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TMI Blog2015 (10) TMI 2371X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing officer, Assessing officer accepted and even in the office note meant for internal purposes he mentions that the assessee has substantiated the jewellery seized. In view of these evidences, this is not a case of lack of inquiry either. In view of the above analysis, we do not find any error in the order of Assessing officer. Hence, we set aside the order of Ld. CIT made u/s 263 of the Act as the order of the Assessing officer is not found to be erroneous. - Decided in favour of assessee - IT APPEAL NOS. 423, 425 TO 427 (CHD.) OF 2015 - - - Dated:- 31-8-2015 - H.L. KARWA, VICE-PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER For The Appellant : Sudhir Seghal For The Respondent : S.K. Mittal, DR ORDER PER RANO JAIN, A.M. : These appeals filed by the assessee are directed against the order of learned Commissioner of Income Tax (Appeals), Ludhiana dated 2.3.2015 for assessment year 2011-12 in all the cases. 2. Since the issues are the same in all the appeals, we are adjudicating them together. First, we will take up appeal in ITA No. 427/Chd./2015. 3. The brief facts of the case are that the assessee filed his return of income as on 24. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIRCULAR BEING ISTRIDHAN GRAMS SMT. SHASHI SINGLA 500.00 SMT. RUCHI SINGLA 500.00 SMT. RICHA SINGLA 500.00 SH. NARAIN SINGLA 150.00 SH. ASHISH SINGLA 150.00 SH. MANISH SINGLA 150.00 JEWELLERY DECLARED IN VDIS, 1997 IN HAND OF SHASHI SINGLA 1334.00 3284.00 (THE COPY OF VDIS LETTER IS ENCLOSED) 607.030 JEWELLERY EXCESS FOUND THE TOTAL AMOUNT OF EXCESS JEWELLERY COMES TO Rs. 607.030 x 1910 ₹ 1159428.00 The applicant already surrender of ₹ 15.00 lacs on account of unaccounted jewellery, no adverse inference can be taken in this regard . 3. In the above reply, assessee has claimed benefit of 1334 gms. of gol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making any enquiry. However, the facts show that the assessee was not filing wealth-tax returns prior to the search on his premises which otherwise were required to be filed, had the assessee's claim of jewellery under VDIS Scheme, 1997 declared by his wife Smt. Shashi Singla been true. Even otherwise A. O. did not enquire whether same jewellery continued to be held by Smt Shashi Singla even at the time of search. All these aspects have been accepted without enquiry. In the light of the aforesaid facts, it is considered that the order passed u/s 143(3) r.w.s. 153B(l)(b)/153A of the Act dated 31.01.2013 by the DOT, Central Circle-III, Ludhiana is prima facie erroneous insofar as it is prejudicial to the interest of revenue. You are, therefore, requested to show cause as to why the aforesaid order 143(3) r.w.s. 153B(l)(b)/153A of the Act dated 31.01.2013 for the A.Y. 2011-12 should not be revised/modified/enhanced or set aside with the directions to make the assessment de novo. 5. For this purpose, you are hereby given an opportunity of being heard either in person or through an authorized representative in my office situated at Kitchlu Nagar, 2nd Floor, Near B.V.M. School ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the direction to the Assessing Officer to make fresh assessment de-novo after properly examining the facts of the case and relevant legal provisions and conducting proper enquiry and after affording an opportunity of being heard to the assessee. 6. Now, the assessee has come up in appeal before us raising following grounds of appeal: 1. That the Worthy Principal Commissioner of Income Tax (Central) has erred in invoking the proceedings u/s 263 and passing the order u/s 263 of the Income Tax Act, 1961 thereby setting aside the order of the Assessing officer with the direction to make fresh assessment. 2. That the Worthy Principal CIT (Central) has also erred in setting aside the earlier assessment and giving the direction to the Assessing Officer to make a fresh assessment de novo. 3. That the Worthy Principal CIT (Central) has failed to consider the facts that the earlier assessment as framed by the Assessing Officer vide order, dated 31.01.2013 have been passed after due application of mind by the concerned Assessing Officer and the CIT (C) has erred in not considering the detailed submissions made during the course of proceedings before him. 4. That th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opies of wealth tax returns. These evidences were submitted before the Assessing officer in proceedings u/s 153A. All these documents were shown to us to emphasize the fact that the Assessing Officer was open to the issue of jewellery found during the course of search and he has taken this view only after appraisal of said documents. At pages 33 and 34 of the paper book, assessment order made under section 143(3) r.w.s. 153A of the Act was enclosed. Further, our attention was specifically invited to page 35 of the Paper Book, which was an office note appended to the assessment order. It was stated at Bar that this copy of the office note was obtained by the assessee on inspection of the assessment record. In this office note specifically it has been mentioned by the Assessing Officer that the jewellery found during the course of search has been explained by the assessee. In view of the said submissions and evidences, the learned counsel for the assessee again emphasized to the point that the Assessing Officer during the course of assessment proceedings had applied his mind to all the evidences and explanation furnished by the assessee regarding the jewellery found during the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of search. For this there is nothing on record to show that she has transferred the jewellery declared under VDIS before the date of search. In view of this, Assessing officer's formation of belief that she was having the same amount of jewellery at the time of search is not out of place. Otherwise also these are all question of fact, on which the Assessing officer has formed an opinion. 11. Now on the legality of assumption of jurisdiction by the CIT(A) u/s 263 of the Act, an order can be revised under section 263 of the Act by the learned Commissioner of Income Tax only if it satisfies the twin conditions of being erroneous as well as prejudicial to the interests of Revenue. In the present case, we find no error in the order of the Assessing Officer. Our view gets strengthen by the judgment of the Hon'ble Apex Court in the case of Malabar Industrial Co. Ltd. v. CIT (2000) 243 ITR 83 (sc), wherein it was held as under: When an Income Tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue or where two views are possible and the Income Tax Officer has taken one view with which the Commissioner does not agree, it cannot be tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it does not give jurisdiction to the learned Commissioner of Income Tax under section 263 of the Act to substitute his opinion. In the present case CIT himself has quoted the reply of the assessee in his show cause. Though it may not be proper in his opinion. In case of difference of opinion, the learned Commissioner of Income Tax cannot invoke the jurisdiction under section 263 of the Act. This view also get supported by the landmark judgment of the Hon'ble Bombay High Court in the case of CIT v. Gabriel India Ltd. (1993) 203 ITR 108 (Bom). 15. It is a matter of fact that the Assessing officer being an adjudicating officer has to form an opinion on the basis of evidence, which he has duly done. If the Ld. CIT on the same set of evidence forms an opinion, it being a question of fact, does not given him jurisdiction to revise the same u/s 263 of the Act. This is certainly a case of difference of opinion between Assessing officer and CIT. The only contention of the CIT seems that the Assessing officer should have made further enquiries / investigation, which he has not done. However, for assuming jurisdiction u/s 263, one has to keep in mind the distinction between lack of i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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