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TMI Blog2022 (4) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... Source of cash deposit - The fact that the AO had examined the source of cash deposits is evident from the very impugned order as the ld. PCIT has reproduced the cash flow statements furnished before the AO. Further, it is an admitted position that the ld. PCIT had mistaken the cash withdrawals from banks as the cash deposits. PCIT had initiated the revision proceedings on wrong assumption of facts. PCIT was justified in exercising the powers of revision on the issue of source of cash deposits. Thus, the revision is not maintainable on the issue of sources of cash deposits into bank. As regards, the unsecured loan creditors, AO during the course of assessment proceedings had called for the details of loan creditors in order to satisfy himself as to the genuineness of the loan creditors. The appellant also furnished the full details before the AO by filing the ledger extract, particular of PAN of the loan creditors in whose names the loan is outstanding in the books of account. The said ledger extract was certified to be true by respective sundry creditors. AO having considered the information filed before him chosen not to make any addition. No doubt, the assessment order is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised by the assessee in all the above three appeals stand allowed. - ITA Nos.1274, 1275 And 1276/PUN/2017 - - - Dated:- 20-4-2022 - Shri Inturi Rama Rao, Accountant Member And Shri S. S. Viswanethra Ravi, Judicial Member For the Assessee : Shri C. H. Naniwadeker For the Revenue : Shri J. P. Chadraker ORDER PER INTURI RAMA RAO, AM : These are the appeals filed by the assessee directed against the common orders of the ld. Pr. Commissioner of Income Tax-1, Nashik ( PCIT ) dated 17.03.2017 for the assessment years 2008-09, 2009-10 and 2010-11 passed u/s 263 of the Income Tax Act, 1961 ( the Act ). 2. Since the identical facts and issues are involved in all above captioned appeals, we proceed to dispose of the same by this common order. 3. Briefly, the facts of the case are that the appellant is an individual engaged in the business of builders. No returns of income under the provisions of section 139 of the Act were filed for the years under consideration. Therefore, the Assessing Officer had issued notice u/s 148 on 17.01.2014 calling upon the assessee to file the return of income as the income escaped assessment to tax. In response to notice u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -matter of appeal before the CIT(A) who vide order dated 15.12.2015 for assessment year 2011-12 had allowed. However, the ld. PCIT held that opening of cash balances and huge cash deposits have been remain unverified and as regards to the unsecured loans, the ld. PCIT held that the Assessing Officer had accepted the unsecured loans without verification of the same. On the issue of assessment of gains arising on sale of shops, the ld. PCIT held that the submissions of the assessee were merely accepted by the Assessing Officer without looking into the issue whether the shops formed part of stock-in-trade or investments. Finally, the ld. PCIT held that the Assessing Officer had passed the assessment order without application of mind and, accordingly, held that the assessment order is erroneous and prejudicial to the interest of the Revenue and set-aside the assessment order for assessment years 2008-09, 2009-10 and 2010-11 with direction to pass assessment order de-novo after giving a proper opportunity of being heard to the assessee. 5. Being aggrieved by the order of the ld. PCIT passed u/s 263, the appellant is in appeal before us. 6. Ground of appeal no.1 had not pressed dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e genuine accordingly accepted genuineness of unsecured loans. Thus, it was submitted that when the Assessing Officer had examined the issues and took a plausible view, no revision is maintainable. 9. With regard to the issue of assessment of gains on sale of shops, he submitted that this issue was subject-matter of appeal for the assessment year 2011-12 wherein, the CIT(A) had confirmed that the assessment of gains on sale of shops under the head business which came to be affirmed by the Tribunal in ITA No.336/PUN/2016 for A.Y. 2011-12 order dated 18.12.2018 in assessee s own case. Therefore, the same cannot be subject matter of revision under 263. 10. On the other hand, ld. CIT-DR placing reliance on the order of the ld. PCIT passed u/s 263 submits that the assessment order was passed without enquiring into the sources of cash deposits and also into the genuineness of the unsecured loans, an assessment order was passed by the Assessing Officer without application of mind is erroneous and prejudicial to the interests of the Revenue. Thus, it is prayed that the order of revision passed u/s 263 should be upheld. 11. We heard the rival submissions and perused the material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before him chosen not to make any addition. No doubt, the assessment order is silent on this issue. Merely because the assessment order is silent on this issue, it cannot be said that the Assessing Officer had not examined the issue. Once a query has been raised by the Assessing Officer during the assessment proceedings and the assessee has responded to that query, it would necessarily follow, that the Assessing Officer has accepted the assessee's submissions, so as to not deal with that issue in the assessment order. In fact, the Hon ble Bombay High Court in the case of GKN Sinter Metals Ltd. vs. Ms. Ramapriya Raghavan, Asstt. CIT, 371 ITR 225 (Bom.) had occasion to deal with the identical situations, wherein, after referring to its earlier decision in the case of Idea Cellular Ltd. v. Deputy Commissioner of Income Tax, 301 ITR 407 (Bom.) and in the case of Aroni Commercials Ltd. v. Assistant Commissioner of Income Tax, 367 ITR 405 (Bom.) held as follows :- According to the Revenue, it could only be when the assessment order contains discussion with regard to particular claim can it be said that the Assessing Officer had formed an opinion with regard to the claim made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if accepted is to be reflected in the assessment order, then as observed by the Gujarat High Court in CIT v. Nirma Chemicals Ltd. 305 ITR 607, the order would result into an epic tomb. Besides, it would be impossible for the Assessing Officer to complete all the assessments which have to undergone scrutiny at its hand. In the above view, it is clear that once a query has been raised during the assessment proceedings and the Petitioner has responded to the query to the satisfaction of the Assessing Officer as is evident from the fact that the Assessment Order dated 9th March, 2005, accepts the Petitioner's claim for deduction under Section 80-IA/IB of the Act. It must follow that there is due application of mind by the Assessing Officer to the issue raised. 14. Subsequently, the above said decision was followed by the Hon ble Bombay High Court in the case of Marico Ltd. vs. ACIT, 425 ITR 177 (Bom.). Therefore, it cannot be said that there is total lack of enquiry on the part of the Assessing Officer, nor was it the case of the ld. PCIT that the Assessing Officer should have conducted further enquiry. It is trite law that the power of revision can be exercised only in case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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