TaxTMI 
TaxTMI 
2014 (1) TMI 1746
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.... 2. Whether the Ld. CIT was justified to assume jurisdiction u/s 263 particularly when the assessment was completed u/s 153 A/C read with Sec. 143(3) based upon the seized/impounded material and based upon the disclosure statement. 3. Whether the Ld. CIT was justified to review the assessment/for further verification under the garb of section 263 on the ground of lack of enquiry/when the Ld. AO took a fair and reasonable view on the seized/impounded document/papers and appraisal report etc. 4. Whether the Ld. CIT was justified by exercising the power and passing the order u/s 263 on the premise that seized/impounded documents were not properly examined from the angle of investment and violation of section 40(A)3 despite the fact that the same were very much examined as appears from the Assessment Order/and various submissions. 4. In addition to above, the assessee has moved an application dt 22.6.2013 for admission of following additional ground:- Whether the Ld. CIT(A) was justified by assuming jurisdiction u/s 263 in setting aside the assessment order u/s 263 without any firm and final finding. 5. Both the parties were heard for admission of this additional ground. 6. Af....
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....sessee was incomplete as the complete explanation of the assessee company was not available on each and every documents seized/impounded during search/survey operation and, therefore, fresh notice u/s 143(2) read with section 142(1) was issued on 16.6.2009. Later on, again various adjournments were sought and some information was filed but generally there was non cooperation, therefore, ultimately the Assessing Officer went on to make an assessment u/s 144. The assessment was completed on 30.12.2009 by making the following observations in para 16 of the assessment order. "16. From the facts adduced above, it is evident that the document seized/impounded remained unexplained and unverifiable and as such the transactions recorded in these documents are required to be added to the income returned. However, to be fair and reasonable, the undersigned is of the view that the assessment at the surrendered amount of Rs. 8,50,00,000/- will meet the end of justice. Therefore the income of the assessee, for the A.Y. 2008-09 under consideration, is assessed at Rs. 8,50,00,000/- as surrendered by the assessee company u/s u/s 132(4) of the I.T. Act during search operation on 21.02.2008 and su....
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.... the seized material and conducting proper enquiry and after affording and opportunity of being heard to the assessee. 10. Before us, Ld. Counsel for the assessee narrated the facts and pointed out that in this case the Assessing Officer had sent a proposal for passing of Revisionary Order u/s 263 to the Commissioner through Addl. CIT. The careful reading of the proposal would show that Assessing Officer wants to review his own order which is not possible. In this regard he referred to page 4 of the proposal and pointed out that Assessing Officer has noted the facts and in case Assessing Officer has committed a mistake he has no authority to review his own order. He also pointed out that assessee has filed an appeal against the assessment before the CIT(A) who asked for a remand report and Assessing Officer has sent his report vide letter dated 25.8.2011, copy of which is available at pages 168 to 171 of the paper book. Reading of this letter would clearly show that whatever stand the Assessing Officer has taken before the CIT(A), he has taken a contrary stand before the Commissioner, in the proposal which further fortifies the argument that the Assessing Officer wants to review h....
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....i Rajiv Arora v. CIT-III, 131 ITD 58 (JP) wherein similar observation was made. He also referred to the decision of Hon'ble Punjab & Haryana High Court in the case of Hari Iron Trading Company v. CIT, 263 ITR 437 (P&H) wherein it was clearly held that before initiating the proceedings u/s 263, Commissioner must call for records and after examination and obtaining satisfaction, issue show cause notice. In the case before us, no satisfaction has been recorded and in this regard he relied on the decision of Hon'ble Supreme Court in the case of PVS Beedis (P) Ltd 237 ITR 13. He also referred to another decision of Chandigarh Bench of the Tribunal in the case of Jaswinder Singh v. CIT ITA No. 690/Chd/2010 (2012)/150 TTJ (Chd)(UO)33 wherein it was observed that before issuing notice, the Commissioner should call for the records and examine the same and record the satisfaction and then issue the show cause notice. He also referred to the decision of Hon'ble Madras High Court in the case of Madura Coats Ltd, Madurai v. Collector of Central Excise, Madurai & Others 1979 (4) E.L.T. (J16)(Mad.) wherein it was observed that Department while issuing show cause notice should examine ....
