SHRIMATI RAVINDER BAWA, JALANDHAR V. INCOME TAX OFFICER WARD-2(3), JALANDHAR

ITA 703/ASR/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0353 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 25-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Document seized; Principle of natural justice; Source of fund; Deemed to accrue or arise in india; Corroborative evidences; Prejudicial to interest; Documents seized; Set aside
• Section: 142(1); 133(6); 195; 143(2); 69A; 48; 13; 119; 22; 147; 131; 148; 263; 63

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE SH. LALIET KUMAR, JUDICIAL MEMBER AND DR. M. L. MEENA, ACCOUNTANT MEMBER I.T.A. NO. 703/ASR/2019 ASSESSMENT YEAR: 2011-12 SMT. RAVINDER BAWA PROP. M/S RAMCO AUTO INDUSTRIES, PREET NAGAR, JALANDHAR [PAN: AAMPB 2811N] (APPELLANT) VS. INCOME TAX OFFICER, WARD-2(3), JALANDHAR (RESPONDENT) APPELLANT BY SH. SURINDER MAHAJAN, SH. KULDEEP BHAGAT, C.A. & SH. VIKAS BHAGAT, ADV. RESPONDENT BY SH ANUPAM KANT GARG CIT(DR) DATE OF HEARING 09.07.2021 DATE OF PRONOUNCEMENT 14.07.2021 ORDER PER LALIET KUMAR, J.M. THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 26.09.2019 PASSED BY THE PR. COMMISSIONER OF INCOME TAX-1, JAL ANDHAR IN RESPECT OF A.Y. 2011-12 ON THE FOLLOWING GROUNDS:- ITA NO. 701/ASR/2019 2 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD PCIT, JALANDHAR-1 (LD. CIT) HAS GROSSLY ERRED IN LAW IN ASSUMING JURISDICTION U/S 2 63 OF THE INCOME TAX ACT, 1961. THE ORDER PASSED U/S 263 OF THE ACT DIRECTING THE AO TO ENHANCE THE ASSESSEES INCOME IS ILLEGAL AND BAD IN LAW. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD PCIT, JALANDHAR -1 (LD.CIT) HAS GROSSLY ERRED IN DIRECTING THE AO TO MAKE ADDITION OF RS 4,50,00,000/- U/S 69A OF THE ACT. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD PCIT, JALANDHAR -1 (LD.CIT) HAS GROSSLY ERRED IN LAW IN PASSING ORDER U/S 263 OF TH E ACT EVEN THOUGH THE ASSESSMENT ORDER U/S 143(3)/147 OF THE ACT DATED 26.12.2018 PA SSED BY THE AO WAS NEITHER ERRONEOUS NOR PREJUDICIAL TO INTEREST OF REVENUE. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE C ASE LD PCIT, JALANDHAR -1 (LD.CIT) HAS GROSSLY ERRED IN LAW IN PASSING ORDER U/S 263 OF TH E ACT, WHEN THE ASSESSMENT HAS ALREADY BEEN CONCLUDED BY THE AO U/S 143/147 OF THE ACT AFTER SEEKING EXPLANATIONS AND MAKING ALL THE ENQUIRIES NECESSARY FOR COMPLETION O F ASSESSMENT REOPENED U/S 148 OF THE ACT FOR SPECIFIC ISSUE OF AMOUNT CREDITED RS 4, 50,00,000/- IN ASSESSEES BANK ACCOUNT WITH PNB INDUSTRIAL AREA, JALANDHAR. 5. THAT WITHOUT PREJUDICE TO OUR AFORESAI D LEGAL GROUNDS OF APPEAL 1 TO 4, EVEN OTHERWISE: A) THE LD. PCIT HAS GROSSLY ERRED IN CONCLUDING TH AT UNACCOUNTED CASH BELONGING TO THE ASSESSEE WAS DEPOSITED IN THE BANK ACCOUNT OF SARAD JYOT SINGH. B) THE LD PCIT HAS GROSSLY ERRED IN DISREGARDING T HE FACT THAT LOAN WAS REPAID BY THE ASSESSEE BY DEBIT TO HER CURRENT ACCOUNT. SINCE CUR RENT ACCOUNT OF THE ASSESSEE STOOD DEBITED BY RS 4,50,00,000/- FOR THE PURPOSE OF REPA YMENT OF LOAN, THERE IS NO QUESTION OF INTRODUCTION OF UNACCOUNTED CASH INTO MY BANK AC COUNT. C) THE LD PCIT HAS GROSSLY ERRED IN COMPLETELY DIS MISSING THE LETTER DATED 21.09.2013 (AUTHENTICATED COPY FILED ON 11.09.2019), LETTER DA TED 04.06.2019 & LETTER DATED 29.08.2019 FILED BY THE BANK OFFICIALS WHEREIN THEY HAVE CONFIRMED THAT AMOUNT OF RS 4,50,00,000/- WAS NOT DEPOSITED IN THE BANK ACCOUNT OF ASSESSEE. IN THE SAID LETTERS, THE BANK OFFICIALS HAVE CONFIRMED THAT THE AMOUNT DEBIT ED TO ASSESSEES CURRENT ACCOUNT WAS ERRONEOUSLY POSTED IN SARADJYOT SINGH SAVING BA NK ACCOUNT NO. 0242000125537289 INSTEAD OF LOAN ACCOUNT OF THE ASSESSEE. D) THE LD PCIT GROSSLY ERRED IN NOT GRANTING THE A SSESSEE AN OPPORTUNITY TO CROSS EXAMINE CHIEF MANAGER, PNB WHO ALLEGEDLY RETRACTED HIS STATEMENT ON 11.09.2019. E) THE LD PCIT HAS GROSSLY ERRED IN NOT ACCEPTING THE REQUEST OF THE ASSESSEE THAT STATEMENT OF SH. R.D. SINGH (THE THEN CHIEF MANAGER OF PNB), SH. R.K.ABHI (THE THEN MANAGER OF PNB), SH. SOM NATH NAGPAL AND SH. PAWAN KUMAR SHARMA BE RECORDED TO ITA NO. 701/ASR/2019 3 KNOW THE FACTS OF THE CASE. THIS HAS RESULTED IN VI OLATION OF PRINCIPLE OF NATURAL JUSTICE, WHICH MAKES THE ORDER PASSED U/S 263 OF THE ACT BAD IN LAW. BRIEF FACTS 1. THE APPELLANT FILED RETURN DECLARING INCOME OF RS. 6,46,015/- ON 25-09- 2011. THE APPELLANT RECEIVED COMMUNICATION DATED 14 .3.2018 UNDER SECTION 133(6) OF THE ACT FOR THE VERIFICATION OF FINANCIAL TRANSACTION PERTAINING TO THE CREDIT ENTRIES OF RS. 4,50,00,000/- IN PUNJAB NATI ONAL BANK ACCOUNT NO 0242002101004903 AND 024200PC000376 OF APPELLANT DU RING THE FINANCIAL YEAR 2010-11 RELEVANT TO AY 2011-12. 2. THE APPELLANT HAD FILLED REPLY TO NOTICE U/S 1 33(6) OF THE ACT VIDE LETTER DATED 19.03.2018 ALONGWITH ENCLOSURES WHEREIN EXPLA NATION FOR CREDIT ENTRY OF RS. 4.50 CRORES WITH SUPPORTING EVIDENCE WAS FILED. (PAPER BOOK PAGE NO. 10 TO 26). IT WAS SUBMITTED THAT THE ENTRIES PERTAINED TO AMOUNT ADVANCED IN BANK ACCOUNT NO 024200PC000376 (LOAN ACCOUNT) AND CORRES PONDING CREDIT GIVEN BY THE BANK IN ACCOUNT NO 0242002101004903. THE APPELL ANT HAD PROVIDED ALL INFORMATION SOUGHT BY THE OFFICIALS, INCLUDING DETA ILS OF PAN, RELEVANT BANK STATEMENTS AND BALANCE SHEET TO THE RESPONDENT. 3. THEREAFTER APPELLANT RECEIVED NOTICE DATED 29.0 3.2018 ISSUED U/S 148 OF THE ACT, ON 30.03.2018. IT MAY RELEVANT TO MENTION HERE THAT REASONS FOR REOPENING WERE PROVIDED TO THE ASSESSEE VIDE LETTER DATED 20.3.2018 (PAGE 204) WHEREIN IT WAS MENTIONED THAT A TEP IN A SSESSEE CASE WAS RECEIVED FROM THE INVESTIGATION WING THROUGH THE JOINT COMMI SSIONER DATE 27/3/2017.AS PER BANK STATEMENTS OF ASSESSES ACCOUN T NO 024200PC00037676 AN AMOUNT OF RS 4.5 CR HAS BEEN CREDITED IN IT ON 1 0/7/2010. ITA NO. 701/ASR/2019 4 4. APPELLANT VIDE LETTER DATED 03.04.2018 INFORME D THE ASSESSING OFFICER THAT RETURN ALREADY FILED BE TREATED AS RETURN IN RESPON SE TO NOTICE U/S 148 OF THE ACT. 5. THEREAFTER THE AO HAD ISSUED THE NOTICE UNDER SECTION 142(1) OF THE ACT ON 8.8.2018 AND 143(2) OF THE ACT WERE RECEIVED. 6. DURING ASSESSMENT PROCEEDINGS, INFORMATION WAS FILED VIDE LETTERS DATED 05.10.2018, 09.10.2018, 30.11.2018. THE INFORMATION WAS FILLED BY THE ASSESSEE CREDIT ENTRY OF SAME DATE IN THE ACCOUNT OF THE ASS ESSEE INCLUDES COPY OF LOAN ACCOUNT SHOWING THE ENTRY OF LOAN AMOUNT OF RS 4.5 CR IN ACCOUNT NUMBER 0242002101004903 , LETTER DATED 21.9.2013 WHEREBY B ANK HAD INFORMED TO THE OFFICIAL OF THE RESPONDENT THAT IT IS TRUE FR OM THE RECORD THE NO CASH OF RS 4.5 CR WAS DEPOSITED AS THERE IS NO DETAILS OF CURR ENCY IN CASH DEPOSIT VOUCHER. WE HAVE ALREADY INFORMED THAT ON 06.07.2010 RS 4.5 CR WAS WRONGLY POSTED IN SF AC NO 0242000125537289( SARADJOT SINGH ) INSTEAD OF AC NO 0242002101004903 ( RAMCO AUTO) BY CLERK/ OFFICER T HROUGH OVERSIGHT ) ( PAGE 53 OF PB) 7. THE AO VIDE LETTER DATED 8/8/2018 AND 14.12.2 018 HAD HAD DIRECTED THE BRANCH MANAGER OF PUNJAB NATIONAL BANK TO PROVIDE INFORMATIONS LIKE DETAILS OF VOUCHER DATED 6.7.2010 PERTAINING TO ACCOUNT NO 0242002101004903, ACCOUNT STATEMENT OF 024200PC00037676 AND BANK STA TEMENT OF SH SARABJOT ITA NO. 701/ASR/2019 5 SINGH A/C NO 0242000125537289 ALONG WITH DETAILS O F BENEFICIARY OF AMOUNT TRANSFERRED . ( PAGE 202 AND 209 OF PB) 8. THE BANK HAD GIVEN REPLY TO THE LETTER DATED 1 4.12.2018, VIDE ITS COMMUNICATION DATED 19.12.2018 AND PROVIDED THE REQ UISITE INFORMATION TO THE AO. 9. THE AO HAD COMPLETED THE ASSESSMENT VIDE ORDER DATED 26.12.2018. NO ADDITIONS WERE MADE BY THE AO ON ACCOUNT OF ALLEGED CASH DEPOSIT IN THE BANK ACCOUNT. 10. THAT LD. PRINCIPAL COMMISSIONER OF INCOME TAX-1, JALANDHAR ISSUED SHOW CAUSE NOTICE DATED 03.05.2019 AND APPELLANT WA S ASKED TO FILE OBJECTIONS TO THE PROPOSAL TO HOLD ASSESSMENT ORDER FOR A.Y. 2010-11 U/S 147 OF THE ACT AS ERRONEOUS IN SO FAR AS PREJUDICIAL TO INTEREST OF THE REVENUE. 11. IN THE SHOW CAUSE NOTICE U/S 263 OF THE IT WAS MENTIONED AS UNDER U/S 263 OF THE ACT AT PAGE 1 & 2 OF THE ORDER. 12. THAT WRITTEN SUBMISSIONS IT WAS MENTIONED AS UNDER :----------- WERE FILED VIDE LETTER DATED 28.05.2019 (PAPER BOOK PAGE NO. 9 TO 62), LETTER DATED 01.07.2019 (PAPER BOOK PAGE NO. 63 TO 121), LETTER DATED 08.08.2019 (PAPER BOOK PAGE NO. 122 TO 127), LETTER DATED 21.08.2019 (PAPER BOOK PAGE NO. 128 TO 183), LETTER DATED 29.08.2019 (PAPER BOOK PAGE N O. 184 TO 187), LETTER ITA NO. 701/ASR/2019 6 DATED 11.09.2019 (PAPER BOOK PAGE NO. 188 TO 195), LETTER DATED 12.09.2019 (PAPER BOOK PAGE NO. 196 TO 199) 13. THAT IN EXERCISE OF POWERS U/S 263 OF THE ACT LD. PRINCIPAL COMMISSIONER OF INCOME TAX-1, JALANDHAR IN PARA 9.3 OF ORDER U/S 263 OF THE ACT HAS HELD AS UNDER:- IN VIEW OF THE ABOVE FACTS AND DISCUSSION, I AM SA TISFIED THAT ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER ON 28.12.2018 IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THER EFORE, THE ASSESSING OFFICER IS DIRECTED TO ENHANCE THE SAID ORDER PASSED ON 28.12. 2018 IN THE LIGHT OF THE DISCUSSION MADE ABOVE AND CHARGE INTEREST AS PER IN COME TAX ACT, 1961. SUBMISSIONS OF THE AR 14. AR FOR THE ASSESSEE HAD SUBMITTED THAT ORDE R U/S 263 OF THE ACT WAS PASSED IN MECHANICAL MANNER WITHOUT APPLICATION OF MIND SINCE IN THE SHOW CAUSE NOTICE AS WELL AS IN THE ORDER U/S 263 OF THE ACT ASSESSMENT ORDER DATED 18.12.2018 HAS BEEN HELD TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO INTEREST OF REVENUE WHEREAS THERE IS NO ASSESSMENT ORDER DATED 28.12.2018. IT WAS SUBMITTED THAT THE AO HAD PASSED THE ORDE R ON 26/12/2018 AND NOT ON 28/12/2018. 15. LD AR HAD SUBMITTED THAT BASED ON ANONYMOUS COMPLAINT THAT THERE WERE CREDIT ENTRIES OF RS. 4,50,00,000/- IN ACCOUNT NO. 0242002101004903 AND 024200PC00037676 MAINTAINED WITH PUNJAB NATIONA L BANK, NOTICE U/S 133(6) OF THE ACT WAS RECEIVED BY THE APPELLANT WHI CH WAS ISSUED BY ASSESSING OFFICER AFTER OBTAINING PRIOR APPROVAL OF LD. PRINCIPAL COMMISSIONER ITA NO. 701/ASR/2019 7 OF INCOME TAX-1, JALANDHAR. THAT APPELLANT VIDE LET TER DATED 19.03.2018 FILED REPLY TO NOTICE U/S 133(6) OF THE ACT WHEREIN IT WA S EXPLAINED THAT APPELLANT HAS RAISED A WORKING CAPITAL TERM LOAN OF RS. 4,50, 00,000/- WHICH WAS DEBITED IN THE LOAN ACCOUNT NO. 024200PC00037676 AND AMOUNT WAS CREDITED TO CURRENT ACCOUNT NO. 0242002101004903. COPY OF BALAN CE SHEET AND COPY OF RETURN FILED WERE ALSO FILED. 16. LD .AR HAD SUBMITTED THAT ASSESSING OFFICER RECORDED REASONS TO INITIATE PROCEEDINGS U/S 147 OF THE ACT, ISSUED NOTICE U/S 1 48 OF THE ACT (PAPER BOOK PAGE NO. 24 & 204). PERUSAL OF REASONS RECORDED WIL L REVEAL THAT PROCEEDINGS WERE INITIATED TO VERIFY CREDIT ENTRIES AMOUNTING T O RS. 4,50,00,000/-. ASSESSING OFFICER HAD MADE ENQUIRIES FROM THE BANK AND ASKED BRANCH MANAGER TO PROVIDE DETAILS TOWARDS CREDIT ENTRIES O F RS. 4,50,00,000/- IN THE ACCOUNT OF THE APPELLANT TO WHICH REPLY WAS FILED B Y THE BANKER. 17. DURING THE ASSESSMENT REPLY DATED 05.10.2018 , 09.10.2018, 03.11.2018 AND 04.12.2018 WERE FILLED BEFORE AO AND IN ALL THE REPLIES, IT WAS EXPLAINED THAT NO CASH HAS BEEN DEPOSITED IN THE BANK ACCOUNT . BANK CERTIFICATE DATED 21.09.2013 CERTIFYING THAT NO CASH HAS BEEN DEPOSIT ED WAS ALSO FILED. (PAPER BOOK PAGE NO. 61) 18. LD AR HAD SUBMITTED SUBMISSIONS WERE FILED B EFORE PRINCIPAL COMMISSIONER OF INCOME TAX-1, JALANDHAR DURING PROC EEDINGS U/S 263 AS DETAILED BELOW:- I. WRITTEN SUBMISSIONS DATED 01.07.2019 FILE D BEFORE PRINCIPAL ITA NO. 701/ASR/2019 8 COMMISSIONER OF INCOME TAX-1, JALANDHAR WHEREIN FOL LOWING DOCUMENTS WERE ENCLOSED. A) COPY OF SANCTION LETTER OF WORKING CAPITAL LOAN . (PAPER BOOK PAGE NO. 65) B) COPY OF A/C NO. 024200PC00037676. (PAPER BOOK PA GE NO. 66) C) COPY OF A/C NO. 0242002101004903. (PAPER BOOK P AGE NO. 67) D) COPY OF A/C NO. 0242003171104. (PAPER BOOK PAGE NO. 68) E) COPY OF A/C NO. 0242000125537289. (PAPER BOOK P AGE NO. 69) F) COPY OF CASH BOOK OF BRANCH FROM 30.06.2010 TO 10.07.2010. (PAPER BOOK PAGE NO. 71 TO 117) G) DETAILS OF FDRS IN THE NAME OF RAVINDER BAWA FR OM 30.06.2010 TO 10.07.2010. (PAPER BOOK PAGE NO. 118) H) CERTIFICATE OF BANK TO THE EFFECT THAT NO CASH E NTRY OF RS. 4.50 CRORES HAS BEEN TRANSACTED IN THESE ACCOUNTS. (PAPER BOOK PAGE NO. 119) I) COPY OF SAVING ACCOUNT NO. 02420003000970611 FROM 30.06.2010 TO 10.07.2010. (PAPER BOOK PAGE NO. 120) J) CERTIFICATE OF BANK TO THE EFFECT THAT NO CASH ENTRY OF RS. 4.50 CRORES HAS BEEN TRANSACTED IN ANY BANK ACCOUNTS. (PAPER BOOK P AGE NO. 121) II. WRITTEN SUBMISSIONS DATED 08.08.2019 FIL ED BEFORE PRINCIPAL COMMISSIONER OF INCOME TAX-1, JALANDHAR WHEREIN FOL LOWING DOCUMENTS WERE ENCLOSED. A) LETTER DATED 06.08.2019 TO BANK TOWARDS CLARIFI CATION OF WHETHER CASH DEPOSITED BY THE FIRM ON 06.07.2010. (PAPER BOOK PA GE NO. 123 TO 124) B) REPLY DATED 08.08.2019 FROM BANK TOWARDS CONFIRM ATION THAT NO CASH HAS BEEN DEPOSITED BY THE FIRM ON 06.07.2010. (PAPER BO OK PAGE NO. 125) C) AFFIDAVIT BY PROPRIETOR OF THE FIRM. (PAPER BOO K PAGE NO. 126-127) III. WRITTEN SUBMISSIONS DATED 21.08.2019 FI LED BEFORE PRINCIPAL COMMISSIONER OF INCOME TAX-1, JALANDHAR WHEREIN FOL LOWING DOCUMENTS WERE ENCLOSED. A) BALANCE CONFIRMATION CERTIFICATE. (PAPER BOOK P AGE NO. 129) B) BANK STATEMENT FOR THE PERIOD 30.06.2010 TO 10.0 7.2010. (PAPER BOOK PAGE NO. 130 TO 163) IV. WRITTEN SUBMISSIONS DATED 21.08.2019 FIL ED BEFORE PRINCIPAL COMMISSIONER OF INCOME TAX-1, JALANDHAR WHEREIN COP Y OF COMPLAINT FILED AGAINST BANK OFFICIALS ENCLOSED. V. WRITTEN SUBMISSIONS DATED 29.08.2019 FI LED BEFORE PRINCIPAL COMMISSIONER OF INCOME TAX-1, JALANDHAR WHEREIN FOL LOWING DOCUMENTS WERE ENCLOSED. ITA NO. 701/ASR/2019 9 A) COPY OF TRANSACTIONS RECORDED. (PAPER BOOK PAGE NO. 185 TO 186) B) COPY OF BANK CERTIFICATE TO THE EFFECT THAT LOAN WAS SECURED AGAINST FDR IN THE NAME OF SMRITI JAIN. (PAPER BOOK PAGE NO. 187) VI. WRITTEN SUBMISSIONS DATED 11.09.2019 FIL ED BEFORE PRINCIPAL COMMISSIONER OF INCOME TAX-1, JALANDHAR WHEREIN FOL LOWING DOCUMENTS WERE ENCLOSED. A) COPY OF BANK STATEMENT OF C/A NO. 0242002101004 903. (PAPER BOOK PAGE NO. 189) B) COPY OF LETTER DATED 29.08.2019 CERTIFYING NO CA SH HAS BEEN DEPOSITED. (PAPER BOOK PAGE NO. 190 & 191) C) COPY OF VOUCHER DATED 10.07.2010. (PAPER BOOK P AGE NO. 192) D) COPY OF LETTER DATED 21.09.2013 ADDRESSED TO DEP UTY DIRECTOR OF INCOME TAX, JALANDHAR BY PUNJAB NATIONAL BANK CERTIFYING N O CASH HAS BEEN DEPOSITED. (PAPER BOOK PAGE NO. 193 & 194) E) COPY OF BANK CERTIFICATE DATED 04.06.2019 CERTI FYING NO CASH HAS BEEN DEPOSITED. (PAPER BOOK PAGE NO. 195) VII. WRITTEN SUBMISSIONS DATED 12.09.2019 FI LED BEFORE PRINCIPAL COMMISSIONER OF INCOME TAX-1, JALANDHAR WHEREIN FOL LOWING DOCUMENTS WERE ENCLOSED. A) AFFIDAVIT CERTIFYING NO CASH HAS BEEN DEPOSITED . (PAPER BOOK PAGE NO. 198 & 199) 19. LD. AR HAD SUBMITTED THAT THE IMPUGNED ORDE R IS NOT SUSTAINABLE IN THE EYES OF LAW, AS THE ORDER PASSED BY THE AO WAS NOT ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. IT WAS FURTHER SUBMITTE D THAT WORDS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE HAVE NO T BEEN DEFINED IN THE LAW. AN ORDER CANNOT BE TERMED AS ERRONEOUS UNLESS IT IS NOT IN ACCORDANCE WITH LAW. IF AN INCOME-TAX OFFICER ACTING IN ACCORDANCE WITH LAW MAKES CERTAIN ASSESSMENT, THE SAME CANNOT BE BRANDED AS ERRONEOUS SIMPLY BECAUSE, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY. CA SE MAY BE VISUALIZED WHERE THE INCOME-TAX OFFICER WHILE MAKING AN ASSESS MENT EXAMINES THE ACCOUNTS, MAKES ENQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF ITA NO. 701/ASR/2019 10 THE CASE AND DETERMINES THE INCOME EITHER BY ACCEPT ING THE ACCOUNTS OR BY MAKING SOME ESTIMATES HIMSELF. ON PERUSAL OF THE RE CORDS, ONE MAY BE OF THE OPINION THAT THE ESTIMATE MADE BY THE OFFICER CONCE RNED WAS ON THE LOWER SIDE AND LEFT TO THE COMMISSIONER HE WOULD HAVE EST IMATED THE INCOME AT A HIGH FIGURER THAN THE ONE DETERMINED BY THE INCOME- TAX OFFICER. THAT WOULD NOT BE GROUND TO RE-EXAMINE THE ACCOUNTS AND DETERM INE THE INCOME HIMSELF AT A HIGHER FIGURE. THIS IS BECAUSE THE INCOME-TAX OFFICER HAS EXERCISED THE QUASI-JUDICIAL POWER VESTED IN HIM IN ACCORDANCE WI TH LAW AND ARRIVED AT A CONCLUSION AND SUCH A CONCLUSION CANNOT BE TERMED T O BE ERRONEOUS. IT MAY BE SAID IN SUCH A CASE THAT THE ORDER IN QUESTION I S PREJUDICIAL TO THE INTEREST OF THE REVENUE. BUT THAT BY ITSELF WOULD NOT BE ENO UGH BECAUSE THE FIRST REQUIREMENT, NAMELY, THAT THE ORDER IS ERRONEOUS, I S ABSENT. SIMILARLY IF AN ORDER IS ERRONEOUS BUT NOT PREJUDICIAL TO THE INTER EST OF THE REVENUE, THEN THE POWER OF SUO MOTU REVISION CANNOT BE EXERCISED. ANY AND EVERY ERRONEOUS ORDER CANNOT BE THE SUBJECT MATTER OF REVISION BE CAUSE THE SECOND REQUIREMENT MUST BE FULFILLED. AR HAD PLACED RELIAN CE ON MALABAR INDUSTRIAL CO. LTD. (243 ITR 83(SC) . 20. IT WAS FURTHER SUBMITTED THAT IF AN AO ACTIN G IN ACCORDANCE WITH LAW MAKES CERTAIN ASSESSMENT, THE SAME CANNOT BE BRANDE D AS ERRONEOUS BY CIT SIMPLY BECAUSE ACCORDING TO HIM THE ORDER SHOULD HA VE BEEN WRITTEN MORE ELABORATELY. CASES MAY BE VISUALIZED WHERE THE AO W HILE MAKING AN ASSESSMENT EXAMINES THE ACCOUNTS, MAKES ENQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINES THE INCOME EITHER BY ACCEPTING THE ACCOUNTS OR BY MAKING SOME ESTIMATE H IMSELF. THE CIT, ON PERUSAL OF THE RECORDS, MAY BE OF THE OPINION THAT THE ESTIMATE MADE BY THE ITA NO. 701/ASR/2019 11 OFFICER CONCERNED WAS ON THE LOWER SIDE AND LEFT TO THE CIT HE WOULD HAVE ESTIMATED THE INCOME AT A FIGURE HIGHER THAN THE ON E DETERMINED BY THE AO. THAT WOULD NOT VEST THE CIT WITH POWER TO RE-EXAMIN E THE ACCOUNTS AND DETERMINE THE INCOME HIMSELF AT A HIGHER FIGURE. IT IS BECAUSE THE AO HAS EXERCISED THE QUASI JUDICIAL POWER VESTED IN HIM IN ACCORDANCE WITH LAW AND ARRIVED AT CONCLUSION AND SUCH A CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS SIMPLY BECAUSE THE CIT DOES NOT FEEL SATI SFIED WITH THE CONCLUSION. AR RELIED UPON COMMISSIONER OF INCOME TAX VS. ARVIN D JEWELLERS HIGH COURT OF GUJARAT ( (2002) 124 TAXMAN 615 , COMMISSI ONER OF INCOME TAX VS. SUNBEAM AUTO LTD. HIGH COURT OF DELHI (2009 ) 227 CTR (DEL) 133 : (2011) 332 ITR 167 COMMISSIONER OF INCOME TAX VS. VINOD KUMAR GUPTA HIGH COURT OF PUNJAB & HARYANA (2007) 165 TAX MAN 225 ,COMMISSIONER OF INCOME TAX VS. DESIGN & AUTOMATION ENGINEERS (BOMBAY) (P) LTD. HIGH COURT OF BOMBAY (2009) 177 TAXMAN, COMMISSIONER OF INCOME TAX VS. MUNJAL CASTINGS HIGH COURT OF PUNJAB & HARYANA (2008) 168 TAXMAN 241,COMMISSIONER OF INCOME TAX VS. MAHENDRA KUMAR BANSAL HIGH COURT OF ALLAHAB AD (2008) 297 ITR 99 (ALL) ,COMMISSIONER OF INCOME TAX VS. DEEPAK MITTAL HIGH COURT OF PUNJAB AND HARYANA (2010) 37 DTR 0008, (20 10) 324 ITR 0411,COMMISSIONER OF INCOME TAX VS. LEISURE WEAR EX PORTS LTD. HIGH COURT OF DELHI (2010) 46 DTR 0097, (2012) 341 ITR 0 166 ETC . 21. LD AR HAD SUBMITTED THAT ONCE ASSESSMENT IS FRAMED U/S 148 OF THE ACT AFTER VERIFICATION OF REASONS RECORDED TO INITIATE PROCEEDINGS U/S 148 OF THE ACT COMMISSIONER OF INCOME TAX IS NOT JUSTIFIED IN EXERCISE OF POWER U/S 263 ITA NO. 701/ASR/2019 12 OF THE ACT. AR REFERRED THE DECISION IN THE CASE O F PARGAT SINGH VS. ITO ITAT CHANDIGARH (2005) 95 TTJ 0295, DEWAS SILK MILLS VS CIT ITAT INDORE (2005) 92 TTJ 0481 (TM) . 22. RELIANCE IS ALSO PLACED UPON THE DECISION OF THE HO NBLE ITAT MUMBAI IN THE CASE OF NARAYAN TATU RANE VS. ITO [2016] 70 TAXMANN.COM 227 (MUM) WHEREIN IT HAS BEEN HELD SECTION 263 COULD BE INVOKED ONLY IF THE ASSESSMENT ORDER HAS BEEN PASSED WITHOUT MAKING INQUIRY OR VERIFICATION WHICH A REASONABLE AND PRUDENT OFFICER WOULD HAVE CARRIED OUT IN SUCH CASES. LAW D OES NOT PROVIDE TO STRETCH THE INQUIRIES AND VERIFICATION TO AN EXTENT WHICH MAY T ANTAMOUNT TO OPPRESSION AND HARASSMENT OF A TAX PAYER. THEREFORE THE ACTION OF THE AO CANNOT BE IMPUGNED UNDER S.263 OF THE ACT. FURTHER, THE HONBLE GUJARA T HIGH COURT IN THE CASE OF CIT VS. ARVIND JWELLERS 259 ITR 502 (GUJ) HAS HELD THAT PROVISIONS OF SECTION 263 OF THE ACT CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYP E OF MISTAKE OR ERROR COMMITTED BY THE AO. FURTHER, RELIANCE IS PLACED ON THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. R. K. CON STRUCTION CO. (2009) 313 ITR 65 (GUJ) FOR THE PROPOSITION THAT WHERE THE AO HAS TAK EN A PARTICULAR VIEW ON THE BASIS OF EVIDENCES PRODUCED BEFORE HIM, IT IS NOT O PEN FOR THE COMMISSIONER, IN THE REVISIONAL PROCEEDINGS UNDER S.263 OF THE ACT, TO TAKE A DIFFERENT VIEW ON THE SAME MATERIAL. THE AO IN THE INSTANT CASE HAS SPECI FICALLY EXAMINED ALL THE ISSUES RAISED BY PR.CIT ALBEIT NOT PROBABLY IN THE MANNER IN WHICH THE PR.CIT WOULD HAVE LIKED BUT THIS CANNOT BE THE GROUND FOR ASSUMPTION OF JURISDICTION UNDER S.263 OF THE ACT. THUS, THE ASSESSMENT ORDER UNDER REVIEW CA NNOT BE LABELLED AS ERRONEOUS ITA NO. 701/ASR/2019 13 IN SO FAR AS PREJUDICIAL TO THE INTEREST OF THE REV ENUE WITHIN THE TERMS OF SECTION 263 OF THE ACT IN THE CIRCUMSTANCES SO NARRATED. 22.1 THE CONDITION PRECEDENT TO THE EXERCISE OF JUR ISDICTION UNDER SECTION 263, WAS THAT THE ORDER SOUGHT TO BE REVISED MUST BE ERRONEOUS IN SO FAR AS IT WAS PREJUDICIAL TO THE INTEREST OF REVENUE. WHEN TWO VIEWS WERE POSSIB LE, THE ASSESSMENT COULD NOT BE REVISED. GRASIM INDUSTRIES LTD. VS. CIT (2010) 321 ITR 92 / 229 CTR 347 / 35 DTR 142 (BOM. SINCE AN ENQUIRY WAS SPECIFICALLY HELD WITH REFEREN CE TO WHICH A DISCLOSURE OF DETAILS WAS CALLED FOR BY THE ASSESSI NG OFFICER AND MADE BY THE ASSESSEE, THE OBSERVATION OF THE CIT THAT THE ASSES SING OFFICER HAD ARRIVED AT HIS FINDINGS WITHOUT CONDUCTING AN ENQUIRY WAS ERRONEOU S AND THEREFORE THE CIT WRONGLY EXERCISED THE POWERS BY RECOURSE TO SECTION 263. CIT VS. DEVELOPMENT CREDIT BANK LTD. (2010) 323 ITR 206 / 40 DTR 61 (BO M.) 22.2 MERE LACK OF INQUIRY BY ASSESSING OFFICER NOT SUFFICIENT FOR REVISION UNDER SECTION 263. CIT VS. VIKAS POLYMERS (2010) 236 CTR 476 / 47 DTR 348 / 194 TAXMAN 57 (DELHI) 22.3 NONEXAMINATION OF ISSUE BY ASSESSING OFFICER DOES NOT PER SE MAKE ASSESSMENT ORDER PREJUDICIAL TO INTEREST OF REVENUE FOR REVISION UNDER SECTION 263.. INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA VS. DIT (2011) 50 DTR 409 (DELHI)(TRIB.) 22.4 ORDER UNDER SECTION 263 PASSED BY THE CIT SETTING A SIDE THE ASSESSMENT ORDER ON THE GROUND THAT THE ASSESSING OFFICER HAS NOT MADE ENQUIRIES IN RESPECT OF CERTAIN ISSUES IS NOT VALID, CIT VS. LEISURE WEAR EXPORTS LTD. (2010) 46 DTR 97 (DELHI) TRIBUNAL HAVING FOUND THAT THE ASSESSING OFFICER HA D MADE REASONABLY DETAILED ENQUIRIES, COLLECTED RELEVANT M ATERIAL INCLUDING THE SEIZED DOCUMENTS, AND DISCUSSED VARIOUS FACTS OF TH E CASE WITH THE ITA NO. 701/ASR/2019 14 ASSESSEES CHARTERED ACCOUNTANTS BEFORE MAKING THE ASSESSMENTS, THERE WAS NO VALID BASIS FOR THE CIT TO EXERCISE JURISDIC TION UNDER SECTION 263 AND TO DIRECT THE ASSESSING OFFICER TO MAKE FRESH ASSES SMENTS BY GOING DEEPER IN TO THE MATTER. CIT VS. HINDUSTAN MARKETING & ADVERTISING CO. LTD. (2010) 46 DTR 109 (DELHI) . ASSESSMENT ORDER WAS SET ASIDE BY COMMISSIONER ON GROUND, THAT ASSESSING OFFICER HAD MADE ASSESSMENT WITHOUT MAKING PROPER ENQUIRY. HELD, THAT WHEN ASSESSING OFFICER HAS SPEC IFICALLY MENTIONED IN THE ORDER THAT BOOKS OF ACCOUNTS ALONGWITH PURCHASE / S ALES, INVOICES, LEDGERS, BANK ACCOUNTS WERE EXAMINED, VERIFIED AND TEST CHEC KED, SETTING ASIDE BY COMMISSIONER, IN ABSENCE OF ANY FINDING THAT ASSESS ING OFFICERS ORDER IS FACTUALLY INCORRECT, AND NOT JUSTIFIED. VIJAY KUMAR MEHTA VS. CIT (2010) 195 TAXMAN 63 (PATNA)(SMC). WHETHER CIT HAS SUO MOTU POWERS TO PASS THE ORDER BY MERELY STATING THAT ASSESSING OFFICER HAS NOT PROPERLY ENQUIRED SAME MATERIALS WERE THERE BEFORE THE ASSESSING OFFI CER WHO HAD PASSED THE IMPUGNED ORDER BY APPLYING HIS MIND RECOURSE TO S ECTION 263(1) CANNOT BE TAKEN IF THE ORDER IS ERRONEOUS BUT NOT PREJUDICIAL AND VICE VERSA HELD, PROVISION 263 HAS NOT BEEN RIGHTLY INVOKED. CIT VS. VIKASH POLYMERS (2010) 236 CTR 476 (DELHI) 22.5 MERELY BECAUSE AN ASSESSMENT ORDER DOES NOT REFER T O QUERIES RAISED BY ASSESSING OFFICER DURING COURSE OF SCRUTINY AND RES PONSE OF ASSESSEE THERETO, IT CANNOT BE SAID THAT THERE HAS BEEN NO ENQUIRY AN D THE ASSESSMENT IS ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE . CIT VS. ASHISH RAJPAL (2009) 180 TAXMAN 623 (DELHI). ORDER PASSED BY ASSESSING OFFICER IN ACCORDANCE WITH LAW, JUDICIAL PRONOUNCEMENTS AND AFTER CONSIDE RING RELEVANT REPLIES DULY SUPPORTED BY EVIDENCE CANNOT BE BRANDED AS ERR ONEOUS, MERELY ITA NO. 701/ASR/2019 15 BECAUSE COMMISSIONER IS OF OTHER VIEW OR IN HIS OPI NION ORDER PASSED IS WEAK AND NOT A DETAILED ORDER. SECTION 263 EMPOWERS THE COMMISSIONER TO HAVE A SUPERVISORY JURISDICTION AND DOES NOT VISUAL IZE A CASE OF SUBSTITUTION OF HIS JUDGMENT FOR THAT OF ASSESSING OFFICER. ALLIED ENGINEERS VS. CIT (2009) 180 TAXMAN 70 (DELHI) 22.6 THERE SHOULD BE AN INCORRECT ASSUMPTION OF FACTS OR AN INCORRECT APPLICATION OF LAW BY ASSESSING OFFICER TO BRING ORDER OF ASSES SING OFFICER WITHIN CATEGORY OF ITS BEING ERRONEOUS UNDER SECTION 263 TO QUALI FY AN ASSESSMENT ORDER AS AN ORDER BEING PREJUDICIAL TO INTEREST OF REVENUE, ORDER SHOULD CAUSE LAWFUL LOSS OF TAX TO REVENUE ON FACTS STATED UNDER HEAD ING ASSESSMENT - ADDITIONS TO INCOME, ORDER PASSED BY ASSESSING OFFI CER COULD NOT BE SAID TO BE ERRONEOUS PREJUDICIAL TO INTEREST OF REVENUE TO BRING CASE WITHIN PARAMETERS OF SECTION 263. ASHOK MANILAL THAKKAR V/S. ASSTT. CIT (2005) 97 ITD 361 /279 ITR 143 / (2006) 99 TTJ 1262 (AHD) .THE COMMISSIONER CANNOT INITIATE PROCEEDINGS WITH A VIEW TO STARTING FISHIN G AND ROVING ENQUIRIES IN MATTERS OR ORDERS WHICH ARE ALREADY CONCLUDED. SUCH ACTION WILL BE AGAINST THE WELL-ACCEPTED POLICY OF LAW THAT THERE MUST BE A POINT OF FINALITY IN ALL LEGAL PROCEEDINGS, THAT STALE ISSUES SHOULD NOT BE REACTIVATED BEYOND A PARTICULAR STAGE AND THAT LAPSE OF TIME MUST INDUCE REPOSE IN AND SET AT REST JUDICIAL AND QUASI-JUDICIAL CONTROVERSIES AS IT MUS T IN OTHER SPHERES OF HUMAN ACTIVITY. (PARASHURAM POTTERY WORKS CO. LTD. V. ITO [1977] 10 6 ITR 1 (SC). 22.7 THE HONBLE DELHI HIGH COURT IN THE CASE OF NABHA INVESTMENT PVT. LTD. V/S UNION OF INDIA AND OTHERS, 246 ITR 41 HAS HELD THAT : A BARE READING OF THE ITA NO. 701/ASR/2019 16 SECTION 263 MAKES IT CLEAR THAT THE PRE-REQUISITES TO THE EXERCISE OF JURISDICTION BY THE COMMISSIONER UNDER THE SAID PRO VISION IS : (I)THAT THE ORDER PASSED BY ASSESSING OFFICER IS ER RONEOUS, AND (II)THAT IT IS PREJUDICIAL TO THE INTEREST OF THE R EVENUE. 22.8 IF EITHER OF THE CONDITION IS MISSING I.E. IF THE O RDER OF A.O IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE INTEREST OF THE REVENUE OR I F IT IS NOT ERRONEOUS BUT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE, RECOURS E CANNOT BE HAD TO THE PROVISION CONTAINED IN SECTION 263(1) OF THE ACT . IT IS NOT NECESSARY THAT EVERY ORDER PASSED BY THE A.O, WHICH MAY RESULT IN LOSS O F REVENUE, IS TO BE TREATED AS AN ERRONEOUS ORDER IN AS MUCH AS IT IS PREJUDICI AL TO THE INTEREST OF THE REVENUE. AN ORDER IS ERRONEOUS IF THE VIEW TAKEN BY THE ASSESSING OFFICER IS NOT IN ACCORDANCE WITH THE LAW. IF AN ORDER IS IN ACCOR DANCE WITH LAW, THE DECISION OF THE INCOME TAX OFFICER CANNOT BE REGARDED AS ERR ONEOUS MERELY BECAUSE IN THE OPINION OF THE COMMISSIONER IT SHOULD HAVE BEEN MADE OR WRITTEN IN A DIFFERENT MANNER. THE SECTION DOES NOT VISUALIZE CH ANGE OF OPINION OR SUBSTITUTION OF THE JUDGMENT OF THE COMMISSIONER FO R THAT OF THE INCOME TAX OFFICER. IT IS AXIOMATIC THAT IF THE ORDER IS NOT E RRONEOUS, IT WILL NOT VEST THE COMMISSIONER WITH THE POWER TO INVOKE SECTION 263(1 ) OF THE ACT. EVEN IF HE IS OF THE OPINION THAT THE ORDER IN QUESTION IS PREJUD ICIAL TO THE INTEREST OF THE REVENUE. 22.9 THE JUDGMENT OF HONBLE ALLAHABAD HIGH COURT IN CAS E OF K.N. AGARWAL VS. C.I.T 189 ITR 769 AS WELL AS DECISION OF ALLAHABAD HIGH COURT IN CASE OF C.I.T. ITA NO. 701/ASR/2019 17 VS LATA SUNDERLAL 96 ITR 310(ALL), THE DECISION OF THE BOMBAY HIGH COURT IN CASE OF C.I.T VS. PAUL BROTHERS 216 ITR 548, THE JU DGMENT OF THE CALCUTTA HIGH COURT IN CASE OF RUSSEL PROPERTIES PRIVATE LTD. VS. CIT 109 ITR 229 ARE ALSO RELEVANT. WHERE ASSESSMENT ORDER IS IN ACCORDANCE WITH LAW, IT CANNOT BE TERMED TO BE ERRONEOUS, C.I.T VS. ASHOKA TRADERS SLP CIVIL NO . 2374-2375 OF 1995 DISMISSED BY THE SUPREME COURT 212 ITR (ST) 369. 23. IT WAS SUBMITTED THAT THE OBSERVATIONS OF PRINCIPAL COMMISSIONER OF INCOME TAX-1, JALANDHAR ON PAGE 9 TO 22 OF ORDER AR E BASED ON ASSUMPTIONS AND PRESUMPTIONS AS PCIT HAD NOT EXAMINED THE REC ORD/ MATERIAL AVAILABLE ON AO FILE AS WELL AS HIS FILE , AS HE FAILED TO CO NSIDER FOLLOWING DOCUMENTS:- A) SEQUENCE OF EVENTS GIVEN BY THE APPELLANT AS INCORP ORATED IN PARA 5.1 OF THE ORDER B) COPIES OF BANK ACCOUNT OF THE APPELLANT FILED DURIN G ASSESSMENT PROCEEDINGS AND PROCEEDINGS U/S 263 OF THE ACT (PAP ER BOOK PAGE NO. 15 TO 18, 33 TO 59 & 65 TO 69) C) COPY OF BANK CASH BOOK FROM 30.06.2010 TO 10.07.201 0 (PAPER BOOK PAGE NO. 71 TO 117) D) CERTIFICATE OF THE BANK TO THE EFFECT THAT NO CASH OF RS. 4,50,00,000/- HAS BEEN DEPOSITED IN THE ACCOUNT OF APPELLANT (PAPER B OOK PAGE NO. 119 TO 121, 125, 189, 190 &191) ITA NO. 701/ASR/2019 18 E) AFFIDAVIT OF THE APPELLANT THAT NO CASH HAS BEE N DEPOSITED IN THE BANK (PAPER BOOK PAGE NO. 126, 127, 198 & 199) F) COPY OF LETTER OF BANK TO DEPUTY DIRECTOR OF I NCOME TAX (INV.) CERTIFYING THAT NO CASH HAS BEEN DEPOSITED (PAGE 193 TO 195 OF PAPER BOOK) 23A AR FOR THE ASSESSEE HAD SUBMITTED THAT NO ENQUI RY WAS MADE BY PCIT FROM THE VARIOUS PERSONS, DESPITE REPEATED REQUES TS BY THE ASSESSEE FROM SH. R.D SEWAK, SH. R.K. ABHI, SH. MANOHAR SHARMA, S H. SOMNATH NAGPAL AND SH. PAWAN KUMAR SHARMA OFFICERS OF THE BANK KNOW TH E ABOUT THE CORRECT FACTS OF THE CASE HOWEVER THE PCIT HAD REJECTED T HE REQUEST BY OBSERVING AT AT POINT NO. 3 PAGE 7 OF THE ORDER THE PRODUCTION OF THE BANK EMPLOYEES AT THIS TIME WOULD ONLY DELAY THE PROCEEDINGS AS THEY WOULD ONLY STAND FOR THE DOCUMENTS OF THE BANK AND WOULD NOT HAVE ANY OTHER DOCUMENT/EVIDENCE IN THEIR POSSESSION TO MAKE ANY OTHER CLAIM . 24. LASTLY IT WAS SUBMITTED THAT IN PARA 4.2 PAGE 8 OF THE ORDER, LD. PRINCIPAL COMMISSIONER OF INCOME TAX-1, JALANDHAR H AS WRONGLY OBSERVED THAT POSITION OF LAW STANDS SUBSTANTIALLY ALTERED W ITH THE INCEPTION OF EXPLANATION 2 IN SECTION 263 BY FINANCE ACT 2015. IT WAS SUBMITTED THIS EXPLANATION CANNOT BE INVOKED, AS THE LAW IN FORCE AT THE TIME OF CAUSE OF ACTION IS REQUIRED TO BE APPLIED RATHER THAN THE LA W AS AVAILABLE TO PCIT AT THE TIME OF EXERCISING THE JURISDICTION IS TO BE APPLIE D FOR THE ABOVE IT WAS SUBMITTED THAT EXPLANATION 2 IN SECTION 263 CANNOT BE APPLICABLE ITA NO. 701/ASR/2019 19 RETROSPECTIVELY. FOR THIS PROPOSITION RELIANCE IS B EING PLACED ON, SATISH KUMAR VS PR CIT ITA NO. 258/ASR/2019 ,A.V. INDUSTRI ES VS. ACIT ITA NO.3469/M/2010,METACAPS ENGINEERING & MAHENDRA CONS TRUCTION CO. VS. CIT I.T.A. NO. 2895/MUM/2014 . SUBMISSIONS OF THE DR 25. PER CONTRA LD. DR FOR THE REVENUE HAD DRAWN OUR ATT ENTION TO PARAGRAPH 4.3 OF THE ORDER OF THE PR. CIT WHEREBY I T WAS MENTIONED THAT NO INDEPENDENT INQUIRY WAS MADE BY THE ASSESSI NG OFFICER. FURTHER IT WAS NOTED THAT THE AO HAD NOT ISSUED SUM MONS TO THE CHIEF MANAGER PNB TO CROSS VERIFY THE FACT OF CASH DEPOSI T IN THE BANK ACCOUNT OF THE ASSESSEE. THE LETTERS ISSUED BY THE BANK ANT TO CROSS CHECK THE CLAIMS MADE BY THE ASSESSEE. FURTHER THE LD. DR HAD DRAWN OUR ATTENTION TO PARAGRAPH 6 OF THE ORDER OF PR. CI T WHEREIN IT WAS MENTIONED THAT THE AMOUNT WAS ROUTED THROUGH SARADJ OT SINGHS ACCOUNT BY USING A COLORABLE DEVICE RATHER AND OUTR IGHT SHAM SCRIPTED AND EXECUTED FOR THE PURPOSE OF LENDING LEGITIMACY TO THE ASSESSEES UNACCOUNTED INCOME. FURTHER DR HAD SUBMITTED THAT T HE ASSESSEE HAD FAILED TO SHOW THAT THE CASH DID NOT BELONG TO THE ASSESSEE AND SHE HAD NOTHING TO DO WITH THE ACCOUNT. THE LD. DR HAD ALSO DRAWN OUR ATTENTION TO PARAGRAPH 7.1, 7.2 AND 9.1 OF THE ORDE R WHEREIN THE LD. PR. CIT HAD MENTIONED AS UNDER: 7.1 IN THE PRESENT CASE, THE ASSESSEE HAD DEPOSITE D CASH AMOUNTING TO RS. 4.5 CRORES WHICH IS TREATED AS UNE XPLAINED MONEY. - THE ASSESSEE IS FOUND TO BE THE OWNER OF THE MONEY APPEARING IN BANK ACCOUNTS, AS IS APPARENT FROM THE USE OF THE MONEY TO REPAY THE ASSESSEE'S LOAN, BUT HAS NOT OFFERED ANY ACCEPTABLE AND COGENT ITA NO. 701/ASR/2019 20 EXPLANATION REGARDING THE SOURCE OF SUCH MONEY FOUN D IN ITS BANK ACCOUNTS. THE SCHEME OF SECTION 69A OF THE INCOME-T AX ACT, 1961, WOULD SHOW THAT IN CASES WHERE THE NATURE AND SOURC E OF ACQUISITION OF MONEY, BULLION, ETC., OWNED BY THE- ASSESSEE IS NOT EXPLAINED AT ALL, OR NOT SATISFACTORILY EXPLAINED, THEN, THE VALUE OF SU CH INVESTMENTS AND MONEY OR VALUE OF ARTICLES NOT RECORDED IN THE BOOK S OF ACCOUNTS MAY BE DEEMED TO BE THE INCOME OF SUCH ASSESSEE. THE PR OVISIONS OF SECTION 69A OF THE ACT TREAT UNEXPLAINED MONEY, BULLION, ET C., AS DEEMED INCOME WHERE THE NATURE AND SOURCE OF INVESTMENT, A CQUISITION AS THE CASE MAY BE, HAVE NOT BEEN EXPLAINED OR SATISFACTOR ILY EXPLAINED. THEREFORE, IN THESE CASES, THE SOURCE NOT BEING KNO WN, SUCH DEEMED INCOME COVERED UNDER THE PROVISIONS OF SECTION 69A OF THE ACT IN VIEW OF THE SCHEME OF THOSE PROVISIONS. FOR APPLICATION OF SECTION 69A OF THE ACT, TWO COND ITIONS ARE REQUIRED TO BE SATISFIED. (1) INVESTMENT/EXPENDITURE ARE NOT RECORDED IN THE BOOKS OF ACCOUNT OF ASSESSEE; (II) THE NATURE AND SOURCE OF ACQUISITION OF ASSETS OR EXPENDITURE ARE NOT EXPLAINED OR NOT EXPLAINED SATISFACTORILY; THE EXPRESSION 'NATURE AND SOURCE' USED IN THIS SEC TION SHOULD BE UNDERSTOOD TO MEAN REQUIREMENT OF IDENTIFICATION OF SOURCE AND ITS GENUINENESS. TO EXPLAIN 'NATURE' IT WOULD REQUIRE T HE ASSESSEE TO EXPLAIN THE DESCRIPTION OF INVESTMENT OR EXPENDITUR E AND THE PERIOD AND THE MANNER IN WHICH IT WAS DONE. TO EXPLAIN THE SOURCE IT WOULD REQUIRE THE ASSESSEE TO EXPLAIN THE CORPUS OR FUND FROM WHERE INVESTMENT OR EXPENDITURE HAS BEEN MET. 7.2. IN THE PRESENT CASE, THE ASSESSEE COMPANY HAS ROUTED CASH IN ITS BANK ACCOUNT WITH THE CONNIVANCE OF THE BANK OF FICIALS AS DISCUSSED IN DETAILS ABOVE. FURTHER, THE NATURE AND SOURCE OF SUCH DEPOSITS MADE ITA NO. 701/ASR/2019 21 IN THE BANK ACCOUNTS WERE NOT AT ALL EXPLAINED, LEA VE ALONE SATISFACTORY EXPLANATION. FURTHER, FOR INVOKING DEEMING PROVISIO NS UNDER SECTION 69A OF THE ACT, THERE SHOULD BE CLEARLY IDENTIFIABL E ASSET OR UNEXPLAINED MONEY. IT IS AMPLY PROVED BEYOND DOUBT THAT THE ASS ESSEE HAS DEPOSITED CASH IN BANK ACCOUNT AND THE SOURCE OF TH E CASH REMAINS UNEXPLAINED, AND THE SUM OF RS.4,50,00,000/- ARE ID ENTIFIABLE UNEXPLAINED ASSETS. ALL THREE LIMBS OF SECTION 69A OF THE ACT STANDS QUALIFIED IN THE CASE OF THE ASSESSEE, I.E. THE ASSESSEE WAS FOUND TO BE OWNER OF THE MONEY; SUCH MONEY WAS NOT RECORDED IN THE BOOKS OF ACCOUNT S; AND ITS NATURE AND SOURCE IS NOT IDENTIFIABLE. 9.1 FROM THE FACTS OF THE CASE AFORESAID, IT IS CLE ARLY ESTABLISHED THAT THE ASSESSEE HAS EMPLOYED COLORABLE DEVICE TO AVOID THE PAYMENT OF LEGITIMATE TAX AND THE ACTION OF THE ASSESSEE IS INTENDED TO DEFRAUD THE REVENUE. THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND TAKING INTO ACCOUNT T HE VARIOUS JUDICIAL PRONOUNCEMENTS, THE EXPLANATION OFFERED BY THE ASSE SSEE ABOUT THE SAID CREDIT IS NOT SATISFACTORY. IN THIS CASE, THE ASSESSEE HAS FAILED TO PROVE THIS FACT THAT THE CASH DEPOSITED IS NORMAL B USINESS CASH OR DOES NOT BELONG TO HER, I THEREFORE, HOLD THAT THE AMOUN T OF DEPOSITS MADE IN THE BANK ACCOUNTS, REPRESENTS INCOME FROM UNDISC LOSED SOURCES. THE ASSESSEE HAS CONCEALED ITS TRUE INCOME WHICH OTHERW ISE IS TAXABLE. FURTHER, BY RELYING UPON THE DECISION OF HON'BLE SU PREME COURT IN THE CASES CITED ABOVE THAT THERE WAS AMPLE EVIDENCE THA T CASH WAS DEPOSITED IN BANK ACCOUNTS, WHICH IS PRIMA FACIE EV IDENCE AGAINST THE ASSESSEE THAT THE DEPOSITS ARE UNDISCLOSED INCOME O N WHICH THE DEPARTMENT CAN PROCEED IN ABSENCE OF GOOD EXPLANATI ON. THE ASSESSEE HAS MADE CASH DEPOSITS AMOUNTING TO RS 4,50,00,000/ - AND THE SOURCE THEREOF REMAINS UNEXPLAINED. THE ASSESSEE FAILED TO GIVE ANY EXPLANATION ABOUT THE NATURE AND SOURCE OF CASH DEP OSITS, HENCE THE ITA NO. 701/ASR/2019 22 VALUE OF CREDIT ENTRIES, INCLUDING CASH DEPOSITS, A PPEARING IN THE BANK ACCOUNT AS DETAILED IN THE BODY OF THE ORDER IS DEE MED AS UNEXPLAINED MONEY U/S 69A AND FALLS WITHIN THE AMBIT OF SECTION 69A OF THE INCOME TAX ACT, 1961 AND IS THEREFORE DIRECTED TO BE ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 26. WE HAVE HEARD THE RIVAL CONTENTION, THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE WE DEAL WITH T HE FACTUAL IN THE PRESENT CASE WE WOULD LIKE TO STATE TO SETTLE PRINC IPLE IN NUMBER INVOCATION OF THE JURISDICTION U/S 263 OF THE ACT A S HAS BEEN LAID DOWN BY THE HONBLE SUPREME COURT AND HIGH COURT IN THE FOLLOWING MANNER. 27. IN OUR CONSIDERED OPINION THE REVENUE HAS FAILED TO DEMONSTRATE THAT THE ORDER PASSED BY THE ASSESSING OFFICER WAS ERRON EOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. UNDER THE PROVISIONS OF THE ACT, THE PCIT MAY CALL FOR AND EXAMINE THE RECORD O F ANY PROCEEDING THIS ACT AND PASS AN ORDER ONLY IF THE TWIN CONDITI ONS ARE SATISFIED, NAMELY, THE ORDER PASSED BY THE ASSESSING OFFICER I S ERRONEOUS; AND ALSO PREJUDICIAL TO THE INTEREST OF THE REVENUE. TH E HONBLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS CIT (2000) 243 ITR 83 (SUPRA) HAS HELD THAT BOTH OF THE ABOVE CONDITIO NS HAVE TO BE SATISFIED. IT HAS BEEN HELD THAT, A BARE READING OF SECTION 263 OF THE INCOME-TAX AC T, 1961, MAKES IT CLEAR THAT THE PREREQUISITE FOR THE EXERCISE OF JURISDICT ION BY THE COMMISSIONER ITA NO. 701/ASR/2019 23 SUO MOTU UNDER IT, IS THAT THE ORDER OF THE INCOME- TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE COMMISSIONER HAS TO BE SATISFIED OF TWIN CONDITIONS , NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRON EOUS; AND (II) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THEM IS ABSENT-IF THE ORDER OF THE INCOME-TAX OFFICER IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IS PREJUDICIA L TO THE REVENUE-RECOURSE CANNOT BE HAD TO SECTION 263(1) OF THE ACT. THE PRO VISION CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE ASSESSING OFFICER IT IS ONLY WHEN AN ORDER IS ERRON EOUS THAT THE SECTION WILL BE ATTRACTED. AN INCORRECT ASSUMPTION OF FACTS OR A N INCORRECT APPLICATION OF LAW WILL SATISFY THE REQUIREMENT OF THE ORDER BEING ERRONEOUS. IN THE SAME CATEGORY FALL ORDERS PASSED WITHOUT APPLYING THE PR INCIPLES OF NATURAL JUSTICE OR WITHOUT APPLICATION OF MIND. THE PHRASE PREJUDI CIAL TO THE INTERESTS OF THE REVENUE' IS NOT AN EXPRESSION OF ART AND IS NOT DEFINED IN THE ACT. UNDERSTOOD IN ITS ORDINARY MEANING IT IS OF WIDE IM PORT AND IS NOT CONFINED TO LOSS OF TAX. THE SCHEME OF THE ACT IS TO LEVY AN D COLLECT TAX IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND THIS TASK IS ENT RUSTED TO THE REVENUE. IF DUE TO ERRONEOUS ORDER OF THE INCOME-TAX OFFICER, T HE REVENUE IS LOSING TAX LAWFULLY PAYABLE BY A PERSON, IT WILL CERTAINLY BE PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE PHRASE 'PREJUDICIAL TO THE INTE REST OF THE REVENUE' HAS TO BE READ IN CONJUNCTION WITH AN ERRONEOUS ORDER P ASSED BY THE ASSESSING OFFICER. EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER, CANNOT BE TREATED AS PREJUDICIAL TO THE IN TERESTS OF THE REVENUE, FOR EXAMPLE, WHEN AN INCOME-TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF R EVENUE, OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME-TAX OFFICER HAS T AKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE UNLESS THE VIEW TAKEN BY THE INCOME-TAX OFFICER IS UNSUSTAINABLE IN LAW. 28. A SIMILAR VIEW HAS ALSO BEEN TAKEN BY THE HONBLE A PEX COURT IN THE CASE OF CIT VS MAX INDIA LTD. (2007) 295 ITR 282 (S UPRA), WHEREIN IT HAS BEEN HELD AS UNDER: ITA NO. 701/ASR/2019 24 29. THE PHRASE 'PREJUDICIAL TO THE INTERESTS OF THE RE VENUE' IN SECTION 263 OF THE INCOME-TAX ACT, 1962, HAS TO BE READ IN CONJUNCTION WITH THE EXPRESSION 'ERRONEOUS' ORDER PASSED BY THE ASSE SSING OFFICER, EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INT ERESTS OF THE REVENUE. FOR EXAMPLE, WHEN THE ASSESSING OFFICER AD OPTS ONE OF TWO COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN L OSS OF REVENUE, OR WHERE TWO VIEWS ARE POSSIBLE AND THE ASSESSING OFFI CER HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE RE VENUE, UNLESS THE VIEW TAKEN BY THE ASSESSING OFFICER IS UNSUSTAINABL E IN LAW. 30. 31. IN THE MATTER ITO V. D.G. HOUSING PROJECTS LTD. 2 012 (343) ITR 329 (DELHI), WHEREIN IT HAS BEEN OBSERVED AS UNDER:- 16. THUS, IN CASES OF WRONG OPINION OR FINDING ON M ERITS, THE PCIT HAS TO COME TO THE CONCLUSION AND HIMSELF DECIDE THAT T HE ORDER IS ERRONEOUS, BY CONDUCTING NECESSARY ENQUIRY, IF REQUIRED AND NE CESSARY, BEFORE THE ORDER UNDER SECTION 263 IS PASSED. IN SUCH CASES, T HE ORDER OF THE ASSESSING OFFICER WILL BE ERRONEOUS BECAUSE THE ORDER PASSED IS NOT SUSTAINABLE IN LAW AND THE SAID FINDING MUST BE RECORDED. CIT CANNOT R EMAND THE MATTER TO THE ASSESSING OFFICER TO DECIDE WHETHER THE FINDING S RECORDED ARE ERRONEOUS. IN CASES WHERE THERE IS INADEQUATE ENQUI RY BUT NOT LACK OF ENQUIRY, AGAIN THE CIT MUST GIVE AND RECORD A FINDI NG THAT THE ORDER/INQUIRY MADE IS ERRONEOUS. THIS CAN HAPPEN IF AN ENQUIRY AN D VERIFICATION IS CONDUCTED BY THE CIT AND HE IS ABLE TO ESTABLISH AN D SHOW THE ERROR OR MISTAKE MADE BY THE ASSESSING OFFICER, MAKING THE O RDER UNSUSTAINABLE IN LAW. IN SOME CASES POSSIBLY THOUGH RARELY, THE CIT CAN ALSO SHOW AND ESTABLISH THAT THE FACTS ON RECORD OR INFERENCES DR AWN FROM FACTS ON RECORD PER SE JUSTIFIED AND MANDATED FURTHER ENQUIRY OR IN VESTIGATION BUT THE ASSESSING OFFICER HAD ERRONEOUSLY NOT UNDERTAKEN TH E SAME. HOWEVER, THE SAID FINDING MUST BE CLEAR, UNAMBIGUOUS AND NOT DEB ATABLE. THE MATTER CANNOT BE REMITTED FOR A FRESH DECISION TO THE ASSE SSING OFFICER TO CONDUCT FURTHER ENQUIRIES WITHOUT A FINDING THAT THE ORDER IS ERRONEOUS. FINDING THAT ITA NO. 701/ASR/2019 25 THE ORDER IS ERRONEOUS IS A CONDITION OR REQUIREMEN T WHICH MUST BE SATISFIED FOR EXERCISE OF JURISDICTION UNDER SECTIO N 263 OF THE ACT. IN SUCH MATTERS, TO REMAND THE MATTER/ISSUE TO THE ASSESSIN G OFFICER WOULD IMPLY AND MEAN THE CIT HAS NOT EXAMINED AND DECIDED WHETH ER OR NOT THE ORDER IS ERRONEOUS BUT HAS DIRECTED THE ASSESSING OFFICER TO DECIDE THE ASPECT/QUESTION 32. THE OBSERVATION OF THE HON'BLE BOMBAY HIGH COURT IN CASE OF CIT V. NIRAV MODI, 390 ITR 292 ON THIS ISSUE IS AS UNDER : 4 (A) THE POWERS U/S. 263 OF THE ACT CAN BE EXERCIS ED BY THE COMMISSIONER ON SATISFACTION OF TWIN CONDITIONS VIZ. THE ASSESSM ENT ORDER SHOULD BE ERRONEOUS AND PREJUDICIAL TO THE REVENUE. THIS POWE R CANNOT BE EXERCISED UNLESS THE COMMISSIONER IS ABLE TO ESTABLISH THAT T HE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE REVENUE . THUS, WHERE THERE ARE TWO POSSIBLE VIEWS AND THE ASSESSING OFFICER HAS TA KEN ONE OF THE POSSIBLE VIEWS, NO OCCASION TO EXERCISE POWERS OF REVISION C AN ARISE. IT WAS ALSO HELD THAT REVISIONAL POWERS ALSO CANNOT BE EXERCISED FOR DIRECTING A FULLER INQUIRY TO FIND OUT IF THE VIEW TAKEN IS ERRONEOUS, WHEN A VIEW HAS ALREADY BEEN TAKEN AFTER INQUIRY. THIS POWER OF REVISION CAN BE EXERCISED ONLY WHERE NO INQUIRY AS REQUIRED UNDER THE LAW IS DONE. IT IS NO T OPEN TO ENQUIRE IN CASES OF INADEQUATE INQUIRY. 33. THE PRINCIPLES THAT EMERGE OUT OF THE ABOVE CITED D ECISIONS ARE THAT THE TWIN REQUIREMENT OF THE ORDER BEING ERRONEOUS A ND PREJUDICIAL TO THE INTERESTS OF REVENUE SHOULD BE SATISFIED AND T HAT THE CIT SHOULD INVOKE THE POWERS U/S 263 ONLY AFTER AN ENQUIRY BY HIM TO ESTABLISH THE TWIN CONDITIONS. ITA NO. 701/ASR/2019 26 34. FURTHER WE ARE ALSO THE OPINION THAT MERELY THE ASS ESSING OFFICER HAS FORMED AN OPINION WHICH IS NOT IN LINE OF THINKING OF THE REVISIONAL COMMISSIONER AND THERE ARE TWO POSSIBLE VIEWS, THEN ALSO THE REVISIONAL COMMISSIONER CANNOT EXERCISE THE POWER F OR PROVISION UNDER SECTION 263. FOR THE ABOVE SAID PURPOSES WE R ELY UPON THE DECISION OF THE BOMBAY HIGH COURT IN THE MATTER OF C.I.T. VS. GABRIEL INDIA LTD. 203 ITR 108 (BOM) HAS HELD THAT: THE INCOME TAX OFFICER IN THIS CASE HAD MADE ENQUI RIES IN REGARD TO THE NATURE OF THE EXPENDITURE INCURRED BY THE ASSES SEE. THE ASSESSEE HAD GIVEN A DETAILED EXPLANATION IN THAT REGARD BY A LE TTER IN WRITING. ALL THESE WERE PART OF THE RECORD OF THE CASE. EVIDENTLY, CLA IM WAS ALLOWED BY THE INCOME TAX OFFICER ON BEING SATISFIED WITH THE EXPL ANATION OF THE ASSESSEE. THIS DECISION OF THE INCOME TAX OFFICER COULD NOT B E HELD TO BE ERRONEOUS SIMPLY BECAUSE IN HIS ORDER HE DID NOT MAKE AN ELAB ORATE DISCUSSION IN THAT REGARD. 35. FROM THE PERUSAL OF THE RECORD OF THE PRESENT CASE, IT IS APPARENT THAT BEFORE ISSUANCE OF NOTICE U/S 147 THE INVESTIGATION BEING OF THE REVENUE HAS ISSUED THE NOTICES TO THE BANK AND IN R EPLY THEREOF THE OFFICIAL OF THE BANK VIDE THEIR COMMUNICATION DATED 21.9.2013 HAD MENTIONED THAT NO CASH WAS DEPOSITED BY THE ASSESSE E IN HER BANK ACCOUNT, AS THERE IS NO DETAILS OF CURRENCY IN CASH DEPOSIT . 36. DURING ARGUMENT OUR ATTENTION WAS DRAWN TO LETTER D ATED 14.3.2018 WRITTEN BY THE ASSESSING OFFICER AT PAGE 9 OF THE P APER BOOK WHERE THE ASSESSING OFFICER WHILE EXERCISING JURISDICTION U/S 133(6) OF THE ACT AS FOR THE FOLLOWING INFORMATION. ITA NO. 701/ASR/2019 27 1. WHETHER YOU ARE AN INCOME TAX ASSESSEE OR NOT? 2. PLEASE FURNISH A SELF ATTESTED COPY OF YOUR PAN 3. FURNISH DETAIL OF ALL YOUR SOURCES OF INCOME. 4. SOURCE OF CREDIT ENTRIES IN YOUR ABOVE MENTIONED BA NK ACCOUNTS DURING F.Y. 2010-11 37. THE SAME WAS DULY REPLIED BY THE ASSESSEE VIDE REPL Y DATED 19/3/2018 WHICH SUBMITTED ALONG WITH THE DOCUMENTS SOUGHT BY THE OFFICIALS. ALONG WITH THE REPLY THE ASSESSEE HAD AL SO FILED THE PAN CARD ,ITRS , BANK STATEMENTS RELEVANT FOR THE PERIOD, CO MPUTATION OF INCOME ,BALANCE SHEET CERTIFICATE ETC .ISSUED BY T HE BANK AT PAPER BOOK PAGE 100 AND 119 DATED 04.06.2019 THAT NO CASH HAS BEEN RECEIVED AND PAID IN ACTUAL. 38. AS MENTIONED HEREINABOVE THE NOTICE U/S 148 DATED 29.3.2018 WAS ISSUED TO THE ASSESSEE ON ACCOUNT OF CASH DEPOSIT I N THE BANK ACCOUNT. IN THE REASONS IT WAS MENTIONED AS PER B ANK STATEMENTS ODF ASSESSEE,S ACCOUNT NO 024200PC00037676 AN AMOU NT OF RS. 4,50,00,000/- HAS BEEN CREDITED IN IT ON 10/7/2010. 39. THE REASONS DATED 20.03.2018 FOR REOPENING PROVIDES AS UNDER: ITA NO. 701/ASR/2019 28 SINCE NO PAN OF THE ASSESSEE IS AVAILABLE ON RECOR D AS OND ATE, IT CANNOT BE ASCERTAINED WHETHER ANY RETURN OF INCOME FOR THE AY 2011-12 IS FILED BY THE ASSESSEE OR NOT. A TEP IN ASSESSEES CASE WAS RECEIVED FROM THE INVE STIGATION WING THROUGH THE JCIT, RANGE -2, JALANDHAR VIDE HIS OFFICE LETTE R NO. 2069 DATED 27.3.2017. AS PER BANK STATEMENTS OF ASSESSEES ACCOUNT NO. 02 4200PC00037676, AN AMOUNT OF RS 4,50,00,000/- HAS BEEN CREDITED IN IT ON 10.7.2010. SINCE NO RETURN OF INCOME FOR THE AY 2011-12 IS AVA ILABLE, IT IS NOT ASCERTAINED WHETHER THE TRANSACTION MADE ARE FROM A SSESSEES DISCLOSED SOURCES OR NOT. 40. THE ASSESSEE FILED REPLY READ TO THE NOTICE UNDER SECTION 148 ON 3 RD APRIL 2018. THEREAFTER THE ASSESSING OFFICER HAD I SSUED THE NOTICE UNDER SECTION 142(1) OF THE ACT CALLING UPON THE AS SESSEE TO FURNISH VARIOUS DETAILS IN RESPECT OF THE CASH ENTRIES, PRO VIDE THE BANK ACCOUNT STATEMENTS, BANK CERTIFICATE ET CETERA. THI S 41. THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEED INGS HAD CALLED UPON THE BANK MANAGER TO FURNISH THE FOLLOWING INFO RMATION VIDE COMMUNICATION DATED 7/8.8.2018 CALLING UPON TO PROV IDE THE FOLLOWING INFORMATION U/S 133(6) OF THE ACT 2. IN THIS CONNECTION YOU ARE REQUESTED TO PROVIDE THE VOUCHER COMPLETE NARRATION AND IF TRANSFER THE BANK ACCOUNT PLEASE P ROVIDE THE NAME OF BANK, OF THE BELOW NOTED BANK ACCOUNTS AND DATE OF ENTRIE S. M/S RAMCO AUTO INDUSTRIES A/C NO. 0242002101004903 DATE OF VOUCHER IN WHICH ACCOUNT TRANSFER AMOUNT ITA NO. 701/ASR/2019 29 06.07.2010 TO 3171104 4,50,00,000/- PLEASE PROVIDE THE NAME OF BANK AND NAME OF ACCOUNT HOLDER OF A/C NO. 3171104 IF THE ACCOUNT IS WITH YOUR BRANCH. PLEASE PROVIDE THE ACCOUNT STATEMENTS FOR THE PERIOD OF 1.4.2010 TO 31.3.2011. M/S RAMCO AUTO INDUSTRIES A/C NO. 024200PC00037676 DATE OF VOUCHER IN WHICH ACCOUNT TRANSFER AMOUNT 10.07.2010 TRANSFER 4,50,00,000/- PLEASE PROVIDE THE NAME OF BANK AND NAME OF ACCOUNT HOLDER FROM /TO WHOM AMOUNT TRANSFERRED/RECEIVED. SH. SARADJYOT SINGH S/O MANOHAR SINGH A/C NO. 02420 0125537289 DATE OF VOUCHER IN WHICH ACCOUNT TRANSFER AMOUNT 03.04.2010 TO 3171104 7,00,000/- 12.04.2010 TO 3171104 53,00,000/- 22.05.2010 TO 3171104 25,00,000/- 31.05.2010 TO 3171104 15,00,000/- 14.06.2010 TO 3171104 8,00,000/- 23.06.2010 TO 3171104 7,00,000/- 01.07.2010 TO 3171104 10,00,000/- ITA NO. 701/ASR/2019 30 05.07.2010 TO 3171104 30,00,000/- 10.07.2010 PC37676 4,50,0,000/- 13.07.2010 TO 3171104 9,00,000/- 14.07.2010 TO 3171104 9,00,000/- 16.07.2010 TO 3171104 8,00,000/- 19.07.2010 TO 3171104 5,00,000/- 22.07.2010 TO 3171104 14,00,000/- 23.07.2010 TO 3171104 9,00,000/- 26.07.2010 TO 3171104 9,00,000/- 30.07.2010 TO 3171104 11,00,000/- 07.08.2010 TO 3171104 2,00,000/- 17.08.2010 TO 3171104 7,00,000/- 21.12.2010 TO 3171104 5,07,500/- PLEASE PROVIDE THE NAME OF BANK AND NAME OF ACCOUNT HOLDER FROM/TO WHOM AMOUNT TRANSFERRED/RECEIVED. THIS INFORMATION IS BEING CALLED U/S 133(6) OF THE INCOME TAX ACT, 1961, AND THE INFORMATION MUST REACH THIS OFFICE BY 28.08.201 8. PLEASE NOTE THAT NON- COMPLIANCE TO THIS LETTER MAY ATTRACT PENAL ACTION AS PER PROVISION OF INCOME TAX ACT, 1961. ITA NO. 701/ASR/2019 31 42. OUR ATTENTION WAS ALSO DRAWN TO THE ANOTHER NOTICE DATED 14.12.2018 CALLING FOR FURTHER INFORMATION FROM THE BRANCH MAN AGER OF PNB BANK (PAGE 209 OF THE PAPER BOOK) 43. THE REPLY WAS GIVEN BY THE BANK OFFICIALS AND THE D OCUMENTS WERE PROVIDED VIDE REPLY DATED 19.12.2018. FOR THE READY REFERENCE WE ARE REPRODUCING HEREIN BELOW THE REPLY DATED 19.12.2018 (PAGE 210) THE ENTRY DATED 06.07.2010 OF RS 4.50 CRORE WAS TRA NSFERRED FROM RAMCO AUTO INDUSTRIES ACCOUNT TO SUNDRY ACCOUNT (31 71104) WHICH WAS FURTHER DEBITED THROUGH CASH TRANSACTION ON 06. 07.2010. FURTHER IT APPEARS THAT THE SAME AMOUNT WAS CREDITED BY CAS H TO SAADJYOT SINGH ACCOUNT 06.07.2010. THE VOUCHER IS ENCLOSED HEREWITH (CASH DEPOSIT ON 0 6.07.2010 AND TRANSFER OF SAME AMOUNT ON 10.07.2010) DETAILS OF FDRS PLEDGED IS ENCLOSED. CASH DAY BOOK DATED 06.07.2010 IS ENCLOSED. 44. FROM THE PERUSAL OF THE ABOVE SAID NOTICE SENT TO T HE BANK AND THE REPLY GIVEN BY THE BANK, IT IS CLEAR THAT THE ASSES SING OFFICER HAD SOUGHT THE INFORMATION UNDER THE LAW NOT ONLY ON 08 .08.2012 BUT ALSO ON 14.12.2018 AND THE SAID INFORMATION, SOUGHT BY T HE ASSESSING OFFICER WERE DULY PROVIDED BY THE PUNJAB NATIONAL B ANK TO THE ASSESSING OFFICER. THE SUM AND SUBSTANCE OF THE INF ORMATION ITA NO. 701/ASR/2019 32 FURNISHED BY THE PUNJAB NATIONAL BANK UNDER THE C ERTIFICATION OF THE BRANCH MANAGER/CHIEF MANAGER UNDER THE BANKERS EVID ENCE ACT, WAS THAT THE NO CASH HAS BEEN DEPOSITED BY RAMCO AUTO I NDUSTRIES ON 06.07.2010. THIS FACT WAS FURTHER COORBORATED WITH THE CASH BOOK OF THE BANK DATED 06.07.2010, CASH VOUCHERS AND OTHER DOCUMENTS SENT BY THE BANK TO AO. IN OUR VIEW ONCE THE ASSESSING O FFICER HAD RECEIVED DULY CERTIFIED REPLY FROM THE BANK ALONG W ITH BANK STATEMENT OF THE ASSESSEE AS WELL AS OF SARADAR SINGH, CASH V OUCHERS, AND OTHER INFORMATION UNDER THE CERTIFICATION OF THE BANKERS EVIDENCE ACT, THEN NO FURTHER CONFIRMATION OF THE RECORD BY RECORDING THE STATEMENT OF THE OFFICIALS WAS REQUIRED TO BE MADE BY THE ASSESS ING OFFICER.. THE SAID INFORMATION WAS FURNISHED BY THE OFFICIALS OF THE BANK IN RESPONSE TO THE NOTICE ISSUED BY THE ASSESSING OFFICER AS PE R THE BANKERS EVIDENCE ACT 1891, IS CLEARLY ADMISSIBLE PIECE OF E VIDENCE AND NO FURTHER CORROBORATION IS REQUIRED. THE HONBLE JUR ISDICTIONAL HIGH COURT IN THE MATTER OF STATE BANK OF INDIA VS H. SATISH HOSIERY FACTORY AND ANOTHER 2003 SCC ONLINE P&H 1185 : (200 5) 1 RCR (CIVIL) 120 HAD HELD AS UNDER : 13. THE LEARNED COUNSEL FOR THE DEFENDANT HAS ARGUE D THAT THE STATEMENT OF ACCOUNT DOES NOT CONTAIN THE DATE ON W HICH STATEMENT OF ACCOUNT WAS PREPARED AND THUS SUCH STATEMENT OF ACCOUNT IS NOT ADMISSIBLE. SUCH CERTIFICATE IS REQUIRED TO BE DATE D AND SUBSCRIBED BY THE PRINCIPAL ACCOUNTANT, MANAGER OF THE BANK WITH HIS NAME AND OFFICIAL TITLE. SINCE THE DATE ON SUCH CERTIFICATE IS NOT MENTIONED, THEREFORE, IT IS NOT A CERTIFIED COPY WITHIN THE ME ANING OF SECTION 2(8) ITA NO. 701/ASR/2019 33 OF THE BANKERS BOOKS EVIDENCE ACT. SECTIONS 2(8) AN D 4 OF THE BANKERS BOOKS EVIDENCE ACT READ AS UNDER: 2(8). CERTIFIED COPY MEANS A COPY OF ANY ENTRY IN THE BOOKS OF BANK TOGETHER WITH A CERTIFICATE WRITTEN AT THE FOOT OF SUCH COPY THAT IT IS A TRUE COPY OF SUCH ENTRY, THAT SUCH ENTRY IS, CONTAI NED IN ONE OF THE ORDINARY BOOKS OF THE BANK AND WAS MADE IN THE USUA L AND ORDINARY COURSE OF BUSINESS, AND THAT SUCH BOOK IS STILL IN THE CUSTODY OF THE BANK (AND WHERE THE COPY WAS OBTAINED BY A MECHANIC AL OR OTHER PROCESS WHICH IN ITSELF ENSURED THE ACCURACY OF THE COPY, A FURTHER CERTIFICATE TO THAT EFFECT, BUT WHERE THE BOOK FROM WHICH SUCH COPY WAS PREPARED HAS BEEN DESTROYED IN THE USUAL COURSE OF THE BANKS BUSINESS AFTER THE DATE ON WHICH THE COPY HAD BEEN SO PREPARED, A FURTHER CERTIFICATE TO THAT EFFECT EACH SUCH CERTIF ICATE BEING DATED AND SUBSCRIBED BY THE PRINCIPAL ACCOUNTANT OR MANAGER O F THE BANK WITH HIS NAME AND OFFICIAL TITLE). 4. MODE OF PROOF OF ENTRIES IN BANKERS BOOKS.SU BJECT TO THE PROVISIONS OF THIS ACT, A CERTIFIED COPY OF ANY ENT RY IN A BANKERS BOOK SHALL IN ALL LEGAL PROCEEDINGS BE RECEIVED AS PRIMA FACIE EVIDENCE OF THE EXISTENCE OF SUCH ENTRY, AND SHALL BE ADMITTED AS EVIDENCE OF THE MATTERS, TRANSACTIONS AND ACCOUNTS THEREIN RECORDED IN EVERY CASE WHERE, AND TO THE SAME EXTENT AS, THE ORIGINAL ENTR Y ITSELF IS NOW BY LAW ADMISSIBLE, BUT NOT FURTHER OR OTHERWISE. 14. A PERUSAL OF THE PROVISIONS OF THE ACT SHOWS T HAT CERTIFIED COPY OF ANY ENTRY IN A BANKERS BOOK IS TO BE RECEIVED AS PR IMA FACIE EVIDENCE OF THE EXISTENCE OF SUCH ENTRY AND SHALL BE ADMITTE D AS EVIDENCE OF THE MATTERS, TRANSACTIONS AND ACCOUNTS THEREIN RECO RDED IN EVERY CASE AS THE ORIGINAL ENTRY IS NOW BY LAW ADMISSIBLE BUT NOT FURTHER OR OTHERWISE. ITA NO. 701/ASR/2019 34 45. HONBLE SUPREME COURT OF INDIA IN THE MATTER OF C HANDRDHAR GOSWAMI VS GUHWATI BANK LTD AIR 1967 SC 1058 HAD AL SO DECIDED THE IN THE SAME MANNER . 46. FROM THE PERUSAL OF THE ABOVE DECISION AND PROVISIO N OF BANKING BOOKS EVIDENCE 1891, IT IS CLEAR THAT ONCE CERTIFI ED DOCUMENTS WERE GIVEN BY THE BRANCH MANAGER/CHIEF MANAGER OF THE BA NK WHILE DISCHARGING ITS DUTY IN PURSUANCE TO THE NOTICE ISS UED BY ANY AUTHORITY, THEN THE SAID INFORMATION IS ADMISSIBLE IN THE EYES OF LAW AND NO FURTHER CORROBORATION IS REQUIRED. 47. IN OUR CONSIDERED OPINION, THE ASSESSING OFFICER HA D MADE ADEQUATE INQUIRY U/S 148 BEFORE PASSING THE SAID ORDER. 48. WE HAVE GONE THROUGH THE ORDER PASSED BY THE PCIT AND WE FOUND THAT THE PCIT HAD FAILED TO BRING ONE RECORD THE MATERIAL/EV IDENCE WHICH SHOWS THAT THE ASSESSEE HAD DEPOSITED THE CASH IN HER BANK ACCOUNT . 49. THE PCIT IN THE ORDER HAD MENTIONED ABOUT THE VARIO US LETTERS WRITTEN BY THE BANK. WE ARE REPRODUCING HEREIN BELOW THE RELEVANT PORTION OF THE ORDER FOR THE COMPLETENESS OF RECORD (PAGE 11, 5.3) LETTER DATED 21.09.2013 FIELD BEFORE DIT(I&CI) AUT HENTICATED COPY FILED ON 11.9.2019: THE LETTER CLAIMS THAT RS 4,50, 00,000/- WAS REMITTED THROUGH RTGS ON 6.7.2010 IN REFERENCE OF THE PURCHASE, BUT DUE TO SLOW CONNECTIVITY, THE TRANSACTION COULD NOT BE PUT THROUGH AND AMOUNT WAS TRANSFERRED TO SUNDRY. HOWEVER THERE ARE NO DOCUMENTS SHOWING REQUEST FOR RTGS OR LETTER OR DEB IT VOUCHER ITA NO. 701/ASR/2019 35 SIGNED BY THE ASSESSEE TO THE BANK DATED 6.7.2010 R EQUESTING FOR ADJUSTMENT OF THE LOAN. THE LETTER CONFIRMS THAT ON 6.7.2010 RS 4,50,00,000/- WAS POSTED IN SF A/C NO. (02420001255 37289 (SARADJYOT SINGH) INSTEAD OF A/C NO. 02420021010049 03 9 RAMCO AUTO) BY THE CLERK/OFFICER THROUGH OVERSIGHT. THUS RS 4.5 CRORES DEPOSITED IN CASH ON 6.7.2010 WAS TO BE DEPOSITED D IRECTLY INTO RAMCO AUTO INDUSTRIES ACCOUNT. LETTER DATED 4.6.2019- THE LETTER RELIED UPON BY TH E ASSESSEE TO CLAIM THAT NO CASH HAS BEEN DEPOSITED BY VOUCHER DATED 6. 7.2010, ONLY STATES THAT SEEMS ONLY BOOK ENTRY, IT DOES NOT CO NFIRM THAT THESE ARE ONLY BOOK ENTRIES. THE SYSTEM GENERATED VOUCHER S AND THE CASH BOOK CLEARLY SHOW THAT THESE ARE CASH TRANSACTIONS. LETTER DATED 29.8.2019- THIS LETTER HAS BEEN RELIED UPON BY THE ASSESSEE TO CONFIRM THAT NO CASH HAS BEEN CREDITED IN SARADJYOT SINGH A/C 0242000125537289. 50. FROM THE PERUSAL OF THE VARIOUS LETTERS WRITTEN BY THE BANK TO THE REVENUE, IT IS ABUNDANTLY CLEAR THAT NO CASH WAS DEPOSITED BY THE ASSESSEE IN HER BANK ACCOUNT. THESE DOCUMENTS AND OTHER CORRESPONDENCE C LEARLY SHOWS THAT THE AO HAD MADE SUFFICIENT ENQUIRY TO FIND OUT WHETHER THE CASH WAS DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE OR NOT. AFTER DUE SATISFACTION, THAT NO CASH WAS DEPOSITED IN ASSESSEES BANK ACCOUNT, THE ASSES SMENT ORDER WAS PASSED WITHOUT MAKING ANY ADDITION. ITA NO. 701/ASR/2019 36 51. AS MENTIONED IN HEREIN ABOVE THE REOPENING U/S 148 WAS MADE FOR THE REASONS THAT THERE WAS CASH DEPOSITS OF RS 4.5 CRORE IN THE BANK ACCOUNT OF THE ASSESSEE. THE PCIT IN PARAGRAPH 5.5 OF HER ORDER AS MENTIONED THAT IT IS TRUE THAT THE VOUCHER BY VIRTUE OF WHICH CASH OF RS 4.5 CRORE HAS BEEN DEPOSITED IN THE BANK DOES NOT BEAR SIGNATURES OF THE ASSESSEE B UT THE EVIDENCE IS STRONGLY AGAINST THE ASSESSEE. FURTHER THE PCIT ON PAGE 13 CONFIRMS THAT THE CASH WAS DEPOSITED IN THE BANK ACCOUNT OF SARADIYOT SINGH. B Y MENTIONING THAT THE SYSTEM GENERATED VOUCHER OF THE BANK WITH THE SAME TRANSACTION ID NO. M615025 HOWEVER, SHOWS DEPOSIT OF CASH IN ACCOUNT O F SARADJYOT SINGH ACCOUNT NUMBER 0242000125537289. 52. THE FINDING RECORDED BY THE PCIT THAT THE ACCOUNT O F SARADJYOT SINGH WAS USED TO ROUTE THE CASH AMOUNT IN THE ACCOUNT OF THE ASSE SSEE, IS NOT SUPPORTED BY ANY DOCUMENT OR EVIDENCE. IN FACT THE LOAN OF RS 4. 5 CRORES WAS SANCTIONED IN FAVOUR OF ASSESSEE ON 29.6.2010 AND THE SAME WAS CR EDITED IN THE ASSESSEE BANK ACCOUNT ON 10.07.2020. 53. THE PCIT, HAD FURTHER FAILED TO ACCEDE TO THE REQUE ST OF THE ASSESSEE WHEREBY SHE HAD REQUESTED FOR EXAMINATION OF SHRI RD SEWAK, THE THEN CHIEF MANAGER OF THE BANK, SH. RK ABHI THE THEN MANAGER OF THE BA NK, SH. MANOHAR SINGH THE THEN SR. MANAGER OF THE BRANCH, SH. SOM NATH NAGPAL , SH. PAWAN KUMAR SHARMA FOR THE FOLLOWING REASONS (PAGE 7 OF THE IM PUGNED ORDER) (1) THE ONUS WAS ON THE ASSESSEE TO EXPLAIN THE ALL EGED TRANSACTION AS IT RELATED TO HER BANK ACCOUNT AND IF SHE WANTED ANY P ERSON TO BE PRODUCED TO PROVE ANY OF HER CLAIMS, THE ONUS WAS ON HER TO PRODUCE THEM. ITA NO. 701/ASR/2019 37 (2) THE ASSESSEE IN HER REQUEST DID NOT GIVE THE PR ESENT ADDRESSES OF THE BANK EMPLOYEES WHOSE STATEMENTS IT WANT TO BE RECOR DED IF SHE WANTED ASSISTANCE OF THE DEPARTMENT IN PRODUCING THEM. (3) THE PRODUCTION OF THE BANK EMPLOYEES AT THAT TI ME WOULD ONLY DELAY THE PROCEEDINGS AS THEY WOULD ONLY STAND BY THE DOCUMEN TS OF THE BANK AND WOULD NOT HAVE ANY OTHER DOCUMENT/EVIDENCE IN THEIR POSSESSION TO MAKE ANY OTHER CLAIM. 54. QUIET CONTRARY TO HER REASONS FOR NOT PERMITTING AS SESSEE TO EXAMINE THESE PERSONS, THE STATEMENT OF THE CHIEF MANAGER WAS REC ORDED BY THE AO ON 11.9.2019 U/S 131 AND THE LETTER DATED 29.8.2019 WA S CONFRONTED TO HIM. THE PCIT RECORDS THAT CASH MIGHT HAVE BEEN DEPOSITED. 55. THE PCIT HAD ALSO REPRODUCED THE SUMMARY OF THE STA TEMENT RECORDED THE SECTION 131 AT PAGE 11 OF HER ORDER IN FOLLOWING MA NNER: 1. DAY BOOK PREPARED BY THE CASHIER- AT THE TIME OF RECEIVING THE CASH: IT WAS STATED BY THE CHIEF MANAGER IN HIS STATEMENT TH AT THE SAME HAS BEEN SOLD IN RADDI AS A PART OF WEEDING OUT OF OLD RECORDS. THIS CASH BOOK WAS AN IMPORTANT EVIDENCE TO SHOW PRIMARY RECE IPT OF CASH BY THE CASHIER AT THE TIME OF DEPOSIT ITSELF. NON-PRODUCTI ON SHOWS CONNIVANCE OF THE BANK OFFICIALS. 2. ALL VOUCHERS FOR 30.06.2010, 06.07.2010 AND 10.07.2 010- EXCEPT PAYMENT VOUCHER FOR 30.06.2010 NONE OF THE OTHER VO UCHERS WERE AVAILABLE WITH THE BANK AND THEY DID NTO PRODUCE TH E SAME. THE CHIEF MANAGER STATED IN RESPONSE TO SUMMONS U/S 131 THAT THE ORIGINAL VOUCHERS OF TRANSACTIONS SHOWING DEPOSIT OF CASH IN TO ACCOUNT TRANSFER ITA NO. 701/ASR/2019 38 OF ENTRY FROM RAMCO CURRENT ACCOUNT TO LOAN ACCOUNT FOR REPAYMENT, IF ANY, TRANSFER OF ENTRY FROM SARADJYOT SINGH ACCOUNT TO RAMCO ACCOUNT ARE NOT AVAILABLE. NON PRODUCTION OF VOUCHERS FOR T HE SPECIFIC DATES FURTHER SHOWS CONNIVANCE OF THE BANK OFFICIALS. 3. SIGNED VOUCHER FOR DEBITING CURRENT A/C OF THE A SSESSEE AND CREDITING LOAN A/C OF THE ASSESSEE: IT WAS CONFIRMED BY CHIEF MANAGER PNB, INDUSTRIAL AREA THAT NO SUCH VOUCHER IS AVAILABLE A ND ONLY A REQUEST LETTER DATED 6.7.2010 IS AVAILABLE AND THAT TOO ONL Y A COPY AND NOT THE ORIGINAL LETTER SIGNED BY THE ASSESSEE. UNDER THE C IRCUMSTANCES IT IS NOT POSSIBLE TO GET THE LETTER VALIDATED EVEN FROM A FO RENSIC EXPERT. IT IS SURPRISING THAT FOR DEBIT OF THE ASSESSEES BANK AC COUNT NO SIGNED VOUCHER IS THERE AND A LETTER IS SUFFICIENT. 4. JOURNAL FOR ALL DATES I.E. FROM 30.06.2010 TO 10 .07.2010 THE BANK PRODUCED JOURNAL FOR ALL DATES EXCEPT 6.7.2010, ON THE PLEA THAT THE ENTRY ON THIS DATE IS VOLUMINOUS AND HENCE CANNOT B E PRODUCED. 56. FROM THE PERUSAL OF THE EXTRACT OF THE STATEMENT DA TED 11.9.2019, OF THE CHIEF MANAGER RECORDED U/S 131, IT IS ABUNDANTLY CLEAR TH AT THE BANK WAS NOT IN POSSESSION OF ANY DOCUMENT LIKE CASH BOOK, VOUCHERS , SIGNED VOUCHERS OF DEBIT AND CREDIT AND JOURNAL FOR THE DATES I.E. FROM 30.0 6.2010 TO 10.07.2010. IN THE ABSENCE OF THESE DOCUMENTS IT CANNOT BE ASSUMED THA T ANY CASH WAS DEPOSITED BY THE ASSESSEE EITHER IN HER OWN ACCOUNT OR IN THE ACCOUNT OF SARADJYOT SINGH OR THE AMOUNT WAS DEBITED AND CREDITED IN HER ACCOUNT. IN OUR VIEW THE WHOLE ITA NO. 701/ASR/2019 39 ORDER OF THE PCIT IS PREMISED ON CONJECTURES AND SU RMISES WITHOUT ANY COGENT RELIABLE EVIDENCE. 57. AS MENTIONED ABOVE THE BANK HAD WRITTEN VARIOUS LET TERS CONFIRMING THAT NO CASH WAS DEPOSITED IN THE ACCOUNT OF THE ASSESSEE A T ANY POINT OF TIME RELEVANT TO ISSUE IN HAND. THEREFORE THE INVOCATION OF POWER U/S 263, WAS WITHOUT ANY BASIS. 58. IN OUR CONSIDERED OPINION, THE OBSERVATION ON THE L D. PCIT THAT THE DOCUMENTS FURNISHED BY THE BANK IN RESPONSE TO THE NOTICE OF AO WERE NOT REQUIRED TO BE CORROBORATED WITH THE STATEMENT OF THE CHIEF MANAGE R FOR THE REASON THAT THE DOCUMENTS ISSUED UNDER THE BANKERS BOOK EVIDENCE AC T 1891 ARE ADMISSIBLE IN LAW. FURTHER THE WHOLE CASE OF REOPENING WAS HINGES ON, THE CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE, THE ABOVE SAID FACT W AS DENIED BY THE BANK IN THE DOCUMENTS SUBMITTED TO THE ASSESSING OFFICER IN RES PONSE TO THE NOTICE ISSUED BY THE ASSESSING OFFICER TO THE BANK. 59. FURTHER WE ARE ALSO OF THE OPINION THAT WHEN THE AS SESSEE HAD REQUESTED PR. CIT TO EXAMINE THE OFFICIAL OF THE BANK THEN THE PR. CI T HAD DENIED THE SUMMONING OF THE SAID OFFICIALS BY OBSERVING AT POINT NO. 3 PAGE 7 OF THE ORDER AS UNDER : THE PRODUCTION OF THE BANK EMPLOYEES AT THIS TIME WOULD ONLY DELAY THE PROCEEDINGS AS THEY WOULD ONLY STAND FOR THE DO CUMENTS OF THE BANK AND WOULD NOT HAVE ANY OTHER DOCUMENT/EVIDENCE IN THEIR POSSESSION TO MAKE ANY OTHER CLAIM . 60. IN OUR CONSIDERED OPINION, THE PR. CIT CANNOT BE PE RMITTED TO BLOW HOT AND COLD, ON THE ONE HAND, THE PR. CIT IS HOLDING THAT ORDER OF AO WAS ERRONEOUS AS DOCUMENTS ISSUED BY THE BANK WERE REQUIRED TO BE CO RROBORATED CHIEF MANAGER AND ON THE OTHER HAND HIMSELF IS NOT MAKING ENQUIRY / EXAMINING THE OFFICIALS OF ITA NO. 701/ASR/2019 40 THE BANK TO ASCERTAIN THE TRUE FACTS BY DENYING THE SUMMONING OF THE OFFICIALS OF THE BANK ON THE REQUEST OF THE ASSESSEE. IN OUR CON SIDERED OPINION THE PRINCIPLE CIT HAD FAILED TO BRING ON RECORD ANY PIECE OF EVID ENCE OR DOCUMENTS WHICH SHOWS THAT THE CASH WAS DEPOSITED IN THE ACCOUNT OF THE ASSESSEE ON THE DATE MENTIONED IN THE REASONS FOR REOPENING OF THE ASSES SMENT. 61. NONETHELESS, ONCE THE CERTIFIED COPY OF THE CASH BO OK, BANK ACCOUNT, VOUCHERS AND OTHER DOCUMENTS WERE PRODUCED BEFORE THE AO AND PCIT, WHICH CLEARLY SHOWS THAT NO CASH WAS DEPOSITED IN THE BANK ACCOUN T THAN, IN OUR VIEW, THE FINDING RECORDED BY THE PR. CIT, WAS NOT CORRECT AS THE SAME WAS NOT BORNE OUT OF THE RECORD. 62. THE PCIT HAD FAILED TO ESTABLISH THE FULFILLMENT OF TWIN CONDITIONS AS MENTIONED HEREIN ABOVE BEFORE INVOKING THE JURISDICTION U/S 2 63 OF THE INCOME TAX ACT. THE PR. CIT HAS FAILED TO BRING ON RECORD HOW THE O RDER PASSED BY THE ASSESSING OFFICER WAS PREJUDICIAL TO THE INTEREST OF THE REVE NUE AND FURTHER HOW IT WAS ERRONEOUS. 63. NOTE SHEET OF THE ASSESSMENT PROCEEDING OF AO CLEAR LY SHOWS ENOUGH EVIDENCE OF MAKING THE INQUIRIES FROM THE ASSESSEE AS WELL A S FROM THE BANK AND EXAMINATION OF THE OTHER RELEVANT DOCUMENTS. 64. THE ORDER PASSED BY THE ASSESSING OFFICER THOUGH WA S SHORT, HOWEVER ELOBRATE ENQUIRIES WERE MADE BY HIM BEFORE WRITING THE ORDER AND DROPPING THE PROCEEDINGS UNDER SECTION 148, AS SUFFICIENT MATERI AL WAS BROUGHT ON RECORD , WHICH SHOWS THAT NO CASH WAS DEPOSITED IN THE BANK ACCOUNT . FURTHER AO HAD EXAMINED COMPLETE RECORD OF THE BANK, THE CASH BOOK , THE BANK STATEMENT OF THE ASSESSEE AS WELL AS THAT OF SH. SARADJOT SINGH AND THEREAFTER ASSESSING ITA NO. 701/ASR/2019 41 OFFICER HAD CHOSEN NOT TO MAKE ANY ADDITION ON ACCO UNT OF ABOVE SAID AMOUNT. IN THE LIGHT OF THE ABOVE AND RESPECTIVELY FOLLOWIN G THE DECISION OF BOMBAY HIGH COURT IN THE MATTER OF C.I.T. VS. GABRIEL INDI A LTD. 203 ITR 108 (BOM), WE ARE OF THE OPINION THAT THE PROCEEDING U/S 263 OF T HE ACT AT THE LEVEL OF PR. CIT WERE NOT CALLED FOR AND ACCORDINGLY THE ACTION INIT IATED U/S 263 WAS WITHOUT ANY MERIT AND ACCORDINGLY WE QUASH THE SAME. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.07.2021 SD/- SD/- (DR. M. L. MEENA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 14.07.2021 GP/SR. PS. COPY OF THE ORDER FORWARDED TO: (1)THE APPELLANT (2) THE RESPONDENT (3) THE CIT (4) THE CIT (APPEALS) (5) THE DR, I.T.A.T. TRUE COPY BY ORDER