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TMI Blog2012 (11) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) of the Act , learned Commissioner required the assessee to, inter alia, show cause as to why the assessment not be subjected to revision proceedings for the following reason : - "The assessment records of your company for the AY 2008- 09 were perused and it was noticed that the paintings were purchased through cheques and debited through P&L A/c. (a) Ganesh Pyne 64 paintings 52,80,000/ - (b) M.F. Hussain 1 painting 1,30,00,000/ - (c) Mustak K. Choudhury 4 paintings 93,000/ - (d) Paresh Maity 32 paints 1,26,70,000/ - It is seen that these paintings and their values were again reflected as sundry creditors in the balance she et and the same was overlooked by the A.O". 3. In response to the above, the assessee pointed out that the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creditors' in the balance sheet. Purchases, being a revenue item, is booked in the profit & loss account and corresponding sales and closing stock is shown on the credit side of the Profit & Loss Account". 4. It appears that some other details regarding purchases of paintings from M.F. Hussain were filed and examined, even though that aspect of the matter was never set out in the show cause notice. Finally, the Commissioner subjected the assessment order to revision proceedings by observing as follows : - "3. In respect to the second issue, it has now been submitted that the assesese follows the mercantile system of accounting and the purchase and payments for the paintings were actually as follows :- Sl. No. Painter Cost Paid by chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainting was taken to Stock Register on 05-01-2008 and then taken out is sold on 05-01-2008 itself. (d) The painting was reportedly sold to M/s New Kolkata International Development Pvt. Ltd. [NKIDPL] for Rs.2.5 Cr. along with two other sculptures and the total price of Rs.2.92 Cr, was paid on 04-04-2007. (e) The assessee could not provide prescription of the purchase which was given by NKIDPL when the payment was made on 04-04-2007 for Rs.2.92 Cr, as it was reportedly misplaced as reported vide the assessee's letter dated 02-08- 2011. In lieu of the same, a confirmation from NKIDPL was produced confirming the purchase. f ) The painting was stated to be delivered to the purchaser on 08-02- 2008 and the same was confirmed by NKIDPL. 3.2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or adjustments, the fad/ that NKIDPL is stated to have purchased the painting on 04-04-2007 well before the same was purchased by the assessee from Husain on 05-01-2008 and for reasons of the fact of the failure to produce the prescription of purchase for the payment of Rs.2.92 Cr. on 04-04-2007; I am of the opinion that the submissions of the assessee is not fully satisfactory and beyond a shadow of doubt. In this view of the matter, after carefully considering the facts and circumstances of the case, I am of the opinion that the deeming provision of section 68 of the Income- tax Act would apply. Accordingly, the AO should take suitable and necessary action as per law". 5. Aggrieved by the stand so taken by the Commissioner, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer being incorrect . He has simply stated that "the submissions of the assessee are not fully satisfactory and beyond a shadow of doubt". In our considered view, these observations, even if correct, do not empower the Commissioner to exercise the revision jurisdiction u/s. 263. 9. We have also noted that the point raised by the Commissioner in show cause notice has been properly explained, and we see no infirmity in the said explanation - nor any infirmity therein is alleged by the learned Commissioner either. The revision has been done on an altogether different ground of deeming fiction u/s. 68 which was not even touched upon by the Commissioner at notice stage. On these facts, and in the light of the legal posit ion s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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