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....hat the order is erroneous and prejudicial to the interest of Revenue. The order only talks of the under assessment of income. In any case, in the order passed by the Commissioner, no specific finding has been given to show that assessment order is erroneous and prejudicial to the Revenue. 14. He also referred to letter dated 23.3.2009, copy of which is available from pages 80 to 84 of the paper book. He particularly invited our attention to page 83 in which explanation was given how practically the surrendered income of Rs. 8.5 crores was offered in various hands. He also referred to the letter addressed by the Assessing Officer to Addl. Commissioner of I.Tax, Range-3 (at page 131), which shows that papers were filed in case of Rupinder Singh also and that is why the Assessing Officer has taken the pain to give information to the Addl. Commissioner for taking further action which clearly shows that various replies were filed by the assessee. He also referred to pages 86 to 88 of the paper book which is copy of the letter dated 22.12.2009 in which it was clarified how some shares of property in the concerned papers found during the search did not belong to the assessee. 15. The L....
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....-law of Shri Suresh Kumar Khanna amd various documents were found at his residence also and he clearly stated that these documents belongs to Basera Realtors Pvt Ltd. This fact was admitted by Shri Suresh Kumar Khanna. Ultimately on 21.2.2008, Shri Suresh Kumar Khanna admitted the fact of the incriminating documents and offered to declare a sum of Rs. 8.5 crores in financial year 2007-08. This was further confirmed by a letter dated 21.2.2008 in which all the directors have signed and offer of surrender of Rs. 8.5 crores was reiterated. Again, the statement of Shri Suresh Kumar Khanna was recorded on 24.3.2008 in which he again confirmed the fact of surrender of Rs. 8.5 crores. Despite this surrender, the return was filed only for Rs. 3,37,85,728/-. This shows that assessee was not cooperating with the Department. When the return was filed only for Rs. 3.37 cores, the Assessing Officer should have been more vigilant to verify various documents and completed the assessment accordingly which has not been done perhaps the Assessing Officer was conscious of this fact and may be this was because of non appearance of the assessee and that is why he sent a proposal for revision of the ord....
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....e Tax 99 ITR 375 (Delhi). There is no force in the submissions that Assessing Officer has taken one of the possible view merely because Assessing Officer has made assessment at the surrendered amount. When assessee has not honoured the surrender, then the Assessing Officer was duty bound to examine all the documents and then reach to proper assessable income. He submitted that if income is assessed at surrendered amount without inquiry such order would be treated as erroneous and prejudicial to the interest of Revenue and in this regard he relied on the decision of Hon'ble Allahabad High Court in the case of Smt. Lajja Wati Singhal v. CIT 226 ITR 527 (All.). 19. The Ld. DR pointed out that there is no force in the submissions that assessee company alongwith others has already surrendered more or less the same amount which was declared during the search. This fact was stated before the Commissioner vide letter dated 5.7.2011 which is available in assessee's paper book at pages 164 to 167, wherein the details of income declared/surrendered has been given. In this regard, he referred to the details given in the Revenue's paper book at pages 2 & 3 which is details of retur....
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....early told the Ld. Counsel that in the absence of copies of the judgments, such judgments could not be considered because Tribunal library does not have those books. Even in the paper book dealing with the citations, voluminous judgments were relied upon and therefore, we asked him to point out the judgments which are relevant to the case and whatever judgments were pointed out have been considered above while recording his submissions. Further, during the course of hearing it was noticed that paper book No.1 contained many documents which were not available in the records of the Revenue. Ld. counsel had sought sometime to verify this and later on vide letter dated 15.1.2014 he has sought to withdraw the paper book and replaced the same with modified paper book which was filed on 11.10.2013 and, therefore, this paper book has been considered by us. 22. M/s Basera Realtors (P) Ltd is a Company incorporated on 15.9.2005 and is engaged in the business of real estate. The company had following directors. 1. Shri Suresh Khanna 2. Shri Rupinderdeep Singh 3. Shri Sahibit Singh 4. Shri Jai Inder Singh 23. A search was conducted at the residential premises of Shri Suresh Kumar and Shr....
