Sh. Paramjit Singh, Rajpura V. Pr. CIT, Patiala

ITA 499/CHANDI/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8992 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 05-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI SARANGA L
• Assessee Lawyers: B M MONGA; SSH AJAY JAIN ROHIT KAURA
• Keywords: Opportunity of being heard; Audit objection; Difference of opinion; Competent authority; Assessment record; Onus to prove; Change of opinion
• Section: 143(3); 133(6); 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 499/CHD/2016 ASSESSMENT YEAR: 2011-12 SH. PARAMJIT SINGH, VS. THE PRINCIPAL CIT, RAJPURA PATIALA PAN NO.ALYPS4326A (APPELLANT) (RESPONDENT) APPELLANT BY : S/SH. AJAY JAIN, ROHIT KAURA & B.M. MONGA RESPONDENT BY : SH. RAVI SARANGAL CIT DR DATE OF HEARING : 02.11.2016 DATE OF PRONOUNCEMENT : 09.11.2016 ORDER PER BHAVNESH SAINI, JM THIS APPEAL BY THE ASSESSEE HAS BEEN DIRECTED AGAI NST THE ORDER OF LD. PRINCIPAL CIT, PATIALA DATED 02.03.2016 FOR ASSESSM ENT YEAR 2011-12 U/S 263 OF THE INCOME-TAX ACT, 1961. 2. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES AND PERUSED THE MATERIAL ON RECORD. 2 3. IN THIS CASE ASSESSMENT ORDER U/S 143(3) OF THE ACT FOR THE ASSESSMENT YEAR UNDER APPEAL WAS PASSED VIDE ORDER DATED 17.9. 2013. THE ASSESSING OFFICER IN THE ASSESSMENT ORDER NOTED THAT THE CASE HAS BEEN SELECTED FOR SCRUTINY ASSESSMENT. THE ASSESSEE FURNISHED VARIOUS INFORMATION AND DETAILS WHICH HAVE BEEN EXAMINED BY THE ASSESSING O FFICER. THE ASSESSING OFFICER NOTED IN THE ASSESSMENT ORDER THAT IN THE A SSESSMENT YEAR UNDER APPEAL, THE ASSESSEE HAS MADE CASH DEPOSITS IN HIS SAVING BANK ACCOUNT WITH ICICI BANK AND ALLAHABAD BANK. THE STATEMENTS OF THE ACCOUNTS OF ICICI BANK AND ALLAHABAD BANK WERE FURNISHED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. FOR VERIFICATION OF THE DEPOSITS IN THESE BANK ACCOUNTS, THE ASSESSEE WAS ASKED TO PRODUCE THE NECESSARY EVI DENCE AS WELL AS SOURCE THERETO AND ASSESSEE SUBMITTED THE REQUIRED DETAILS AND CASH BOOK FOR CONSIDERATION OF THE ASSESSING OFFICER. THE ASSESS ING OFFICER FOUND THAT NO EVIDENCE WITH REGARD TO THE OPENING BALANCE OF R S. 1,62,000/- COULD BE FURNISHED BY THE ASSESSEE AND AFTER GIVING AVAILABI LITY OF THE FUNDS OF RS. 30,000/-, THE ASSESSING OFFICER MADE ADDITION OF RS . 1,32,000/- U/S 68 OF THE I.T. ACT. FURTHER ON EXAMINATION OF THESE BANK ACCOUNTS, IT WAS ALSO FOUND THAT THE ASSESSEE EARNED INTEREST WHICH HAVE BEEN NOT DECLARED IN THE RETURN OF INCOME, THEREFORE, INTEREST EARNED ON THI S BANK ACCOUNT WAS ALSO ADDED TO THE INCOME OF THE ASSESSEE. 4. THE LD. PRINCIPAL CIT FOUND THE ASSESSMENT ORDER TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVE NUE. THE LD. PRINCIPAL CIT ISSUED SHOW CAUSE NOTICE U/S 263 OF THE ACT WHICH I S REPRODUCED IN THE IMPUGNED ORDER AND COPY OF THE SAME IS FILED AT PAG E 22 OF THE PAPER BOOK. IN THE SHOW CAUSE NOTICE IT IS PRECISELY NOTED THAT THIS CASE WAS SELECTED 3 FOR SCRUTINY ON ACCOUNT OF CASH DEPOSITS EXCEEDING RS. 10 LAKHS IN THE SAVING BANK ACCOUNT WITH ALLAHABAD BANK, RAJPURA AN D ICICI BANK, RAJPURA AMOUNTING TO RS. 40,70,000/- AND RS. 32,49, 500 RESPECTIVELY. FROM THE PERUSAL OF THE ASSESSMENT RECORDS AND BANK STATEMENTS, IT WAS REVEALED THAT ASSESSEE HAD DEPOSITED A SUM OF RS. 9 8,60,901/- THROUGH CASH AND TRANSFER ENTRIES FROM VARIOUS PERSONS IN SAVIN G BANK ACCOUNTS MAINTAINED WITH THE ABOVE BANKS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE IN ORDER TO EXPLAIN THE S AID DEPOSITS FILED A LEASE AGREEMENT EXECUTED ON 1.4.2010 WITH SUKHA SINGH FOR LEASING OUT THE AGRICULTURAL LAND FOR TWO YEARS. THE ASSESSEE ALSO FILED AN AGREEMENT EXECUTED ON 13.11.2009 FOR SALE OF AGRICULTURAL LAN D FOR RS. 16,40,000/- PER ACRE AND AGREED TO EXECUTE THE SALE DEED/ REGIS TRY UPTO 15.6.2011. IT IS NOTED IN THE SHOW CAUSE NOTICE THAT AGREEMENT IS NO T REGISTERED WITH THE SUB REGISTRAR, RAJPURA. IT IS ALSO NOTED THAT THE A GREEMENT PREPARED IS FAKE AND BOGUS. THERE IS HUGE CASH DEPOSITS IN THE BANK ACCOUNTS OF THE ASSESSEE DETAILS OF WHICH ARE NOTED IN THE NOTICE. IT WAS TH EREFORE FOUND THAT EXCEPT CASH FLOW AND BOOKS OF ACCOUNT, THE ASSESSING OFFIC ER DID NOT MAKE ENQUIRIES WITH REGARD TO SOURCE OF DEPOSIT AND SINC E ASSESSING OFFICER FAILED TO VERIFY / ENQUIRE THE CASH DEPOSITS AMPUTA TING TO RS. 40,70,000/- AND RS. 32,49,500/- DEPOSITED IN ALLAHABAD BANK AND ICICI BANK, RAJPUA RESPECTIVELY, THEREFORE, IT WAS INFERRED THAT ASSES SMENT ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERST OF THE REVENUE. 