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2024 (1) TMI 1259 - AT - Income TaxRevision u/s 263 - unexplained expenditure u/s 69C - lack of enquiry on the part of AO - AO’s order termed as erroneous as well as prejudicial to the interest of the revenue - assessee has made credit cards payment but assessee has not shown any income from business and profession, as evident from the ITR filed by the assessee for the year under consideration - HELD THAT:- We note that during the assessment stage, the AO asked the assessee to furnish the details and documents which are placed in paper book. In response, the assessee submitted its reply which is placed at paper book, as stated above. Thus, all the documents, details and the explanations required by the AO were submitted by the assessee. Just because the AO does not bring these documents and details in his assessment order does not mean that assessing officer has not conducted proper enquiry during the assessment stage. In fact, AO has applied his mind. Assessee is right in his submission that one has to keep in mind the distinction between “lack of inquiry” and “inadequate inquiry”. If there was any inquiry, even inadequate, that would not by itself, give occasion to the Commissioner to pass orders under section 263 of the Act, merely because he has different opinion in the matter. If an Income-Tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately. Therefore, in the assessee`s case, it cannot be said that it is a case of ‘lack of inquiry’. Thus we note that the AO enquired during assessment proceedings and the assessee had filed details before him. So we find that the AO’s action cannot be termed “erroneous”. Since not only enquiry was carried out by the AO on the issue under consideration and based on the evidence gathered he has taken a plausible view, which at any rate cannot be called as an unsustainable view. Hon’ble Supreme Court in the case of Malabar Industries [2000 (2) TMI 10 - SUPREME COURT] held that this phrase i.e. “prejudicial to the interest of the revenue’’ has to be read in conjunction with an erroneous order passed by the Assessing Officer. Their Lordship held that it has to be remembered that every loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue. When AO adopted one of the courses permissible in law and it has resulted in loss to the revenue, or where two views are possible and the AO has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the revenue “unless the view taken by the Assessing Officer is unsustainable in law”. Therefore, we are of the considered opinion that AO’s order cannot be termed as erroneous as well as prejudicial to the interest of the revenue - Decided in favour of assessee.
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