TMI Blog2020 (3) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... ps. AO has duly examined the matter and has carried out requisite enquiry and investigation which was reasonably expected from him and was satisfied that there was no basis to make any addition and accordingly, no addition was finally made towards undisclosed source of such investment as alleged initially while recording the reasons u/s 148 of the Act. Further, we find that on similar grounds, the matter in the hands of M/s Sterling Build Estate Pvt limited was reopened and after verification of all the relevant documents/facts of the case, the AO has accepted that no extra sale consideration was received in cash of ₹ 2.21 crores as mentioned in the alleged agreement to sale from the assessee and sale consideration of ₹ 55 lacs as per registered sale deed during offered to tax in return of income was accepted. We therefore find that there is concurring findings by two Assessing officers of respective assessees wherein they have held that no such investment was made and money has not changed hands and so called agreement to sale cannot be relied upon as the same was held to be a fake agreement by the stamp authorities. Therefore, the findings of ld CIT that the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Revenue : Shri B.K. Gupta (CIT) ORDER PER: VIKRAM SINGH YADAV, A.M. This is an appeal filed by the assessee against the order of ld. Pr. CIT, Ajmer passed u/s 263 dated 27.03.2019 for the assessment year 2009-10 wherein the assessee has taken the following grounds of appeal:- 1. That the Ld. Principal Commissioner of Income-tax, Ajmer has erred in considering the assessment order passed by the AO is erroneous and prejudicial to the interest of Revenue without appreciating the full facts and circumstances of the case. He set aside to the file of AO to the extent for making afresh order after carrying out enquiries in the manner as directed by his order after giving an opportunity of being heard. 2. That he has failed to consider our written submissions and without going into true facts of the case asked the AO to make enquiries on secondary evidence of third parties for considering the sale consideration of ₹ 2,71,00,000/- and ignoring the detailed order DIG (Stamps) dtd. 22-6-16. The Competent Authority has also considered such photo stat copy of agreement and treated such complaints as fake and passed his order that no such agreement wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.Y 2009-10 was completed u/s 147 r.w.s 143(3) by the ITO Ward 2, Kishangarh on 30.12.2016 assessing total income of ₹ 4,44,720/. On examination of assessment record, it is noticed that certain deposits of cash have been made on different dates during the period relevant to the A.Y. 2009-10 in your bank account No. 51084340304 maintained with SBBJ, Madanganj Kishangarh, detailed are as under:- Date Amount 23/09/2008 ₹ 15000 12/01/2009 ₹ 41000 27/01/2009 ₹ 450000 30/1/2009 ₹ 1110000 31/01/2009 ₹ 300000 02/02/2009 ₹ 200000 07/02/2009 ₹ 800000 9/02/2009 ₹ 446000 9/02/2009 ₹ 145000 13/02/2009 ₹ 1500 9/3/2009 & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, letter on Shri Sheo Ram appeared and admitted purchase of Tractor, Trolly, Machine, Jilau/Pilau, Plough (Hal) etc. but the AO failed to enquire into these many claim availability of these many items with the assessee and how the assessee acquired them and allowed without investigation. Shri Pusa Ram in statement on oath dated 18-11-2016 denied about the transaction and cash payment but subsequently on 27-12- 2016 by a plain letter stated, without specifying any date about purchase and sale of the vehicle without getting it transferred in his name. If it would have been enquired by the AO that statement on Oath carry evidential value rather than plain denial which AO failed to enquire. Similarly Such Ram denied on oath on 18-11-2016 but furnished notarized copy without specifying any date on which he received vehicle. The document does not say purchase nor it say payment in cash and AO failed to enquire into these also that above are only indicative that the transactions of cash have not been enquired into as to the date of deposits by the AO resulting the assessment order erroneous in so far as prejudicial to the interest of the Revenue. Even the merely 5 chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO failed to enquire into the dates of these transactions for cash deposits in Bank. Further as admitted by the Ld. Pr. CIT in the impugned show cause notice issued u/s 263 that Shri Sheoram was not made available to Inspector on 16-11-2016. But later Shri Sheoram appeared before the Ld. AO and admitted that he purchased as Tractor, Trolley, machine, jilan/pilan plough etc. from the assessee in cash. As Sheoram appeared before the Ld. AO and accepted the facts that he purchased the tractor etc. Thus it is not in assessee