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TMI Blog2022 (4) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating on similar issue in B A Plantation Industries Ltd Vs CIT [ 2006 (12) TMI 101 - GAUHATI HIGH COURT] where Hon ble Lordship have emphasised the ratio decidendi laid in Sirpur Paper Mill Ltd. [ 1970 (4) TMI 4 - SUPREME COURT ] that while exercising power, the Commissioner must have an unbiased mind and decide the dispute according to the procedure which is consistent with the principles of natural justice and cannot permit his mind to be influenced by the dictation of another authority. On the other hand, in no case, mere audit information form a sole basis material and renders the order of assessment erroneous, and the very absence of tangible material before the revisionary authority itself sufficient to hold the action as unsustainable in law and this view has been invigorated in Jeewanlal limited [ 1975 (12) TMI 34 - CALCUTTA HIGH COURT] Also in CIT Vs Gabriel India Ltd [ 1993 (4) TMI 55 - BOMBAY HIGH COURT] has also taken similar view that, unless the revisionary authority forms a conclusion on the basis of concrete, tangible evidential material, it cannot reach to the conclusion rendering the order of assessment erroneous and prejudicial to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eady on record. Hence, it is prayed that the order passed by the LD. PCIT under the provisions of section 263 of the Act may please be cancelled quashed in limine. GROUND NO.III 3. On the facts and circumstances of the case as well as in law. The LD. PCIT has grossly erred in setting aside the assessment order passed by the Ld. AO under section 143(3) of the Act with direction to make fresh assessment on specified issue by holding that the said order is erroneous in so far as it is prejudicial to the interest of the revenue. The Ld. PCIT has failed to appreciate that the said assessment order has been passed by the Ld. AO after conducting necessary diligent enquiries and conscious application of mind deliberation to the material on record and hence, it is prayed that the order passed under section 263 of the Act being highly unjustified and not in accordance with the provisions of law, may please be cancelled. GROUND NO.IV 4. On the facts and in circumstances of the case as well as in law. The Ld. PCIT has grossly erred in holding that the Ld. AO has not conducted proper enquiries in respect of unsecured loan creditor, particularly without hims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing to the rival contentions of both the parties; perused material placed on record and duly considered the facts of the case in the light of settled legal position and the case laws relied upon by the appellant assessee as well the respondent revenue. 6. Ground no 5 is general and residuary, whereas ground to 1 is legal ground and rest are meritorious, which we shall deal with chronologically in the succeeding paragraphs. As is evinced form the records that; 6.1 The appellant is a private limited company, for the AY 2016-2017 filed its ITR on 16/03/2017 declaring the total income ₹7,320/-, the return of income was selected for complete scrutiny by issue of notice u/s 143(2) of the Act dt. 18/09/2017 and by further issue of notice u/s 142(1) dt 09/07/2018 requisite information with supporting documents were called out, in compliance thereof, the appellant vide its first reply dt 24/07/2018 filed online written submission along-with documentary evidence in support of its claims. In furtherance thereof the assessee vide its second reply of even date e-filed balance submission with enclosure / attachment. Considering the evidential material placed in reply to the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 8. At this juncture, before going into the merits, we first deal with the legal ground raised by the appellant company and to hit the ball on the bails, it would be apt to reproduce the provision of section 263(1) in verbatim as it stood and applicable to the AY under consideration; 8.1 263. Revision of orders prejudicial to revenue (1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous insofar as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. (2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. (Emphasis Supplied) 8.2 An unadorned reading of this provision makes it clear that, the precond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice dt. 09/07/2018 issued u/s 142(1) of the Act, an explicit queries with respect to unsecured loan exceeding the ceiling of ₹2.00Lakhs were raised, thereby calling upon the assessee to explain the genuineness of the loan accepted / taken by filing tangible documentary evidences in the form of copies of income tax returns, capital accounts, financial statements, bank account statement/passbook of the creditors and in reply thereto vide letter dt. 04/10/2018 an unreserved submission were matured before the Ld. AO in the form of annexure-5 to online reply, consequent to which inquiries into very existence vis- -vis identification of creditor company, genuineness and creditworthiness were conducted on the basis of evidential documents made available and thereupon in the light of supportive material, drawn even-handed conclusions, without proposing or carrying out any addition u/s 68, and thereby left no bubbles in the order of assessment. Per contra, the revisionary action and order u/s 263 of the Act, both entirely marshal out of an audit objection communicated by the revenue audit team and in the circumstance of complete material absentia supporting the assumption of revis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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