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TMI Blog2020 (12) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... y by 6 days. Hon'ble Allahabad High Court in the case of Ganga Sahai Ram Swarup and another vs. ITAT, 271 ITR 512 (All) held that the delay of short period should be condoned because the assessee was not going to gain anything out of it. In view of above, we condone the delay of 6 days and admit the appeal for adjudication. 3. The assessee has raised the following grounds: "1. For that the order of the forum below is arbitrary and illegal in the facts and circumstances of the case, hence liable to be quashed. 2. For that in course of assessment, AO enquired into all the issues including the issues raised by ld CIT by issuing questionnaires. After examining the details furnished and discussion with AR of the assessee, AO allowed the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there are some discrepancies in the assessment order, which rendered the order erroneous and prejudicial to the interest of the revenue. He noted the following discrepancies: i) Unsecured loan of Rs. 10,00,000/- taken from creditor Shri Pradip Mandal. ii) Rent of Rs. 80,000/- paid by the assessee to M/s. Kwality Confront Pvt Ltd., iii) Professional fees of Rs. 2,35,000/- paid in excess of Rs. 20,000/- on different dates. Therefore, the Pr. CIT on 18.7.2017, required the assesse to show cause as to why the assessment order so allowing the claim not be subjected to revision under section 263. In response to show cause notice, it was submitted by the assessee as under: i) As regards unsecured loan of Rs. 10,00,000/- from Shri Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s aspect and allowed the claim of the assessee. With regard to professional fees of Rs. 2,35,000/- paid to Advocate, ld Pr CIT was of the view that the payment was made in contravention of provisions of section 40A(3) of the Act, hence, it was to be disallowed. The AO had not examined the application of section 40A(3) of the Act on the payments of Rs. 2,35,000/-. In view of above, ld PCIT observed that the assessment order u/s.143(3) of the Act dated 29.3.2016 is erroneous and prejudicial to the interest of the revenue and set aside the assessment order and directed the AO to reframe the assessment order after proper appreciation of facts and application of law with the following directions: i) The AO is directed to examine the genuinenes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced before him, he completed the assessment. Therefore, it cannot be said that the Assessing Officer has not made any enquiry before passing the assessment order. Ld A.R. submitted that one has to keep in mind the distinction between "lack of enquiry" and " inadequate enquiry". If there was any enquiry, even inadequate that would not be by itself give occasion to Pr. CIT to pass order under section 263 of the Act, merely because he has different opinion in the matter. It is only in cases of "lack of enquiry" that such a course of action would be open. 6. Further reliance was placed on another decision of Hon'ble Delhi High Court in the case of CIT vs International Travel House Ltd., 344 ITR 554 (Del) to submit that the Pr. CIT has no val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee to produce the ledger of expenses made by the assessee on various issues including rent, rates and taxes and professional fees, therefore, the AO has raised queries on all three issues. Ld counsel further drew our attention towards pages 10 to 14 of APB and submitted that the assessee filed all relevant documents before the AO explaining all three issues, therefore, it is a clear case of adequate enquiry and merely because Pr. CIT has not agreed to the view taken by the AO, which was a sustainable view, as per the facts and circumstances of the case, the revisionary authority does not have valid jurisdiction to revise the assessment order u/s.263 of the Act. Ld counsel also placed reliance on the decision of Hon'ble Gujarat High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r copy furnished by the assessee in its book, we observe that the assessee has shown closing balance of Rs. 10,00,000/- as on 31.3.2013, meaning thereby that the entire loan of Rs. 10,00,000/- has been refunded to the loan creditor. When the loan receiving and repaying is reflected in the assessee's book, the transaction between the assessee and loan creditor is proved. Hence, it cannot be said the AO has not enquired the matter. As regards to security deposit of Rs. 80,000/- and professional fees of Rs. 2,35,000/- towards cash payment, we observe that the AO has not made proper enquiry into the matter and, therefore, the Pr. CIT is justified in directing the AO to revise the assessment order. This omission by the AO tagged the impugned ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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