2020 (3) TMI 547 - AT - Income Tax

Revision u/s 263 - unexplained investment - reopening of assessment u/s 147 initiated - HELD THAT - We find that the case of the assessee was reopened and one of the reasons recorded by the AO was source of investment of ₹ 2.71 crores as per copy of agreement entered into with M/s Sterling Build Estate Private limited which remain unexplained and to that extent, the income of the assessee has escaped assessment. During the course of assessment proceedings, the matter was examined by the Assessing officer wherein the assessee submitted that no such agreement was entered into and even a complaint has been lodged with the Stamp authorities regarding evasion of stamp duty and on investigation, an order dated 22.06.2016 has been passed by Collector (Stamps) wherein the said agreement was found to be fake. A copy of said order dated 22.06.2016 was filed before the Assessing officer and in turn, the Assessing officer also enquired from DIG stamps about the veracity of such assertion made by the assessee and passing of such an order which was duly confirmed by the DIG Stamps. AO has duly examined the matter and has carried out requisite enquiry and investigation which was reasonably expected from him and was satisfied that there was no basis to make any addition and accordingly, no addition was finally made towards undisclosed source of such investment as alleged initially while recording the reasons u/s 148 of the Act. Further, we find that on similar grounds, the matter in the hands of M/s Sterling Build Estate Pvt limited was reopened and after verification of all the relevant documents/facts of the case, the AO has accepted that no extra sale consideration was received in cash of ₹ 2.21 crores as mentioned in the alleged agreement to sale from the assessee and sale consideration of ₹ 55 lacs as per registered sale deed during offered to tax in return of income was accepted. We therefore find that there is concurring findings by two Assessing officers of respective assessees wherein they have held that no such investment was made and money has not changed hands and so called agreement to sale cannot be relied upon as the same was held to be a fake agreement by the stamp authorities. Therefore, the findings of ld CIT that the Assessing officer should have done a protective assessment pending adjudication by the Higher authorities cannot be accepted as there is nothing on record that the order of the collector stamps has not been accepted and any further appeal has been filed against the same. At the time of passing of the assessment order, the order of collector stamps was on record and even at the time of passing of the order by the ld CIT, there is nothing on record which establishes that the order of the collector stamps has been appealed against and the matter has been admitted for adjudication by the Higher authorities. Taking an affidavit from the assessee stating that if any adverse decision is passed against him by the Courts, the assessee shall be binded to pay taxes is more a precautionary approach adopted by the Assessing officer and the order so passed by the Assessing officer cannot be held to be erroneous and prejudicial to the interest of the Revenue where he has carried out the necessary and thorough examination of the matter. Addition u/s 68 - un-explained deposits in the bank account - We find that this was again one of the reasons to reopen the case of the assessee u/s 147 and thereafter, during the course of assessment proceedings, the matter was examined by the Assessing officer wherein the assessee was asked to explain the source of such deposits, further statement of the person whom the assessee claim to have received the amount were also recorded and these persons also filed affidavits before the Assessing officer. Taking all these explanation and documentation into consideration, the Assessing officer has recorded his findings in the assessment order We find that on the issue of deposits in the assessee s bank account, the AO has duly examined the matter and has taken a considered view and the ld Pr CIT was not correct in exercising jurisdiction under section 263 of the Act in remanding the matter for fresh adjudication. Pr CIT was not correct in exercising jurisdiction under section 263 of the Act and the order passed by the ld Pr. CIT passed u/s 263 is accordingly set-aside and the order passed by the AO u/s 143(3) r/w 147 is sustained. - Decided in favour of assessee.

Issues Involved:
1. Erroneous and prejudicial assessment order by AO.
2. Non-consideration of written submissions and secondary evidence.
3. Enquiry into already explained deposits.
4. Validity and timeliness of the order passed u/s 263.
5. Distinction between lack of enquiry and inadequate enquiry.
6. Denial of opportunity for hearing.

Issue-wise Detailed Analysis:

1. Erroneous and Prejudicial Assessment Order by AO:
The Principal Commissioner of Income-tax (Pr. CIT) Ajmer considered the assessment order passed by the AO as erroneous and prejudicial to the interest of Revenue. The Pr. CIT set aside the assessment order to the AO for fresh enquiry and assessment. The assessee argued that the assessment order was neither erroneous nor prejudicial to the interest of Revenue, as the AO had duly verified the facts and accepted the sources of cash deposits.

2. Non-consideration of Written Submissions and Secondary Evidence:
The assessee contended that the Pr. CIT failed to consider their written submissions and directed the AO to make enquiries based on secondary evidence of third parties. The Pr. CIT ignored the detailed order by DIG (Stamps) dated 22-6-16, which treated the complaints as fake and concluded that no agreement for consideration of ?2,71,00,000/- was made.

3. Enquiry into Already Explained Deposits:
The Pr. CIT directed the AO to make a detailed enquiry into deposits that were already explained by the assessee. The payment received from Kailash was by cheque, which was accepted by the AO after verifying the source. The assessee argued that the AO had already conducted necessary enquiries and accepted the transactions based on affidavits and documentary evidence.

4. Validity and Timeliness of the Order Passed u/s 263:
The assessee argued that the order passed u/s 263 was bad in law and time-barred from the original due date of the return filed for Nil tax liability for 07-08-09. The Pr. CIT's order was challenged on the grounds of being outside the permissible time frame.

5. Distinction Between Lack of Enquiry and Inadequate Enquiry:
The assessee cited the Supreme Court's decision distinguishing between lack of enquiry and inadequate enquiry. The Supreme Court held that if there is an enquiry, even if inadequate, it would not give the Pr. CIT the occasion to pass an order u/s 263 merely because he has a different opinion. The assessee argued that the AO had conducted adequate enquiries and the assessment order was not erroneous.

6. Denial of Opportunity for Hearing:
The assessee claimed that the Pr. CIT did not consider their detailed arguments and denied them an opportunity for a hearing. The assessee requested an adjournment on 25/3/19, which was refused, and the order was passed without giving them a fair chance to present their case.

Tribunal's Findings:

Investment of ?2.71 Crores:
The Tribunal found that the AO had reopened the case for the precise reason of unexplained investment of ?2.71 crores. During the assessment proceedings, the AO examined the matter in detail, including the alleged agreement and the order by the Collector (Stamps) declaring the agreement as fake. The AO's findings were supported by the assessment of the seller company, which also concluded no extra sale consideration was received. The Tribunal held that the AO had conducted necessary enquiries and the order was not erroneous or prejudicial to the interest of Revenue.

Deposits in Bank Account:
The Tribunal noted that the AO had examined the sources of cash deposits in the assessee's bank account, including statements and affidavits from relevant persons. The AO brought to tax an amount of ?2.99 lakhs as unexplained deposits. The Tribunal found that the AO had conducted adequate enquiries and the Pr. CIT's direction for further enquiries was not justified. The Tribunal emphasized that the Pr. CIT must provide a definite finding instead of remanding the matter for fresh adjudication.

Conclusion:
The Tribunal concluded that the Pr. CIT was not correct in exercising jurisdiction under section 263 of the Act. The order passed by the Pr. CIT was set aside, and the assessment order passed by the AO u/s 143(3) r/w 147 was sustained. The appeal of the assessee was allowed.

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