TaxTMI 
TaxTMI 
2011 (1) TMI 1225
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....roceedings and was based on the submissions and after verification of necessary records. (4) For any other grounds, that may be urged at the time of hearing. The brief facts of the case are that in this case, a search and seizure proceeding was carried upon the assessee on November 5, 2004 and the assessment was completed by the Assessing Officer on December 29, 2006 for these seven assessment years which are in appeal before us. Thereafter, the learned Commissioner of Income-tax, Central, Patna issued a common show-cause notice dated September 19, 2007 under section 263 of the Income-tax Act, 1961, for all these seven assessment years. In the said notice issued by the learned Commissioner of Income-tax, Central, Patna under section 263, it was alleged that the assessee has made investments in NSCs/FDRs till the financial year 2002-03 of Rs. 1.74 crores and in addition to these, he was found to have a fleet of cars/personal vehicles. It is also alleged that purchase deeds in respect of several plots of lands were also found in the course of search. It is also alleged that the assessee owns a fleet of 50 trucks and dumpers registered in his name as well as in the names of his ....
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.... these issues which are raised by him in the proceedings under section 263 of the Act. Being aggrieved, the assessee carried the matter in appeal before the Tribunal. As per combined order of the Tribunal dated November 30, 2009, in I.T.A. Nos. 90 to 96/Pat/2009, it was held by the Tribunal that the common order of the Commissioner of Income-tax in respect of these seven years is being set aside and the issue is restored back to his file for a fresh decision in accordance with law after allowing the assessee an opportunity of being heard. It is also held by the Tribunal that the assessee has not placed a copy of questionnaire dated November 17, 2006 issued by the Assessing Officer and also a copy of the assessee's reply and, therefore, it is not possible to decide as to what was the nature and extent of enquiry/ investigation, if any, conducted by the Assessing Officer and with respect to which issues, the questionnaire was issued and since the assessee's plea is vital and goes to the root of cause, it is considered fit and proper in the interest of justice to set aside the combined order of the Commissioner of Income-tax and referred the issue back to his file with the ....
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....ter considering all these submissions and evidence, the Assessing Officer has framed the assessment orders and therefore, the assessment orders are neither erroneous nor prejudicial to the interests of the Revenue and hence the learned Commissioner of Income-tax has no jurisdiction under section 263 of the Act in the present case. Reliance was placed on the judgment of the hon'ble Delhi High Court rendered in the case of CIT v. Kelvinator of India Ltd. as reported in [2002] 256 ITR 1 ; 174 CTR 617 in support of this contention that where the Assessing Officer has enquired into an issue and being satisfied did not make any addition, there is no requirement in law to make a detailed discussion of that issue in the assessment order passed by the Assessing Officer. In support of the same contention, reliance was also placed on another judgment of the hon'ble Delhi High Court rendered in the case of CIT v. Eicher Ltd. as reported in [2007] 294 ITR 310 ; 213 CTR 57. Reliance was placed on the Tribunal decision rendered in the case of Regency Park Property and Management Services P. Ltd. v. CIT as reported in [2010] 130 TTJ (Delhi) 669 in support of this contention that if t....
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....d by him that the case of the learned Commissioner of Income-tax is that there is failure of the Assessing Officer to make necessary enquiry. It is also submitted by him that as per reply dated December 22, 2006 submitted by the assessee before the Assessing Officer as available on pages 212-228, the assessee has furnished reply for point No. 2 of the query but no reply has been furnished by the assessee with regard to point No. 1 of the questionnaire dated November 17, 2006 as appearing on page 31 of the paper book and it is pointed out that as per point No. 1 of the questionnaire, the Assessing Officer asked the assessee to furnish details of companies/ concerns/firms, etc. with whom the assessee and his family members are related with details of investment made in each company/concern/firm, etc., with date of investment, income earning there from, items dealt with that concern, copy of return and bank statement, etc. It is also submitted by him that on all these vital points, no reply is there, as per this reply dated December 22, 2006 and hence, the learned Commissioner of Income-tax is justified in holding that proper enquiry was not made by the Assessing Officer. It is also s....
