Shri Ram Swaroop Bairagi, Dewas, Dewas V. PCIT Ujjain, Ujjain

ITA 633/Ind/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2955 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-11-2020
• Assessment Year: 2009-2010
• Appeal Filed On: 28-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: S S DESH
• Keywords: Revision of order; Opportunity of being heard; Period of limitation; Prejudicial to interest; Set aside
• Section: 143(3); 13; 119; 22; 148; 263; 63

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HONBLE KUL BHARAT, JUDICIAL MEMBER AND HONBLE MANISH BORAD, ACCOUNTANT MEMBER ITA.NO.633/IND/2019 ASSESSMENT YEAR 2009-10 SHRI RAM SWAROOP BAIRAGI, VILL/POST SIYA DIST. DEWAS PAN : AYAPD2587K : APPELLANT V/S PCIT, UJJAIN : REVENUE ITA NO.636/IND/2019 ASSESSMENT YEAR 2009-10 SHRI SHRIRAM VAISHNAV, VILL/POST SIYA DIST. DEWAS PAN : AHLPV2369P : APPELLANT V/S PCIT, UJJAIN : REVENUE ITA NO.639/IND/2019 ASSESSMENT YEAR 2009-10 SHRI SHAILENDRA VAISHNAV (BAIRAGI) VILL/POST SIYA DIST. DEWAS PAN : ALBPV8323R : APPELLANT RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 2 V/S PCIT, UJJAIN : REVENUE REVENUE BY SMT. ASHIMA GUPTA, CIT ASSESSEE BY SHRI S.S. DESHPANDE , CA DATE OF HEARING 02.11 .2020 DATE OF PRONOUNCEMENT 24 . 1 1 . 2020 O R D E R PER MANISH BORAD, A.M THE ABOVE CAPTIONED APPEALS FILED AT THE INSTANCE O F THE ASSESSE(S) PERTAINING TO ASSESSMENT YEAR 2009-10 AR E DIRECTED AGAINST THE ORDERS OF LD. PR. COMMISSIONER OF INCOM E TAX, UJJAIN (IN SHORT LD.PCIT], UJJAIN DATED 19.03.2019 U/S 26 3 OF THE ACT. 2. ASSESSEE(S) HAVE RAISED FOLLOWING GROUNDS OF APP EAL:- RAMSWAROOP BAIRAGI ITA NO.633/IND/2019 ASSESSMENT YEAR 2009-10 1. THE ORDER PASSED BY THE LD. PCIT IS ILLEGAL AND BAD IN LAW AND HENCE BE SET ASIDE. 2. THE LD. PCIT HAS ERRED IN PASSING THE ORDER U/S 263 ON THE GROUND THAT THE ORDER PASSED BY THE LD. A.O. IS ERRONEOUS AND P REJUDICIAL TO THE INTEREST OF THE REVENUE. 3. IT WAS PROVED BEFORE THE LD. PCI'T THAT THE ASSESSMENT WAS FRAMED AFTER RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 3 DUE SCRUTINY OF FACTS AND AFTER VERIFICATION OF THE DETAILS. THE ASSESSMENT WAS REOPENED ON THE GROUND OF AIR INFORMATION THAT THE ASSESSEE HAD DEPOSITED IN BANK THE AMOUNTS IN CASH OF MORE THAN RS.10,00,000/-. THE PAPERS ABOUT THE AGREEMENT TO SALE ALONG WITH THE F AMILY SETTLEMENT(PARTITION) MEMORANDUM WERE FILED. AFTER VERIFICATION AND DETAILED SCRUTINY THE LD. A.O FRAMED THE ASSESSMENT AND AS SUCH THE SAME CANNOT BE TREATED AS ERRONEOUS AND PREJUDICIAL AND AS SUCH ACTION U/S 263 IS BAD IN LAW. 4. THE ORDER PASSED BY THE LD. PCIT BE QUASHED . SHRIRAM VAISHNAV ITA NO.636/IND/2019 ASSESSMENT YEAR 2009-10 1. THE ORDER PASSED BY THE LD. PCIT IS ILLEGAL AND BAD IN LAW AND HENCE BE SET ASIDE. 2.THE LD. PCIT HAS ERRED IN PASSING THE ORDER U/S 2 63 ON THE GROUND THAT THE ORDER PASSED BY THE LD. A.O. IS ERRONEOUS AND P REJUDICIAL TO THE INTEREST OF THE REVENUE. 3.IT WAS PROVED BEFORE THE LD. PCI'T THAT THE ASSESSMENT WAS FRAMED AFTER DUE SCRUTINY OF FACTS AND AFTER VERIFICATION OF TH E DETAILS. THE ASSESSMENT WAS REOPENED ON THE GROUND OF AIR INFORMATION THAT THE ASSESSEE HAD DEPOSITED IN BANK THE AMOUNTS IN CASH OF MORE THAN RS.10,00,000/-. THE PAPERS ABOUT THE AGREEMENT TO SALE ALONG WITH THE FAMILY SETTLEMENT(PARTITION) MEMORANDUM WERE FILED. AFTE R VERIFICATION AND DETAILED SCRUTINY THE LD. A.O FRAMED THE ASSESSMEN T AND AS SUCH THE SAME CANNOT BE TREATED AS ERRONEOUS AND PREJUDICIA L AND AS SUCH ACTION U/S 263 IS BAD IN LAW. 4. THE ORDER PASSED BY THE LD. PCIT BE QUASHED . RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 4 SHAILENDRA VAISHNAV (BAIRAGI) ITA NO.639/IND/2019 ASSESSMENT YEAR 2009-10 1. THE ORDER PASSED BY THE LD. PCIT IS ILLEGAL AND BAD IN LAW AND HENCE BE SET ASIDE. 2.THE LD. PCIT HAS ERRED IN PASSING THE ORDER U/S 263 ON THE GROUND THAT THE ORDER PASSED BY THE LD. A.O. IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 3.IT WAS PROVED BEFORE THE LD. PCI'T THAT THE ASSESSMENT WAS FRAMED AFTER DUE SCRUTINY OF FACTS AND AFTER VERIFICATION OF THE DETAILS. THE ASSESSMENT WAS REOPENED ON THE GROUND OF AIR INFORMATION THAT THE ASSESSEE HAD DEPOSITED IN BANK THE AMOUNTS IN CASH OF MORE THAN RS.10,00,000/-. THE PAPERS ABOUT THE AGREEMENT TO SALE ALONG WITH THE F AMILY SETTLEMENT(PARTITION) MEMORANDUM WERE FILED. AFTER VERIFICATION AND DETAILED SCRUTINY THE LD. A.O FRAMED THE ASSESSMENT AND AS SUCH THE SAME CANNOT BE TREATED AS ERRONEOUS AND PREJUDICIAL AND AS SUCH ACTION U/S 263 IS BAD IN LAW. 4. THE ORDER PASSED BY THE LD. PCIT BE QUASHED . 