s preview to ask AO to make an investigation about the affidavit filed by Pusaram and Sukhram and subsequently denied by them. As all the facts were available before the Ld. AO and after considering/taken into account the supporting documentary evidences filed by the said persons he accepted the transactions of purchase of his assets in cash by the said persons from the assessee. Further a copy of bank account was available with Ld. AO (even at the time of issuing the notice u/s 148 of the I.T. Act, 1961) and all the transactions made by cheques were also there and examined by the Ld. AO by applying his mind. Thus the assessment order on this issue was neither ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been started on the same issue which have already been considered and examined by the then A.O. Thus the proceeding u/s 263 is a step to start again a second scrutiny/investigation of facts without there being any material to hold even prima-facie that the assessment order passed by A.O. is erroneous which is not valid in the eyes of law (CIT Vs. Trustees Anupam Charitable Trust (1987) 167 ITR (129) (Raj), CIT Vs. Godawari Sugar Mills Ltd. (1993) 203 ITR 108 (Bom.) and CIT Vs. Shakti Charities (2000) 160 CTR 107 (Mad.). The facts and submissions are verifiable from the assessment record. The Supreme Court in case of CIT Vs. Green World Corporation (2009) 314 ITR 81 held that The jurisdiction under section 263 can be exercised only when both the following conditions are satisfied (i) the order of the assessing officer should be erroneous and (ii) it should be prejudicial to the interest of the Revenue. These conditions are conjunctive. An order of assessment passed by the Assessing officer should not be interfered with only because another view is possible. The Rajasthan High Court in case of CIT Vs. Chambal Fertilizers and Chemicals Ltd. (2013) 258 CTR (Raj.) 540 has held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been passed without making enquiries or verification which should have been made, since the Pr. CIT had not brought any material on record to substantiate his inference, and so the impugned revision order is only to carry out fishing enquiries with objective of substituting his views with that of the Assessing Officer which is not permissible in law (refer Narayan Tatu Rane Vs. I.T.O. (2016) 70 Taxman.com 227 (Mum). 11. It was further submitted that as admitted by AO in assessment order the assessee has submitted complete sources of cash deposit alongwith copy of Bank Account No. 51084340304 with SBBJ Kishangarh with detail of all five cheques also deposit in Bank account as shown above. During the course of assessment proceedings the assessee vide letter dated 26-10-15 has furnished evidences explaining sources of cash deposit in his Bank account and after application of mind and full satisfaction the Ld. AO made the assessment which is apparent from assessment proceedings. The affidavit of Shri Sukhram, Shri Pusaram and Shri Kailash filed and accepted by AO . It has also been cleared from the assessment order that the assessee failed to explain the source of deposit of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and Stamps directed to Sub-Registrar, Kishangarh to Investigate matter and the Sub Registrar after Investigation submitted his report to DIG Stamps. The order has been passed in detail vide case No. 516/2011 in the Court of Sub- Registrar Kishangarh vs. Baluram Jat order dated 22-06-2016 and in the order the above said agreement shown in the name of assessee found fake and finally decided that no such alleged agreement made for ₹ 27100000/-. We are enclosing herewith copy of such order of competent court passed on 22-6-16. It is also wrong to allege that AO recorded in the order only ₹ 221 as against ₹ 27100000/-. The sums ₹ 221/- (₹ 158 + 63) was on account of interest received from SB account No. 51084340304 as shown above and not concerning with ₹ 27100000/- as assumed by you without any basis ignoring the actual true facts on record. It was income from other sources added for ₹ 158/- only because ₹ 63/- was already shown by assessee in his return. As such the story of ₹ 27100000/- was found quite fake and /or biogases per detailed order and/or inspection made by Court. 