M/s Garuda Imaging & Diagnostics P. Ltd., New Delhi V. ACIT, New Delhi

ITA 5956/DEL/2010

• Counselvise Citation: 595620114 RSA 2010
• Duration Of Justice: 1 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 14-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 28-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: H L DIHANA
• Assessee Lawyers: SALIL KAPOOR RAMAN CHAWLA
• Keywords: Business income; Cost of acquisition
• Section: 143(3); 142(1); 14A; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH I NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI K.G. BANSAL ITA NO. 5956/DEL/2010 ASSESSMENT YEAR: 2006-07 M/S. GARUDA IMAGING & DIAGNOSTICS VS. ASSISTANT CO MMISSIONER OF IT, P. LTD., C-101, NEW MULTAN NAGAR, CIRCLE 12(1), NEW DELHI. NEW DELHI. (PAN: AAACG4168N) (APPELLANT) (RESPONDENT) APPELLANT BY: S/SHRI SALIL KAPOOR, RAMAN CHAWLA & ANKIT GUPTA, ADV. RESPONDENT BY: SHRI HL DIHANA, C IT(DR) DATE OF HEARING : 14.02.2012 DATE OF PRONOUNCEMENT : 23.03.2012 ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE PRESENT APPEAL IS DIRECTED AT THE INSTANCE OF ASSESSEE AGAINST THE ORDER PASSED UNDER SECTION 263 OF THE INCOME-TAX AC T, 1961 BY THE LEARNED COMMISSIONER ON 12.5.2010 IN ASSESSMENT YEAR 2006-0 7. THE GRIEVANCE OF THE ASSESSEE IS THAT LEARNED COMMISSIONER HAS ERRED IN TAKING COGNIZANCE UNDER SEC. 263 OF THE ACT AND SETTING ASIDE THE ASS ESSMENT ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) AND DIRE CTING HIM TO PASS A FRESH ASSESSMENT ORDER. 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E COMPANY IS ENGAGED IN PROVIDING MEDICAL DIAGNOSTIC AND LAB TESTING FACILI TIES. IT HAS FILED ITS RETURN OF INCOME ON 29.11.2006 DECLARING AN INCOME OF RS.2 ,34,94,381. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMEN T AND A NOTICE UNDER SECTION 143(2) WAS ISSUED ON 29.8.2008. ASSESSING O FFICER AFTER HEARING THE ASSESSEE PASSED AN ASSESSMENT ORDER UNDER SEC. 143( 3) ON 29.12.2008. ASSESSING OFFICER HAS MADE DISALLOWANCE UNDER SEC. 14A AMOUNTING TO RS.17,05,573 AS WELL AS ADDED A SUM OF RS.2,54,155 BY DISALLOWING THE EXPENDITURE CLAIMED ON ACCOUNT OF SECURITY TRANSACT ION TAX PAYMENT. ASSESSING OFFICER FURTHER DISALLOWED REVENUE EXPENS ES OF RS.16,985. IN THIS WAY, INCOME OF THE ASSESSEE HAS BEEN DETERMINED AT RS.2,54,71,264. 