3. AS ALL THE ISSUES RAISED IN THE INSTANT APPEALS RELATES TO THE SAME GROUP OF ASSESSEE(S) AND THE FACTS GIVING ARIS E TO THE ORDER U/S 263 OF THE ACT ARE ALSO SAME THEREFORE THESE WERE H EARD TOGETHER AND BEEN DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 5 4. AS THE ISSUES AND FACTS OF THESE FOUR APPEALS RE MAIN THE SAME, WE WILL TAKE UP THE FACTS AND ISSUE RAISED IN THE C ASE OF SHRI RAMSWAROOP BAIRAGI RAISED VIDE ITA NO.633/IND/2019 FOR THE PURPOSE OF ADJUDICATION WHICH SHALL BE APPLICABLE MUTANDIS MUTANDIS TO OTHER ASSESSEE(S) ALSO SINCE THE ISSUES RAISED IN OTHER TWO APPEALS ARE SAME. 5. BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE R ECORDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME MAINL Y FROM AGRICULTURE AND INTEREST INCOME. SINCE THERE WAS NO TAXABLE INCOME NO RETURN WAS FILED. ON THE BASIS OF AIR INFORMATIO N ABOUT THE CASH DEPOSITS IN THE BANK, NOTICE U/S 148 OF THE ACT WAS ISSUED. IN RESPONSE TO NOTICE U/S 148 THE RETURN WAS FILED DEC LARING INCOME OF RS.66,650/- BEING INTEREST FROM BANK. ASSESSMENT WA S COMPLETED U/S 143(3)/148 OF THE ACT AT RS.66,650/-. SUBSEQUEN TLY LD. PR.CIT, UJJAIN ASSUMING HIS JURISDICTION U/S 263 OF THE ACT INITIATED THE PROCEEDINGS U/S 263 OF THE ACT ARE ISSUED FOLLOWING SHOW CAUSE NOTICE DATED 25.02.2019, TO THE ASSESSEE :- IN THIS CASE, NOTICE U/S 148 WAS ISSUED ON 23.03.2016. IN COMPLIANCE, THE ASSESSEE FILED RETURN OF INCOME ON 27.09.2016 DECLARING TOTAL INCOME OF RS.66,650/-. THE ASSESSMENT WAS COM PLETED U/S RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 6 143(3)1147 ON 12.12.2016 BY THE AO ( ITO-I, DEWAS) AT THE RETURNED INCOME, WHICH IS CONSIDERED ERRONEOUS AND PREJUDICI AL TO THE INTEREST OF REVENUE FOR THE FOLLOWING REASONS :- ON PERUSAL AND EXAMINATION OF RECORDS, IT IS NOTIC ED THAT THE ASSESSEE HAS DEPOSITED CASH OF RS.19,05,600/- IN TH E SAVING BANKS ACCOUNT. HOWEVER, ON GOING THROUGH THE RECORD, IT I S FURTHER NOTICED THAT _ (1) IN RESPECT OF CASH DEPOSITED IN THE SAVINGS BA NK ACCOUNT, THE ASSESSEE STATED BEFORE THE AA THAT THE SAID AMOUNT WAS RECEIVED AS PER FAMILY PARTITION DEED DATED 21.05.2008 PREPARE D BY HIS FATHER SHRI RAMCHARAN DAS. HIS FATHER SHRI RAMCHARAN DAS SOLD AGRICULTURAL LAND FOR A CONSIDERATION OF RS.L,39,4 0,000/- AS PER SALE AGREEMENT WITH SHRI SANTOSH PATEL DATED 05.01.2008 . THE SAID AMOUNT WAS DISTRIBUTED AMONGST SEVEN SONS. . (2) NO DETAILS AND DOCUMENTS ARE FOUND ON RE CORD WHICH CAN ESTABLISH THAT DATES ON WHICH THE ABOVE AMOUNT OF RS.19,05,500/- ARE RECEIVED BY THE ASSESSEE FROM HIS FATHER. (3) THE ASSESSING OFFICER DID NOT EXAMINE ON OATH THE ASSESSEE IN CONNECTION WITH THE VERACITY OF THE TRANSACTION S. IN THE LIGHT OF ENTIRE FACTS DISCUSSED ABOVE, I AM OF THE CONSIDERED VIEW THAT THE ASSESSMENT ORDER PASSED U/S 143 (3)/1 47 ON 12.12.2016 FOR THE A. Y. 200910 IN YOUR CASE IS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE, WHICH REQUIRES TO BE REVISED U /S 263. HOWEVER, BEFORE I PROCEED TO INVOKE THE POWERS U/S 263 AND PASS AN APPROPRIATE ORDER, I DEEM IT PROPER TO GIVE YOU AN OPPORTUNITY OF BEING HEARD IN THE MATTER. RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 7 6. THE ASSESSEE DULY REPLIED TO THE ABOVE SHOW CAUS E NOTICE SUBMITTING AS UNDER:- THE ASSESSEE IS AN INDIVIDUAL. HE IS EARNING INCOM E FROM BONK INTEREST ONLY. THE ASSESSEE IS NOT ENGAGED IN BUSIN ESS OR PROFESSION. THE ASSSESSEE HAS RECEIVED RS. I 9,15, 000/- FROM FATHER OUT OF SALE PROCEEDS OF ANCESTRAL AGRICULTURAL LAND. HE HAS DEPOSITED CASH OF RS. 19, 05,000/ IN BANK ACCOUNT OUT OF ABOVE RECEIPTS. THE FATHER OF T HE ASSESSEE HAD EXPIRED ON 19/02/2016. 2. AS REGARDS CASH DEPOSITS IN TO SAVING BANK ACCOUNT WITH NARMADA MALWA GRAMIN BANK, DEWAS, IT IS HUMBLY SUBMITTED T HAT THE ASSESSEE HAS DEPOSITED TOTAL RS.19,05,OOO/- IN SUCH ACCOUNT. HE HAS DEPOSITED RS.9,90,000/- & &.9,25,000/- ON 22/05/2008 OUT OF AMOUNT RECEIVED IN FAMILY PARTITION FROM FA THER. THE FATHER OF THE ASSESSEE SOLD ANCESTRAL AGRICULTURAL LAND SITU ATED AT VILLAGE JASODGARH TEHSIL AND DISTRICT-DEWAS SURVEY NO. 414 ADMEASURING ABOUT 5.66 HECTARE INHERITED BY HIM. HE HAS SOLD L AND FOR RS. 1,39,40,000/- OUT OF WHICH HE DISTRIBUTED RS. 19,1 5,000/- EACH AMONGST HIS SEVEN SONS. AS SUCH EACH THE ASSESSEE RECEIVED SHARE IN ANCESTRAL PROPERTY AT RS.19, 15, 000/-. 