5. THE ASSESSEE IN RESPONSE TO THE SHOW CAUSE NOTIC E FILED A DETAILED REPLY BEFORE LD. PRINCIPAL CIT WHICH IS REPRODUCED IN THE IMPUGNED ORDER 4 IN WHICH THE ASSESSEE HAS HIGHLIGHTED / SUBMITTED T HAT ASSESSING OFFICER DULY EXAMINED THE ACCOUNTS AND MADE INQUIRIES ON TH E ISSUE INVOLVED FOR SCRUTINY ASSESSMENT WITH REGARD TO THE CASH DEPOSIT S IN BOTH THE BANK ACCOUNTS. THE ASSESSING OFFICER ASKED FOR THE DETAI LS AND EVIDENCES IN RESPECT OF THE CASH DEPOSITS WHICH HAVE BEEN SUBMIT TED BEFORE THE ASSESSING OFFICER, WHICH IS ALSO CLEAR FORM THE ORD ER SHEET PASSED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER DULY EXAMI NED THE ACCOUNTS AND EVIDENCES INCLUDING THE AGREEMENTS WHICH ARE SUPPOR TED BY THE CASH BOOK AND LEDGER ACCOUNT. IT WAS SUBMITTED THAT ASSESSEE EXECUTED AGREEMENT TO SELL DATED 13.11.2009 AND RECEIVED ADVANCE OF RS. 9 0 LAKHS FROM SMT. BALWANT KAUR, THE LAST DATE OF EXECUTION OF SALE DE ED WAS FIXED ON 15.6.2011. THE SALE DEED COULD NOT BE EXECUTED BEC AUSE SOME PEOPLE FROM VILLAGE CLAIMING TO BE MEMBERS OF HARIJAN COOPERATI VE SOCIETY LIMITED, HARPALPUR FILED LITIGATION IN RESPECT OF THE SAID L AND. THE CASE WAS FILED AGAINST ABOUT 60 PEOPLE INCLUDING THE ASSESSEE OF T HE VILLAGE WHO OWNED / PURCHASED THE SAID LAND FROM HARIJAN CO-OPERATIVE S OCIETY LIMITED, HARPALPUR. THE CIVIL SUIT IS STILL PENDING IN THE C OURT OF ADDITIONAL CIVIL JUDGE. MOREOVER A CRIMINAL CASE WAS ALSO REGISTERE D. THE ASSESSEE AND OTHER PERSONS WERE CONVICTED FOR ONE YEAR AND TO PA Y ONE THOUSAND RUPEES AS FINE. THE ASSESSEE PREFERRED APPEAL BEFORE THE H ON'BLE PUNJAB & HARYANA HIGH COURT AND SENTENCE HAS BEEN SUSPENDED IN CRIMINAL APPEAL. THE ASSESSING OFFICER MADE ENTIRE INVESTIGATION INT O THE MATTER AND EXAMINED THE DETAILS, THEREFORE, THE ASSESSMENT ORD ER COULD NOT BE TREATED AS ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVE NUE. THE ASSESSING OFFICER HAS ADOPTED ONE OF THE COURSE PERMISSIBLE I N LAW WITH WHICH IF THE CIT DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRO NEOUS ORDER, UNLESS THE 5 VIEW TAKEN BY THE ASSESSING OFFICER IS UNSUSTAINABL E IN LAW. THE ASSESSEE ALSO FILED COPY OF THE DECISION DATED 16.2.2016 DE LIVERED BY CIVIL JUDGE, RAJPURA IN THE CASE OF GURMEET SINGH & ANRS VS. MAL KIAT SINGH VS. ANRS. 6. THE LD. PRINCIPAL CIT, HOWEVER, DID NOT ACCEPT T HE CONTENTION OF THE ASSESSEE AND SET ASIDE THE ASSESSMENT ORDER CONSID ERING IT TO BE ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF THE REV ENUE AND DIRECTED THE ASSESSING OFFICER TO PASS THE ORDER AFRESH AFTER GI VING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HIS FI NDING IN PARAS 4 & 5 OF THE IMPUGNED ORDER ARE REPRODUCED AS UNDER:- 4. 1 HAVE CONSIDERED THE SUBMISSIONS CAREFULLY. AS EVIDENT FROM THE AFORESAID NOTICE AND ASSESSEE'S REPLY, THIS CASE HAS BEEN SELECTED FOR VERIFYING TH E CASH DEPOSITS EXCEEDING RS. 10 LACS IN THE ASSESSEE 'S SAVING BANK ACCOUNT WITH ALLAHABAD BANK, RAJPURA AND ICICI BANK, RAJPURA AMOUNTING TO RS. 40,70,000/- AND RS.32,49,500/-, RESPECTIVELY. DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF THESE CASH DEPOSITS WITH THE BANK. IN RESPONSE, THE ASSESSEE STATED THAT THE MAIN SOURCE OF THESE CASH DEPOSITS WAS AN ADVANCE RECEIVED IN VIEW OF THE AGREEMENT TO SELL THE AGRICULTURAL LAND MEASURING 17.5 ACRES SITUATED AT VILLAGE HARPALPUR, TEHSIL RAJPURA, THE ASSESSEE ALSO FILED A PHOTOCOPY OF IKRARNAMA DATED 13.11.2009 AND CASH FLOW STATEMENT IN SUPPORT OF HER CLAIM. THE AO ACCEPTED ASSESSEE'S SUBMISSIONS WITHOUT MAKING ANY FURTHER ENQUIRY AND