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....he amount of surrender. The letter reads as under:- "(ii) Letter dated 21.02.2008 signed by S/Sh. Suresh Kumar Khanna, Sh. Rupinderdeep Singh, Sahibjit Singh & Jai Inder Singh Application for Disclosure of additional income for F.Y. 2006-07, 2007-08 under Sec 132(4) of Income Tax Act, 1961 (2006-07 and 2007-08): Today a search under Sec 132 of Income Tax Act, 1961 is conducted at our various premises (offices & residences ) which is still going on during course of search & survey at our various offices, residences, certain loose papers have been found. To Purchase peace of mind and to avoid litigation we hereby offer to disclose an additional income of Rs. 850 lacs (Rs. Eight Crore & Fifty Lac) only for the financial year 2006-07 & 2007-08 in addition to our normal income in the hands of our co. M/s Basera Realtors Pvt. Ltd. 10 Canal View South City Ludhiana. This offer of disclosure has been made subject to no penalty. This disclosure has been made without pressure and is voluntarily. Thanking You Yours faithfully For Basera Realtors (P) Ltd. Sd/- Sd/- Sd/- Sd/- Suresh Kumar Jai Inder Singh Rupinderdeep Singh Sahibjit Singh (iii) Statement dated 24.03.2....
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....or compliance of notices. The period for compliance of notice is extended to 13.11.09. 13.11.2009 Present Sh. Asim Atrey, CA and sought extension of time for compliance of notices. The period for compliance of notices is extended to 19.11.2009. 19.11.2009 Notice u/s 142(1) alongwith penalty notice u/s 271(1)(b) for 24.11.2009 issued. 24.11.2009 Assessee's request for inspection of files received. Asked to have inspection. 03.12.2009 Reply to the notices not received though the inspection of files already completed on 27.11.2009. Shown cause notice for 04.12.2009 issued. 08.12.2009 Notice u/s 143(2)/142(1) alongwith show cause notice for 11.12.2009 issued as no compliance to earlier notices received. 11.12.2009 Present Sh. Hari Om Arora, Advocate alongwith Sh. Gurpreet Singh, Advocate and Sh. Asim Attrey, CA on behalf of assessee. Reply dated 04.12.2009/11.12.2009 filed. Case discussed. During assessment proceedings, it is stated that the letters and the discussion referred to in the letter dated 11.12.2009 pertains to those letter and discussion held with my predecessor. List of stock inventory also supplied for comments and reconciliation, if any. Asked to furnish....
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....ent that the document seized/impounded remained unexplained and unverifiable and as such the transactions recorded in these documents are required to be added to the income returned. However, to be fair and reasonable, the undersigned is of the view that the assessment at the surrendered amount of Rs. 8,50,00,000/- will meet the end of justice. Therefore the income of the assessee, for the A.Y. 2008-09 under consideration, is assessed at Rs. 8,50,00,000/- as surrendered by the assessee company u/s u/s 132(4) of the I.T. Act during search operation on 21.02.2008 and subsequently, reaffirmed after a period of more than one month on 24.03.2008 as against the returned income of Rs. 3,37,85,728/-. Therefore, the balance amount of Rs. 5,12,14,272/- (8,50,00,000-3,37,85,728) is added to the income returned. Accordingly, an addition of Rs. 5,12,14,272/- is made to the income returned. Penalty proceedings u/s 271(1)(C) for furnishing inaccurate particulars of income thereby resulting in concealment of income are initiated." Later on, Assessing Officer sent a proposal to the Commissioner vide his letter dated DCIT CC-1/Ldh/263/11-12 dated 10.1.2012 for initiating action u/s 263 through the ....
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.... Reading of these decisions clearly shows that there is no bar on the proposal sent by the Assessing Officer for revision of the order. This has to be particularly seen in the context of the conduct of the assessee which clearly shows that assessee did not fully cooperated in the assessment proceedings as observed earlier. Further, the Hon'ble Patna High Court in the case of CIT v. Rita Keshri (supra) where search was conducted in the premises of the assessee but assessee did not cooperated in the assessment proceedings and ultimately assessment was completed on whatever information was available and these orders were ultimately held to be erroneous and prejudicial to the interest of Revenue. The Tribunal quashed these revisionary orders. The following observations were made from para 7 to 11, which are as under:- "7. We have perused the materials on record and considered the submissions of the learned counsel for the parties. The three items in the returns of the two assesses are in question, and have been discussed in detail in the orders of the authorities under the Act. Those are with respect to different bank accounts, their investment in shop nos. 203 and 204, and their....
