Shri Bhanwar Singh, Ujjain V. PCIT Ujjain, Ujjain

ITA 659/Ind/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9424 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 30-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S MANTRI
• Assessee Lawyers: S S DESHPANDE
• Keywords: Capital asset; Opportunity of being heard; Period of limitation; Prejudicial to interest; Set aside
• Section: 143(3); 142(1); 143(2); 13; 119; 148; 263; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER VIRTUAL HEARING ITA NO.659/IND/2019 ASSESSMENT YEAR:2015-16 SHRI BHANWAR SINGH DEWAS / VS. PR. CIT, UJJAIN (APPELLANT) (R ESPONDENT ) P.A. NO. GYRPS7926C APPELLANT BY SHRI S.S. DESHPANDE, AR REVENUE BY SHRI S. S . MANTRI, CIT - DR DATE OF HEARING: 28.07.2021 DATE OF PRONOUNCEMENT: 29.07.2021 / O R D E R PER MANISH BORAD, A.M: BY WAY OF THIS APPEAL, THE APPELLANT HAS CHALLENGED THE ASSUMPTION OF JURISDICTION U/S 263 OF THE INCOME TA X ACT 1961( HEREINAFTER REFERRED TO AS THE ACT FOR SHORT) BY LD. PR. CIT, UJJAIN VIDE ORDER DATED 27.03.2019.THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- BHAWAR SINGH 2 1. THE ORDER PASSED BY THE LD. PR. CIT IS ILLEGAL AND BA D IN LAW AND HENCE BE SET ASIDE. 2. THE LD. PR. CIT HAS ERRED IN PASSING THE ORDER U/S 263 ON THE GROUND THAT THE ORDER PASSED BY THE LD. AO IS ERRONEOU S AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 3. LD. PR. CIT HAS PASSED THE ORDER WITHOUT GIVING PROPE R OPPORTUNITY TO THE ASSESSEE. 4. THE ASSESSMENT WAS REOPENED ON THE GROUND OF AIR INFO RMATION THAT THE ASSESSEE HAD DEPOSITED IN BANK THE AMOUNTS I N CASH OF MORE THAN RS.10,00,000/-. THE PAPERS ABOUT THE AGRE EMENT TO SALE OF ANCESTRAL AGRICULTURAL LAND WAS FILED. AFTER VERIFICATION AND DETAILED SCRUTINY THE LD. AO FRAMED THE ASSESSMENT AND A S SUCH THE SAME CANNOT BE TREATED AS ERRONEOUS AND PREJUDICI AL AND AS SUCH ACTION U/S 263 IS BAD IN LAW. 2. BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE R ECORDS ARE THAT THE ASSESSEE IS A FARMER AND ENGAGED IN AGRICULTURAL AC TIVITIES. BASED ON INFORMATION RECEIVED FROM ALL INDIA REPORT (AIR) THAT CASH SUM EXCEEDING RS.10,00,000/- DEPOSITED IN THE SAVING BA NK ACCOUNT, NOTICE U/S 148 OF THE ACT WAS SERVED UPON THE ASSES SEE ON 23.03.2016. IN COMPLIANCE RETURN WAS FILED SHOWING INCOME OF RS.8,390/- AND AGRICULTURAL INCOME AT RS.25,000/-. DETAILS CALLED FOR BY THE LD. AO WERE DULY SUPPLIED TO THE SATISFACTION OF THE LD. AO WHO ACCEPTED THE RETURNE D INCOME AND ASSESSED THE INCOME AT RS.8,390/- U/S 143(3) R.W.S. 148 OF THE ACT ON 12.12.2016. BHAWAR SINGH 3 3. SUBSEQUENTLY, LD. PR. CIT, UJJAIN INVOKED THE PR OVISIONS OF SECTION 263 OF THE ACT AND ISSUED FOLLOWING SHOW CA USE NOTICE TO THE ASSESSEE(RELEVANT EXTRACT IS REPRODUCED BELOW): IN THIS CASE, NOTICE U/S 148 WAS ISSUED ON 23.03.30 16. IN COMPLIANCE THE ASSESSEE FILED RETURN OF INCOME ON 27 .09.2016 DECLARING TOTAL INCOME OF RS.8,390/-. THE ASSESSMENT WAS COMPLETED U/S 143(3) ON 12.12.2016 BY THE AO (ITO-1, DEWAS) A