VERIFYING 6 THE CONTENTS OF THE IKRARNAMA, AS THE SAID IKRARNAM A WAS NOT REGISTERED WITH THE COMPETENT AUTHORITY I.E . CONCERNED SUB-REGISTRAR. NO INSTANCE HAS BEEN RECOR DED FROM THE ASSESSMENT RECORD WHERE THE AO EVER ASKED THE ASSESSEE TO PROVE THE GENUINENESS OF THE SAID IKRARNAMA, AS IT IS TRITE LAW THAT ONUS TO PROVE ITS CLAIM IS ALWAYS UPON THE ASSESSEE. FURTHER, THE AO ALSO FAILED TO MAKE ANY INDEPENDENT INQUIRY OR CALLED FOR ANY INFORMATION U/S 133(6) FROM THE PURCHASER TO VERIFY THE GENUINENESS AND CONTENTS OF THE IKRARNAMA. THIS CASE HAS BEEN SELECTED TO VERIFY THE HUGE CASH DEPOSITS IN ASSESSEE'S SAVING BANK ACCOUNT AND IF THE AO IS SATISFIED WITH THE EXPLANATION OF THE ASSESSEE MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THEN THE AO HAS TO PLACE SOME MATERIAL ON RECORD WHICH ESTABLISHED THE SAME, HOWEVER, THE AO FAILED TO DO SO AS HE NEITHER MARKED ANY INQUIRY NOR ASKED THE ASSESSEE TO PROVE THE GENUINENESS OF THE SAID IKRARNAMA. THE ASSESSMENT ORDER AS WELL AS ASSESSMENT RECORD DOES NOT SHOW ANY INITIATIVE OF THE AO IN THIS REGARD. THUS, THE ASSESSMENT ORDER PASSED BY THE AO IS ERRONEOUS AS WELL PREJUDICIAL TO THE INTEREST OF TH E REVENUE AS THE SAME HAS BEEN PASSED WITHOUT MAKING ANY ENQUIRIES RELEVANT TO THE CASE. FURTHER, I DO N OT THINK THAT THIS IS A CASE WHERE THE AO HAS TAKEN A POSSIBLE VIEW IN THE MATTER ON THE DOCUMENTS PRODUCED BY THE ASSESSEE IN SUPPORT OF CASH DEPOSIT S IN HIS SAVING BANK ACCOUNT. RATHER IT IS A CASE WHE RE THE AO HAS ACCEPTED THE EXPLANATION OFFERED BY THE ASSESSEE ON THE FACE OF IT WITHOUT MAKING NECESSARY 7 INQUIRIES THAT WHETHER THE SAID IKRARANAMA IS VALID OR NOT AS THE SAME WAS NOT REGISTERED WITH ANY OF T HE COMPETENT REVENUE AUTHORITY. DURING THE COURSE OF PROCEEDINGS U/S 263 OF THE ACT , THE ASSESSEE'S COUNSEL SUBMITTED THAT THE SALE DEED COULD NOT BE EXECUTED BECAUSE SOME PEOPLE FILED CIVIL SUIT IN RESPECT OF SAID LAND AND THE SAME HAS BEEN DISPOSED OF BY THE CIVIL JUDGE, RAJPURA IN FAVOUR OF THE ASSESSEE VIDE HER ORDER DATED 16.02.2016. THE ASSESSEE'S COUNSEL ALSO SUBMITTED A COPY OF THE SAID DECISION. HOWEVER, THESE FACTS WER E NOT SUBMITTED BEFORE THE ASSESSING OFFICER DURING T HE COURSE OF ASSESSMENT PROCEEDINGS, THEREFORE, THESE CANNOT BE CONSIDERED AT THIS STAGE. AS IS PROVIDED U/S 263 ITSELF, RECORD FOR THE PURPOSE OF SECTION 263 MEANS THAT AVAILABLE AT THE TIME OF ISSUE OF NOTICE U/S 263. HENCE, THE SAME CANNOT BE ADMITTED AT THIS STAGE FOR CONSIDERATION. UNDER THE AFORESAID CIRCUMSTANCES, THE ORDER OF TH E AO WAS ERRONEOUS, AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE MALABAR INDUSTRIAL LTD. VS. CIT REPORTED AT 243 ITR 83 (SC). FURTHER IN THE CASE OF GEE VEE ENTERPRISES VS. ADDL. CIT & ORS 99 ITR 315 (DEL), THE HON'BLE DELHI HIGH COURT HAVE HELD IN THAT NOT MAKING AN INQUIRY WARRANTED ON THE FACT S OF A CASE WILL MAKE THE ASSESSMENT ORDER ERRONEOUS. SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE MADRAS HIGH COURT IN THE CASE OF K.A. RAMSWAMY CHETTIAR & ANR VS. CIT 220 ITR 657 (MAD.). MOREOVER, THE FACTS OF THE CASE ARE SQUARELY COVERED BY 8 EXPLANATION 2 OF SEC.263, WHICH IS INSERTED W.E.F. 01.06.2015. IT READS AS UNDER:- 'FOR THE PURPOSES OF THIS SECTION, IT IS HEREBY DECLARED THAT AN ORDER PASSED BY THE ASSESSING OFFICER SHALL BE DEEMED TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, IF, IN THE OPINION OF THE PRINCIPAL COMMISSIONER OR COMMISSIONER- A) THE ORDER IS PASSED WITHOUT MAKING INQUIRIES OR VERIFICATION WHICH SHOULD HAVE BEEN MADE; B) THE ORDER IS PASSED ALLOWING ANY RELIEF WITHOUT INQUIRING INTO THE CLAIM; C) THE ORDER HAS NOT BEEN MADE IN ACCORDANCE WITH ANY ORDER, DIRECTION OR INSTRUCTION ISSUED BY THE BOARD UNDER SECTION 119; OR D) THE ORDER HAS NOT BEEN PASSED IN ACCORDANCE WITH ANY DECISION WHICH IS PREJUDICIAL TO THE ASSESSEE, RENDERED BY THE JURISDICTIONAL HIGH COURT OR SUPREME COURT IN THE CASE OF ASSESSEE OR ANY OTHER PERSON. ' IN THE FACTS OF THE CASE I HOLD THAT THE ORDER OF THE AO IS ERRONEOUS IN AS MUCH AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE SINCE THE AO HAS NOT MADE THE ADDITION IN RESPECT OF UN EXPLAINED CASH DEPOSITS. 