TaxTMI 
TaxTMI 
2014 (11) TMI 19
X X X X Extracts X X X X
X X X X Extracts X X X X
....assessee. 2. Subsequently notice under Section 263 of the Act was issued by the Commissioner of Income Tax, Delhi-XIII. The relevant portion of the notice is reproduced below:- "On perusal of the assessment record and the assessment order dated 20.08.2010 for the assessment year 2008-09 at NIL income which was also the returned income in your case, it is found that assessment made u/s 143(3) is erroneous in so far as prejudicial to the interest of revenue as the Assessing Officer has while framing the assessment neglected glaring and prima facie issues and material before him without making due inquiries and rather framed the assessment on the basis of partial and technical compliance ignoring the substance of the issue before him which clearly goes against the framing of such order. 2. On examination of assessment record, it is found that the Assessing Officer did not verify the following issues:- (i) The Assessing Officer had called for details in respect of addition to fixed assets during the year, amounting to Rs. 5,36,73,181/- in the first half of the F.Y. and Rs. 69,31,924/- in the second half of the F.Y., along with copies of the bills but the same are not available on r....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the assessment order under Section 143(3) of the Act. Paragraph 3 of the order passed by the Tribunal in this regard is relevant and for the sake of completeness is reproduced below:- "3. The assessee is now in appeal before us against the aforesaid findings of the ld. CIT. The ld. AR on behalf of the assessee while carrying us through page 8 to 14 of the paper book contended that during the course of assessment proceedings, the AO issued a show cause notice, seeking, inter-alia, the details of fixed assets and sources of addition to capital account of the partners. The assessee vide letter dated 26th May, 2010 submitted details of additions to fixed assets along with photocopies of bills besides confirmations of the partners towards addition to their capital to the extent of Rs. 53,36,428/- in the account of Shri Baldev Raj Makhija and Rs. 59,92,955/- in the account of Shri Praveen Makhija along with computation of income, copies of their ITR acknowledgments and copies of their respective bank accounts. Thus, the AO had made the necessary inquiries and was satisfied. It was further pointed out that the assessee submitted all the relevant details again before the CIT. Without poi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of Income Tax has filed affidavit dated 22.01.2014, in which she has stated as under:- "4. From a perusal of the record, it could not be ascertained whether any such enquiry was made from the concerned Assessing Officer who had passed the assessment order. However, there is a letter on record dated 01-03-2011 written by the A.O. to the Commissioner of Income Tax, wherein he has stated that although the then AO had called for details in respect of addition to fixed assets during the year, amounting to Rs. 5,36,73,181/- in the first half of the financial year and Rs. 69,31,924/- in the second half of the financial year, alongwith copies of bills etc. vide notice u/s 142(1) dated 21-04-2010, but the same are not available on record. Further, the AO also stated that the then AO had also not examined the addition to partner's capital accounts although the said details were specifically called for vide notice u/s 142(1) dated 26-05-2010 and that the nature and source of this capital introduced by the partners has remained unverified and unvouched and showed the malafide intention of the assessee in not furnishing the details although the same were specifically required to be furnis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....etter dated 15.03.2010, several other details including copy of income tax return for the assessment year 2008-09, financial statements, tax audit report and the statement that the assessee had four partners, along with the names of the partners had also been filed. As recorded above, these documents etc. which were missing, were filed before the Commissioner in the proceedings under Section 263 of the Act. 10. Nothing prevented or obstructed the Commissioner from ascertaining the truth and verifying the correctness of the contents of the said documents. This would have helped in identifying the cause of the missing papers. Absence or failure to properly maintain records cannot per se and by itself, would be a ground to invoke Section 263 of the Act i.e. the assessment order was erroneous and prejudicial to the interest of the revenue. Other material and evidence to show and manifest complicity and maliciousness of the assessee in question would or may satisfy the requirements. But facts should be ascertained and finding implicating and exhibiting involvement of the assessee should be elucidated and shown. 11. It is the responsibility and duty of the revenue authorities to mainta....