3. THE FATHER OF THE ASSESSEE HAS EXECUTED FAMILY SETT LEMENT (PARTITION) MEMORANDUM ON 21/05/2008 WHICH CLEAR LY SHOWS THE DATE ON WHICH THE AMOUNT HAS BEEN DISTRIBUTED AT RS. 19,15,000/- EACH AMONGST HIS SEVEN SONS. THE ASSE SSEE HAS FILED COPY OF FAMILY SETTLEMENT (PARTITION) MEMORANDUM A LONG WITH COPY OF AGREEMENT TO SALE OF AGRICULTURAL LAND BEFORE THE LD. ASSESSING OFFICER WHICH HAS BEEN SEEN BY HIM. THE LD. ASSES SING OFFICER HAS ACCEPTED AFTER SCRUTINIZED THE DOCUMENTS. AS SUCH THE DATE OF RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 8 RECEIPTS BY ASSESSEE FROM DECEASED FATHER DULY ME NTIONED IN THE MEMORANDUM OF FAMILY SETTLEMENT. IN VIEW OF THE ABOVE SUBMISSIONS, THE ASSESSEE HAS PROPER SOURCES OF CASH DEPOSITS INTO BANK ACCOUNT THE SAME MAY PLE ASE BE ACCEPTED. 4. AS REGARDS, EXAMINE OF ASSESSEE ON OATH, IT IS HUMBLY SUBMITTED THAT THE EXPLANATION OF THE ASSESSEE REGARDING CAS H RECEIPTS FROM FATHER IS DULY SUPPORTED BY THE DOCUMENTARY EVIDENCE I.E. FAMILY SETTLEMENT MEMORANDUM AND RECEIPTS OF FATHER IS ALSO SUPPORTED BY THE AGREEMENT SALE ANCESTRAL LAND. THE ASSESSEE HAS FILED BOTH T HE DOCUMENTS BEFORE THE LD. ASSESSING OFFICER. THE LD. ASSESSING OFFICE R. THE LD. ASSESSING OFFICER AFTER SEEING THE DOCUMENTS HAS ACCEPTED AFTER SCRUTINIZED THE DOCUMENTS. MERE NON EXAMINE OF ASSESSEE ON OATH DOE SN'T AUTOMATICALLY LEAD TO ORDER OF THE LD. ASSESSING OFFICER AS ERRO NEOUS. THE FATHER OF THE ASSESSEE IS NO MORE ALIVE AND AS SUCH THE DOCUMENTS OF AGREEMENT TO SALE AND THE MEMORANDUM O F FAMILY SETTLEMENT SHOULD BE TREATED AS CONCLUSIVE PROOF IN VIEW OF ABOVE SUBMISSION AND ON THE FACTS AND C IRCUMSTANCES THE ORDER OF THE ASSESSING OFFICER IS NOT PREJUDIC IAL TO THE INTERESTS OF THE REVENUE. ALSO YOUR HONOUR AN ORDER CANNOT BE T ERMED AS ERRONEOUS THAT THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY. IT IS HUMBLY SUBMITTED YOUR HONOUR THAT RELYING ON THE FOLLOWING DECISIONS OF HON'BLE COURTS BOTH CONDITIONS MUST CO -EXIT FOR PROCEEDINGS UNDER SECTION 263 OF INCOME TAX ACT,1961. TARA DEVI AGGARWAL (SMT.) VS. CIT 88FTR 323 (SC). CIT VS. MAX INDIA LTD. 295FTR 282 (SC) RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 9 CIT VS. RATLAM COAL ASH CO. 171 FTR 141 (MP). CIT VS. SHRI GOVINDRAM SEKSARIYA CHARITY TRUST 166 ITR 580 (MP) CIT VS. GABRIALINDIA LTD. 203ITR 109 (BORN). CIT VS. SMT. MINALBEN S.PARIKH 215 FTR 81 (GUJ). CIT VS. SOHANA WOOLLEN MILLS 296ITR 238 (P& H). IT IS THEREFORE PRAYED YOUR HONOUR THAT THE PROCEE DINGS MAY PLEASE BE DROPPED. 7. THE SUBMISSIONS MADE BY THE ASSESSEE WERE NOT SUFFICIENT TO SATISFY THE LD. PCIT AND AND THUS HELD THAT THE ASS ESSMENT ORDER DATED 22.12.2016 ISSUED U/S 143(3) OF THE ACT AS ER RONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE OBSERVING AS FOLLOWS :- 3.2 IN RESPECT OF. THE CASH AMOUNT RECEIVED OF RS. 19,05,000/- FROM THE FATHER, BEING THE SHARE OF THE ASSESSEE, ON SALE CONSIDERATION OF AGRICULTURAL LAND OF RS.1 ,39,40,000/-, THE ASSESSE E DID NOT FURNISH ANY DETAILS AND DOCUMENTS EXCEPT COPY OF FAMILY PARTITI ON DEED, SALE AGREEMENT DATED 05.01.2008 AND DEATH CERTIFICATE OF SHRI RAMCHARAN DAS. THE ASSESSEE ALSO DID NOT FILE COPY OF REGISTE RED DEED OF SUCH' AGRICULTURAL LAND, AFTER A LAPSE OF NEARLY 11 YEARS OF SUCH SALE AGREEMENT THEREFORE, THE CONTENTION OF THE ASSESSEE IS NOT AC CEPTABLE. THUS, THE ASSESSEE HAS NOT PROPERLY EXPLAINED THE SOURCE OF C ASH DEPOSITED OF RS.19,05,500/- IN THE SAVINGS BANK ACCOUNT. ACCORDI NGLY, THE AO IS REQUIRED TO EXAMINE THIS ISSUE IN DETAIL IN ORDER T O ASCERTAIN THE TRUE STATE OF THE FACTS. IN VIEW OF THE ABOVE, THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL INTEREST OF REVENUE. RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 10 4. THE RELEVANT EXPLANATION TO SECTION 263 IS REPRO DUCED AS BELOW :- EXPLANATION 2 ~ 'FOR THE PURPOSE OF THIS SECTION, I T. IS HEREBY DECLARED THAT AN ORDER PASSED BY THE ASSESSING OFFICER SHALL BE D EEMED 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 INQUIRIE S OR VERIFICATION WHICH SHOULD HAVE BEEN MADE; (B) THE ORDER IS PASSED ALLOWING ANY RELIEF WITHOU T. INQUIRING INTO THE CLAIM:' AS SUCH THE PROVISIONS OF SECTION 263 ARE APPLICABL E ON THE ISSUE OF THE CASE. 5. THUS, THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE IN RESPECT TO THE ABOVE ISSUE. 6. THE ORDER OF THE AO IS, THEREFORE, SET ASIDE TO THE FILE OF THE AO WITH DIRECTION TO EXAMINE THE ISSUE, AS DISCUSSED ABOVE, AND AFTER AFFORDING PROPER OPPORTUNITY TO THE ASSESSEE. THE ORDER DATED 12.12.2016 PASSED U/S 143(3)/147 IS, ACCORDINGLY, SET ASIDE. 8. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L CHALLENGING THE JURISDICTION OF LD. PCIT ASSUMED U/S 263 OF TH E ACT. 9. LD. COUNSEL FOR THE ASSESSEE ON REFERRING TO THE WRITTEN SUBMISSIONS FILED BEFORE LD. PCIT AND ALSO BEFORE U S SUBMITTED THAT THE ALLEGED AMOUNT OF RS.19,05,000/- DEPOSITED BY T HE ASSESSEE IN RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 11 THE BANK ACCOUNT WAS RECEIVED FROM HIS FATHER. THE ALLEGED AMOUNT WAS 1/7 PART OF THE TOTAL CONSIDERATION OF RS.1,39, 40,000/- RECEIVED ON FAMILY PARTITION AND THE SAME WAS DISTRIBUTED BY THE FATHER AMONGST HIS SEVEN SONS. THE LD. A.O HAS DULY CALLE D FOR THE DETAILS RELATING TO ALLEGED CASH DEPOSIT DURING THE ASSESSM ENT PROCEEDINGS AND THE ASSESSEE HAS GIVEN SPECIFIC REPLY WITH ALL THE RELEVANT DOCUMENTARY EVIDENCE IN THE FORM OF BANK STATEMENT, SALE AGREEMENT AND FAMILY PARTITION AGREEMENT. LD. COUN SEL FOR THE ASSESSEE HAS ALSO SUBMITTED THAT THE FATHER OF THE ASSESSEE EXPIRED ON 19.02.2016. SINCE IT WAS A GENUINE TRANSACTION OF THE AMOUNT RECEIVED ON FAMILY PARTITION WHICH HAS BEEN THOROUG HLY EXAMINED BY THE LD. A.O CONDUCTING SUFFICIENT ENQUIRY, LD. PCIT WAS NOT JUSTIFIED IN EXERCISING HIS JURISDICTION U/S 263 OF THE ACT AND THE SAME DESERVES TO BE QUASHED. 10. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHE MENTLY ARGUED SUPPORTING THE ORDER OF LD. PCIT. 11. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US AND CAREFULLY GONE THROUGH THE SUB MISSIONS MADE BY THE ASSESSEE. IN ALL THESE APPEALS THE COMMON I SSUE IS THAT OF RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 12 CHALLENGING THE ORDER PASSED BY LD. PCIT U/S 263 OF THE ACT TREATING THE ASSESSMENT ORDER(S) AS ERRONEOUS AND P REJUDICIAL TO THE INTEREST OF REVENUE. WE OBSERVE THAT LD. PCIT HAS REFERRED TO TRANSACTION OF CASH DEPOSIT OF RS.19,05,000/- IN TH E SAVING BANK ACCOUNT BY THE RESPECTIVE ASSESSEE(S). IN THE SHOW CAUSE NOTICE LD. PCIT HAS HIMSELF REFERRED TO THE TRANSACTION ARISIN G OUT OF FAMILY PARTITION. ASSESSEES FATHER SHRI RAMCHARAN DAS RE CEIVED SALE CONSIDERATION FROM SALE OF AGRICULTURE LAND AT RS. 1,39,40,000/- ON 5.1.2008 (COPY OF SALE DEED PLACED AT PB PG-22). F AMILY PARTITION DEED IS DATED 21.05.2008. ASSESSEE IS HAVING SIX BR OTHERS. ASSESSEE RECEIVED 1/7 PORTION. LD. PCIT WHILE INITI ATING PROCEEDINGS U/S 263 OF THE ACT MENTIONED THAT NO DETAILS AND DOCUMENTS ARE FOUND ON RECORD WHICH COULD ESTABLISH THAT THE DATE S ON WHICH THE ABOVE AMOUNT OF RS.19,05,000/- WAS RECEIVED BY THE ASSESSEE FROM HIS FATHER AND ALSO THE LD. A.O DID NOT EXAMINED TH E ASSESSEE ON OATH IN CONNECTION WITH THE VERACITY OF THE TRANSAC TION. 12. TO EXAMINE THIS ASPECT WHETHER LD. PCIT HAS JUS TIFIED IN HOLDING THE ORDER OF LD. A.O AS ERRONEOUS AND PREJU DICIAL TO THE INTEREST OF REVENUE, WE WILL FIRST GO THROUGH THE R ELEVANT PROVISION OF RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 13 SECTION 263 OF THE ACT:- 263. (1) THE PRINCIPAL COMMISSIONER OR COMMISSIONER MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING UNDER THIS ACT , AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE ASSESSING OFFI CER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE RE VENUE, HE MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTE R MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSARY, PASS SU CH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLING THE ASSESSM ENT AND DIRECTING A FRESH ASSESSMENT. EXPLANATION 1.FOR THE REMOVAL OF DOUBTS, IT IS HER EBY DECLARED THAT, FOR THE PURPOSES OF THIS SUB-SECTION, (A) AN ORDER PASSED ON OR BEFORE OR AFTER THE 1 ST DAY OF JUNE, 1988 BY THE ASSESSING OFFICER SHALL INCLUDE (I) AN ORDER OF ASSESSMENT MADE BY THE ASSISTANT COMMISSIONER OR DEPUTY COMMISSIONER OR THE INCOME-TAX OFFICER ON T HE BASIS OF THE DIRECTIONS ISSUED BY THE JOINT COMMISSIONER UNDER SECTION 144A; (II) AN ORDER MADE BY THE JOINT COMMISSIONER IN E XERCISE OF THE POWERS OR IN THE PERFORMANCE OF THE FUNCTIONS OF AN ASSES SING OFFICER CONFERRED ON, OR ASSIGNED TO, HIM UNDER THE ORDERS OR DIRECTIONS ISSUED BY THE BOARD OR BY THE PRINCIPAL CHIEF COM MISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL DIRECTOR GENERAL O R DIRECTOR GENERAL OR PRINCIPAL COMMISSIONER OR COMMISSIONER AUTHORIS ED BY THE BOARD IN THIS BEHALF UNDER SECTION 120; (B) 'RECORD' SHALL INCLUDE AND SHALL BE DEEMED ALW AYS TO HAVE INCLUDED ALL RECORDS RELATING TO ANY PROCEEDING UN DER THIS ACT AVAILABLE AT THE TIME OF EXAMINATION BY THE PRINCI PAL COMMISSIONER OR COMMISSIONER; (C) WHERE ANY ORDER REFERRED TO IN THIS SUB-SECTI ON AND PASSED BY THE ASSESSING OFFICER HAD BEEN THE SUBJECT MATTER OF A NY APPEAL FILED ON OR BEFORE OR AFTER THE 1ST DAY OF JUNE, 1988, THE POWERS OF THE PRINCIPAL COMMISSIONER OR] COMMISSIONER UNDER THIS