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2014 (10) TMI 1005 - AT - Income TaxRevision u/s 263 - merger of an order with appellate order - independent enquiries made by the AO or not - Failure of the AO to make the addition on the basis of the statement - non genuine unsecured loans - HELD THAT - It is not a case where it can be said that the assessing officer has not examined the issue relating to the addition of ₹ 4.5 crores as well as land dealing. If the assessing officer has taken a concious view after appreciating the evidences, documents, papers found during the course of search, the order passed by the assessing officer in our opinion cannot become erroneous merely that it is not in accordance with the whims and fancies of the CIT or addition has not been made as the CIT feel appropriate. It is not the case of the revenue that the view taken by the assessing officer was unsustainable in law. This is also an undisputed fact that against this addition, the assessee went in appeal before the CIT(A) and CIT(A) has duly considered this issue in his order the copy of which is placed before us in the paper book. The order of the assessing officer to that extent got merged with the order of the CIT(A) and therefore the CIT in view the explanation (c) to section 263 does not have any jurisdiction to revise the assessment on this issue. Failure of the assessing officer to make the addition on the basis of the statement 20.8.2008 - HELD THAT - The assessing officer after examining the statement of the assessee did not prefer to make the addition. The income has been surrendered by the assessee on the basis of the documents found and seized during the course of the search as is apparent from the computation statement of income on the basis of which the returns have been filed by the assessee in response to notices issued u/s 153A, the copy of which we pursued and placed before us in the paper book filed before us. On this basis it cannot be said that additions of ₹ 4 crores were not surrendered by the assessee. In fact, the assessee made the disclosure in all these years much more than ₹ 4 crores. Therefore on this issue also in our opinion the order passed by the assessing officer cannot be regarded to be erroneous and prejudicial to the interest of the revenue. Surrender of income - non genuine unsecured loans appearing in the balance sheet - HELD THAT - There is proper application of mind on the part of the assessing officer but CIT did not appreciated the fact properly and correctly and remained under the incorrect assumption as if addition of ₹ 25,00,000/- was not made. On this basis the order passed by the assessing officer cannot be regarded to be erroneous and pre-judicial to the interest of the revenue. Loan taken from M/s Shikhar builders - HELD THAT - Issue has duly been discussed and examined by the assessing officer and after discussing, he came to the conclusion that this loan is genuine one. This is included within the sum of ₹ 1.11 lacs as mentioned in the preceding paragraph. This cannot be regarded to be a case where no enquiry has been conducted by the AO and thus there is no error in our opinion in the order of the assessing officer giving the jurisdiction to the CIT u/s 263. DR even though vehemently supported the order of the CIT but could not convince us whether the view taken by AO is unsustainable in law. Payment made to sukhram in cash - HELD THAT - The assessee has duly disclosed undisclosed income in the A.Y.2008-09 to the extent of ₹ 1800000/- in addition to the other undisclosed income in different assessment years, as enumerated by us in the preceding paragraphs and which we verified, the income so disclosed is sufficient to cover these declarations and in our opinion also there was no need to make further addition once the assessee has duly declared the income more than what he surrendered during the course of search in this regard. On the basis of this fact it cannot be said that the order passed by the assessing officer is erroneous and prejudicial to the interest of the revenue. It is not the case of the revenue that the assessee has not surrendered additional income during the assessment year 2008-09. Where the A.O. do not agree with the Assessee, he should discuss the same in the Assessment Order so that the assessee should know the reasons thereof and file the appeal. In this case the A.O. after examining the issues, on some points preferred not to make the addition. Therefore, in our opinion, there is no error in the order of the A.O if he has not discussed the issue relating to each every income which is surrendered by the assessee in the return, in the Assessment Order. It is only the queries raised by the A.O. and the submissions made by the assessee will speak of whether the A.O. has applied his mind or not. It is not the case of the revenue that the statement recorded during the course of the search were not looked into by the assessing officer during the course of the assessment proceedings. The assessing officer has duly examined the statements given by the assessee as is apparent from the assessment order in the case of the assessee while completing the assessment. In view of various decisions as discuss by us in the preceeding paragraphs and finding given by us, we are of the view that the CIT was not correct in law in exercising the jurisdiction u/s 263, and cancelling the assessment and accordingly we quash the order passed u/s 263. - Decided in favour of assessee.
Issues Involved:
1. Validity of the order passed under Section 263 of the Income Tax Act. 2. Examination of the issues raised by the CIT regarding the assessment order. 3. Merger of the assessment order with the appellate order. 4. Adequacy of inquiry conducted by the Assessing Officer (AO). Issue-wise Detailed Analysis: 1. Validity of the Order Passed Under Section 263 of the Income Tax Act: The appeals were filed by the assessee against the order of the CIT, which was passed under Section 263, cancelling the assessment orders for the assessment years 2003-04 to 2009-10. The CIT considered the assessment orders erroneous and prejudicial to the interest of the revenue. The CIT directed the AO to reframe the assessments after examining the issues afresh. The Tribunal examined whether the CIT had valid grounds to invoke Section 263, which requires the order to be both erroneous and prejudicial to the interest of the revenue. 2. Examination of the Issues Raised by the CIT Regarding the Assessment Order: The CIT raised multiple issues based on the statement recorded during the search and seizure operation. The CIT argued that the AO failed to make adequate additions based on the assessee's admissions during the search. The issues included: - Non-addition of Rs. 4.50 crores admitted by the assessee. - Non-addition of Rs. 4 crores related to various transactions recorded in seized diaries. - Non-addition of Rs. 1.11 crores shown as loans but admitted as undisclosed income. - Non-addition of Rs. 10 lakhs from M/s Shikhar Builders. - Non-addition of Rs. 3 lakhs paid to Sh. Sukhram and other cash transactions. The Tribunal found that the AO had examined each issue in detail during the assessment proceedings. The AO made additions where necessary and accepted the assessee's explanations in other instances. The AO's decision was based on a thorough examination of the seized documents and statements. 3. Merger of the Assessment Order with the Appellate Order: The CIT argued that the issues raised in the Section 263 order were not subject to the appellate order, and thus, the CIT had jurisdiction to revise the assessment. The Tribunal, however, found that the issues considered by the CIT were already examined by the AO and were part of the appeal before the CIT(A). The Tribunal cited the principle of merger, stating that the AO's order merges with the appellate order to the extent of issues considered and decided by the appellate authority. Therefore, the CIT did not have jurisdiction to revise those issues. 4. Adequacy of Inquiry Conducted by the Assessing Officer (AO): The Tribunal emphasized that the AO had conducted a detailed inquiry into the issues raised by the CIT. The AO examined the seized documents, statements, and other evidence before making his decisions. The Tribunal noted that an order cannot be termed erroneous merely because it is not written elaborately or because the CIT has a different opinion. The AO's view, if plausible and based on a thorough inquiry, cannot be considered erroneous or prejudicial to the interest of the revenue. Conclusion: The Tribunal concluded that the CIT's invocation of Section 263 was not justified as the AO had conducted a proper inquiry and made a reasoned decision. The Tribunal quashed the order passed under Section 263, thereby allowing the appeals filed by the assessee for all the assessment years. The Tribunal emphasized that the CIT cannot substitute his judgment for that of the AO unless the AO's view is unsustainable in law.
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