TMI Blog2016 (8) TMI 1552X X X X Extracts X X X X X X X X Extracts X X X X ..... zed on 06.01.2012 - Further during the course of assessment proceeding Sh. Sham Lal S/o. Sh. Mohan Lal was produced and his statement was recorded on 25.11.2013 in which he has confirmed that he had entered in to a deal of sale of property with Sh. Om Parkash and Sh. Om Parkash alongwith his son Sh. Jiwan Kumar visited him with a sum for finalizing the deal of property but the same could not be finalized due to non clearance of loan. But the Pr. CIT after raising objections to the explanation of the assessee held that the assessment order is erroneous and prejudicial to the interest of the revenue. The objections reproduced in the order u/s. 263 were not confronted to the assessee and only because of this fact the reply could not be given. It is apparent that the only contention of the Pr. CIT is that the AO should have made further enquiries which has not been done according to him. Thus this is not a case of lack of enquiry and the Pr. CIT erred in assuming jurisdiction u/s. 263 merely because he has a different opinion then the AO in the matter. It is seen that the present case is not a case of lack of enquiry - enquiry was carried out by the AO. We find that in fact, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 153B(1) of the Income Tax Act, by the A.O. on 21.01.2014 at a total income of ₹ 2,54,330/-. The case of the assessee was selected for scrutiny to examine the source of cash amounting to ₹ 15,02,530/- found in the possession of the assessee on 06.01.2012 during checking by a Surveillance team deputed in connection with the Punjab State Legislative Assembly Elections, 2012. During the course of assessment proceedings, the assessee stated that he was an employee of M/s. Khoobsurat Ornaments, Mansa and the cash of ₹ 14,80,000/- belonged to the said proprietorship concern of Sh. Om Parkash and the remaining ₹ 22,530/- was business payments collected by him. The cash was taken to Patiala for purchase of a property from one Sh. Sham Lal S/o. Sh. Mohan Lal of Gian Colony, Patiala. However, the deal was not finalized and the cash was being carried back by the assessee to Mansa, when it was seized by the Surveillance Team, and subsequently, by the Income Tax Department. The ld. Pri. CIT observed that the AO accepted this version of events without inquiring whether (a) the business concern mentioned could have had that cash available in the regular course of business; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of events without inquiring whether (a) the business concern mentioned could have had that cash available in regular course of business; (b) there was any independently verifiable evidence in support of version advanced by the assessee and (c) the proprietor of Khoobsurat Jewellers had knowledge about movement of cash stated by assessee to be belonging to the said concern. ii) There is a complete absence of enquiry to verify the key elements of the version advanced by the assessee. 4. This lack of inquiry has made the assessment order erroneous and prejudicial to the interests of the Revenue. 5. In view of the above, you are hereby given an opportunity to explain as to why powers u/s. 263 of the I.T. Act, 1961 may not be exercised with reference to the above referred assessment order dated 21.01.2014 since the said order passed by the AO prima facie appears to be erroneous and prejudicial to the interest of the Revenue. 6. The case stands fixed for hearing on 28.01.2016 at 11.30 AM in my office at above stated address on which date you may enter appearance by yourself or your authorized representative. You may file written submissions alongwith any evidence on w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singla vs. Pr. CIT', 62 taxman.com 225 (Chd. Trib.) 8. Nobody appeared on behalf of the Department. 9. We have heard the contentions of the assessee and have perused the material available on record. We find that the ld. Pri. CIT has assumed jurisdiction u/s. 263 of the Act for the alleged lack of inquiry by the A.O. and held that the order of the AO is erroneous and prejudicial to the interests of the Revenue. The ld. Pri. CIT observed that Sh. Om Parkash prop, of M/s. Khubsoorat Ornaments, i.e. the father of the assessee was neither produced by the assessee nor summoned by the AO; that the agreement regarding purchase of property was not produced; that there was no power of attorney given by Sh. Om Parkash to Sh. Jiwan Kumar for purchase of property on his behalf; that no agreement to sell was produced and no part payment was made; and the AO did not examine the availability of cash in hand with M/s. Khubsoorat Ornaments. 10. From the record, it is seen that the books of account were produced before the AO ward 1(4) Mansa during the course of proceedings u/s. 132B for release of cash and also before the AO during the course of assessment proceedings. The copies of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to Pr. CIT dated 09.12.2015 recommending the release of cash (PB 20). 11. In view of the above stated facts, it is apparent that the only contention of the Pr. CIT is that the AO should have made further enquiries which has not been done according to him. Thus this is not a case of lack of enquiry and the Pr. CIT erred in assuming jurisdiction u/s. 263 merely because he has a different opinion then the AO in the matter. 12. Thus, it is seen that the present case is not a case of lack of enquiry. As discussed hereinabove, enquiry was carried out by the AO. We find that in fact, the ld. Pri. CIT has substituted its opinion for the opinion of the AO by repraising evidence on record, as has rightly been contended on behalf of the assessee. 13. In the case of 'CIT vs. Indo German Fab' (supra), it has been held that section 263 of the Act confers power to examine an assessment order so as to ascertain whether it is erroneous and prejudicial to the interests of the Revenue, but does not confer jurisdiction upon the CIT to substitute his opinion for the opinion of the Assessing Officer. 14. In 'CIT' Deepak Mittal', 324 ITR 411 (P H), it has been held t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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