14. It was accordingly submitted that the the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout specifying any date of receipt of vehicle as in the absence of dates, the date wise deposit cannot be held explained and ought to have made enquiries thereinto. All these submission of plain letter/notarized copy, clearly established that these are nothing but only an afterthoughts. In the case of Shri Sheo Ram, the assessee also not produced any evidence which can prove that the Tractor, Trolly, Machine, Jilau/Pilau, Plough (Hal) etc. were actually available with the assessee and he had sold the same to Shri Sheo Ram on any particular date and received cash on the said particular date to explain date wise cash deposit. Therefore, only admittance of Shri Sheo Ram regarding purchase of these items from the assessee, without any documentary evidences, is of no help for the assessee and the AO failed to enquire thereinto. Regarding unexplained source of investment, he relied on the findings of the ld Pr. CIT. It was further submitted that the fact that the assessment in hands of the seller company was reopened on the said ground was apparently not in the knowledge of the ld Pr. CIT at the time of passing of the order u/s 263 of the Act. Further, he relied on the decision of Coo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of payment Seller Purchaser Details of land ₹ 1400000/- through cheque No.213758 dated 6/1/2009 of SBBJ, Madangarnaj. This cheque has been cleared on 30/1/2009 from the A/c of Shri Balu Ram held with SBBJ bearing No. 51084340304 M/s. Sterling Build Estate P.Ltd Smt.Mooli Devi W/o. Shri Ghasi Ram Jat i.e. mother of Shri Balu Ram Jat Part of Khasra No. 96/1, Measuring 02 Bigha 01 Biswa 18 Biswanshi. ₹ 1400000/- through cheque No. 213757 dated 6/1/2009 of SBBJ, Madanganaj. This cheque has been cleared on 10/3/2009 from the A/c of Shri Balu Ram held with SBBJ bearing No. 51084340304. M/s. Sterling Build Estate P.Ltd Smt. Prem Devi W/o. Shri Baluram Part of Khasra No. 96/1, Measuring 02 Bigha 01 Biswa 18 Biswanshi. ₹ 1400000/- through cheque No. 458564 dated 6/1/2009 The BOR, Madanganaj. This cheque has been cleared on 20/3/2009 from the A/c of Shri Shyam Lal Yadav held with BOR (now ICICI) bearing No. 0110101417402 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 300000 02/02/2009 ₹ 200000 07/02/2009 ₹ 800000 9/02/2009 ₹ 446000 9/02/2009 ₹ 145000 13/02/2009 ₹ 1500 9/3/2009 ₹ 1500 Total ₹ 3510000 The assessee has filed his return of income for the A.Y.2007-2008 and 2008-2009 declaring total taxable income of ₹ 204000 and ₹ 180500 respectively. Return of income for the A.Y. 2009-2010 has not been filed and thus, with meager incomes in the earlier years, the assessee had no sources to deposits cash woth ₹ 3510000 in his bank account as cash. The payments for purchase of the land referred above in the names of family members have been made through this account amounting to ₹ 2800000 (₹ 1400000 + ₹ 1400000). The perusal of Ikrarnama reflects that the other purchaser alongwith Shri Balu Ram Jat was Shri Radhey Shyam Yadav who happens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation submitted his report to DIG Stamps. The Collector, Stamps, Kishangarh has thereafter passed the order vide case No. 516/2011 namely Sub-Registrar Kishangarh vs. Baluram Jat dated 22- 06-2016 and in the said order, the above said agreement shown in the name of assessee has been found to be fake. It was accordingly submitted that no such alleged agreement was made for ₹ 271,00,000/-. The AO therefore examined this particular matter in detail and has also written a letter dated 14.12.2016 to DIG Registration and Stamps who has in turn replied to the AO vide his letter no. 10185 dated 14.12.2016 and the contents thereof reads as under:- 22. Further, our reference was drawn to findings in the order passed by the Collector, Stamps, kishangarh in case of Sub-Registrar Kishangarh vs. Baluram Jat (Case no. 516/2011 dated 22-06-2016) which read as under:- 23. It was further submitted that after taking into consideration the above facts and carrying out necessary verification including directly communicating with the concerned authorities, the AO has recorded his findings in the assessment order dated 30.12.2016 which reads as under:- As per informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 which reads as under:- The assessee has filed its return of income for the A.Y. 2009-10 on 31.03.2010 declaring income at Rs. NIL. Later on, as per information available with the department, the assessee has executed an lkrarnama with Sh. Balu Ram Jat S/o Shri Ghasiram Sh. Radhey Shyam Yadav S/o Bholaram Yadav for sale of agriculture land measuring 6 bigha 5.70 biswas Khasara situated at No.96, Mandaganj, Kishangarh (Ajmer) on 01.10.2008. As per Ikrarnarna, the actual sale consideration was ₹ 2,71,00,000/- (Rupees Two Crore and Seventy One Lakhs) which includes cash of ₹ 50 lakhs and ₹ 221 lakhs received through post dated cheques serial No. 213745-213749. This Ikrarnama was duly signed by buyer, seller and witness and was also notarized. 