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TMI Blog2019 (10) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... ss income u/s 44AD of the Act and has not maintained books of accounts. On perusal of return of income pertaining to the assessment year 2014-15, there was no capital account found. Hence, the expenditure incurred on registration amount to 14,08,345/- remained unproved/unexplained. CIT was of the view that apparently the registration expenditure was paid on undisclosed income and was liable to be taxed which has not been done by the assessee. The facts of the present case would fall where the A.O. did not conduct any enquiry or examined the evidence whatsoever related to the issue under consideration. There was total absence of enquiry or verification. Therefore, we do not see any infirmity into the action of the Ld. CIT for setting aside the assessment order and remitting the assessment to the file of the A.O. with a direction to examine the issues of difference of market value of the property in question and verifying the source of expenditure incurred on registration of the property after affording proper opportunity to the assessee. Assessee has placed on record a valuation report that was not before the authorities below. We therefore, in the interest of justice admit this val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 7.12.2016. The A.O. assessed the total income at ₹ 2,40,080/- as declared by the assessee. Subsequently, the Ld. Pr. CIT-1 initiated proceedings u/s 263 of the Act and issued a notice calling upon the assessee as to why the assessment order so framed be not revised. In response to the notice, the assessee filed a written submission. After considering the submissions of the assessee, the Ld. CIT set aside the order of the A.O. and directed the A.O. to reframe the assessment order. Against this, assessee is in present appeal. 4. Ld. Counsel for the assessee Mr. Girish Agrawal has vehemently argued that the action of the Ld. CIT(A) in revising the concluded assessment is not justified. He submitted that in the original assessment proceedings, the A.O. has duly examined the issue. The A.O. made enquiries related to the issue. He submitted that the assessment order cannot be considered to be erroneous and prejudicial to the interest of the revenue. Merely because the A.O. did not make enquiry in the manner what Ld. Pr. CIT wanted. He further contended that Ld. Pr. CIT ought to have himself made enquiry if he was of the view that the assessing officer made inadequate e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was required to be added back in the total income of the assessee under the head of "Income from other sources" as per provisions of section 56(2)(vii)(b) of I.T. Act but this was not found done in scrutiny by the Assessing Officer. b. It is further observed that your contention that you paid registration expenses out of your savings and capital. Assessee has shown business income u/s 44AD of I.T. Act and has not maintained books of account on perusal of return of 2014-15 there was no capital account found. In view of above, the registration expenses of ₹ 14,08,345/- remained unproved/unexplained, hence apparently the registration expenditure was paid from undisclosed income, and was liable to be taxed which has not been done by A.O." 7. It is not controverted by the assessee that there was a difference between the sale consideration as disclosed by the assessee and the valuation as adopted by the stamp valuation authority. We have perused the assessment order. There is no whisper on this issue. Ld. Counsel for the assessee vehemently argued that during the assessment proceedings, the A.O. had in fact issued a questionnaire u/s 142(1) of the Act and also notice u/s 143(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed 4 on or before or after the 1st day of June, 1988 ] by the Assessing Officer shall include- (i) an order of assessment made by the Assistant Commissioner or the Incometax Officer on the basis of the directions issued by the Deputy Commissioner under section 144A; (ii) an order made by the Deputy Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief Commissioner or Director General or Commissioner authorised by the Board in this behalf under section 120; (b)" record" 5 shall include and shall be deemed always to have included] all records relating to any proceeding under this Act available at the time of examination by the Commissioner; (c) where any order referred to in this sub- section and passed by the Assessing Officer had been the subject- matter of any appeal, 6 filed on or before or after the 1st day of June, 1988 ] the powers of the Commissioner under this sub- section shall extend 1 and shall be deemed always to have extended] to such matters as had not been considered and decided in such appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustainable in law. In some cases, possibly though rare, the CIT can also show and establish that facts on record or inferences from fact on record per se justified and mandated further enquiry or investigation but the A.O. had erroneously not undertaken the same. However, the said finding must be clear and unambiguous and not debatable. The matter cannot be remitted for a fresh decision to the A.O. to conduct further without a finding that the order is erroneous. Finding that order is erroneous is a condition for requirement which must be satisfied for exercise of jurisdiction u/s 263 of the Act. In such matter, to remand the matter to the A.O. would imply and mean that the CIT has not examined and it is whether or not the order is erroneous but has directed the A.O. to decide the aspect/question. In the light of judgement of the Hon'ble Delhi High Court in the case of ITO Vs. DG Housing Projects Ltd. (supra), it can be concluded that where there is enquiry but the findings are incorrect/erroneous and where there is failure to make proper or full verification or enquiry, the Ld. CIT cannot remit the matter without coming to the conclusion and himself deciding that order is erro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in various date and incurred registration expenses of ₹ 14,08,345/- which was also paid in cash. On perusal of purchase deed of above said property, it was noticed that the 'market value' of the property was adopted by Stamp Valuation Authority for ₹ 1,80,53,000/-. As such, difference amount of ₹ 55,53,000/- (1,80,53,000-1,25,00,000) was required to be added back in the total income of the assessee under the head of "Income from other sources" as per provisions of section 56(2)(vii)(b) of I.T. Act but this was not found done in scrutiny by the Assessing Officer. b. It is further observed that your contention that you paid registration expenses out of your savings and capital. Assessee has shown business income u/s 44AD of I.T. Act and has not maintained books of account on perusal of return of 2014-15 there was no capital account found. In view of above, the registration expenses of ₹ 14,08,345/- remained unproved/unexplained, hence apparently the registration expenditure was paid from undisclosed income, and was liable to be taxed which has not been done by A.O." 13. Hence, there is a clear distinction between the facts of the case that was before the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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