2011 (1) TMI 1225 - AT - Income Tax

Validity of order passed by CIT u/s 263 - no enquiry done by AO - HELD THAT - no specific objection has been raised by the learned CIT and the general observations were made by him in paragraph 10 of the impugned order that it is explicit that the AO has not made any enquiry and he did not take any pain to examine the issue any further in view of the fact that the seized documents and material shown several new evidence against the assessee. We have examined the questionnaire dated November 17, 2006 issued by the AO which has covered all the points which are raised by the learned CIT in his show-cause notice and in the impugned order passed by him u/s 263 and on all these points, reply along with necessary details and evidence were furnished by the assessee before the AO in the course of assessment proceedings and hence, it has to be accepted that the AO has applied his mind on all these issues and hence the order of the learned CIT u/s 263 is not sustainable in view of the factual and legal position discussed. In the present case, all the points raised by the CIT, enquiry was made by the AO and even if such enquiry was inadequate in the opinion of the learned CIT, this does not give power to the learned CIT to pass order, u/s 263 merely because he has different opinion in the matter. We hold that the common order passed by the learned CIT u/s 263 is not sustainable and hence we quash the same. In the result, all the appeals are allowed.

Issues Involved:
1. Legality of the order passed by the Commissioner of Income-tax (Central).
2. Whether the Commissioner ignored the points examined by the Assessing Officer during assessment proceedings.
3. Validity of the Commissioner challenging the opinion of the Assessing Officer based on submissions and verification of records.
4. Specific allegations regarding unexplained investments, fleet of vehicles, and income from plying of trucks.

Detailed Analysis:

1. Legality of the Order Passed by the Commissioner of Income-tax (Central)
The assessee contended that the order passed by the Commissioner of Income-tax (Central) was illegal, void, and bad in law. The Tribunal found that the Commissioner had issued a common show-cause notice under section 263 of the Income-tax Act, 1961, alleging various discrepancies and unexplained investments. However, the Tribunal held that the Assessing Officer had made the necessary enquiries and received detailed replies from the assessee, thus the assessment orders were neither erroneous nor prejudicial to the interests of the Revenue. The Tribunal quashed the order of the Commissioner under section 263.

2. Ignoring Points Examined by the Assessing Officer
The Commissioner alleged that the Assessing Officer failed to bring on record material regarding investments in NSCs/FDRs, fleet of vehicles, and other properties. The Tribunal noted that the Assessing Officer had issued a detailed questionnaire and received comprehensive replies from the assessee, which included necessary details and evidence. The Tribunal found that the Commissioner's assertion of no enquiry being made was incorrect, as the Assessing Officer had indeed examined the relevant points.

3. Challenging the Opinion of the Assessing Officer
The Commissioner challenged the opinion of the Assessing Officer, suggesting that the enquiries made were inadequate. The Tribunal referred to the judgment of the Delhi High Court in CIT v. Sunbeam Auto Ltd., which distinguishes between "lack of enquiry" and "inadequate enquiry." The Tribunal concluded that the Commissioner does not have jurisdiction under section 263 to pass orders merely because he has a different opinion on the adequacy of the enquiry conducted by the Assessing Officer.

4. Specific Allegations Regarding Investments, Fleet of Vehicles, and Income from Trucks
- Investments in NSCs/FDRs and Fleet of Vehicles: The Commissioner alleged that the assessee had unexplained investments and a fleet of vehicles registered in his and his family members' names. The Tribunal found that the Assessing Officer had raised specific queries regarding these investments and received detailed replies from the assessee. The Tribunal held that the assessment orders were not erroneous as the Assessing Officer had considered the submissions and evidence provided by the assessee.

- Income from Plying of Trucks: The Commissioner contended that the Assessing Officer had assessed income from trucks at a lower rate than prescribed under section 44AE. The Tribunal noted that the Assessing Officer had assessed income based on the capacity of the trucks, and there was no material to suggest that the trucks were heavy goods vehicles requiring a higher rate of assessment. The Tribunal concluded that the assessment orders were not erroneous or prejudicial to the interests of the Revenue.

- Investments in House Properties: The Commissioner alleged that the Assessing Officer failed to investigate investments in house properties. The Tribunal found that the Assessing Officer had asked for details regarding property investments and received a detailed reply from the assessee, including a cash flow statement explaining the source of investments. The Tribunal held that the Commissioner's order under section 263 was not justified on this point as well.

Conclusion:
The Tribunal quashed the common order passed by the Commissioner of Income-tax under section 263, holding that the assessment orders were neither erroneous nor prejudicial to the interests of the Revenue. The Tribunal emphasized that the Assessing Officer had made necessary enquiries and received detailed replies from the assessee, and the Commissioner's differing opinion on the adequacy of these enquiries did not justify invoking section 263. The appeals were allowed, and the decision was pronounced on January 21, 2011.

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