T THE RETURNED INCOME WHICH IS CONSIDERED ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE FOR THE FOLLOWING REASONS:- ON PERUSAL AND EXAMINATION OF RECORDS, IT IS NOTICED T HAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS DEPOSITED C ASH AMOUNTING TO RS.32,00,000/- IN THE SAVING BANK ACCO UNT. HOWEVER, ONGOING THROUGH THE RECORD, IT IS FURTHER NOTICED TH AT- (1) THE ASSESSEE CONTENDED THAT SUCH CASH DEPOSITS WERE O UT OF SALE PROCEEDS OF AGRICULTURAL LAND SITUATED AT TIGRIYA SAN CHA FOR A CONSIDERATION OF RS.35,51,000/-. THE ASSESSEE FILED C OPY OF SALE AGREEMENT BEFORE THE AO. (2) THE SALE AGREEMENT WAS PREPARED ON THE STAMP PAPER OF RS.100/- AND NOT NOTARIZED. (3) THE ASSESSEE HAS NOT FURNISHED COPY OF REGISTERED SAL E DEED OF SUCH LAND AFTER A LAPSE OF NEARLY 8 YEARS. (4) THE ASSESSING OFFICER HAS NOT EXAMINED ON OATH TO SHR I SAI DAS,N S/O. SHRI KALUSINGH KAKOTA WITH REGARD TO HIS CAPACITY TO PURCHASE SUCH LAND. IN VIEW OF THE ABOVE, THE ASSESSEE HAS NOT PROPERLY EXPLAINED THE CASH DEPOSITED IN THE SAVING BANK ACCOUNT OF RS.32,0 0,000/-. IN THE LIGHT OF ENTIRE FACTS DISCUSSED ABOVE, I AM O F THE CONSIDERED VIEW THAT THE ASSESSMENT ORDER PASSED U/S 143(3)/147 ON 12.12.2016 FOR THE A>Y. 2009-10 IN YOUR CASE IS ERR ONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE, WHICH RE QUIRES TO BE REVISED U/S 263. 4. DURING THE COURSE OF PROCEEDINGS U/S 263 OF THE ACT ASSESSEE COULD NOT FILE ANY NEW EVIDENCE EXCEPT THOSE FILED BEFORE LD. AO. THE BHAWAR SINGH 4 IMPUGNED SHOW CAUSE NOTICE WAS CENTERED TOWARDS A T RANSACTIONS OF SALE PROCEEDS OF AGRICULTURAL LAND SITUATED AT T IGRIYA SANCHA OWNED BY THE ASSESSEE. THE ASSESSEE FILED THE COPY OF SALE AGRICULTURAL BEFORE THE LD. AO. HOWEVER, THE COPY O F REGISTERED SALE DEED WAS NOT FILED BEFORE LD. AO AND ALSO NOT BEFOR E LD. PR. CIT. FURTHER LD. PR. CIT ALSO OBSERVED THAT LD. AO HAD N OT EXAMINED MR. SAI DAS ON OATH WHO HAD PURCHASED THE LAND. ACCORDI NGLY, THE ORDER OF THE LD. AO DATED 12.12.2016 WAS HELD TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AND WAS SET ASIDE TO THE FILE OF LD. AO WITH DIRECTION TO EXAMINE THE ISSUE AFTER AF FORDING PROPER OPPORTUNITY TO THE ASSESSEE. 5. ASSESSEE IS NOW IN APPEAL BEFORE THE TRIBUNAL CH ALLENGING THE IMPUGNED ORDER U/S 263 OF THE ACT. 6. LD. COUNSEL FOR THE ASSESSEE REFERRING TO THE PA PER BOOK RUNNING FROM PAGES 1 TO 25 SUBMITTED THAT THE ISSUE OF CASH DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE HAD B EEN THOROUGHLY EXAMINED BY THE LD. AO AND IN THE ASSESSMENT ORDER ITSELF LD. AO HAS OBSERVED THAT DETAILS WITH REGARD TO SOURCE OF AMOUNT DEPOSITED IN CASH WERE FILED ALONG WITH EVIDENCE WHICH ARE KE PT ON RECORD AND BHAWAR SINGH 5 AFTER DISCUSSING THE ISSUE, LD. AO WAS SATISFIED AN D ACCEPTED THE RETURNED INCOME SHOWN BY THE ASSESSEE. 