT BEFORE THE ASSES SING OFFICER. THE LD CIT ALSO NOT PERUSED THE DETAILS OF PAYMENTS MADE TO THE TAXI VEHICLE ENGAGED AND WHICH CONTAINED THE REGISTRATION NUMBER OF THE VEHICLE. MOREOVER, THE PAYMENTS WERE MADE ON DAY TO DAY BASIS TO SUCH VEHICLE OWNERS WERE ALSO NOT EXAMINED, WHICH WAS PART OF THE A SSESSMENT RECORD. HE FURTHER INSISTED THE ASSESSEE THE NAMES, OWNERSHI P AND VOUCHER OF THE PAYEES. IT IS FURTHER SUBMITTED THAT IN TRADE OF VE HICLE LINE ON CONTRACT WITH PSU AND GOVERNMENT DEPARTMENT IS UNORGANIZED AND A SINGLE PERSON BIDS HOPING TO GATHER THE VEHICLES FROM THE MARKET TO PL Y. TERMS AND CONDITIONS IN THE TRADE IS ADHERED TO AND THE CONTR ACTOR GETS THE PAYMENT FROM THE PSU/GOVERNMENT DEPARTMENT BY CHEQUE/RTGS A ND WHICH INTERN 10 ITA NO. 430/JP/2014 RAMSWAROOP SHARMA VS CIT. IS PAID TO THE VEHICLE OWNER. THE PRESUMPTION OF THE LD CIT THAT PAYMENTS CAN BE MADE FOR THREE OR FOUR MONTHS TOGETHER WAS NO T PRACTICAL AS THE VEHICLE OWNER HAVE TO MAKE REGULAR PAYMENT FOR DIESE L, DRIVER SALARY, NORMAL MAINTENANCE AND EVEN MONTHLY EQUATED INSTALL MENT FOR FINANCE. THE LD CIT ONLY RELIED ON THE QUALIFYING REMARK GIVEN BY THE AUDITOR IN AUDIT REPORT ON VIOLATION OF SECTION 40A(3) OF THE ACT. THE ASSESSEE ONLY HAS WITHDRAWN EXCESSIVE RS. 20,000/- FROM THE BANK B UT PAYMENT TO THE OWNER OF THE TAXI WERE MADE LESS THAN RS. 20,000/-. HE FURTHER ARGUED THAT AS PER RULE 6F(5) OF THE RULES, THE ASSESSEE H AS TO KEEP THE BOOK SIX YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THE LD CIT ASKED TO PRODUCED BOOKS OF ACCOUNT IN THE FINANCIAL YEAR 201 3-14 PARTICULARLY IN THE MONTH OF MARCH, 2014 FOR A.Y. 2006-07. THEREFORE, TH ERE IS NO MANDATORY OBLIGATION ON THE PART OF THE ASSESSEE TO PRODUCE C OMPLETE BOOKS OF ACCOUNT AFTER SIX YEARS FROM THE END OF RELEVANT AS SESSMENT YEAR. HE FURTHER RELIED ON THE DECISION IN THE CASE OF CIT VS . TRUSTEES OF ANUPAM CHARITABLE TRSUT 167 ITR 129 (RAJ) AND ARGUED THAT ER ROR ENVISAGED BY SECTION 263 IS NOT ONE WHICH DEPENDS ON POSSIBLE OR GUESS WORK, BUT IT SHOULD BE ACTUALLY AN ERROR EITHER OR FACT OR OF LA W. IN THIS CASE, PROPER ENQUIRY HAS BEEN CONDUCTED DURING THE COURSE OF ASS ESSMENT PROCEEDINGS, NO ERROR CAN BE PRESUMED MERELY ON THE GROUND THAT ENQUIRY SHOULD HAVE 11 ITA NO. 430/JP/2014 RAMSWAROOP SHARMA VS CIT. BEEN MORE DETAILED FOR WHICH HE RELIED ON THE DECISI ON IN THE CASE OF ZUBER KOCHAR VS. ACIT 309 ITR (AT) 192 (DEL), CIT VS. HINDUST AN MARKETING AND ADVERTISING CO. LTD. 341 ITR 180 (DEL) AND CIT VS HER O AUTO LTD. 343 ITR 342 (DEL) ON QUALIFYING REMARKS IN FORM 3CD. THEREFO RE, HE SUBMITTED THAT CANCELLING THE ASSESSMENT ORDER BY THE LD CIT WAS UNJ UST, NOT FOLLOWING THE PROVISIONS OF LAW, HENCE BAD IN LAW AND WITHOUT JU RISDICTION AND DESERVES TO BE ANNULLED. HE FURTHER RELIED ON THE D ECISION IN THE CASE OF RAYAN SILK MILL VS. CIT 221 ITR 155 (GUJ) ON OPPORTU NITY OF HEARING AFFORDED TO THE ASSESSEE. THEREFORE, HE PRAYED TO CA NCEL THE ORDER PASSED BY THE LD CIT U/S 263 OF THE ACT. 4. AT THE OUTSET, THE LD CIT DR VEHEMENTLY SUPPORTED THE ORDER OF THE LD CIT-III, JAIPUR AND ARGUED THAT THE LD CITS, ORD ER IS VERY EXHAUSTIVE AND ASSESSING OFFICER PASSED SCRUTINY ASSESSMENT OR DER IN SUMMARY MANNER, THEREFORE, HE PRAYED TO UPHOLD THE ORDER OF THE LD CIT. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE LD ASSESS ING OFFICER SCRUTINIZED THE ASSESSEES CASE TWICE U/S 143(3) OF THE ACT. ALL THE DETAILS WERE COLLECTED, WHICH HAS BEEN REFERRED BY THE ASSESSEE O N THE BASIS OF REPLY SUBMITTED DURING THE ASSESSMENT PROCEEDINGS IN PAPE R BOOK, WHICH SHOWS 12 ITA NO. 430/JP/2014 RAMSWAROOP SHARMA VS CIT. THAT THE ASSESSING OFFICER HAS MADE DETAILED INVEST IGATION ON PAYMENT OF VEHICLE OWNERS IN CASH BY CONSIDERING SECTION 40A(3) OF THE ACT. EVEN TDS PROVISIONS HAS BEEN CONSIDERED BY THE LD ASSESSING OFFICER. THE ASSESSEE HAD PRODUCED AUDITED BOOKS OF ACCOUNT BEFORE THE LD ASSESSING OFFICER ALONGWITH ALL DETAILS INCLUDING COPY OF CONTRACT MAD E WITH JDA, DETAILS OF PAYMENTS VEHICLE WISE TO THE ASSESSING OFFICER. THE L D ASSESSING OFFICER APPLIED HIS MIND AND THEREAFTER HE MADE ADDITION OF RS. 50,000/- AS NO SERIOUS DISCREPANCY WAS FOUND BY HIM. THE CASE LAWS RE FERRED BY THE ASSESSEE IS SQUARELY APPLICABLE AS THE LD ASSESSING OFFICER CONDUCTED PROPER ENQUIRY DURING THE COURSE OF ASSESSMENT PROC EEDINGS. IT IS NOT NECESSARY THAT IN EACH AND EVERY CASE, THE ADDITION IS TO BE MADE BY THE ASSESSING OFFICER IN SCRUTINY ASSESSMENT AS PER INF ORMATION OF THE CIT. THE HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. GANPAT RAM BISHNOI (2008) 296 ITR 292 (RAJ) HAS HELD THAT WHILE EXERCIS ING THE POWER U/S 263, THE COMMISSIONER HAS NO POWER TO RESTART THE EN QUIRY TO GO INTO THE PROCESS OF ASSESSMENT AGAIN AND AGAIN. WHERE IT WAS FOUND THAT ASSESSING OFFICER HAD MADE THE ASSESSMENT AFTER MAKING RELEVA NT ENQUIRIES AND CONSIDERING ALL ASPECTS OF MATTER. IT WAS HELD THAT THE JURISDICTION ASSUMED OF COMMISSIONER WAS UNSUSTAINABLE. THE HON'BLE SUPREM E COURT IN THE CASE OF MALABAR INDUSTRY LIMITED VS CIT 343 ITR 83 H AS HELD THAT THE LD 13 ITA NO. 430/JP/2014 RAMSWAROOP SHARMA VS CIT. ASSESSING OFFICER SHOULD APPLY HIS MINE. ALL THE IN FORMATION IS REQUIRED TO FILE BY THE ASSESSEE AND A.O. PASSED ORDER AFTER MA KING ENQUIRY. THEREFORE, THE CRITERIA FIXED BY THE HON'BLE SUPREME COURT IN MALABAR INDUSTRY IS ALSO FULFILLED. THEREFORE, WE QUASH THE O RDER OF THE LD CIT(A) U/S 263 OF THE ACT. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/04/2016. SD/- SD/- YFYR DQEKJ VH-VKJ-EHUK (LALIET KUMAR) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 11 TH APRIL, 2015 RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI RAMSWAROOP SHARMA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE CIT-III, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO.430/JP/2014) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR