TMI Blog2014 (1) TMI 1746X X X X Extracts X X X X X X X X Extracts X X X X ..... e careful perusal of the assessment order clearly shows that Assessing Officer has not examined the various documents found during the search and has simply assessed the income at ₹ 8.5 crores which was surrendered amount. The Assessing Officer should have examined all the documents particularly because the assessee has not filed the return for surrendered amount of ₹ 8.5 crores. In fact, the assessee had returned only income of ₹ 3.37 crores. Therefore, Assessing Officer should have been more then careful and should have examined all the documents found during the search regarding purchase of properties and then determine income which has not been done. In any case, mere acceptance of the surrendered income without inquiry would make the order erroneous and prejudicial to the interest of Revenue None of the items pertain to surrendered income and, therefore, it cannot be said that a sum of ₹ 78,30,000/- was surrendered in the hands of Shri Suresh Khanna. The Ld. counsel was confronted with this variation and specific question was posed to him as to how he justified the figure of ₹ 78,30,000/- shown as surrendered income. He gave evasive reply and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pers and appraisal report etc. 4. Whether the Ld. CIT was justified by exercising the power and passing the order u/s 263 on the premise that seized/impounded documents were not properly examined from the angle of investment and violation of section 40(A)3 despite the fact that the same were very much examined as appears from the Assessment Order/and various submissions. 4. In addition to above, the assessee has moved an application dt 22.6.2013 for admission of following additional ground:- Whether the Ld. CIT(A) was justified by assuming jurisdiction u/s 263 in setting aside the assessment order u/s 263 without any firm and final finding. 5. Both the parties were heard for admission of this additional ground. 6. After considering the rival submissions, we find that no separate dispute has been projected in this ground and it is in fact one of the argument for not sustaining the order passed u/s 263 and therefore, this ground is not being admitted for separate adjudication. However, we endorse that this issue would be considered as part of the argument. 7. Though various grounds have been raised, the only dispute is whether Revisionary order passed u/s 263 has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an assessment u/s 144. The assessment was completed on 30.12.2009 by making the following observations in para 16 of the assessment order. 16. From the facts adduced above, it is evident that the document seized/impounded remained unexplained and unverifiable and as such the transactions recorded in these documents are required to be added to the income returned. However, to be fair and reasonable, the undersigned is of the view that the assessment at the surrendered amount of ₹ 8,50,00,000/- will meet the end of justice. Therefore the income of the assessee, for the A.Y. 2008-09 under consideration, is assessed at ₹ 8,50,00,000/- as surrendered by the assessee company u/s u/s 132(4) of the I.T. Act during search operation on 21.02.2008 and subsequently, reaffirmed after a period of more than one month on 24.03.2008 as against the returned income of ₹ 3,37,85,728/-. Therefore, the balance amount of ₹ 5,12,14,272/- (8,50,00,000-3,37,85,728) is added to the income returned. Accordingly, an addition of ₹ 5,12,14,272/- is made to the income returned. Penalty proceedings u/s 271(1)(C) for furnishing inaccurate particulars of income thereby resulting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts to review his own order which is not possible. In this regard he referred to page 4 of the proposal and pointed out that Assessing Officer has noted the facts and in case Assessing Officer has committed a mistake he has no authority to review his own order. He also pointed out that assessee has filed an appeal against the assessment before the CIT(A) who asked for a remand report and Assessing Officer has sent his report vide letter dated 25.8.2011, copy of which is available at pages 168 to 171 of the paper book. Reading of this letter would clearly show that whatever stand the Assessing Officer has taken before the CIT(A), he has taken a contrary stand before the Commissioner, in the proposal which further fortifies the argument that the Assessing Officer wants to review his order which is not permissible under the law He particularly referred to various comments at page 171 wherein Assessing Officer has stated that matter was still under investigation which clearly shows that all the papers were available before the Assessing Officer at the time of assessment. In any case, once the similar issue is pending before the Appellate Authority then the Commissioner would not have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the case before us, no satisfaction has been recorded and in this regard he relied on the decision of Hon'ble Supreme Court in the case of PVS Beedis (P) Ltd 237 ITR 13. He also referred to another decision of Chandigarh Bench of the Tribunal in the case of Jaswinder Singh v. CIT ITA No. 690/Chd/2010 (2012)/150 TTJ (Chd)(UO)33 wherein it was observed that before issuing notice, the Commissioner should call for the records and examine the same and record the satisfaction and then issue the show cause notice. He also referred to the decision of Hon'ble Madras High Court in the case of Madura Coats Ltd, Madurai v. Collector of Central Excise, Madurai Others 1979 (4) E.L.T. (J16)(Mad.) wherein it was observed that Department while issuing show cause notice should examine the facts properly and should not behave in a parrot like fashion. He also referred to the decision of Hon'ble Supreme Court in the case CIT v. Shri Manjunath Eeshware Packing Products and Camphor Works 231 ITR 53 (SC) wherein the meaning of word 'record' was explained and it was held that if the Assessing Officer sends a proposal to Commissioner against his own order which is in the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 84 of the paper book. He particularly invited our attention to page 83 in which explanation was given how practically the surrendered income of ₹ 8.5 crores was offered in various hands. He also referred to the letter addressed by the Assessing Officer to Addl. Commissioner of I.Tax, Range-3 (at page 131), which shows that papers were filed in case of Rupinder Singh also and that is why the Assessing Officer has taken the pain to give information to the Addl. Commissioner for taking further action which clearly shows that various replies were filed by the assessee. He also referred to pages 86 to 88 of the paper book which is copy of the letter dated 22.12.2009 in which it was clarified how some shares of property in the concerned papers found during the search did not belong to the assessee. 15. The Ld. counsel had relied on letter dated 3.12.2013 which contained modified analysis of various documents filed by him through which according to him the assessee has explained to the Assessing Officer the nature of transactions contained in these documents and how some of them did not belong to assessee. We have considered this letter also. He also relied on letter dated 6.11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in financial year 2007-08. This was further confirmed by a letter dated 21.2.2008 in which all the directors have signed and offer of surrender of ₹ 8.5 crores was reiterated. Again, the statement of Shri Suresh Kumar Khanna was recorded on 24.3.2008 in which he again confirmed the fact of surrender of ₹ 8.5 crores. Despite this surrender, the return was filed only for ₹ 3,37,85,728/-. This shows that assessee was not cooperating with the Department. When the return was filed only for ₹ 3.37 cores, the Assessing Officer should have been more vigilant to verify various documents and completed the assessment accordingly which has not been done perhaps the Assessing Officer was conscious of this fact and may be this was because of non appearance of the assessee and that is why he sent a proposal for revision of the order to the concerned Commissioner through Addl. Commissioner. In this background, it was submitted that first of all there is no bar on sending of the proposal by the Assessing Officer for revision of the order and in this regard, he relied on the decision of Hon'ble Allahabad High Court in the case of CIT v. Bhagat Shyam Co. 188 ITR 608 (All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssable income. He submitted that if income is assessed at surrendered amount without inquiry such order would be treated as erroneous and prejudicial to the interest of Revenue and in this regard he relied on the decision of Hon'ble Allahabad High Court in the case of Smt. Lajja Wati Singhal v. CIT 226 ITR 527 (All.). 19. The Ld. DR pointed out that there is no force in the submissions that assessee company alongwith others has already surrendered more or less the same amount which was declared during the search. This fact was stated before the Commissioner vide letter dated 5.7.2011 which is available in assessee's paper book at pages 164 to 167, wherein the details of income declared/surrendered has been given. In this regard, he referred to the details given in the Revenue's paper book at pages 2 3 which is details of returned income and assessed income of assessee company and its directors. This clearly shows that assessee has never offered for taxation the amount surrendered. In fact, assessee has filed only return for ₹ 3.37 crores in assessment year 2007-08. In case of Shri Dinesh Chauhan, Shri Upidner Singh and Shri Suresh Kumar Khanna, returns were f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the case and whatever judgments were pointed out have been considered above while recording his submissions. Further, during the course of hearing it was noticed that paper book No.1 contained many documents which were not available in the records of the Revenue. Ld. counsel had sought sometime to verify this and later on vide letter dated 15.1.2014 he has sought to withdraw the paper book and replaced the same with modified paper book which was filed on 11.10.2013 and, therefore, this paper book has been considered by us. 22. M/s Basera Realtors (P) Ltd is a Company incorporated on 15.9.2005 and is engaged in the business of real estate. The company had following directors. 1. Shri Suresh Khanna 2. Shri Rupinderdeep Singh 3. Shri Sahibit Singh 4. Shri Jai Inder Singh 23. A search was conducted at the residential premises of Shri Suresh Kumar and Shri Rupinderdeep Singh, directors of the company on 21.2.2008. A search was also conducted in the residential premises of one Shri Deepak Chauhan who is brother-in-law of Shri Suresh Khanna, Director and was also an employee of the company. A survey was also conducted in the premises of the assessee company. During th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006-07 and 2007-08): Today a search under Sec 132 of Income Tax Act, 1961 is conducted at our various premises (offices residences ) which is still going on during course of search survey at our various offices, residences, certain loose papers have been found. To Purchase peace of mind and to avoid litigation we hereby offer to disclose an additional income of ₹ 850 lacs (Rs. Eight Crore Fifty Lac) only for the financial year 2006-07 2007-08 in addition to our normal income in the hands of our co. M/s Basera Realtors Pvt. Ltd. 10 Canal View South City Ludhiana. This offer of disclosure has been made subject to no penalty. This disclosure has been made without pressure and is voluntarily. Thanking You Yours faithfully For Basera Realtors (P) Ltd. Sd/- Sd/- Sd/- Sd/- Suresh Kumar Jai Inder Singh Rupinderdeep Singh Sahibjit Singh (iii) Statement dated 24.03.2008 Q. I am conducting the operation of sealed premises u/s 132(3) today at your house premises, have you say anything more ? Ans. No I have already given a surrender letter of ₹ 8.5 Crore, wherein I had disclosed additional income for F/Y 2006-07 2007-08 in the hands of M/s Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s 142(1) alongwith penalty notice u/s 271(1)(b) for 24.11.2009 issued. 24.11.2009 Assessee's request for inspection of files received. Asked to have inspection. 03.12.2009 Reply to the notices not received though the inspection of files already completed on 27.11.2009. Shown cause notice for 04.12.2009 issued. 08.12.2009 Notice u/s 143(2)/142(1) alongwith show cause notice for 11.12.2009 issued as no compliance to earlier notices received. 11.12.2009 Present Sh. Hari Om Arora, Advocate alongwith Sh. Gurpreet Singh, Advocate and Sh. Asim Attrey, CA on behalf of assessee. Reply dated 04.12.2009/11.12.2009 filed. Case discussed. During assessment proceedings, it is stated that the letters and the discussion referred to in the letter dated 11.12.2009 pertains to those letter and discussion held with my predecessor. List of stock inventory also supplied for comments and reconciliation, if any. Asked to furnish following details/documents, if deem fit on the following points/issue: (i) Comments on stock inventory, a copy of which supplied. (ii) Comments w.r.t. the statement of Sh. Jai Inder Singh. (iii). To furnish a copy each for the A.Y. 2006-07, 2007-08 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that the assessment at the surrendered amount of ₹ 8,50,00,000/- will meet the end of justice. Therefore the income of the assessee, for the A.Y. 2008-09 under consideration, is assessed at ₹ 8,50,00,000/- as surrendered by the assessee company u/s u/s 132(4) of the I.T. Act during search operation on 21.02.2008 and subsequently, reaffirmed after a period of more than one month on 24.03.2008 as against the returned income of ₹ 3,37,85,728/-. Therefore, the balance amount of ₹ 5,12,14,272/- (8,50,00,000-3,37,85,728) is added to the income returned. Accordingly, an addition of ₹ 5,12,14,272/- is made to the income returned. Penalty proceedings u/s 271(1)(C) for furnishing inaccurate particulars of income thereby resulting in concealment of income are initiated. Later on, Assessing Officer sent a proposal to the Commissioner vide his letter dated DCIT CC-1/Ldh/263/11-12 dated 10.1.2012 for initiating action u/s 263 through the Addl. Commissioner. The Addl. Commissioner put up this proposal before the Commissioner vide his letter No. Addl.CIT(C) Ldh/11-12/703 dated 11.1.2012. The Ld. Commissioner has made the following remarks on this letter itself. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee which clearly shows that assessee did not fully cooperated in the assessment proceedings as observed earlier. Further, the Hon'ble Patna High Court in the case of CIT v. Rita Keshri (supra) where search was conducted in the premises of the assessee but assessee did not cooperated in the assessment proceedings and ultimately assessment was completed on whatever information was available and these orders were ultimately held to be erroneous and prejudicial to the interest of Revenue. The Tribunal quashed these revisionary orders. The following observations were made from para 7 to 11, which are as under:- 7. We have perused the materials on record and considered the submissions of the learned counsel for the parties. The three items in the returns of the two assesses are in question, and have been discussed in detail in the orders of the authorities under the Act. Those are with respect to different bank accounts, their investment in shop nos. 203 and 204, and their investment in the A.C. market. It appears that thee was a search and seizure in the business premises of the assesses on 15th Dec., 2004, and in January 2005. Large mass of incriminating materials was seized an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not concluded by findings of facts. 10. There is yet another aspect of the matter. The superior Court of quasi-judicial authority should normally act with restraint while setting aside the impugned order with a view to remit the matter to the same authority or the Court, because such an order or remand sets at naught the entire effort made till then to resolve the dispute. The function of the appellate Court is to rectify the errors and the mistakes committed in the impugned order. An order of remand can be passed under limited circumstances so that no injustice is done to any side. It is equally well-settled that the superior Court or quasi-judicial authority does not normally interfere with an order of remand where the parties will have adequate and reasonable opportunity to present their cases. In the present case, the learned CIT remitted the matter for valid reasons discussed in detail in his orders, and the learned Tribunal erred in interfering with the same for unconvincing reasons and perfunctory approach. In the present situation, the learned CIT could not have rectified the errors in the orders of the learned AO because entire materials were not on record due to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. 27. The provision clearly shows that there is no mandate for recording of satisfaction but what is required is that if the Commissioner considers that order is erroneous in so far as the same is prejudicial to the interest of Revenue, then a show cause notice can be issued. The bare perusal of the assessment order shows that it is a case of no enquiry which itself would make the assessment order erroneous and prejudicial to the interest of Revenue and perhaps nothing else was required to be examined at this stage. However, since the Commissioner has clearly appended a note that proposal with the assessment records was examined, we have to presume that the Ld. Commissioner was after going through the assessment records and whatever material was made available before him, he was satisfied that the order was erroneous and prejudicial to the interest of Revenue. The Ld. Counsel for the assessee had in this regard relied on the decision of Hon'ble Delhi High Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paras 6, 7 8 of the notice are also not there in the proposal. Rest of the parts seems to be verbatim copy of the proposal but here again it has to be seen that these parts basically contain all the contents of the statements recorded during the search, copy of the letter of surrender by the company, details of various documents found during the search. Now these facts have been brought to the notice of the Assessing Officer by way of proposal but even they were examined otherwise the Ld. Commissioner has to quote these documents in the same language in which they are prepared. As far as the Commissioner is concerned, before giving the direction of putting up a notice, he had recorded his satisfaction on the letter given by Addl. Commissioner itself which we have already reproduced above. Paras 6, 7 and 8 of the show cause notice reads as under:- 6. From the discussion made above, it is seen that while making assessment in your case for A.Y. 2008-09, entire seized material and various other issues have not been properly examined and appreciated and no proper inquiries have been conducted leading to under assessment. 7. From the facts discussed above, it is also noticed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d representative in this regrd on 21.2.2012 at 2.00 p.m. Sd/- Commissioner of Income Tax, Kolkata II, Kolkakta The assessee filed certain replies before the Ld. Commissioner who did not agree with the same and ultimately passed the order u/s 263. On these facts the Tribunal observed that show cause notice shows that there was no reason whatsoever shown in the notice that how the assessment order was erroneous and prejudicial to the interest of the Revenue. It was also observed that though in the impugned order the Ld. Commissioner does mention few points borrowed from the Revenue audit objections on the basis of which revisionary proceedings were initiated but it was a case which shows that the Ld. Commissioner had not formed his own opinion. 31. From the above, it becomes clear that the Ld. Commissioner has not given any reasons in the show cause notice why the order was erroneous and prejudicial to the interest of the Revenue. In the case before us, the Ld. Commissioner has clearly set out the reasons why the assessment order was erroneous and prejudicial to the interest of the Revenue vide para 6, 7 8 which have been already reproduced. We further find that in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as relied for the proposition that if the Assessing officer is not authorized to act under compulsion then how senior officers of the Department like Ld. Commissioner is expected to act under the compulsion of the Assessing officer. We are afraid this is totally misplaced. In the case of PVS Beedies Pvt Ltd (supra), the short issue was involved whether reopening is possible on the basis of audit objection and the Hon'ble Supreme Court held that if internal audit party raises an objection pointing to wrong fact then reopening is possible. The judgment is very short and we are reproducing the whole judgment in this order: These cases relate to the assessment years 1974-75 and 1975-76.The relevant accounting year ended on March 31,1974 and March 31,1975, respectively. Originally, the assessment was completed on June 21,1977. There were various other proceedings which ended in the Tribunal. The Tribunal after considering all the aspects of the cases remanded the cases back to the Income-tax Officer for passing a fresh order in accordance with law. One of the points raised before the Income-tax Officer was that of justification for reopening of the assessment. It was pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was cited before us. 35. Next case relied on is the decision of this Bench of the Tribunal in case of Jaswinder Singh v. CIT (supra). In that case the assessee was having income from own trucks and hired trucks and filed return of income. No books of accounts were produced, therefore assessment was completed u/s 144 and income was estimated. From the perusal of the assessment order the Ld. Commissioner noted that the assessee has not applied the provisions of section 40(a)(ia) for deduction of tax from some parties. The expenditure of loading and unloading was not properly examined and therefore the order was erroneous. The assessee filed appeal against this revisionary order passed u/s 263 before the Tribunal. The Tribunal quashed the order by observing that in no case revisionary order can be passed on the basis of audit objection. Further merely an assessment order cannot be called erroneous merely because in the opinion of the Ld. Commissioner percentage adopted by the Assessing officer was on lower side. The facts of this case are totally different from the facts in the case before us and we fail to understand what assistance can be derived from this case. 36. Next case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at page 62-63 of the report as under: It, therefore, cannot be said, as contended by learned counsel for the respondent, that the correct and settled legal position, with respect to the meaning of the word record till June 1 ,1988, was that it meant the record which was available to the Income-tax Officer at the time of passing of the assessment order. Further, we do not think that such a narrow interpretation of the word record was justified, in view of the object of the provision and the nature and scope of the power conferred upon the Commissioner. The revisional power conferred on the Commissioner under section 263 is of wide amplitude. It enables the Commissioner to call for and examine the record of any proceeding under the act. It empowers the Commissioner to make or cause to be made such enquiry as he deems necessary in order to find out if any order passed by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. After examining the record and after making or causing to be made an enquiry if he considers the order to be erroneous then he can pass the order thereon as the circumstances of the case justify. Obviously, as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submissions of the assessee directed the Assessing officer to add expenditure of cess paid by the assessee to the income of the assessee. On these facts Hon'ble High Court observed cess paid to the Green Tea Leave was already held to be allowable business expenditure by the Division Bench of the same Court in case of AFT Industries Ltd. v. CIT, and therefore revisionary order passed u/s 263 was quashed. Again we are really surprised in what sense this case can help the case of the assessee. 39. We have also considered the decision of: I Apollo Tyres Ltd v. ACIT II Empee Breweries Ltd III Mrs. Khatiza S. Oomerbhoy v. ITO 40. We have carefully perused the judgment and find that same are distinguishable on facts and these decisions have nothing common with the case of the assessee and for the sake of brevity not discussing the facts of these cases. The Ld. counsel of the assessee had also relied on the decision of Hon'ble Supreme Court in the case of Bajaj Tempo Limited v. CIT 196 ITR 192 (SC). In that case the issue was whether the assessee was entitled to deduction u/s 15C of the Indian Income Tax Act, 1922 despite starting a new business in the building whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale proceeds of land. It is further stated that an amount of ₹ 89,48,200/- was paid by the other partner having 50% share out of its own funds. The assessee company through its director Sh. Suresh Khanna also filed an affidavit certifying therein that the 50% share of investment has been made by the other partner. However, no source of investment by the other partner having 50% share was explained. Further, as stated supra, the payment of investment was made in cash in contravention of the provisions of section 40A(3) of the I.T. Act and as such, necessary disallowance were called for. This shows that the income of ₹ 6,81,06,129/- has apparently been under assessed. In view of these facts, the order of assessment dated 30.12.09 is not only erroneous but also prejudicial to the interest of revenue. Therefore, the matter is referred to your goodself for initiating necessary remedial action within the meaning of sec. 263 of the I.T. Act. 42. The above clearly shows that Assessing Officer is of the view that issue regarding section 40A(3) i.e. issue of cash payment and certain investments could not be examined because of the non-cooperation of the assessee. These ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Max India Ltd (supra) but in the case of Max India Ltd (supra) the facts were regarding allowability of deduction u/s 80HHC of the Act. The meaning of profits in section 80HHC was open to two interpretations which were amended later on by 2005 amendment and therefore, the Court observed that since Assessing Officer has taken one of the possible view, the order cannot be called erroneous and prejudicial to the interest of Revenue. But in the case before us, the issue is totally different. The Assessing Officer could not have accepted the income of ₹ 8.5 crores particularly when the assessee itself has not honoured the offer of surrender and filed return only for ₹ 3.37 cores, the Assessing Officer was duty bound to examine all the documents and then he should have determined the income accordingly. In this regard, reference may be made to the decision relied upon by the Revenue in the case of Gee Vee Enterprises (supra). In that case the Hon'ble Delhi High Court has shown the reason why Assessing Officer was duty bound to make enquiry. The following para at page 376 is relevant. It is not necessary for the Commissioner to make further inquiries before cancelling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself would be without jurisdiction. The Hon'ble High Court did not accept this by observing as under:- We feel that the decision of the Madras High Court would not be of any help to the petitioner. In the said decision, the revision had been held to be invalid as the subject-matter of the revision was the same as that of the pending appeal. Therefore, it does not hold that in all cases, and, particularly where the issues in the revision are different from those in the appeal, proceedings under section 263 would be invalid during the pendency of an appeal. Mr. Bajpai, who appears for the petitioner, submits that apart from the Madras High Court decision he also relies on other grounds. All these grounds are available to him and he can incorporate the same in his reply to the impugned show cause notice. The Commissioner, after taking notice of the objections, shall pass an order in accordance with law. Our interference at this stage is not called for. The writ petition is disposed of. However, it is made clear that we have not expressed any opinion on the merits of the case. 45. In our opinion, this decision is against the assessee and not in favour of the assessee. In an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive effect is that the powers under section 263 of the Commissioner shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in an appeal. Accordingly, even in respect of the aforesaid three items, the powers of the Commissioner under section 263 shall extend and shall be deemed always to have extended to them because the same had not been considered and decided in the appeal filed by the assessee. This is sufficient to answer the question which has been referred. The question referred is, therefore, answered in the negative, in favour of the Revenue and against the assessee. From the above, it becomes clear that only those matters which have been appealed against are not available for revision. The matters which have not been appealed are clearly available for Revision u/s 263. In the case before us, since the Assessing Officer has not made enquiries in respect of the documents found regarding purchase of properties and, therefore, the whole order would be available for revision. In fact, the revisionary powers have been exercised by the Ld. Commissioner for making additions u/s 40A(3) and some more additions on account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 21.02.2008 that 8.50 Cr. Is for two years no bifurcation given nor shown in return of income. DEEPAK CHAUHAN Particulars A.Y. 2008-09 A.Y. 2007-08 Income Declared During Search NIL NIL Income Shown in Return of Income 3,01,800/- 2,66,800/- Income Assessed by A.O. 4,01,800/- 3,46,800/- REMARKS *Addition of 1,00,000/- on a/c of low household withdrawals. * Addition of 80,000/- on a/c of low household withdrawals. RUPINDERDEEP SINGH Particulars A.Y. 2008-09 A.Y. 2007-08 Income Declared During Search NIL NIL Income Shown in Return of Income 4,73,412/- 5,79,978/- Income Assessed by A.O. 5,89,410/- 6,93,980/- REMARKS *Addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 1,00,000/-as business commission income and ₹ 5,64,450/- as income from sale of capital asset and ₹ 10,000/- as income form other sources. This was assessed at ₹ 17,10,624/- by including some bank interest amounting to ₹ 11,289/- which was not included by the assessee and ₹ 2,98,885/-on account of unaccounted jewellery and ₹ 2,76,000/- on account of low house hold withdrawals. From these figures it become absolutely clear that none of the items pertain to surrendered income and, therefore, it cannot be said that a sum of ₹ 78,30,000/- was surrendered in the hands of Shri Suresh Khanna. The Ld. counsel was confronted with this variation and specific question was posed to him as to how he justified the figure of ₹ 78,30,000/- shown as surrendered income. He gave evasive reply and submitted that this would be part of income of six years, however, no document is available in this regard. Similar is the situation with Shri Rupinderdeep Singh and Shri Deepak Chauhan. As far as the case of Shri Harinder Singh is concerned, the Ld. Counsel for the assessee has filed copy of the assessment order in case of Shri Harinder Singh vide letter da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar while 100% considered A-1 (R-2) 4-9 18-19 PB No. 48 para 1 and also in Deepak PB No. 119 12.06.06 333 Bigha @ ₹ 81 lacs per acre Village Jhande A-1(R-2) 1-2 19 In Deepak PB 119,129 577 sq. yds. @ ₹ 10700 per sq. yd. Situated at Ludhiana and Suresh was only acting as a PoA of the seller family as appears from agreement itself. A-2(R-2)20-25 19-20 PB No. 49 para 2 15.11.07 600 sq. yd @ ₹ 640 per sq. yd. At Ayali. A 0 trading profit has been shown A-3(R-2) 30-33 20 In Deepak PB 120 12.12.07 250 sq. yd @ ₹ 810 per sq. yd. Third party 0 papers for commission business A-3 (R-2) 27-29 20 PB No. 49 in Deepak PB No. 120 19.07.07 4000 sq yd. @ 285 per sq. yd. At Jhande. Profit t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51 para 10 19.02.08 200 sq. yds @ 2500/- per sq. yd. plot no. M-135 M-135 A-22 (R-2) 26 In Deepak PB GPA 1-3, 17-20 No. 126 A-23 (R-2) 15-20 26 In Deepak PB No. 126 700 sq. yd. @ 7200/- per sq. yd. Sold at profit declared in income ₹ 350000/- A-24(R-2) 30-32 26-27 In Deepak PB No. 126 Unsigned agreement dt. 25.04.07 600 sq. yd. @ 9600/- At EX-85 at Ayali Kalan. From the above, nobody can make out any reconciliation. It is not clear which property belong to which person. To a specific query by the Bench, the counsel could not give any reconciliation in this respect, therefore, it become clear that these documents are not clear before us then how the Assessing Officer could have understood anything but at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not been examined by the A.O. Annexure No. A-1(R-2), Page No. 48-50: These documents are photocopy of an agreement dated 30.11.2004. AR has submitted that buyer persons were agents of M/s U-LIKE Promoters(P) Ltd., New Delhi and the payments so made an the deal has been owned by the New Delhi Company vide their letter dated 06.03.2009 written and submitted to ACIT, Central Circle-I, Ludhiana and as such there was neither any investment nor infringement of provisions of section 40A(3). No doubt a letter dated 06.03.2009 from M/s U-LIKE Promoters(P) Ltd. has been filed at page 95 of the reply dated 08.02.2012 filed in the course of proceedings u/s 263 for A.Y. 2008-09 from which the property in question has been admitted as being purchased by M/s U-LIKE Promoters(P) Ltd. but fact of assessee's interest in the same has not been examined by the A.O. Assessee company is a business venture company and is not doing charity and therefore even it is admitted that above property was being purchased by M/s U-LIKE Promoters (P) Ltd., assessee would be having some interest in the form of earning some income by way of commission and in any other manner which has not been examined by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tness and genuineness of the assessee's claim whether aforesaid Village was not served by any bank or whether provisions of section 40A(3) were applicable. Further, as per nothings given on backside of above document, payment of ₹ 50 lac has also been made on 27.02.2006 totalling ₹ 90 lac which has also not been examined. Similarly, the payments of ₹ 20,43,800/- and ₹ 15,43,782/- in the names of Sh. Bhupinder Sigh S/o Sh. Harbans Singh and Sh. Balwinder Singh S/o Sh. Harbans Singh respectively on 27.06.2006 as noted on the backside of the above document, have also not been examined. 51. We are not reproducing the analysis done by Ld. Commissioner in respect of all the documents for the sake of brevity but the reading of the analysis of the above three documents clearly shows that Ld. Commissioner has pointed out what are the different facets which have not been examined by the Assessing Officer. 52. The Ld. Commissioner had also relied on the plethora of case laws to support his order. The Ld. counsel had filed a letter dated 19.2.2013 in which these case laws have been distinguished. We are not discussing these case laws because it is trite law t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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