3. LEARNED COMMISSIONER ON AN ANALYSIS OF THE RECOR D FORMED AN OPINION THAT THOUGH THE COMPANY WAS INCORPORATED ON 2 ND OF DECEMBER 1994 AND IT WAS INVOLVED IN THE BUSINESS OF DIAGNOSTIC AND LAB TESTING SERVICES BUT IT HAS DISCONTINUED THIS BUSINESS AND DISPOSED OF ALL ITS ASSETS RELATED TO THIS SERVICES IN FINANCIAL YEAR 2003-04. IT HAS INVESTED THE ALLEGED SURPLUS FUNDS IN SHARES AND SECURITIES. ACCORDING TO THE LEARNED COMMISSIONER AT PRESENT THE COMPANY IS CARRYING OUT LOAN AND INVESTMENT ACT IVITIES TO MEET OUT ITS RUNNING OVERHEADS. HE FURTHER OBSERVED THAT THE INV ESTMENT OF ALLEGED 3 SURPLUS FUND AMOUNTS TO BE A STOCK IN TRADE INSTEAD OF CAPITAL INVESTMENT WHICH WILL RESULT BUSINESS INCOME. ASSESSING OFFICE R FAILED TO CONDUCT A PROPER INQUIRY IN THIS CONNECTION AND, THEREFORE, T HE BUSINESS INCOME HAS BEEN ACCEPTED AS A CAPITAL GAIN WHICH RESULTED ESCA PEMENT OF TAX AMOUNTING TO RS.70.11 LACS. HE ISSUED A NOTICE UNDER SEC. 263 OF THE ACT INVITING EXPLANATION OF THE ASSESSEE AS TO WHY THE ORDER OF THE ASSESSING OFFICER BE NOT TREATED AS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. 4. IN RESPONSE TO THE SHOW-CAUSE NOTICE, ASSESSEE H AS FILED DETAILED WRITTEN SUBMISSIONS. IT POINTED OUT THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSING OFFICER HAS CALLED FOR ALL T HE INFORMATION IN RESPECT OF INVESTMENT. THE ASSESSEE HAS SUBMITTED A DETAILE D NOTE RUNNING INTO SEVEN PAGES ON THE ISSUE OF CAPITAL GAIN VIS--VIS BUSINE SS INCOME. THUS, ASSESSING OFFICER HAS DULY APPLIED HIS MIND AND THEREAFTER AC CEPTED THE CLAIM OF CAPITAL GAIN. THE ASSESSEE FURTHER POINTED OUT THAT ASSESSING OFFICER HAS MADE THE ELABORATE DISCUSSION ABOUT THE DISALLOWANC E REQUIRED TO BE MADE UNDER SEC. 14A OF THE ACT WHICH RELATES TO INCURREN CE OF EXPENSES ON EARNING OF DIVIDEND INCOME WHICH IS EXEMPT FROM TAX. THUS, IT CANNOT BE ALLEGED THAT ASSESSING OFFICER HAS NOT CONDUCTED PROPER INQUIRY BEFORE ACCEPTING THE CLAIM OF ASSESSEE. THE ASSESSEE CONTENDED THAT IN T HIS BACKGROUND, ORDER OF 4 THE ASSESSING OFFICER CANNOT BE TERMED AS ERRONEOUS . HE ACCEPTED THE ONE OF THE POSSIBLE VIEW IN LAW. LEARNED COMMISSIONER DID NOT ACCEPT THE CONTENTIONS OF THE ASSESSEE AND HE SET ASIDE THE AS SESSMENT ORDER BY MAKING FOLLOWING OBSERVATIONS:- I HAVE HEARD THE AUTHORIZED REPRESENTATIVE, GONE T HROUGH THE SUBMISSION AS ALSO THE FACTS ON RECORD. PRIMA FACIE THE ASSESSEES SUBMISSION HAS SOME STRENGTH AND NEEDS APPROPRIATE CONSIDERATION AS PER LAW. AT THE SAME TIME, IT IS ALSO A MATTER OF R ECORD THAT THERE IS A LACK OF ENQUIRY/INVESTIGATION ON THE PART OF THE AS SESSING OFFICER. TO THAT EXTENT, IT CAN CERTAINLY BE HELD THAT THE ORDE R OF THE A.O. IS BOTH ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE. THEREFORE, THE PROVISION OF SECTION 263 OF THE ACT IS INVOKED AND THE ORDER OF THE ASSESSING OFFICER IS SET ASIDE TO BE REDONE AFRESH. THE ASSESSEE SHALL BE GIVEN REASONABLE OPPORTUNITIES OF BEING HEARD. 