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....enquiry is not proper and adequate. The judgment of the hon'ble Delhi High Court rendered in the case of CIT v. Sunbeam Auto Ltd. as reported in [2011] 332 ITR 167 ; 227 CTR 133 is first considered. The relevant paragraph of this judgment is reproduced below (page 179 of 332 ITR) : "The Assessing Officer in the assessment order is not required to give detailed reason in respect of each and every item of deduction, etc. Therefore, one has to see from the record as to whether there was application of mind before allowing the expenditure in question as revenue expenditure. Learned counsel for the assessee is right in his submission that one has to keep in mind the distinction between `lack of enquiry' and `inadequate enquiry'. If there was any inquiry even inadequate that would not by itself give occasion to the Commissioner of Income-tax to pass orders under section 263 merely because he has a different opinion in the matter. It is only in cases of `lack of enquiry' that such a course of action would be open." This shows that as per this judgment, the learned Commissioner of Income-tax will have jurisdiction under section 263 in the case of no enquiry but not....
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....o help to the Revenue in the present case. The last judgment cited by the learned Departmental representative of the Revenue is the judgment of the hon'ble Madras High Court rendered in the case of Indian Textiles [1986] 157 ITR 112. In this case, a clear finding is given by the Tribunal page 115 of 157 ITR that grant of relief by the Assessing Officer under section 35B in relation to air freight insurance and carrying of goods was without verifying the facts. In the present case, it is not a case of the learned Commissioner of Income-tax that any deduction was allowed without verifying the facts. Hence, this judgment is also of no help to the Revenue. Regarding various judgments cited and followed by the learned Commissioner of Income-tax in his order under section 263, it was the claim of the learned authorised representative of the assessee that these judgments are not applicable in the present case because facts are different. It has been submitted that in these cases, no enquiry was made by the Assessing Officer. In the present case also, we will examine on each point as to whether enquiry was made by the Assessing Officer or not. We feel that if it is found that no ....
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....006, as available on page 212 of the paper book, it has been submitted by the assessee before the Assessing Officer that on both the issues, i.e., whether the partnership firm M/s. Ramakant Singh is genuine or not and regarding investment made in the said partnership firm, the detailed reply with supporting documents have been furnished in the case of the partnership firm M/s. Ramakant Singh on December 21, 2006 and it was requested to accept those submissions in the case of M/s. Ramakant Singh in the present case also. The Assessing Officer in both these cases, i.e., in the case of the assessee and in the case of partnership firm is same and the proceedings were going on simultaneously and on the same date Decem ber 29, 2006, the same Assessing Officer passed the assessment order in the case of this assessee as well as in the case of M/s. Ramakant Singh partnership firm. We have also heard the appeals of that partnership firm M/s. Ramakant Singh on December 16, 2010 and on page 1 of the paper book filed by the assessee in the case of M/s. Ramakant Singh, the said letter dated December 21, 2006 is available as per which the assessee has explained the details of security deposit and....
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.... with regard to investment in these companies/concerns. Hence, the action of the learned Commissioner of Income-tax under section 263 is not justified on this account also in view of the legal position discussed above. (c) The third allegation of the learned Commissioner of Income-tax is that as per seized documents, there was investment of Rs. 178.61 lakhs in NSCs but as per the records, the assessee has made investment of only Rs. 138.22 lakhs in NSCs and hence, the balance amount of investment in NSC of Rs. 53.46 lakhs was not properly explained by the assessee and the Assessing Officer has failed to make any addition on account of the same as well as on account of interest on NSCs. On this aspect, we find that a query was raised by the Assessing Officer as per questionnaire dated November 17, 2006 and the assessee was asked by the Assessing Officer to furnish the details of investments with source thereof along with maturity value, etc. In reply, as per written submission dated December 22, 2006, copy of which is available on pages 212-228 of the paper book, it was explained by the assessee that the balance amount of NSC of Rs. 53.46 lakhs was purchased by the Hindu undivide....
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....were having loading capacity of 10 tons which does, not fall under heavy goods vehicle category but it is observed by the learned Commissioner of Income-tax that the authorised representative failed to show as to how the trucks owned by the assessee does not fall under the heavy goods vehicle as defined in section 2 of Motor Vehicles Act, 1988. When the assessee has explained that the trucks in questions were having 10 tonns capacity, it was required on the part of the learned Commissioner of Income-tax to find out as to whether this contention of the assessee is not correct in the light of material available on record suggesting that the carrying capacity of the trucks was more or to point out that as per section 2 of the Motor Vehicles Act, 1988, the truck having capacity of 10 tonns falls within the definition of "heavy goods vehicle". Since, it was not done by the learned Commissioner of Income-tax, we are of the considered opinion that there was no material available on record even after search indicating that the vehicles in question were "heavy goods vehicle" liable to be assessed at the higher rate of income per month per vehicle and in the absence of that the assessment or....