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Showing 1 to 20 of 1427 Records
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2023 (12) TMI 1427
Validity of order passed u/s 148A(d) as petitioner was not granted a personal hearing before the impugned order was issued - HELD THAT:- Petitioner is correct in submitting that if only a personal hearing was granted, perhaps the impugned order under Section 148A(d) would not have been passed.
In the circumstances, without going into the merits of the matter and keeping open the rights and contentions of the parties, the impugned order issued u/s 148A(d) is hereby quashed and set aside. The matter is remanded for denovo consideration to the Faceless Assessing Officer (FAO).
FAO shall pass an order in accordance with law after giving personal hearing to petitioner, notice whereof shall be communicated to petitioner atleast 5 working days in advance.
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2023 (12) TMI 1426
Addition u/s 68 - cash sales during the demonetization period - CIT(A) deleted addition - HELD THAT:- As the cash sales is always more than Rs. 20 lakhs per day which went as high as Rs. 45.55 lakhs. The total sales from 28.08.2016 to 03.09.2016 is Rs. 1,30,42,002/- which means that cash sales of 8 days are more than cash sales from 01.011.2016 to 08.11.2016. Therefore, it can be safely concluded that there is nothing unusual in the cash sales during 01.11.2016 and 08.11.2016.
Nowhere in the assessment order the AO has mentioned that after inflating the alleged cash sales the assessee has frequently revised its VAT returns. It is not the case of the AO that the assessee has shown alleged cash sales without having sufficient stock in hand during that period. Not a single instance of defect is pointed out in the audited books of account. The entire assessment is based on assumptions/presumptions, surmises and conjectures de hors of the facts on record. Decided in favour of assessee.
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2023 (12) TMI 1425
Unexplained cash credit u/s 68 - Bogus share transactions - AO has doubted the purchase and sale of shares and observed that the price rise is not commensurate with the financials of the investee company - as submitted purchases and sale of shares are supported by evidences and are genuine and the assessee has substantiated with various details with the authorities - addition u/sec 69 in respect of estimated commission expenditure
HELD THAT:- The assessee has substantiated with all details and information and the AO has relied on the investigation report of income tax department and treated the long term capital gains on sale of shares as not genuine.
A.O. has not made any enquiry or independent investigation and relied on the statement of the parties and the assessee’s name is not included in the list of investigation report.
The fact remains that the assessee has submitted the requisite details in respect of purchase and sale of shares and were not disproved. The transaction of purchase and sale of shares is through banking channel. Hon’ble Tribunal in the case of Sangeeta Newal Agarwal [2022 (11) TMI 1545 - ITAT MUMBAI] dealt on the same scrip of share and for the same assessment and has granted relief to the assessee.
Accordingly, we direct the AO to delete the additions and allow the grounds of appeal in favour of the assessee.
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2023 (12) TMI 1424
Denial of benefit of exemption u/s 11 - Assessee society is set up for religious activities while claiming charitable status -
HELD THAT:- Appellant/revenue, fairly concedes that the question of law proposed in the instant appeal is covered by the order titled Director of Income Tax (Exemption) v. M/s Indian Evangelical Team [2015 (10) TMI 2865 - DELHI HIGH COURT] AND [2022 (7) TMI 1578 - DELHI HIGH COURT] as endorsed the opinion of the CIT(A) that the assessee was entitled to claim charitable status u/s 11 of the Act. In so holding it relied upon its preview views for AY 2009-10. No substantial question of law arises.
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2023 (12) TMI 1423
Applicability of Doctrine of priority of interest as contemplated under Section 48 of the Transfer of Property Act, 1882 - power of attorney is inadmissible in evidence or not - HELD THAT:- The first plaintiff claims ownership based on the sale deed dated 20.05.2004 executed by the second plaintiff based on an unregistered General Power of Attorney and affidavit. Already answered that the General Power of Attorney and the declaration of facts in the form of an affidavit are inadmissible in evidence. Now the question of priority between two registered documents is required to be considered. Where there is a competition between two registered documents (relating to the same property) both of which are registered, the question of priority between them is to be determined with reference to the provisions of Section 47 of the Registration Act. If there are successive transfers of the same property, the later transfer is subject to the prior transfer.
Reverting to the facts of the case, the sale deed in favor of the fourth defendant is dated 08.10.2003 and the sale deeds in favor of defendants 5 and 6 are dated 26.04.2004. Whereas the sale deed in favor of first plaintiff is dated:20.05.2004. The registered sale deeds in favor of defendants 4, 5 and 6 were first in time than the sale deed in favor of the first plaintiff. The first plaintiff purchased the property already sold, he cannot question the sale deed to be void and hence to have a mileage on the situation - The transferor cannot prejudice the rights of the transferee by any subsequent dealing with the property. Taking note of the settled proposition of law, the successive transfer of the same property i.e., transfer by the second plaintiff in favor of the first plaintiff is subject to the prior transfer that was made in favor of defendants 4, 5 and 6.
Conclusion - Both Courts are not right in accepting the plaintiff’s contention. They overlooked the settled principles and erroneously went ahead and decreed the suit.
The judgments and decrees passed by the Trial Court and the First Appellate Court are unsustainable in law - the Regular Second Appeal is allowed.
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2023 (12) TMI 1422
Bogus Long Term Capital Gain - sale of shares of Global Capital Markets Ltd., a penny stock - period of holding of shares - AO that the price movement of the company were not supporting by financial fundamentals of the company - ITAT deleted addition -
HELD THAT:- Assessee has sold shares after seven years and therefore, the proximity of time between the buy and sale of shares cannot be considered as an accommodation entry in penny stock company within a short period of about one year to book bogus of Long Terms Capital Gain or loss to defraud the Revenue.
AO and CIT(A) have ignored such facts which were considered by the Tribunal to arrive at a finding of fact that the assessee has to be treated as an investor and cannot be treated to have engaged in fraudulent activity or manipulation activity.
Tribunal, therefore, considering the period of holding of shares by the respondent assessee, arrived at a finding that the Long Term Capital Gain earned by the assessee is not a significant amount and therefore, held that the assessee cannot be said to have taken an accommodation entry by entering into transaction of shares in the penny stock company.
No error in the finding of facts and the conclusion arrived at by the Tribunal that the investment made by the assessee was longstanding and genuine and was not the penny stock company on the basis of which the Long Term Capital Gain was wrongly claimed. No substantial question of law.
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2023 (12) TMI 1421
Disallowance pertaining to the exaggerated profit of captive power generating unit by claiming higher rate than the cost price or the market price charged by it on the supply of power made by it to 3rd party i.e., State Electricity Board - HC [2008 (9) TMI 949 - PUNJAB AND HARYANA HIGH COURT] decided against the revenue.
Appellant(s) mentioned that in the judgment [2023 (12) TMI 417 - SUPREME COURT] ought to have been allowed, being filed by the assessee(s).
HELD THAT:- Accordingly, paragraph ‘56’ of the said judgment may be read as under:
“56. For the aforesaid reasons, all the Civil Appeals barring C.A. No.9920/2016 are hereby dismissed. Since C.A.No.9920/2016 is filed by the assessee(s), the same is allowed. However, there shall be no order as to cost.”
The Registry is directed to do the needful.
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2023 (12) TMI 1420
Delay of almost three years in filing the petition - retrospective amendment to Section 50 of the WBGST Act - HELD THAT:- Petitioner is not a company, not an individual and it must have the service of legal professionals. Though there is no limitation in the writ proceeding but if such type of claim is entertained by such inordinate delay without any proper explanation and particularly by the petitioner who is a company and not an individual cannot which take plea of ignorance of law and if the writ petition is entertained after three years of passing of the impugned order there will be floodgate of cases.
Petition dismissed.
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2023 (12) TMI 1419
Reference to dispute resolution panel - Order u/s 144C bound to comply with the time frame stipulated u/s 144C(13) - whether the impugned order passed by the assessing authority was without jurisdiction? - HELD THAT:- Admittedly, Ext. P3 is dated 09.12.2013. Hence, the assessing officer was bound to pass the assessment order in conformity with the direction of the DRP before 31.01.2014. However, the assessing officer has passed Ext. P4 assessment order only on 27.03.2014, which was served on the petitioner on 31.03.2014. The respondents could not produce any document before this Court to prove receipt of Ext. P3 directions dated 09.12.2013 issued by the DRP. According to the petitioner, they received Ext. P3 on 27.12.2013. Ext. P4 assessment order was passed by the assessing authority on 27.03.2014, which is beyond the period stipulated in Section 144C(13) of the Act.
Whether the provisions in Section 144C are only procedural or not? - Section 144C is inserted in the Finance Act, 2009 with a view to provide a speedy disposal to create an alternative dispute resolution mechanism within the Income Tax Department. If the provisions of Section 144C as mandated by the statute are not strictly adhered to, the entire object of providing an alternative dispute resolution mechanism in the form of DRP would stand defeated.
The legislature had clear intention while the said provision was inserted in 2009 to facilitate an expeditious resolution of disputes on a fast track basis. If the assessing officer fails to pass any order in accordance with the statutory provisions, as mandated under Section 144C, it will defeat the entire exercise and render the same futile.
The directions in Ext. P3 given by the DRP are binding on the assessing officer, who has to finalize the assessment order even without affording the assessee an opportunity of being heard. There was nothing more to do by the assessing officer than to pass an assessment order on receipt of Ext. P3.
Once the statute has prescribed limitation period for passing a final order, the officers of the Department should act accordingly in order to provide the assessee an expeditious resolution of the disputes. The impugned orders were passed by the assessing authority beyond the time prescribed under Section 144C(13). Therefore, impugned order passed by the assessing officer cannot be sustained.
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2023 (12) TMI 1418
Revision u/s 263 - allowance/deduction u/s 80P(2)(a) or 80P(2)(d) with regard to interest received from Surat District Cooperative Bank - HELD THAT:- We find that the Surat District Cooperative Bank is a cooperative society registered under Gujarat State Cooperative Societies Act. Tribunals held that the cooperative banks are primarily cooperative societies and interest earned on deposits with such cooperative bank is exempt u/s 80P(2)(d) of the Act.
The Hon'ble Jurisdictional High Court in the case of Surat Vankar Sahakari Sangh Ltd. [2016 (7) TMI 1217 - GUJARAT HIGH COURT] also held that the assessee cooperative society was eligible for deduction u/s 80P(2)(d) in respect of gross interest received from cooperative bank without adjusting interest paid to said bank.
No doubt that in the assessment order, there is no discussions of the issue of deduction of interest income earned by assessee on fixed deposits from Surat District Cooperative bank, still we found that the assessment is not erroneous on the deduction u/s 80P(2)(d), as the same is consonance with the decision of Surat Vankar Sahakari Sangh Ltd. [2016 (7) TMI 1217 - GUJARAT HIGH COURT] and the various other decisions of this Tribunal. Thus, the twin condition for invoking section 263 is not satisfied. Decided in favour of assessee.
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2023 (12) TMI 1417
Grant of anticipatory bail - corruption and bribery - prosecution’s case is that proposal for enhancement of the tender amount was not made according to the guidelines by the Competent Authority in such type of matters - relevance and admissibility of evidence - HELD THAT:- Although the petitioner was not named in the FIR but the investigation revealed that he had also put his signatures on the proposal to enhance the building to green and in-turn he had received bribe of Rs. 5 lacs from the complainant through co-accused Rambir. By such enhancement, petitioner in connivance with other officials of Municipal Corporation, Sonipat, wanted to give undue benefit to Lalit Mittal in violation of guidelines/norms/policies dated 12.12.2018. In addition to that there were irregularities in the technicalities and proposal which was pointed out in technical report dated 13.02.2023. Because of the unethical conduct of the complainant, the petitioner, who was discharging official functions and holding the post of Electrical Engineer, indulged in corrupt criminal practices and enriched himself knowingly that even if the money was not paid to the contractor, he had nothing to lose. In this manner, he acted as a cheat, which is also why an offence under Section 420 IPC read with 120 B IPC had already been incorporated in the FIR.
Given the nature of allegations, custodial interrogation is required. An analysis of the allegations and evidence collected does not warrant the grant of bail to the petitioner.
In State of Gujarat v. Mohanlal Jitamalji Porwal [1987 (3) TMI 111 - SUPREME COURT], Supreme Court holds 'A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest.'
Conclusion - The petitioner failed to establish a case for anticipatory bail, given the allegations and the necessity for custodial interrogation.
The petitioner fails to make a case for anticipatory bail - petition dismissed.
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2023 (12) TMI 1416
Release of amount of Rs. 156 lakhs seized from the petitioners after furnishing bank guarantee - accounted money or not - HELD THAT:- Counsel for the petitioners relied on the order R. RAVIRAJAN; BALAGANESH; VIJAYA BHARATI VERSUS THE STATE OF KERALA & UNION OF INDIA [2023 (9) TMI 1557 - KERALA HIGH COURT], in which this Court considered a similar matter in detail and found that the Income Tax department is not entitled for the amount. In the above order, this Court specifically observed that the order passed by the learned Magistrate ordering the handing over of the amount to the revenue in such situation can not be sustained.
Conclusion - The orders by the Judicial First Class Magistrate Court, Nilambur, directing the release of the seized amount to the Income Tax Department were set aside. The petitioners were granted the release of the seized amount upon furnishing a bond and sureties, ensuring compliance with procedural requirements.
In the light of the above order, these Criminal Miscellaneous Cases are to be allowed.
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2023 (12) TMI 1415
Addition u/s 69 - Treating cash balance shown in the books of account as cash introduced from alleged undisclosed income - HELD THAT:- It incomprehensible that in case the cash-in-hand as claimed by the assessee firm was sourced from its books of account, then why such books of accounts were held back and not produced before the A.O.
Rather, the production of only the extract of the cash book as of 31.03.2016 wherein the cash-in-hand was disclosed at Rs.29.64 lacs (supra) in view would be nothing better than a mere eye wash which could not have been acted upon by the A.O. Accordingly, finding no infirmity in the view taken by the CIT(Appeals) who had rightly approved the addition made by the A.O, thus, uphold the same.
Scope of limited scrutiny - Addition made with respect to the difference in the interest income disclosed by the assessee firm in its return of income as against that shown in its Form 26AS - HELD THAT:- Case of the assessee firm was selected for limited scrutiny, the A.O. could not have ventured to an issue that did not form the basis for taking up the case for scrutiny assessment - ITAT, Mumbai in the case of Su-Raj Diamond Dealers (P) Ltd. [2019 (12) TMI 26 - ITAT MUMBAI] had observed that since the assessee’s case was selected for “limited scrutiny” under CASS with respect to certain specific issues, the jurisdiction of the A.O in the absence of getting the said case converted into complete scrutiny as per the CBDT Instruction No.20 of 2015 dated 29.12.2015, was confined only to the specific reason/issue based on which the case of the assessee was picked up for scrutiny. Accordingly, addition made by the A.O is liable to be quashed for want of valid assumption of jurisdiction by the A.O while framing the “limited scrutiny” assessment vide his order u/s. 143(3) of the Act dated 13.12.2018.
Assessee appeal partly allowed.
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2023 (12) TMI 1414
Issuance of notice u/s 143(2) by non jurisdictional officer - Notice issued by ACIT/ DCIT v/s ITO - HELD THAT:- As per the CBDT Instruction 1/2011 dated 31.01.2011, the moment the return of income has been filed by the assessee disclosing taxable income more than 15 lakhs or 20 lakhs for Mofussil and metro areas respectively, as the case may be, the scrutiny notice u/s 143(2) of the Act could be issued only by the authority in the rank of ACIT/ DCIT and not by ITO.
It is bounden duty on the part of the ld. DCIT to have issued notice u/s 143(2) of the Act within the prescribed time provided in the statute after having assumed jurisdiction over the assessee, which is admittedly not done in the instant case by the ld. DCIT. Hence, it could be safely concluded that the entire scrutiny assessment framed u/s 143(3)144 by DCIT, Circle Haridwar without issuing a valid and legal notice u/s 143(2) of the Act become void abinitio and deserves to be quashed.
Whether department would be rescued by the provisions of section 292BB? - We are unable to comprehend ourselves to agree to this argument of the revenue in as much as in our considered understanding, the provisions of section 292BB applies only in case of improper service/ wrong service of notice and not to objection not taken by the assessee during assessment proceedings.
Section 292BB of the Act does not save the defect of non-issue of valid notice u/s 143(2) of the Act by the jurisdictional officer. Hence, in the absence of valid and legal notice issued by the jurisdictional officer, the assessment framed on the assessee requires to be quashed. Decided in favour of assessee.
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2023 (12) TMI 1413
Execution of will in accordance with the legal requirements under the Indian Succession Act, 1925, and the Indian Evidence Act, 1872 - prominent participation in its execution - HELD THAT:- It is well-nigh settled position that the burden to prove the execution of the Will is on the propounder(s) and on its discharge the onus would be on the opposing contestant to establish that it is not valid. Certainly, if suspicious circumstances have been pleaded by the contestant opposing Will and prima facie shown them to be true, then the onus would be shifted to the propounder(s) to dispel the suspicious circumstances to the satisfaction of the court so as to accept it as genuine. In the light of the position so settled and in view of the fact that the trial Court and the High Court are at issue on the question whether the Will in question was proved as valid, in accordance with law, we will have to proceed to consider the said question. In that regard, in view of the undisputed position that the Will was executed by Cecelia Gertrude Lobo, the question to be considered is whether the circumstances taken as suspicious circumstances by the High Court are in troth, suspicious circumstances, capable of calling the propounder to dispel them.
Section 63 of the Succession Act prescribes the mode and method of proving a Will and going by the provisions Under Section 68 of the Evidence Act, though a Will shall not be used as evidence until one of the attesting witnesses has been examined. It will suffice to examine one of the attesting witnesses to prove the same - the trial Court had taken into account the entire evidence on record to conclude that legal requirements in terms of the provisions Under Section 63 of the Succession Act and Under Section 68 of the Evidence Act have been complied with by the Plaintiffs and ultimately to hold that the Plaintiffs have succeeded in proving the execution of the Will.
Once the burden to prove is discharged by the propounder in terms of Section 63 of the Succession Act and Section 68 of the Evidence Act, and by adducing prima facie evidence proving the competence of the testator, the onus is on the contestant opposing to show prima facie the existence of suspicious circumstances so as to shift the onus on the propounder to dispel them. Without knowing the circumstances, which according to the contestant opposing are suspicious, how will the propounder be able to dispel them and to convince the court about its genuineness and validity - A case of well-founded suspicion has to exist to cause shifting of onus back to the propounder once he discharged his burden to prove the execution of the Will.
The allegation of prominent participation as relates execution of a Will suggests some kind of influential interference on the testator/testatrix. There cannot be any doubt with respect to the position that the mere presence of executor or any beneficiary under a Will at the time of the execution of the Will ipso facto will not invalidate it or is sufficient to cast suspicion on the execution of the Will. At any rate, it is for the person raising the same to prove that it was not a mere presence in the vicinity and it was capable of influencing the testator/testatrix.
Conclusion - There are no hesitation to hold that the trial Court had rightly considered all the circumstances to come to the conclusion that Ext.P2 Will was validly executed and it was proved by the Appellants. The circumstances were taken as suspicious by the High Court sans foundation and the High Court erred in holding the subject Will dated 10.11.1992 as not proved.
Appeal allowed.
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2023 (12) TMI 1412
Approval of the Resolution Plan challenged - challenged on the ground that as per the Resolution Plan, only 0.13% has been earmarked towards Government dues, and the Financial Creditor is getting 44.5% of the Claim amounts and the other Operational Creditors are getting 0.51% of their Claim amounts, which is stated to be unfair - it was held by NCLAT that 'In the instant case, this Tribunal do not find any such irregularity in the Provisions of the Resolution Plan, as specified under Section 30 (2) of the Code.'
HELD THAT:- Issue notice returnable in March 2024.
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2023 (12) TMI 1411
Profiteering - purchase of flat - benefit of input tax credit (ITC) had not been passed on to his customers by way of commensurate reduction in prices - contravention of section 171 of CGST Act - HELD THAT:- The Commission is of the view that the claim of the Respondent regarding passing on the benefit of additional ITC to his customers/home- buyers needs to be verified. The Respondent is directed to provide all the documentary evidence i.e. "Names of the home-buyers, their E- mail ids/Mobile Nos./Addresses, Amount of ITC benefit passed on to each home-buyer, Copies of Tax invoice, Credit Notes and Cheques issued to each home-buyer, Copies of Bank Statements indicating the amount of ITC benefit passed on to the home-buyers and Acknowledgement Receipts from all the home-buyers stating that they have received the additional benefit of ITC" duly certified by the Authorized person of the Respondent to the DGAP to prove his above claim. The claim of the Respondent regarding passing on the benefit of ITC to the customers/home-buyers shall be verified by the DGAP by contacting the customers/home buyers and seeking their replies regarding receipt of benefit of ITC.
The Commission is of the view that on the basis of the documents submitted by the Respondent, the DGAP has not tried to investigate whether the Respondent had sold the flats to the post-GST home- buyers at the rates lower than the rates charged from the pre-GST home-buyers. Further, during the course of investigation, the Respondent has not provided the details to the DGAP. The DGAP has already submitted his investigation report to the Commission.
The Commission under Rule 133(4) of the CGST Rules, 2017 directs the DGAP to further investigate the claim of the Respondent regarding passing on the benefit of ITC and charging lower rates from the post-GST buyers than the pre-GST buyers and recalculate the profiteered amount, if required. The Respondent is also directed to extend all necessary assistance to the DGAP and furnish him with necessary documents or information as required during the course of the investigation.
Conclusion - The benefits of ITC must be passed on to consumers, and the burden of proof lies with the seller to demonstrate compliance.
Application disposed off
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2023 (12) TMI 1410
Cancellation of the Registration of GST of the petitioner - it has been submitted by the learned counsel for the petitioner that the petitioner would be satisfied if a direction is issued to the respondent-authority to reconsider the cancellation of the Registration of GST of the petitioner, after rehearing him, in view of the absence of Appellate Tribunal.
HELD THAT:- In the absence of Appellate Tribunal, to challenge any order passed by the Appellate Authority, it would be more appropriate that the Appellate Authority rehears the petitioner regarding the cancellation of Registration, as it involves certain ascertainment of facts. This Court, in exercise of Article 226 of the Constitution of India rather than examining this issue deems it proper to close this writ petition with liberty to the petitioner to file an application for reconsideration of the cancellation of Registration of GST of the petitioner, which according to the petitioner, was cancelled without assigning any reason.
Petition disposed off.
