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TMI Blog2019 (11) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... the aspect, whether the Assessing Officer has conducted an inquiry and formed an opinion on the basis of record available before him. He has misread the judgment and applied on the given facts without elaborate discussion. Therefore, to this extent, we are of the view that the ld.Commissioner has rightly taken cognizance under section 263, and has rightly set aside the assessment order. As far as additional show cause notice issued under section 263 on 21.3.2018 is concerned, by way of this notice, the ld.Comissioner wish to inquire the gift received by the assessee for ₹ 6 lakhs from his HUF. We find that this issue was not subject matter of reassessment. The assessment was not reopened for conducting an inquiry on this issue, and therefore the ld.Commissioner cannot take cognizance of an issue which has already attained finality in the regular assessment order passed under section 143(3) on 13.3.2014. The Assessing Officer has nowhere inquired this issue in the assessment order; nor it was subject matter of re-assessment. Therefore, it could not be taken up by the ld.Commissioner for taking up this issue. He should have questioned the original assessment order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oup of relatives as all the members of HUF fall within definition of relatives falling within the provisions of section 56(2)(vii). A copy of the ITAT, Rajkot Bench, Rajkot s order passed in ITA No. 583/Rjt/2007 in the case of Vineet KumarRaghavjibhai Halodia Vs. ITO has also been filed in support of this claim. 4. On perusal of this finding, the ld.CIT harboured a belief that the assessment order is erroneous and prejudicial to the interest of the Revenue because ITAT, Rajkot Bench has not laid down that gift received by a person from non-HUF would still be considered as received from a relative under section 56(2) of the Act. The ld.CIT recorded reasons and issued a show cause notice on 27.2.2018 which has also been reproduced in the impugned order. During the pendency of the proceedings under section 263, it came to the notice of the ld.CIT that a gift of₹ 6 lakhs was also received by the assessee from his own HUF and in the understanding of the CIT, even own HUF will also not be treated as relative within the meaning of definition relative provided in section 56(2). Therefore, the ld.CIT issued an additional show cause notice under section 263 on 21.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) Every loss of revenue cannot be treated as prejudicial to the interests of the Revenue and if the AO has adopted one of the courses permissible under law or where two views are possible and the AO has taken one view with which the CIT does not agree. If cannot be treated as an erroneous order, unless the view taken by the AO is unsustainable under law (vi) If while making the assessment, the AO examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determine the income, the CIT, while exercising his power under s 263 is not permitted to substitute his estimate of income in place of the income estimated by the AO. (vii) The AO exercises quasi-judicial power vested in his and if he exercises such power in accordance with law and arrive at a conclusion, such conclusion cannot be termed to be erroneous simply because the CIT does not fee stratified with the conclusion. (viii) The CIT, before exercising his jurisdiction under s. 263 must have material on record to arrive at a satisfaction. (ix) If the AO has made enquiries during the course of assessment proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers under section 263 of the Act, merely because he has different opinion in the matter. It is only in cases of lack of inquiry , that such a course of action would be open . 9. In the case of Gee Vee Enterprise vs. Commissioner of Income Tax reported in 99 ITR page 375, the Hon ble court has expounded the approach of ld. Assessing Officer while passing assessment order. The observation of the Hon ble court on pages 386 of journal read as under:- it is not necessary for the Commissioner to make further inquiries before cancelling the assessment order of the Income-tax Officer. The Commissioner can regard the order as erroneous on the ground that in the circumstances of the case the Income-tax Officer should have made further inquiries before accepting the statements made by the assessee in his return. The reason is obvious. The position and function of the Income-tax Officer is very diffident from that of a civil court. The statement made in a pleading proved by the minimum amount of evidence may be adopted by a civil court in the absence of any rebuttal. The civil court is neutral. It simply gives decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s extent. 12. Without going into the larger aspect, whether HUF can be considered as a relative or not, we examine the aspect, whether the Assessing Officer has conducted an inquiry and formed an opinion on the basis of record available before him. He has misread the judgment and applied on the given facts without elaborate discussion. Therefore, to this extent, we are of the view that the ld.Commissioner has rightly taken cognizance under section 263, and has rightly set aside the assessment order. 13. As far as additional show cause notice issued under section 263 on 21.3.2018 is concerned, by way of this notice, the ld.Comissioner wish to inquire the gift received by the assessee for ₹ 6 lakhs from his HUF. We find that this issue was not subject matter of reassessment. The assessment was not reopened for conducting an inquiry on this issue, and therefore the ld.Commissioner cannot take cognizance of an issue which has already attained finality in the regular assessment order passed under section 143(3) on 13.3.2014. The Assessing Officer has nowhere inquired this issue in the assessment order; nor it was subject matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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