9911796707
TMI Blog2019 (11) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... onstrained to bring on record, to be looked into by the Central Board of Direct Taxes (CBDT) that proceedings u/s 263 of the Act have been initiated in this case apparently on the basis of false, frivolous and baseless allegations with malafide intention of the quarter concerned which were also examined and found not sustainable by the Vigilance Directorate of Income-tax Department. Senior Officer of the Revenue Department had not only got the proceedings u/s 263 initiated against Appellant on false, frivolous and baseless allegations rather continued to litigate against the appellant as well as against the Revenue Department by filing frivolous applications one after the other before the Hon ble High Court of Delhi as well as the Tribunal. We direct the CBDT to initiate a discreet enquiry in this case to find out, as to how and under what circumstances on the basis of false, frivolous and baseless allegations, that too with malafide intentions, proceedings u/s 263 of the Act have been initiated apparently to victimize the appellant, to proceed against the guilty officials under Rules and to further frame the guidelines to deal with such abuse of powers by the senior officers, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent/Revenue by filing reply opposed the intervening applications moved by the Intervener on the grounds inter alia that the Applicant being a third party has no locus standi to be an Intervener in the present appeals; that even Hon ble High Court vide order dated 01.03.2013 in Cont.App.(C) 1/2013 and CM No.854/2013 (stay) in the case of S.K. Srivastava vs. Shumana Sen Anr. a connecting matter has ordered that, no communication addressed by the Petitioner qua any issue should be given any cognizance or to be taken into consideration ; that the Intervener is not an affected party in any manner as the appeals before the Tribunal are between the Department and the Appellant only. The Appellant also opposed the application moved by the Intervener on the almost identical grounds raised by the Revenue. 7. Bare perusal of the averments made in the applications and reply filed thereto and the facts and circumstances of the case apparently prove that except for writing a DO letter/complaint by the Applicant being CIT (OSD) addressed to CIT-XIV, New Delhi alleging that the assessee had incurred expenditure on foreign travels along with his family that was in exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer to the show cause notice for A.Y 2006-07 which reads as under: Show cause notice u/s 263 of I.T. Act (For A.Y. 2006-07) Pursuant to completion of assessment for A.Y. 2006-07 on 31.03.2013, it was reported to this office that there has been serious errors in framing the assessment and those errors have caused substantial prejudice to the interest of revenue. In view of the specific issues of law and facts involved, a factual report was received from the Assessing Officer (A.O.) through the Range in-charge and on the same being received the records of assessment from the Assessing officer were also called for and has been examined. The concerned A.O. [DCIT Circle 40 (1)], New Delhi and Addl. CIT, Range- 40, New Delhi in their factual report as submitted to undersigned, have raised following issues in the matter of assessment completed by the assessment order dated 31.3.13 passed u/s 147/143(3) in your case for A Y 2006-07 which requires consideration in terms of extant provisions of law: 1. That the AO has made assessments u/s 148/143(3) for A.Y.2006-07 by accepting the returned income without conducting prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tective basis, as ₹ 3,75,893/- is to be substantively assessed in your hands i.e. Ms. Shumana Sen (PAN AMQPS5036G) who is separately assessed in the A.Y.2006-07 by following Lalji Haridas Vs ITO Anr.(SC) 43 ITR 387. 4. That the assessment order passed by the A.O. in your case for AY 2005-06 to 2008-09 u/s 148/143(3) by accepting the returned income in these A. Ys. are erroneous and prejudicial to the interest of the revenue as the A.O. has not conducted proper enquires in your case suggesting for remedial action u/s 263 of the I. T. Act, 1961 and in view of the following case laws: 1. Rampyari Devi Saraogi vs CIT(SC) 67 ITR 84 2. Malabar Industrial Co. Ltd. vs CIT(SC) 243 ITR 83 3. Swarup Vegetable Products Industries Ltd. vs CIT(AIL) 187 ITR 412 4. CIT vs Eastern Medikit Ltd. (Del) 58DTR 265; 337 ITR 56. In view of the above errors reported by the Assessing Officer and also the Addl. CIT, the undersigned has called for and examined the relevant assessment records for AY 2005-06 to 2008-09 in your case to find out if the Assessment Order dated 31.03.2013 as passed for A.Y. 2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e A. O. has recorded the statement of your spouse Shri Abhisar Sharma at your residence but similar opportunity was not offered to the complainant for cross examination. 4. That It is seen from the assessment order of Shri Abhisar Sharma, your spouse in A. Y.2006-07 made on 28.03.2014 that an addition on account of unexplained expenditure incurred due to such foreign visits has been made of an amount of ₹ 7,51,786/- on substantive and protective basis, since the assessee has not submitted any details whether he funded foreign trips of his wife or not and as such 50% of such amount of ₹ 3,75,893/- is assessed as substantive and the balance amount of ₹ 3,75,893/- is to be assessed on protective basis, as ₹ 3,75,893/- is to be substantively assessed in the hands of assessee's wife Ms. Shumana Sen (PAN AMQPS5036G) who is separately assessed in the A.Y. 2006-07 by following lalji Haridas Vs ITO Anr.(SC) 43 ITR 387. 5. That the A.O. was not provided any evidence either by you or the witnesses examined by you in case of Abhisar Sharma your spouse to support your claim about receipt of perquisites from your spouse's employer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visits were also not examined. Thus, considering the above, the undersigned is of the opinion that the said assessment order dated 31.3.2013 in your case is erroneous and prejudicial to the interest of revenue as such since, no proper enquiry has been conducted and no proper law has been invoked in the said assessment order as the AO failed to conduct proper enquiry and failed to apply proper law leading to said assessment Order being as erroneous as well as prejudicial to the interest of revenue, and in support, the following case laws are quoted for necessary action u/s 263 of the IT Act, 1961 against the assessment order dated 31.3.13 passed u/s 147/143(3) for AY 2006-07 in your case. (1) Rampyari Devi Saraogi vs CIT(SC) 67ITR 84 (2) Malabar Industrial co. Ltd. vs CIT(SC) 243 ITR 83 (3). Swarup Vegetable Products industries ltd. vs CIT(AIL) 187 ITR 412 1 (4) CIT vs Eastern Medikit Ltd. (Del) 58DTR 265; 33 7 ITR 56. In view of the above facts and circumstances and the law governing the issues involved undersigned is of the considered view that, prima-facie, the Assessment Order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenged by the assessee before Hon'ble Delhi High Court in CWP No-4022 of 2012 titled as Shumana Sen vs. CIT Delhi XIV Ors, and vide judgment dt. 19.10.2012 stood upheld by Hon'ble Delhi High Court and was accepted by the assessee and has attained finality and unless it was proved by the assessee beyond reasonable doubts that the content and issues of law involved in the satisfaction note of the Assessing Officer was not borne out from record, the same could not have been rejected and as Assessing Officer has not done the same, the Assessment Orders dated. 31.03.2013 are bad in-law and erroneous and have caused prejudice to revenue. 14(B) Based upon material available on record, the assessments for A.Y.s 2005-06, 2006- 07, 2007-08 2008- 09 were reopened on the conclusion that an income exceeding ₹ 1,00,000/- in every assessment year had escaped assessment and the same had, on being challenged before Hon'ble Delhi High Court, been upheld by Order dt. 19.10.2012. Thus, it was incumbent upon the Assessing Officer to inquire into the correctness or otherwise of the grounds based upon which assessments were reopened. But the Assessing Officer has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so not examined. 14(F) During the assessment proceedings of assesse s spouse (Sh. Abhisar Sharma), his A.O. was not provided any evidence either by the assessee s spouse or the witnesses examined by the assessee s spouse, to support his claim about receipt of perquisites from the employer/s of assessee s spouse being taxable u/s 17(2)/Form 12BA and Rule 26A/Form-16 regarding assessee s foreign trip to Europe with her spouse and other members of family at the cost of the spouse s employer. Despite not getting any evidence u/s 17 (2) as such, the A.O. of assessee s spouse has made addition in the hands of assessse s spouse as undisclosed perquisites provided by M/s NDTV Ltd. to be taxed u/s 17 (2). There is no evidence available either from M/s NDTV Ltd. or from Sh. Abhisar Sharma to substantiate the un-explained perquisite as held by the Assessing Officer to be taxed as such, because there is no provision in the I.T. Act. 1961 for taxing unexplained perquisite and the unaccounted expenditure that was incurred by the assessee on the trips abroad of the assessee and her family was to be dealt with only u/s 69C of the Income Tax Act, 1961, which was not done by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the assessment orders passed u/s 147/143(3) for A.Y. 2005-06 to A.Y. 2008- 09 in this case: (1) Rampyari Devi Saraogi vs CIT(SC) 67 ITR 84 (2) Malabar Industrial Co. Ltd. Vs CIT(SC) 243 ITR 83 (3) Swarup Vegetable Products Industrial Ltd, 22 CIT(AIL) 187 ITR 412 (4) CIT Vs Eastern Medikit Ltd. (Del) 58 DTR 265; 337 ITR 56. 15. As against the above noted findings, It is observed from the written submissions made by the assessee that objections on the following points, relevant to the notice u/s 263 and the issues raised therein, have been made in written submissions filed before this office (for the sake of brevity, the written submissions of the assessee on these issues are not being repeated, as these have already been extracted above verbatim, only comments and views taken on these issues of objections raised are being placed below) 15(A) In the first place, as regards the Preliminary Objections raised by the assessee by her letter dated 20.03.2015 (received by speed post on 23.03.2015), the following ,. observations are made: The proceedings u/s 263 in this as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the charge of the undersigned that the assessee has alluded to, in the Preliminary Objections , still the Preliminary Objections raised by the assessee at the time of conclusion of proceedings have been considered, deliberated upon and kept in mind while adjudicating on the main issues discussed hereafter only to ensure a clinical analysis of material available on record. Having observed thus, these orders are now being passed with full awareness of the objections raised by the assessee and with full consciousness of the responsibility cast upon the undersigned in this matter which is being considered with as robust a sense of objectivity as is in command of the undersigned. 15(B) Validity of notice u/s 263- the notice u/s 263 is validly issued based on findings from the assessment order and the reports of A.O/Addl. CIT extracted above so as to afford the assessee opportunity of being heard before proceedings u/s 263 are finalized in the case as the order of the A.O. was found to be erroneous and prejudicial to the interest of revenue The issues raised in the notice u/s 263 elaborately indicate adequate errors in the assessment order causing prejudice to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsider an order of the Assessing Officer to be erroneous not only if there is some apparent error of reasoning or of law or of fact but also where it is a stereotyped order which simply accepts what the assessee has stated in his return and fails to make inquiries which are called for in the circumstances of the case and it is not necessary for the Commissioner to make further inquiries before cancelling the assessment order of Assessing Officer. The facts of the present case, if judged on the touchstone of above legal position propounded by the Hon ble Apex Court, and section 263 per se unmistakably establish that the order of the A.O. was erroneous and prejudicial to the interest of Revenue. 15(D) Case for review u/s 263 of A.O s order. As against the submissions made by the assessee, there is a valid case for review u/s 263 of) T Act in view of the erroneous order of the A.O. which is prejudicial to the interests of revenue as has been elaborately clarified in the paras above while pointing out errors in the assessment order and the new facts which remain to be examined by the A.O. Therefore, the assesssee s plea that the findings in the show cause notice have al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding reasonable opportunity of being heard to the assessee. The A.O. is directed to make all necessary inquiries with the concerned agencies to ensure that all the issues which are subject matter of this revision order u/s 263 as per the findings given in paras-(14)(A) to (14)(J) above, are properly examined vis -a-vis the evidences collected and required to be collected, the claims made by the assessee regarding such evidences and the position of law, so as to ensure that the errors pointed out in this order and the prejudices erased to revenue as per this order are eliminated and the amounts involved in these issues are taxed in the hands of the assessee or in any other hands as per law. 15. We have given thoughtful consideration to the orders of the authorities below. A perusal of the aforementioned findings of the PCIT show that the entire quarrel is in respect of travel of the assessee alongwith her spouse abroad and the expenditure incurred by the spouse of the assessee. The PCIT is of the firm belief that the Assessing Officer failed to conduct proper enquiry and failed to apply proper law leading to the said assessment order being erroneous as well as preju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt with M/s NDTV Ltd. before, during and after her stint in Circle-13(1). New Delhi. Pursuant to the receipt of the copy of the TEP the matter was independently examined in exercise of independent quasijudicial discretion by the undersigned. It was found that the Returns of Income of Mrs. Sumana Sen an existing assessee in this office for the relevant period i.e. A.Y. 2004-2005, 2005- 2006, 2006-200 7, 200 7-2008 2008- 2009 relevant for F. Y. 2003- 2004, 2004- 2005, 2005-2006, 2006-2007 Si 2007-2008 does not disclose in any manner whatsoever the details and other particulars of her foreign travelling and the expenditure incurred on that including the source thereof, the quantum thereof the status of that amount of money a tut taxability of the same, in view of the fact that the particulars pertaining to the expenditure incurred on foreign travels has been admitted before Hon'ble Delhi High Court and also before the departmental authorities, prima-facie, a case of non-disclosure of information about expenditure incurred by the assessee in the returns of income stands made out which primafacie appears to have escaped the incidence of tax because of nondisclosure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sources of expenditure incurred by the assessee on her foreign travels during the above mentioned period required to be verified to ascertain the correct and full tax payable by the assessee on her taxable income. In view of the facts and circumstances stated hereinabove and the material available on the record of this office. I have reasons to believe that income far in excess of the limit prescribed in law and much more than the limit of Rs. One lakh prescribed in section 149/1 Kb) of the Income Tax Act. 1961 has escaped assessment diming A. Y. 2005-2006,2006-2007, 2007-2008 2008-2009 and to bring the escaped income to tax, re-assessment proceedings are required to be initiated for A. Y. 2005-2006, 2006-2007. 2007- 2008 2008-2009 U/s 147 of the Income Tax Act, 1961 and notice U s 148 is to be issued welt within the limitation period. It is further highlighted that the complainant in his Tax Evasion Petition has alleged evasion of tax and concealment of income during the period October. 2003 to October, 2007 which is material for A. Y. 2004-2005. 2005-2006. 2006-2007, 2007-2008 2008-2009. Out of this the A. Y. 2004-2005 is no longer open for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 issued by NDTV Ltd. to Sh. Abhisar Sharma and thereby it is clear that expenditure incurred on the vacation abroad of Ms Shumana Sen was not the salary of Sh. Abhisar Sharma but bribe and illegal gratification received by Ms. Shumana Sen ay DCIT Cir. 13(1), for favouring M/s NDTV Ltd. illegally. 17. The reopening vis a vis notices u/s 148 of the Act was challenged by the assessee before the Hon'ble High Court of Delhi by way of writ petition and the said writ petition was disposed of by the Hon'ble High Court vide order dated 19.10.2012 in WP(C) No. 4022/2012 CM Appeal 8436-8438/2012. The Hon'ble High Court held as under: In the circumstances, we are not inclined to accept the submissions of the petitioner. We accordingly hold that the notice issued on 28 03' 2012 u s 148 of the Act for AY 2005- 06 was within the jurisdiction of the Assessing officer. The AO is directed to dispose off the objections filed by the petitioner within a reasonable time and at any rate not later than 30/11/2012, if not disposed off We refrain from expressing any opinion on the various allegations and counter allegations which were exch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment proceedings, the Assessing Officer called for information u/s 133(6) of the Act from NDTV Ltd in the case of Abhisar Sharma [spouse of the assessee]. The following information was called for: Sh. Abhisar Sharma was employed by M/s NDTV Ltd. during October 2003 to October 2007, i.e. financial year 2003-04,2004- 05,2005-06,2006-07 and 2007-08. You are requested to provide the following information u/s 133(6) of the Income-tax Act, 1961 In the above mentioned financial years for the period October 2003 to Oct, 2007, there are five financial years involved i.e.2003- 04 to 2007-08, you are therefore required to provide authenticated copies of: 1. The employment contract of Sh. Abhisar Sharma with M/s NDTV Ltd. for this period i.e. from Oct. 2003 to Oct. 2007. 2. Copy of Form No. 16 issued to Sh. Abhisar Sharma for this period. 3. Copy of Form No. 12BA( Rule ( 26a(2) ) provided to Sh Abhisar Sharma, month wise break up salary, showing the amount of salary actually paid, tax deducted and value of perquisites included in total emoluments for each month separately. 4. Amount of expend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.2013, in response to summons u/s 131 of the Act, statement of the assessee was recorded. The relevant portion reads as under: In response to Summon u/s 131 of the l.T. Act, 1961, the asses see eel the ease on 25/3/2013 and statement on Oath was recorded. The relevant portion is as under:- 08. As per Tax evasion petition. Sh S.K Srivastava alleged that you have incurred expenditure to the tune of ₹ 3 Crores or more on such foreign travels during the financial year 2004-05 2005-06 2006-07 and 200^-08, whether you have gone to foreign trip during the financial year 2004-05. 2005-06. 2006-07 and 2007-08. What is the source of the expenditure incurred, and how much expenditure you have actually incurred with documentary evidence? Ans: As per the allegation made by Sh. S.k Srivastava is concerned, the same is completely false, baseless and malicious. They are also unsubstantiated, without any evidence or any basis. 1 would like to point out here that Sh. S.K Srivastava has been in the habit oj making such allegations. Consequently, he had to tender an apology before the Hon.hie High Court of Delhi for making such unsubstantiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns made had been examined by the Vigilance directorate of the department as well as seniors and file had been closed pursuant to the same. So, have you any documentary evidence for this verification? Ans: I have no documents in my possession regarding the same However, as had been requested by my letter dated 11/03/2013. a copy of the report may be sought from the concerned authorities. Without prejudice to the same, it Is stated that these allegations have been withdrawn by the complainant as already been stated above by me and therefore have no bearing to the impugned assessment proceedings. 22. Proceeding further, the Assessing Officer issued summons u/s 131 of the Act to Shri Abhisar Sharma, husband of the assessee whose statement was recorded on oath on 29.03.2013. The relevant part of the statement reads as under: Q No 7 As per Tax Evasion Petition, Sh. S.I Srivastava alleged to Ms Shumana Sen H o Sh. Abhisar Sharma have incurred expenditure to the tune of ₹ 3 crores or more on such foreign travels during the financial year 2004-05, 2005- 06, 2006- 07 and 2007-08 . Whether you have gone to foreign trip during the financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r annum and my savings. 1 had a balance of approx. ₹ 1,65,271 - in my account at that time. Boarding and lodging in U.K. was at my wife's Aunt place and in Ireland the boarding and lodging was through a package tour, made by travel agent The trip was for 7 to 10 days. 4. There was no foreign trip with family for the Asstt. Year. 2008-09 0.9. Ms Shuman Sen your wife has claimed in her writ Para3.43. page 17 and 18, a copy of affidavit submitted in Hon'ble Delhi High Court that her trip to Europe arose because of a yearly vacation abroad with family being part of salary package of Sh. Abhisar Sharma declared to be her spouse and an employee to M/s NDTV Ltd. in this context what do you want to say? Ans. 9. It has been correctly stated by my wife that foreign travel allowance was part of my salary package. The same is evident from the submissions made by me in my reply above in Q No. 8 Copy of bank statement of Abhisar Sharma with Standard Bank also examined to verify the withdrawals for foreign trip. 23. During the course of assessment proceedings, the