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TMI Blog2016 (3) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order alone, it has to be examined as to whether any inquiry was at all conducted by the AO. There exists a difference between lack of inquiry and inadequate inquiry. If there were any inquiry, even inadequate that would not give an occasion to exercise jurisdiction u/s 263 of the Act. In view of above facts and circumstances and the decision of Hon’ble Delhi High Court above cited case law and from the facts and in the light of various judicial pronouncements the order of the ld. CIT cannot be held to be sustainable in law and the same is accordingly set aside. - Decided in favour of assessee - ITA No.1227/Kol /2014 - - - Dated:- 5-2-2016 - Shri N.V.Vasusdevan, Judicial Member and Shri Waseem Ahmed, Accountant Member For The Appellant : Shri Subhash Agarwal, Advocate For The Respondent : Shri Sandeep Chaube, CIT-DR ORDER PER Waseem Ahmed, Accountant Member:- This appeal by the assessee is against the order of Commissioner of Income Tax, XX, Kolkata in appeal No.CIT-XX/Kol/Revenue.u/s263/2013- 14/5964 dated 31.03.2014. Assessment was framed by DCIT, Circle-55 Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the form 26AS. But the assessee claimed that out of the above interest a sum of interest for ₹ 64,100.00 was offered for tax in the earlier years. But this fact has not been examined by the AO at the time of assessment. 3) There was survey at the premises of the assessee under section 133A of the Act. However there was no addition made in the assessment of the assessee as a result of survey. There is no mentioned about the tax evasion detected during survey. Besides no survey folder was made available during the proceedings under section 263 of the Act. However the Ld. CIT disregarded the submission of the assessee and held the order of AO is erroneous and prejudicial to the interest of Revenue and restored the file to the AO with the direction to carry out enquiry and investigation on the above listed issues and compute total income accordingly. 3. Aggrieved, assessee is in appeal before us against the order passed by Ld. CIT u/s 263 of the Act. Shri Subash Agarwala, Ld. Authorized Representative appearing on behalf of assessee and Sshri Sandeep Chaube, Ld. Departmental Representative appearing on behalf of Revenue. 4. We have heard the rival submissions of bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neous; and (ii) Is prejudicial to the interest of Revenue; 3) He has to give an opportunity of hearing in this respect to the assessee; and 4) He has to make or cause to make such enquiry as he deems necessary; 5) He may pass such order thereon as the circumstances of the case justify including, (i) An order enhancing or, (ii) Modifying the assessment or (iii) Cancelling the assessment and directing a fresh assessment. Now in the light of above words, we have to examine as to whether the order of the ld. CIT is a valid order in the light of the above stated points/ provisions of section 263 of the Act. Regarding the issue of loss from future and option the AO has raised the query in the notice under section 142(1) of the Act. The relevant extract of the said notice is given below : 9. You are requested to furnish details of i) Loss on sale of share with all supporting papers and ii) Loss A/c future option share with all supporting documents stating a) Opening Balance stating name of shares/future option b) Purchase value with dates c) Sales value with dates d) Dividend received e) Closing balance in both the cases. The reply of the assessee is pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Net Total as on 31.03. 09 The reply of the assessee is placed on page 18 of the paper book which is reproduced below : Accrued Interest on Fixed Deposit A fixed deposit was made for ₹ 7,00,000/- (1,00,000 x 7) with Indian bank on 5-3-07. Against such fixed deposit a sum of ₹ 4,100/- was shown and taxed as accrued interest for asstt. Year 2007-08 and RSs.54,750/- out of total accrued interest of ₹ 60,000/- was taxed as accrued interest for asstt. Year 2008-09. As such on maturity of the said F/D. in the relevant year the gross interest is to be reduced by the interest already taxed in asstt. Year 2007-08 2008-09. From the calculation sheet, your honour will find that inadvertently ₹ 5,250/- has been reduce in excess of eligible deduction. The position stands as under:- Received on maturity on 17-7-2008 Rs.7,64,603/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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