TMI Blog2017 (6) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer had raised further queries with respect to the documents seized from the premises of M/s ABL. Thus, from the documents on record, it is evident that Assessing Officer had made enquiries during course of assessment proceedings with respect to the document seized/ impounded from the premises of M/s ABL. We find merit in the submissions of the ld. AR that it is not a case of ‘no enquiry’. Undisputedly, the present case is not the one which suffers from ‘lack of enquiry’. At the best the present case can be one of those where there was ‘inadequate enquiry’. Under such circumstances, the Commissioner of Income Tax cannot exercise his revisional jurisdiction. - Decided in favour of assessee. - ITA Nos. 600, 601, And 602/PUN/2015 - - - Dated:- 17-4-2017 - SHRI R.K PANDA, AM AND SHRI VIKAS AWASTHY, JM For The Assessee : Shri Kapil Goyal For The Revenue : Shri Shashi B. Prasad ORDER PER VIKAS AWASTHY, JM These three appeals have been filed by the assessee assailing the order of Commissioner of Income Tax (Central) dated 27.03.2015 passed u/s 263 of the Income Tax Act, 1961 ( hereinafter referred to as the Act ) common for the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in spite of the fact that the enquiries carried out by the A.O. in relation to the seized material were brought on record by the appellant, during the course of revision proceedings. Therefore, it is prayed to cancel the revision order passed u/s 263. 3. In any case the learned CIT erred in passing revision order u/s 263 with respect to the invalid assessment order passed inconsequence of invalid Notice u/s 153C. Therefore, it is prayed to cancel the revision order passed u/s 263. 4. Appellant craves leave to add/ amend/alter any grounds of appeal and/ or prayers before or at the time of hearing. Identical grounds have been raised by the assessee in the appeals for assessment years 2010-11 and 2011-12, assailing the order of Commissioner of Income Tax. 5. Shri Kapil Goyal appearing on behalf of the assessee submitted that a perusal of the show cause notice issued u/s 263 of the Act would show that the Commissioner of Income Tax has not formed his firm opinion with respect to escapement of income during assessment proceeding. The expression used by the Commissioner of Income Tax such as may have not carried out some of the work , this issue needs detailed ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eries in respect of documents seized during the course of survey from the premises of M/s ABL. The assessee gave detailed reply to the questionnaire issued by the Assessing Officer on 06.03.2013. Thus, it is evident from the documents on record that Assessing Officer made enquiries with respect to the work performed by the assessee and also on the documents seized during survey action from the premises of Ashoka Group. It is not a case of no enquiry , at the best it can be a case of inadequate enquiry . It is a well settled law that where inadequate enquiry is conducted by the Assessing Officer during assessment proceedings, the Commissioner of Income Tax can not invoke revisional jurisdiction and direct the Assessing Officer to reconduct the enquiry in a particular manners. Thus, revisional jurisdiction cannot be invoked where it is a case of inadequate enquiry to make addition. In support of his contentions, the ld. AR placed reliance on the decision of Hon ble Bombay High Court in the case of CIT V/s. Nirav Modi reported as 390 ITR 292. 5.3 The next argument raised by the ld. AR against the impugned order is that the Commissioner of Income Tax has erred in remitting the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing assessment proceedings. The ld. DR pointed that after assessments were set aside in revision proceeding, the Assessing Officer conducted detailed enquiries and has passed assessment orders making substantial additions. The ld. DR in support of his submissions placed reliance on the following decisions: i) Rajmandir Estates (P.) Ltd. V/s. Pr. CIT, Kolkata-III, 77 taxmann.com 285 (SC) ii) Anuj Jayendra Shah V/s. Pr. CIT-35, Mumbai, 67 taxmann.com 38 ( Mumbai-Trib) iii) CIT-II, Visakhapatnam V/s. Varanasi Khanta Rao 59 taxmann.com 175 ( Andhra Pradesh) iv) Appollo Tyres Ltd. V/s DCIT 46 taxmann.com 421 (Kerala) v) Vikrant Auto Suspension V/s. ACIT, Circle-22(2), Mumbai 45 taxmann.com 344 (Mumbai- Trib) vi) Commissioner of Income Tax V/s. Jawahar Bhattacharjee 20 taxmann.com 652 ( Guahati) vii) Malabar Industrial Co. Ltd. V/s Commissioner of Income Tax 109 Taxman 66 (SC) The ld. DR defending the order of Commissioner of Income Tax passed u/s 263 of the Act, prayed for upholding the impugned order and dismissing the appeals of the assessee. 7. We have heard the submissions made by the representatives of rival sides and have perused the order of authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 and books and documents were found and impounded. On verification of records, it is seen that the assessee is sub-contractor of Ashoka Group of cases. The documents found have various evidences which require cross verification with reference to records and third parties. The assessee has received contract receipts and claimed huge expenses. From the records it is also learnt that the assessee may have not carried out some of the works though claimed huge expenditure without having actual expenditure. This issue needs detailed verification by causing suitable enquiries. The assessee s turnover of contract receipts and expenses are as per the following: Asstt. Year Turnover Expenditure Claimed 2009-10 31,52,50,624 29,66,67,895 2010-11 1,45,75,88,533 1,34,58,07,738 2011-12 1,20,88,09,762 1,15,88,12,511 3. On perusal of the record, it is seen that the Assessing Officer has not enquired/ verified the evidences found and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 06.03.2013 gave detailed reply to the Assessing Officer answering the queries raised by the Assessing Officer. In the second questionnaire, the Assessing Officer had raised further queries with respect to the documents seized from the premises of M/s ABL. Thus, from the documents on record, it is evident that Assessing Officer had made enquiries during course of assessment proceedings with respect to the document seized/ impounded from the premises of M/s ABL. We find merit in the submissions of the ld. AR that it is not a case of no enquiry . However, a perusal of the assessment orders for all the three assessment years under question show that Assessing Officer while framing assessment has not discussed at all the fact regarding enquiries made during the course of assessment with respect to alleged incriminating materials seized from the premises of M/s ABL against the assessee. If the Assessing Officer has made enquiries during assessment proceedings and after examining the documents has made no addition, the Commissioner of Income Tax cannot invoke the provisions of section 263 merely for the reason that the Assessing Officer has not passed elaborate order giving detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in respect of which the Assessee has not been able to satisfy him and give reasons for his conclusion. This would enable the Assessee to challenge the same, if aggrieved. In fact the Gujarat High Court in CIT v. Nirma Chemical Works Ltd.[2009] 309 ITR 67/182 Taxman 183 has observed that if an assessment order were to incorporate the reasons for upholding the claim made by an assessee, the result would be an epitome and not an assessment order. In this case, during the assessment proceedings for both the Assessment Years, the Assessing Officer issued a query memos to the assessee, calling upon him to justify the genuineness of the gifts. The Respondent-Assessee responded to the same by giving evidence of the communications received from his father and his sister i.e. the donors of the gifts along with the statement of their Bank accounts. On perusal, the Assessing Officer was satisfied about the identities of the donors, the source from where these funds have come and also the creditworthiness/capacity of the donor. Once the Assessing Officer was satisfied with regard to the same, there was no further requirement on the part of the Assessing Officer to disclose his satisfaction i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on the part of the Revenue, is also not sustainable. [ Emphasized by us] 12. In the present case, documents on record clearly establish that Assessing Officer has made enquiries and after applying his mind on the materials submitted by the assessee in response to the questionnaire has accepted return of income without making further addition. Once Assessing Officer has taken a view after conducting enquiries and examining the documents, it is not open to the Commissioner of Income Tax under revisional jurisdiction to direct the Assessing Officer to re-examine the same material. Undisputedly, the present case is not the one which suffers from lack of enquiry . At the best the present case can be one of those where there was inadequate enquiry . Under such circumstances, the Commissioner of Income Tax cannot exercise his revisional jurisdiction. 13. The Department has placed reliance on the decision of Hon ble Apex Court in the case of Rajmandir Estates (P) Ltd V/s. Pr. CIT (supra) to say that where Assessing Officer completed assessment without holding requisite investigation except calling for records invoking of revisional jurisdiction u/s 263 of the Act is justi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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