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.... indicated by the learned CIT. In such a situation, the two judgments relied on by the learned counsel for the assesses are inapplicable to the facts and circumstances of the present case. The issues are indeed not concluded by findings of facts. 10. There is yet another aspect of the matter. The superior Court of quasi-judicial authority should normally act with restraint while setting aside the impugned order with a view to remit the matter to the same authority or the Court, because such an order or remand sets at naught the entire effort made till then to resolve the dispute. The function of the appellate Court is to rectify the errors and the mistakes committed in the impugned order. An order of remand can be passed under limited circumstances so that no injustice is done to any side. It is equally well-settled that the superior Court or quasi-judicial authority does not normally interfere with an order of remand where the parties will have adequate and reasonable opportunity to present their cases. In the present case, the learned CIT remitted the matter for valid reasons discussed in detail in his orders, and the learned Tribunal erred in interfering with the same for unco....
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....ssing] Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment." 27. The provision clearly shows that there is no mandate for recording of satisfaction but what is required is that if the Commissioner considers that order is erroneous in so far as the same is prejudicial to the interest of Revenue, then a show cause notice can be issued. The bare perusal of the assessment order shows that it is a case of no enquiry which itself would make the assessment order erroneous and prejudicial to the interest of Revenue and perhaps nothing else was required to be examined at this stage. However, since the Commissioner has clearly appended a note that proposal with the assessment records was examined, we have to presume that the Ld. Commissioner was after going through the assessment records and whatever material was made available before him,....
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....evenue. We find that it is not totally correct that show cause notice is totally verbatim copy of the proposal. The first two paras of the show cause notice are not there in the proposal. Similarly paras 6, 7 & 8 of the notice are also not there in the proposal. Rest of the parts seems to be verbatim copy of the proposal but here again it has to be seen that these parts basically contain all the contents of the statements recorded during the search, copy of the letter of surrender by the company, details of various documents found during the search. Now these facts have been brought to the notice of the Assessing Officer by way of proposal but even they were examined otherwise the Ld. Commissioner has to quote these documents in the same language in which they are prepared. As far as the Commissioner is concerned, before giving the direction of putting up a notice, he had recorded his satisfaction on the letter given by Addl. Commissioner itself which we have already reproduced above. Paras 6, 7 and 8 of the show cause notice reads as under:- "6. From the discussion made above, it is seen that while making assessment in your case for A.Y. 2008-09, entire seized material and vario....
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....d by the Assessing officer is erroneous in so far as it is prejudicial to the interest of Revenue. You are requested to appear before me either personally or through authorized representative in this regrd on 21.2.2012 at 2.00 p.m. Sd/- Commissioner of Income Tax, Kolkata -II, Kolkakta " The assessee filed certain replies before the Ld. Commissioner who did not agree with the same and ultimately passed the order u/s 263. On these facts the Tribunal observed that show cause notice shows that there was no reason whatsoever shown in the notice that how the assessment order was erroneous and prejudicial to the interest of the Revenue. It was also observed that though in the impugned order the Ld. Commissioner does mention few points borrowed from the Revenue audit objections on the basis of which revisionary proceedings were initiated but it was a case which shows that the Ld. Commissioner had not formed his own opinion. 31. From the above, it becomes clear that the Ld. Commissioner has not given any reasons in the show cause notice why the order was erroneous and prejudicial to the interest of the Revenue. In the case before us, the Ld. Commissioner has clearly set out the rea....
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.... 34. The Ld. Counsel for the assessee had also relied on the decision of Hon'ble Supreme Court in case of CIT v. PVS Beedies Pvt Ltd, 237 ITR 13. This case was relied for the proposition that if the Assessing officer is not authorized to act under compulsion then how senior officers of the Department like Ld. Commissioner is expected to act under the compulsion of the Assessing officer. We are afraid this is totally misplaced. In the case of PVS Beedies Pvt Ltd (supra), the short issue was involved whether reopening is possible on the basis of audit objection and the Hon'ble Supreme Court held that if internal audit party raises an objection pointing to wrong fact then reopening is possible. The judgment is very short and we are reproducing the whole judgment in this order: "These cases relate to the assessment years 1974-75 and 1975-76.The relevant accounting year ended on March 31,1974 and March 31,1975, respectively. Originally, the assessment was completed on June 21,1977. There were various other proceedings which ended in the Tribunal. The Tribunal after considering all the aspects of the cases remanded the cases back to the Income-tax Officer for passing a fresh ....
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.... extent. The above clearly show that there are no observation as mentioned by the Ld. Counsel for the assessee and we fail to understand why this case was cited before us. 35. Next case relied on is the decision of this Bench of the Tribunal in case of Jaswinder Singh v. CIT (supra). In that case the assessee was having income from own trucks and hired trucks and filed return of income. No books of accounts were produced, therefore assessment was completed u/s 144 and income was estimated. From the perusal of the assessment order the Ld. Commissioner noted that the assessee has not applied the provisions of section 40(a)(ia) for deduction of tax from some parties. The expenditure of loading and unloading was not properly examined and therefore the order was erroneous. The assessee filed appeal against this revisionary order passed u/s 263 before the Tribunal. The Tribunal quashed the order by observing that in no case revisionary order can be passed on the basis of audit objection. Further merely an assessment order cannot be called erroneous merely because in the opinion of the Ld. Commissioner percentage adopted by the Assessing officer was on lower side. The facts of this case....
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....e Hon'ble Supreme Court considered the provisions of the Act and judgment of Hon'ble High Court. Ultimately it was observed at page 62-63 of the report as under: "It, therefore, cannot be said, as contended by learned counsel for the respondent, that the correct and settled legal position, with respect to the meaning of the word "record" till June 1 ,1988, was that it meant the record which was available to the Income-tax Officer at the time of passing of the assessment order. Further, we do not think that such a narrow interpretation of the word "record" was justified, in view of the object of the provision and the nature and scope of the power conferred upon the Commissioner. The revisional power conferred on the Commissioner under section 263 is of wide amplitude. It enables the Commissioner to call for and examine the record of any proceeding under the act. It empowers the Commissioner to make or cause to be made such enquiry as he deems necessary in order to find out if any order passed by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. After examining the record and after making or causing to be made an enquiry if h....
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....ot deductible. On the basis of this proposal the Ld. Commissioner issued a show cause notice and later on after considering the submissions of the assessee directed the Assessing officer to add expenditure of cess paid by the assessee to the income of the assessee. On these facts Hon'ble High Court observed cess paid to the Green Tea Leave was already held to be allowable business expenditure by the Division Bench of the same Court in case of AFT Industries Ltd. v. CIT, and therefore revisionary order passed u/s 263 was quashed. Again we are really surprised in what sense this case can help the case of the assessee. 39. We have also considered the decision of: I Apollo Tyres Ltd v. ACIT II Empee Breweries Ltd III Mrs. Khatiza S. Oomerbhoy v. ITO 40. We have carefully perused the judgment and find that same are distinguishable on facts and these decisions have nothing common with the case of the assessee and for the sake of brevity not discussing the facts of these cases. The Ld. counsel of the assessee had also relied on the decision of Hon'ble Supreme Court in the case of Bajaj Tempo Limited v. CIT 196 ITR 192 (SC). In that case the issue was whether the assessee was ....
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....,20.03.09 etc. As per these letters, the assessee informed that the invested has been made out of the sale proceeds of land. It is further stated that an amount of Rs. 89,48,200/- was paid by the other partner having 50% share out of its own funds. The assessee company through its director Sh. Suresh Khanna also filed an affidavit certifying therein that the 50% share of investment has been made by the other partner. However, no source of investment by the other partner having 50% share was explained. Further, as stated supra, the payment of investment was made in cash in contravention of the provisions of section 40A(3) of the I.T. Act and as such, necessary disallowance were called for. This shows that the income of Rs. 6,81,06,129/- has apparently been under assessed. In view of these facts, the order of assessment dated 30.12.09 is not only erroneous but also prejudicial to the interest of revenue. Therefore, the matter is referred to your goodself for initiating necessary remedial action within the meaning of sec. 263 of the I.T. Act." 42. The above clearly shows that Assessing Officer is of the view that issue regarding section 40A(3) i.e. issue of cash payment and certain i....