5. I, THEREFORE, HOLD THE ASSESSMENT ORDER DATED 17.09.2013 FOR THE A.Y. 2011-12 IN THE CASE OF THE ASSESSEE ERRONEOUS IN AS MUCH AS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND SET ASIDE THE ORDER TO THE FILE OF THE AO FOR PASSING A FRESH ORDER IN ACCORDA NCE WITH LAW IN RESPECT OF THE ISSUES DISCUSSED AS ABOV E AND ALSO RAISED IN SHOW CAUSE NOTICE U/S 263(1) OF THE ACT, AFTER GIVING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. 9 7. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. HE HAS ALSO SUBMITTED THAT THE LD. PRINCIPAL CIT INITIATED PROCEEDINGS U/S 263 OF THE ACT MERELY ON AUDIT OBJECTION, COPY OF WHICH IS FIELD AT PAGES 15 TO 21 OF THE PAP ER BOOK. HE HAS SUBMITTED THAT AGREEMENT TO SELL, COPIES OF BE BANK ACCOUNTS, BOOKS OF ACCOUNT AND ALL OTHER DETAILS CALLED FOR BY THE AS SESSING OFFICER WERE SUBMITTED AT ASSESSMENT STAGE WHICH HAVE BEEN EXAMI NED BY THE ASSESSING OFFICER AND HE ACCEPTED THE CASH DEPOSITS IN THE BA NK ACCOUNTS. SINCE THE CIVIL SUIT WAS PENDING BEFORE THE CIVIL JUDGE, THER EFORE, NO SALE DEED COULD BE EXECUTED, IN RESPECT OF AGREEMENT TO SELL DATED 13.11.2009. THE ASSESSEE IS DEFENDANT NO.11 IN THE CIVIL SUIT, COPY OF THE J UDGEMENT OF THE CIVIL COURT IS FILED IN THE PAPER BOOK. HE HAS SUBMITTED THAT THE SALE DEED IN FAVOUR OF THE ASSESSEE IN RESPECT OF TOTAL LAND MEA SURING 208 BIGHAS 5 BISWA, NAZOOL LAND SITUATED IN REVENUE ESTATE OF VI LLAGE HARPALPUR, TEHSIL RAJPURA, DISTRICT PATIALA WAS QUASHED BY THE CIVIL COURT HOLDING THAT THE NAZOOL LAND TRANSFER RULES BARS ALIENATION OF LAND BY COOPERATIVE SOCIETY EXCEPT WITH PERMISSION OF STATE GOVERNMENT. THE CIV IL COURT, THEREFORE, HELD THAT DEFENDANT NOS. 1 TO 9 HAVE NO RIGHT TO AL IENATE THE SAME TO DEFENDANT NOS.10 TO 13, THUS THE ASSESSEE BEING DEF ENDANT NO.11 WAS NOT HAVING RIGHT OVER THE PROPERTY BECAUSE OF THIS JUDG EMENT. THE CIVIL COURT ALSO DIRECTED DEFENDANT NOS.10 TO 13 (DEFENDANT NO. 11 ASSESSEE) THAT SALE DEED IN FAVOUR OF THE ASSESSEE IS SET ASIDE ALOGNWI TH OTHERS WERE RESTRAINED FROM ALIENATING THE SUIT PROPERTY. HE HAS ALSO SUBM ITTED THAT ALL THE DETAILS WERE FILED BEFORE THE PRINCIPAL CIT WHICH HAVE NOT BEEN EXAMINED BY HIM. HE HAS RELIED UPON THE ORDER OF THE ITAT CHANDIGARH BENCH IN THE CASE OF 10 JASWINDER SINGH VS. CIT IN ITA NO. 690/CHD/2010 DAT ED 9.3.2012 IN WHICH THE TRIBUNAL FOLLOWING THE DECISION OF THE HO N'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. SOHANA WO OLEN MILLS [296 ITR 238 (P&H)] AND OTHER HAS HELD THAT FURTHER IT IS A PPARENT THAT THE COMMISSIONER OF INCOME TAX HAS INITIATED THE REVISI ON PROCEEDINGS ONLY ON THE BASIS OF AUDIT OBJECTION. SUCH EXERCISE OF POWE R UNDER SECTION 263 OF THE ACT IS NOT TENABLE IN LAW. THE ORDER US 263 OF THE ACT WAS SET ASIDE AND APPEAL OF THE ASSESSEE HAS BEEN ALLOWED. HE HAS ALSO RELIED UPON THE ORDER OF THE ITAT CHANDIGARH BENCH IN THE CASE OF S HRI KIRTI ANAND VS. CIT-II, CHANDIGARH IN ITA NO. 540/CHD/2013 DATED 14 .10.2015 IN WHICH ALSO THE TRIBUNAL FOLLOWING THE DECISION OF THE HON 'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. SOHANA WOOLEN MIL LS (SUPRA) DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND SET ASIDE T HE ORDER U/S 263 OF THE ACT. HE HAS SUBMITTED THAT THERE WAS NO NEED THAT T HE AGREEMENT SHOULD BE REGISTERED AND GENUINENESS OF THE AGREEMENT WAS EXA MINED BY THE ASSESSING OFFICER AT ASSESSMENT STAGE. DECREE OF TH E CIVIL COURT WILL PROVE THAT ASSESSEE HAS GENUINELY ENTERED INTO AN AGREEME NT TO SELL DATED 13.11.2009 THROUGH WHICH ADVANCE OF RS. 90 LAKHS WA S RECEIVED WHICH WAS DEPOSITED IN THE BANK ACCOUNT. 8. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS OF THE PRINCIPAL CIT. HE HAS SUBTITLED THAT AUDIT PARTY HAS POINTED OUT FACTUAL MISTAKE. THE ASSESSING OFFICER DID NOT APPLY HIS MIND TO THE FAC TS AND DID NOT VERIFY THE DETAILS; THEREFORE, ON FACTUAL ERROR REOPENING OF T HE ASSESSMENT ON THE BASIS OF FACTUAL ERROR POINTED OUT BY THE AUDIT PARTY IS PERMISSIBLE IN LAW. HE HAS 11 RELIED UPON THE DECISION OF THE SUPREME COURT IN TH E CASE OF CIT VS. P.V.S. BEEDIES PVT LTD 237 ITR 13 (SC). 