TMI Blog2014 (12) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... ination of the entire material what he upsets or rather interferes with is a possible view, then the course adopted by him was held to be impermissible in law. The AO has made inquiry and which also appears to have been reflected in the figures - assessee was carrying on petroleum and other business for more than 15 years and earned additional income - diary entries have been referred to and the AO's conclusions have been eventually upheld - once inquiry was made and how the view taken by the AO is demonstrated to be possible and plausible one, then, there is no reason that the Tribunal's order can be termed as perverse or vitiated by any error of law apparent on the face of record – as such no substantial question of law arises for consideration – Decided against revenue. - Income Tax Appeal No.1342 of 2012, Income Tax Appeal No.1371 of 2012, Income Tax Appeal No.1372 of 2012, Income Tax Appeal No.1469 of 2012, Income Tax Appeal No.1470 of 2012, Income Tax Appeal No.1514 of 2012 - - - Dated:- 20-11-2014 - S. C. Dharmadhikari And A. A. Sayed,JJ. For the Appellant : Mr A R Malhotra For the Respondent : Mr J D Mistri, Sr. Adv. Atul K Jasani ORDER All these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee made a cash flow statement and tried to explain the source and application of income of Shri Kiran H. Shah for the period from 1 April 1999 to 31 March 2006. In this statement he had shown an amount of ₹ 2,33,00,000/- as opening balance. Vide point No.21, the Assessing Officer raised a specific query in his letter of 12 April 2007 and which query has been referred by the Commissioner. Response to this query by the Assessee is then referred to in para 4.1 and the entire explanation is analyzed. The Commissioner concludes that from the verification of the relevant seized materials it is seen that there is no evidence to conclusively prove that the transactions written on these pages are pertaining to the period prior to 31 March 1999. In such circumstances, he disbelieved the Assessee and concluded that the Assessing Officer has not examined the source for ₹ 2.33 crores. Even though he asked the Assessee to explain the same, during the assessment proceedings, the Assessee has not bothered to give any explanation for the same or produced any evidence to support his contention that this amount is opening balance available as on 31 March 1999. For all these reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a patently erroneous order and which is prejudicial to the interest of the Revenue. 8. Mr.Malhotra places strong reliance on the assessment order passed on 28 December 2010, pursuant to the Commissioner's direction under section 263, in which the Assessee admitted that there is no explanation for the advance of ₹ 26 lakhs. If that is so, then the amount of ₹ 2.33 crores as derived and thereafter expended has not been explained at all. In such circumstances, he relied upon two decisions, one of the Madras High Court in the case of CIT vs. Seshasayee Paper Boards Ltd. reported in (2000) 242 ITR 490 (Mad) and the other judgment of the same High Court in the case of Indian Textiles vs. CIT, reported in (1986) 157 ITR 112 (Mad). 9. On the other hand, Mr.Mistri, learned Senior Counsel appearing on behalf of the Assessee would submit that the Appeals do not raise any substantial question of law. He submitted that the Tribunal has correctly appreciated the controversy. It has not merely held that the view taken by the Assessing Officer is a possible view but has gone ahead and explained as to how that view is possible and plausible. The Tribunal has rested his conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paras 5 to 9 of the order. To our mind, though the Tribunal observed that this a brief reference to the facts, it is quite elaborate to our mind and would denote that the Tribunal applied its independent mind to the controversy. 13. The rival contentions have been noted. The Commissioner essentially concludes that the source of ₹ 2.33 crores was never explained and has been then scrutinized and with the assistance of the advocate, who made the submission. Before the Tribunal, the Assessee's advocate arguments have been referred and that of the representative of the Department. Thereafter from para 14 the Departmental representative's contentions have been rejected by observing that there was an explanation given by the Assessee on 24 April 2007 in writing and in response to the letter of the Assessing Officer dated 12 April 2007. This itself means that the Assessing Officer raised a query and sought a reply. There was an application of mind by the Assessing Officer and which would be further apparent from the fact that the record reveals a letter dated 5 December 2005 addressed by the Assessee to the Asst.Director of Income Tax (Inv.) Unit-VIII (2). There explanati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ads and in relation to petroleum business. The Tribunal has examined the documents and which run into Hundreds of pages. The Assessee was carrying on petroleum and other business for more than 15 years and earned additional income. It is in these circumstances, that diary entries have been referred to and the Assessing Officer's conclusions have been eventually upheld. Once inquiry was made and how the view taken by the Assessing Officer is demonstrated to be possible and plausible one, then we do not think that the Tribunal's order can be termed as perverse or vitiated by any error of law apparent on the face of record. 17. True it is that Madras High Court has held that the Assessing Officer ought to make inquiry and if he is found to have made no inquiry, then the Commissioner is not prevented from taking recourse to section 263. The Commissioner's powers are very wide and he is only to indicate his prima facie opinion to support the conclusion that the order passed by the Assessing Officer was erroneous, insofar as it is prejudicial to the interest of the Revenue. The powers of the Commissioner are very wide. One cannot dispute this legal principle as is culled o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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