TaxTMI 
TaxTMI 
2015 (11) TMI 1206
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....ible view after appreciating the facts of the case and Cit cannot assume jurisdiction merely on the basis of change of opinion and as such the whole basis of proceeding u/s 263 are illegal, bad in law and without jurisdiction. 2. That impugned order is not sustainable on facts and under the law." 2. There is a delay of 277 days in filing the present appeal. The assessee has filed an application for condonation of delay along with an affidavit of a Chartered Accountant, Shri Satish Chander, explaining the reasons for delay in filing the present appeal. We have heard the rival submissions of both the parties and have perused the material on record in respect of condonation of delay. In the affidavit enclosed with the application for condonation of delay, Shri Satish Chander, CA has submitted that the order under section 263 of the Income-tax Act passed by the learned Commissioner of Income-tax (Appeals) for the concerned assessment year, was sent to him by the assessee, but said order got misplaced with other records from his office, so he could not advise the assessee. As a result, there was delay in filing the present appeal before Tribunal. Further, he submitted in the....
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.... the interest of justice, we condone the delay of 277 days in filing the present appeal. 5. The effective ground of appeal of the assessee is that the learned Commissioner of Income-tax was not justified in invoking provisions of section 263 on the alleged ground that assessment order passed u/s 143(3) is erroneous and prejudicial to the interest of the revenue, in view of the fact that the learned Assessing Officer considered all the relevant facts and has taken a reasonable and possible view after appreciating all the facts of the case. 6.1 Facts in brief are that assessee filed return of income declaring total income of Rs. 4,50,000/- on 31.11.2005. The case was selected for scrutiny and notice u/s 143(3) was issued. From the database of the Income-tax Department, the learned Assessing Officer noticed that the assessee deposited cash amounting to Rs. 32,72,480/- in his one of the saving bank account. The assessee explained that the said deposit as under: (i) Rs. 4,80,000/- was deposited out of salary received by him from M/s. Sandy Machinery & Tools Pvt. Ltd. , (ii) Rs. 9,50,000/- was deposited out of gift received from his father and (iii) Rs. 4....
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....med by the assessee in respect of gift received from his father. The AO has simply relied on the statement of the father of the assessee. The AO should have made independent enquiries into the source of the gift claimed to have been given by the father of the assesses as well as the veracity of his statement. In fact the AO hardly asked 2-3 questions 10 assessee's father and accepted his statement on the face value without asking, probing questions or making any verification. No enquiry was made nor the AO collected or called for the basic details like size, location, Khasra No. of agricultural land, nature of agricultural produce, when the shop was started, whether the father of the assessee is assessed to tax & if so whether he has shown agricultural income/ business income in his return and the extent of such income. 6.3 Secondly, as pet cash flow statement of the assessee, filed during the assessment proceedings which is made part of this order as annexure 'B', the amount of gift has been received on 01.11.2004. But, the amount of Rs. 9,50.000/- has not been deposited in to the bank account of the assessee on one single day on or after this date. Perusal of....
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....urther submitted that the statement of his father was recorded by the learned Assessing Officer and after satisfying himself about the source of the credit, he held that the amount deposited of Rs. 9.5 lacs as explained. As regards to the other amount of Rs. 4.7 lacs, also the learned Assessing Officer has duly verified the cash flow statement of the assessee and thereafter accepted the source thereof. The learned Authorised Representative further relied on the judgement of the Hon'ble Delhi High Court in the case of CIT Vs. Product Limited reported in 340 ITR 547 and in other order the Hon'ble Delhi High Court in the case of CIT Vs. Sunbeam Auto Limited [2010] 189 Taxman 436 (Del). Whereas, on the other hand, the learned Commissioner of Income-tax (Departmental Representative) relied on the order of the Hon'ble Supreme Court in the case Malabar Industrial Co. Ltd. Vs. CIT (2000) 243 ITR 83 and submitted that the order of the Assessing Officer was erroneous and also prejudicial to the interest of the Revenue and therefore the learned Commissioner of Income-tax has rightly invoked the jurisdiction u/s 263 of the Act. Further, the learned Commissioner of Income-tax (Departmental Repr....
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....icited replies and thereafter passed the assessment order. The grievance of the Commissioner was that the Assessing Officer should have made further inquires rather than accepting the explanation. Therefore, it cannot be said that it is a case of 'lack of inquiry'." 11. In view of the above findings, it is apparent that learned Commissioner of Income-tax (Appeals) cannot invoke the jurisdiction u/s 263 of the Act, merely on the ground that no adequate enquiry has been made by the Assessing Officer. In the instant case, the learned Assessing Officer has not only recorded the statement of the father of the assessee, but also satisfied himself that the source of money was duly explained, as he was running a 'Kirana Shop' and money was earned out of his activity of running of that shop. The learned Commissioner of Income-tax in para 6.2 of his order has himself admitted that the learned Assessing Officer had hardly asked 2 to 3 questions from the assessee and assessee's father explained in his statement on the face value and no enquiry was made or the called for recording of the basic details like size, location, Khasra No. of agricultural land, nature of agricultural produc....