SUB-SECTION SHALL EXTEND AND SHALL BE DEEMED ALWAYS TO HAVE EX TENDED TO SUCH MATTERS AS HAD NOT BEEN CONSIDERED AND DECIDED IN SUCH APPEAL. EXPLANATION 2.FOR THE PURPOSES OF THIS SECTION, IT IS HEREBY DECLARED THAT AN ORDER PASSED BY THE ASSESSING OFFICER SHALL BE D EEMED 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 WITHO UT INQUIRING INTO THE CLAIM; (C) THE ORDER HAS NOT BEEN MADE IN ACCORDANCE WIT H ANY ORDER, DIRECTION OR INSTRUCTION ISSUED BY THE BOARD UNDER SECTION 119 ; OR RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 14 (D) THE ORDER HAS NOT BEEN PASSED IN ACCORDANCE W ITH ANY DECISION WHICH IS PREJUDICIAL TO THE ASSESSEE, RENDERED BY THE JURISDICTIONAL HIGH COURT OR SUPREME COURT IN THE CASE OF THE ASS ESSEE OR ANY OTHER PERSON. (2) NO ORDER SHALL BE MADE UNDER SUB-SECTION (1) A FTER THE EXPIRY OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER SOUGHT TO BE REVISED WAS PASSED. (3) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECT ION (2), AN ORDER IN REVISION UNDER THIS SECTION MAY BE PASSED AT ANY T IME IN THE CASE OF AN ORDER WHICH HAS BEEN PASSED IN CONSEQUENCE OF, OR TO GIVE EFFECT TO, ANY FINDING OR DIRECTION CONTAINED IN AN ORDER OF THE APPELLATE TRIBUNAL, NATIONAL TAX TRIBUNAL, THE HIGH COURT OR THE SUPREME COURT. EXPLANATION.IN COMPUTING THE PERIOD OF LIMITATION FOR THE PURPOSES OF SUB- SECTION (2), THE TIME TAKEN IN GIVING AN OPPORTUNIT Y TO THE ASSESSEE TO BE REHEARD UNDER THE PROVISO TO SECTION 129 AND ANY PERIOD DURING WHICH ANY PROCEEDING UNDER THIS SECTION IS STAYED BY AN O RDER OR INJUNCTION OF ANY COURT SHALL BE EXCLUDED. 13. ON A BARE PERUSAL OF THE SUB-SECTION (1) WOULD REVEAL THAT THE POWERS OF REVISION GRANTED BY SECTION 263 TO THE LEARNED COMMISSIONER HAVE FOUR COMPARTMENTS. IN THE FIRST P LACE, THE LEARNED COMMISSIONER MAY CALL FOR AND EXAMINE THE R ECORDS OF ANY PROCEEDINGS UNDER THIS ACT. FOR CALLING OF THE RECO RD AND EXAMINATION, THE LEARNED COMMISSIONER WAS NOT REQUI RED TO SHOW ANY REASON. IT IS A PART OF HIS ADMINISTRATIVE CONT ROL TO CALL FOR THE RECORDS AND EXAMINE THEM. THE SECOND FEATURE WOULD COME WHEN HE WILL JUDGE AN ORDER PASSED BY AN ASSESSING OFFIC ER ON CULMINATION OF ANY PROCEEDINGS OR DURING THE PENDEN CY OF THOSE PROCEEDINGS. ON AN ANALYSIS OF THE RECORD AND OF TH E ORDER PASSED BY THE ASSESSING OFFICER, HE FORMED AN OPINION THAT SUCH AN ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT ERESTS OF THE REVENUE. BY THIS STAGE THE LEARNED COMMISSIONER WAS NOT REQUIRED THE ASSISTANCE OF THE ASSESSEE. THEREAFTER THE THIR D STAGE WOULD RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 15 COME. THE LEARNED COMMISSIONER WOULD ISSUE A SHOW-C AUSE NOTICE POINTING OUT THE REASONS FOR THE FORMATION OF HIS B ELIEF THAT ACTION UNDER SECTION 263 IS REQUIRED ON A PARTICULAR ORDER OF THE ASSESSING OFFICER. AT THIS STAGE THE OPPORTUNITY TO THE ASSES SEE WOULD BE GIVEN. THE LEARNED COMMISSIONER HAS TO CONDUCT AN I NQUIRY AS HE MAY DEEM FIT. AFTER HEARING THE ASSESSEE, HE WILL P ASS THE ORDER. THIS IS THE FOURTH COMPARTMENT OF THIS SECTION. THE LEARNED COMMISSIONER MAY ANNUL THE ORDER OF THE ASSESSING O FFICER. HE MAY ENHANCE THE ASSESSED INCOME BY MODIFYING THE OR DER. 14. IT IS WELL SETTLED LAW THAT FOR INVOKING THE PR OVISIONS OF SECTION 263 OF THE ACT BOTH THE CONDITIONS THAT THE ORDER M UST BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE NEEDS TO BE SATISFIED. THIS RATIO STANDS LAID DOWN BY VARIOUS HON'BLE COURTS. 15. HON'BLE JURISDICTIONAL HIGH COURT OF MADHYA PRA DESH IN THE CASE OF H.H. MAHARAJA RAJA POWER DEWAS (1983) 15 TAXMAN 363 IN PARA 10 OF THIS ORDER HELD THAT HOWEVER, THE FIRST ARGUMENT, VIZ., THAT AN ASSESSMENT ORDER WITHOUT CO MPLIANCE WITH THE PROCEDURE LAID DOWN IN SECTION 144B IS ERRONEOU S BUT NOT PREJUDICIAL TO THE INTERESTS OF THE REVENUE CONFERR ING REVISIONAL JURISDICTION ON THE COMMISSIONER UNDER SECTION 263( 1), HAS FORCE. UNDER SECTION 263(1) TWO PRE-REQUISITES MUST BE PRE SENT BEFORE THE RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 16 COMMISSIONER CAN EXERCISE THE REVISIONAL JURISDICTI ON CONFERRED ON HIM. FIRST IS THAT THE ORDER PASSED BY THE ITO MUST BE ERRONEOUS. SECOND IS THAT THE ERROR MUST BE SUCH THAT IT IS PR EJUDICIAL TO THE INTERESTS OF THE REVENUE. IF THE ORDER IS ERRONEOUS BUT IT IS NOT PREJUDICIAL TO THE INTERESTS OF THE REVENUE, THE CO MMISSIONER CAN NOT EXERCISE THE REVISIONAL POWERS UNDER SECTION 263(1) OF THE ACT. THERE CANNOT BE ANY PREJUDICE TO THE REVENUE ON ACCOUNT O F THE ITO'S FAILURE TO FOLLOW THE PROCEDURE PRESCRIBED