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2015 (11) TMI 1206 - ITAT DELHI

2015 (11) TMI 1206 - ITAT DELHI - TMI - Revision u/s 263 - Held that:- It is apparent that CIT(Appeals) cannot invoke the jurisdiction u/s 263 of the Act, merely on the ground that no adequate enquiry has been made by the Assessing Officer. In the instant case, the learned Assessing Officer has not only recorded the statement of the father of the assessee, but also satisfied himself that the source of money was duly explained, as he was running a ‘Kirana Shop’ and money was earned out of his act .....

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377; 4.70 lakhs from the cash flow statement and after satisfying thereon, has admitted the explanation of the assessee. In our considered opinion, this may be a case of inadequate inquiry, but certainly, it is not a case of lack of enquiry. The learned Assessing Officer has made certain opinion on the basis of enquiry conducted and satisfied himself. Commissioner of Income-tax cannot revise the assessment merely due to the reason that he holds a different opinion on that issue.

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ls) passed under section 263 of the Act. - Decided in favour of assessee. - ITA No. 1491/Del./2011 - Dated:- 14-10-2015 - Sh. G. C. Gupta, Hon ble Vice President And Sh. O. P. Kant, Accountant Member For the Appellant : Sh. R.S. Singhvi, Adv For the Respondent : Smt. Sunita Kejriwal, CIT DR ORDER Per O. P. Kant, AM This appeal of the assessee is directed against the order dated 08.03.2010 of the Commissioner of Income-tax , Delhi-III, New Delhi under section 263 of the Income tax Act, 1961 raisi .....

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e Assessing Officer has taken a reasonable and possible view after appreciating the facts of the case and Cit cannot assume jurisdiction merely on the basis of change of opinion and as such the whole basis of proceeding u/s 263 are illegal, bad in law and without jurisdiction. 2. That impugned order is not sustainable on facts and under the law. 2. There is a delay of 277 days in filing the present appeal. The assessee has filed an application for condonation of delay along with an affidavit of .....

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was sent to him by the assessee, but said order got misplaced with other records from his office, so he could not advise the assessee. As a result, there was delay in filing the present appeal before Tribunal. Further, he submitted in the affidavit that delay was genuine and bona fide. On the other hand, the learned Commissioner of Income-tax (Departmental Representative), objected to the condonation of delay stating that there was no sufficient cause for not filing the appeal on time. 3. After .....

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n an underhand way. The law of limitation prescribed in the provision of section 253(5) envisages that there should be a sufficient cause for not presenting the appeal within the prescribed period. Further the Courts have held that while construing the sufficient cause , the court should be liberal and lean in favour of such party. In the case of Shri Y P Trivedi Vs. the Joint Commissioner of Income Tax Range, in ITA No.5994/Del/2010, the order of the learned Commissioner of Income-tax mixed up .....

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plication for condonation of delay and that substantial justice deserves to be preferred over technical considerations. 4. We have heard the rival submissions and have perused the record. we observe that in the present case in hand, the reasons explained by the assessee are found to be not malafide in any manner or attempt to camouflage any ulterior motive, therefore, we are of the opinion that while considering the sufficiency of the cause liberal approach should be adopted. We are satisfied wi .....

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ct that the learned Assessing Officer considered all the relevant facts and has taken a reasonable and possible view after appreciating all the facts of the case. 6.1 Facts in brief are that assessee filed return of income declaring total income of ₹ 4,50,000/- on 31.11.2005. The case was selected for scrutiny and notice u/s 143(3) was issued. From the database of the Income-tax Department, the learned Assessing Officer noticed that the assessee deposited cash amounting to ₹ 32,72,48 .....

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e assessee by the learned Assessing Officer in the assessment order passed under section 143(3) of the Act on 27-09-2007. 7. The learned Commissioner of Income-tax called for and examined the records of the assessee and found that the learned Assessing Officer has not made any enquiry while considering the amount of ₹ 9,50,000/- received from the father of the assessee as gift. He was also of the view that the learned Assessing Officer had committed error in treating the cash withdrawal of .....

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he was running a proprietary ship firm namely Laxmi Ram Bishan in the year 2004. The learned Authorised Representative further stated that gift was received by the assessee on 01.11.2004 and the same amount was found credited in the assessee s bank account on various dates starting from 01.11.2004 and therefore, in view of the learned Authorised Representative creditworthiness and genuineness of the transaction was proved. As regards to the cash withdrawals of ₹ 4,75,000/-, the learned Au .....

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enue. The relevant findings of his order are reproduced as under:- 6.2 The assessing officer, before passing the impugn order, has not investigated the genuineness and creditworthiness of the transaction as claimed by the assessee in respect of gift received from his father. The AO has simply relied on the statement of the father of the assessee. The AO should have made independent enquiries into the source of the gift claimed to have been given by the father of the assesses as well as the verac .....

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ncome in his return and the extent of such income. 6.3 Secondly, as pet cash flow statement of the assessee, filed during the assessment proceedings which is made part of this order as annexure 'B', the amount of gift has been received on 01.11.2004. But, the amount of ₹ 9,50.000/- has not been deposited in to the bank account of the assessee on one single day on or after this date. Perusal of the bank account of the assessee which is made part of this order as annexure C‟ re .....

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bank account. Therefore, the contention of the assessee that the amount of ₹ 9,50,000/- was received as gift from the father of the assessee and deposited in to bank account could not be accepted. 6.4 As regards the contention of the assesses that an amount of ₹ 4,75,000/- withdrawn from the bank account explains the credits in the bank account of the same extent, perusal of the bank account reveals that this withdrawal of ₹ 4,75,000/- is made on 23.10.2004 and immediately befo .....

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sessee. Therefore, it is clear that there is no explanation for the amount of ₹ 4,75,000/- credited to the bank, account of the assessee on 23.10.2004 . 7. In view of above discussion I hold that the order passed by the Assistant Commissioner of Income Tax, Circle 7(1). New Delhi on 27.09.2007 under section 143(3) of the Income Tax Act 1961 for the Assessment Year 2003-06 in case of the assessee is erroneous and prejudicial to the interest of revenue. 8. Aggrieved with the above findings o .....

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eposited of ₹ 9.5 lacs as explained. As regards to the other amount of ₹ 4.7 lacs, also the learned Assessing Officer has duly verified the cash flow statement of the assessee and thereafter accepted the source thereof. The learned Authorised Representative further relied on the judgement of the Hon ble Delhi High Court in the case of CIT Vs. Product Limited reported in 340 ITR 547 and in other order the Hon ble Delhi High Court in the case of CIT Vs. Sunbeam Auto Limited [2010] 189 .....

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ome-tax (Departmental Representative) submitted that the learned Assessing Officer has not made any enquiry from the father of the assessee in respect of source of deposit of ₹ 9.5 lacks. 10. We have heard the rival submissions and perused the material on record including the paper book submitted by the assessee. Before we advert to the facts of the case, we may like to look at the finding of the Hon ble High Court of Delhi in the case of CIT Vs. Sunbeam Auto Ltd. (supra) wherein the Hon b .....

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s and dies have a very short life and can produce up to maximum 1 lakh permissible shorts and have to be replaced thereafter to retain the accuracy. Most of the parts manufactured are for the automobile industries which have to work on complete accuracy at high speed for a longer period, Since it is an ongoing procedure, a company had produced 10,75,000 .sets whose selling rates is inclusive of the reimbursement of the dies cost. The purchase orders indicating the costing includes the reimbursem .....

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sfied with the aforesaid explanation, he accepted the same. The CIT in his impugned order even accepts this in the following words : "Assessing Officer accepted the explanation without raising any further questions, and as stated earlier, completed the assessment al the returned income." 15. Thus, even the Commissioner conceded the position that the Assessing Officer made the inquiries, elicited replies and thereafter passed the assessment order. The grievance of the Commissioner was t .....

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