M/s Worldwide Immigration Consultancy Services Pvt. Ltd., Chandigarh V. Pr. CIT-1, Chandigarh

ITA 772/CHANDI/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 8686 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 04-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S PHANI KISHORE
• Keywords: Revision of order; Business expenditure; Opportunity of being heard; Right to appeal; Set aside
• Section: 10(10D); 263

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, B, CHANDIGARH , ! '# $ % & '# , () BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NO. 772/CHD/2017 / ASSESSMENT YEAR : 2012-13 M/S WORLDWIDE IMMIGRATION CONSULTANCY PVT LTD., SCO 2415-16, SECTOR 22-C, CHANDIGARH THE PR. CIT-1, CHANDIGARH ./PAN NO: AAACW1564A / APPELLANT / RESPONDENT ! /ASSESSEE BY : SHRI TEJ MOHAN SINGH, ADVOCATE ' ! / REVENUE BY : SHRI. G.S. PHANI KISHORE, CIT DR # $ % /DATE OF HEARING : 31.10.2019 &'() % / DATE OF PRONOUNCEMENT : 13.11.2019 (* / ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 28.08.2014 OF THE PR. COMMISSIONER OF I NCOME TAX, CHANDIGARH [HEREINAFTER REFERRED TO AS PCIT] AGI TATING THE ACTION OF THE PCIT IN PASSING THE IMPUGNED ORDER U/S 263 OF T HE I.T. ACT EXERCISING HIS REVISION JURISDICTION. 2. THE BRIEF FACTS RELATING TO THE ISSUE ARE THAT T HE LD. PCIT NOTICED THAT THE ASSESSEE HAD DEBITED RS. 10 LACS AS KEYMA N INSURANCE POLICY ITA NO. 772/CHD/2017- M/S WORLDWIDE IMMIGRATION CONSULTANCY SERVICES PVT LTD,. CHANDIGARH 2 AND THAT THE SAID CLAIM OF EXPENDITURE WAS ALLOWED WITHOUT VERIFICATION. ON BEING ASKED TO EXPLAIN IN THIS RESPECT, THE ASSE SSEE EXPLAINED IN THIS RESPECT THAT THE ASSESSEE COMPANY TOOK A UNIT LINKE D KEYMAN INSURANCE POLICY FROM MAX LIFE INSURANCE. AS PER THE INSURANC E PREMIUM RECEIPT IT HAS BEEN STATED BY MAX LIFE INSURANCE THAT POLIC Y HAS BEEN ENDORSED AS AN EMPLOYER / EMPLOYEE POLICY AND ACCORDINGLY PR EMIUM PAID IS ALLOWED AS BUSINESS EXPENDITURE IN THE HANDS OF EMP LOYER. IT IS IMMATERIAL WEATHER THE POLICY IS A TERM POLICY OR A UNIT LINKED POLICY. FOR THE PURPOSES OF SECTION 10(10D) OF THE ACT, KE YMAN INSURANCE POLICY MEANS A LIFE INSURANCE POLICY TAKEN BY A PE RSON ON THE LIFE OF ANOTHER PERSON WHO IS OR WAS THE EMPLOYEE OF THE FI RST MENTIONED PERSON OR IS OR WAS CONNECTED IN ANY MANNER WHATSOEVER WIT H THE BUSINESS OF THE FIRST MENTIONED PERSON. HOWEVER, THE LD. PCIT OBSERVED THAT THE INSURANCE REGULATORY DEVELOPMENT AUTHORITY (IRDA) HAS NO ROLE TO PLAY IN THE INTERPRETATION OF STATUTORY PROVISIONS OF INCOME TAX ACT. HE OBSER VED THAT THE ASSESSING OFFICER HAS NOT EXAMINED THE ISSUE OF ALL OWANCE