assessee brought to the notice of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bhisar Sharma for AY. 2005-06 to AY.2008-09. b) .Information u/s 133(6) of If Act, 1961 was obtained from DIT(Vigilance)-II, New Delhi regarding outcome vigilance proceedings in case of the assessee visa vis NDTV Ltd. c) . Information u/s 133(6) of IT Act, 1961 from ACIT Circle 47(1), New Delhi regarding investigations conducted in case of Abhisar Sharma and assessment order passed for AY.2005-06 by him. d) Statements recorded u/s 131 of IT Act,1961 of Sh. S.K. Srivastava, Sh. Abhisar Sharma and the assessee. e) Bank statements of Abhisar Sharma with Standard Chartered Bank and that of the assessee with Syndicate Bank were examined vis a vis these foreign trips. Bank statement with ICICI Bank (joint account of assessee with her husband) were examined. f ) Apart from it information u/s 133(6) was called from ACIT(Finance) O/o CCIT-I, New Delhi, ACIT(Personnel) O/o CCIT-I, New Delhi and M/s British Airways and same was obtained. g) Copies of passports of the assessee and Abhisar Sharma were examined for verification of these foreign Travels by undersigned and ACIT Circle 47(1), New Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rces of these foreign travels was foreign travel allowance provided by M/s NDTV Ltd. and his personal savings and the assessee and her daughter had accompanied him as family members. There are supporting withdrawals in the bank account of Abhisar Sharma regarding their foreign travels. j). A complaint to this effects was being processed by Vigilance Directorate of Income Tax Department against the assessee which has been closed as per details outlined in proceeding. paragraphs. The facts of the complaint were same and related foreign travels of the assessee w.r.t. M/s NDTV 1 td. k). The Assessing officer of Sh. Abhisar Sharma has made an addition for undisclosed perquisites in hands of Abhisar Sharma in AY. 2005-06 in regard to the two economy tickets and US $ 1000 received by him from M/s NDTV Ltd. 1) Thus, the reasons outlined in reopening of assessment do not stand proved in view of the employment contract provided by M/s NDTV Ltd. and other investigations conducted as elaborated above m). The statements recorded of Sh Abhisar Sharma u/s 131 of IT Act,1961 is separately being forwarded to ACIT Circle 47(1), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Services (Pension) Rules, 1972. 29. Adverting to the facts of the case, we find that it is a settled position of law that powers u/s 263 of the Act can be exercised by the Commissioner on satisfaction of twin conditions, i.e., the assessment order should be erroneous and prejudicial to the interest of the Revenue. By 'erroneous' it is meant contrary to law. Thus, this power cannot be exercised unless the Commissioner is able to establish that the order of the Assessing Officer is erroneous and prejudicial to the interest of the Revenue. Thus, where there are two possible views and the Assessing Officer has taken one of the possible views, no action to exercise powers of revision can arise, nor can revisional power be exercised for directing a fuller enquiry to find out if the view taken is erroneous. This power of revision can be exercised only where no enquiry, as required under the law, is done. It is not open to enquire in case of inadequate inquiry. Our view is fortified by the decision of Hon'ble High Court of Bombay in the case of CIT vs. Nirav Modi, [2016] 71 taxmann.com 272 (Bombay). This view is further supported by the decision of the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so far as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent--if the order of the Income-tax Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous but is prejudicial to the Revenue-- recourse cannot be had to section 263(1) of the Act. The provision cannot be invoked to correct each and every type of mistake or error committed by the Assessing Officer, it is only when an order is erroneous that the section will be attracted. An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous . 32. The co-ordinate bench in the case of Technip UK Ltd, ITA No. 1116/DEL/2014 vide order dated 17.12.2018 has held as under: 62. We find the Hon'ble Delhi High Court in the case of CIT Vs. Anil Kumar reported in 335 ITR 83 has held that where it was discernible from record that the A.O has applied his mind to the issue in question, the ld. CIT c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this does not justify the conclusion arrived at by the CIT that the AO had shirked his responsibility of examining and investigating the case. More so, in view of the fact that the assessee explained that the capital investment made by the partners, which had been called into question by the CIT was duly reflected in the respective assessments of the partners who were I.T. assessees and the unsecured loan taken from M/s Stutee Chit Finance (P) Ltd. was duly reflected in the assessment order of the said chit fund which was also an assessee. 64. Since in the instant case the A.O after considering the various submissions made by the assessee from time to time and has taken a possible view, therefore, merely because the DIT does not agree with the opinion of the A.O, he cannot invoke the provisions of section 263 to substitute his own opinion. It has further been held in several decisions that when the A.O has made enquiry to his satisfaction and it is not a case of no enquiry and the DIT/CIT wants that the case could have been investigated/ probed in a particular manner, he cannot assume jurisdiction u/s 263 of the Act. In view of the above discussion, we hold tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have estimated the income at a figure higher than the one determined by the Income-tax Officer. That would not vest the Commissioner with power to re-examine the accounts and determine the income himself at a higher figure. It is because the Income-tax Officer has exercised the quasi-judicial power vested in him in accordance with law and arrived at conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. It may be said in such a case that in the opinion of the Commissioner the order in question is prejudicial to the interests of the Revenue. But that by itself will not be enough to vest the Commissioner with the power of suo motu revision because the first requirement, viz., that the order is erroneous, is absent. Similarly, if an order is erroneous but not prejudicial to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. Such decision of the Income-tax Officer cannot be held to be erroneous simply because in his order he did not make an elaborate discussion in that regard. Moreover, in the instant case, the Commissioner himself, even after initiating proceedings for revision and hearing the assessee, could not say that the allowance of the claim of the assessee was erroneous and that the expenditure was not revenue expenditure but an expenditure of capital nature. He simply asked the Income-tax Officer to re-examine the matter. That, in our opinion, is not permissible. Hence the provisions of section 263 of the Act were not applicable to the instant case and, therefore, the commissioner was not justified in setting aside the assessment order. 34. The ld. DR, in his written submissions, has relied upon the judgment dated 20.07.2018 of the Hon'ble High Court of Delhi in the case of Braham Dev Gupta 907 of 2017. We find that the facts of the case in hand are not even remotely related to the facts of this case. 35. Reliance was also placed on the decision of the Hon'ble High Court of Delhi in the case of BSES Rajadhani Power Ltd 399 ITR 228 is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oneous but prejudicial to the interest of the revenue. We are of the considered view that the PCIT has wrongly assumed jurisdiction u/s 263 of the Act, hence his combined order for all the A.Ys deserves to be set aside. We, accordingly, set aside the order of the PCIT and restore that of the Assessing Officer. We order accordingly. 40. Before parting with the present order, we are constrained to bring on record, to be looked into by the Central Board of Direct Taxes (CBDT) that proceedings u/s 263 of the Act have been initiated in this case apparently on the basis of false, frivolous and baseless allegations with malafide intention of the quarter concerned which were also examined and found not sustainable by the Vigilance Directorate of Income-tax Department. No doubt, proceedings u/s 263 of the Act having been initiated and completed on the allegations leveled by a Senior Officer of the Income-tax Department is an order passed by a quasi-judicial authority but it sans judicious approach required to be exercised by the quasi-judicial authority. Quasi-judicial proceedings initiated apparently on the basis of false, frivolous and baseless allegations have not only pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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