7. LD. COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT LAND IN QUESTION IS AN AGRICULTURAL LAND AND THE SOURCE OF CASH DEPO SITED IN BANK WAS THE SALE CONSIDERATION OF THE AGRICULTURAL LAND OWNED AT VILLAGE- TIGRIYA SANCHA DIST. DEWAS. LD. COUNSEL FOR THE ASS ESSEE SUBMITTED THAT SIMILAR TYPE OF FACTS AND THE ISSUE OF ASSUMPT ION OF JURISDICTION U/S 263 OF THE ACT CAME UP BEFORE THIS TRIBUNAL IN THE CASE OF SHRI RAM SWAROOP BAIRAGIAND OTHERS IN ITANO.633/IND/2019 & OTHERS DATED 24.11.2020 WHEREIN TRIBUNAL HAS DECIDED IN FAVOUR OF THE ASSESSEE AFTER EXAMINING THE FACTS THAT TRANSACTION OF SALE OF AGRICULTURAL LAND WAS DULY EXAMINED BY THE LD. AO. 8. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEM ENTLY ARGUED SUPPORTING THE ORDER OF LD. PCIT. 9. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. THE ACTION OF LD. PR. CIT ASSUMING JURIS DICTION U/S 263 OF THE ACT IS IN CHALLENGE BEFORE US. SHOW CAUSE NO TICE U/S 263 OF THE ACT DATED 12.03.2019 WAS SERVED ON THE ASSESSEE . THE ONLY ISSUE RAISED IN THE SHOW CAUSE NOTICE WAS WITH REGA RD TO THE SOURCE OF CASH AT RS.32,00,000/- DEPOSITED IN THE SAVING B ANK ACCOUNT BHAWAR SINGH 6 HELD BY THE ASSESSEE. 10. LD. PR. CIT WAS NOT SATISFIED WITH THE FINDING OF THE LD. AO ACCEPTING THE SUBMISSIONS MADE BY THE ASSESSE WITH REGARD TO SOURCE OF CASH RECEIVED FROM SALE OF AGRICULTURAL L AND. 11. WE ALSO NOTE THAT LD. PR. CIT ASSERTED ON THE F ACT THAT ASSESSEE HAD NOT SUBMITTED THE COPY OF REGISTERED SALE DEED AND MERELY FILING OF AGREEMENT TO SALE WAS NOT A SUFFICIENT EVIDENCE TO PROVE THAT ASSESSEE HAD SOLD AGRICULTURAL LAND. 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 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; BHAWAR SINGH 7 (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 (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 ORDER OR INJUNCTION OF ANY COURT SHALL BE EXCLUDED. BHAWAR SINGH 8 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 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 BHAWAR SINGH 9 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 ORDER. 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 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 BHAWAR SINGH 10 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] 16. HONBLE APEX COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. [2000] 243 ITR 83 ORDER PRONOUNCED ON 10.02.2000 HEAD NOTE BHAWAR SINGH 11 '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 SECTION 263 HELD THAT SAID AMOUNT WAS NOT CONNECTED WITH AGRICULTURAL ACTIVITIES AND WAS LIABLE TO BE TAXED UNDER HEAD 'INCOME BHAWAR SINGH 12 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 REVENUE DUE IN RESPECT OF THAT INCOME HAD BEEN REAL ISED, THOUGH AS A BHAWAR SINGH 13 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 IN TERESTS 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 BHAWAR SINGH 14 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 (SC) AND HAS PROPOUNDED THE FOLLOWING BHAWAR SINGH 15 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 SA TISFACTION THAT THE ORDER OF THE ASSESSING OFFICER 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 