OF EXPENDITURE INCURRED ON KEYMAN INSURANCE POLICY. H E, ACCORDINGLY SET ASIDE THE ORDER OF THE ASSESSING OFFICER AND REMAND ED THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO PASS THE ORDER AFR ESH ORDER IN ACCORDANCE WITH LAW. 3. AGGRIEVED BY THE SAID ORDER OF THE LD. PCIT, T HE ASSESSEE HAS ITA NO. 772/CHD/2017- M/S WORLDWIDE IMMIGRATION CONSULTANCY SERVICES PVT LTD,. CHANDIGARH 3 COME IN APPEAL BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE LD. PCIT HAS FAILED TO POINT OUT ANY ERROR IN THE ASSESSMENT ORDER WHICH MAKES IT PREJUDICIAL TO THE INTEREST OF REVENUE. 4. THE LD. CIT DR, ON THE OTHER HAND, HAS FILED THE FOLLOWING WRITTEN SUBMISSIONS VIDE LETTER DATED 29.10.2019:- SUB:- ITA NO.772/CHD/2017-M/S WORLD WIDE IMMIGRATION CONSULTANTS-REGARDING- THE CASE IS LISTED FOR HEARING ON 29.11.207 IN THE CASE THE LEARNED ASSESSING OFFICER DISALLOWE D AN AMOUNT OF RS.10 LAKHS DEBITED TOWARDS KEYMAN INSURANCE MECHAN ICALLY AND WITHOUT APPLICATION OF MIND AND THE LEARNED CIT I HAS PASSED A SPEAKING ORDER. 2. CASE LAWS IN SUPPORT OF THE FACT THAT THE LD CIT HAS VALIDLY INITIATED THE PROCEEDINGS U/S 263 OF THE ACT (COPIES ENCLOSED FOR REFERENCE): A. ASSAM TEA HOUSE [2012] 25 TAXMANN.COM 93 (P&H)- REL EVANT PART OF THE ORDER IS EXTRACTED BELOW: '.....THE COMMISSIONER COULD HAVE PROCEEDED UNDER S ECTION 263 OF THE ACT IF THE ASSESSING OFFICER HAD MADE ASSESSMENT WI THOUT APPLICATION OF MIND. THE COMMISSIONER HELD THAT AS PER THE ORDE R SHEET NO RECORD WAS PRODUCED WHILE IN THE ORDER A CONTRARY STATEMEN T WAS MADE. THE ORDER OF THE ASSESSING OFFICER DID NOT SHOW THE VER IFICATION OF CLOSING STOCK, PURCHASES AND TRANSPORTATION AND OTHER ITEMS MENTIONED ABOVE. THESE REASONS WERE VALID REASONS FOR EXERCISE OF PO WER UNDER SECTION 263 OF THE ACT. THE TRIBUNAL HELD THAT THE ASSESSI NG OFFICER WAS NOT REQUIRED TO DISCUSS THESE ASPECTS IN ITS ORDER AND THAT THE ASSESSEE HAD EXPLANATION TO THE POINTS MADE BY THE COMMISSIONER. THIS APPROACH OF THE TRIBUNAL CANNOT BE SUSTAINED. '[PARA 10]. '.....IN MALABAR'S CASE [2000] 243ITR 83 (SC), IT W AS OBSERVED (PAGE 87), IT WAS OBSERVED (PAGE 87 AND 88): ITA NO. 772/CHD/2017- M/S WORLDWIDE IMMIGRATION CONSULTANCY SERVICES PVT LTD,. CHANDIGARH 4 THE PHRASE PREJUDICIAL TO THE INTERESTS OF THE RE VENUE IS NOT AN EXPRESSION OF ART AND IS NOT DEFINED IN THE ACT. UN DERSTOOD IN ITS ORDINARY MEANING IT IS OF WIDE IMPORT AND IS NOT CO NFINED TO LOSS OF TAX. IN THE INSTANT CASE, THE COMMISSIONER NOTED THAT TH E INCOME-TAX OFFICER PASSED THE ORDER OF NIL ASSESSMENT WITHOUT APPLICATION OF MIND. INDEED, THE HIGH COURT RECORDED THE FINDING THAT TH E INCOME-TAX OFFICER FAILED TO APPLY HIS MIND TO THE CASE IN ALL PERSPECTIVE AND THE ORDER PASSED BY HIM WAS ERRONEOUS. IT APPEARS THAT THE RESOLUTION PASSED BY THE BOARD OF THE APPELLANT-COMPANY WAS NO T PLACED BEFORE THE ASSESSING OFFICER. THUS, THERE WAS NO MATERIAL TO SUPPORT THE CLAIM OF THE APPELLANT THAT THE SAID AMOUNT REPRESENTED C OMPENSATION FOR LOSS OF AGRICULTURAL INCOME. HE ACCEPTED THE ENTRY IN THE STATEMENT OF THE ACCOUNT FILED BY THE APPELLANT IN THE ABSENCE O F ANY SUPPORTING MATERIAL AND WITHOUT MAKING ANY INQUIRY, IN THESE F ACTS THE CONCLUSION THAT THE ORDER OF THE INCOME-TAX OFFICER WAS ERRONE OUS IS IRRESISTIBLE. WE ARE, THEREFORE, OF THE OPINION THAT THE HIGH COU RT BAN RIGHTLY HELD THAT THE EXERCISE OF THE JURISDICTION BY THE COMMIS SIONER UNDER SECTION 263(1) WAS JUSTIFIED.'[ PARA 12] B. BASSERA REALTORS P LTD VS CIT - 55 TAXMANN.COM 3 27 (ITAT, CHANDIGARH) - RELEVANT PART OF THE ORDER IS EXTRACT ED BELOW: '.....IT IS TRITE LAW THAT IF PROPER ENQUIRY HAS NO T BEEN MADE THEN THE ASSESSMENT ORDER PASSED BY HIM HAS TO BE CONSID ERED ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E. WE HAVE ALREADY REFERRED TO THE DECISION OF HON'BLE DELHI H IGH COURT IN THE CASE OF GEE VEE ENTERPRISES (SUPRA). IN THIS CA SE, IT IS CLEARLY HELD THAT IF PROPER ENQUIRIES ARE NOT MADE THEN THE ASSESSMENT ORDER WOULD BE ERRONEOUS......' [PARA 52] ' IN VIEW OF THE ABOVE DISCUSSION, IT BECOMES TOTAL LY CLEAR THAT ASSESSING OFFICER HAS NOT MADE PROPER ENQUIRIES AND THEREFORE, ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO TH E INTEREST OF REVENUE WHICH HAS BEEN CORRECTLY REVISED BY THE LD. COMMISSIONER BY PASSING AN ORDER U/S 263. ACCORDING LY WE ITA NO. 772/CHD/2017- M/S WORLDWIDE IMMIGRATION CONSULTANCY SERVICES PVT LTD,. CHANDIGARH 5 UPHOLD THE SAME. IN THE RESULT, THE APPEAL IS DISMI SSED.' [PARA 53] C. CIT VS RIPPEN AHUJA - 49 TAXMANN.COM 261 (P & H) - RELEVANT PART OF THE ORDER IS EXTRACTED BELOW: '........IT IS GATHERED FROM THE LANGUAGE USED IN T HE PROVISIONS IBID THAT THE COMMISSIONER IS EMPOWERED TO EXERCISE JURI SDICTION WHERE HE IS SATISFIED THAT THE ORDER OF THE ASSESSI NG OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT ERESTS OF THE REVENUE. THE OBJECT OF THE AFORESAID PROVISION IS T O CORRECT AN ORDER PASSED BY THE ASSESSING OFFICER WHICH IS ERRO NEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE AS THE DEPARTMENT HAS NO REMEDY OF APPEAL AGAINST THE ASSESSMENT ORDER. W HETHER A REVISIONAL ORDER FULFILLS THE REQUIREMENTS OF SECTI ON 263 OF THE ACT, DEPENDS UPON FACTS OF EACH CASE. '[PARA 12] D. GEE VEE ENTERPRISES 99 ITR 375 (DELHI) - RELEVAN T PART OF THE ORDER IS EXTRACTED BELOW: '... THE REASON IS OBVIOUS. THE POSITION AND FUNCTI ON OF THE INCOME-TAX OFFICER IS VERY DIFFERENT FROM THAT OF A CIVIL COURT. THE STATEMENTS MADE IN A PLEADING PROVED BY THE MINIMUM AMOUNT OF EVIDENCE MAY BE ACCEPTED BY A CIVIL COURT IN THE AB SENCE OF ANY REBUTTAL. THE CIVIL COURT IS NEUTRAL. IT SIMPLY GIV ES DECISION ON THE BASIS OF THE PLEADING AND EVIDENCE WHICH COMES BEFO RE IT. THE INCOME- TAX OFFICER IS NOT ONLY AN ADJUDICATOR BUT ALSO AN INVESTIGATOR. HE CANNOT REMAIN PASSIVE IN THE FACE OF THE RETURN WHICH IS APPARENTLY IN ORDER BUT CALLS FOR FURTHER INQUIRY. IT IS HIS DUTY TO ASCERTAIN THE TRUTH OF THE FACTS STATED IN THE RETURN WHEN THE CIRCUMSTANCES OF THE CASE ARE SUCH AS TO PROVOK E AN INQUIRY. THE MEANING TO BE GIVEN TO THE WORD 'ERRONEOUS' IN SECTION 263 EMERGES OUT OF THIS CONTEXT. IT IS BECAUSE IT IS IN CUMBENT ON THE INCOME-TAX OFFICER TO FURTHER INVESTIGATE THE FACTS STATED IN THE RETURN WHEN CIRCUMSTANCES WOULD MAKE SUCH AN INQUIR Y PRUDENT THAT THE WORD 'ERRONEOUS' IN SECTION 263 INCLUDES T HE FAILURE TO MAKE SUCH AN INQUIRY. THE ORDER BECOMES ERRONEOUS BECAUSE SUCH AN INQUIRY HAS NOT BEEN MADE AND NOT BECAUSE T HERE IS ITA NO. 772/CHD/2017- M/S WORLDWIDE IMMIGRATION CONSULTANCY SERVICES PVT LTD,. CHANDIGARH 6 ANYTHING WRONG WITH THE ORDER IF ALL THE FACTS SATE D THEREIN ARE ASSUMED TO BE CORRECT.' E. VODAFONE SOUTH LTD. [2015] 61 TAXMANN.COM 108 (C HANDIGARH-TRIB.) AS THERE IS NO RIGHT TO APPEAL AVAILABLE TO THE REV ENUE FROM THE ORDER OF ASSESSMENT PASSED BY ASSESSING OFFICER AND THUS REVISIONARY POWERS HAVE BEEN GIVEN TO THE COMMISSIO NER AND SUCH POWER WERE HELD TO BE OF WIDE AMPLITUDE BY THE SUPREME COURT IN THE CASE OF CIT V. SHREE MANJUNATHESHWARE PACKING PRODUCTS & COMPHOR WORKS [1998] 231ITR 53/96 TAXMAN N 1. THEREFORE, NORMALLY WHEN ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY ON A PARTICULAR ISSUE, THEN SUCH ORDER HAS TO BE CONSTRUED AS ERRONEOUS AND PREJUDICIAL TO THE INTER EST OF REVENUE. F. SUBHLAKSHMI VANIJYA (P.) LTD S (KOLKATA-TRIB.) WHERE ASSESSING OFFICER HAD MECHANICALLY ACCEPTED R ETURNED INCOME WITHOUT SCRUTINIZING OR REFFERING TO ANY MAT ERIAL EXAMINED BY HIM, REVISION UNDER SECTION 263 WOULD B E JUSTIFIED. 3. IN VIEW OF THE ABOVE IT IS RESPECTFULLY SUBMITTE D THAT THE PR.CIT'S ASSUMPTION OF JURISDICTION U/S 263 IS CORRECT AND A S PER LAW. IT IS FURTHER SUBMITTED THAT THE APPEAL FILED BY THE ASSESSEE MAY PLEASE BE CONSIDERED FOR DISMISSAL. 4. THE ABOVE SUBMISSION MAY PLEASE BE TAKEN ON RECO RD. YOURS FAITHFULLY, SD/- (G.S. PHANI KISHORE) COMMISSIONER OF INCOME TAX (DR-1, ITAT, CHANDIGARH 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE LD. REPRESENTATIVES OF THE PARTIES AND HAVE GONE THROUG H THE RECORD. TO ARRIVE AT THE CORRECT CONCLUSION OF THE CASE, WE D EEM IT NECESSARY TO ITA NO. 772/CHD/2017- M/S WORLDWIDE IMMIGRATION CONSULTANCY SERVICES PVT LTD,. CHANDIGARH 7 REPRODUCE THE RELEVANT PROVISIONS OF SECTION 263 OF THE ACT. SECTION 263(1) IN THE INCOME- TAX ACT: (1) THE COMMISSIONER MAY CALL FOR AND EXAMINE THE R ECORD OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE 2 ASSESSING] OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, HE, MA Y, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTER MA KING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, I NCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLIN G THE ASSESSMENT AND DIRECTING A FRESH ASSESSMENT. 6. THE SUM AND SUBSTANCE OF THE ABOVE REPRODUCED SE CTION 263(1) CAN BE SUMMARIZED IN THE FOLLOWING POINTS: 1) THE COMMISSIONER MAY CALL FOR AND EXAMINE THE RE CORD OF ANY PROCEEDING UNDER THE ACT; 2) IF HE CONSIDERS THAT THE ORDER PASSED BY THE AO IS (I) ERRONEOUS; AND (II) IS PREJUDICIAL TO THE INTEREST OF REVENUE; 3) HE HAS TO GIVE AN OPPORTUNITY OF HEARING IN THIS RESPECT TO THE ASSESSEE; AND 4) HE HAS TO MAKE OR CAUSE TO MAKE SUCH ENQUIRY AS HE DEEMS NECESSARY; 5) HE MAY PASS SUCH ORDER THEREON AS THE CIRCUMSTAN CES OF THE CASE JUSTIFY INCLUDING, (I) AN ORDER ENHANCING OR, (II) MODIFYING THE ASSESSMENT OR (III) CANCELLING THE ASSESSMENT AND DIRECTING A FRE SH ASSESSMENT. 7. IN OUR VIEW, AS PER THE PROVISIONS OF SECTION 26 3 AS ENUMERATED ABOVE, AFTER GETTING THE EXPLANATION FROM THE ASSES SEE, THE LD. CIT WAS ITA NO. 772/CHD/2017- M/S WORLDWIDE IMMIGRATION CONSULTANCY SERVICES PVT LTD,. CHANDIGARH 8 SUPPOSED TO EXAMINE THE CONTENTION OF THE ASSESSEE. BEFORE PASSING AN ORDER OF MODIFYING, ENHANCING OR CANCELLING THE ASS ESSMENT, HE WAS SUPPOSED EITHER TO HIMSELF MAKE OR CAUSE TO MAKE SU CH AN ENQUIRY AS HE DEEMS NECESSARY. THE WORDS AS HE DEEMS NECESSARY , IN OUR VIEW, DO NOT MEAN THAT THE LD. CIT IS LEFT WITH A CHOICE EIT HER TO MAKE OR NOT TO MAKE AN ENQUIRY. AS PER THE RELEVANT PROVISIONS OF SECTION 263, IT WAS INCUMBENT UPON THE LD. CIT TO MAKE OR CAUSE TO MAKE AN ENQUIRY. SO FAR AS THE WORDS AS HE DEEMS NECESSARY ARE CONCER NED, THE SAID WORDS SUGGEST THAT THE ENQUIRIES WHICH ARE NECESSARY TO F ORM A VIEW AS TO WHETHER THE ORDER OF THE AO IS ERRONEOUS AND PREJUD ICIAL TO THE INTEREST OF REVENUE OR NOT? THE LD. CIT HAD ASKED THE ASSESS EE ABOUT THE GENUINENESS/VALIDITY OF VARIOUS CLAIMS TO WHICH THE ASSESSEE HAD GIVEN A DETAILED REPLY. ONCE A POINT WISE REPLY WAS GIVEN BY THE ASSESSEE, THEN A DUTY WAS CAST UPON THE LD. CIT TO EXAMINE THE REP LY OF THE ASSESSEE AND FORM A PRIMA-FACIE OPINION AS TO WHETHER THE OR DER OF THE AO WAS ERRONEOUS SO FAR AS IT WAS PREJUDICIAL TO THE INTER EST OF REVENUE. 8. A PERUSAL OF THE IMPUGNED ORDER OF THE LD. PCIT REVEALS THAT ON BEING ASKED TO EXPLAIN ABOUT THE DEDUCTION OF EXPEN DITURE CLAIMED ON KEYMAN INSURANCE, THE ASSESSEE DULY EXPLAINED THAT THE ASSESSEE OBTAINED THE INSURANCE POLICY FOR ITS EMPLOYEES AND THAT THE SAME WAS BUSINESS EXPENDITURE OF THE ASSESSEE. THE LD. PCIT WITHOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND EVEN WITHOUT GI VING ANY PRIMA-FACIE FINDING THAT EXPENDITURE INCURRED BY THE ASSESSEE O N THE KEYMAN ITA NO. 772/CHD/2017- M/S WORLDWIDE IMMIGRATION CONSULTANCY SERVICES PVT LTD,. CHANDIGARH 9 INSURANCE POLICY OF ITS EMPLOYEES WAS NOT ADMISSIBL E EXPENDITURE HAS SET ASIDE THE ORDER OF THE ASSESSING OFFICER MEREL Y ON THE GROUND THAT THE ASSESSING OFFICER HAD NOT DISCUSSED ABOUT THE S AID ALLOWANCE. IN OUR VIEW, THE ACTION OF THE LD. PCIT WITHOUT CO NSIDERING THE EXPLANATION GIVEN BY THE ASSESSEE AND WITHOUT POINT ING OUT AS TO WHAT OTHER ENQUIRES WERE REQUIRED TO BE MADE BY THE ASSE SSING OFFICER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, HAS SET ASIDE THE ORDER OF THE ASSESSING OFFICER AND REMANDED THE MATTER BACK TO T HE FILE OF THE ASSESSING OFFICER FOR PASSING OF THE ASSESSMENT ORD ER AFRESH. THE ABOVE ACTION OF THE LD. PCIT CANNOT BE HELD TO BE JUSTIFI ED. THE LD. PCIT HAS FAILED TO PIN-POINT AS TO HOW THE ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE WITHOUT POIN TING OUT AS TO WHY THE CLAIM OF THE ASSESSEE OF THE AFORESAID EXPENDITURE WAS NOT ALLOWABLE AND AS TO WHAT FURTHER INVESTIGATIONS WERE REQUIRED TO BE CARRIED OUT. MERELY BECAUSE THE ASSESSING OFFICER HAS NOT DISCUSSED IN DETAIL IS NO GROUND TO HOLD THAT THE ORDER OF THE ASSESSING OFFICER IS ERR ONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE ESPECIALLY WHEN THE CLAI M OF EXPENDITURE BY THE ASSESSEE APPARENTLY IS AN ALLOWABLE EXPENDITUR E. 9. IT IS PERTINENT TO MENTION HERE THAT A DEEMING F ICTION HAS BEEN CREATED IN SECTION 263 OF THE ACT BY THE AMENDMENT MADE BY FINANCE ACT, 2015 W.E.F. 01.06.15 WHEREIN IT HAS BEEN MENTI ONED THAT WHERE THE COMMISSIONER IS OF THE OPINION THAT THE AO HAD PASS ED THE ORDER ITA NO. 772/CHD/2017- M/S WORLDWIDE IMMIGRATION CONSULTANCY SERVICES PVT LTD,. CHANDIGARH 10 WITHOUT MAKING ENQUIRIES OR A CLAIM HAS BEEN ALLOWE D WITHOUT ENQUIRING INTO THE CLAIM OR THAT THE SAME IS NOT IN ACCORDANC E WITH ANY ORDER OR DIRECTION OR INSTRUCTION ISSUED BY CBDT, THAT SHALL BE DEEMED TO BE ERRONEOUS IN SO FAR AS ITS PREJUDICIAL TO THE INTER EST OF REVENUE. THE SAID DEEMING PROVISIONS, IN OUR VIEW, ARE NOT APPLI CABLE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. EVEN THE COOR DINATE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF NARAYAN TATU RANE VS INCOME TAX OFFICER (2016) 70 TAXMAN.COM 227 (MUM) HAS OBSERVE D AS UNDER:- FURTHER CLAUSE (A) OF EXPLANATION STATES THAT AN ORDER SHALL BE DEEMED TO BE ERRONEOUS, IF IT HAS BE EN PASSED WITHOUT MAKING ENQUIRIES OR VERIFICATION, WHICH SHOULD HAVE BEEN MADE. THIS PROVISION SHALL APPLY, IF THE ORDER HAS BEEN PASSED WITHOUT MAKING ENQUIRIES OR VERIFICATION WHICH A REASONABLE AND PRUDENT OFFICER SHALL HAVE CARRIED OUT IN SUCH CASE S, WHICH MEANS THAT THE OPINION FORMED BY COMMISSIONER CANNOT BE TAKEN AS FINAL ONE, WITHOUT SCRUTINIZING THE NATURE OF ENQUIRY OR VERIFICATION CARRIED OUT BY THE AO VIS--VIS ITS REASONABLENESS IN THE FACTS AND CIRCUMSTANCES OF THE CASE. HENCE, WHA T IS RELEVANT FOR CLAUSE (A) OF EXPLANATION 2 TO SEC. 263 IS WHETHER THE AO HAS PASSED THE ORDER AFTER CARRYI NG OUR ENQUIRIES OR VERIFICATION, WHICH A REASONABLE A ND PRUDENT OFFICER WOULD HAVE CARRIED OUT OR NOT. IT D OES NOT AUTHORISE OR GIVE UNFETTERED POWERS TO THE COMMISSIONER TO REVISE EACH AND EVERY ORDER, IF IN HIS OPINION, THE SAME HAS BEEN PASSED WITHOUT MAKIN G ENQUIRIES OR VERIFICATION WHICH SHOULD HAVE BEEN MADE. IT IS THE RESPONSIBILITY OF THE LD COMMISSION ER TO SHOW THAT THE ENQUIRIES OR VERIFICATION CONDUCTE D BY THE AO WAS NOT IN ACCORDANCE WITH THE ENQUIRES O R VERIFICATION THAT WOULD HAVE BEEN CARRIED OUT BY A PRUDENT OFFICER. ITA NO. 772/CHD/2017- M/S WORLDWIDE IMMIGRATION CONSULTANCY SERVICES PVT LTD,. CHANDIGARH 11 10. WE HAVE ALSO GONE THROUGH THE WRITTEN SUBMISSIO NS OF THE LD. CIT DR. HOWEVER, IT MAINLY CONSIST OF THE CERTAIN CASE LAWS, HOWEVER, IN OUR HUMBLE VIEW, THE CASE LAWS CITED BY THE LD. DR ARE NOT APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE PR ESENT CASE. IN VIEW OF THE ABOVE DISCUSSION, THE IMPUGNED ORDE R OF THE PCIT IS NOT SUSTAINABLE AND THE SAME IS HEREBY QUASHED. THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.11.2019. SD/- SD/- ( $ % & '# / ANNAPURNA GUPTA) () / ACCOUNTANT MEMBER ( / SANJAY GARG) / JUDICIAL MEMBER DATED : 13.11.2019 .. '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR ITA NO. 772/CHD/2017- M/S WORLDWIDE IMMIGRATION CONSULTANCY SERVICES PVT LTD,. CHANDIGARH 12