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ENTIRE ISSUE REVOLVE AROUN D THE CASH DEPOSIT BY ASSESSEE IN HIS TWO BANK ACCOUNTS I.E. ALLAHABAD BA NK AND ICICI BANK, RAJPURA AMOUNTING TO RS. 40,70,000/- AND RS. 32,49, 500/- RESPECTIVELY. IT IS SPECIFICALLY MENTIONED IN THE SHOW CAUSE NOTICE U/S 263 OF THE ACT THAT THIS CASE WAS SELECTED FOR SCRUTINY ON ACCOUNT OF C ASH DEPOSITS EXCEEDING RS. 10 LAKHS IN THE SAVING BANK ACCOUNT OF THE ASSE SSEE MAINTAINED WITH ALLABAHAD BANK, RAJPURA AND ICICI BANK, RAJPURA. IT IS ALSO NOTED IN THE SHOW CAUSE NOTICE THAT ASSESSEE HAS DEPOSITED A SUM OF RS. 98,60,901/- THROUGH CASH AND TRANSFER ENTRIES FROM VARIOUS PERS ONS IN THE BANK ACCOUNTS. IT IS ALSO NOTED THAT ASSESSEE HAS FILED AGREEMENT EXECUTED ON 13.11.2009 BEFORE THE ASSESSING OFFICER FOR THE SAL E OF THE AGRICULTURAL LAND FOR RS. 16,40,000/- PER ACRE AND AGREED TO EXECUTE SALE DEED UPTO TO 15.6.2011. IT IS ALSO NOTED THAT THE SAID AGREEMENT IS NOT REGISTERED. THE ASSESSING OFFICER IN THE ASSESSMENT ORDER HAS ALSO RECORDED THE SAME FACTS THAT ASSESSEE HAS MADE CASH DEPOSITS IN HIS SAVING BANK ACCOUNTS WITH THE ABOVE TWO BANKS AND DIRECTED THE ASSESSEE TO FURNIS H THE COPIES OF STATEMENT OF THESE BANK ACCOUNTS FOR HIS VERIFICATI ON AND ALSO DIRECTED THE ASSESSEE TO FILE NECESSARY EVIDENCE TO EXPLAIN THE SOURCE OF THE CASH DEPOSITS. THE ASSESSEE HAS FILED COPIES OF THE ORDE R SHEETS AT PAGE 101 TO 108 OF THE PAPER BOOK WHICH CLEARLY REVEALED THAT A SSESSEE HAS ATTENDED THE ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER AND ASSESSING OFFICER ASKED THE ASSESSEE TO FILE EVIDENCE IN RESPECT OF L AND HOLDING, COPIES OF ALL 12 BANK ACCOUNT WITH SOURCE OF THE DEPOSITS THEREIN, B ASIS OF ESTIMATION OF THE AGRICULTURAL INCOME AND BASIS OF ESTIMATION OF BUS INESS INCOME. THE ASSESSEE FILED COPIES OF THE PURCHASE DEED AND BIA NA (AGREEMENT) IN RESPECT OF LAND PURCHASED AND SOLD ALONGWITH COPIES OF BANK STATEMENT OF ALLAHABAD BANK AND ICICI BANK BEFORE THE ASSESSING OFFICER. THE ASSESSEE ALSO FILED DETAILS OF PAYMENTS RECEIVED AND PAID ON ACCOUNT OF LAND SOLD AND FLAT PURCHASED. COPY OF THE CASH BOOK WAS FILED AND PLACED ON RECORD. THE ASSESSING OFFICER AFTER EXAMINING ALL THE EVIDE NCES AND MATERIAL AND ADVANCE MONEY RECEIVED THROUGH THE AGREEMENT TO SEL L ACCEPTED THE CLAIM OF THE ASSESSEE OF SOURCE OF RS. 90 LAKHS RECEIVED THROUGH THE AGREEMENT TO SELL IN QUESTION. THE ASSESSING OFFICER, THEREFORE, DID NOT TAKE ANY ADVERSE VIEW AGAINST THE ASSESSEE IN THIS REGARD. IT MAY BE NOTED HERE THAT SINCE THE ASSESSMENT WAS TAKEN UP FOR SCRUTINY ONLY FOR THE P URPOSE OF VERIFYING THE CASH DEPOSITS IN THESE TWO BANK ACCOUNTS OF THE ASS ESSEE, THEREFORE, THERE IS NO QUESTION THAT ASSESSING OFFICER WOULD NOT HAVE E XAMINED THIS ISSUE AT ASSESSMENT STAGE. THE ORDER SHEETS NOTED ABOVE OF T HE ASSESSING OFFICER, CLEARLY SUPPORT THE EXPLANATION OF THE ASSESSEE THA T ASSESSING OFFICER EXAMINED THE DETAILS OF THE ADVANCE MONEY RECEIVED BY THE ASSESSEE THROUGH AGREEMENT TO SELL AND DEPOSITS OF CASH IN H IS TWO BANK ACCOUNTS RESPECTIVELY. IT IS NOT IN DISPUTE THAT ASSESSEE PR ODUCED ALL THE RELEVANT EVIDENCE AND MATERIAL BEFORE THE ASSESSING OFFICER AT ASSESSMENT STAGE AND ALSO PRODUCED COPY OF THE AGREEMENT TO SELL IN QUES TION FOR VERIFICATION OF THE ASSESSING OFFICER. THE ASSESSEE EXPLAINED BEFOR E THE LD. PRINCIPAL CIT(A) THAT THE SALE DEED COULD NOT BE EXECUTED IN THE MATTER ON THE BASIS OF AGREEMENT TO SELL DATED 13.11.2009 BECAUSE MANY PEOPLE FROM VILLAGE CLAIMING TO BE MEMBER OF HARIJAN COOPERATIVE SOCIET Y LTD, HARPALPUR FILED 13 A CIVIL SUIT AGAINST MANY PERSONS INCLUDING THE ASS ESSEE WHO HAVE PURCHASED THE LAND IN QUESTION FROM HARIJAN CO-OPER ATIVE SOCIETY LIMITED, HARPALPUR. DUE TO THE PENDENCY OF THE CIVIL SUIT, NO SALE DEED COULD BE EXECUTED. THE EXPLANATION OF THE ASSESSEE IS SUPPOR TED BY THE JUDGEMENT OF THE CIVIL JUDGE, RAJPURA DATED 16.2.2016, COPY OF W HICH IS ALSO FILED IN THE PAPER BOOK AT PAGE 47 IN THE NAME OF GURMEET SINGH & OTHERS VS. MALKIT SINGH AND OTHERS. IN THIS JUDGEMENT, THE ASSESSEE IS DEFENDANT NO.11, THE CLAIM OF PLAINTIFFD ARE IN RESPECT OF TOTAL LAND MEASURING 208 BIGHAS 5 BISWA, NAZOOL LAND SITUATED IN REVENUE ESTATE OF VI LLAGE HARPALPUR, TEHSIL RAJPURA, DISTRICT PATIALA. 10. THE AGREEMENT TO SELL DATED 13.11.2009 IS ALSO IN RESPECT OF SAME PROPERTY IN WHICH ASSESSEE AGREED TO SALE OF 16 ACR ES OF LAND TO THE PURCHASER FOR RS. 16,40,000/- PER ACRE. THE LD. CIV IL JUDGE, RAJPURA IN THE JUDGEMENT HELD THAT RULE 7 OF THE NAZOOL LAND TRANS FER RULES 1956 BARS ALIENATION OF LAND BY COOPERATIVE SOCIETY EXCEPT WI TH PERMISSION OF STATE GOVERNMENT. THE LAND WAS ALLOTTED TO HARIJAN COMMUN ITY FOR THEIR UPLIFTMENT, THEREFORE, DEFENDANTS NOS. 1 TO 9 HAVE NO RIGHT TO ALIENATE THE SAME TO DEFENDANT NOS. 10 TO 13 (ASSESSEE DEFENDA NT NOS.11). THE CIVIL COURT, THEREFORE, SET ASIDE THE SALE DEED IN FAVOUR OF THE ASSESSEE AND ALSO RESTRAINED THE ASSESSEE FROM ALIENATING THE SUIT PR OPERTY. IT IS THEREFORE, CLEAR THAT THE ASSESSEE BECAUSE OF THIS JUDGEMENT C OULD NOT OWN THE PROPERTY IN QUESTION AND AS SUCH COULD NOT EXECUTE ANY SALE DEED IN FAVOUR OF THE PURCHASER. THE JUDGEMENT OF THE CIVIL COURT CLEARLY PROVES THAT ASSESSEE GENUINELY ENTERED INTO THE AGREEMENT TO SA LE DATED 13.11.2009 BECAUSE ASSESSEE HAS BEEN RESTRAINED FROM ALIENATIN G SUIT PROPERLY TO ANY 14 THIRD PERSON. THE PRINCIPAL CIT OBSERVED IN THE IM PUGNED ORDER THAT THESE FACTS AND JUDGMENTS OF THE CIVIL COURT WAS NOT SUBM ITTED BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT P ROCEEDINGS, THEREFORE, SAME CANNOT BE CONSIDERED AT THIS STAGE. THE FINDIN GS OF THE LD. PRINCIPAL CIT CANNOT BE SUSTAINED IN LAW BECAUSE THE ASSESSI NG OFFICER PASSED THE ASSESSMENT ORDER ON 17.9.2013 AND CIVIL COURT PASSE D THE JUDGEMENT ON 16.2.2016, THEREFORE, THERE IS NO QUESTION OF THE P RODUCING THE COPY OF THE JUDGEMENT BEFORE ASSESSING OFFICER AT ASSESSMENT ST AGE. THE LD. PRINCIPAL CIT ALSO HELD THAT THE JUDGEMENT THE CIVIL COURT W AS NOT PART OF THE RECORD, THEREFORE, CANNOT BE ADMITTED TO AT THE ST AGE OF PROCEEDINGS U/S 263 OF THE I.T. ACT. THESE FINDINGS OF THE LD. PRIN CIPAL CIT ARE ALSO NOT SUSTAINABLE IN LAW BECAUSE THE JUDGEMENT OF THE CIV IL COURT IS ADMISSIBLE IN EVIDENCE WITHOUT PROVING THE SAME AT ANY STAGE. THE JUDGEMENT OF THE CIVIL COURT CANNOT BE IGNORED FOR THE PURPOSE OF CO NSIDERATION OF THE ISSUE. THE LD. PRINCIPAL CIT WAS BOUND TO TAKE INTO CONSID ERATION THE JUDGEMENT OF THE CIVIL COURT. THE LD. PRINCIPAL CIT ALSO DID NOT TAKE INTO CONSIDERATION THE AGREEMENT DATED 13.11.2009 BECAUS E IT IS NOT REGISTERED BEFORE THE SUB-REGISTRAR. THERE IS NO REQUIREMENT U NDER THE LAW THAT THE AGREEMENT TO SELL SHOULD BE REGISTERED WITH THE SUB -REGISTRAR. SINCE THE AGREEMENT TO SELL WAS EXAMINED BY THE ASSESSING OFF ICER AT ASSESSMENT STAGE AND IT WAS ALSO BEFORE THE LD. PRINCIPAL CIT, THEREFORE, IF LD. PRINCIPAL CIT WAS NOT SATISFIED WITH THE AGREEMENT TO SELL, HE HIMSELF COULD HAVE EXAMINED THE GENUINENESS OF THE SAME. A S NOTED ABOVE, WHEN THE TITLE OF THE ASSESSEE FOR PURCHASING HARPALPUR VILLAGE LAND WAS SET ASIDE BY THE CIVIL COURT AND ASSESSEE WAS RESTRAINED FROM TRANSFERRING / ALIENATING THE SAME TO OTHERS, IT WOULD SUPPORT THE EXPLANATION OF THE 15 ASSESSEE THAT ASSESSEE HAS GENUINELY ENTERED INTO A GREEMENT TO SELL. THE LD. PRINCIPAL CIT CANNOT REAPPRAISE THE SAME EVIDEN CE IN PROCEEDINGS U/S 263 OF THE I.T. ACT. THE LD. PRINCIPAL CIT CANNOT D IRECT THE ASSESSING OFFICER IN WHAT MANNER HE SHOULD ENQUIRE THE ISSUE. THE ASSESSING OFFICER TOOK ONE POSSIBLE VIEW WITH WHICH LD. PRINCIPAL CIT DID NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS AND PREJUDICIAL T O REVENUE. 