TMI Blog2023 (4) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... MEMBER For the Revenue : Shri Gagan Tiwari, Advocate For the Assessee : Shri P. K. Mishra, CIT.D.R. ORDER PER Ms. MADHUMITA ROY - JM : The instant appeal filed by the assessee is directed against the order dated 25.02.2022 passed by the PCIT-1, Bhopal (M.P.) (hereinafter referred to as PCIT) ) under Section 263 of the Income-Tax Act, 1961 (hereinafter referred to as the Act ) arising out of the order dated 29.11.2019 passed by the DCIT/ACIT-5(1), Bhopal (hereinafter referred to as Ld. AO ) under Section 143(3) of the Act for Assessment Year 2017-18. 2. We have heard the rival submissions made by the respective parties and we have also perused the relevant materials available on record. 3. The assessee filed her return of income for A.Y. 2017-18 on 07.11.2017 declaring her total income at Rs.74,230/-. The case was selected for limited scrutiny under Section 143(3) of the Act under CASS and notice under Section 143(2) of the Act was served upon the assessee by email through ITBA Portal on 25.09.2018. The reason for limited scrutiny under CASS was large value cash deposits during demonetization as compared to return of income. Notice under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord by the assessee before the Ld. AO by filing the relevant orders passed by the different judicial forums. The same is also filed before us by way of paper book on 02.01.2013, appearing from page Nos. 1 to 30 of the same. In that view of the matter, it was the case made out by the assessee that as the land deal remained disputed and the matter is subjudice, the cash was kept with herself during the pendency of the court proceedings and the same cash was deposited by her during demonetization. All other relevant documents including the copy of the agreement was also filed before the Ld. AO during the scrutiny assessment and having regard to the facts and circumstances of the case, particularly, the order passed by different judicial forums, the Ld. AO accepted the plea taken by the assessee and further accepted the return of income filed by the assessee. On the other hand, the cash kept by the assessee at home idle for more than eight years was not found to be viable particularly when the assessee has been depositing cash in bank on a regular year to year basis in F.Y. 2014-15 2015-16 and therefore, the Ld. PCIT proposed to initiate the proceedings under Section 263 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a sum of Rs 10.58,500/- in cash in proportion to her share in land being sold. The AR of the assessee has further submitted that the land deal got disputed between the sellers and the buyer and the matter is subjudice. Since the land deat did not materialize therefore the assessco had kept the cash with herself during the pendency of the court proceedings and the same cash was deposited by her during demonetization The assessee has furnished copy of agreement to sale and the relevant court order in support of the claim of the property dispute. These submissions of the assessee are placed on record 7. The submission of the assessee was considered and found satisfactory. In view of the above the returned total income of the assessee is assessed u/s 143(3) of the Income Tax Act, 1961, for AY 2017-18 is as under: S. No. Particulars of Income Income 1 Returned total income of the assessee Rs: 74,230 2 Assessed total income of the assessee Rs. 74,230/ Assessed us 143(3) of the Income Tax Act, 1961 as above. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same has been passed without making enquiries or verification which should have been made. In our view, it is the responsibility of the Ld Pr. CIT to show that the enquiries or verification conducted by the AO was not in accordance with the enquries or verification that would have been carried out by a prudent officer. Hence, in our view, the question as to whether the amendment brought in by way of Explanation 2(a) shall have retrospective or prospective application shall not be relevant. 7. We note that the said amendment gives power to the Ld. PCIT to see as to whether the Ld. AO has passed order upon carrying out enquiries or verification which a reasonable and a prudent officer would have carried out but the explanation did not confer a special or unfettered right and/or power in the hands of the PCIT to revise each and every order according to his whims and fancies alleging the order passed by the Ld. AO is being passed without making enquiry or verification which ought to have been made by a prudent officer. Rather the statutory duty, on the other hand, cast upon the PCIT is to show distinctly that the same has not been conducted properly by the Ld. AO which, in our co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eadnote) : The phrase 'prejudicial to the interests of the revenue1 has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue; or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue, unless the view taken by the Income-tax Officer is unsustainable in law. 25. Applying the aforesaid tests to the facts of the case it is not possible to uphold the order of the Tribunal as regards jurisdiction after considering the law enunciated by the Apex Court. The Assessing Officer after making due inquiries, as noted hereinbefore, adopted one view and granted partial relief under section 80-1 of the Act. The Commissioner of Income-tax takes a different view of the matter. However, that would not be sufficient to permit the Commissioner of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y proceeding, particularly, in regard to the issue raised by the Ld. PCIT in the order impugned. Upon making the exhaustive enquiry and excessive documents so placed by the assessee before the Ld. AO, the return of income filed by the assessee has been accepted. We would like to mention that though the PCIT sought to justify his point of view in holding the order passed by the Ld. AO erroneous so as to prejudicial to the interest of the Revenue due to lack of enquiry, such finding is totally found to be non-applicability of mind and a colorable exercise of power by the PCIT. We find that in this case proper and adequate enquiry has been conducted by the Ld. AO in regard to the entire aspect of the matter, particularly, the Court case relating to the dispute on the land and the orders passed by different judicial forums and upon adequate examination of the records placed by the assessee, the assessment was completed. Simply because the money was deposited during demonetization the same cannot lead to the conclusion of having any ingenuine plea of the assessee as narrated above. Thus, the order passed by the Ld. PCIT quashing the order passed by the Ld. AO holding it erroneous and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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