5. THE LEARNED COUNSEL FOR THE ASSESSEE WHILE IMPUG NING THE ORDER OF LEARNED COMMISSIONER TOOK US THROUGH PAGE NOS. 84 T O 93 OF THE PAPER BOOK AND SUBMITTED THAT IN ASSESSMENT YEAR 2004-05, ASSESSEE HAS DECLARED AN INCOME OF RS.42,23,843 WHICH WAS ACCEPTED BY THE ASSESSING OFFICER. IN ASSESSMENT YEAR 2005-06, ASSESSEE HAS SHOWN INVESTM ENT IN SHARES OF SHAH WALLACE & CO. IT PURCHASED 46586 SHARES ON 10.2.200 5AND SOLD THESE SHARES ON 22.2.2005. THE PURCHASE COST WAS OF RS.94,52,765 AND THE SALE PRICE WAS 5 RS.1,07,50,354. THE SHORT TERM CAPITAL GAIN HAS BEE N ACCEPTED BY THE REVENUE. IN THIS YEAR ALSO, ASSESSING OFFICER HAD I SSUED A DETAILED QUESTIONNAIRE ON 7.4.2008. AT SR. NO. 24 AND 25 OF THE QUESTIONNAIRE AND CALLED FOR THE FOLLOWING DETAILS: 24. DETAILS OF THE SHARE APPLICATION MONEY RECEIVE D, IF ANY, DURING THE YEAR IN THE FOLLOWING FORMAT: S.NO. NAME/ADDRESS OF PARTY TO WHOM SHARES ISSUED. NO. OF SHARES ISSUED AMOUNT ASST. PARTICUALRS 25. DETAILS OF INCOME/LOSS DECLARED ON ACCOUNT OF P URCHASE/SALE OF SHARES, IF ANY, ALONG WITH A NOTE ON THE NATURE OF SUCH INCOME . PLEASE STATE AS TO UNDER WHICH HEAD OF INCOME SUCH INCOME/LOSS HAD BEEN DECL ARED. 6. IN RESPONSE TO THIS QUESTIONNAIRE, ASSESSEE HAS SUBMITTED AS DETAILED REPLY ON 15.12.2008. ASSESSING OFFICER HAS ACCEPTED THE VERSION OF THE ASSESSEE THAT IT HAS MADE INVESTMENT IN THE SHARES, AND ACCEPTED THE CLAIM OF SHORT TERM CAPITAL GAIN AS WELL AS LONG TERM CAPITA L GAIN. LD. COMMISSIONER HAS ERRED IN HARBORING A BELIEF THAT CLAIM OF THE A SSESSEE WAS ACCEPTED WITHOUT ANY INQUIRY. ON THE STRENGTH OF HON'BLE DEL HI HIGH COURTS DECISION IN THE CASE OF CIT VS. SUNBEAM AUTO REPORTED IN 332 ITR 167, HE POINTED 6 OUT THAT INADEQUACY OF INQUIRY CANNOT BE A GROUND F OR TAKING COGNIZANCE UNDER SEC. 263 OF THE ACT. LEARNED COMMISSIONER CAN TAKE THE COGNIZANCE ONLY WHEN THERE IS NO INQUIRY. DURING THE COURSE OF HEARING, WE HAVE CONFRONTED THE LEARNED COUNSEL FOR THE ASSESSEE WIT H THE LATEST JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. ASHOK LOGANI REPORTED IN (2011) 11 TAXMAN.COM 208 WHEREIN HON'BLE DELHI H IGH COURT HAS OBSERVED THAT IF THE ASSESSING OFFICER FAILED TO GO INTO THE ISSUE IN PROPER PERSPECTIVE AND PERFORMED HIS DUTIES IN PERFUNCTORY MANNER THEN ACTION UNDER SEC. 263 CAN BE INITIATED AGAINST THE ASSESSE E. SIMILARLY, WE CONFRONTED THE LEARNED COUNSEL FOR THE ASSESSEE WITH REGARD TO THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. NALWA INVES TMENT REPORTED IN 11 TAXMAN.COM.98. THIS DECISION WAS DELIVERED ON 11.5. 2011. WE ALSO CONFRONTED THE LEARNED COUNSEL FOR THE ASSESSEE WIT H THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF GEE VEE ENTERPRISES REPORTED IN 99 ITR 373. THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT TH AT THESE DECISIONS ARE ON THEIR OWN FACTS, IN THE CASE OF ASSESSEE, LEARNED ASSESSING OFFICER THOUGH NOT RECORDED SPECIFIC FINDING IN THE ASSESSMENT ORD ER BUT FROM THE RECORD, IT IS DISCERNIBLE THAT HE HAS ISSUED A SHOW-CAUSE NOTI CE, ASSESSEE HAS GIVEN A REPLY AND THEREAFTER HE PASSED THE ASSESSMENT ORDER . IT WOULD SUGGEST THAT HE MUST HAVE GONE THROUGH ALL THE DETAILS. IN THIS CON NECTION, HE MADE REFERENCE 7 TO THE DECISION OF THE FULL BENCH OF THE HON'BLE DE LHI HIGH COURT IN THE CASE OF KELVINATOR INDIA LTD. REPORTED IN 256 ITR 1 WHER EIN HON'BLE HIGH COURT HAS OBSERVED THAT IF AN ASSESSMENT HAS BEEN FRAMED UNDER SEC. 143(3) THEN IT WOULD BE PRESUMED THAT ASSESSING OFFICER HAS GONE I NTO ALL THE ISSUES. ON THE OTHER HAND, LEARNED DR SUBMITTED THAT FROM THE RECORD, IT IS NOT DISCERNIBLE WHETHER ASSESSING OFFICER HAS APPLIED H IS MIND ON THE DETAILS OR NOT. THE QUESTIONNAIRE WAS ISSUED IN THE MONTH OF A PRIL, 2008, THEREAFTER, ASSESSING OFFICER CALLED FOR A NUMBER OF INFORMATIO N ON THE INTERMEDIATE DATES. THE ASSESSEE ALLEGED TO HAVE FILED THE DETAI LS ON 15.12.2008. IT CREATES A DOUBT WHETHER ASSESSING OFFICER HAS LOOKED INTO T HESE DETAILS OR NOT. HE ALSO PRODUCED THE ORIGINAL RECORD FOR OUR PERUSAL. 7. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. THE ITAT IN THE CASE OF MRS. KHA TIZA S. OOMERBHOY VS. ITO,MUMBAI, 101 TTJ 1095, HAS ANALYZED IN DETAIL VARIOUS AUTHORITATIVE PRONOUNCEMENTS INCLUDING THE DECISION OF HONBLE SU PREME COURT IN THE CASE OF MALABAR INDUSTRIES 243 ITR 83 AS WELL AS H ONBLE BOMBAY HIGH COURT RENDERED IN THE CASE OF GABRIEL INDIA LTD. RE PORTED IN 203 ITR 108 AND HAS PROPOUNDED THE FOLLOWING BROADER PRINCIPLE TO JUDGE THE ACTION OF CIT TAKEN UNDER SECTION 263. 8 THE FUNDAMENTAL PRINCIPLE WHICH EMERGE FROM THE A BOVE CASES MAY BE SUMMARIZED BELOW (I) THE CIT MUST RECORD SATISFACTION THAT THE ORDE R OF THE A.O IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. BO TH THE CONDITIONS MUST BE FULFILLED. (II) SEC. 263 CANNOT BE INVOKED TO CORRECT EACH AN D EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE A,O AND IT WAS ONLY WHEN AN ORDER IS ERRONEOUS THAT THE SECTION WILL BE ATTRACTED. (III) AN INCORRECT ASSUMPTION OF FACTS OR AN INCOR RECT APPLICATION OF LAW WILL SUFFICE THE REQUIREMENT OF ORDER BEING ERRONEOUS. (IV) IF THE ORDER IS PASSED WITHOUT APPLICATION O F MIND, SUCH ORDER WILL FALL UNDER THE CATEGORY OF ERRONEOUS ORDER. (V) EVERY LOSS OF REVENUE CANNOT BE TREATED AS PRE JUDICIAL TO THE INTERESTS OF THE REVENUE AND IF THE A.O HAS ADOPTED ONE OF TH E COURSES PERMISSIBLE UNDER LAW OR WHERE TWO VIEWS ARE POSSIBLE AND THE A.O HAS TAKEN ONE VIEW WITH WHICH THE CIT DOES NOT AGREE, IT CANNOT B E TREATED AS AN ERRONEOUS ORDER, UNLESS THE VIEW TAKEN BY THE A.O I S UNSUSTAINABLE UNDER LAW. (VI) IF WHILE MAKING THE ASSESSMENT, THE A.O EXAMI NES THE ACCOUNTS, MAKES ENQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINE THE INCOME, THE CIT, WHILE EXERC ISING HIS POWER UNDER S. 263 IS NOT PERMITTED TO SUBSTITUTE HIS ESTIMATE OF INCOME IN PLACE OF THE INCOME ESTIMATED BY THE A.O. (VII) THE A.O EXERCISES QUASI-JUDICIAL POWER VEST ED IN HIS AND IF HE EXERCISES SUCH POWER IN ACCORDANCE WITH LAW AND ARR IVES AT A CONCLUSION, SUCH CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS SI MPLY BECAUSE THE CIT DOES NOT FEEL SATISFIED WITH THE CONCLUSION. (VIII) THE CIT, BEFORE EXERCISING HIS JURISDICTION UNDER S. 263 MUST HAVE MATERIAL ON RECORD TO ARRIVE AT A SATISFACTION. (IX) IF THE A.O HAS MADE ENQUIRIES DURING THE COUR SE OF ASSESSMENT PROCEEDINGS ON THE RELEVANT ISSUES AND THE ASSESSEE HAS GIVEN DETAILED EXPLANATION BY A LETTER IN WRITING AND THE A.O ALLO WS THE CLAIM ON BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE, THE DECISION OF THE A.O 9 CANNOT BE HELD TO BE ERRONEOUS SIMPLY BECAUSE IN HI S ORDER HE DOES NOT MAKE AN ELABORATE DISCUSSION IN THAT REGARD. 8. BEFORE EMBARKING UPON AN INQUIRY ABOUT THE FACTS OF THE PRESENT CASE AND HOW THOSE FACTS HAVE BEEN CONSIDERED BY THE LEA RNED REVENUE AUTHORITIES BELOW, WE DEEM IT APPROPRIATE TO MAKE A REFERENCE O F THE OBSERVATIONS OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF VEE GEE ENT ERPRISES REPORTED IN 99 ITR 373 WHEREIN HON'BLE HIGH COURT HAS EXPOUNDED TH E APPROACH OF THE ASSESSING OFFICER WHILE PASSING ASSESSMENT ORDER. T HE OBSERVATIONS OF THE HON'BLE HIGH COURT READ AS UNDER:- IT IS NOT NECESSARY FOR THE COMMISSIONER TO MAKE FURTHER INQUIRIES BEFORE CANCELING THE ASSESSMENT ORDER OF THE INCOME-TAX OFFICER. THE COMMISSIONER CAN REGARD THE ORDER AS E RRONEOUS ON THE GROUND THAT IN THE CIRCUMSTANCES OF THE