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....s was reiterated by the Hon'ble Apex Court in the case of CIT v. Max India Ltd (supra) but in the case of Max India Ltd (supra) the facts were regarding allowability of deduction u/s 80HHC of the Act. The meaning of profits in section 80HHC was open to two interpretations which were amended later on by 2005 amendment and therefore, the Court observed that since Assessing Officer has taken one of the possible view, the order cannot be called erroneous and prejudicial to the interest of Revenue. But in the case before us, the issue is totally different. The Assessing Officer could not have accepted the income of Rs. 8.5 crores particularly when the assessee itself has not honoured the offer of surrender and filed return only for Rs. 3.37 cores, the Assessing Officer was duty bound to examine all the documents and then he should have determined the income accordingly. In this regard, reference may be made to the decision relied upon by the Revenue in the case of Gee Vee Enterprises (supra). In that case the Hon'ble Delhi High Court has shown the reason why Assessing Officer was duty bound to make enquiry. The following para at page 376 is relevant. "It is not necessary for t....
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....Bai 256 ITR 440 (Mad.) to show that show cause notice itself would be without jurisdiction. The Hon'ble High Court did not accept this by observing as under:- "We feel that the decision of the Madras High Court would not be of any help to the petitioner. In the said decision, the revision had been held to be invalid as the subject-matter of the revision was the same as that of the pending appeal. Therefore, it does not hold that in all cases, and, particularly where the issues in the revision are different from those in the appeal, proceedings under section 263 would be invalid during the pendency of an appeal. Mr. Bajpai, who appears for the petitioner, submits that apart from the Madras High Court decision he also relies on other grounds. All these grounds are available to him and he can incorporate the same in his reply to the impugned show cause notice. The Commissioner, after taking notice of the objections, shall pass an order in accordance with law. Our interference at this stage is not called for. The writ petition is disposed of. However, it is made clear that we have not expressed any opinion on the merits of the case. 45. In our opinion, this decision is against t....
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....ndment made with retrospective effect is that the powers under section 263 of the Commissioner shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in an appeal. Accordingly, even in respect of the aforesaid three items, the powers of the Commissioner under section 263 shall extend and shall be deemed always to have extended to them because the same had not been considered and decided in the appeal filed by the assessee. This is sufficient to answer the question which has been referred. The question referred is, therefore, answered in the negative, in favour of the Revenue and against the assessee." From the above, it becomes clear that only those matters which have been appealed against are not available for revision. The matters which have not been appealed are clearly available for Revision u/s 263. In the case before us, since the Assessing Officer has not made enquiries in respect of the documents found regarding purchase of properties and, therefore, the whole order would be available for revision. In fact, the revisionary powers have been exercised by the Ld. Commissioner for making additions u/s 40A(3) and some mo....
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.... SURESH KUMAR KHANNA Particulars A.Y. 2008-09 A.Y. 2007-08 A.Y. 2006-07 Income Declared During Search NIL NIL NIL Income Shown in Return of Income 11,24,450/- 4,21,315/- 26,81,837/- Income Assessed by A.O. 17,10,620/- 7,12,440/- 29,75,840/- REMARKS *Addition of 2,98,855/- on a/c of unexplained jewellery found during search. *Addition of 2,76,000/- on a/c of low household withdrawals. *Addition of 93,121/-on a/c of disallowance of business loss. * Addition of 1,98,000/- on a/c of low household withdrawal. *Addition of 2,94,000/- on a/c of low household withdrawals. 48. The careful reading of the above two tables show that the contention of the assessee is not correct because in the case of the Company, return was filed only for Rs. 3.37 crores. It has been submitted that in the hands of Shri Suresh Kumar Khanna, surrender has been made for Rs. 78.30 lakhs whereas Revenue has clearly showed that he has filed a return for Rs. 26,81,837/- for assessment year 2006-07 which consisted income of Rs. 27,06,542/- from share trading commission income and Rs. 10,000/- as income from other sources. This was assessed at Rs. 29,75,837/- which included....