11. THE HON'BLE SUPREME COURT IN THE CASE OF MALABA R INDUSTRIAL CO. LTD. V CIT [2000] 243 ITR 83 (SC) HELD AS UNDER:- EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER, CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, FOR EXAMPLE, WHEN AN INCO ME-TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN L AW AND IT HAS RESULTED IN LOSS OF REVENUE, OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME-TAX OFFICER HAS TAKEN ONE V IEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANN OT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE IN TERESTS OF THE REVENUE UNLESS THE VIEW TAKEN BY THE INCOME-TAX OFFICER IS UNSUSTAINABLE IN LAW. 12. THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. DEEPAK MITTAL [2010] 324 ITR 411 (P&H) HELD AS UNDE R:- CHANGE OF OPINION BY REAPPRAISING THE EVIDENCE IS NOT WITHIN THE PARA-METERS OF PROVISIONAL JURISDICTION OF THE 16 COMMISSIONER UNDER SECTION 263 OF THE INCOME-TAX AC T, 1961. HELD, DISMISSING THE APPEAL, THAT THE TRIBUNAL HAD FOUND THAT THE ASSESSING OFFICER HAD GIVEN A CATEGORICAL FINDING THAT THE ASSESSEE WAS ENGAGED IN THE PROCESS OF MANUFACTURING OF PRODUCTS AND ACCORDINGLY HE HAD GR ANTED CONCESSION UNDER SECTION 80-IB . THE CLAIM OF THE A SSESSEE HAD BEEN FOUND TO BE GENUINE. THE ASSESSING OFFICER HAD ALSO EXAMINED THE VARIOUS WORKERS OF THE ASSESSEE A ND THEN RECORDED THE FINDING. THE ASSESSING OFFICER WAS JUS TIFIED IN GRANTING THE SPECIAL DEDUCTION UNDER SECTION 80-IB . THE ORDER OF REVISION DISALLOWING THE SPECIAL DEDUCTION WAS NOT VALID. 13. THE HON'BLE GAUHATI HIGH COURT IN THE CASE OF S MT. LILA CHOUDHARY VS. CIT AND ANOTHER [2007] 289 ITR 226 (GAUHATI) HE LD AS UNDER:- HELD, THAT IN THE ORDER THE COMMISSIONER HAD NOT RECORDED ANY OPINION THAT THE ORDER OF ASSESSMENT O F THE PETITIONER FOR THE ASSESSMENT YEAR 1992-93 WAS ERRO NEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. TH AT WAS THE OPINION RECORDED IN THE NOTICE DATED AUGUST 14/ 19, 1996, BUT THE OPINION BEING RECORDED IN A NOTICE IS SUED TO THE PETITIONER ASKING TO SHOW CAUSE, MUST BE UNDERS TOOD TO BE REBUTTABLE. SUCH OPINION WAS REQUIRED TO BE REIT ERATED AFTER HEARING THE PETITIONER AND AFTER HOLDING THE NECESSARY ENQUIRY. ON RECEIPT OF THE SHOW CAUSE NOTICE, THE P ETITIONER SUBMITTED AN ELABORATE REPLY. THE COMMISSIONER ON R ECEIPT OF THE REPLY OF THE PETITIONER COULD NOT HAVE IGNOR ED THE SAME. RATHER, IT WAS INCUMBENT ON THE COMMISSIONER TO CONSIDER THE EXPLANATIONS OFFERED AND ON THAT BASIS TO RECORD HIS OPINION/CONCLUSION. MOREOVER, THE COMPET ENT CRIMINAL COURT HAD EXONERATED THE SON IN LAW OF THE PETITIONER FROM ANY LIABILITY ON ACCOUNT OF THE HOU SE 17 PROPERTY IN QUESTION HOLDING IT TO BELONG TO THE PE TITIONER. THE FINDINGS RECORDED BY THE CRIMINAL COURT IN THIS REGARD COULD NOT BE BRUSHED ASIDE. HENCE, ANY DE NOVO PROCEEDINGS AT THIS STAGE WOULD BE FUTILE. THE ORDE R OF REVISION HAD TO BE QUASHED. THE ASSESSMENT OF THE PETITIONER FOR THE ASSESSMENT YEAR 1992-93 MADE BY ORDER DATED MAY 16, 1994, HAD TO BE CONSIDERED COMPLETE A ND FINAL. 14. THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. VIKAS POLYMERS [2012] 341 ITR 537 (DELHI) 341 ITR 537 HELD AS UNDE R:- HELD, THAT THE COMMISSIONER HAD MENTIONED THAT THE INCOME-TAX OFFICER HAD NOT EXAMINED THE CASH CREDIT S OF THE PARTNERS OR DEPOSITS OF CHIT FUND. ASSUMING THIS TO BE SO, THIS MIGHT MAKE THE ORDER ERRONEOUS, BUT HOW IT WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE HAD NOT BEEN STATED BY THE COMMISSIONER AS HE DID NOT DEAL WITH THE EXPLANATION GIVEN BY THE ASSESSEE IN THE COURSE OF THE SECTION 263 PROCEEDINGS. THE COMMISSIONER OBSERVED IN HIS ORDER THAT THE ASSESSEE HAD NOT FILED CERTAIN DOCUM ENTS ON THE RECORD AT THE TIME OF ASSESSMENT. ASSUMING THIS WAS SO IT DID NOT JUSTIFY THE CONCLUSION ARRIVED AT BY THE COMMISSIONER THAT THE ASSESSING OFFICER HAD SHIRKED HIS RESPONSIBILITY OF EXAMINING AND INVESTIGATION THE C ASE. MORE SO, IN VIEW OF THE FACT THAT THE ASSESSEE EXPL AINED THAT THE CAPITAL INVESTMENT MADE BY THE PARTNERS, WHICH HAD BEEN CALLED INTO QUESTION BY THE COMMISSIONER, AND THIS WAS DULY REFLECTED IN THE RESPECTIVE ASSESSMENTS OF THE PARTNERS WHO WERE INCOME-TAX ASSESSEES AND THE UNSE CURED LOAN TAKEN FROM THE CHIT FUND WAS DULY REFLECTED IN THE ASSESSMENT ORDER OF THE CHIT FUND WHICH WAS ALSO AN ASSESSEE. THE ORDER OF REVISION WAS NOT VALID. 