CASE THE IN COME-TAX OFFICER SHOULD HAVE MADE FURTHER INQUIRIES BEFORE ACCEPTING THE STATEMENTS MADE BY THE ASSESSEE IN HIS RETURN. THE REASON IS O BVIOUS. THE POSITION AND FUNCTION OF THE INCOME-TAX OFFICER IS VERY DIFFERENT FROM THAT OF A CIVIL COURT. THE STATEMENT MADE IN A PLEA DING PROVED BY THE MINIMUM AMOUNT OF EVIDENCE MAY BE ADOPTED BY A CIVI L COURT IN THE ABSENCE OF ANY REBUTTAL. THE CIVIL COURT IS NEUTRAL . IT SIMPLY GIVES DECISION ON THE BASIS OF THE PLEADING AND EVIDENCE WHICH COMES BEFORE IT. THE INCOME-TAX OFFICER IS NOT ONLY AN AD JUDICATOR BUT ALSO AN INVESTIGATOR. HE CANNOT REMAIN PASSIVE IN THE FA CE OF THE RETURN WHICH IS APPARENTLY IN ORDER BUT CALLS FOR FURTHER INQUIRY. IT IS HIS DUTY 10 TO ASCERTAIN THE TRUTH OF THE FACTS STATED IN THE R ETURN WHEN THE CIRCUMSTANCES OF THE CASE ARE SUCH AS TO PROVOKE AN INQUIRY. IT IS BECAUSE IT IS INCUMBENT ON THE ITO TO FURTHER INVES TIGATE THE FACTS STATED IN THE RETURN WHEN CIRCUMSTANCES WOULD MADE SUCH AN INQUIRY PRUDENT THAT THE WORD ERRONEOUS IN SECTION 263 IN CLUDES THE FAILURE TO MAKE SUCH AN ENQUIRY. THE ORDER BECOMES ERRONEOU S BECAUSE SUCH AN INQUIRY HAS NOT BEEN MADE AND NOT BECAUSE THERE IS ANYTHING WRONG WITH THE ORDER IF ALL THE FACTS STATED THEREIN ARE ASSUMED TO BE CORRECT. 9. IN THE LIGHT OF THE ABOVE PROPOSITION, LET US EX AMINE THE FACTS OF THE PRESENT CASE. THE FIRST NOTICE UNDER SEC. 143(2) WA S SENT TO THE ASSESSEE ON 28 TH SEPTEMBER, 2007. THERE IS NO ORDER SHEET ENTRY TO THIS EFFECT IN THE ORIGINAL RECORD BUT IT WAS NOT DISPUTED BEFORE US. IT EMERGES OUT FROM THE RECORD THAT A DETAILED QUESTIONNAIRE WAS ISSUED BY THE ASSESSING OFFICER UNDER SECTION 142(1) OF THE ACT ALONG WITH NOTICE U NDER SEC. 143(2) ON 7.4.2008. THE ASSESSEE WAS REQUIRED TO FILE REPLY A ND ATTENDED THE OFFICE OF THE ASSESSING OFFICER ON 23.4.2008. ON 23.4.2008, A SSESSEE HAS SUBMITTED THE DETAILS VIDE LETTER DATED 23 RD APRIL, 2008 ON THIRTY COUNTS BUT IT HAS NOT SUBMITTED ANY DETAILS ON THE SR. NOS. 24 AND 25 OF THE QUESTIONNAIRE (EXTRACTED SUPRA). THE CASE WAS ADJOURNED TO 15.5.2 008. THESE DETAILS WERE RECEIVED BY THE ASSESSING OFFICER UNDER HIS SIGNATU RE AND THEY ARE AVAILABLE ON THE RECORD. THEREAFTER, THE ORDER SHEET ENTRIES ARE REGULARLY AVAILABLE FROM 11 16.7.2008 UP TO 15.12.2008. ASSESSING OFFICER HAS C ALLED FOR SIMILAR DETAILS VIDE ORDER SHEET ENTRY DATED 1.12.2008. WE FIND THA T ON 26.11.2008, ASSESSEE HAS FILED CERTAIN DETAILS AND CASE WAS ADJOURNED TO IST OF DECEMBER 2008. ON THESE DETAILS AGAIN SIGNATURES OF