O FFICER AND IT WAS ONLY WHEN AN ORDER IS ERRONEOUS THAT THE SECTIO N WILL BE ATTRACTED. (III) AN INCORRECT ASSUMPTION OF FACTS OR AN INCOR RECT APPLICATION OF LAW WILL SUFFICE THE REQUIREMENT OF ORDER BEI NG ERRONEOUS. (IV) IF THE ORDER IS PASSED WITHOUT APPLICATION OF 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 ASSESSING OFFICER HAS ADOPTED ONE OF THE COURSES PERMISSIBLE UNDER L AW OR WHERE TWO VIEWS ARE POSSIBLE AND THE ASSESSING OFFICER H AS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER OF INCOME-TAX DOES N OT AGREE. IF CANNOT BE TREATED AS ERRONEOUS ORDER, UNLESS THE VIEW TAK EN BY THE ASSESSING OFFICER IS UNSUSTAINABLE UNDER LAW . (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 I NCOME 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, SUCH CONCLUS ION CANNOT BE TERMED TO BE ERRONEOUS SIMPLY BECAUSE THE COMMISSI ONER OF INCOME-TAX DOES NOT FEEL 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 SATI SFIED 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 REGARD. BHAWAR SINGH 16 20. IN THE LIGHT OF THE ABOVE DECISIONS AND RATIO L AID DOWN BY HON'BLE COURTS AND EXAMINING THE FACTS OF THE CASE WE FIND THAT THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY BY I SSUING NOTICE U/S 148 OF THE ACT, SPECIFICALLY WITH REGARD TO CASH DE POSITED IN BANK ACCOUNT. IT IS EVIDENT THAT THE ASSESSEE IS AN AGRI CULTURISTS AND NO OTHER SOURCE OF INCOME EXCEPT AGRICULTURAL OR PETTY INCOME FROM BANK INTEREST IS EARNED BY THE ASSESSEE. 21. DURING THE COURSE OF ASSESSMENT PROCEEDINGS LD. AO ISSUED NOTICE U/S 143(2) & 142(1) OF THE ACT AND ALSO ISSU ED QUESTIONNAIRE AND CALLING VARIOUS INFORMATION RUNNING FROM POINT NO.1 TO 14 PLACED AT PAGE 12 OF THE PAPER BOOK AND IN THIS QU ESTIONNAIRE AT POINT NO.6, ASSESSEE WAS ASKED TO FILE THE DETAILS OF ALL THE BANK ACCOUNT AND FURNISH COPY OF STATEMENTS AND AT POIN T NO.13 OF THIS QUESTIONNAIRE ASSESSEE WAS ASKED TO EXPLAIN THE SOU RCE OF CASH DEPOSITED IN HIS SAVING BANK ACCOUNT. SO THERE WAS A SPECIFIC QUERY BY THE LD. AO ASKING THE ASSESSEE TO FURNISH THE SO URCE OF CASH DEPOSITED IN THE BANK ACCOUNT. THE INFORMATION SOUG HT BY THE LD. AO WERE DULY SUPPLIED BY THE ASSESSEE AND IN LETTER DATED 6 TH DECEMBER 2016 AT PARA 5 COMPLETE DETAILS OF CASH DE POSITED OF BHAWAR SINGH 17 RS.32,00,000/- WAS FURNISHED AND FOR REFERENCE THE SAME IS ABSTRACTED BELOW: AS REGARD CASH DEPOSIT IN TO SAVING BANK ACCOUNT WITH STATE BANK OF INDIA BANK POINT, DEWAS BRANCH, IT IS HUMBLY SUBMIT TED THAT THE ASSESSEE HAS DEPOSITED RS.32,00,000/- IN SUCH ACCOUN T OUT OF AMOUNT SALE PROCEEDS OF ANCESTRAL AGRICULTURAL LAND SITUAT ED AT S.NO.625,626,638 AND 639 PATWARI HALKA NO.11, VILLAGE -TIGRIYA SANCHA DIST. DEWAS. THE ASSESSEE HAS SOLD SUCH LAND F OR RS.35,51,000/-. THE ASSESSEE HAS RECEIVED A SUM OF R S.8,51,000/- IN TOKEN ON 11.08.2008 AND BALANCE RS.27,00,000/- ON 15 .12.2008. THE ASSESSEE AFTER RECEIVING THE TOTAL SALE CONSIDERATI ON HANDED OVER THE POSSESSION OF LAND THE PURCHASERS. HE HAS ALSO EXECU TED POWER OF ATTORNEY IN FAVOUR OF THE PURCHASER FOR EXECUTING S ALE DEED OF THE LAND. THE COPY OF SALE DEED HAS BEEN EXECUTED PURCHASERS. TH OUGH THE POWER OF ATTORNEY HOLDER AND AS PRESENTLY NOT AVAILABLE WIT H THE ASSESSEE. WE ARE ENCLOSING HEREWITH COPY OF SALE AGREEMENT OF LA ND FOR YOUR 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. 22. SO WE FIND THAT THE ASSESSEE HAD GIVEN SPECIFIC REPLY ALONG WITH COPY OF AGREEMENT AND THE DETAILS OF TRANSACTIONS W HICH TOOK PLACE IN THE COURSE OF SALE OF AGRICULTURAL LAND HELD BY THE ASSESSEE AT VILLAGE-TIGRIYA SANCHA DIST. DEWAS. FURTHER LD. AO ON PERUSAL OF THE BANK STATEMENT, AGREEMENT OF SALE OF AGRICULTUR AL LAND AND OTHER SUBMISSIONS AND AFTER MAKING DUE APPLICATION OF MIND ACCEPTED THE SUBMISSIONS MADE BY THE ASSESSEE AND A SSESSED THE INCOME AT RS.8,390/- VIDE ORDER DATED 12.12.2016 FR AMED U/S 143(2) R.W.S. 148 OF THE ACT. BHAWAR SINGH 18 23. WE FURTHER FIND THAT UNDER THE SIMILAR SET OF F ACTS AND CIRCUMSTANCES, IN THE CASE OF SHRI RAM SWAROOP BAIRAGI (SUPRA) AFTER DEALING WITH THE PROVISIONS OF SECTION 263 OF THE ACT AND OTHER SETTLED JUDICIAL PRECEDENTS, THIS TRIBUNAL QUASHED THE ORDER OF U/S 263 OF THE ACT AND THE RELEVANT ABSTRACT OF THE FIN DING IS REPRODUCED BELOW: 20. IN THE LIGHT OF THE ABOVE DECISION AND THE RA TIOS LAID DOWN THEREIN AND EXAMINING THE FACTS OF THE CASE WE FIND THAT T HE 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 ASSESSEE WAS REQUIRED TO EXPLAIN THE SOURCE OF CASH DEPOSIT IN HIS SAVING BANK ACCOUNT. IN REPL Y FILED ON 5.12.2016 THE ASSESSEE HAS GIVEN COMPLETE DETAILS OF THE TRANSACT ION 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 ASSESSEE S OLD ANCESTRAL AGRICULTURAL LAND SITUATED A VILLAGE JASODGARH, TEHSIL AND DISTR ICT-DEWAS SURVEY NO. 414 ADMEASURING ABOUT 5.66 HECTARE INHERITED 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: DEPOSITED RS.19,05 ,000/- IN THE SAVING ACCOUNT DURING THE YEAR UNDER ASSESSMEN1 WE ARE ENC LOSING HEREWITH COPY OF FAMILY SETTLEMENT (PARTITION) MEMORANDUM ALONG WITH COPY OF SALE AGREEMENT OF AGRICULTURAL LAND FOR YOUR KIND PERUSA L. IN VIEW OF THE ABOVE SUBMISSIONS, THE ASSESSEE HAS PROPER SOURCES OF CASH DEPOSITS INTO BANK ACCOUNT THE SAME MAY PLEASE BE A CCEPTED. 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 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 ASSETS WITH THE P ROVISIONS OF SECTION 2 (14) (III) OF THE INCOME TAX ACT,1961. IT IS ALSO S UBMITTED THAT THE SALE DEED OF AGRICULTURAL LAND IS PRESENTLY NOT AVAILABLE WIT H THE ASSESSE THE FATHER OF 'THE ASSESSEE HAD ALSO EXPIRED ON 19/02/2016. WE ARE ENCLOSING BHAWAR SINGH 19 HEREWITH DEATH CERTIFICATE OF FATHER FOR YOUR KIND PERUSAL. THE FAMILY OF THE ASSESS IS PURELY AN AGRICULTURAL FAMILY AND DOES NOT ENGAG E IN ANY BUSINESS OR PROFESSION. IT IS HUMBLY REQUESTED THA T 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 CERTIFICATE OF FATHER RAMCHARAN DAS. ON THE BASIS OF ABOVE DETAILS THE EXPLANATION OF TH E ASSESSEE WERE ACCEPTED BY THE LD. A.O AND THE ALLEGED AMOUNT BEIN G THE AMOUNT RECEIVED ON FAMILY PARTITION, THE TRANSACTION WAS TREATED A S 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.19,05,0 00/- IS ESTABLISHED AND IN THE FAMILY PARTITION DEED THE NAME OF THREE ASSE SSEE(S) NAMED S/SHRI RAM SWARROP BAIRAGI, SRIRAM VAISHNAV AND SHAILENDRA VASHAV WHO ARE IN APPEAL BEFORE US ARE APPEARING. COPY OF SALE DE ED DATED 05.01.2008 IS ALSO AVAILABLE. FAMILY PARTITION AGREEMENT IS DATED 21.05.2008. THE FINANCIAL YEAR IN QUESTION IS 2008-09. CASH IS DEP OSITED ON 22.5.2008, WHICH IS A DAY AFTER THE DATE OF FAMILY PARTITION A GREEMENT. THE NEXUS OF CASH DEPOSIT IS PROVED WITH COPY OF SALE DEED, PART ITION DEED AND BANK PASS BOOK. WE THEREFORE IN THE GIVEN FACTS AND CIR CUMSTANCES OF THE CASE ARE OF THE CONSIDERED VIEW THAT SPECIFIC INFORMATIO N WAS CALLED BY LD. A.O ABOUT THE ALLEGED CASH DEPOSITS AND THE ASSESSEE HA S SATISFIED THE LD. A.O WITH COMPLETE DETAILS GIVING THE SOURCE OF CAS H DEPOSIT IN THE BANK ACCOUNT. THEREFORE IT IS NEITHER A CASE OF NO ENQU IRY 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 FRAMED IN THE CASE OF S/SHRI RAM SWAROOP BAIRAGI, SHRIRAM VAISHNAV AND SHAILENDRA VAISHNAV ARE NEITHER ERRONE OUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE. THEREFORE IN OUR CONSIDER ED VIEW LD. PCIT HAS WRONGLY ASSUMED JURISDICTION U/S 263 OF THE ACT AND THE IMPUGNED ORDER DESERVES TO BE QUASHED. WE THEREFORE ALLOW RESPECT IVE GROUND RAISED IN ITA NOS.633, 636 & 639/IND/2019 AND RESTORE THE ORD ER OF LD. A.O U/S 143(3) R.W.S. 148 OF THE ACT DATED 12.12.2016 IN TH E CASE OF ALL THE THREE ASSESSEE(S). 24. WE, THEREFORE, IN THE GIVEN FACTS AND CIRCUMSTA NCES OF THE CASE AND IN THE LIGHT OF THE SETTLED JUDICIAL PRECEDENTS FOLLOWED BY US IN THE CASE OF RAM SWAROOP BAIRAGI & OTHERS (SUPRA ) AND HAVING DEALT SIMILAR SET OF FACTS, ARE OF THE CONSIDERED VIEW TH AT NEXUS OF CASH BHAWAR SINGH 20 DEPOSITED IN THE BANK ACCOUNT IS ON ACCOUNT OF SALE OF AGRICULTURAL LAND MADE BY THE ASSESSEE DURING THE YEAR SUPPORTED BY COPY OF AGREEMENT TO SALE AND ALSO FIND THAT THE LD. AO HAS MADE DUE APPLICATION OF MIND AND CONDUCTED NECESSARY ENQUIRY TO EXAMINE THE ISSUE OF CASH DEPOSITED IN THE BANK AND THUS TH E ASSESSMENT ORDER FRAMED U/S 143(3) R.W.S. 148 DATED 12.12.2016 CAN NEITHER BE HELD AS ERRONEOUS NOR PREJUDICIAL TO THE INTEREST O F REVENUE. THUS, WE HOLD THAT LD. PR. CIT WRONGLY ASSUMED JURISDICTI ON U/S 263 OF THE ACT AND THEREFORE THE IMPUGNED ORDER DESERVES T O BE QUASHED. WE ACCORDINGLY RESTORED THE ASSESSMENT ORDER DATED 12.12.2016 FRAMED U/S 143(3) R.W.S. 148 OF THE ACT. 25. IN RESULT, APPEAL FILED BY THE ASSESSEE IN ITAN O.659/IND/2019 IS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 29.07.20 21. SD/- (CHANDRA MOHAN GARG) SD/- (MANISH BORAD) JUDICIAL MEMBER A CCOUNTANT MEMBER INDORE; DATED : 27/07/2021 PATEL/PS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER ASSISTANT REGISTRAR, INDORE