18 15. THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. HINDUSTAN MARKETING AND ADVERTISING CO. LTD [2012] 341 ITR 18 0 (DELHI) HELD AS UNDER:- REVISION POWERS OF COMMISSIONER ASSESSMENT AFTER ENQUIRY NO ERROR IN ORDER ORDER CANNOT BE REVISED ON GROUND ENQUIRY SHOULD HAVE BEEN MORE DETAILED. 16. THE HON'BLE DELHI HIGH COURT IN THE CASE OF DIR ECTOR OF INCOME-TAX VS. JYOTI FOUNDATION [2013] 357 ITR 388 (DELHI) HEL D THAT IF REVISIONARY AUTHORITY FINDS CASE OF INADEQUATE ENQUIRY, MUST MU ST INQUIRY TO MAKE A CASE U/S 263OF THE I.T. ACT 17. THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF C IT VS. AMIT CORPORATION 21 TAXMAN.COM 64 (GUJRAT) HELD THAT WHE RE ASSESSING OFFICER AFTER DETAILED VERIFICATION OF RECORD AND MAKING IN QUIRY HAD FRAMED ASSESSMENT, THE CIT CANNOT REVISED IT U/S 263 OF T HE I.T. ACT. 18. THE ITAT CHANDIGARH BENCH IN THE CASE OF JASWIN DER SINGH VS. CIT IN ITA NO. 690/CHD/2010 DATED 9.3.2012 (SUPRA) SET ASIDE THE ORDER U/S 263 OF THE I.T. ACT BECAUSE CIT HAS INITIATED THE REVIS ION PROCEEDINGS ONLY ON THE BASIS OF AUDIT OBJECTIONS. SIMILAR VIEW IS TAKE N IN THE CASE OF KRINTI ANAND VS. CIT-II, BY ITAT CHANDIGARH VIDE ORDER DA TED 14.10.2015 (SUPRA) FOLLOWING THE DECISION OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. SOHANA WOOLEN MILLS [296 ITR 23 8 (P&H)], IN WHICH IT WAS HELD THAT A MERE AUDIT OBJECTION AND THE FACT THAT A DIFFERENT VIEW COULD 19 BE TAKEN, ARE NOT ENOUGH TO SAY THAT THE ORDER OF T HE ASSESSING OFFICER WAS ERRONEOUS OR PREJUDICIAL TO THE INTERESTS OF THE RE VENUE. THE TRIBUNAL SET ASIDE THE ORDER AND QUASHED THE ORDER US/ 263 OF TH E I.T. ACT. 19. CONSIDERING THE ABOVE DISCUSSION, IN THE LIGHT OF THE MATERIAL ON RECORD, IT IS CLEAR THAT ASSESSING OFFICER EXAMINED THE ISSUE OF CASH DEPOSITS IN BANK ACCOUNTS OF THE ASSESSEE IN QUESTI ON, IN DETAIL, BY EXAMINING THE BOOKS OF ACCOUNT, AGREEMENT TO SELL A ND OTHER MATERIAL ON RECORD. THE VIEW OF THE ASSESSING OFFICER IS PERMIS SIBLE UNDER THE LAW AND IS SUSTAINABLE. THE ASSESSEE THUS PROVED THE SOURCE OF THE CASH DEPOSITS IN HIS BANK ACCOUNTS. REASONS GIVEN BY THE LD. PRINCIP AL CIT IN TOTALLY FOR SETTING ASIDE THE ASSESSMENT ORDER ARE NOT JUSTIFIE D AS THE SAME ARE NOT IN ACCORDANCE WITH LAW. NO FACTUAL ERROR HAS BEEN POIN TED OUT BY THE AUDIT PARTY IN THIS CASE BECAUSE CASE WAS SELECTED FOR SC RUTINY FOR CASH DEPOSITS IN THE BANK ACCOUNTS OF THE ASSESSEE. THE AUDIT PAR TY DID NOT AGREE WITH THE FINDINGS OF THE ASSESSING OFFICER, THEREFORE, IT CO ULD NOT BE SAID THAT THE ASSESSMENT ORDER WAS ERRONEOUS IN SO FAR AS THE PRE JUDICIAL TO THE INTEREST OF THE REVENUE. THE LD. COUNSEL FOR THE ASSESSEE TH EREFORE, RIGHTLY CONTENDED THAT THE CONTENTS OF THE SHOW CAUSE NOTIC E U/S 263 OF THE I.T. ARE SIMILARLY WORDED AS HAVE BEEN NOTED IN THE AUDIT OB JECTION. THEREFORE, SUBSEQUENTLY ON MERE AUDIT OBJECTION, THE LD. PRINC IPAL CIT, WAS NOT JUSTIFIED IN INITIATING THE PROCEEDINGS U/S 263 OF THE I.T. ACT. THE PRINCIPAL CIT WAS, THEREFORE, NOT JUSTIFIED IN HOLDING THAT A SSESSING OFFICER DID NOT MAKE NECESSARY ENQUIRY INTO THE MATTER. THE LD. PRI NCIPAL CIT MERELY DISAGREE WITH THE FINDINGS OF THE ASSESSING OFFICER , THEREFORE, IT COULD NOT BE TERMED AS ASSESSMENT ORDER TO BE ERRONEOUS AND P REJUDICIAL TO THE INTEREST OF REVENUE. THEREFORE, WE DO NOT SUBSCRI BE TO THE VIEW OF THE 20 PRINCIPAL CIT IN EXERCISING JURISDICTION U/S 263 OF THE I.T. ACT. THERE IS NO ERROR IN THE ASSESSMENT ORDER IN ACCEPTING THE EXPL ANATION OF THE ASSESSEE. 20. IN THIS VIEW OF THE MATTER, WE SET ASIDE THE IM PUGNED ORDER U/S 263 OF THE I.T. ACT AND QUASH THE SAME. THE ASSESSMENT ORDER U/S 143(3) OF THE ACT DATED 17.9.2013 IS RESTORED. 21. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (ANNAPURNA GUPTA) (BHAVNESH SA INI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :9 TH NOVEMBER, 2016 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR