9911796707
TMI Blog2023 (4) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of the Act was served upon the assessee by email through ITBA Portal on 25.09.2018. The reason for limited scrutiny under CASS was large value cash deposits during demonetization as compared to return of income. Notice under Section 133(6) of the Act was duly issued to the Union Bank of India on 02.05.2019 requiring the bank statement of the reported bank account in SFT. It was found from the said bank documents that the assessee deposited cash of Rs.11,08,000/- during demonetization. Specific queries were issued on 18.01.2019 and 03.04.2019 requiring the assessee to furnish the details of cash deposit and the source thereon. In response to the same, the assessee duly submitted all details. After being satisfied on perusal of the details, evidences including e-submissions filed by the assessee on 17.05.2019, the Ld. AO accepted the returned income of the assessee. However, the same was, subsequently, found to be erroneous. As per the Ld. PCIT, it was finalized without enquiry or verification and thus further directed to be reassessed by the Ld. AO by invoking Section 263 of the Act. Hence, the instant appeal before us. 4. The brief facts leading to the case is this that the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found to be viable particularly when the assessee has been depositing cash in bank on a regular year to year basis in F.Y. 2014-15 & 2015-16 and therefore, the Ld. PCIT proposed to initiate the proceedings under Section 263 of the Act which was culminated into quashing of the order dated 29.11.2009 passed under Section 143(3) of the Act with a further direction upon the Ld. AO to make de novo examination, enquiry and verification of the all aspects of the matter and to pass an order afresh upon granting opportunity of being heard to the assessee, on the premise that the Ld. AO failed to conduct the investigation on the facts required to be examined and verified to complete assessment as per law particularly in view of amended provision of Clause (a) to Explanation 2 of Section 263(1) of the Act. 5. It appears from the records placed before us and also scrutiny assessment order dated 29.11.2019 passed by the Ld. AO that sufficient enquiry was made to the issue involved in this particular case including the source of deposit of cash of Rs.11,08,000/- by the assessee during demonetization period. The said fact is evident from the following observation made by the Ld. AO : "3. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessed us 143(3) of the Income Tax Act, 1961 as above. Issue demand notice and challan Charge interest us 234A 2348 234C & 234D as per rules, if any. Give credit to prepaid taxes, if any, after necessary verification." 6. In fact, we find without going into this particular aspect of the matter that the assessee though received the amount in cash out of the agreement for sale entered into by the assessee alongwith two co-owners with the prospective purchaser, namely, Sanjeev Agrawal, the same was kept with him due to the dispute arose in regard to the title of the property resulting into court proceedings initiated by the parties and was pending adjudication before different judicial forums, the Ld. CIT(A) sought to invoke the provision of Section 263 of the Act attempting to take advantage of Explanation 2 of Clause (a) of Section 263(1) of the Act alleging no enquiry and/or investigation conducted by the Ld. AO on this particular fact of depositing cash of Rs.11,08,000/- by the assessee which in our considered opinion, is nothing but non-application of mind and further colourable exercise of power, arbitrary, whimsical and erroneous in nature. In this regard, we have considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been conducted properly by the Ld. AO which, in our considered opinion, in this particular fact of case, is found to be just opposite as it is established from the observation made in the order so passed by the Ld. AO. The fact of the case and the corroborative evidences is sufficient enough to accept the plea taken by the assessee in not depositing the amount in Bank and kept it with him for a long period particularly keeping in view of the order passed by the Hon'ble Additional District Judge, Bhopal M.P. and the proceeding pending in First Appeal before the Hon'ble High Court at M.P. 8. Even otherwise, it is also held in several decisions that the said Explanation does not give unfettered power to the PCIT to assume revisionaljurisdiction to revise every order of the Assessing Officer to re-examine the issues already examined during assessment-proceeding. It is judicially interpreted in several decisions that the intention of legislature behind introduction of Explanation 2 could not have been to enable the PCIT to find fault with each and every assessment-order in unlimited terms, since such an interpretation would lead to unending litigation and there would not be any point o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient to permit the Commissioner of Income-tax to exercise powers under section 263 of the Act because when two views are possible and the Commissioner of Income-tax does not agree with the view taken by the Assessing Officer, the assessment order cannot be treated as erroneous and prejudicial to the interests of the revenue unless the view taken by the Assessing Officer is unsustainable in law. That is not the position in the present case. In fact even the partial denial of relief under section 80-1 of the Act has been found to be incorrect by the appellate authority. Therefore, existence of two views stands established. In the aforesaid circumstances, the Commissioner of Income-tax could not have exercised jurisdiction under section 263 of the Act as per settled legal position. 26. The view expressed by this court in the case of Shashi Theatre (P.) Ltd. (supra), therefore, is in consonance with not only the requirement of law but concludes the issue insofar as the present case is concerned. Just as it is not possible to decide grant of investment allowance in relation to one or the other item without considering the eligibility thereof, similarly deduction under section 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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