2023 (9) TMI 475 - ITAT DELHI

Revision u/s 263 - specific evidence of cash payment and payments through two third party cheques - information in the Insight Portal regarding cash payments was downloaded and kept in the assessment record and CIT concluded that despite having access to this information, the AO failed to get an explanation from the assessee on the issue and did not bring to tax this unaccounted income - HELD THAT:- As contended by Ld. AR that issue was examined thoroughly by Ld. AO has no substance. It is not a case of AO holding one of the views, here is a case where false and contradictory stand of the assessee was left out of examination.

The findings of Ld. PCIT with regard to directions issued to ld. AO to tax the amount representing the cash utilities for discharge of credit card bills and being cheques issued by third parties in favour of the assessee’s credit card bills, being one from unexplained sources chargeable to tax u/s 68 r.w.s.115BBE of the Act, requires no interference.

Disallowance of LTCG on sale of shares - Merely raising the queries during assessment in a general manner and getting replies of the same cannot give rise to presumption of application of due diligence and a judicious examination of issue by the ld. AO as not a word in regard to issue is reflected in the assessment order.

The conclusion of no enquiry drawn by Ld. PrCIT requires no interference. The Assessing Officer had fallen in duty to show that the inquiry which was initiated by raising queries was taken to a reasonable end so as to draw a conclusive inference in favour of the assessee. The findings of Ld. PCIT of LTCG claim being one liable to brought under tax u/s 68 r.w.s 115BBE requires no interference.

Whether Section 263 does not give powers to the PrCIT to enhance the assessment and to pass an order of assessment itself? - In the case in hand although the queries were raised by ld. AO and which were responded by the assessee, the assessment order though does not show any reason for not making the addition but Ld. PrCIT has duly examined both the issues to establish, that additions should have been made. Thus, Ld. PCIT was in its right to modify the conclusion of ld. AO qua not making the additions in the assessment by making the additions. The power of ‘modifying the assessment’ has in its ambit making or correcting any additions, left out or not made by the AO, though ought to be made in the assessment proceedings. The same may or may not be by way of enhancement.

It is not a case of two views, as the assessment order does not reflect any view of the Assessing Officer. There can be a presumption of an official act to have been done in due course and to justify the view but the same is rebuttable by establishing the non application of mind, as done by Ld. Pr CIT. The grounds raised have no substance and the appeal of assessee is dismissed.