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....of mind. We find no force in this contention. Firstly, the Ld. Counsel could not point out that which details have been filed which have not been considered. In fact, some details have been filed before us vide letter dated 3.12.2013, which reads as under:- Annexure with Pg. No. as per Proposal and SCN Reply to CIT as appears in PB Pg.No. Reply to AO Date of Agreement Square Yard and rate, valve Situation, shares in property, and one property considered several way. A-1(R-2)61-63 14-15 PB No. 49 & in Deepak Chauhan ITA No. 429&430/12 PB No. 120 16.10.06 12 Bigha @ Rs. 1.35 cr Per acre Village Jhande only 1/3 share in the hands of Deepak Chauhan A-1(R-2)39-43 16 PB No. 48 para 3 and also in Deepak Chauhan in his PB No. 120 05.10.05 4 Bigha, 8 Bigha, 16 Bigha @ Rs. 47.80 lacs Village Jhande only ½ share in the hands of the company A-1(R-2) 31-36 16-17 in Deepak Chauhan in his PB No. 119 10.11.07 3367 sq yds. Village Jhande A-1 (R-2) 48-50 15 PB No. 48 - 49 & in Deepak Chauhan ITA No. 429 & 430/12 PB No. 120 30.11.04 4840 sq yds. Village Mandiali pertain to some other person A-1 (R-2) 18-20 17-18 PB No. 48 para 2 and also in Deepak in his PB No.....
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....nbsp; 700 sq. yd. @ 7200/- per sq. yd. Sold at profit declared in income Rs. 350000/- A-24(R-2) 30-32 26-27 In Deepak PB No. 126 Unsigned agreement dt. 25.04.07 600 sq. yd. @ 9600/- At EX-85 at Ayali Kalan. From the above, nobody can make out any reconciliation. It is not clear which property belong to which person. To a specific query by the Bench, the counsel could not give any reconciliation in this respect, therefore, it become clear that these documents are not clear before us then how the Assessing Officer could have understood anything but at the same time the Assessing Officer has not examined these documents, which makes the assessment order erroneous . 50. It is wrong to say that Commissioner has not examined anything. The perusal of the Revisionary order clearly shows that Ld. Commissioner has recorded his finding at para 3 to 20 which runs into 20 pages from pages 14 to 34. The Ld. Commissioner has examined various documents found during the search and has also gone through the submissions. For the sake of brevity, we are reproducing his analysis in respect of some of the documents which are as under:- "5. As far as investment in the properti....
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....for A.Y. 2008-09 from which the property in question has been admitted as being purchased by M/s U-LIKE Promoters(P) Ltd. but fact of assessee's interest in the same has not been examined by the A.O. Assessee company is a business venture company and is not doing charity and therefore even it is admitted that above property was being purchased by M/s U-LIKE Promoters (P) Ltd., assessee would be having some interest in the form of earning some income by way of commission and in any other manner which has not been examined by the A.O. Assessee has not explained his interest and income from the aforesaid transactions made through M/s U-LIKE Promoters (P) Ltd. nor A.O. has examined the issue specially when above agreement is between various persons on the one hand and Sh. Sahibjit Singh (director of the assessee company ) and others on the other hand. Annexure No. A-1 (R-2), Page No. 39-43 According to these documents which are an agreement-cum-registry dated 05.10.2005 for land measuring 4B-8B-16B @ Rs. 47,80,000/- between Smt. Harjinder Kaur and others and Sh. Sahibjit Singh (half share) and Sh. Harinder Singh (half share) for which a biana of Rs. 13,26,000/- has been paid an....
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....ct of all the documents for the sake of brevity but the reading of the analysis of the above three documents clearly shows that Ld. Commissioner has pointed out what are the different facets which have not been examined by the Assessing Officer. 52. The Ld. Commissioner had also relied on the plethora of case laws to support his order. The Ld. counsel had filed a letter dated 19.2.2013 in which these case laws have been distinguished. We are not discussing these case laws because it is trite law that if proper enquiry has not been made then the assessment order passed by him has to be considered erroneous and prejudicial to the interest of Revenue. We have already referred to the decision of Hon'ble Delhi High Court in the case of Gee Vee Enterprises (supra). In this case, it is clearly held that if proper enquiries are not made then the assessment order would be erroneous and reliance was placed by the Court on the decision of Hon'ble Supreme Court in the case of Smt. Tara Devi Aggarwal v. CIT 88 ITR 323 (SC). The Head not reads as under:- "Where an assessee is assessed on an income voluntarily returned, it is not prejudicial to the interests of the revenue only if it i....