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TMI Blog1989 (2) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 41,620. The Income-tax Officer had given a notice dated 18-1-1985 to the assessee to which the assessee gave a reply dated 20-3-1985. The assessment was completed by the Income-tax Officer on 29-8-1985. 3. However, the Commissioner of Income-tax noticed that a survey had taken place on 10-10-1984 u/s. 133A on the business premises of the assessee-firm after it had filed its return for the assessment year in question and that as a result of the same the Income-tax Officer had identified cash book, ledger and certain loose papers relevant to the period 1-3-1983 to 31-3-1984 which were later impounded u/s. 131 on 5-11-1984. Loose papers impounded by the Income-tax Officer consisted of the following : --- (i) Balance sheet drawn as on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oneous in so far as it was prejudicial to the interests of the revenue. The Income-tax Officer had, in his assessment order, had accepted these cash credits. 4. That is how the assessee has come up in appeal before us. Shri Virendra Talwar, the learned counsel for the assessee submitted that the learned Commissioner could not assume jurisdiction u/s. 263 in this case since the assessment was completed by the ITO u/s. 143(3) after conducting proper enquiries and after obtaining evidence and its verification from the assessment records of the creditors in respect of loans taken from the creditors. Next, he submitted that since in the notice u/s. 263, the learned Commissioner had mentioned that he had perused the assessment records of S/Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied upon the order of the learned Commissioner and sought to justify the same. Reliance was placed by her on the following decisions : (1) Rampyari Devi Saraogi v. CIT [1968] 67 ITR 84 (SC) ; and (2) Gee Vee Enterprises v. Addl. CIT [1975] 99 ITR 375 (Delhi) She submitted that no enquiries which were provoked by the survey and which the ITO issuing the notice dated 18-1-1985 intended, having been made the jurisdiction under section 263 had been rightly exercised by the learned Commissioner. She also submitted that the view expressed by the learned Commissioner was not final but prima facie view and that is why the assessment had been set aside to the Income-tax Officer for being made afresh after giving an opportunity of hearing to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted these persons for obtaining any loan. So the names written on the 1st B/sheet are fictitious. Actually we had taken loan from S/Shri Naresh Kumar and Ashok Kumar who are existing assessees with the Income-tax Deptt. " It would be clear that the case of the assessee was that the names of 9 cash creditors in the earlier balance-sheet had been written by one 'Munim' who was said to have left Gohana and the case of the assessee was that those persons were never contacted by the assessee for taking loans and therefore, those names were fictitious and that actually loans had been taken from S/Shri Naresh Kumar and Ashok Kumar who were existing assessees with the Income-tax Department. This explanation, therefore, provoked enquiries namely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notice under section 263 is perused as a whole. There the entire sequence of facts is mentioned and it has also been mentioned that the ITO who completed the assessments had not made any enquiries to ascertain the genuineness of the amounts of Rs. 48,700 and Rs. 47,500 shown in the names of S/Shri Naresh Kumar and Ashok Kumar. He had also noticed the discrepancies in respect of entries found in the loose paper (page No. 3). In the case of Rampyari Devi Saraogi the Supreme Court had occasion to examine a similar matter wherein it was held as follows : " Held that all the additional material was supporting material and did not constitute the basic grounds on which the order under section 33B was passed, and even if the facts which the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar were young persons below 25 years and sons of one of the partners. This was a further point which provoked enquiry. No purchase and sale vouchers of timber in respect of these two persons had been produced before the Income-tax Officer or before the learned Commissioner. We are, therefore, satisfied that on facts the jurisdiction under section 263 was rightly exercised by the learned Commissioner. Lastly, we come to the expression of opinion by the learned Commissioner by setting aside the assessment of the Income-tax Officer. We do agree that the learned Commissioner while asking the Income-tax Officer to make a fresh assessment, could not express any final opinion as regards the controversial points. In this regard the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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