TMI Blog2022 (8) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... , the order of Ld. Pr.CIT (directing AO to re-verify the entries of cash deposit after giving assessee a proper opportunity of being heard) is of two fold, i.e. on the one hand it directs the AO to re-verify the matter to protect the interest of Revenue with proper justification and on the other hand it s an opportunity to the assessee also to substantiate his claim about the source of the cash deposit and its consequences thereafter. - Decided against assessee. - ITA No. 1641/Mum/2021 - - - Dated:- 23-8-2022 - Shri Kuldip Singh, Judicial Member And Shri Gagan Goyal, Accountant Member For the Appellant : None For the Respondent : Smt. Shailja Rai, CIT-DR ORDER PER GAGAN GOYAL, A.M: This appeal by the assessee is directed against the order of Ld. Principal Commissioner of Income Tax-19, Mumbai [hereinafter referred to as ( Ld. Pr.CIT) dated 22.03.2021 for the Assessment Year (AY) 2011-12. The assessee has raised the following grounds of appeal: 1. The order passed by the ld. Pr. Commissioner of Income Tax-19, Mumbai (the ld. PCIT ) u/s 263 of the Income Tax Act, 1961 ( the Act ) is invalid and bad in law without providing the appellant a reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act by issue of notices u/s. 148 dated: 26.03.2018 after recording the reasons and sent to the assessee which was duly served on the assessee. 5. Notices u/s 142(1) was issued on 17.07.2018 28.09.2018 and reminders to notice u/s. 142(1) were issued to the assessee on 18.10.2018 01.11.2018. In response to the said notices neither assessee nor authorized representative of the assessee attended and furnished any details. 6. As assessee neither attended any proceeding nor filed any explanation, AO added back cash deposit of Rs. 77,10,000/- + Rs. 11,05,000/- (2.5% of cash credit of Rs. 2.21 Cr. + cash debit of Rs. 2.21 Cr.). Actually the figure of cash debit was Rs. 2.15 Cr. As per record available on the appeal file, we have not observed any appeal assessee had filed against this order of AO passed under section 144 read with section 147 of the I.T. Act. 7. It is also observed that neither assessee nor AO had given any logic/explanation about calculation of Rs. 11, 05,000/- instead of considering the whole amount of Rs. 2.21 Cr. cash deposited in Akola Urban Co-op. Bank Ltd. Non enquiry/investigation by the AO against this cash deposit of Rs. 2.21 Cr., made Pr.CIT t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der this Act, and if he considers that any order passed therein by the [Assessing] Officer [or the Transfer Pricing Officer, as the case may be,] is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, [including,- (i) an order enhancing or modifying the assessment or cancelling the assessment and directing a fresh assessment; or (ii) an order modifying the order under section 92CA; or (iii) an order cancelling the order under section 92CA and directing a fresh order under the said section]. [Explanation 1.]-For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,- (a) an order passed on or before or after the 1st day of June, 1988] by the Assessing Officer [or the Transfer Pricing Officer, as the case may be,] shall include- (i) an order of assessment made by the Assistant Commissioner [or Deputy Commissioner] or the Income-tax Officer on the basis of the directions issued by the [Joint] Commissioner under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [(2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed.] (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, [National Tax Tribunal,] the High Court or the Supreme Court. Explanation.-In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded. 13. To further elaborate the legal position applicable to the case, we are also relying on following judicial pronouncements as having been relied upon by the Pr.CIT in his order as under: , In the case of Malabar Industrial Co. Ltd. v. CIT (2000) 243 ITR 83 (50) has been held that the pre-requisite to the exercise of jurisdiction by the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re any specific show cause notice detailing specific grounds on which revision of assessment order is tentatively being proposed affecting initiation of exercise in absence thereof or to require commissioner to confine himself to terms of notice and foreclosing consideration of any other issue or question of fact Commissioner is free to exercise his jurisdiction on consideration of all relevant facts, provided an opportunity of hearing is afforded to assessee to contest facts on basis of which he had exercised revisional jurisdiction The failure on the part of the AD to conduct the necessary enquires in the circumstances of the case makes the order erroneous and prejudicial to the interest of revenue as held in the cases of Rampayari Devi Saraogi Vs. CIT 67 ITR 54 (SC) and Tara Devi Agarwal Vs. CIT 88 ITR 323 (SC) The failure of the AD to make further enquires before accepting the submissions of the assessee makes this assessment order erroneous and prejudicial because unlike the Civil Court which is neutral to give decision on the basis of evidence produced before it, an AO is not only an adjudicator but is also an investigator. He cannot remain passive in the face of a retur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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