TMI Blog2015 (8) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod taken for service of notice/letter. Under these facts, we are of the considered view that the assessee was not granted sufficient opportunity to defend his case. It is settled principle of law that revisionary power is required to be exercised with a great caution because it affects the taxpayer’s rights and it is not expected that the concluding assessment proceedings be reopened on the whims and fancies of the authority who is bestowed with power to revise the order, but such exercise of power should be in accordance with settled principle of law and procedure prescribed by law. Thus we are of the considered view that the assessee was not given sufficient opportunity and the explanation with regard to the issues on the basis of which the provisions of section 263 of the Act were invoked requires re-consideration at the end of the ld.CIT. Therefore, the impugned order is hereby set aside and the ld.CIT is directed to consider the explanation of the assessee and decide the matter afresh in accordance with law. - Decided in favour of assessee for statistical purposes. - I.T.A. No.1119/Ahd/2013 - - - Dated:- 7-8-2015 - SHRI G.D. AGARWAL AND SHRI KUL BHARAT, JJ. For The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt appeal before us. 3. The ld.counsel for the assessee submitted that the authorities below were not justified in exercising the power u/s.263 of the Act. He submitted that from the facts, it is evident that the assessment order is neither erroneous nor prejudicial to the interests of the Revenue. He further submitted that the assessee was not given sufficient opportunity to defend his case. He submitted that the ingredients for invoking the provisions of section 263 of the Act were not satisfied. He pointed out that the ld.CIT has recorded in his order that a show cause notice was issued on 01/12/2012 but none attended on 04/12/2012. He further recorded in his order that opportunity of hearing was given to the assessee vide letter dated 22/01/2013 to be complied on 29/01/2013. The ld.counsel for the assessee submitted that on the first occasion when show cause notice was issued on 01/12/2012 only three days were given to comply with. He further pointed out that even in the second opportunity, only seven days were there from the date of issue of the letter for compliance of the letter. For the reasons best known to him has given a short-period for compliance and even the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e form of 25 items. In response thereto, the assessee also filed reply dated 9th January-2010 giving item-wise reply to the notice of the AO. There is another letter on behalf of assessee placed at Page Nos.34 35 of the paper-book addressed to AO; whereby the assessee has supplied information to the AO. The ld.counsel for the assessee also filed written synopsis which is reproduced hereunder:- With reference to the above the appellant begs to state that this appeal is directed against the order passed u/s 263 on 21/2/2013 by CIT-III A'bad directing the AO to revise the order of asstt. passed u/s 143(3) on 28-5-2010. 2.0 The brief facts of the case are that the appellant is an individual and engaged in the real estate development, broking. Apart from this, he is also engaged in agricultural activity. He had filed his return of income for A.Y.208-09 on 31.03.2009 declaring total income of ₹ 1,73,70,120/- which included multiple sources of income such as salary as MLA, rent of property, share of profits, capital gains, sale of lands, etc. 2.1 During the course of asstt. proceedings, the AO issued initially notice dt. 16-10-2009 to furnish documents and acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5(e) of notice dt 24-12-2009. CIT himself states proper adequate inquiries by calling for bank statements not made.However, reply dt. 9-1-2010 states copy of bank a/cs filed (P-30) 2 Sale of immovable property Item No.14 of notice dt 24-12-2009 and see reply dt 9-1-2010 (P-32). No such sale made as noticed from final a/cs. The AO has not made any addition on this count in fresh order passed u/s.143(3) r.w.s. 263 dt. 11-2-2014. 3 Sale of land Bldg as Capital gains Item No.16 of notice dt 24-12-2009. The sale as dealer in land shown separately in P L a/c (P-9) 4 Profit as confirming party Details as per page 54 of paper book and details given as per (p-56). There cannot be a business to deal in Banakhat rights by the assessee. 5 Lease Rent Item No.18 of notice dt 24-12-2009 (See details given as per page-50). There was no discrepancy because service tax of ₹ 1,80,355/- was separately credited to service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of notice/letter. Under these facts, we are of the considered view that the assessee was not granted sufficient opportunity to defend his case. It is settled principle of law that revisionary power is required to be exercised with a great caution because it affects the taxpayer s rights and it is not expected that the concluding assessment proceedings be reopened on the whims and fancies of the authority who is bestowed with power to revise the order, but such exercise of power should be in accordance with settled principle of law and procedure prescribed by law. After considering the totality of the facts of the present case, we are of the considered view that the assessee was not given sufficient opportunity and the explanation with regard to the issues on the basis of which the provisions of section 263 of the Act were invoked requires re-consideration at the end of the ld.CIT. Therefore, the impugned order is hereby set aside and the ld.CIT is directed to consider the explanation of the assessee and decide the matter afresh in accordance with law. 5. In the result, the appeal of the Assessee is allowed for statistical purposes. Order pronounced in the Court on Friday, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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