M/S BALURAM JAT, AJMER V. PRINCIPAL COMMISSIONER OF INCOME TAX, AJMER

ITA 690/JPR/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3151 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 10-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BK GUPTA
• Assessee Lawyers: S R SHARMA; R K BHATRA
• Keywords: Opportunity of being heard; Assessment record; Prejudicial to interest; Revised return; Set aside
• Section: 271(1)(c); 143(3); 234B; 274; 143(2); 2(A); 13; 22; 147; 68; 148; 263; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 690/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 BALURAM JAT S/O SHRI GHASIRAM JAT, VILLAGE- CHITKHERA, KISHANGARH, AJMER. CUKE VS. THE PR. CIT, AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AEBPC 9106 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S.R. SHARMA (CA) & SHRI R.K. BHATRA (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI B.K. GUPTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 20/02/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 12/03/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. PR. CIT, AJMER PASSED U/S 263 DATED 27.03.2019 FOR THE ASSESSMENT YEAR 2009-10 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWIN G GROUNDS OF APPEAL:- 1. THAT THE LD. PRINCIPAL COMMISSIONER OF INCOME-T AX, AJMER HAS ERRED IN CONSIDERING THE ASSESSMENT ORDER PASSED B Y THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E WITHOUT APPRECIATING THE FULL FACTS AND CIRCUMSTANCES OF TH E CASE. HE SET ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 2 ASIDE TO THE FILE OF AO TO THE EXTENT FOR MAKING AF RESH ORDER AFTER CARRYING OUT ENQUIRIES IN THE MANNER AS DIRECTED BY HIS ORDER AFTER GIVING AN OPPORTUNITY OF BEING HEARD. 2. THAT HE HAS FAILED TO CONSIDER OUR WRITTEN SUBMI SSIONS AND WITHOUT GOING INTO TRUE FACTS OF THE CASE ASKED THE AO TO MAKE ENQUIRIES ON SECONDARY EVIDENCE OF THIRD PARTIES FO R CONSIDERING THE SALE CONSIDERATION OF RS.2,71,00,000/- AND IGN ORING THE DETAILED ORDER DIG (STAMPS) DTD. 22-6-16. THE COMPE TENT AUTHORITY HAS ALSO CONSIDERED SUCH PHOTO STAT COPY OF AGREEMENT AND TREATED SUCH COMPLAINTS AS FAKE AND PASSED HIS ORDER THAT NO SUCH AGREEMENT WAS MADE FOR CONSIDERATION OF RS.2, 71,00,000/-. 3. THAT AS ASKED BY PR. CIT TO MAKE DETAILED ENQUIR Y AND TO MAKE ADDITION OF DEPOSIT WHICH WERE ALREADY EXPLAINED. THE PAYMENT RECEIVED FROM KAILASH WAS PAID BY CHEQUE AND IT WAS SUFFICIENT PROOF AND ACCORDINGLY ACCEPTED BY AO AFTER SOURCE T HEREOF. 4. THAT THE ORDER PASSED U/S 263 IS BAD IN LAW. IT IS ALSO TIME BARRED FROM DATE OF ORIGINAL DUE DATE OF RETURN FI LED FOR NIL TAX LIABILITY FOR 07-08-09 ALSO. 5. THAT AS DECIDED BY SUPREME COURT IN (2007) 211 C TR PAGE 69 (SC) THERE IS DISTINCTION BETWEEN LACK OF ENQUIRY A ND INADEQUATE ENQUIRY. AS HELD BY SUPREME COURT IF THERE IS AN E NQUIRY EVEN INADEQUACY. AS HELD BY SUPREME COURT IF THERE IS A N ENQUIRY EVEN INADEQUATE THAT WOULD NOT BY ITSELF GIVEN OCCA SION TO THE PRO CIT TO PASS AN ORDER U/S 263 OF IT ACT MERELY B ECAUSE HE HAS A DIFFERENT OPINION IN THE MATTER. 6. THAT THE DETAILED ARGUMENTS GIVEN PRIOR TO DATE OF HEARING BUT NOT AT ALL CONSIDERED AND NO FURTHER OPPORTUNITY BE ING HEARD WAS GIVEN INSPITE OF ASSESSEE ASKED FOR DATE AS THE COU NSEL WAS BUSY AT JAIPUR WITH CIT (EXEMPTION) AND THEREFORE ASSESS EE ASKED FOR ADJOURNMENT ON 25/3/19 BUT REFUSED AND PASSED SUCH ORDER WHICH WAS SEEMS TO BE PRE-DETERMINED. ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 3 2. BRIEFLY THE FACTS OF THE CASE ARE THAT BASIS CER TAIN INFORMATION RECEIVED BY THE ASSESSING OFFICER, NOTICE U/S 148 O F THE ACT WAS ISSUED TO ASSESSEE ON 17-08-2015 AND IN RESPONSE TO SAID N OTICE, THE ASSESSEE FILED HIS RETURN OF INCOME ON 21.11.2016 DECLARING TOTAL INCOME OF RS.1,45,660/- AND THE ASSESSMENT WAS SUBSEQUENTLY C OMPLETED U/S 143(3) R/W 147 VIDE ORDER DATED 30.12.2016 AT AN AS SESSED INCOME OF RS 4,44,721 WHEREIN ADDITION OF RS 2,99,000/- WAS M ADE TOWARDS UNDISCLOSED RECEIPTS IN BANK ACCOUNT U/S 68 AMOUNTI NG TO RS 2,99,000/. 3. THE LD. PR. CIT, AJMER THEREAFTER EXAMINED THE ASSESSMENT RECORDS OF ASSESSEE AND HELD THAT ASSESSING OFFICER FAILED TO MAKE REQUISITE INQUIRIES WITH REFERENCE TO THE EXPLANATI ON OFFERED BY ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE REFORE, THE ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS AND PR EJUDICIAL TO THE INTEREST OF REVENUE. 4. BEFORE WE EXAMINE THE CONTENTIONS ADVANCED BY BO TH THE PARTIES, IT WOULD BE RELEVANT TO REFER TO THE SHOW CAUSE NOT ICE DATED 22.02.2019 ISSUED BY LD. PR. CIT WHICH READS AS UNDER: THE ASSESSMENT IN YOUR CASE FOR A.Y 2009-10 WAS CO MPLETED U/S 147 R.W.S 143(3) BY THE ITO WARD 2, KISHANGARH ON 30.12 .2016 ASSESSING TOTAL INCOME OF RS 4,44,720/. ON EXAMINATION OF ASSESSMENT RECORD, IT IS NOTICED THAT CERTAIN DEPOSITS OF CASH HAVE BEEN MADE ON DIFFERENT DATES DURING TH E PERIOD RELEVANT TO THE A.Y. 2009-10 IN YOUR BANK ACCOUNT NO. 510843403 04 MAINTAINED WITH SBBJ, MADANGANJ KISHANGARH, DETAILED ARE AS UNDER:- ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 4 DATE AMOUNT 23/09/2008 RS. 15000 12/01/2009 RS. 41000 27/01/2009 RS. 450000 30/1/2009 RS. 1110000 31/01/2009 RS. 300000 02/02/2009 RS. 200000 07/02/2009 RS. 800000 9/02/2009 RS. 446000 9/02/2009 RS. 145000 13/02/2009 RS. 1500 9/3/2009 RS. 1500 TOTAL RS. 3510000 CHEQUE DEPOSITS OF RS. 1500198/- WAS ALSO MADE BY W AY OF 5 (FIVE) DEPOSITS, AS FOLLOWS:- DATE AMOUNT 31-12-2008 RS. 597650 03-02-2009 RS. 748500 03-02-2009 RS. 150000 11-02-2009 RS. 3048 19-03-2009 RS. 1000 TOTAL RS. 1500198 3. HOWEVER, THE AO FAILED TO MAKE ENQUIRIES WITH RE FERENCE TO THE EXPLANATION OFFERED AS IS EVIDENCED IN THE ASSESSME NT ORDER. YOU TRIED TO EXPLAIN THE SOURCE FROM FOLLOWING:- I) VEHICLE SOLD TO SUKH RAM RS. 700000 II) VEHICLE SOLD TO SHEO RAM RS. 600000 ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 5 III) VEHICLE SOLD TO PUSA RAM RS. 400000 IV) PLOT SOLD TO VARIOUS PARTIES RS. 119000 V) AGRICULTURE INCOME RS. 252000 VI) RECEIVED FROM HARI RAM RS. 200000 VII) FUNDS FROM OPERATIONS RS. 480000 VIII) AMOUNT ROUTED THROUGH KAILASH PAID RS.600000 ON 6-1-2009 RS. 600000 4. THE AO FAILED TO INQUIRE INTO THE DATES OF THESE TRANSACTIONS TO EXPLAIN THE CASH DEPOSITS. FURTHER, SHRI PUSA RAM AND SHRI SUKH RAM HAD NOT AGREED TO THE CLAIM OF ASSESSEE THAT THEY H AVE PURCHASED SUCH VEHICLES LEAVE ASIDE IN CASH. IN FACT THE STATEMEN T OF SHRI PUSA RAM WAS ON OATH AND IN THE PRESENCE OF SHRI VIMAL CHAUH AN A/R. THE STATEMENT OF SHRI SUKH RAM TOO WAS ON OATH. THE IM PORTANT PART OF THESE STATEMENTS WAS THAT THEY WERE MADE AWARE OF T HE VERSION OF SHRI BALU RAM JAT IN QUESTION NO. 6 OF BOTH THE STATEMEN T DENYING PURCHASE AS WELL AS PAYMENT IN CASH. SHRI SHEO RAM WAS NOT AVAILABLE AS PER INCOME-TAX I NSPECTOR REPORT DATED 16-11-2016. HOWEVER, LETTER ON SHRI SHEO RAM APPEARED AND ADMIT TED PURCHASE OF TRACTOR, TROLLY, MACHINE, JILAU/PILAU, PLOUGH (HAL) ETC. BUT THE AO FAILED TO ENQUIRE INTO THESE MANY CLAIM AVAI LABILITY OF THESE MANY ITEMS WITH THE ASSESSEE AND HOW THE ASSESSEE A CQUIRED THEM AND ALLOWED WITHOUT INVESTIGATION. ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 6 SHRI PUSA RAM IN STATEMENT ON OATH DATED 18-11-201 6 DENIED ABOUT THE TRANSACTION AND CASH PAYMENT BUT SUBSEQUE NTLY ON 27-12- 2016 BY A PLAIN LETTER STATED, WITHOUT SPECIFYING A NY DATE ABOUT PURCHASE AND SALE OF THE VEHICLE WITHOUT GETTING IT TRANSFERRED IN HIS NAME. IF IT WOULD HAVE BEEN ENQUIRED BY THE AO THA T STATEMENT ON OATH CARRY EVIDENTIAL VALUE RATHER THAN PLAIN DENIA L WHICH AO FAILED TO ENQUIRE. SIMILARLY SUCH RAM DENIED ON OATH ON 18-11-2016 BU T FURNISHED NOTARIZED COPY WITHOUT SPECIFYING ANY DATE ON WHICH HE RECEIVED VEHICLE. THE DOCUMENT DOES NOT SAY PURCHASE NOR IT SAY PAYMENT IN CASH AND AO FAILED TO ENQUIRE INTO THESE ALSO THAT ABOVE ARE ONLY INDICATIVE THAT THE TRANSACTIONS OF CASH HAVE NOT B EEN ENQUIRED INTO AS TO THE DATE OF DEPOSITS BY THE AO RESULTING THE ASS ESSMENT ORDER ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. EVEN THE MERELY 5 CHEQUES DEPOSITS HAVE BEEN CHECK ED ON TEST CHECKL BASIS RATHER FULL ENQUIRY THERE INTO MAKING THE ASSESSMENT ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE REASONS WERE RECORDED AMONGST OTHER W.R.T. INV ESTMENT OF RS. 27100000/- HOWEVER THE AO RECORDED IN THE ORDER ONLY RS. 221 WITHOUT ENQUIRING INTO IT. MOREOVER, IN THE LAST P ART OF PARA 2 OF THE ASSESSMENT ORDER, THE AO UNILATERALLY ACCEPTED AN A FFIDAVIT WITHOUT ANY ENQUIRY OR ARRANGEMENTS AS TO HOW INCOME-TAX AUTHOR ITY COULD RECOVER AND/OR ASSESSEE WILL PAY WITHOUT THERE BEING ANY DE MAND UNLESS ANY PROTECTIVE DEMAND IS RAISED PENDING ADJUDICATION MA KING THE ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 7 ASSESSMENT ERRONEOUS IN SO FAR AS PREJUDICIAL TO TH E INTEREST OF THE REVENUE. 5. IN REPLY TO SHOW CAUSE NOTICE U/S 263 ISSUED BY LD PR. CIT, THE ASSESSEE FILED HIS REPLY ON 22.03.2019 COPY OF WHIC H IS PLACED AT APB PAGES 5057. THE REPLY SO FILED WAS CONSIDERED BUT NOT FOUND ACCEPTABLE TO THE LD. PR. CIT AND FOR THE REASONS, STATED IN HIS ORDER AT PARA 5-7, HE HELD THAT ASSESSMENT ORDER PASSED BY A .O. IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVE NUE AND THE ASSESSMENT ORDER WAS SET-ASIDE TO THE AFORESAID EXTENT FOR MAK ING AFRESH ASSESSMENT AFTER CARRYING OUT ENQUIRIES IN THE MANN ER AS ABOVE AND AFTER GIVING OPPORTUNITY TO THE ASSESSEE. IN THE AF ORESAID FACTUAL BACKGROUND, THE PRESENT APPEAL HAS BEEN FILED BY TH E ASSESSEE AGAINST THE SAID ORDER OF LD. PR. CIT, AJMER PASSED U/S 263 OF THE ACT. 6. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT FOR INVOKING PROVISIONS OF SECTION 263, THE CONDITION P RECEDENT IS THAT ASSESSMENT ORDER PASSED BY A.O. IS ERRONEOUS AND PR EJUDICIAL TO THE INTEREST OF REVENUE I.E. BOTH CONDITIONS MUST CO-EX IST. IN THE CASE OF ASSESSEE, THE ORDER IS NEITHER ERRONEOUS NOR PREJUD ICIAL TO THE INTEREST OF REVENUE. 7. IT WAS SUBMITTED THAT THE ASSESSEE IN REPLY TO S HOW CAUSE NOTICE ISSUED BY LD. PR. CIT EXPLAINED THAT SUMS PAID TO H IM BY SHRI SUKHRAM AND SHRI PUSARAM IN CASH WAS CONFIRMED BY THEM BY F ILING AFFIDAVITS. FURTHER THE SAID CASH TRANSACTIONS WITH THE SAID PE RSONS HAVE BEEN ACCEPTED BY LD. AO AFTER DUE VERIFICATION OF THE F ACTS. ACCORDINGLY THE ASSESSEE EXPLAINED THE SOURCES OF CASH DEPOSITS MA DE IN HIS BANK ACCOUNT AND THE SAME ARE ACCEPTED BY LD. AO AFTER APPLICATION OF HIS ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 8 MIND AND EVIDENCES SUBMITTED BEFORE HIM. AS SUCH I T IS WRONG TO ALLEGE THAT AO FAILED TO ENQUIRE INTO THE DATES OF THESE T RANSACTIONS FOR CASH DEPOSITS IN BANK. FURTHER AS ADMITTED BY THE LD. PR. CIT IN THE IMPUGNED SHOW CAUSE NOTICE ISSUED U/S 263 THAT S HRI SHEORAM WAS NOT MADE AVAILABLE TO INSPECTOR ON 16-11-2016. BU T LATER SHRI SHEORAM APPEARED BEFORE THE LD. AO AND ADMITTED TH AT HE PURCHASED AS TRACTOR, TROLLEY, MACHINE, JILAN/PILAN PLOUGH E TC. FROM THE ASSESSEE IN CASH. AS SHEORAM APPEARED BEFORE THE LD. AO AND ACCEPTED THE FACTS THAT HE PURCHASED THE TRACTOR ETC. THUS IT IS NOT IN ASSESSEES PREVIEW TO ASK AO TO MAKE AN INVESTIGATION ABOUT T HE AFFIDAVIT FILED BY PUSARAM AND SUKHRAM AND SUBSEQUENTLY DENIED BY THEM . AS ALL THE FACTS WERE AVAILABLE BEFORE THE LD. AO AND AFTER CO NSIDERING/TAKEN INTO ACCOUNT THE SUPPORTING DOCUMENTARY EVIDENCES FILED BY THE SAID PERSONS HE ACCEPTED THE TRANSACTIONS OF PURCHASE OF HIS ASSETS IN CASH BY THE SAID PERSONS FROM THE ASSESSEE. FURTHER A C OPY OF BANK ACCOUNT WAS AVAILABLE WITH LD. AO (EVEN AT THE TIME OF ISSU ING THE NOTICE U/S 148 OF THE I.T. ACT, 1961) AND ALL THE TRANSACTIONS MADE BY CHEQUES WERE ALSO THERE AND EXAMINED BY THE LD. AO BY APPL YING HIS MIND. THUS THE ASSESSMENT ORDER ON THIS ISSUE WAS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE. 8. IT WAS FURTHER SUBMITTED THAT SIMILARLY WITH REG ARDS TO ALLEGED INVESTMENT OF RS. 2,71,00,000/- MADE BY THE ASSESSE E IT IS SUBMITTED THAT NO SUCH INVESTMENT WAS MADE BY HIM AS ALLEGED BY THE DEPARTMENT ON THE BASIS OF AN ALLEGED AGREEMENT. F URTHER IN CASE OF SUB-REGISTRAR KISHANGARH VS. BALURAM JAT VIDE ORDER 22-06-2016 CASE NO. 516/2011 THE LD. COLLECTOR STAMPS, AJMER HEL D THAT THE COMPLAINT FILED AGAINST THE ASSESSEE IS WRONG AND H E REFERRED ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 9 AGREEMENT IS FAKE. AS NO SUCH ORIGINAL AGREEMENT WAS FOUND ON RECORD AND FINALLY DECIDED THAT NO SUCH ALLEGED AGR EEMENT WAS MADE FOR RS. 27100000/-. A COPY OF SAID ORDER PASSED B Y THE COLLECTOR STAMPS, AJMER ON 22-6-16 IS ENCLOSED HEREWITH. THE ASSESSEE FURTHER SUBMITS THAT THE FINDING OF THE LD. PR. CIT IN THIS REGARD THAT THE LD. AO HAS ADDED A SUM OF RS. 221 AS AGAINST RS. 2,71,00, 000/- IN HIS ORDER IS GROSSLY WRONG AND FAR FROM THE FACTS. THE CORRECT FACTS OF THE AMOUNT RS. 221 ARE THAT THE ASSESSEE RECEIVED BACK INTERES T OF RS. 221. THE SAID SUMS RS. 221 (RS.158 + 63) WAS ON ACCOUNT OF I NTEREST RECEIVED ON SB A/C NO. 51084340304 ON DEPOSITS AND OUT OF TH E SAID AMOUNTS RS. 63 HAS ALREADY BEEN DECLARED IN RETURN OF INC OME AND BALANCE SUM RS.158/- HAS BEEN ADDED BY THE LD. AO IN THE ASSESS MENT ORDER. THUS THE ABOVE SAID OBSERVATION OF THE LD. PR.CIT THAT I N PLACE OF RS. 2,21,00,000 THE LD. AO HAS ADDED ONLY RS. 221/- IS WRONG, WITHOUT ANY BASIS AND AGAINST THE TRUE FACTS OF THE CASE A S EVIDENT FROM RECORD. IN VIEW OF THE ABOVE FACTS DULY SUPPORTED BY LEGAL DOCUMENTARY EVIDENCES THAT NO AGREEMENT WAS EXECUTED BY THE ASS ESSEE FOR A SUM OF RS. 27100000 AS ALLEGED BY THE LD. PR. CIT IN HI S ORDER. FURTHER AS EVIDENT FROM THE IMPUGNED ORDER PASSED U/S 263 THAT THE PR. CIT DID NOT HELD THAT CONTENTION OF ASSESSEE IS NOT CORRECT IN LAW BUT ONLY HELD THAT LD. A.O. ERRED IN ACCEPTING THE CLAIM WITHOUT ANY ENQUIRY OR VERIFICATION WHICH SHOULD HAVE BEEN MADE. 9. IT WAS FURTHER SUBMITTED THAT IT IS EVIDENT THAT LD. A.O. MADE ENQUIRIES ON THE ISSUE AND ASSESSEE COMPLIED TO THE ENQUIRIES AND FILED ALL THE REQUIRED DETAILS. THUS IT IS NOT A CASE WHE RE THAT A.O. MADE NO ENQUIRY OR VERIFICATION WHICH SHOULD HAVE BEEN MADE . IT IS CLEAR FROM READING OF NOTICE U/S 263 OF THE ACT, 1961 THAT THE PROCEEDINGS U/S 263 ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 10 HAS BEEN STARTED ON THE SAME ISSUE WHICH HAVE ALREA DY BEEN CONSIDERED AND EXAMINED BY THE THEN A.O. THUS THE P ROCEEDING U/S 263 IS A STEP TO START AGAIN A SECOND SCRUTINY/INVE STIGATION OF FACTS WITHOUT THERE BEING ANY MATERIAL TO HOLD EVEN PRIMA -FACIE THAT THE ASSESSMENT ORDER PASSED BY A.O. IS ERRONEOUS WHICH IS NOT VALID IN THE EYES OF LAW (CIT VS. TRUSTEES ANUPAM CHARITABLE TRU ST (1987) 167 ITR (129) (RAJ), CIT VS. GODAWARI SUGAR MILLS LTD. (199 3) 203 ITR 108 (BOM.) AND CIT VS. SHAKTI CHARITIES (2000) 160 CTR 107 (MAD.). THE FACTS AND SUBMISSIONS ARE VERIFIABLE FROM THE ASSES SMENT RECORD. THE SUPREME COURT IN CASE OF CIT VS. GREEN WORLD CORPOR ATION (2009) 314 ITR 81 HELD THAT THE JURISDICTION UNDER SECTION 26 3 CAN BE EXERCISED ONLY WHEN BOTH THE FOLLOWING CONDITIONS ARE SATISFI ED (I) THE ORDER OF THE ASSESSING OFFICER SHOULD BE ERRONEOUS AND (II) IT S HOULD BE PREJUDICIAL TO THE INTEREST OF THE REVENUE. THESE CONDITIONS ARE C ONJUNCTIVE. AN ORDER OF ASSESSMENT PASSED BY THE ASSESSING OFFICER SHOUL D NOT BE INTERFERED WITH ONLY BECAUSE ANOTHER VIEW IS POSSIBLE. THE RAJ ASTHAN HIGH COURT IN CASE OF CIT VS. CHAMBAL FERTILIZERS AND CHEMICAL S LTD. (2013) 258 CTR (RAJ.) 540 HAS HELD THAT THE CIT CANNOT INVOKE THE POWERS TO CORRECT EACH AND EVERY MISTAKE OR ERROR COMMITTED B Y THE A.O. EVERY LOSS TO THE REVENUE CANNOT BE TREATED AS PREJUDICIA L TO THE INTEREST OF THE REVENUE AND IF THE AO HAS ADOPTED ONE OF THE CO URSE PERMISSIBLE UNDER THE LAW OR WHERE TWO VIEWS ARE POSSIBLE AND T HE AO HAS TAKEN ONE VIEW WHICH THE CIT DOES NOT AGREE, IT CANNOT BE TREATED AS AN ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, THE AO EXERCISES QUASI JUDICIAL POWER VESTED IN HIM AND IF HE EXERCISES SUCH POWERS IN ACCORDANCE WITH LAW, ARRIVES AT A JUST CO NCLUSION SUCH CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS ONLY BE CAUSE THE CIT ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 11 DOES NOT FEEL SATISFIED WITH THE CONCLUSION. THE DE LHI HIGH COURT IN CASE OF CIT VS. KELVINATOR OF INDIA LTD. (2011) 332 ITR 231 (DELHI) HAS HELD THAT ASSESSING OFFICER TAKING ONE OF TWO POSSIBLE V IEWS WITH WHICH COMMISSIONER NOT AGREEING THE ASSESSMENT ORDER CANN OT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTEREST OF R EVENUE. THE KARNATAKA HIGH COURT AFTER CONSIDERING VARIOUS JUDI CIAL PRONOUNCEMENT IN THE CASE OF CIT VS. GOKUL DAS EXPORTS (2011) 333 ITR 214 (KAR) HAS HELD THAT ASSESSING OFFICER TAKING ONE OUT OF TWO V IEWS THE ASSESSMENT ORDER IS NOT PREJUDICIAL TO INTEREST OF REVENUE. IN VIEW OF THE ABOVE JUDICIAL PRONOUNCEMENTS AND VARIOUS OTHER JUDGEMENT S ON THE ISSUE THE ASSESSMENT ORDER PASSED BY A.O. CANNOT BE TREATED A S AN ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. IN THE CASE OF CIT VS. VODAFONE ESSAR SOUTH LTD. (2013) 2012 TAXMAN 184, T HE HON'BLE DELHI HIGH COURT HELD THAT ASSESSING OFFICER BEFORE PASSI NG ASSESSMENT ORDER MADE AN ENQUIRY AND DIRECTED HIS MIND ON ALL ASPECT S. VIEW ADOPTED BY HIM WAS CLEARLY ONE AMONG TWO PLAUSIBLE VIEWS THAT COULD HAVE BEEN TAKEN. COMMISSIONER DID NOT SPECIFICALLY FURNISH AN Y REASONS TO SAY WHY ORIGINAL ORDER WAS UNSUPPORTABLE IN LAW. COMMISSION ER COULD NOT HAVE VALIDITY EXERCISED HIS REVISIONARY POWER U/S 263 IN INSTANT CASE. 10. IT WAS FURTHER SUBMITTED THAT THE ORDER IS NOT PREJUDICIAL TO REVENUE AS A.O. WAS CORRECT IN LAW AND ON THE FACTS OF THE CASE. THUS THE LD. PR. CIT IS WRONG IN HOLDING THAT A.O. DID N OT MAKE ANY ENQUIRY OR VERIFICATION SO AS TO INVOKE JURISDICTION U/S 26 3. EVEN NEWLY INSERTED EXPLANATION 2 (A) TO SECTION 263 DOES NOT AUTHORIZE OR GIVE UNFETTERED POWERS TO THE COMMISSIONER TO REVISE EACH AND EVERY ORDER, IF IN HIS OPINION, SAME HAS BEEN PASSED WITHOUT MAKING ENQUIR IES OR VERIFICATION WHICH SHOULD HAVE BEEN MADE, SINCE THE PR. CIT HAD NOT BROUGHT ANY ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 12 MATERIAL ON RECORD TO SUBSTANTIATE HIS INFERENCE, A ND SO THE IMPUGNED REVISION ORDER IS ONLY TO CARRY OUT FISHING ENQUIRI ES WITH OBJECTIVE OF SUBSTITUTING HIS VIEWS WITH THAT OF THE ASSESSING O FFICER WHICH IS NOT PERMISSIBLE IN LAW (REFER NARAYAN TATU RANE VS. I.T.O. (2016) 70 TAXMAN.COM 227 (MUM). 11. IT WAS FURTHER SUBMITTED THAT AS ADMITTED BY A O IN ASSESSMENT ORDER THE ASSESSEE HAS SUBMITTED COMPLETE SOURCES O F CASH DEPOSIT ALONGWITH COPY OF BANK ACCOUNT NO. 51084340304 WITH SBBJ KISHANGARH WITH DETAIL OF ALL FIVE CHEQUES ALSO DEP OSIT IN BANK ACCOUNT AS SHOWN ABOVE. DURING THE COURSE OF ASSESSMENT PR OCEEDINGS THE ASSESSEE VIDE LETTER DATED 26-10-15 HAS FURNISHED E VIDENCES EXPLAINING SOURCES OF CASH DEPOSIT IN HIS BANK ACCOUNT AND AFT ER APPLICATION OF MIND AND FULL SATISFACTION THE LD. AO MADE THE ASSE SSMENT WHICH IS APPARENT FROM ASSESSMENT PROCEEDINGS. THE AFFIDAVIT OF SHRI SUKHRAM, SHRI PUSARAM AND SHRI KAILASH FILED AND ACCEPTED BY AO . IT HAS ALSO BEEN CLEARED FROM THE ASSESSMENT ORDER THAT THE ASS ESSEE FAILED TO EXPLAIN THE SOURCE OF DEPOSIT OF RS. 179000 AND DRA WING MADE BY HIM FOR RS. 120000/- AND HENCE ASKED BY AO TO ASSESSEE FOR SURRENDER THE A SUM OF RS. 299000 AS ADDITION TO THE TOTAL INCOME . THE ASSESSEE IN COMPLIANCE TO BUY PEACE AND LITIGATION EXPENSES SUR RENDERED THE SAID SUMS OF RS.299000/-. THE ABOVE SURRENDERED AMOUNT ADDED BY AO TO THE TAXABLE INCOME OF THE ASSESSEE U/S 68 OF ACT AN D AS THE ASSESSEE SURRENDERED THE SAID AMOUNT AND NOT FILED ANY APPEA L BEFORE CIT (APPEALS) AJMER. 12. IT WAS FURTHER SUBMITTED THAT IT IS NOT OUT OF PLACE TO MENTION HERE THAT THE TRANSACTIONS WITH SHRI KAILASH OF RS. 600000/- HAS BEEN ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 13 TAKEN PLACE BY CHEQUE ON 06-01-2009 AS EVIDENT FRO M THE ASSESSMENT ORDER AND DEBITED TO ASSESSEE ON ABOVE ACCOUNT ON 0 6-01-2009 VIDE CHEQUE NO. 213760. AS SUCH AMOUNT DEPOSITED IN CAS H BY SUKHRAM AND SHRI PUSARAM WAS CONFIRMED BY AN AFFIDAVIT WHIC H HAS NOT BEEN CONTRADICTED BY DEPOSITS AND HAS BEEN ACCEPTED BY L D. AO ALSO APPLY HIS MIND EXPLAINED ACCEPTED BY AO AFTER APPLICATIO N OF HIS MIND ON EVIDENCES SUBMITTED ON 26-10-2015. THUS IT IS WRO NG TO ALLEGE THAT LD. AO FAILED TO MAKE ENQUIRES INTO THE DATES OF THESE TRANSACTIONS OF CASH DEPOSITS IN BANK. AS SHRI PUSRAM AND SHRI SUKHRAM HAS FILED AN AFFIDAVIT, THE DISAGREEMENT BY THEM NOT MAINTAINABL E IN VIEW OF AFFIDAVIT GIVEN ON OATH DULY NOTARIZED. AS ADMITTED SHRI SHE ORAM WAS NOT MADE AVAILABLE TO INSPECTOR ON 16-11-2016 BUT LATER ON A PPEARED AND ADMITTED THE PURCHASES OF TRACTOR, TROLLEY, MACHINE , JILAN/PILAN PLOUGH ETC. AS SHEVRAM APPEARED BEFORE AO, IT WAS NOT OUR DUTY TO ASK AO TO MAKE AN INVESTIGATION THAT WHEN AFFIDAVIT FILED BY PUSARAM AND SUJHRAM BOTH, THE DENIAL MADE LATER ON 18-11-2016, THE ACTI ON SHOULD HAVE BEEN TAKEN BY YOU AGAINST HIS AFFIDAVIT GIVEN ON OATH WH ICH IS MORE VALUABLE DOCUMENTS AS AGAINST DENIAL OF PARTIES UNDER UNDUE INFLUENCE IN THEIR STATEMENT TAKEN UNDER UNDUE INFLUENCE BECAUSE CLEAR ED FROM THEIR WRITTEN SUBMISSION ON 27-12-2016 ON A PLAIN LETTER. THE 5 CHEQUES DEPOSIT CLEARLY SHOWN IN BANK ACCOUNT AND DEPOSIT OF ALL THE FIVE CHEQUES MENTIONED IN BANK STATEMENT. 13. IT WAS FURTHER SUBMITTED THAT SIMILARLY WITH RE GARDS TO INVESTMENT OF RS. 27100000/- WE ARE TO SUBMIT THAT NO SUCH INV ESTMENT MADE BY ANY AGREEMENT. THE FAKE COMPLAINTS FILED BEFORE THE DIG REGISTRATION AND STAMPS ON THE BASIS OF ABOVE ALLEGED IKRARNAMA FOR SALE. ON ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 14 RECEIPT OF SAID COMPLAINT THE DIG REGISTRATION AND STAMPS DIRECTED TO SUB-REGISTRAR, KISHANGARH TO INVESTIGATE MATTER AND THE SUB REGISTRAR AFTER INVESTIGATION SUBMITTED HIS REPORT TO DIG STA MPS. THE ORDER HAS BEEN PASSED IN DETAIL VIDE CASE NO. 516/2011 IN THE COURT OF SUB- REGISTRAR KISHANGARH VS. BALURAM JAT ORDER DATED 22 -06-2016 AND IN THE ORDER THE ABOVE SAID AGREEMENT SHOWN IN THE NAME OF ASSESSEE FOUND FAKE AND FINALLY DECIDED THAT NO SUCH ALLEGED AGREE MENT MADE FOR RS. 27100000/-. WE ARE ENCLOSING HEREWITH COPY OF SUCH ORDER OF COMPETENT COURT PASSED ON 22-6-16. IT IS ALSO WRON G TO ALLEGE THAT AO RECORDED IN THE ORDER ONLY RS. 221 AS AGAINST RS. 2 7100000/-. THE SUMS RS. 221/- (RS. 158 + 63) WAS ON ACCOUNT OF INT EREST RECEIVED FROM SB ACCOUNT NO. 51084340304 AS SHOWN ABOVE AND NOT CONCERNING WITH RS. 27100000/- AS ASSUMED BY YOU WITHOUT ANY B ASIS IGNORING THE ACTUAL TRUE FACTS ON RECORD. IT WAS INCOME FROM OT HER SOURCES ADDED FOR RS. 158/- ONLY BECAUSE RS. 63/- WAS ALREADY SHO WN BY ASSESSEE IN HIS RETURN. AS SUCH THE STORY OF RS. 27100000/- WA S FOUND QUITE FAKE AND /OR BIOGASES PER DETAILED ORDER AND/OR INSPECTI ON MADE BY COURT. 14. IT WAS ACCORDINGLY SUBMITTED THAT THE THE AO OR DER WAS NOT ERRONEOUS AS THERE WAS NO MATERIAL BEFORE CIT(A) TO SHOW THAT THE ASSESSEE HAD NOT FILED ALL THE DETAIL BEFORE THE AO . IN VIEW OF THE ABOVE FACTS DULY SUPPORTED BY DOCUMENTARY EVIDENCES IT CO ULD NOT BE SAID THAT ASSESSMENT ORDER PASSED BY A.O. IS ERRONEOUS OR PRE JUDICIAL TO THE INTEREST OF REVENUE. 15. IT WAS FURTHER SUBMITTED THAT ASSESSMENT OF SEL LER COMPANY I.E. M/S STERLING BUILD ESTATE PVT. LTD. WAS REOPENED ON THE SAME GROUND/REASONS BY THE LD. AO U/S 148 OF THE I T ACT , 1961 AND AFTER ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 15 VERIFICATION OF ALL THE RELEVANT DOCUMENTS/FACTS OF THE CASE THE LD. AO HAS ACCEPTED THAT NO EXTRA SALE CONSIDERATION WAS R ECEIVED IN CASH OF RS. 2.21 CRORES AS MENTIONED IN THE ALLEGED AGREEME NT TO SALE. IT IS FURTHER SUBMITTED THAT THE CASE OF THE SAID CONCERN WAS REOPENED ON THE SAME ISSUE I.E. ON THE BASIS OF ABOVE REFERRED AGREEMENT TO SALE AND THE ASSESSMENT HAS BEEN COMPLETED BY ITO, WARD- 1(1), JAIPUR AT RETURNED INCOME ACCEPTING THE FACTS THAT THERE WAS NO SUCH VALID AGREEMENT FOR EXTRA CONSIDERATION OF SALE HAS BEEN RECEIVED. A COPY OF SAID ASSESSMENT ORDER IS PLACED ON RECORD. 16. IT WAS ACCORDINGLY SUBMITTED THAT ASSESSMENT OR DER PASSED BY A.O. IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE IN TEREST OF REVENUE. THEREFORE, THE INVOKING OF PROVISIONS OF SECTION 26 3 BY LD. PR. CIT WAS WRONG, BAD IN LAW AND WITHOUT JURISDICTION. THE IMP UGNED ORDER U/S 263 PASSED BY PR. CIT THUS DESERVES TO BE CANCELLED/SET ASIDE. 17. PER CONTRA, THE LD. DR IS HEARD WHO HAS SUBMITT ED THAT THE AO HAS FAILED TO GO INTO THE ENQUIRIES WITH REFERENCE TO FAILURE OF ASSESSEE TO PROVE THE VERACITY OF THE EXPLANATION O FFERED FOR BANK DEPOSITS, WITH THE HELP OF ANY DOCUMENTARY EVIDENCE . THE ASSESSEE HAD NOT BEEN ABLE TO CONTROVERT THE FINDING THAT IN THEIR STATEMENTS RECORDED ON OATH, SHRI PUSA RAM AND SHRI SUKH RAM H AD NOT AGREED TO THE CLAIM OF THE ASSESSEE THAT THEY HAVE PURCHAS ED THE VEHICLES IN CASH, SPECIALLY WHEN THEY WERE MADE AWARE OF THE VE RSION OF SHRI BALU RAM JAT IN QUESTION NO. 6 OF BOTH THE STATEMEN TS WHERE IN AO FAILED TO ENQUIRE. MOREOVER, NO DATE ABOUT PURCHASE AND SALE OF VEHICLE HAS BEEN MENTIONED IN THE PLAIN LETTER WHIC H IS MUST TO EXPLAIN THE DEPOSIT MADE ON A PARTICULAR DATE, WHIC H THUS HAS NO ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 16 EVIDENTIARY VALUE, FURNISHED BY SHRI PUSA RAM ON 27 .12.2016. SIMILARLY, SHRI SUKH RAM DENIED ON OATH ON 18.11.20 16 BUT FURNISHED NOTARIZED COPY WITHOUT SPECIFYING ANY DATE OF RECEI PT OF VEHICLE AS IN THE ABSENCE OF DATES, THE DATE WISE DEPOSIT CANNOT BE HELD EXPLAINED AND OUGHT TO HAVE MADE ENQUIRIES THEREINTO. ALL THE SE SUBMISSION OF PLAIN LETTER/NOTARIZED COPY, CLEARLY ESTABLISHED TH AT THESE ARE NOTHING BUT ONLY AN AFTERTHOUGHTS. IN THE CASE OF SHRI SHEO RAM, THE ASSESSEE ALSO NOT PRODUCED ANY EVIDENCE WHICH CAN PROVE THAT THE TRACTOR, TROLLY, MACHINE, JILAU/PILAU, PLOUGH (HAL) ETC. WER E ACTUALLY AVAILABLE WITH THE ASSESSEE AND HE HAD SOLD THE SAME TO SHRI SHEO RAM ON ANY PARTICULAR DATE AND RECEIVED CASH ON THE SAID PARTI CULAR DATE TO EXPLAIN DATE WISE CASH DEPOSIT. THEREFORE, ONLY ADMITTANCE OF SHRI SHEO RAM REGARDING PURCHASE OF THESE ITEMS FROM THE ASSESSEE , WITHOUT ANY DOCUMENTARY EVIDENCES, IS OF NO HELP FOR THE ASSESS EE AND THE AO FAILED TO ENQUIRE THEREINTO. REGARDING UNEXPLAINED SOURCE OF INVESTMENT, HE RELIED ON THE FINDINGS OF THE LD PR. CIT. IT WAS FURTHER SUBMITTED THAT THE FACT THAT THE ASSESSMENT IN HAND S OF THE SELLER COMPANY WAS REOPENED ON THE SAID GROUND WAS APPAREN TLY NOT IN THE KNOWLEDGE OF THE LD PR. CIT AT THE TIME OF PASSING OF THE ORDER U/S 263 OF THE ACT. FURTHER, HE RELIED ON THE DECISION OF COORDINATE BENCH IN CASE OF AASHIYANA JAIPUR DEVELOPERS (P) LTD VS PR C IT (ITA NO. 713/JP/2019 DATED 25.11.2019). HE ACCORDINGLY SUPPORTED THE ORDER PASSED BY THE LD PR. CIT. 18. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. THE LD CIT HAS RAISED TWO BROAD ISSUES ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 17 WHILE EXERCISING HIS JURISDICTION U/S 263 OF THE AC T. FIRSTLY, IT RELATES TO DEPOSITS IN BANK ACCOUNT WHEREIN THE AO DIDNT MAKE ENQUIRIES WITH REFERENCE TO EXPLANATION OFFERED BY THE ASSESSEE. SECONDLY, IT RELATES TO UNEXPLAINED SOURCES OF INVESTMENT OF RS 2.71 CRO RES WHEREIN THE AO HAS FAILED TO MAKE AN ENQUIRY. 19. FIRSTLY, WE REFER TO THE ISSUE OF INVESTMENT OF RS 2.71 CRORES WHEREIN THE LD CIT HAS HELD THAT THE AO HAS FAILED TO MAKE AN ENQUIRY REGARDING SOURCE OF SUCH INVESTMENT AND THEREFORE, THE ORDER PASSED BY HIM IS ERRONEOUS AND PREJUDICIAL TO INTEREST OF THE REVENUE. 20. IN THIS REGARD, THE LD AR HAS SUBMITTED THAT TH E CASE OF THE ASSESSEE WAS REOPENED FOR THIS PRECISE REASON AND O UR REFERENCE WAS DRAWN TO REASONS RECORDED BY THE ASSESSING OFFICER BEFORE ISSUANCE OF NOTICE U/S 148 WHICH READS AS UNDER: ON THE BASIS OF INFORMATION AVAILABLE WITH THE UND ERSIGNED, IT IS NOTICED THAT THE ASSESSEE HAS ENTERED INTO TRANSACTION OF P URCHASE OF PROPERTY FROM M/S. STERLING BUILD ESTATE PVT.LTD. (THE SELLE R). ON THE BASIS OF AVAILABLE COPY OF IKRARNAMA, IT IS FOUND THAT THE A SSESSEE SHRI BALU RAM JAST ALONG WITH PARTNER SHRI RADHEY SHYAM YADAV (R/ O GOGAWAS, TEHSIL DANTARAMGARH) ENTERED INTO IKRARNAMA OF PURCHASE OF PROPERTY BEARING KHASRA NO. 96 AND MEASURING 06 BIGHAS 8 BIS WAS FOR A TOTAL CONSIDERATION OF RS. 2.71 CRORES WITH M/S.STERLING BUILD ESTATE PVT.LTD. ON 01-10-2008. AS PER AVAILABLE COPY OF IKRARNAMA (WHICH IS DULY NOTARIZED ON 2/10/2008 BY NOTARY PUBLIC SHRI RAMESH CHAND SHARMA, KISHANGARH) A SUM OF RS. 50,00,000/- (FIFTY LACS ON LY) HAS BEEN CLAIMED TO BE PAID IN CASH BY THE PURCHASERS ON 1/10/2008 I TSELF I.E. AT THE TIME OF EXECUTION OF IKRARNAMA. AS PER IKRARNAMA, THE R EMAINING AMOUNTS ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 18 WERE CLAIMED TO BE PAID BY CHEQUE OF SHRI BALU RAM JAT BEARING NOS. 213745 TO 213749 OF SBBJ, MADANGANJ KISHANGARH. HO WEVER, THE CHEQUES BEARING NOS 213745 TO 213749 WERE NOT CLEAR ED FROM THE ACCOUNTS OF SHRI BALU RAM JAT. FINALLY THE PROPERT Y WAS TRANSFERRED THROUGH FOLLOWING FOUR SALE DEEDS:- SALE VALUE AND MODE OF PAYMENT SELLER PURCHASER DETAILS OF LAND RS.1400000/- THROUGH CHEQUE NO.213758 DATED 6/1/2009 OF SBBJ, MADANGARNAJ. THIS CHEQUE HAS BEEN CLEARED ON 30/1/2009 FROM THE A/C OF SHRI BALU RAM HELD WITH SBBJ BEARING NO. 51084340304 M/S. STERLING BUILD ESTATE P.LTD SMT.MOOLI DEVI W/O. SHRI GHASI RAM JAT I.E. MOTHER OF SHRI BALU RAM JAT PART OF KHASRA NO. 96/1, MEASURING 02 BIGHA 01 BISWA 18 BISWANSHI. RS. 1400000/- THROUGH CHEQUE NO. 213757 DATED 6/1/2009 OF SBBJ, MADANGANAJ. THIS CHEQUE HAS BEEN CLEARED ON 10/3/2009 FROM THE A/C OF SHRI BALU RAM HELD WITH SBBJ BEARING NO. 51084340304. M/S. STERLING BUILD ESTATE P.LTD SMT. PREM DEVI W/O. SHRI BALURAM PART OF KHASRA NO. 96/1, MEASURING 02 BIGHA 01 BISWA 18 BISWANSHI. RS. 1400000/- THROUGH CHEQUE NO. 458564 DATED 6/1/2009 THE BOR, MADANGANAJ. THIS CHEQUE HAS BEEN CLEARED ON 20/3/2009 FROM THE A/C OF SHRI SHYAM LAL YADAV HELD WITH BOR (NOW ICICI) BEARING NO. 0110101417402 M/S. STERLING BUILD ESTATE P.LTD SMT. KISNI DEVI W/O. SHRI BANSHI LAL YADAV PART OF KHASRA NO. 96/1, MEASURING 02 BIGHA 01 BISWA 18 BISWANSHI. RS. 1300000/- THROUGH CHEQUE NO. 458563 DATED M/S. STERLING BUILD ESTATE SMT. KAMLA DEVI W/O. PART OF KHASRA NO. 96/1, ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 19 6/1/2009 THE BOR, MADANGANAJ. THIS CHEQUE HAS BEEN CLEARED ON 24/1/2009 FROM THE A/C OF SHRI SHYAM LAL YADAV HELD WITH BOR (NOW ICICI) BEARING NO. 0110101417402 P.LTD SHRI SHYAM LAL YADAV. MEASURING 02 BIGHA 01 BISWA 18 BISWANSHI WITH CONSTRUCTION OF 10 ROOMS. FROM THE COPIES OF REGISTERED SALE DEEDS, IT IS CLE AR THAT THE PROPERTIES FOR WHICH THE IKRARNAMA WAS EXECUTED HAS FINALLY BE EN REGISTERED IN THE NAMES OF FAMILY MEMBERS OF SHRI BALU RAM JAT AND SH RI SHYAM LAL YADAV (RELATIVE OF RADHEY SHYAM YADAV) AND THUS, IT CAN BE BELIEVED THAT THE TRANSACTION HAS ACTUALLY TOOK PLACE ON THE VALUE OF AMOUNT QUOTED IN IKRARNAMA. THUS, THE TRANSACTION OF RS. 2.16 CRORES [RS. 2.71 CRORES MINUS PAYMENT MADE THROUGH MANAGED BANK ING CHANNELS RS. 55 LACS (14 + 14 + 14 + 13)] HA BEEN MADE IN CA SH FROM UNDISCLOSED SOURCES. ON THE BASIS OF INFORMATION AVAILABLE IN AST MODULE AND ATMS MODULE, THE ASSESSEE SHRI BALU RAM JAT HAS NOT FILED HIS IN COME TAX RETURN FOR THE A.Y. 2009-2010 AND 2010-2011. A PAYMENT OF RS. 2.16 CRORES HAS BEEN MADE IN CASH DURING THE PERIOD 2/10/2008 AND 3 1/3/2009 I.E. PERIOD RELEVANT TO THE A.Y. 2009-2010. OUT OF THIS A SUM OF RS. 50 LACS HAS BEEN MADE ON 1/10/2008 AS REFLECTED IN IKRARNAM A ITSELF. THUS, A PAYMENT OF RS. 2.16 CRORES REMAINS ESCAPED ASSESSME NT IN THE HANDS OF THE PURCHASERS AS MENTIONED IN IKRARNAMA FOR THE A.Y. 2009-2010. THE PERUSAL OF BANK ACCOUNT NO. 51084340304 WITH SB BJ, MADANGANJ OF SHRI BALU RAM REFLECTS TRANSACTIONS OF CERTAIN DEPO SITS IN CASH ON ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 20 DIFFERENT DATES DURING THE PERIOD RELEVANT TO THE A .Y. 2009-2010 WHICH ARE REFLECTED AS UNDER:- DATE AMOUNT 23/09/2008 RS. 15000 12/01/2009 RS. 41000 27/01/2009 RS. 450000 30/1/2009 RS. 1110000 31/01/2009 RS. 300000 02/02/2009 RS. 200000 07/02/2009 RS. 800000 9/02/2009 RS. 446000 9/02/2009 RS. 145000 13/02/2009 RS. 1500 9/3/2009 RS. 1500 TOTAL RS. 3510000 THE ASSESSEE HAS FILED HIS RETURN OF INCOME FOR THE A.Y.2007-2008 AND 2008-2009 DECLARING TOTAL TAXABLE INCOME OF RS. 204 000 AND RS. 180500 RESPECTIVELY. RETURN OF INCOME FOR THE A.Y. 2009- 2010 HAS NOT BEEN FILED AND THUS, WITH MEAGER INCOMES IN THE EARLIER YEARS, THE ASSESSEE HAD NO SOURCES TO DEPOSITS CASH WOTH RS.3510000 IN HIS BANK ACCOUNT AS CASH. THE PAYMENTS FOR PURCHASE OF THE LAND REF ERRED ABOVE IN THE NAMES OF FAMILY MEMBERS HAVE BEEN MADE THROUGH THIS ACCOUNT AMOUNTING TO RS. 2800000 (RS. 1400000 + RS. 1400000 ). THE PERUSAL OF IKRARNAMA REFLECTS THAT THE OTHER P URCHASER ALONGWITH SHRI BALU RAM JAT WAS SHRI RADHEY SHYAM YADAV WHO H APPENS TO BE NEPHEW (BHANJA) OF SHRI SHYAM LAL YADAV. THE LAND I N QUESTION HAS BEEN REGISTERED IN THE NAMES OF KISNI DEVI W/O SHRI BANSHILAL YADAV (BANSHILAL IS BROTHER OF RADHEY SHYAM YADAV) AND SM T5. KAMLA DEVI, W/O SHRI SHYAMLAL YADAV, THE PERUSAL OF OTHER AVAIL ABLE INFORMATION ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 21 INCLUDING COPIES OF BANK ACCOUNTS OF SHRI SHYAM LAL YADAV (THE OTHER PURCHASER REFLECTED IN THE IKRARNAMA) AND SHRI BALU RAM JAT, IT HAS BEEN NOTICED THAT THE PAYMENTS OF RS.14,00,000/- AN D RS.13,00,000/- HAVE BEEN MADE THROUGH THE BANK ACCOUNT OF SHRI SHY AM LAL YADAV HELD WITH THE BANK OF RAJASTHAN LTD. (NOW ICICI). T HE SOURCE OF PAYMENT OF RS.13,00,000/- WAS MAINLY THROUGH CASH D EPOSIT OF RS.12,96,000/- MADE ON 22.01.2009 AND THE SOURCE OF PAYMENT OF RS.14,00,000/- WAS THROUGH CHEQUE AGAINST PAYMENT R ECEIVED FROM SHRI BALU RAM JAT THROUGH CHEQUE OF RS.14,00,000/-. THE SOURCES OF CASH DEPOSITS OF RS.13,00,000/- ARE NOT EXPLAINABLE AND THUS, IT CAN BE CONCLUDED THAT SUBSTANTIVELY THE DEPOSITS IN THE BA NK ACCOUNT OF SHRI SHYAM LAL YADAV WERE MADE BY SHRI BALU RAM JAT AND HE IS THE SOLE INVESTOR IN THE LAND BEARING KHASRA NO.96 AND MEASU RING 06 BIGHAS 8 BISWAS FOR A TOTAL CONSIDERATION OF RS.2.71 CRORES WITH M/S. STERLING BUILD ESTATE PVT. LTD. DURING THE F.Y. 2008-09 I.E. PERIOD RELEVANT TO THE A.Y. 2009-2010. 1. FROM THE ABOVE DETAIL/ELABORATED DISCUSSION, I H AVE REASONS TO BELIEVE THAT SHRI BALU RAM JAT IS THE SOLE INVESTOR IN DIFFERENT NAMES IN THE LAND BEARING KHASRA NO.96, MEASURING 06 BIGHAS 8 BISWAS FOR A TOTAL CONSIDERATION OF RS.2.71 CRORES WITH M/S. STE RLING BUILD ESTATE PVT. LTD DURING THE F.Y. 2008-2009 I.E. PERIOD RELEVANT TO THE A.Y. 2009-2010 AND THE SOURCES OF THIS INVESTMENT REMAINS UNEXPLAI NED. THUS, I HAVE REASONS TO BELIEVE THAT INCOME OF RS.2.71 CRORES IN VESTED IN THE LAND HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTIO N 147 OF THE INCOME TAX ACT, 1961 ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 22 21. IT WAS FURTHER SUBMITTED BY THE LD AR THAT DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS SUBMITTED BEFORE THE AO THAT NO SUCH INVESTMENT WAS MADE BY ANY AGREEMENT/IKRARNAMA AND A FAKE COMPLAINT WAS FILED BEFORE THE DIG REGISTRATION AND STAMPS ON THE BASIS OF ABOVE ALLEGED IKRARNAMA FOR SALE. ON RECEI PT OF SAID COMPLAINT, THE DIG REGISTRATION AND STAMPS DIRECTED THE SUB-RE GISTRAR, KISHANGARH TO INVESTIGATE THE MATTER AND THE SUB RE GISTRAR AFTER INVESTIGATION SUBMITTED HIS REPORT TO DIG STAMPS. T HE COLLECTOR, STAMPS, KISHANGARH HAS THEREAFTER PASSED THE ORDER VIDE CASE NO. 516/2011 NAMELY SUB-REGISTRAR KISHANGARH VS. BALURA M JAT DATED 22- 06-2016 AND IN THE SAID ORDER, THE ABOVE SAID AGREE MENT SHOWN IN THE NAME OF ASSESSEE HAS BEEN FOUND TO BE FAKE. IT WAS ACCORDINGLY SUBMITTED THAT NO SUCH ALLEGED AGREEMENT WAS MADE F OR RS. 271,00,000/-. THE AO THEREFORE EXAMINED THIS PARTI CULAR MATTER IN DETAIL AND HAS ALSO WRITTEN A LETTER DATED 14.12.20 16 TO DIG REGISTRATION AND STAMPS WHO HAS IN TURN REPLIED TO THE AO VIDE HIS LETTER NO. 10185 DATED 14.12.2016 AND THE CONTENTS THEREOF READS AS UNDER:- MIJKSDR FO'K; DS IZKLAKFXD I= DS E ESA YS[K GS FD IZDJ.K LA[;K 516@2011 MI IATH;D FDKUX<+ CUKE CKYWJKER TKV ESA F U.KZ; FNUAKD 22-06-2016 IKFJR DJ JSQJSAL [KKFJT FD;K X;K GSA FTL DH NKK;K IZFR LQYHK LUNHKZ GSRQ I= DS LAYXU GSA MDR IZDJ.K DKS FO F/KD IJH{K.K GSRQ JHEKU EGKFUJH{KD] IATH;U ,OA EQNZKAD FOHKKX] JKTLFK KU] VTESJ DKS FHKTOK;K TKUK GS FTUDS }KJK FOF/KD IJH{K.K FD;S TKU S DS IPKR IZDJ.K ESA IKFJR FU.KZ; DS FO:} VIHY FD;S TKUS VFKO K UGH FD;S TKUS DK FU.KZ; JHEKU EGKFUJH{KD EGKSN; VKIDS }KJK GH FY; K TKUK GSA ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 23 22. FURTHER, OUR REFERENCE WAS DRAWN TO FINDINGS IN THE ORDER PASSED BY THE COLLECTOR, STAMPS, KISHANGARH IN CASE OF SUB -REGISTRAR KISHANGARH VS. BALURAM JAT (CASE NO. 516/2011 DATED 22-06-2016) WHICH READ AS UNDER:- CGL MHK; I{K DH LQUH XBZA MDR BDJKJUKESA ESA TKS XQEUKE FKDK;RDRKZ }KJK DH X BZ FKDK;R DS IPKR DHKH HKH BL U;K;KY; ESA MIFLFKR UGH GQ,A FKD K;R LS O;FFKR I{KDKJ EKSTWNK VIZKFKHZX.K US MIFLFKR GKSDJ BL U;K; KY; ESA TFJ;S VF/KODRK VIUK I{K J[KRS GQ, TCKC IZLRQR DJ IZDJ.K D S RF;KSA LS LI'V BUDKJ FD;K VKSJ VIUS TCKC DS LEFKZU ESA NLRKOST BR; KFN IZLRQR FD;SA IJURQ MDR FKDK;RDRKZ US BL U;K;KY; DS LE{K DHKH GK FTJ UGHA GQVK UK GH MLUS DHKH MIFLFKR GKSDJ IZDJ.K DH LQUOKBZ DS VIUH FKDK;R DS LEFKZU ESA DKSBZ LK{; BR;KFNR IZLRQR FD;SA TGKWA RD RFKKDFFKR DWVJFPR NLRKOST GS MLDS DWVJFPR :I LS FVD QKSVKSLV SV DS IFJIS{; ESA HKH JKTLFKKU EQNZKAD VF/KFU;E DS RGR QKSVKSLVSV DS VK/KKJ IJ LVKEI OLWYH DK IZKO/KKU UGH GSA BL LECU/K ESA EKUUH; LOKS ZPP U;K;KY; DK U;K; FU.KZ; ,=VKBZ-VKJ- 1971 LQIZHE DKSVZ I`'B LA[; K 1070 ,OA 1997 1 MCY;W ,Y-;LH-I`'B LA[;K 484 LI'V GSA ,SLK DGHA IJ DKSBZ LK{;] IZEK.K UGH GS FD RFKKDFFKR FNUAKD 1-10-2008 DS DWVJFPR IZYS[K DH QKSVKSLVSV DKWAIH DKS I{KDKJKU }KJK MI;KSX ESA YK;K X;K GKS ,OA MDR NLRKOST DK FU'IKNU IZEKF.KR UG HA GSA ;G LALOHD`R RF; GS FD MDR [KLJK UECJ 96@1 DK FO; I= V IZKFKHZ DS I{K EA UGH GS ,OA VIZKFKHZ US MIJKSDR HKWFE [KJHN H KH UGH DH GSA MI IATH;D] FDKUX<+ }KJK RFKKDFFKR NLRKOSTKSA DK IATH; U DJ FTYK LRJH; LFEFR }KJK VFHKFU/KKZFJR NJ VUQLKJ EQNZKAD O IATH;U 'KQYD [KJHNNKJKSA LS OLWYH DH GS ,OA /KKJK 54 DS RGR IW.K Z EQNZKAFDR DJUS DK I`'BKADU HKH FD;K GSA MDR NLRKOST DK IATH;U IW.KZ E QNZKAD CKTKJ NJ IJ FD;K TKUK IZEKF.KR GSA VR% BL FOOSPU DS VK/KKJ I J HKH TKWAP ESA VURFYZIR FCUNW FULKJ GKS PQDK GSA ;G FD FKDK;RDRKZ US FTL DRKKDFFKR BDJKJUKESA DS VK /KKJ IJ FKDK;R DH GS OG VLY BDJKJUKEK UK GKSDJ EK= QKSVKS DKWAIH GS VKSJ ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 24 QKSVKS DKWAIH FDLH HKH IZDKJ LS LK[; ESA XZKG~; UGH A EKUH TK LDRH GSA FKDK;RDRKZ DK ;G FOF/KD NKF;RO FKK FD OG ;FN D KSBZ FKDK;R YSDJ VK;K GS RKS MLS VIUH FKDK;R DKS LKFCR DJUS GS RQ BKSL IZEK.K&I= U;K;KY; DKS MIYC/K DJKUS PKFG;S FKS IJURQ PWAFD OG ,D >WBH QTHZ FKDK;R DS VK/KKJ IJ EK= EKSTWNK VIZKFKHZ X.K DKS EKUFLD O VKFFKZD :I LS IJSKKU DJUK PKGRK GS BLFY;S MLUS VIU H UK RKS OFYN;R UK GH LGH IRK FKDK;R ESA DGHA NTZ FD;K GSA OG >WBS O QTHZ DWVJFPR NLRKOST DS VK/KKJ IJ EKUUH; U;K;KY; DK XQEJ KG DJUK PKGRK GSA ,SLH FLFKFR ESA MLDS }KJK IZLRQR ,SLS DWV JFPR QKSVKS DKWAIH TSLS NLRKOST IJ FDLH HKH DKUWUH N`F'VDKS.K LS FOOK L UGHA FD;K TK LDRK GSA MDR FOFHKUU U;K;KY;KSA DS U;KF;D N`'VKURKSA LS LI'V GKSRK GS VIZKFKHZ }KJK IZEKF.KR] LI'V] IZR;{K LK{; DS IZHKKO ESA JGRS GQ, ,D XQEUKE O;FDR }KJK FTLDK UKE] IRK HKH VIZKFKHZ DKS TKWAP DS NKSJKU CRK ;K UGHA X;K UK GH RFKKDFFKR NLRKOST DH UDY MLDS FO:} FOF/KD DK;ZOKGH FD;S TKUS CKCR NH XBZ RKS FDL IZDKJ LS VIZKFKHZ DKS TKWAP DS NKSJKU NKS'KH EKUUS DH LK{; DK FDFPAR EK= HKH FCUNW UGH CURK GSA MDR NLRK OST DWVJFPR :I LS RS;KJ FD;K X;K GS FDLH US TKUCW>DJ FEF;K }S'K OK FKDK;R DH GSA TGKWA RD LJDKJ DH IZKKLFUD DK;ZIZ.KKYH DK F DLH FKDK;R IJ DK;ZOKGH TKWAP FD;S TKUS DK FNKK FUNSZK GS MLE SA FKDK;RDRKZ DK UKE IRK LI'V GKSUS DS LKFK&LKFK FKDK;RDRKZ DK 'KIF K&I= HKH VUQLAYXU GKSUK VKO;D GKSRK GS] YSFDU MLDK IW.KZR;K VHKKO JGK GSA ;G IZDJ.K ,SLK GS FTLESA FKDK;RDRKZ IZKFKHZ I{K DK SBZ GS GH UGHA ;GKWAIJ ;G HKH ,D FOF/KD IGYW UTJ VKRK GS FD ;FN GLRXR TKWA P DS NKSJKU IKFJR FDLH VKNSK DKS PQUKSRH DH TKRH GS RKS MLESA IZKFKHZ@IZFRI{KH FDLS CUK;K TK;SA D;K TKWAT VF/KDKJH TKS LO;A FU.KKZ;D GS OG IZFRI{KH DS :I ESA I{KDKJ CUSXK\ BL IFJIS{; ESA TKS FOF/K DH VK /KKJHKWR FLFKFR GS FD IZR;SD IZDJ.K ESA NKS I{K GKSXSA IZDKJ.K/KHU FKDK; R ESA NWLJK I{K DKSU GS ;G BL U;K;KY; DS LE{K HKH LI'V UGH GKS JGK GSA BLLS LI'V GKSRK GS FD FKDK;RDRKZ }KJK EKSTWNK VIZKFKHZX.K DKS CSOTG I JSKKU DJUK PKGRH GS MDR RFKKDFFKR BDJKJUKESA ESA MLDS LO;A DS DWVJFP R IZRHR GKSRS GSA GEUS FOOKFNR IZDJ.K ,OA I=KOYH MIYC/K LELR LK{;@LCW RKSA DK ,OA VIZKFKHZ DS FO}KU VF/KODRK }KJK IZLRQR FYF[KR TCKC VOYKSDU ,OA V/;;U FD;KA IFJ.KKER% I=KOYH ESA MIYC/K FJDKMZ DS V UQLKJ FO}KU ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 25 VF/KODRK }KJK CGL DS NKSJKU IZLRQR FYF[KR TCKC DS L KFK EKUUH; MPPRE U;K;KY; ,OA EKUUH; MPP U;K;KY; FNYYH] JKTLFKK U] IATKC ,OA GFJ;K.KK DS U;KF;D N`'VKUR DS GOKYS DS FOOPU DS VK/KKJ ;G LI'V GKSRK GS FD MDR FOOKFNR HKWFE BDJKJUKESA LS UGHA VK BZA QTHZ ,OA DWVJFPR BDJKJUKEK LS IZKIR UGH DH XBZ GSA VR% LOIZS J.KK LS NTZ IZDJ.K DKS [KKFJR FD;K TKRK GSA MIJKSDR IZDJ.K ESA CDK;K JKFK UGHA GKSUS LS DK;ZOKGH LEKIR DH TKRH GSA I=KOYH FOF/KD I JH{K.K GSRQ JHEKU EGKFUJH{KD IATH;U ,OA EQNZKAD FOHKKX JKTLFKKU] VTES J DKS FHKTOKBZ TKOSA I=KOYH QSLYKQEKJ GKSDJ UECJ LS DE GKSA FU.KZ; [KQYS FNUKAD 22&06&2016 DKS U;K;KY; ESA LQU K;KA 23. IT WAS FURTHER SUBMITTED THAT AFTER TAKING INTO CONSIDERATION THE ABOVE FACTS AND CARRYING OUT NECESSARY VERIFICATION INCLUDING DIRECTLY COMMUNICATING WITH THE CONCERNED AUTHORITIES, THE A O HAS RECORDED HIS FINDINGS IN THE ASSESSMENT ORDER DATED 30.12.2016 W HICH READS AS UNDER:- AS PER INFORMATION AVAILABLE WITH THE DEPARTMENT, T HE ASSESSEE ALONGWITH SHRI RADHEY SHYAM YADAV S/O SHRI BHOLA RA M YADAV HAS EXECUTED AN IKRARNAMA WITH M/S STERLING B UILD ESTATE PVT. LTD. THROUGH ITS DIRECTOR SHRI DHARMEND RA SINGH RATHORE FOR PURCHASE OF AGRICULTURE LAND MEASURING 6 BIGHA 5.70 BISWAS KHASARA NO. 96, SITUATED AT MADANGANJ, KISHANGARH ( AJMER) ON 01/10/2008. AS PER IKRARNAMA , THE ACTUAL SALE CONSIDERATION WAS RS. 2,71,00,000/- WHI CH INCLUDES CASH OF RS. 50 LAKHS AND REMAINING OF RS. 221/- RECEIVED TO BE THROUGH POST DATED CHEQUES BEARING N O. 213745-213749. THIS IKRARNAMA WAS DULY SINGED BY B UYER, SELLER AND WITNESSES AND WAS ALSO NOTARIZED. IT HAS CAME TO ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 26 NOTICE THAT THE ASSESSEE HAS NOT DISCLOSED SOURCE O F INVESTMENT OF RS. 2,71,00,000/- IN HIS RETURN OF IN COME AS THE ASSESSEE DON'T FILED ANY RETURN OF INCOME AS PE R THE PROVISION OF SECTION 139 OF THE INCOME-TAX ACT, 196 1. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT IS NOTICED THAT THE SUB REGISTRAR, KISHANGARH HAS MADE A REFER ENCE TO THE COLLECTOR (STAMPS), AJMER ON THE BASIS OF AGREE MENT AS DISCUSSED ABOVE. THE COLLECTOR (STAMPS), AJMER H AS PASSED ORDER IN CASE NO. 516/2011 DATED 22/06/2016 BY QUASHING THE REFERENCE MADE BY THE SUB-REGISTRAR, KISHANGARH AND NOTARY PUBLIC HAS ALSO DENIED TO NOT ARIZED THE SAME. FURTHER, THE ASSESSEE HAS FILED AN AFFIDAVIT NO. G 186024 DATED 28/12/2016 STATING THAT IF ANY ADVERSE DECISI ON IS PASSED AGAINST HIM BY THE HON'BLE HIGH COURT AS WEL L AS OTHER COURTS OR ANY AUTHORITY WILL ALSO BE BINDING ON HIM TO PAY TAXES TO REVENUE AUTHORITIES INCLUDING INCOME-T AX AUTHORITIES AS DETERMINED THEM. LOOKING TO THE FACT S AND CIRCUMSTANCES OF THE CASE NO INTERFERENCE MADE ON T HE ISSUE. 24. IT WAS FURTHER SUBMITTED THAT ASSESSMENT OF SEL LER COMPANY I.E. M/S STERLING BUILD ESTATE PVT. LTD. WAS ALSO REOPEN ED ON THE SAME REASONS BY THE LD. AO U/S 148 OF THE I T ACT, 1961 BASIS THE SAME ALLEGED AGREEMENT AND AFTER VERIFICATION OF ALL THE RELEVANT DOCUMENTS/FACTS OF THE CASE, THE LD. AO HAS ACCEPTE D THAT NO EXTRA SALE CONSIDERATION WAS RECEIVED IN CASH OF RS. 2.21 CRORES AS MENTIONED ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 27 IN THE ALLEGED AGREEMENT TO SALE AND SALE CONSIDERA TION OF RS 55 LACS AS PER REGISTERED SALE DEED DURING OFFERED TO TAX IN R ETURN OF INCOME WAS ACCEPTED. OUR REFERENCE WAS DRAWN TO THE FINDINGS OF THE AO VIDE HIS ORDER PASSED UNDER 143(3) R/W 147 DATED 30.12.2016 WHICH READS AS UNDER:- THE ASSESSEE HAS FILED ITS RETURN OF INCOME FOR TH E A.Y. 2009-10 ON 31.03.2010 DECLARING INCOME AT RS. NIL. LATER ON , AS PER INFORMATION AVAILABLE WITH THE DEPARTMENT, THE ASSE SSEE HAS EXECUTED AN LKRARNAMA WITH SH. BALU RAM JAT S/O SHR I GHASIRAM & SH. RADHEY SHYAM YADAV S/O BHOLARAM YADA V FOR SALE OF AGRICULTURE LAND MEASURING 6 BIGHA 5.70 BIS WAS KHASARA SITUATED AT NO.96, MANDAGANJ, KISHANGARH (AJMER) ON 01.10.2008. AS PER IKRARNARNA, THE ACTUAL SALE CONSIDERATION WAS RS. 2,71,00,000/- (RUPEES TWO CRO RE AND SEVENTY ONE LAKHS) WHICH INCLUDES CASH OF RS. 50 LA KHS AND RS. 221 LAKHS RECEIVED THROUGH POST DATED CHEQUES SERIA L NO. 213745-213749. THIS IKRARNAMA WAS DULY SIGNED BY BU YER, SELLER AND WITNESS AND WAS ALSO NOTARIZED. 2. FURTHER, IT HAS CAME TO NOTICE THAT THE ASSESSEE HAS NOT DISCLOSED SALE CONSIDERATION OF RS. 2,71,00,000/- I N ITS RETURN OF INCOME. THEREFORE, NOTICE U/S 148 WAS ISSUED ON 06.10.2015 AFTER OBTAINING PRIOR APPROVAL OF THE PR . COMMISSIONER OF INCOME TAX-1, JAIPUR. THE NOTICE WA S DULY SERVED UPON THE ASSESSEE ON 06.10.2015. THE A/R OF THE ASSESSEE HAS FILED HIS WRITTEN SUBMISSION ON 06.11. 2015 ALONGWITH REVISED RETURN OF INCOME E- FILED ON 04.1 1.2015 IN ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 28 RESPONSE TO NOTICE ISSUED U/S 148 OF THE ACT DECLAR ING GROSS SALES OF RS. 55 LAKHS AND TOTAL INCOME AT RS. 5,81, 660/-. THEREAFTER, A COPY OF REASONS RECORDED WAS PROVIDED TO THE ASSESSEE. SUBSEQUENTLY, NOTICES U/S 143(2) AND 142( 1) ALONGWITH QUESTIONNAIRE WERE ISSUED ON 09.05.2016 W HICH WAS DULY SERVED UPON THE ASSESSEE ON 10.05.2016 REQ UIRING CERTAIN DETAILS RELEVANT TO THE CASE. 3. THE AR OF THE ASSESSEE, SH. R. K. BHATRA, C. A. ATTENDED PROCEEDINGS FROM TIME TO TIME AND FILED WRITTEN SUB MISSION AND DETAILS. THE DETAILS AND EXPLANATION HAVE BEEN EXAM INED AND DISCUSSED WITH HIM. DURING THE COURSE OF ASSESSMENT PROCEEDING THE ASSESSEE FILED REVISED RETURN OF INCOME ALONGWI TH COMPUTATION OF TOTAL INCOME DECLARING INCOME AT RS. 5,81,660/- ON 04.11.2015 AS AGAINST INCOME DECLARED AT NIL IN THE ORIGINAL RETURN OF INCOME FILED ON 31.03.2010. AFTER CONSIDERING THE FACTS OF THE CASE AND DETAILS FILED , THE RETURNED INCOME AS DECLARED BY THE ASSESSEE IN ITS REVISED R ETURN FILED IN RESPONSE TO NOTICE U/S 148 IS ACCEPTED. SINCE THE A SSESSEE HAD CONCEALED HIS INCOME AND FURNISHED INACCURATE PARTI CULARS OF INCOME TO THE ABOVE EXTENT, THEREFORE PENALTY PROC EEDINGS U/S 271(1)(C) R.W.S. 274 ARE BEING INITIATED SEPARATELY . ASSESSED AT RS. 5,81,660/-. DEMAND NOTICE AND CHALL AN ARE BEING ISSUED. INTEREST 234A AND 234B ARE BEING CHAR GED AS PER ITNS 150 APPENDED TO THIS ORDER, WHICH FORMS A PART OF THIS ORDER. PENALTY PROCEEDINGS U/S 271(1)(C) RWS 2 74 HAVE ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 29 BEEN INITIATED SEPARATELY FOR CONCEALMENT OF INCOME/FURNISHING OF INACCURATE PARTICULARS OF INCO ME. 25. IT WAS ACCORDINGLY SUBMITTED THAT THE MATTER W AS EXAMINED BY THE AO AND BASIS SUCH EXAMINATION, THE ORDER HAS BE EN PASSED BY THE AO AND THEREFORE, THE FINDINGS OF THE LD CIT THAT T HE AO HAS NOT EXAMINED THE MATTER AND THUS THE ORDER PASSED BY HI M IS ERRONEOUS IS NOT CORRECT. 26. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND PU RSUING AVAILABLE ON RECORD, WE ARE OF THE CONSIDERED VIEW THAT THE O RDER PASSED BY THE ASSESSING OFFICER CANNOT BE HELD AS ERRONEOUS AND P REJUDICIAL TO THE INTEREST OF REVENUE FOR THE REASONS STATED HEREIN. WE FIND THAT THE CASE OF THE ASSESSEE WAS REOPENED AND ONE OF THE RE ASONS RECORDED BY THE AO WAS SOURCE OF INVESTMENT OF RS 2.71 CRORES A S PER COPY OF AGREEMENT ENTERED INTO WITH M/S STERLING BUILD ESTA TE PRIVATE LIMITED WHICH REMAIN UNEXPLAINED AND TO THAT EXTENT, THE IN COME OF THE ASSESSEE HAS ESCAPED ASSESSMENT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE MATTER WAS EXAMINED BY THE ASSESSI NG OFFICER WHEREIN THE ASSESSEE SUBMITTED THAT NO SUCH AGREEMENT WAS E NTERED INTO AND EVEN A COMPLAINT HAS BEEN LODGED WITH THE STAMP AUT HORITIES REGARDING EVASION OF STAMP DUTY AND ON INVESTIGATION, AN ORDE R DATED 22.06.2016 HAS BEEN PASSED BY COLLECTOR (STAMPS) WHEREIN THE S AID AGREEMENT WAS FOUND TO BE FAKE. A COPY OF SAID ORDER DATED 2 2.06.2016 WAS FILED BEFORE THE ASSESSING OFFICER AND IN TURN, THE ASSES SING OFFICER ALSO ENQUIRED FROM DIG STAMPS ABOUT THE VERACITY OF SUCH ASSERTION MADE BY THE ASSESSEE AND PASSING OF SUCH AN ORDER WHICH WAS DULY CONFIRMED ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 30 BY THE DIG STAMPS. THE ASSESSING OFFICER HAS THEREA FTER RECORDING A SPECIFIC FINDING IN THE ASSESSMENT ORDER WHICH READ S AS UNDER: DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT IS NOTICED THAT THE SUB REGISTRAR, KISHANGARH HAS MADE A REFER ENCE TO THE COLLECTOR (STAMPS), AJMER ON THE BASIS OF AGREE MENT AS DISCUSSED ABOVE. THE COLLECTOR (STAMPS), AJMER H AS PASSED ORDER IN CASE NO. 516/2011 DATED 22/06/2016 BY QUASHING THE REFERENCE MADE BY THE SUB-REGISTRAR, KISHANGARH AND NOTARY PUBLIC HAS ALSO DENIED TO NOT ARIZED THE SAME. WE THEREFORE FIND THAT THE ASSESSING OFFICER HAS DU LY EXAMINED THE MATTER AND HAS CARRIED OUT REQUISITE ENQUIRY AND IN VESTIGATION WHICH WAS REASONABLY EXPECTED FROM HIM AND WAS SATISFIED THAT THERE WAS NO BASIS TO MAKE ANY ADDITION AND ACCORDINGLY, NO ADDI TION WAS FINALLY MADE TOWARDS UNDISCLOSED SOURCE OF SUCH INVESTMENT AS ALLEGED INITIALLY WHILE RECORDING THE REASONS U/S 148 OF THE ACT. FU RTHER, WE FIND THAT ON SIMILAR GROUNDS, THE MATTER IN THE HANDS OF M/S STERLING BUILD ESTATE PVT LIMITED WAS REOPENED AND AFTER VERIFICATION OF ALL THE RELEVANT DOCUMENTS/FACTS OF THE CASE, THE AO HAS ACCEPTED TH AT NO EXTRA SALE CONSIDERATION WAS RECEIVED IN CASH OF RS. 2.21 CROR ES AS MENTIONED IN THE ALLEGED AGREEMENT TO SALE FROM THE ASSESSEE AND SALE CONSIDERATION OF RS 55 LACS AS PER REGISTERED SALE DEED DURING OF FERED TO TAX IN RETURN OF INCOME WAS ACCEPTED. WE THEREFORE FIND THAT THER E IS CONCURRING FINDINGS BY TWO ASSESSING OFFICERS OF RESPECTIVE AS SESSEES WHEREIN THEY HAVE HELD THAT NO SUCH INVESTMENT WAS MADE AND MONE Y HAS NOT CHANGED HANDS AND SO CALLED AGREEMENT TO SALE CANNO T BE RELIED UPON ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 31 AS THE SAME WAS HELD TO BE A FAKE AGREEMENT BY THE STAMP AUTHORITIES. THEREFORE, THE FINDINGS OF LD CIT THAT THE ASSESSIN G OFFICER SHOULD HAVE DONE A PROTECTIVE ASSESSMENT PENDING ADJUDICATION B Y THE HIGHER AUTHORITIES CANNOT BE ACCEPTED AS THERE IS NOTHING ON RECORD THAT THE ORDER OF THE COLLECTOR STAMPS HAS NOT BEEN ACCEPTED AND ANY FURTHER APPEAL HAS BEEN FILED AGAINST THE SAME. AT THE TIME OF PASSING OF THE ASSESSMENT ORDER, THE ORDER OF COLLECTOR STAMPS WAS ON RECORD AND EVEN AT THE TIME OF PASSING OF THE ORDER BY THE LD CIT, THERE IS NOTHING ON RECORD WHICH ESTABLISHES THAT THE ORDER OF THE C OLLECTOR STAMPS HAS BEEN APPEALED AGAINST AND THE MATTER HAS BEEN ADMIT TED FOR ADJUDICATION BY THE HIGHER AUTHORITIES. IN OUR VI EW, TAKING AN AFFIDAVIT FROM THE ASSESSEE STATING THAT IF ANY ADVERSE DECIS ION IS PASSED AGAINST HIM BY THE COURTS, THE ASSESSEE SHALL BE BINDED TO PAY TAXES IS MORE A PRECAUTIONARY APPROACH ADOPTED BY THE ASSESSING OFF ICER AND THE ORDER SO PASSED BY THE ASSESSING OFFICER CANNOT BE HELD T O BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE WHERE HE HAS CARRIED OUT THE NECESSARY AND THOROUGH EXAMINATION OF THE MATTER. 27. NOW, COMING TO THE ISSUE OF DEPOSITS IN THE BAN K ACCOUNT MAINTAINED BY THE ASSESSEE, WE FIND THAT THIS WAS A GAIN ONE OF THE REASONS TO REOPEN THE CASE OF THE ASSESSEE U/S 147 AND THEREAFTER, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE MA TTER WAS EXAMINED BY THE ASSESSING OFFICER WHEREIN THE ASSESSEE WAS A SKED TO EXPLAIN THE SOURCE OF SUCH DEPOSITS, FURTHER STATEMENT OF THE P ERSON WHOM THE ASSESSEE CLAIM TO HAVE RECEIVED THE AMOUNT WERE ALS O RECORDED AND THESE PERSONS ALSO FILED AFFIDAVITS BEFORE THE ASSE SSING OFFICER. TAKING ALL THESE EXPLANATION AND DOCUMENTATION INTO CONSID ERATION, THE ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 32 ASSESSING OFFICER HAS RECORDED HIS FINDINGS IN THE ASSESSMENT ORDER WHICH READS AS UNDER:- FURTHER, THE ASSESSEE WAS ASKED TO EXPLAIN SOURCES OF THESE CASH DEPOSITS IN HIS BANK ACCOUNTS. IN COMPLI ANCE, THE ASSESSEE HAS SUBMITTED THAT HE HAS DEPOSITED RS . 35,10,000/- IN CASH AND THE REMAINING AMOUNT OF RS. 15,00,198/- THROUGH CHEQUES. THE DEPOSITS MADE THRO UGH CHEQUES HAVE BEEN VERIFIED FROM THE DETAILS, EVIDEN CES ETC. AS SUBMITTED BY THE AIR OF THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON TEST CHECK BASI S. FURTHER, DURING THE COURSE OF ASSESSMENT PROCEEDING S, THE ASSESSEE ON 26/10/15 HAS FURNISHED EVIDENCES EXPLAI N SOURCES OF CASH DEPOSITS IN THE BANK ACCOUNT AS UND ER:- A. VEHICLE SOLD TO SUKH RAM RS. 7,00,000 B. VEHICLE SOLD TO SHEO RAM RS. 6,00,00 C. VEHICLE SOLD TO PUSA RAM RS. 4,00,000 D. PLOT SOLD TO VARIOUS PARTIES RS. 1,19,000 E. AGRICULTURE INCOME RS. 2,52,000 F. RECEIVED FROM HARI RAM RS. 2,00,000 G. FUNDS FROM OPERATIONS RS. 4,80,000 H. AMOUNT ROUTED THROUGH KAILASH PAID RS. 6,00,000 RS. 6,00,000 4.1 DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE FILED AFFIDAVITS OF SHRI SUKH RAM, SHRI PUSA RAM AN D SHRI KAILASH EXPLAINING THE COURSES OF CASH DEPOSIT IN THE BANK ACCOUNTS. ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 33 THE ASSESSEE FILED AN LETTER DATED 2/12/2016 STATIN G THAT HE IS NOT IN POSITION TO EXPLAIN THE SOURCES OF CASH D EPOSITS IN THE BANK ACCOUNTS OF RS. 1,79,000/-AND ALSO STATED THAT HE IS NOT IN POSITION TO EXPLAIN THE SOURCES OF DRAWIN G MADE DURING THE YEAR RS. 1,20,000/-. THUS, TOTAL AMOUNT OF RS. 1,79,000 + RS. 1,20,000= 2,99,000/-IS HEREBY SURREN DER BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEE DINGS. 4.2 IN VIEW OF THE ABOVE, IT HAS BEEN REVEALED THA T THE ASSESSEE HAS BEEN FAILED TO EXPLAIN THE SOURCE OF C ASH DEPOSITS MADE IN HIS BANK ACCOUNT. THEREFORE, THE UNEXPLAINED AMOUNT OF RS. 2,99,000/- AS DEPOSITED I N THE BANK ACCOUNT OF THE ASSESSEE REMAINS TO BE UNEXPLAI NED MONEY AND THEREFORE, THE SAME IS RS. 2,99,000/- HER EBY ADDED BACK TO THE TAXABLE INCOME OF THE ASSESSEE U/ S 68 OF THE INCOME-TAX, 1961. 28. WE THEREFORE FIND THAT THE ASSESSING OFFICER HA S CARRIED OUT THE REQUISITE EXAMINATION DURING THE COURSE OF ASSESSME NT PROCEEDINGS AND BASIS SUCH EXAMINATION, HE HAS BROUGHT TO TAX AN AM OUNT OF RS 2.99 LACS AS UNEXPLAINED DEPOSITS IN THE HANDS OF THE AS SESSEE. IT IS THEREFORE NOT A CASE OF LACK OF ENQUIRY AND FURTHER , WE FIND THAT ASSESSING OFFICER HAS TAKEN ALL REQUISITE STEPS IN TERMS OF CALLING FOR THE EXPLANATION OF THE ASSESSEE, EXAMINING THE BANK STA TEMENTS, CALLING FOR STATEMENTS OF THE PERSONS AND ALSO TAKING INTO CONS IDERATION THE AFFIDAVITS FILED BY THESE PERSONS AND THEREAFTER, H AS COME TO A FINDING THAT OUT OF TOTAL DEPOSITS, AN AMOUNT OF RS 2.99 LA CS REMAINS ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 34 UNEXPLAINED AND THE SAME WAS BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE. THE LD CIT HAS REFERRED TO CERTAIN INCON SISTENCIES IN THE STATEMENTS AND THE AFFIDAVITS SO FILED AND HAS HELD THAT THE AO HAS FAILED TO MAKE FURTHER ENQUIRIES IN THE MATTER AND TO THAT EXTENT, THE ORDER OF THE AO IS ERRONEOUS AND PREJUDICIAL IN NAT URE. HOWEVER, WHAT FURTHER ENQUIRIES ARE REQUIRED IN THE MATTER HAVE N OT BEEN SPELT OUT BY THE LD CIT WHEN THE EXPLANATION OF THE ASSESSEE, TH E STATEMENTS AND AFFIDAVITS OF THE PERSON FROM WHOM THE ASSESSEE CLA IMS TO HAVE RECEIVED THE MONEY IS ON RECORD. IN SUCH A SITUATI ON, WHERE ENQUIRIES HAVE ALREADY BEEN MADE BY THE AO AND ALL MATERIAL I S ON RECORD, THE LD CIT SHOULD COME WITH A DEFINITE FINDING INSTEAD OF REMANDING THE MATTER TO THE ASSESSING OFFICER FOR FRESH ADJUDICAT ION. IN THIS REGARD, WE REFER TO THE DECISION OF THE COORDINATE BENCH IN CASE OF M/S DANGAYACH HOTELS (P) LTD VS PR. CIT (ITA NO. 290/JP/2017 DATED 4.09.2017 ) WHEREIN THE RELEVANT FINDINGS READ AS UNDER:- WE WOULD LIKE TO STATE THAT ONCE NECESSARIES ENQUI RIES ARE CONDUCTED AND THE CLAIM OF ASSESSEE IS FOUND IN ACC ORDANCE WITH LAW AND ALSO NOT IN VIOLATION OF BOARD CIRCULARS/ I NSTRUCTIONS AND THE AO ADOPTED A PLAUSIBLE VIEW PERMISSIBLE IN LAW THEN SUCH VIEW CANNOT BE OVERRULED BY TAKING RECOURSE OF SECT ION 263 OF THE ACT. THE LD. PR.CIT SHOULD HAVE SHOWN THAT THE VIEW TAKEN BY THE AO IS UNSUSTAINABLE IN LAW. SIMPLY EXPRESSING THE V IEW THAT THE AO SHOULD HAVE CONDUCTED ENQUIRIES IN A PARTICULAR MANNER AS DESIRED BY HIM THEN SUCH COURSE OF ACTION OF LD. PR . CIT IS NOT IN ACCORDANCE WITH MANDATE OF PROVISION OF SECTION 263 OF THE ACT. THE LD. PR. CIT HAS TAKEN THE SUPPORT OF NEWLY INSE RTED EXPLANATION 2(A) TO SECTION 263 OF THE ACT. EVEN TH OUGH THERE IS A ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 35 DOUBT AS TO WHETHER THE SAID EXPLANATION, WHICH WAS INSERTED BY THE FINANCE ACT, 2015 W.E.F. 1-06-2015 WOULD BE APP LICABLE TO THE ASSESSMENT ORDER PASSED PRIOR TO THE EFFECTIVEN ESS OF THE AMENDMENT YET WE ARE OF THE VIEW THAT EXPLANATION C ANNOT BE SAID TO HAVE OVERRIDE THE LAW INTERPRETED BY THE HO NBLE DELHI HIGH COURT IN THE CASE OF NAGESH KNITWEARS PVT. LTD . (2012) 345 ITR 135 WHEREIN THE HONBLE DELHI HIGH COURT HAS EL UCIDATED AND EXPLAINED THE SCOPE OF PROVISION OF 263 OF THE ACT AND THE SAME HAS BEEN EXTRACTED BY HONBLE DELHI HIGH COURT IN T HE CASE OF CIT VS GOETZE (INDIA) LTD.,361 ITR 505 WHICH READS AS U NDER:- THUS, IN CASES OF WRONG OPINION OR FINDING ON MER ITS, THE COMMISSIONER OF INCOME TAX HAS TO COME TO CONCLUSIO N AND HIMSELF DECIDED THAT THE ORDER IS ERRONEOUS BY COND UCTING NECESSARY ENQUIRY. IF REQUIRED AND NECESSARY, BEFOR E THE ORDER UNDER SECTION 263 IS PASSED. IN SUCH CASES, THE ORD ER OF THE ASSESSING OFFICER WILL BE ERRONEOUS BECAUSE THE ORD ER IS NOT SUSTAINABLE IN LAW AND THE SAID FINDING MUST BE REC ORDED. THE COMMISSIONER OF INCOME TAX CANNOT REMAND THE MATTER TO THE ASSESSING OFFICER TO DECIDE WHETHER THE FINDINGS RE CORDED DARE ERRONEOUS. IN CASES WHERE THERE IS INADEQUATE ENQUI RY BUT NOT LACK OF ENQUIRY, AGAIN THE COMMISSIONER OF INCOME T AX MUST GIVE AND RECORD A FINDING THAT THE ORDER/ ENQUIRY MADE I S ERRONEOUS. THIS CAN HAPPEN IF AN ENQUIRY AND VERIFICATION IS C ONDUCTED BY THE COMMISSIONER OF INCOME TAX AND HE IS ABLE TO ESTABL ISH AND SHOW THE ERROR OR MISTAKE MADE BY THE ASSESSING OFF ICER, MAKING THE ORDER UNSUSTAINABLE IN LAW. IN SOME CASES POSSI BLY THOUGH ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 36 RARELY, THE COMMISSIONER OF INCOME TAX CAN ALSO SHO W AND ESTABLISH THAT THE FACTS ON RECORD OR INFERENCE DRA WN FROM FACTS ON RECORD AS PER SE JUSTIFIED AND MANDATED FURTHER ENQUIRY OR INVESTIGATION BUT THE ASSESSING OFFICER HAD ERRONEO USLY NOT UNDERTAKEN THE SAME. HOWEVER, THE SAID FINDING MUST BE CLEAR, UNAMBIGUOUS AND NOT DEBATABLE. THE MATTER CANNOT BE REMITTED FOR A FRESH DECISION TO THE ASSESSING OFFICER TO CO NDUCT FURTHER ENQUIRIES WHETHER A FINDING THAT THE ORDER IS ERRON EOUS. FINDING THAT THE ORDER IS ERRONEOUS IS A CONDITION OR REQUI REMENT WHICH MUST BE SATISFIED FOR EXERCISE OF JURISDICTION UNDE R SECTION 263 OF THE ACT. IN SUCH MATTERS, TO REMAND THE MATTER/ ISS UE TO THE ASSESSING OFFICER WOULD IMPLY AND MEAN THE COMMISSI ONER OF INCOME TAX HAS NOT EXAMINED AND DECIDED WHETHER OR NOT THE ORDER IS ERRONEOUS BUT HAS DIRECTED THE ASSESSING OFFICER TO DECIDE THE ASPECT/QUESTION. WE WOULD ALSO LIKE TO STATE THAT THIS EXPLANATION C ANNOT OVERRIDE THE INTERPRETATION PROVIDED BY THE HONBLE DELHI HI GH COURT AND IF THAT BE THE CASE THEN THE LD. PR. CIT CAN FIND FAUL T WITH EACH AND EVERY ASSESSMENT WITHOUT CONDUCTING ANY ENQUIRIES O R VERIFICATION IN ORDER TO ESTABLISH THAT THE ASSESSMENT ORDER IS NOT SUSTAINABLE IN LAW AND ORDER FOR REVISION. WE WOULD ALSO LIKE T O STATE THAT THE LD. PR. CIT CAN FORCE THE AO TO CONDUCT THE ENQUIRI ES IN THE MANNER PREFERRED BY HIM THEN IT WILL BE PREJUDICED TO THE INDEPENDENT APPLICATION OF MIND BY THE AO AND DEFIN ITELY THAT COULD NOT BE INTENTION OF THE LEGISLATURE IN INSERT ING EXPLANATION 2 TO SECTION 263 OF THE ACT. SUCH INTERPRETATION WOUL D LEAD TO ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 37 UNENDING LITIGATIONS AND THERE WOULD NOT BE ANY POI NT OF FINALITY IN THE LEGAL PROCEEDINGS. THE HONBLE SUPREME COURT IN THE CASE OF PARSHURAM POTTERY WORKS CO. LTD VS ITO (1977) 10 6 ITR 1 HELD THAT THERE MUST BE A POINT OF FINALITY IN ALL LEGAL PROCEEDINGS. IN OUR CONSIDERED VIEW, THIS PROVISION SHALL APPLY IF THE ORDER HAS BEEN PASSED WITHOUT MAKING ENQUIRIES OR VERIFICATIO N WHICH A REASONABLE AND PRUDENT OFFICER SHOULD HAVE CARRIED OUT IN SUCH CASES. UNDER THESE FACTS AND RATIO DECIDED BY THE H ONBLE COURTS IN CASE OF CIT VS. GREEN WORLD CORPORATION 314 ITR 81 (SC), CIT V. KELVINATOR OF INDIA LTD. 332 ITR 231 (DELHI), CI T-8, BOMBAY V. FINE JEWELLERY (INDIA) LTD. 372 ITR 303 (BOMBAY) AN D CIT V. RELIANCE COMMUNICATION LTD (2017) 396 ITR 217, WE ARE OF THE CONSIDERED VIEW THAT IT IS NOT A FIT CASE OF INVOKI NG THE PROVISIONS OF SECTION 263 OF THE ACT. THEREFORE, WE SET ASIDE THE ORDER OF THE LD. PR. CIT AND RESTORE THE ASSESSMENT ORDER O N THIS ISSUE IN THE LIGHT OF THE ABOVE DELIBERATIONS. THUS GROUND N O. 1, 2 AND 3 (A) OF THE ASSESSEE ARE ALLOWED 29. WE HAVE ALSO GONE THROUGH THE DECISION IN CASE OF AASHIYANA DEVELOPES (SUPRA). THE SAID CASE WAS RENDERED IN C ONTEXT OF COMMISSION PAYMENT AND COMPLETE LACK OF ENQUIRY AS AGAINST THE CASE OF THE ASSESSEE WHEREIN WE FIND THAT ENQUIRIES HAVE BEEN CONDUCTED BY THE ASSESSING OFFICER AND THUS, THE SAID DECISION D OESNT SUPPORT THE CASE OF THE REVENUE. 30. IN LIGHT OF AFORESAID DISCUSSION, WE FIND THAT ON THE ISSUE OF DEPOSITS IN THE ASSESSEES BANK ACCOUNT, THE AO HAS DULY EXAMINED THE ITA NO. 690/JP/2019 BALURAM JAT VS. PR. CIT 38 MATTER AND HAS TAKEN A CONSIDERED VIEW AND THE LD P R CIT WAS NOT CORRECT IN EXERCISING JURISDICTION UNDER SECTION 26 3 OF THE ACT IN REMANDING THE MATTER FOR FRESH ADJUDICATION. 31. IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF T HE CASE AND IN LIGHT OF AFORESAID DISCUSSION AND FOLLOWING THE DECISIONS REFERRED SUPRA, WE ARE OF THE CONSIDERED VIEW THAT IN RESPECT OF BOTH THE ISSUES, THE LD PR CIT WAS NOT CORRECT IN EXERCISING JURISDICTION UNDE R SECTION 263 OF THE ACT AND THE ORDER PASSED BY THE LD PR. CIT PASSED U /S 263 IS ACCORDINGLY SET-ASIDE AND THE ORDER PASSED BY THE A O U/S 143(3) R/W 147 IS SUSTAINED. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON12/03/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 12/03/2020. * SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- BALURAM JAT, AJMER. 2. IZR;FKHZ@ THE RESPONDENT- PR. CIT,AJMER. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 690/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR.