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TMI Blog2024 (10) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... der has not mentioned anything about the survey operations conducted in assessee's case and nothing is stated with regard to the income offered towards unexplained stock of diamonds. The argument of the assessee is that the AO has examined and has taken a conscious decision to accept the income declared. However we are unable appreciate this contention of the assessee since the AO's order does not even mention the fact that there has been survey and therefore the claim that the AO has applied his mind while accepting the income offered by the assessee towards unexplained diamonds found during survey does not have merit. As decided in the case of Malabar Industrial Co. Ltd [ 2000 (2) TMI 10 - SUPREME COURT] held that non- enquiry bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 28.02.2024 for Assessment Year (AY) 2018-19. The assessee raised the following grounds of appeals: No error in the Order The learned Pr.CIT erred on facts and in law in passing the impugned Order dated 280 February, 2024 passed under 5.263 of the Act when there is no error in the Order of the AO which is sought to be revised. Relief claimed: The order passed under s.263 of the Act be cancelled. 2. The learned Pr. CIT erred on facts and in law in not appreciating that the provisions of 5.68, 69, 5.694,5.69B,s.69C and s.69D of the Income-tax Act, 1961 do not apply in the case where income referred to in those sections is voluntarily included in the Return of Income filed by an assessee. Relief claimed: Tax be not-worked out under s. 115 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. The Assessing Officer (AO) completed the assessment assessing the income at Rs. 95,73,471/-. From the assessment records, the PCIT noticed that the assessee while filing the return of income had included excess stock of Diamonds found during the course of survey action to the tune of Rs. 50,03,200/- under the head Income from Other Sources and has paid normal tax. The PCIT was of the view that since the assessee has accepted the said income towards unexplained stock of loose diamonds the income should be added under section 69B as unexplained investments and to be taxed under section 115BBE. The PCIT accordingly issued a show-cause notice under section 263 of the Act. The assessee submitted that the stock of loose diamonds was exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has failed to verify/examine the issue with respect to income from other sources, and on the facts and circumstances of the case, it can be said that the A.O. had not sought any explanation from the assessee and also failed to properly examine the issue, which has rendered the assessment order erroneous in so far as it is prejudicial to the interest of revenue. 5 The various Courts have held time and again that if the AO failed to conduct proper enquiries, the resultant assessment order may be held to be erroneous. In CIT Vs. Ballarpur Industries, [(2017) 85 Taxman.com 10 (Bombay)], the Bombay High Court had held that where the AO allowed claim of deduction without examining the said claim, the Commissioner was justified in invoking revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer with the direction to pass a fresh assessment order considering the issues raised in the notice u/s. 263 of the Act in accordance with law and after affording an opportunity of being heard to the assessee. 4. The ld. AR submitted that during the course of survey proceedings, the assessee offered excess stock of diamonds and the same was offered to tax under the head Income from Other Sources while filing the return of income instead of business income erroneously. The AO during the course of assessment has accepted the said income returned by the assessee and completed the assessment accordingly. The ld. AR further submitted that since the income has already offered to tax the addition cannot be made under section 69B of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vey operations conducted in assessee's case and nothing is stated with regard to the income offered towards unexplained stock of diamonds. The PCIT invoked the powers of revision under section 263 for the reason that the AO has not made any enquiry or examination with regard to income offered towards unexplained diamonds found during search. The argument of the assessee is that the AO has examined and has taken a conscious decision to accept the income declared. However we are unable appreciate this contention of the assessee since the AO's order does not even mention the fact that there has been survey and therefore the claim that the AO has applied his mind while accepting the income offered by the assessee towards unexplained dia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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