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2023 (12) TMI 1409
Penalty u/s 271D - Accepted the sale consideration in cash in contravention to the provision of section 269SS - Mandation to record satisfaction - whether without satisfaction being recorded in the assessment order, penalty can be levied u/s 271D of the Act? - HELD THAT:- In the case of Umakant Sharma [2023 (8) TMI 1094 - ITAT INDORE] observed that, it is pre-requisite condition that the initiation of penalty under section 271D/271E of the Act, there must be assessment proceedings or proceeding arising from assessment order are pending in the case of the assessee, and, therefore, following the case of Vijayaben G. Zalavadia [2022 (5) TMI 1572 - ITAT AHMEDABAD] deleted the penalty levied under section 271D of the Act by holding that without any assessment proceedings in the case of the assessee such penalty is not valid and liable to be quashed.
Provisions u/s 271E and 271D of the Act are in pari materia and since in terms of the decision in Jai Laxmi Rice Mills [2015 (11) TMI 1453 - SUPREME COURT] satisfaction must be recorded in the original assessment order for the purpose of initiation of penalty proceedings under section 271E of the Act, the same is equally applicable for initiation of penalty proceedings under section 271D - Decided in favour of assessee.
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2023 (12) TMI 1408
Revision u/s 263 - assessee has surrendered income on discrepancies found during the course of survey action - AO treated the surrender amount as the business income of the assessee - AR submitted that the case of the assessee was selected for compulsory scrutiny only on the issue of the amount surrendered during the course of survey action - HELD THAT:- During the course of assessment proceedings, the AO in the notice issued u/s 142(1) has asked the assessee to show-cause why the surrendered income in terms of excess stock of Rs 40 lacs and excess cash of Rs 10 lacs found during the course of survey may not be brought to tax under the deeming provisions r.w.s. 115BBE. In response to the notice so issued, the assessee has filed his submission stating that he has surrendered the excess stock and cash which is related to his business and offer of surrender was accepted by the department team at the time of survey and pursuant thereto, the assessee has not back tracked from his offer and has paid taxes as per law prevailing on the date of survey and this income was duly shown in income tax return and duly reported for tax purposes.
AO taking cognizance of the findings of the survey team, the documents found during the course of survey, the statement of the assessee, and the return of income and after examination thereof and due application of mind, has accepted the explanation so offered by the assessee and the returned income was accepted wherein the surrendered income has been offered under the head business income. We therefore find that the assessee has been asked specific questions during the course of assessment proceedngs, after due examination and being satisfied with the explanation of the assessee, the same has been accepted and thus, it is not a case of lack of enquiry on part of the AO or for that matter, accepting the explanation of the assessee on face value. The AO has duly enquired in the matter and thereafter, has taken a view in the matter.
No doubt, these transactions were not recorded at the time of survey thus qualify as unrecorded transactions satisfying one of the essential conditions, at the same time, the assessee has provided the necessary explanation about the nature and source of such unrecorded transactions and the necessary nexus with assessee’s business has been established, thus, it cannot be said that these are unexplained transactions thus, doesn’t satisfy the second condition for invoking the deeming provisions of the Act. Thus, the view taken by the AO is clearly a plausible view considering the facts and circumstances of the present case and nothing has been pointed out as to how the view so taken is unsustainable in the eyes of law.
The order so passed by the AO cannot be held as erroneous due to lack of inquiry or for that matter requisite inquiry on the part of the AO.
As we have held above, there is no findings recorded by the Ld. Pr. CIT as to how the deeming provisions are applicable in the instant case and the order so passed by the AO is erroneous. We therefore find that merely stating that there was survey operation at the business premises of the assessee and provisions of Section 115BBE of the Act are attracted, the same can be a basis for exercise of jurisdiction u/s 263 of the Act. In view of the same, order so passed by the Ld. Pr. CIT under section 263 is set aside and that of the AO is restored. Assessee appeal allowed.
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