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TMI Blog2023 (10) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Malabar Industrial Co. Ltd. [ 2000 (2) TMI 10 - SUPREME COURT] and Max India Ltd. [ 2007 (11) TMI 12 - SUPREME COURT] has held that once the issue was considered by the A.O., the remedy of the revenue could not lie in invoking of the jurisdiction u/s. 263 of the Act. Therefore, the order of the Ld. C.I.T. was definitely outside the purview of section 263. The exercise aimed at ascertaining the correct income of the assessee has been fulfilled by the Ld. A.O. by exercising his quasi-judicial functions vis-a-vis passing the assessment order u/s. 143(3) - certainly it is not a case wherein adequate enquiries at the assessment stage were not carried out or assessment was made in haste. What is an opinion formed as a result of these enquiries and verification of the materials is something which is in exclusive domain of the Assessing Officer, and even if Ld. Pr. Commissioner does not agree with the results of such enquiries, the resultant order cannot be subjected to revision proceedings. It is a settled position in law that provisions of section 263 of the Act do not permit substituting one opinion by another opinion. Therefore, the order of the Ld. Pr. C.I.T. cannot be sustaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able on record that the assessee had deposited cash amounting to Rs. 90,00,000/- in the joint bank account maintained with Kotak Mahindra Bank Ltd, Nirman Branch, Mumbai, during the financial year ( F.Y.) 2012-13 relevant to assessment year (A.Y.) 2013-14, the case of the assessee was reopened u/s 147 of the Act, for assessment year (A.Y.) 2013-14 and notice u/s 148 of the Act was issued on 31.03.2021. In response to the notice u/s 148 of the Act, the assessee filed return of income on 30.04.2021, declaring total income at Rs. 18,460/-. During the course of reassessment proceedings before the assessing officer, the assessee contended regarding the source of the aforesaid cash deposits that he had received cash from two parties as advance against an agreement to sale of land i.e. Satakhat. The cash so received was deposited in bank account. Further, the assessee submitted that the two parties withdrawn the cash from their bank account and was given to the assessee. The then assessing officer considered the reply of the assessee and therefore the assessment was finalized u/s. 143(3) r.w.s. 147 of the Act on 04.02.2022 determining total income at Rs. 2,69,660/- and agriculture income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /proof of sale to SMCS in support of assessee's contention regarding sale of sugarcane. Further, during the proceedings before the ITO (I&CI), the assessee had not contended about any other sources for cash deposits in the bank account except the sale of sugarcane. The assessing officer therefore, should have made necessary inquiry or verification regarding an altogether different explanation for source of cash i.e. advance received from two parties. Further, the assessing officer failed to verify the reasons for withdrawal of huge cash by Smt. Sadhnaben A. Patel and Shri Sumanbhai Desai who are shown to have given cash to the assessee out of the withdrawal from their bank accounts despite the fact that assessee was having a bank account. Therefore, ld PCIT held that assessment order dated 04.02.2022, as passed by the assessing officer u/s 143(3) r.w.s.147 of the Act, is erroneous and prejudicial to the interest of revenue and the same has been passed without application of mind. Therefore the assessing Officer was directed by ld PCIT to make a fresh assessment. 6. Aggrieved by the order of ld. PCIT, the assessee is in appeal before us. 7. Shri Rasesh Shah, Learned Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted further enquiry therefore assessment order passed by the assessing officer is erroneous and prejudicial to the interest of Revenue and therefore order of ld PCIT may be upheld. 11. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. PCIT and other material brought on record. We note that assessing officer has examined the issue raised by ld PCIT during the assessment proceedings. The assessing officer has reproduced the reply made by the assessee during the assessment proceedings in the assessment order itself, which is reproduced below for ready reference: "4. The assessee has given reply vide letter dated 20.01.2022, which was received in this on 31.01.2022 in response to notice u/s 142(1) of the I.T. Act dated 23.11.2021. The relevant portion is reproduced under: "Assessee is in receipt of your notice u/s. 142(1) of the Act vide notice no. ITBA/COM/F/17/2021-22/1037160732(1). In this regard, the assessee states as under: 1. Assessee has duly filed return of income in respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted extract of 7/12 which is placed at page no.48 of the paper book. The assessee also submitted the Satakhat Agreement between Sumanbhai R. Desai, Sadhnaben A. Patel and Champakbhai D. Patel, which is placed at page no.49 of the paper book. The assessee submitted agreement of cancellation of sale, which is placed at page no.54 to 58 of the paper book. The assessee also submitted copy of passport, which is placed at page no.59 to 63 of the paper book. The copy of power of attorney in favour of Bhaveshbhai N. Patel which is placed at page no.64 to 66 of paper book. The assessee submitted the bank statement of Kotak Mahindra Bank bearing A/c. No.08171050000674, which is placed at page no.67 to 68 of the paper book. 14. In respect of Sumanbhai R. Desai, the assessee submitted the following documents and evidences before the Assessing Officer: (i) Contra ledger confirmation (vide Pb.71) (ii) Acknowledgment of Return of Income along with the Computation of Total Income (vide Pb.72 to 73) (iii) Surat Nagrik Sahakari Bank Statement with A/c. No.CA01429 (vide Pb.74) 15. In respect of Sadhanaben Ashokbhai Patel, the assessee submitted the following documents and evidences: (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been rightly invoked or not is, therefore, not simply existence of the view, as professed by the Commissioner, about the lack of necessary inquiries and verifications, but an objective finding that the Assessing Officer has not conducted, at the stage of passing the order which is subjected to revision proceedings, inquiries and verifications expected, in the ordinary course of performance of duties, of a prudent, judicious and responsible public servant that the Assessing Officer is expected to be. [Para 20] That brings one to next question, and that is what a prudent, judicious, and responsible Assessing Officer is to do in the course of his assessment proceedings. Is he to doubt or test every proposition put forward by the assessee and investigate all the claims made in the income tax return as deep as he can? The answer has to be emphatically in negative because, if he is to do so, the line of demarcation between scrutiny and investigation will get blurred, and, on a more practical note, it will be practically impossible to complete all the assessments allotted to him within no matter how liberal a time limit is framed. In scrutiny assessment proceedings, all that is req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that once the issue was considered by the A.O., the remedy of the revenue could not lie in invoking of the jurisdiction u/s. 263 of the Act. Therefore, the order of the Ld. C.I.T. was definitely outside the purview of section 263 of the Act. As noted above, the exercise aimed at ascertaining the correct income of the assessee has been fulfilled by the Ld. A.O. by exercising his quasi-judicial functions vis-a-vis passing the assessment order u/s. 143(3) of the Act. Therefore, certainly it is not a case wherein adequate enquiries at the assessment stage were not carried out or assessment was made in haste. However, what is an opinion formed as a result of these enquiries and verification of the materials is something which is in exclusive domain of the Assessing Officer, and even if Ld. Pr. Commissioner does not agree with the results of such enquiries, the resultant order cannot be subjected to revision proceedings. For that we rely on the decision of the Coordinate Bench of I.T.A.T., Kolkata in the case of Smt Juthika Kar vs. ITO [I.T.A. No.1128/Kol/2009, dated 16.5.2012], wherein it has been held as under (relevant portion):- "8……However, what is opinion formed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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