UNDER SECTION 14 4B, AND UNLESS THE PREJUDICE TO THE INTERESTS OF THE REVENUE IS SH OWN, THE JURISDICTION UNDER SECTION 263(1) CANNOT BE EXERCISED BY THE COM MISSIONER, EVEN THOUGH THE ORDER IS ERRONEOUS. THE ARGUMENT THAT SU CH AN ORDER MAY POSSIBLY BE CHALLENGED IN APPEAL BY THE ASSESSEE, A ND FOR THIS REASON IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, HAS NO MERIT. SECTION 263(1) CLEARLY CONTEMPLATES THAT THE ORDER OF ASSES SMENT ITSELF SHOULD BE PREJUDICIAL TO THE INTERESTS OF THE REVENUE AND THIS PREJUDICE HAS TO BE PROVED BY REFERENCE TO THE ASSESSMENT ORDER ONLY . IT CANNOT BE ARGUED THAT THERE IS SOME POSSIBILITY OF THE ASSESS MENT ORDER BEING CHALLENGED OR REVISED IN APPEAL AND, THEREFORE, ON ACCOUNT OF THIS CONTINGENCY, THE ORDER BECOMES PREJUDICIAL TO THE I NTERESTS OF THE REVENUE. [EMPHASIS SUPPLIED] RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 17 16. HONBLE APEX COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. [2000] 243 ITR 83 ORDER PRONOUNCED ON 10.02.2000 HEAD NOTE 'SECTION 263 OF THE INCOME-TAX ACT, 1961 - REVISION - OF ORDERS PREJUDICIAL TO INTERESTS OF REVENUE - ASSESSMENT YE AR 1983-84 - WHETHER IN ORDER TO INVOKE SECTION 263 ASSESSING OF FICER'S ORDER MUST BE ERRONEOUS AND ALSO PREJUDICIAL TO REVENUE AND IF ONE OF THEM IS ABSENT, I.E., IF ORDER OF INCOME-TAX OFFICER IS ERR ONEOUS BUT IS NOT PREJUDICIAL TO REVENUE OR IF IT IS NOT ERRONEOUS BU T IS PREJUDICIAL TO REVENUE, RECOURSE CANNOT BE HAD TO SECTION 263(1) - HELD, YES - WHETHER IF DUE TO AN ERRONEOUS ORDER OF ITO, REVENU E IS LOSING TAX LAWFULLY PAYABLE BY A PERSON, IT WILL CERTAINLY BE PREJUDICIAL TO INTERESTS OF REVENUE - HELD, YES - ASSESSEE-COMPANY ENTERED INTO AGREEMENT FOR SALE OF ESTATE OF RUBBER PLANTATION - AS PURCHASER COULD NOT PAY INSTALLMENTS AS SCHEDULED IN AGREEMENT, EXT ENSION OF TIME FOR PAYMENT OF INSTALLMENTS WAS GIVEN ON CONDITION OF V ENDEE PAYING DAMAGES FOR LOSS OF AGRICULTURAL INCOME AND ASSESSE E PASSED RESOLUTION TO THAT EFFECT - ASSESSEE SHOWED THIS RE CEIPT AS AGRICULTURAL INCOME - RESOLUTION PASSED BY ASSESSEE WAS NOT PLAC ED BEFORE ASSESSING OFFICER - ASSESSING OFFICER ACCEPTED ENTR Y IN STATEMENT OF ACCOUNT FILED BY ASSESSEE AND ACCEPTED SAME - COMMI SSIONER UNDER RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 18 SECTION 263 HELD THAT SAID AMOUNT WAS NOT CONNECTED WITH AGRICULTURAL ACTIVITIES AND WAS LIABLE TO BE TAXED UNDER HEAD 'INCOME FROM OTHER SOURCES' - WHETHER, WHERE ASSESSING OFFI CER HAD ACCEPTED ENTRY IN STATEMENT OF ACCOUNT FILED BY ASSESSEE, IN ABSENCE OF ANY SUPPORTING MATERIAL WITHOUT MAKING ANY ENQUIRY, EXE RCISE OF JURISDICTION BY COMMISSIONER UNDER SECTION 263(1) W AS JUSTIFIED - HELD, YES 17. HONBLE GUJARAT HIGH COURT IN THE CASE OF SMT. MINALBEN S. PARIKH [1995] 215 ITR 81 ORDER PRONOUNCED ON 17.10.1994 PARA 12 FROM THE AFORESAID, IT CAN WELL BE SAID THAT THE W ELL- SETTLED PRINCIPLE IN CONSIDERING THE QUESTION AS TO WHETHER AN ORDER IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE OR NOT IS TO ADDRESS ONESELF TO THE QUESTION WHETHER THE LEGITIMATE REVENUE DUE TO THE EXCHEQUER HAS BEEN REALISED OR NOT OR CAN BE REALISED OR NOT IF HIS ORDERS UNDER CONSIDERATION ARE ALLOWED TO STAND. FOR ARRIVING AT THIS CONCLUSION, IT BECOMES NECESSARY AND RELEVANT TO CONSIDER WHETHER THE INCOME IN RESPECT OF WHICH TAX IS TO BE REALISED, HAS BEEN SU BJECTED TO TAX OR NOT OR IF IT IS SUBJECTED TO TAX, WHETHER IT HAS BEEN S UBJECTED TO TAX AT A RATE AT WHICH IT COULD YIELD THE MAXIMUM REVENUE IN ACCORDANCE WITH LAW OR NOT. IF INCOME IN QUESTION HAS BEEN TAXED AN D LEGITIMATE RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 19 REVENUE DUE IN RESPECT OF THAT INCOME HAD BEEN REAL ISED, THOUGH AS A RESULT OF ERRONEOUS ORDER HAVING BEEN MADE IN THAT RESPECT, IN OUR OPINION, THE COMMISSIONER CANNOT EXERCISE POWERS FO R REVISING THE ORDER UNDER SECTION 263 MERELY ON THE BASIS THAT TH E ORDER UNDER CONSIDERATION IS ERRONEOUS. IF THE MATERIAL IN THAT REGARD IS AVAILABLE ON THE RECORD OF THE ASSESSEE CONCERNED, THE COMMIS SIONER CANNOT EXERCISE HIS POWERS BY IGNORING THAT MATERIAL WHICH LINKS THE INCOME CONCERNED WITH THE TAX REALIZATION MADE THEREON. TH E TWO QUESTIONS ARE INTER-LINKED AND THE AUTHORITY EXERCISING POWER S UNDER SECTION 263 IS UNDER AN OBLIGATION TO CONSIDER THE ENTIRE M ATERIAL ABOUT THE EXISTENCE OF INCOME AND THE TAX WHICH IS REALIZABLE IN ACCORDANCE WITH LAW AND FURTHER WHAT TAX HAS IN FACT BEEN REAL ISED UNDER THE ALLEGED ASSESSMENT ORDERS.