ASSESSING OFFICER IS AVAILABLE. SIMILARLY, ON 17 TH SEPTEMBER 2008, ASSESSEE HAS SUBMITTED A LETTER WI TH DETAILS, SIGNATURES OF ASSESSING OFFICER IS AVAILABLE. HOWEVER, THE DET AILS ARE ALLEGED TO HAVE BEEN SUBMITTED ON 15.12.2008, NO SIGNATURE OR INITI AL OF ANY OFFICER IS DISCERNIBLE ON THIS LETTER, WHETHER IT WAS RECEIVED OR NOT RECEIVED ON THAT DAY. ASSESSMENT ORDER HAS BEEN PASSED ON 29.12.2008. WE AGREE WITH THE CONTENTIONS OF LEARNED COUNSEL FOR THE ASSESSEE THA T IT IS THE PREROGATIVE OF THE ASSESSING OFFICER AS TO HOW HE DRAFTS HIS ORDER AND IT IS NOT IN ASSESSEES CONTROL TO APPRAISE HIM WHICH DETAILS HE SHOULD DIS CUSS IN THE ORDER. THEREFORE, EVEN IF NO DISCUSSION IS AVAILABLE IN TH E ASSESSMENT ORDER, IT CANNOT BE SAID THAT NO INQUIRY WAS CONDUCTED BY THE ASSESSING OFFICER. THE IDEAL SITUATION TO FIND OUT THAT ASSESSING OFFICER HAS INVESTIGATED AN ISSUE IN A PURPOSEFUL MANNER IS THAT DISCUSSION IN RESPECT O F THAT ISSUE SHOULD DISCERN FROM THE ORDER ITSELF. IF NO DISCUSSION IS AVAILABL E IN THE ORDER THEN IT HAS TO BE GATHERED FROM THE MATERIAL AVAILABLE ON RECORD. ON AN ANALYSIS OF THE RECORD, WE FIND THAT ASSESSING OFFICER ISSUED QUEST IONNAIRE ON 7.4.2008. NO SPECIFIC DETAILS WERE SUBMITTED QUA THIS ISSUE IN T HE LETTERS SUBMITTED ON THE 12 DATE OF HEARING TAKEN PLACE IN BETWEEN 23.4.2008 TO 15.12.2008. IN THE DETAILS SUBMITTED DURING 263 PROCEEDINGS AND IN THE DETAIL WHICH ALLEGED TO HAVE BEEN SUBMITTED VIDE LETTER DATED 15.12.2008, I T IS DISCERNIBLE THAT ASSESSEE HAS UNDERTAKEN LARGE NUMBER OF TRANSACTION S OF 39 SCRIPTS. THE RECORD DOES NOT INSPIRE CREDENCE WITH THE ANGLE THA T ASSESSING OFFICER HAS CONDUCTED A PROPER INQUIRY BEFORE ACCEPTING THE CLA IM OF ASSESSEE. IT GIVES AN IMPRESSION TO US THAT AT THE CLOSE OF THE HEARIN G AT THE MOST SOME INFORMATION WERE PLACED ON THE RECORD WHICH APPEARS TO HAVE NOT COME TO THE NOTICE OF THE ASSESSING OFFICER. IN ANY CASE, I T IS NOT DISCERNIBLE THAT THE ASSESSING OFFICER APPEARS TO HAVE APPLIED HIS MIND ANALYTICALLY AND LOGICALLY AND THEREAFTER HE TOOK ONE OF THE POSSIBL E VIEW. LEARNED COMMISSIONER HAS NOT DECIDED THE ISSUE ON MERIT. HE HAS REMITTED IT TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH INQUIRY. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY MERIT IN THIS APPEAL , IT IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 23.03.201 2 SD/- SD/- ( K.G. BANSAL ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23/03/2012 MOHAN LAL 13 COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR