TMI Blog2022 (8) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. Pr. CIT would clearly show that no enquiry has been done nor caused to be done as required u/s. 263(1) of the Act by the ld. Pr. CIT before setting aside the assessment order passed u/s. 143(3) of the Act and directing the AO to examine the issue. In fact, the direction of the ld. Pr.CIT, directing the AO to examine the issue of the deposit of the specified bank notes, is nothing but a direction for re-examination of an already examined issue. This is not permissible under the provisions of Section 263 of the Act. In the instant case, the assessee has categorically shown and proved that the specified bank notes have been deposited and is out of its cash book. This has not been refuted by the ld. Pr. CIT but only an allegation has been made that the cash balance as on 08.11.2016 has not been verified. This being so, order passed u/s. 263 of the Act by the ld. Pr. CIT stands quashed. Decided in favour of assessee. - Shri George Mathan, Judicial Member And Shri Arun Khodpia, Accountant Member For the Assessee : Shri S.K.Sarangi, Advocate. For the Revenue : Shri M.K.Gautam, CIT-DR. ORDER PER BENCH : This is an appeal filed by the assessee against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. It was the submission that the AO had verified the details of the cash book and found that the assessee had more than Rs. 23 lakhs as on 8.11.2016 and it was sufficient to explain the cash deposit. It was the submission that in the reply to the show cause notice the assessee had categorically explained the deposit in cash in the bank account from the cash book of the assessee. It was also shown that there was no increase in the turnover of the assessee during the relevant period. However, the ld. Pr. CIT without considering the explanation of the assessee proceeded to hold that the AO did not examine the opening balance as on 08.11.2016 and passed an order u/s. 263 of the Act directing the AO to examine the issues of the cash deposit of the specified bank notes again. It was the submission that the issue having already examined by the AO, no question arises for revision of the assessment order passed u/s. 143(3) of the Act. The ld. AR of the assessee submitted that the order passed u/s. 263 of the Act is liable to be quashed. 3. In reply, ld.CIT-DR submitted that this is a case of lack of enquiry by the ld.AO. It was the submission that two bank accounts were considered. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT is right in invoking his power u/s. 263 of the Act. He also relied upon the decision of the Hon ble Madhya Pradesh High Court in the case of Deepak Kumar Garg, reported in [2008] 299 ITR 435 (Madhya Pradesh) to submit that it was clear that the AO had only done a semblance of enquiry and, that too, in a very slipshod manner and Assessing Officer had accepted version of assessee without proper enquiry. It was the submission that in such case also the Pr. Commissioner was right in invoking his powers u/s. 263 of the Act as the order has become erroneous and prejudicial to the interest of revenue. To the similar effect, ld.CIT-DR relied on the decision of Rajasthan High Court in the case of Renu Gupta, reported in 301 ITR 45 (Rajasthan). It was the submission that on account of non-application of mind, lack of enquiry on the part of the AO, the order passed u/s. 263 of the Act by the ld. Pr.CIT, is liable to be upheld. 4. In reply to the above submission of the ld. CIT-DR, the ld. AR placed before the decision of the Hon ble Jurisdictional High Court of Orissa in the case of Orissa State Police Housing Welfare Corporation Ltd., reported in [2022] 139 taxmann.com 207 (Orissa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 143(3) of the Act the AO had examined the issue of the Specified Bank Notes on the basis of the information available at that point. Fresh information in the form of Section 133(6) of the Act was received by the AO from the Banks. A perusal of the order of the AO passed u/s. 143(3) of the Act shows that in the assessment order there is no discussion of the deposit of the specified bank accounts in two bank accounts. However, a perusal of the order of the ld.Pr.CIT passed u/s. 263 of the Act shows that he recognized that the AO had examined the issue of deposit of specified bank notes in the two bank accounts. He also recognized that the AO has called for the details from the assessee and has examined the issue. He also accepts that the cash book for the period from 08.11.2016 to 31.12.2016 was before the AO. This being so, it would be the interesting to read para 6.3 of the order of the ld. Pr. CIT wherein he has rejected the explanation of the assessee by simply saying that the cash book extract on record contains transaction for the period from 8.11.2016 to 31.12.2016 and not for the whole year i.e. from 01.04.2016 to 31.03.2017. He further goes on to hold that it is not ascert ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
