TMI Blog2011 (1) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... al and legal position discussed. In the present case, all the points raised by the CIT, enquiry was made by the AO and even if such enquiry was inadequate in the opinion of the learned CIT, this does not give power to the learned CIT to pass order, u/s 263 merely because he has different opinion in the matter. We hold that the common order passed by the learned CIT u/s 263 is not sustainable and hence we quash the same. In the result, all the appeals are allowed. - Order All these seven appeals are filed by the assessee which are directed against a common order of the learned Commissioner of Income-tax, Central Circle, Patna dated May 17, 2010 for the assessment years 1999-2000 to 2005-06. The grounds raised by the assessee in all these years are identical and hence we reproduce the grounds from the appeal for the assessment year 1999-00, i.e., in I. T. A. No. 115/Pat/2010 which reads as under: (1) That the order passed by the learned Commissioner of Income-tax (Central) is illegal, void and bad in law. (2) That the learned Commissioner of Income-tax has passed the order ignoring the fact that the points raised in his notice have duly been examined by the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceivable thereon. It is also alleged by the learned Commissioner of Income-tax that income from plying of trucks at ₹ 1,800 per month per truck had been adopted by the Assessing Officer under section 44AE of the Act but the same should have been accounted for and assessed at ₹ 2,000 per month per truck. It is further alleged by the learned Commissioner of Income-tax that the assessee's investment in house property as well as in vehicles has not been considered and investigated by the Assessing Officer. Regarding the assessment year 2005-06, it is alleged by the learned Commissioner of Income-tax in the notice that in this year, the Assessing Officer has assessed the income from truck at ₹ 3,150 per truck per month instead of ₹ 3,500 per truck per month. Various replies were submitted by the learned authorised representative for the assessee before the learned Commissioner of Income-tax in the course of section 263 proceeding but the learned Commissioner of Income-tax was not satisfied and as per the order dated March 17, 2009, he held that the assessment orders passed by the Assessing Officer under section 153A for the assessment years 1999-2000 to 2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seven years are available on pages 31-37 of the paper book and copies of similar questionnaire dated November 17, 2006 for these very seven years in case of M/s. Ramakant Singh (partnership firm) is also available on pages 38-44 of the paper book. It is also submitted that the original assessment order passed by the Assessing Officer in all these seven years is available on pages 45-79 of the paper book. It is also pointed out that the assessee's reply to the Assessing Officer dated November 30, 2006 is available on pages 193 to 196 of the paper book and the submission before the Assessing Officer dated December 12, 2006 is available on pages 197-211 of the paper book and one more submission before the Assessing Officer dated December 22, 2006 is also available on pages 212-228 of the paper book. It is also pointed out that submission before the Assessing Officer regarding Hindu undivided family is also available on pages 229-230 of the paper book and cash flow statement is also on page 231 of the paper book. It is also submitted that these documents establishes the contention of the assessee that on all the issues which are raised by the learned Commissioner of Income-tax in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this contention that where the Income-tax Officer has made enquiries and the assessee has given detailed explanation in that regard by a letter in writing and all these are part of the record of the case, it has to be accepted that the claim was allowed by the Assessing Officer on being satisfied with the explanation of the assessee and such decision of the Assessing Officer cannot be held to be erroneous simply because in his order, did not make any elaborate discussion in that regard. It is also submitted that in the questionnaire dated November 17, 2006 in the case of this assessee and in the case of partnership concern M/s. Ramakant Singh, the Assessing Officer has covered all the points raised by the learned Commissioner of Income-tax and, therefore, it cannot be said that the Assessing Officer has failed to make enquiry and completed the assessment without proper enquiry and without applying his mind and, therefore, the assessment order is neither erroneous nor prejudicial to the interests of the Revenue. Regarding various judgments on which reliance has been placed by the learned Commissioner of Income-tax, it is submitted that these judgments are not applicable in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT [1986] 157 ITR 112 (Mad). In the rejoinder, it is submitted by the learned authorised representative for the assessee that the reply dated December 22, 2006 as appearing on pages 212-228 is not the only reply to the questionnaire dated November 17, 2006. It is submitted that the reply dated November 30, 2006, copy of which is available on pages 193-196 of the paper book can be seen which shows that point No. 1 of the questionnaire was replied by way of this letter dated November 30, 2006 along with all necessary details and evidence required by the Assessing Officer. We have heard the rival submissions and have gone through the material available on record. We find that as per the impugned order, the objection for the learned Commissioner of Income-tax is that no enquiry was made by the Assessing Officer on various points noted by him in the impugned order. As against this, the case of the learned authorised representative for the assessee is that on all these points, query were raised by the Assessing Officer and proper reply, was filed with evidence and hence the learned Commissioner of Income-tax has no jurisdiction under section 263 on any of these issues. First, we di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Delhi High Court rendered in the order of Gee Vee Enterprises [1975] 99 ITR 375. This judgment is of no help to the Revenue because in this case, writ filed by the assessee against order of the learned Commissioner of Income-tax under section 263 was dismissed for the reason that alternative remedy was not availed of, i.e., appeal before the Tribunal under section 253 was not availed of. Hence, there is no decision on the merits of section 263 proceedings. The second judgment cited by the learned Departmental representative is of the hon'ble Patna High Court rendered in the case of CIT v. Pushpa Devi [1987] 164 ITR 639. In this case, the order of the learned Commissioner of Income-tax under section 263 was upheld by the hon'ble Patna High Court on this basis that there was no enquiry at all by the Assessing Officer about the initial capital. On pages 642 and 643 of 164 ITR, it is noted that the assessee declared her initial capital as ₹ 25,000. It is also noted that there was inspector report but the same is about carrying on of pawn broking and oil seeds business and not about initial capital. Hence, as per the facts of that case, there was no enquiry at all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the partnership deed, there were 11 partners in this firm but in the statement recorded during the course of search, one Mr.Ashwani Kumar Singh stated that he was not a partner of the said firm. On the same page of the impugned order, it has been stated by the learned Commissioner of Income-tax that the Assessing Officer in the questionnaire dated November 17, 2006 asked the assessee to explain why the partnership firm might not be treated as sham and income shown in the return of partnership along with interest on capital and salary paid to the partners might not be assessed in the hands of the assessee in individual capacity. It is also alleged by the learned Commissioner of Income-tax on the same page of the impugned order that as per various seized documents and papers, it is seen that the assessee has made substantial investment in a partnership firm by way of capital and loan but the further perusal of the record shows that the Assessing Officer did not make any enquiry with regard to the source of deposit. In this regard, when we examine the questionnaire issued by the Assessing Officer on November 17, 2006, we find that query was raised by the Assessing Officer to explain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order, the learned Commissioner of Income-tax has himself observed that the Assessing Officer did ask the assessee to furnish details of the capital introduced and loan given by him or by family members in each company and it is also observed by him that the authorised representative for the assessee submitted before the Assessing Officer the balance-sheet and profit and loss account of the company. As per the questionnaire dated November 17, 2006 available in the paper book before us, we find that specific query was raised by the Assessing Officer in this questionnaire and the assessee was asked to furnish details of shares acquired/capital introduced/loan given by the assessee and his family members in each company/firm/concern with evidence along with copies of returns, balance-sheet, profit and loss account, memorandum and articles of association, copy of partnership deed, etc. In the reply submitted by the assessee before the Assessing Officer as per letter dated November 30, 2006 as available on pages 193196 of the paper book, it has been submitted by the assessee before the Assessing Officer that complete details along with copy of necessary documentary evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax in the impugned order that the Assessing Officer has assessed income ₹ 1,800 per month per truck up to the assessment year 2004-05 and at ₹ 3,150 per month per truck in the assessment year 2005-06, whereas he should have assessed income of ₹ 2,000 per month per truck up to the assessment year 2004-05 and at ₹ 3,500 per month per truck for the assessment year 2005-06. When we examine the provisions of section 44AE in this regard, we find that higher income of ₹ 2,000 per month per truck up to the assessment year 2004-05 and ₹ 3,500 per month per vehicle from the assessment year 2005-06 is assessable with regard to heavy goods vehicle and in respect of other vehicles, the lower rate was prescribed, i.e., ₹ 1,800 per month per vehicle in the earlier period and ₹ 3,150 per month per vehicle in the later period. Nothing has been indicated by the learned Commissioner of Income-tax in the impugned order that there was any evidence available on record to suggest that the vehicles in question were heavy goods vehicles as per Explanation (a) to section 44AE of the Act. The learned Commissioner of Income-tax has stated in his order on pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per paragraph 3 of this letter, it was explained by the assessee that with regard to the investment in land and other properties on the basis of copies of the seized papers, a chart is being enclosed as per annexure-I and the assessee is required to explain the source of investment of ₹ 10.17 lakhs in the financial year 1998-99, ₹ 0.10 lakhs in the financial year 1999-2000, ₹ 1 lakh in the financial year 2002-03 and ₹ 0.54 lakhs in the financial year 2003-04. All these investments are duly explained in the cash flow statement of the Hindu undivided family available on page 221 of the paper book. We do not understand on what basis, the learned Commissioner of Income-tax is alleging that sketchy details were furnished by the assessee without pointing out any defect or mistake in this year-wise break up of unexplained investment in properties which are explained in the hands of the Hindu undivided family of the assessee. In the absence of any material indicating any extra investment in the property which is not explained as per this submission of the assessee before the Assessing Officer, we are of the considered opinion that the learned Commissioner of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X
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