2. Further, it has came to notice that the assessee has not disclosed sale consideration of ₹ 2,71,00,000/- in its return of income. Therefore, notice u/s 148 was issued on 06.10.2015 after obtaining prior approval of the Pr. Commissioner of Income Tax-1, Jaipur. The notice was duly served upon the assessee on 06.10.2015. The A/R of the assessee has filed his written submission on 06.11.2015 alongwith revised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which remain unexplained and to that extent, the income of the assessee has escaped assessment. During the course of assessment proceedings, the matter was examined by the Assessing officer wherein the assessee submitted that no such agreement was entered into and even a complaint has been lodged with the Stamp authorities regarding evasion of stamp duty and on investigation, an order dated 22.06.2016 has been passed by Collector (Stamps) wherein the said agreement was found to be fake. A copy of said order dated 22.06.2016 was filed before the Assessing officer and in turn, the Assessing officer also enquired from DIG stamps about the veracity of such assertion made by the assessee and passing of such an order which was duly confirmed by the DIG Stamps. The Assessing officer has thereafter recording a specific finding in the assessment order which reads as under: During the course of assessment proceedings, it is noticed that the Sub registrar, Kishangarh has made a reference to the Collector (Stamps), Ajmer on the basis of agreement as discussed above. The Collector (Stamps), Ajmer has passed order in case no. 516/2011 dated 22/06/2016 by quashing the reference made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of deposits in the bank account maintained by the assessee, we find that this was again one of the reasons to reopen the case of the assessee u/s 147 and thereafter, during the course of assessment proceedings, the matter was examined by the Assessing officer wherein the assessee was asked to explain the source of such deposits, further statement of the person whom the assessee claim to have received the amount were also recorded and these persons also filed affidavits before the Assessing officer. Taking all these explanation and documentation into consideration, the Assessing officer has recorded his findings in the assessment order which reads as under:- Further, the assessee was asked to explain sources of these cash deposits in his bank accounts. In compliance, the assessee has submitted that he has deposited ₹ 35,10,000/- in cash and the remaining amount of ₹ 15,00,198/- through cheques. The deposits made through cheques have been verified from the details, evidences etc. as submitted by the AIR of the assessee during the course of assessment proceedings on test check basis. Further, during the course of assessment proceedings, the assessee on 26/10/15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isite steps in terms of calling for the explanation of the assessee, examining the bank statements, calling for statements of the persons and also taking into consideration the affidavits filed by these persons and thereafter, has come to a finding that out of total deposits, an amount of ₹ 2.99 lacs remains unexplained and the same was brought to tax in the hands of the assessee. The ld CIT has referred to certain inconsistencies in the statements and the affidavits so filed and has held that the AO has failed to make further enquiries in the matter and to that extent, the order of the AO is erroneous and prejudicial in nature. However, what further enquiries are required in the matter have not been spelt out by the ld CIT when the explanation of the assessee, the statements and affidavits of the person from whom the assessee claims to have received the money is on record. In such a situation, where enquiries have already been made by the AO and all material is on record, the ld CIT should come with a definite finding instead of remanding the matter to the Assessing officer for fresh adjudication. In this regard, we refer to the decision of the Coordinate Bench in case of M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rror or mistake made by the Assessing Officer, making the order unsustainable in law. In some cases possibly though rarely, the Commissioner of Income Tax can also show and establish that the facts on record or inference drawn from facts on record as per se justified and mandated further enquiry or investigation but the Assessing Officer had erroneously not undertaken the same. However, the said finding must be clear, unambiguous and not debatable. The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries whether a finding that the order is erroneous. Finding that the order is erroneous is a condition or requirement which must be satisfied for exercise of jurisdiction under section 263 of the Act. In such matters, to remand the matter/ issue to the Assessing Officer would imply and mean the Commissioner of Income Tax has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question. We would also like to state that this explanation cannot override the interpretation provided by the Hon ble Delhi High Court and if that be the case then the ld. Pr. CIT can find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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