9911796707
TMI Blog2022 (9) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... of enquiry and inadequate enquiry, it would be relevant to make a reference to the order of the coordinate Bench in the case of Sanjay Jain Others [ 2022 (3) TMI 1189 - ITAT CHANDIGARH] wherein, the co-ordinate Bench relied upon the judgment of the Hon ble Delhi High Court in the case of CIT Vs. Sunbeam Auto Ltd. [ 2009 (9) TMI 633 - DELHI HIGH COURT] and also the judgment in the case of ITO Vs. DG Housing Projects Ltd. [ 2012 (3) TMI 227 - DELHI HIGH COURT] wherein High Court has ruled that one has to keep in mind the distinction between lack of inquiry and inadequate inquiry and further if any inquiry was found to be inadequate, that would not by itself give occasion to the Commissioner to pass the order u/s 263 merely because he has a different opinion in the matter. Further, the Ld. PCIT has not pointed out as to what further inquiries were required to be made and how without those inquiries, the order of the Assessing Officer was erroneous in so far as being prejudicial to the interests of revenue. Contention of the assessee that in the case of husband, Shri Inderjit Singh, on similar facts and circumstances, 148 proceedings were filed has also to be duly considered as on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidences were filed before the AO in that regard. In view of the submissions of the assessee, the AO accepted the returned income. 2.1. Subsequently, the Ld. PCIT issued a show cause notice under section 263 of the Act and it was pointed out by the Ld. PCIT during the proceedings before him that an agreement to sell dated 01.11.2010 existed and payments of Rs. 6,00,000/- and 2,50,000/- had been made on 28.11.2010 and 01.12.2010 respectively. As per the Ld. PCIT, the assessee could not explain these documents and, therefore, the Ld. PCIT reached the conclusion that there was a complete lack of enquiry and non-application of mind by the AO and that the assessing officer had failed to reconcile facts stated by the assessee in her statement in response to particular summons issued by the CIT(A)-2, Ludhiana (basis of information for re-opening the case) and further that the AO had not raised any query regarding dates of payments mentioned in the agreement to sell and had passed the assessment order in haste thereby making the impugned order erroneous as well as prejudicial to the interest of the revenue. The Ld. PCIT set-aside the assessment order and directed the AO to frame a fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no actual delay in filing of the appeal before the Tribunal. 4. The Ld. CIT DR did not refute the contentions of the Ld. AR vis-à-vis the issue of condonation of delay. 5. Accordingly, looking into the facts of the case and also the cause of the delay, as has been explained by the Ld. AR, and respectfully following direction of the Hon'ble Apex Court as aforesaid, we admit the appeal for the purpose of hearing by holding that there is no delay in the filing of this appeal. 6. The Ld. AR submitted that the assessee is working as a teacher in Ludhiana and on the basis of information received in the case of the assessee as well as her husband Shri Inderjit Singh, their cases were reopened on the basis of identical reasons. It was submitted that as per the reasons recorded in the cases of both the assessee as well as her husband, they had jointly purchased a plot of land measuring 200 sq yrds. from one Sri Nirmal Singh. It is was further submitted as per the said information, the agreement to sell was entered into in A.Y. 2011-12 for which stamp papers were purchased on 01.11.2010 and the assessee and her husband were said to have paid an amount of 11,50,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evisionary proceedings in the case of the husband. 7. Per Contra, the Ld. CIT DR argued that the AO had erred in not considering the statement of the assessee wherein she had admitted that the payment of Rs. 11,50,000/- had been made in assessment year 2011-12. It was argued that, apparently, the AO had not applied his mind to the reasons for which the reassessment proceedings had been initiated and that he had accepted the version of the assessee without making due enquiries. It was further submitted that the case of the assessee's husband cannot be relied upon by the assessee for the simple reason that each and every case as an independent case and further the fact remained that no enquiry had been conducted by the AO in the case of the assessee. 8. We have heard the rival submissions and have also perused the material on record. It is seen that the assessee, in response to the notice issued by the AO, had clarified before the AO that no payment towards purchase of plot had been made during assessment year 2011-12 and the AO had accepted this contention of the assessee as the assessee cannot be expected to prove the negative. In our considered view, if the Ld. PCIT doubted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been held as under:- "5. From the finding of the Tribunal, it is clear that the assessee had given proper explanation by filing the necessary confirmations view of such a finding, the Tribunal rightly held that power under section 263 of the Act could be exercised where view taken by an Assessing Officer was erroneous. While exercising such power, the Commissioner was bound to take into account all relevant facts. If order invoking the said power proceeds on an erroneous assumption, the same could be set-aside by the Tribunal. Finding of the Tribunal is not shown to be perverse. No substantial question of law arises." 8.4. Reliance by the assessee on various judgments quoted as mentioned supra in the case of PCIT Vs. Kesoram Industries Ltd. (Hon'ble Calcutta High Court) reported in (2020) 423 ITR 180 (Cal), is also relevant, in which, it has been held as under:- "Revision-Powers of Commissioner - order of Tribunal setting aside revision order on ground issues raised by Commissioner, had been considered by the Assessing Officer and order not erroneous - Reasoned order based on facts - Need not be interfered with - Income tax Act, 1961 m SS 253, 254, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