[EMPHASIS SUPPLIED] 18. HONBLE KARNATAKA HIGH COURT IN THE CASE OF V. G. KRISHNAMURTHY [1985] 20 TAXMAN 65 ORDER PRONOUNCED ON 19.03.1984 PARA 10 SECTION 263 CAN BE INVOKED BY THE COMMISSIONER ONLY WHEN HE PRIMA FACIE FINDS THAT TH E ORDER MADE BY THE ITO WAS ERRONEOUS AND WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. BOTH THESE FACTORS MUST SIMULTANEOUSLY EXI ST. AN ORDER THAT IS ERRONEOUS MUST ALSO HAVE RESULTED IN LOSS OF REV ENUE OR PREJUDICIAL RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 20 TO THE INTERESTS OF THE REVENUE. UNLESS BOTH THESE FACTORS CO-EXIST OR EXIST SIMULTANEOUSLY, THE COMMISSIONER CANNOT INVOK E OR RESORT TO SECTION 263. IT CANNOT BE EXERCISED TO CORRECT EVER Y CONCEIVABLE ERROR COMMITTED BY AN ITO. BEFORE THE SUOMOTO POWER OF RE VISION CAN BE EXERCISED, THE COMMISSIONER MUST AT LEAST PRIMA FAC IE FIND BOTH THE REQUIREMENTS OF SECTION 263, NAMELY, THAT THE ORDER SOUGHT TO BE REVISED IS PRIMA FACIE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THE OTHER FACTOR WAS ABSENT, THE COMMISSIONER CANNOT EXERCISE THE SUOMOTO POWER OF REVISION UNDER SECTION 263. [EMPHASIS SUPPLIED] 19. AT THIS STAGE, BEFORE CONSIDERING THE MULTI-FOL D CONTENTIONS OF THE LEARNED REPRESENTATIVES, WE DEEM IT PERTINENT T O TAKE NOTE OF THE FUNDAMENTAL TESTS PROPOUNDED IN VARIOUS JUDGMENTS R ELEVANT FOR JUDGING THE ACTION OF THE COMMISSIONER OF INCOME-TA X TAKEN UNDER SECTION 263. THE INCOME-TAX APPELLATE TRIBUNAL IN T HE CASE OF MRS. KHAIIZA S. OOMERBHOY V. ITO [2006] 101 TIJ 1095 (MUM), ANALYSED IN DETAIL VARIOUS AUTHORITATIVE PRONOUNCEMENTS INCLUDI NG THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. V. CIT [2000] 243 ITR 83 (SE) AND HAS PROPOUNDED THE FOLLOWING RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 21 BROADER PRINCIPLE TO JUDGE THE ACTION OF THE COMMIS SIONER OF INCOME-TAX TAKEN UNDER SECTION 263. (I) THE COMMISSIONER OF INCOME-TAX MUST RECORD SATISFACTION THAT THE ORDER OF THE ASSESSING OFF ICER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. BOTH THE CONDITIONS MUST BE FULFILLED. (II) SECTION 263 CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE ASSESSING OFFICER AND IT WAS ONLY WHEN AN ORDER IS ERRONE OUS 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 OF MIND, SUCH ORDER WILL FALL UNDER THE CATEGORY OF ERRONEOUS O RDER. (V) EVERY LOSS OF REVENUE CANNOT BE TREATED AS PRE JUDICIAL TO THE INTERESTS OF THE REVENUE AND IF THE ASSESSING OFFICER HAS ADOPTED ONE OF THE COURSES PERMISSIBLE UNDER L AW OR WHERE TWO VIEWS ARE POSSIBLE AND THE ASSESSING OF FICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER OF IN COME-TAX DOES NOT AGREE. IF CANNOT BE TREATED AS ERRONEOUS ORDER, UNLESS THE VIEW TAKEN BY THE ASSESSING OFFICER IS UNSUSTA INABLE UNDER LAW . RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 22 (VI) IF WHILE MAKING THE ASSESSMENT, THE ASSESSING OFFICER EXAMINES THE ACCOUNTS, MAKES ENQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DE TERMINE THE INCOME, THE COMMISSIONER OF INCOME-TAX, WHILE EXE RCISING HIS POWER UNDER SECTION 263 IS NOT PERMITTED TO SUBSTITUTE HIS ESTIMATE OF INCOME IN PLACE OF THE INCOME ESTIMATED BY THE ASSESSING OFFICER. (VII) THE ASSESSING OFFICER EXERCISES QUASI-JUDICI AL POWER VESTED IN HIM AND IF HE EXERCISES SUCH POWER IN ACCORDANCE WITH LAW AND ARRIVE AT A CONCLUSION, S UCH CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS SIMPLY BECAUSE THE COMMISSIONER OF INCOME-TAX DOES NOT F EEL SATISFIED WITH THE CONCLUSION. (VIII) THE COMMISSIONER OF INCOME-TAX, BEFORE EXER CISING HIS JURISDICTION UNDER SECTION 263 MUST HAVE MATERIAL ON RECORD TO ARRIVE AT A SATISFACTION. (IX) IF THE ASSESSING OFFICER HAS MADE ENQUIRIES DURING THE COURSE ASSESSMENT PROCEEDINGS ON THE RELEVANT ISSU ES AND THE ASSESSEE HAS DETAILED EXPLANATION BY A LETTER I N WRITING AND THE ASSESSING ALLOWS THE CLAIM ON BEING SATISFIE D WITH THE EXPLANATION OF THE ASSESSEE, THE DECISION OF THE ASSESSING OFFICER CANNOT BE HELD TO BE SIMPLY BECAUSE IN HIS ORDER HE DOES NOT MAKE AN ELABORATE DISCUSSION IN THAT REGA RD. RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 23 20. IN THE LIGHT OF THE ABOVE DECISION AND THE RA TIOS LAID DOWN THEREIN AND EXAMINING THE FACTS OF THE CASE WE FIN D THAT THE LD. A.O VIDE HIS NOTICE DATED 3.10.2016 ISSUED U/S 143( 2) OF THE ACT ENCLOSED A ANNEXURE AND THROUGH POINT NO.13, THE AS SESSEE WAS REQUIRED TO EXPLAIN THE SOURCE OF CASH DEPOSIT IN H IS SAVING BANK ACCOUNT. IN REPLY FILED ON 5.12.2016 THE ASSESSEE H AS GIVEN COMPLETE DETAILS OF THE TRANSACTION IN PARA 13 & 14 IN HIS REPLY AND THE SAME IS REPRODUCED BELOW:- 