TMI Blog2022 (5) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... mes erroneous simply because such an inquiry has not been made and not because there is anything wrong with the order if all the facts stated therein are assumed to be correct. In the said judgment, Hon ble Delhi High Court has referred to earlier decisions of the Hon ble Supreme Court in the case of Rampyari Devi Saraogi [ 1967 (5) TMI 10 - SUPREME COURT] and Tara Devi Aggrawal [ 1972 (11) TMI 2 - SUPREME COURT] wherein it has been held that where the A.O has accepted a particular contention/issue without any inquiry or evidence whatsoever, the order is erroneous and prejudicial to the interests of the Revenue. The aforesaid observation has to be understood in the light of the present case, where the A.O has not conducted any inquiry or examined the said 7/12 extracts which were in front of him. Therefore, this case has to be seen differently from the case where the A.O has conducted inquiry but the findings were erroneous. In the present facts it s a case of lack of inquiry by the A.O and not inadequate inquiry. CIT was justified in assuming revisionary jurisdiction and passing an order u/s 263 of the Act which is hereby upheld. - Decided against assessee. - ITA No. 176/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01 Watermelon 2966410 02 Cotton 468782 03 Onion 510350 04 Banana 2185790 05 Vegetable 2500560 06 Urid Mung 403910 07 Chana 309700 Total 93,45,502 In support of the above crop-wise break-up of receipts, you have furnished copy of 7/12 extracts same are available on record. On perusal of the same, it is found that during the year under consideration there is no record of cultivation of watermelon, vegetable and chana (gram) at pikperauttara of the 7/12 extract of the land held by you. Thus, the alleged aggregate receipts amounting to Rs. 57,76,670/- on account of sale of watermelon, vegetable and chana ram is not genuine as the source thereof is not disclosed which leads towards the facts that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vegetable 2500560 06 Urid Mung 403910 07 Chana 309700 Total 93,45,502 In support of the above crop-wise break up of receipts, you have furnished copy of 7/12 extracts and same are available on record. O perusal of the same, it is found that during the year under consideration there is no record of cultivation of watermelon, vegetable and chana (gram) at pikperauttara of the 7/12 extract of the land held by you. Thus, the alleged aggregate receipts amounting to Rs. 57,76,670/- on account of sale of watermelon, vegetable and chana (gram) is not genuine as the source thereof is not disclosed which leads towards the facts that the aforesaid receipts incorporation amounting to Rs. 24,89,944/- (5776670 x 25/38) is nothing but your own income earned from unexplained sources. However from the assessment record it is noticed that the then AO, while framing the assessment order, had made addition on this account to the extent of Rs. 7,03,160/- only. However the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 7/12 extracts. In such circumstances, the A.O should have inquired into details regarding receipts of Rs. 57,76,670/- on account of sale of such watermelon, vegetables and chana. That even before us also, at the time of hearing, the ld. A.R submitted that they have not submitted any details regarding this fact before the A.O., which the ld. P. CIT has brought out in his order passed u/s 263 of the Act. That on perusal of the assessment order, we do not find any reference to this fact of 7/12 extracts as brought out by the ld. Pr. CIT in his order u/s 263 of the Act. Therefore, the A.O has failed to conduct proper inquiry regarding the issue of agricultural income of the assessee. That inspite of 7/12 extracts being in his possession, it is pertinent fact that when certain crops and fruits were not present in the record of cultivation then the sales receipts in respect of those said crops and fruits cannot be held to be from such source. 7. In Gee Vee Enterprises Vs. Addl. CIT 1975 CTR (Del) 61, it was held that it is not necessary for the CIT to make further inquiries before cancelling the assessment order of the ITO. The CIT can regard the order as erroneous on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 result of the inquiry, he may come in possession of new material and he would be entitled to take the new material into account. If the material, which was not available to the ITO at the time he made the assessment, could thus be taken into consideration by the CIT after holding an enquiry, there is no reason why the material which has already come on record, though subsequent to the making of the assessment, cannot be taken into consideration by him. Moreover, in view of the clear words used in clause (b) of the explanation to Sec. 263(1), it has to be held that while calling for and examining the record of any proceeding u/s.263(1), it is and it was open to the CIT, not only to consider the record of that proceeding but also the record relating to that proceeding available to him at the time of examination ..... . 12. That it is a clear cut rationale which has been upheld by various judicial pronouncements that the ld. CIT can resort to revisionary jurisdiction u/s 263 of the Act if he considers that any order passed by the A.O is erroneous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and function of the ITO is very different from that of the Civil Court. The Civil Court is neutral. It simply gives decision on the basis of pleadings and evidences which comes before it. The I.T.O is not only an adjudicator but also an investigator. It is his duty to ascertain the truth of the facts stated in the return where the circumstances of the case are such as to provoke an inquiry. It is incumbent on the part of the ITO to further investigate the facts stated in the return which if not done then with the words erroneous in sec. 263 shall include the failure to make such an inquiry. The order becomes erroneous simply because such an inquiry has not been made and not because there is anything wrong with the order if all the facts stated therein are assumed to be correct. In the said judgment, Hon ble Delhi High Court has referred to earlier decisions of the Hon ble Supreme Court in the case of Rampyari Devi Saraogi Vs. CIT (1968) 67 ITR 84 (SC) and Tara Devi Aggrawal Vs. CITY (1973) 88 ITR 323 (SC) wherein it has been held that where the A.O has accepted a particular contention/issue without any inquiry or evidence whatsoever, the order is erroneous and prejudicial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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