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2016 (8) TMI 1552 - AT - Income TaxRevision u/s 263 - unexplained cash - only contention of the Pri. CIT is that the AO should have made further enquiries, which has not been done, according to him - HELD THAT:- CIT observed that Sh. Om Parkash prop, of M/s. Khubsoorat Ornaments, i.e. the father of the assessee was neither produced by the assessee nor summoned by the AO; that the agreement regarding purchase of property was not produced; that there was no power of attorney given by Sh. Om Parkash to Sh. Jiwan Kumar for purchase of property on his behalf; that no agreement to sell was produced and no part payment was made; and the AO did not examine the availability of cash in hand with M/s. Khubsoorat Ornaments. As seen that the books of account were produced before the AO ward 1(4) Mansa during the course of proceedings u/s.132B for release of cash and also before the AO during the course of assessment proceedings. The copies of relevant pages of cash book are part of the assessment record in which cash amounting to ₹ 1480000/- has been debited in cash in transit on 05.01.2012 and the cash was seized on 06.01.2012 - Further during the course of assessment proceeding Sh. Sham Lal S/o. Sh. Mohan Lal was produced and his statement was recorded on 25.11.2013 in which he has confirmed that he had entered in to a deal of sale of property with Sh. Om Parkash and Sh. Om Parkash alongwith his son Sh. Jiwan Kumar visited him with a sum for finalizing the deal of property but the same could not be finalized due to non clearance of loan. But the Pr. CIT after raising objections to the explanation of the assessee held that the assessment order is erroneous and prejudicial to the interest of the revenue. The objections reproduced in the order u/s. 263 were not confronted to the assessee and only because of this fact the reply could not be given. It is apparent that the only contention of the Pr. CIT is that the AO should have made further enquiries which has not been done according to him. Thus this is not a case of lack of enquiry and the Pr. CIT erred in assuming jurisdiction u/s. 263 merely because he has a different opinion then the AO in the matter. It is seen that the present case is not a case of lack of enquiry - enquiry was carried out by the AO. We find that in fact, the ld. Pri. CIT has substituted its opinion for the opinion of the AO by repraising evidence on record, as has rightly been contended on behalf of the assessee. This is certainly a case of difference of opinion between AO and CIT. The only contention of the CIT seems to be that the AO should have made further enquiries/investigation, which he has not done - for assuming jurisdiction u/s. 263, one has to keep in mind the distinction between lack of inquiry and inadequate enquiry. If there was an enquiry, even inadequate, that would not by itself give occasion to the CIT to pass order u/s. 263, merely because he has a different opinion in the matter. It is only in case of 'lack of enquiry' that such a cause of action could be open. AO accepted and even in the office note meant for internal purposes, he mentions that the assessee has substantiated the jewellery seized. In view of these evidences, this is not a case of lack of inquiry either. - Decided in favour of assessee.
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