13. AS REGARDS CASH DEPOSITS IN TO SAVING BANK ACCOUNT WITH NARMADA MALWA GRAMIR BANK, DEWAS, IT IS HUMBLY SUBMITTED TH AT THE ASSESSEE HAS DEPOSITED RS.19,05,000/- IN SUCH ACCOUNT OUT OF AMO UNT RECEIVED IN FAMILY PARTITION FROM FATHER. THE FATHER OF THE ASS ESSEE SOLD ANCESTRAL AGRICULTURAL LAND SITUATED A VILLAGE JASODGARH, TEH SIL AND DISTRICT-DEWAS SURVEY NO. 414 ADMEASURING ABOUT 5.66 HECTARE INHER ITED BY HIM. HE HAS SOLD LAND FOR RS. 1,39,40,000/- OUT OF WHICH HE DISTRIBUTED RS. 19,15,000/- AMONGST HIS SEVEN SONS. AS SUCH EACH SON RECEIVED SHARE IN ANCESTRAL PROPERTY AT RS.19,15,000/-. THE ASSESSEE HA: DEPOSI TED RS.19,05,000/- IN THE SAVING ACCOUNT DURING THE YEAR UNDER ASSESSMEN1 WE ARE ENCLOSING HEREWITH COPY OF FAMILY SETTLEMENT (PARTITION) MEMO RANDUM ALONG WITH COPY OF SALE AGREEMENT OF AGRICULTURAL LAND FOR YOU R KIND PERUSAL. IN VIEW OF THE ABOVE SUBMISSIONS, THE ASSESSEE HAS PROPER SOURCES OF CASH DEPOSITS INTO BANK ACCOUNT THE SAME MAY PLEASE BE ACCEPTED. 14. THE AGRICULTURAL LAND SOLD BY THE FATHER OF THE AS SESSEE IS SITUATED AT VILLAGE JASODGARH, TEHSIL AND DISTRICT-DEWAS. THE R OAD DISTANCE OF THE RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 24 JASODGARH FRET DEWAS IS ABOUT 15 KILOMETERS. THE LI MIT OF DEWAS NAGAR PALIK NIGAM IS UP TO VILLAGE- BILAWALI AND THE ROAD DISTANCE OF BILAWALI FROM DEWAS IS ABOUT 5 KILOMETERS. AS SUCH THE 'AGRI CULTURAL LAND IS SITUATED BEYOND 8 KILOMETERS FROM THE LIMIT OF LOC AL MUNICIPAL CORPORATION. AS SUCH THE LAND IS NOT A CAPITAL ASSE TS WITH THE PROVISIONS OF SECTION 2 (14) (III) OF THE INCOME TAX ACT,1961. IT IS ALSO SUBMITTED THAT THE SALE DEED OF AGRICULTURAL LAND IS PRESENTLY NOT AVAILABLE WITH THE ASSESSE THE FATHER OF 'THE ASSESSEE HAD ALSO EXPIRE D ON 19/02/2016. WE ARE ENCLOSING HEREWITH DEATH CERTIFICATE OF FATHER FOR YOUR KIND PERUSAL. THE FAMILY OF THE ASSESS IS PURELY AN AGRICULTURAL FAMILY AND DOES NOT ENGAGE IN ANY BUSINESS OR PROFESSION. IT IS HUMBLY REQUESTED THAT THE SALE AGREEMENT MAY PLEASE BE ACCEPTED. 21. ALONG WITH THIS REPLY THE ASSESSEE ENCLOSED COPY OF BANK PASS BOOK, COPY OF AGREEMENT OF SALE OF AGRICULTURE LAND , COPY OF MEMORANDUM OF FAMILY SETTLEMENT AND COPY OF DEATH C ERTIFICATE OF FATHER RAMCHARAN DAS. ON THE BASIS OF ABOVE DETAIL S THE EXPLANATION OF THE ASSESSEE WERE ACCEPTED BY THE LD . A.O AND THE ALLEGED AMOUNT BEING THE AMOUNT RECEIVED ON FAMILY PARTITION, THE TRANSACTION WAS TREATED AS EXPLAINED BY THE LD. A. O. 22. ON GOING THROUGH THE ABOVE DETAILS WE FIND T HAT ALL NECESSARY EVIDENCES WHICH COULD EXPLAIN THE SOURCE OF CASH DE POSITS IN THE BANK ACCOUNT BY THE RESPECTIVE ASSESSEE(S) AT RS.19 ,05,000/- IS ESTABLISHED AND IN THE FAMILY PARTITION DEED THE NA ME OF THREE RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 25 ASSESSEE(S) NAMED S/SHRI RAM SWARROP BAIRAGI, SRIRA M VAISHNAV AND SHAILENDRA VASHAV WHO ARE IN APPEAL BEFORE US A RE APPEARING. COPY OF SALE DEED DATED 05.01.2008 IS ALSO AVAILABL E. FAMILY PARTITION AGREEMENT IS DATED 21.05.2008. THE FINANC IAL YEAR IN QUESTION IS 2008-09. CASH IS DEPOSITED ON 22.5.200 8, WHICH IS A DAY AFTER THE DATE OF FAMILY PARTITION AGREEMENT. THE NEXUS OF CASH DEPOSIT IS PROVED WITH COPY OF SALE DEED, PARTITION DEED AND BANK PASS BOOK. WE THEREFORE IN THE GIVEN FACTS AND CIR CUMSTANCES OF THE CASE ARE OF THE CONSIDERED VIEW THAT SPECIFIC INFOR MATION WAS CALLED BY LD. A.O ABOUT THE ALLEGED CASH DEPOSITS AND THE ASSESSEE HAS SATISFIED THE LD. A.O WITH COMPLETE DETAILS GIVING THE SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNT. THEREFORE IT IS NEITH ER A CASE OF NO ENQUIRY OR INADEQUATE ENQUIRY. THUS THE ORDER OF LD . A.O U/S 143(3) R.W.S. 148 OF THE ACT DATED 12.12.2016 FRAME D IN THE CASE OF S/SHRI RAM SWAROOP BAIRAGI, SHRIRAM VAISHNAV AND SH AILENDRA VAISHNAV ARE NEITHER ERRONEOUS NOR PREJUDICIAL TO T HE INTEREST OF REVENUE. THEREFORE IN OUR CONSIDERED VIEW LD. PCIT HAS WRONGLY ASSUMED JURISDICTION U/S 263 OF THE ACT AND THE IMP UGNED ORDER DESERVES TO BE QUASHED. WE THEREFORE ALLOW RESPECT IVE GROUND RAISED IN ITA NOS.633, 636 & 639/IND/2019 AND RESTO RE THE ORDER RAMSWAROOP BAIRAGI & OTHERS ITA NO.633, 636 & 639/IND/2019 26 OF LD. A.O U/S 143(3) R.W.S. 148 OF THE ACT DATED 1 2.12.2016 IN THE CASE OF ALL THE THREE ASSESSEE(S). 23. IN THE RESULT APPEALS OF THE ASSESSEE(S) ARE AL LOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 24.11.20 20. SD/- SD/- ( KUL BHARAT) (MANI SH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 24 NOVEMBER, 2020 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE