SMT. SHWETA AGRAWAL,INDORE vs. THE PR. CIT-2, INDORE

आयकर अपील�य अ�धकरण, इ�दौर �यायपीठ, इ�दौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE

BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER

ITA No.280/Ind/2019 Assessment Year:2014-15

Smt. Shweta Agrawal Pr.CIT 82, Ashok Nagar, Indore बनाम/ Indore Vs. (Appellant) (Revenue ) P.A. No.AESPA1653H Appellant by Shri S.N. Agrawal, CA Revenue by Shri Puneet Kumar, Sr. DR Date of Hearing: 20.10.2020 Date of Pronouncement: 21.12.2020 आदेश / O R D E R PER KUL BHARAT, J.M: This appeal by the assessee is directed against the order of ld. Pr. Commissioner of Income Tax (in short ‘Ld. Pr. CIT’)-2, Indore dated 10.01.2019 pertaining to assessment year 2014-15. The assessee has raised following grounds of appeal: “1. That on the facts and in the circumstances of the case and in law, the Ld. Pr. CIT erred in setting aside the order as passed

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by the assessing officer under section 143(3) of the Act by invoking the provision of section 263 of the Act even when the order as passed by the assessing officer was neither erroneous nor prejudicial to the interests of the revenue. 2. That on the facts and in the circumstances of the case and in law, the Ld. Pr. CIT erred in setting aside the order as passed by the assessing officer by invoking the provisions of section 263 of the Act even when the order was passed by the assessing officer under section 143(3) of the Act after conducting necessary enquiries and after due application of mind. 3. that on the facts and in the circumstances of the case and in law, the Ld. Pr. CIT erred in setting aside the order as passed by the assessing officer by invoking the provisions of section 263 of the Act even when the amount of long term capital gain of Rs.22,10,437/- as earned on sale of shares and claimed exempt under section 10(38) of the Act was duly supported with ample documentary evidences which were never disproved during the course of revisionary proceedings. 4. The appellant reserves her right to add, alter and modify the grounds of appeal as taken by her.”

Tax Act 1961(hereinafter referred as the Act) was framed vide order

dated 27.12.2016. The assessing Officer accepted return filed by the

assessee. Subsequently, the Ld. Pr. CIT after examining the records

initiated the proceedings u/s 263 of the Act by issuing the notice

dated 21.12.2017. In response thereto, the assessee filed reply

which was found not acceptable by the Ld. Pr. CIT and therefore, he

set aside the assessment to the file of the assessing officer to

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reexamine the issue.

section 263 of the Act and setting aside the assessment to the file of

the assessing officer.

the Ld. Pr. CIT is contrary to the records and the settled position of

law. He submitted that Ld. assessing officer had made a requisite

enquiry. In this regard, he took us through the notice dated

17.08.2016 enclosed at paper book 116 to buttress the argument

that the assessing officer had made due enquiry in this case, it is

not the case where no enquiry was made. Further, he reiterated the

synopsis as filed by the Ld. counsel for the assessee.

submissions and supported the order of the Ld. Pr. CIT. Ld. DR

further submitted that the assessing officer has not made any

enquiry in respect of the issue. It is the case of no enquiry hence

Ld. Pr. CIT was justified in restoring the issue to the file of the

assessing officer. Ld. D.R further submitted that the case laws as

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relied by the Ld. counsel for the assessee do not help the assessee

under the facts and circumstances of the present case.

available on record and gone through the orders of authorities

below. We find that the Ld. Pr. CIT has issued a notice dated

21.12.2017 calling upon the assessee as to why the assessment

order should not be revised. The relevant contents of the notice are

reproduced as under:

“ Please refer to the assessment order dated 27.12.2016 for A.Y. 2014-15 in your case. On perusal of case record in your case for the A.Y. 2014-15 it is found that you have furnished your return of income declaring total income at Rs.7,39,910/- on 31.03.2015. Assessment in your case u/s 143(3) of I.T. Act 1961 was completed by the ITO-5(3), Indore, vide order dated 27.12.2016 assessing total income at Rs.7,39,910/-. 2. The entire records were gone through by me and on perusal and examination of records it is found that the order dated 27.12.2016 for A. Y. 2014-15 is erroneous in so far as it is prejudicial to the interest of revenue on account of passing of the order without making required enquiries / investigations. 3. As per available records, it is found that' during the course of assessment proceedings for A. Y. 2014-15, the case was selected for complete scrutiny under CASS with the reason as under: "Suspicious transaction relating to long term capital gain on share (Inputs front Investigation Wing)'" You had purchased and sold the share of M/ s Sunrise Asian Limited as per the chart below:' Particulars Purchase Sale Date Purchas Expen Sale Cost LTC Gain eia se on Date e Cost sale Equity 16.01.20 14.02.201 72500 7964 1410526 1330062 hshares .. of a . 'sunrise , dAsian

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278 Equity 16.01.20 28.02.201 25000 491700 463917 3 cshares lof asunrise iAsian 249 416458 nt:quity 16.01201 04.03.201 22500 441450 2 eShares cPf sunrise ln1sian 13,239 23,43,676 22,10,43 Total 1,20,00 ~ You had claimed Rs.22,10,437/- as exempt L.T.C.G. in return] income filed by you . The claim has been derived from the alleged investment in the share of M/ s Sunrise Asian Limited., which has been classified as penny stock Company. From. the office note appended to the assessment order also it is found that "the AO has questioned this issued but did not carry out any enquiry/ investigation and accepted the claim .Accepting the said claim without conducting appropriate enquiry/ Investigation renders the assessment order U/s 143(3) dated 27/12/2016 erroneous and resultantly not disallowing .the said claim render the assessment order is prejudicial to the interest of revenue. You are, the fore, required to show cause why provisions of section" 263 be not invoked in your case for the reasons mentioned above as the order of AD dated 27.12.2016 is erroneous in so far as it is prejudicial to the interest of revenue .. 3. You are, accordingly, given an opportunity to attend my office on 09.01.2018at 11:15 A.M.and produce necessary evidences, explanation, etc in support of your contentions and arguments. You are also directed to attend with all documentary evidence that may be required for the purpose of the hearing of the case. If you fail to attend the hearing, it shall be presumed that you have nothing to say in the matter and order u/ s 263 shall be passed on merit and on the basis of facts available on record.

are same as under:

A show cause notice U/s 263 dt 21-12-2017 of the Income Tax Act has been issued in the case of the above assessee for the Asst Year 2014-15. In reply to the said show cause notice, we have to submit as under:-

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1) That in the show cause notice, you have stated that case of the assessee was selected for the reason for suspicious transaction relating to long term capital gain on share. The assessee had shown long term, capital- gain of Ps: 22, 10,437/ - on sale of shares of M/s. Sunrise Asian Limited, That in the show cause notice you have also reproduced table of long term capital gain on sale of shares of M/ S Sunrise Asian Limited, the same is reproduced as under:- 2. That in the show cause notice, you have stated that case of the assessee was selected for the reason for suspicious transaction relating to long term capital gain on share. The assessee had shown long term capital gain of Rs 22,10,437/ - on sale of shares of M/ S Sunrise Asian Limited. That in the show cause notice you have also reproduced table of long term capital gain on sale of shares of M/ S Sunrise Asian Limited, the same is reproduced as under-

S.No. Name of Date of Date of Purchase Expenses Sale LTCG the purchase sale cost on sale proceed company 1 Sunrise 16.1.12 14.2.14 72500 7964 1410526 1330062 Asian Ltd. 2 Sunrise 16.1.12 28.2.14 25000 2783 491700 46391.7 Asian Ltd. 3 Sunrise 16.1.12 4.3.14 22500 2492 441450 416458 Asian Ltd. That in the show cause notice you have referred the scripts in which long term capital gain was earned by the assessee as penny stock. In the concluded para you have stated that:- «From the office note appended to the assessment order also it is found that the AO has questioned this issue but did not carry out any enquiry / investigation and accepted the claim. Accepting the said claim without conducting appreciate enquiry / investigation renders the assessment order U/s 143(3) dated 27/ 12/2016 erroneous and resultantly not disallowing the said claim render the assessment order is prejudicial to the interest of revenue. You are, therefore) required to show cause why provisions of section 263 be not invoked in your case for the reasons mentioned above as the order of AO dated 27-12- 2016 is erroneous in so far as it is prejudicial to the interest of revenue. " 3.1 The assessee in addition to the long term capital gain on sale of shares of M/ S Sunrise Asian Limited) also earned long term capital 6

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gain of Rs 5)39) 969/ - on sale of shares of M/ S Idea Limited. Hence) it is proved beyond doubt that the assessee made regular investment in shares & securities. 3.2 The assessee during the course of assessment proceeding filed various documents as to justify the genuineness of the Profit on sale of shares as Long term capital gain) the same is also summarized as under- M/s Sunrise Asian Limited 1 Purchase note as issued by M/s P Saji Textiles Limited regarding sale of shares of M/s Conart Trader’s Limited (Now known as M/s Sunrise Asian Limited) to the assessee is enclosed 2 Copy of Share transfer form for transfer of shares in the name of the assessee 3 Copy of Share certificate, duly transferred in the name of the assessee 4 Copy of Amalgamation Order passed by Bombay High Court for the amalgamation of M/s Santoshima Tradelinks Ltd and M/s Conart Traders Ltd., forming a new company M/s Sunrise Asian Limited 5 Copy of D-mat statement of the assessee with the Union Bank of India forthe period 01/04/2013 to 31/03/2014 6 Copy of share certificate as issued by the amalgamated company M/s Sunrise Asian Limited 7 Copy of Dematerialisation Request form to Union Bank of India for dematerialisation of shares of M/s Sunrise Asian Limited 8 Sale note Dt. 14/02/2014 for sale of 2,900 shares issued by Indira Securities Pvt. Ltd 9 Sale note Dt. 28/02/2014 for sale of 1,000 shares issued by Indira Securities Pvt. Ltd 10 Sale note Dt. 04/03/2014 for sale of 900 shares issued by Indira Securities Pvt. Ltd

3.3) The assessing officer during the course of scrutiny assessment issued summon UIs 131 of the Act and statement of the assessee was also recorded on oath The assessee in her statement also explained the correct nature of transaction of Long term capital gain on sale of shares of M/ S Sunrise Asian Limited. 3.41 The assessing officer after receiving all the papers and recording of the statement of the assessee accepted the claim of Long term capital gain as genuine. 3.51 That on perusal of sale bills of M/ S Indira Securities P Limited, SIT was also deducted on the sale proceeds on sale of shares. 7

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3.61 Copy of Quotation at the time of sale as downloaded from the site of the BSE is also enclosed as to justify the sale price on sale of shares of M/ S Sunrise Asia Limited. S.No Name of the comnany Period M/ s Sunrise Asian Limited . 1 01-02-14 to 28-02-14 2 M/ s Sunrise Asian Limited 01-03-14 to 31-03- 3 M/ s Sunrise Asian Limited 10-02-14 to 07-03- 4 M/ s Sunrise Asian Limited Jan, 13 to Jan. 15 3.7) That perusal of the above quotation It is evident that share price of the shares on which these were sold by the assessee was duly verifiable. Hence, the assessing officer was rightly accepted the long term capital gain as shown by the aseessee 4.1 That in the present case in hand, the assessing ·officer had make exhaustive inquiry and collect all the documents from the assessee and also recorded her statement. Hence, as per explanation 2 to section 263111 of the Act, the assessment order in question shall not be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue. 4.2 That Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. CIT [20001 243 ITR 83 (SC) after considering the decisions of Rampyari Devi Saraogi (supra) and Smt. Tara Devi Aggarwal (.mpra): "There can be no doubt that the provision cannot be invoked to correct each and every type of mistake or error committed by the Assessing Officer; . it is only when an order is erroneous that the section will be attracted. An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same . category fall orders passed without applying the principles of natural justice or without application of mind. The phrase 'prejudicial to the interests of the revenue 'has to be read in conjunction with an erroneous order passed by the Assessing Officer. , Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the revenue, for example, when an ITO adopted one of the courses permissible in law and it has resulted in loss of revenue; or where two views are possible and the ITO has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the ITO is unsustainable in law. It has been held by this Court that where a sum not earned by a person is assessed 8

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as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to -the interests of the revenue Rampyari JJ.e1.Ji Saraoqiu •. CIT 119681671 TR 84 (SC) and in Smt. Tara Aggarwal v. CIT {19731 88 ITR 323 (SC)". 4.3] Hon'ble Delhi High Court in the case of CIT us. Sun Beam Auto reported in 227 CTR 113 has pointed out a distinction between lack of inquiry and inadequate inquiry. If there is a lack of enquiry, then the assessment order can be branded as erroneous. The following observations of the Hon'ble Delhi High Court c worth to note:- "12. We have considered the rival submissions of the counsel on the other side and have gone through the records. The first issue that arises for our consideration is about the exercise of power by the Commissioner of Income-tax under section 263 of the Income-tax Act. As noted above, the submission of learned counsel for the revenue was that while passing the assessment order, the Assessing Officer did not consider this aspect specifically whether the expenditure in question was revenue or capital expenditure. This argument predicates on the assessment order which apparently does not give any reasons· white collecting entire expenditure as revenue expenditure. However, that by itself would not be indicative of the fact that the Assessing Officer had not applied his mind on the issue. There are judgments galore laying down the principle that the Assessing Officer in the assessment order is not required to give detailed reason in respect of each and every item of deduction, etc. Therefore, one has to see from the record as to whether there was application of mind before allowing the expenditure in question as revenue expenditure. Learned counsel for the assessee is right in his submission that one has to keep in mind the distinction between "lack of inquiry" and "inadequate inquiry". If there was any inquiry, even inadequate, that would not by itself, give occasion to the Commissioner to pass orders under section 263 of the Act, merely because he has different opinion in the matter. It is only in cases of "lack of inquiry", that such a course of action would be open". . 4.41 Hon'ble. Ahmedabad Bench of ITAT in the case of MIS Jay Agriculture Test vs. Pr. CIT (Appeal No. Income-tax Act, 1961. No.605/Ahd/2015 dated. 01.01.2015 has held that 01-2015 has held that" .' ' ,20. On due consideration of these facts, we are of the view that the AO has' examined the issue, though not discussed elaborately in the assessment order. But on record, he has called for information. from the assessee and thereafter accepted. It is the

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prerogative of the AO what to discuss in the assessment order and the assessee cannot force the AO to draft the assessment order in a particular manner. The assessment order cannot be termed erroneous as well as prejudicial to the interest of the Revenue on the ground that inquiry conducted by the AO. 4.5J Hon'ble Mumbai bench of ITAT in the case of Reliance Money Infrastructure Ltd Vs Pr CIT as reported in 51 CCH 0166 has held that :- 26. In view of the foregoing discussions, we note that the AO has passed the assessment order after obtaining and calling for details/clarifications of all the seven issues raised by the Pr. CIT in' the revisionary proceedings and thereafter framed the assessment whereas the Id Pr. CIT has not specified in his order. as to how the order of the AO is erroneous so as to prejudicial to the interest of the revenue. The Pr. CIT has even made roving direction that the AO may examine any other issue which may come to his notice in the set aside proceedings. Thus evidently it is not a case of no inquiry or wrong application of law or wrong assumption of facts and therefore the revisionary jurisdiction. exercised by the PCIT is not proper and as per the provisions of the section itself. We are of the considered opinion that in the present case the AO has specifically called for explanation from the assessee on all points during the course of assessment proceeding and thereafter has taken a possible view. Moreover, it is not necessary for the AO to give detailed findings or elaborate in the assessment order on each and every issue which has been examined during the course of scrutiny proceedings. Besides, the case of the assessee is squarely covered by the ratio laid down in the various case laws referred to by the Id AR discussed briefly hereinabove while a series of cases relied upon by the revenue have been carefully perused and are found to be distinguishable of facts and are not applicable. The amendment to section 263 is also prospective. Thus, the reversionary proceedings u/ s 263 of the Act are not validly initiated in view of the facts that the issues raked up by the Pr. CIT stand: examined by the AO in the assessment proceedings and the Id Pr CIT has failed to state as to how the order of AO is erroneous and not in accordance with law or settled legal position. Even on merit, the assessee is entitled to all the deductions/ claims as per the provisions of the Act. Considering all these facts in totality and respectfully following the ratio laid down in the various decisions cf th« Jurisdictional and other High Courts, we are of the considered view that the jurisdiction by the Pr. CIT u/ s 263 of the Act was invalidly assumed. Accordingly we set aside the proceedings u/ s 263 of the Act as being invalid and also consequent u/ s 263 of the Act. 4.61 These principles have been re-iterated by the Apex Court in

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its judgment in Commissioner of Income Tax vs Amitabh Bachan {2016 (3) KLT SN.4 (C.No.3) SCI, where the court inter alia held thus:"There can be no doubt that so long as the view taken by the Assessing Officer is a possible view the same ought not to be interfered with by the Commissioner under S.263 of the Act merely on the ground that there is another possible view of the matter. Permitting exercise of revisional power in a situation where two views are possible would really amount to conferring some kind of an appellate power in the revisional authority. This is a course of action that must be desisted from. 4.7. I]The order as passed by the assessing officer was not erroneous, since, the view as taken by the assessing officer was- one of the possible view the basis of documents as furnished by the assessee. Hence, the order as passed by the assessing officer was not erroneous and prejudicial order. 4.7.2} That Hon'ble Apex Court in the case Of CIT Vs Max India Limited as reported ~ 295 ITR 0282 has held that:- "2. At this stage we may clarify that under para 1 0 of the judgment in the case of Malabar Industrial Co. Ltd. (supra) this Court has taken the view that the phrase "prejudicial to the interest of the Revenue" under s. 263 has to be read in conjunction with the expression "erroneous" order passed by the AD. Every loss of revenue as a consequence of an order of the AD cannot be treated as prejudicial to the interest of the Revenue. For example, when the 11'0 adopted one of the courses permissible in law and it has resulted in loss of revenue; or where two views are possible and the ITO has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the Revenue, unless the view taken by the AO is unsustainable in law. " 4.7.3 That Hon'ble Jurisdictional High court in the case of CIT vs Associated Food Products (P) Ltd as reported in 280 ITR 0377 has held that:- 9. In view of the aforesaid pronouncement of law and taking into consideration the language employed under s. 263 of the Act, it is clear as crystal that before exercise of powers two requisites are imperative to be present. In the absence of such foundation exercise of a suo motu power is impermissible. It should not be presumed that initiation of power under suo motu revision is merely an administrative act. It is an act quasijudicial authority and based on formation of an opinion with regard to existence of adequate material to satisfy that the decision taken by the AD is' erroneous as well as prejudicial to the interests of the Revenue. The concept of "prejudicial to the interests of the Revenue" has to be correctly

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.. 'dnct"sou.ndly understood. It precisely means an order 'which ha« not been passed in' consonance with the principles of law which has in ultimate eventuate affected realisation of lawful revenue either by the State has not been realised or it has gone beyond realisation. These two basic ingredients have to be satisfied as sine qua non for exercise of such power. On a perusal of the material brought on record and the order passed by the CIT it is perceptible that the said authority has not kept in view the requirement of s. 263 of the Act inasmuch as the order does not reflect any kind of satisfaction. As is manifest the said authority has been governed by a singular factor that the order of the AD is wrong. That may be so but that is not enough What was the sequitur or consequence of such order qua prejudicial to the interest of the Revenue should have been focused upon. That having not been done, in our considered opinion, exercise of jurisdiction under s. 263 of the Act is totally erroneous and cannot withstand scrutiny. Hence, the Tribunal has correctly unsettled and dislodged the order of the CIT. 5 That in view of the above, 'in the present case, the assessing officer make detailed inquiry and after duly verification. from the documents as submitted by the assessee, claim of long term. capital. gain as exempt u/» 10138) of the Act was accepted by the assessing officer which on the basis of documents as furnished by the assessee was correct and acceptable view. Hence, you are requested to drop the show cause notice as issued u/ s 263 of the Act.

submissions of the assessee revised the order thereby he restored

the assessment order to the file of the Assessing Officer to examine

the issue of Long term Capital Gain and pass an order as per law

after making proper enquiry and investigation as indicated in the

impugned order.

material available on records and gone through the

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impugned order. We find that Ld. Pr. CIT has revised the

order by observing as under :-

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unverified. It is also not denied that the transactions have been routed through banking channels and established through Demat account but the same also is insufficient to hold any transaction to be genuine without proper enquiry in this regard. 3.1.2. The submission of the assessee cannot be accepted as the fact remains that the AO has not examined this aspect .during the course of scrutiny proceedings. He recorded the statement of the assessee but no further enquiry to corroborate the facts stated in the statement was done by the AO. It is noted that not even the trade data has been called for to examine the transactions. No enquiry has been made from the exchanges either. No examinations/ enquiries have been done from the company whose shares have been subjected to sale in order to show the said LTCG., In this case there was a report of DDT(Inv), Kolkata regarding manipulations in scrip and it has been informed that the scrip was used to convert one's, unaccounted income into accounted by adopting colorable device. The AO ignored the report and didn't make any further verification or inquiry or correspondence with the investigation wing, Kolkata and proceeded to pass the order. The issue required further verification and enquiries which have not been done by the AO during the course of scrutiny proceedings. Therefore, the assessment is erroneous in so far as it is prejudicial to the interest of revenue as per the definition given in Explanation 2 to sec. 263 on this issue. 4. Therefore, in view of the above discussions, the assessment order u/ s 143(3) dated 27.12.2016 for AY 2014-15 is' erroneous in so far as it is prejudicial to the interest of revenue in respect of the issues in which necessary enquiry and investigations have not been carried out by the AO as indicated in the discussion; about the respective' issue. 'AO should have' verified' aspects related' to the issues mentioned above. He completed the assessment without making necessary investigation and enquiries which were necessary to arrive at the correct taxable income of the assessee. It may not be out of place to refer to the provisions of Explanation-2 to section 263 which reads as under:- "Explanation 2.-For the purposes of this section, it is hereby declared that an order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue, if, in the opinion of the Principal Commissioner or Commissioner,-

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(a) the order is passed without making inquiries or verification which should have been made; (b) the order is passed allowing any relief without inquiring into the claim; (c) the order has not been made in accordance with any order, direction or instruction issued by the Board under section 119; or (d) the order has not been passed in accordance with any decision which is prejudicial to the assessee" rendered ,by the Jurisdictional High Court or Supreme Court in the case <if the assessee or any other person. Accordingly, it was incumbent upon the AO to have made necessary enquiries or verifications, which were required to verify whether the claim of long term capital gain was genuine or not. 5. Legal position on power of Commissioner for Revision u/s 263: Case laws on the power of Commissioner, favor Revenue, in following situations as regards enquiry by Assessing Officer: a. Complete failure to conduct relevant enquiry; b. Conducting enquiry but not taking it to its logical conclusion; c. Conducting enquiry but drawing the wrong conclusion. 5.1. Reference is invited to recent judgment of Kolkata Tribunal in the case of Marigold Nirman Pvt Ltd and related cases ITA 1365/KOL/2013 .DATED 3.0.7.15, also reported as SubhlakshmiVanijya (P., Ltd in 172 TIJ 721(KOL) has considered virtually the whole law on 263. It has answered following questions with utmost clarity: Whether the enquiry conducted by the Assessing Officer in such Q. cases can be construed as proper enquiry? A. Though the Assessing Officer issued notices. under secti.on133(6) but it failed to comprehend the rationale or logic behind ........, nor to examine any of the .......t is highly improbable for any person. having sound mind to purchase at arm's length the shares of a private limited company, hardly having any worth, with face value of Rs.10 at a premium of Rs.190. This mere fact should

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have been cornerstone for the Assessing Officer to embark upon . further enquiry to unearth the truth. The genuineness of transactions of issue of share at such, hefty premium in this background of the matter was under dark cloud and it skipped the attention of the Assessing Officer. [Para 17.c.} There remains no doubt whatsoever that in the given circumstances, the Assessing Officer conducted half-baked enquiry ignoring vital aspects which were required to be examined......Confronted with such peculiar and hair-raising circumstances, the Assessing Officer should have got. alerted and dug,. the matter deep for unearthing the reality of the transaction. Unfortunately, nothing of this sort was done by him. It is a perfect citation for a complete non-application of mind by the Assessing Officer and of passing the assessment order in undue haste. {Para 17. h]. Thus, there can be no escape from. an the axiomatic conclusion that in all these cases enquiry co.i:u1'1Cted by the Assessing Officer's is exceedingly inadequate and hence fall in the category of 'no enquiry' conducted by the Assessing officer, what to talk of charactering it as an 'inadequate enquiry'. The highly inadequate enquiry conducted by the Assessing Officer resulting in drawing incorrect assumption of facts, makes the orders erroneous and prejudicial to the interests of the revenue. (Para 17. i.] Q.Whether Commissioner can set aside the assessment order and direct the Assessing Officer to conduct a thorough enquiry, thereby interfering with the jurisdiction of the Assessing Officer conferred on him in terms of sections 142(1) and 143(2) of the Act? A. A careful perusal of the provisions of section 142(1)/143(2) unveils that it is the prerogative of the Assessing officer to require the information 'on such points or matters' as he may require. Ordinarily it is not possible for the Assessing Officer to inquire into each and every entry recorded in the books of account of the assessee. He has to exercise his acumen in extracting out the relevant points or matters on which he wants to concentrate. But, what is important in this regard is that the operation of section 142(1)/143(2) comes to an end when an assessment is completed after examining such point or matters which the Assessing officer feels to inquire before ,finalizing the assessment. It is only thereafter that the revisional powers of the commissioner under section 263 can come into play for ascertaining if the Assessing officer examined all the relevant points, which ought to have been examined. If the commissioner, on examination of records of

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assessment, comes to the conclusion that the Assessing officer failed to enquire into certain other relevant aspects which, in fact, necessitated thorough investigation, then he has all the power to revise the assessment' order. In the instant case, the assessment already stands finalized and now the commissioner is examining whether the Assessing officer properly examined the facts of the case. In such circumstances, it is impermissible to have a recourse to the provisions of sections 142(1) and 143(2) for demolishing the order under section 263. [Para 18.b] Q.Whether inadequate inquiry conducted by the Assessing Officer empowers the Commissioner to revise the assessment order? A. It is imperative for the Assessing Officer to conduct enquiry to satisfy himself about the genuineness of transactions. Scope of the term 'enquiry' can be diverse in different circumstances. There cannot be straitjacket formula to positively conclude as to conducting or non-conducting of 'enquiry' by the Assessing Officer. It depends on the facts and circumstances of each case. Where the facts are Just ordinary and prima facie there is nothing untoward the recorded transaction, in such circumstances, the obtaining of the documents and the application of mind thereon, without a further r outside enquiry, may, mean. that the Assessing officer did conduct enquiry, leaving the question open as to whether it was a proper or an improper enquiry. But, where the factual scenario of a case prima facie indicates abnormalities and cry [or looking deep into it, then a mere collection of documents cannot be held as conducting enquiry, leave aside, adequate or inadequate. In such later cases, only when the Assessing Officer, after collection of the initial documents, embarks upon further investigation, that it can be said that he initiated enquiry. Where the facts of a particular transaction cry hoarse about its non-genuineness and even a casual look at such facts, prima facie, divulges foul play, then the alarm bell must ring in the mind of the Assessing Officer for making further examination. Collection of papers on record in such circumstances 'cannot be construed as conducting a proper enquiry. If in. such circumstances, the Assessing Officer simply gathers documents and keeps them on record, then such nominal enquiry falls within the overall category of 'no enquiry' because of the inaction on the part of the Assessing Officer to read a writing on the wall. [Para 19.a.} Thus, the instant case is a glaring example of not making relevant enquiry, which amounts to 'no enquiry' and hence it becomes a case of non application of mind by the Assessing Officer. {Para 19.e.}

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Q.Whether the order of the Commissioner was based on irrelevant consideration and was he supposed to point out: specifically where the Assessing Officer went wrong in not properly, examining the issue of share capital? A. Wh.3re the Assessing Officer has mode proper enquiry and still comes to a wrong conclusion, which' renders the assessment order erroneous and prejudicial to the interest of the revenue, it becomes the duty of the Commissioner to expressly point out where the Assessing Officer went wrong on merits. But in a case, where no enquiry has been conducted at all or the so-called enquiry conducted by the Assessing Officer is as good as no enquiry,' as is the case under consideration, in such circumstances, the Commissioner simply needs to point out those relevant aspects of assessment, which the Assessing Officer lost sight of, but were required to be properly probed. There can be no way for the Commissioner to tell erroneous approach of the Assessing Officer on merits in such circumstances because the view of the Assessing Officer on merits is not available. Requiring the Commissioner to indicate 'where the Assessing Officer went wrong on merits in the cases of no enquiry cases, is like requiring an impossible thing to be done. It is axiomatic that the law does not require an impossible to be complied with. In the instant case the extent of enquiry conducted by the Assessing Officer, being as good as no enquiry, is sufficient in itself to empower the Commissioner for invoking his jurisdiction under section 263. Under such circumstances, no impossible burden can be cast on the Commissioner to show the positive leakage of income in concrete terms, when he has simply set aside the assessment order and restored this aspect of the assessment to the file of the Assessing Officer for making a proper enquiry and then deciding. {Para 20.g.} Q.If the Assessing Officer has taken. a possible view, can still the revision be ordered? A. Where Assessing Officer fails to conduct an enquiry or proper enquiry, which is called for in the given circumstances, the Commissioner is empowered to set aside the assessment order by treating it as erroneous and prejudicial to the interests of the revenue. In such circumstances, the Assessing Officer can't be said to have taken a possible view and it is not further required on the part of the Commissioner to expressly show where the assessment order went wrong. The very fact that no enquiry was conducted or no proper enquiry was conducted in the required circumstances, is sufficient in itself to invokethe provisionsof section 263.[Para 21.g.}

Smt. Shweta Agrawal /ITANo.280/Ind/2019

5.2. The excerpts from other important Judgments on the revisionary powers of Commissioner are reproduced hereunder: 1. CIT VS AMITABH BACHCHAN 2016

Making a claim which would prima facie disclose that the expenses in respect of which deduction had been claimed had been incurred and "~thereafter abandoning/ withdrawing the same gave rise to the necessity of further enquiry in the interest of the revenue. The notice issued under section 69C could not have been simply dropped on the ground that the claim has been withdrawn. Therefore, the Commissioner was perfectly justified in coming to his conclusions in respect of this issue. [Para 21} 2. Toyota Motor Corpn. (2008) 174 Taxman 395 Delhi Affirmed in (2008) 173 Taxman 458(SC)

The reasoning given by the Tribunal could not be, accepted simply because the Assessing Officer himself did not say any such thing in his order. There is no doubt that the proceedings before the Assessing Officer are quasi-judicial proceedings and a decision taken by him in this regard must be supported by reasons. Otherwise, every order, such as the one passed by the Assessing Officer, could result in a theoretical possibility that it may be revised by the commissioner under section 263. Such a situation is clearly impermissible. (Para 9) It is also necessary for the parties to know the reasons 'that have weighed with the adjudicating authority in coming to a conclusion. The order passed by the Assessing Officer should be a self- contained order giving the relevant facts and reasons for coming to the conclusion based on those facts and law. {Para 10) It was found that the order passed by the Assessing Officer was cryptic, to say the least, and it colil1J not be sustained. The Tribunal could not substitute its own reasoning to ,justify the order passed by the Assessing Officer when the Assessing Officer himself did not give any reason in the order passed by him. [Para 11) Therefore, the matter was to be remanded to the file. of the Assessing Officer to decide the issue afresh in terms of the order passed by the Commissioner under section 263. [Para 12) 3. Jagdish Kumar Gulati 2004 139 TAXMAN 369 ALL.

Smt. Shweta Agrawal /ITANo.280/Ind/2019

When an assessment is done under section 143(3), it is expected that the Assessing Officer will make a detailed enquiry to find. out the correct income of the assessee and not to take the facts placed by the assessee on their face value. No proper enquiry appeared to have been made by the Assessing Officer in the instant case. It is well settled that if the Assessing Officer fails to make a proper enquiry this is erroneous and prejudicial to the interest of the revenue. [Para 13) 4. Malabar Industrial Co. Ltd. 2000 109 Taxman 66 SC Whether in order to invoke section 263 Assessing Officer's order must be erroneous and also prejudicial to revenue and if one of them is absent, i.e., if order of Income-tax Officer is erroneous but is not prejudicial to revenue or if it is not erroneous but is prejudicial to revenue, recourse cannot be had to section 263(1} - Held, yes - Whether if due to an erroneous order of ITO, revenue is losing tax lawfully payable by a .person, it will certainly be prejudicial to interests of revenue - Held, yes An incorrect assumption of facts or an incorrect application of law' will satisfy the requirement of the order being erroneous.' In the same category fall orders passed without applying the principles of natural justice or without application of mind. The Commissioner has to be satisfied of twin conditions, namely (i) the order of the Assessing Officer sought to be revised is erroneous; and i1i) it is prejudicial to the interests of the revenue. If one of them is absent - if the order of the ITO is erroneous but is not prejudicial to the revenue or if it is not erroneous but is prejudicial to the revenue - recourse cannot be had to section 263(1}. 5.Crom ton Greaves Ltd. (2017) 82 taxmann.com 246 Mumbai _ ITAT Bench C) Held that on perusal of the said assessment order it was clear that the Assessing Officer had not made any enquiry with respect to the claim of deduction of the assessee-company with respect to provisions for warranty charges, . excise duty, sales tax and liquidity damages amounting to Rs.17.72 crores claimed as deduction by the assessee-company from the income of the

Smt. Shweta Agrawal /ITANo.280/Ind/2019

assessee-company and the claim made by the assessee- company was accepted by the Assessing Officer without any further enquiry, examination or verification as was warranted. 6. [2016J 237 Taxman 211 (Mad Income-tax Officer, Ward- VII(2), Chennai During relevant year, assessee made cash payments to suppliers of crackers _ Without examining details "f expenditure involved, Assessing Officer allowed said payments - Commissioner found that assessee had made cash payments in excess of Rs. 20,000 to some suppliers on day-today basis _ He thus passed a revisional order disallowing said payments under section 40A(3) _ Whether on facts, impugned revisional order did not require any interference - Held, yes [Para 16) [In favour of revenue) Therefore, in view of the above discussions, I am of the considered opinion that the order dated 27.12.2016 for A.V. 2014-15 is erroneous in so far as it is also prejudicial to the interest of revenue on account of passing of the order without making required enquiries/investigations. Accordingly, I am satisfied that provisions of section 263 of LT. Act 1961 are required to be invoked. Therefore, the assessment for A.V. 2014- 15 framed on 27.12.2016 is hereby set-aside to the file of AO u/s 263 to re-examine issue of long term capital gain shown by the assessee and passing an order as per the law after making proper verification, inquiries and investigations. It would be not out of place to mention that the AO shall re-examine only the issue which has been indicated for further investigation in the preceding discussion. 11. There is no dispute regarding exercise of powers under

Section 263 of the Act but such powers are not unfettered.

In our considered view such powers should be exercised in

accordance with law. If every case is sent to file of the

Assessing Officer for reexamining the issues it would really

burden the tax payers and result into waste of resources.

Smt. Shweta Agrawal /ITANo.280/Ind/2019

Undisputedly, for invoking provisions of Section 263 twin conditions for the order sought to be revised are that it should be erroneous in so far it is prejudicial to the interest of revenue. These two conditions are required to be satisfied conjointly. If any of them is not satisfied in that event exercise of power under section 263 of the Act would become bad in law. 12. Now coming to the facts of the present case in this case the assessee had filed return of income on 31.10.2015 declaring total income of Rs.7,39,910/-. The case of the assessee was picked up for scrutiny assessment and the assessment was concluded by accepting the return of income so declared. It would be pertinent to examine the action taken by the Assessing Officer during the assessment proceedings. The Assessing Officer issued a show cause to the assessee along with questionnaire. The assessee in response there to filed a detailed submission. For the sake of clarity the submissions of the assessee are reproduced as under;

Smt. Shweta Agrawal /ITANo.280/Ind/2019

05/10/2016 To

The Income Tax Officer 5(3) Aaykar Bhawan Indore Dear Sir, Re:- Shweta Agrawal, Indore Assessment Year 2014-15/ AESPA1653H With regard to the income tax case of the above assessee for the Assessment year 2014-15 and in pursuance to the notice as issued u/s 143(2) dt 17/08/2'016 of the Income Tax Act, we have been directed by the assessee to submit as under - 1.1 Copy of Acknowledgement of Income Tax Return along with computation of income for the Assessment Year 2014- 15, 2013- 14 and 2012- 13 are enclosed for your kind reference. 1.2 That the turnover of the assessee in the year under consideration does not exceed the limit as prescribed U/s 44AB of the Income Tax, hence the assessee was not liable to get its books of accounts audited U / s 44AB of the Income Tax Act. 1.3 Copy of Financial Statements of the assessee for the year ended 31-03-2014, 31-03-2013 and 31-03-2012 is enclosed for your kind perusal 1.4.1) Details of the deduction U/s VIA of the Income Tax Act, as claimed by the assessee in the year under consideration is as under:- S. Particulars Amount Deduction No. (Rs) Claimed .

Smt. Shweta Agrawal /ITANo.280/Ind/2019

U/s 8OC . , •. Housing Loan 53,891 1 Repayment 2 Life Insurance 42,264 Premium 3 64,750 1,00,00 Tution Fees

U/s 80TTA 1 Saving Bank 8,715 8,715 Interest Total 1,08,715

1.4.2) Copy of receipts in respect of LlC Premium as paid by the assessee along with the copy of Home Loan A/c of the assessee with Union Bank of India is enclosed for your kind perusal. 2] Details of the sources of Income of the assessee during the year under consideration is as under:- S.No. Particulars Amount 1 Income from House property 3,90,000 2 Income from business (being 5,71,856 proprietor of M/s Samarth Impex, Indore) 3 Income from Long Term Capital 27,50,406 Gain (Exempt U/s 10(38) of the Income Tax Act 4 Interest on saving Bank Interest 8,715 5 Dividend Income 3,830 3.1] Details of all bank accounts as maintained by the assessee in the year under consideration is as under:- S.No. Bank Name Bank Address Account No. Type of A/c 1 Union Bank of Geeta Bhawan 50204010029070 Current A/c India Branch, Indore 2 Union Bank of Geeta Bhawan 50202010012665 Saving A/c India Branch, Indore 3 Union Bank of Geeta Bhawan 50202010006070 SavingA/c

Smt. Shweta Agrawal /ITANo.280/Ind/2019

India Branch, Indore 3.2) Copy of Bank Statements in respect of all the above mentioned bank accounts is enclosed for your kind reference. 3.3) The assessee has maintained same bank accounts as mentioned in the above table in the current financial year i.e. 2016-17·. 4.1) That the assessee has not purchased any immovable/movable property in the year under consideration. 4.2) That the assessee in the year under consideration has sold Equity shares of M/ s Idea Cellular Limited and M/ s Sunrise Asian Limited. The copy contract notes as issued by the broker in respect of sale of Shares along with the copy of D-Mat A/ c Statement of the assessee for the period 01/04/2013 to 31/03/20014 is enclosed for your kind reference. 5.1) Details in respect of Long Term Capital Gain of Rs.27,50,406/ - as incurred by the assessee in the year under consideration is as under:-

S. No. of Capital No Name of Script Shares Gain . IDEA Cellular 1 5590 5,39,969 Limited Sunrise Asian 2 4800 22,10,437 Limited 27,50,406 Total

5.2] Copy of contract notes as issued by the broker in respect of sale of Shares along with the copy of D-Mat A/ c Statement of the assessee for the period 01/04/2013 to 31/03/2014 is enclosed for your kind reference. 6.1) Details of the Exempt income in the year under consideration is as under:-

Smt. Shweta Agrawal /ITANo.280/Ind/2019

Nature of Income Amount (Rs.) Exempt U/s S.No.

Dividend Income 3,830 10(34) 1 LTCG of sale of SIT 27,50,406 10(38) 2 paid share Total 27,54,236

6.2) That the assessee has received dividend income of Rs. 3,830/- from IDEA Cellular & Union Bank of India, the same is exempt u/s 10(34) of the Income Tax Act. 6.3] The assessee in the year under consideration has sold shares of M/s IDEA Cellular Limited and M/s Sunrise Asian Limited through her broker M/s India Securities Pvt. Ltd. 6.4] Copy of the following documents as to justify the amount of Long term capital gain of Rs. 27,50,406/- is enclosed:-

S.No. Particulars Page No M/s IDEA Cellular Limited 1 Copy of D-mat statement of the assessee 25 with the Union Bank of India for the period 01/04/2013 to 31/03/2014 2 Sale note Dt. 18/11/2013 for sale of 5,590 26-27 shares issued by Indira Securities Pvt. Ltd M/s Sunrise Asian Limited 1 Purchase note as issued by M/s P Saji 28 Textiles Limited regarding sale of shares of M/s Conart Trader’s Limited (Now known as M/s Sunrise Asian Limited) to the assessee is enclosed 2 Copy of Share transfer form for transfer of 29 shares in the name of the assessee 3 Copy of Share certificate, duly transferred 30 in the name of the assessee 4 Copy of Amalgamation Order passed by 32-37 Bombay High Court for the amalgamation of M/s Santoshima Tradelinks Ltd and M/s Conart Traders Ltd., forming a new company M/s Sunrise Asian Limited 5 Copy of D-mat statement of the assessee 25 26

Smt. Shweta Agrawal /ITANo.280/Ind/2019

with the Union Bank of India forthe period 01/04/2013 to 31/03/2014 6 Copy of share certificate as issued by the 38 amalgamated company M/s Sunrise Asian Limited 7 Copy of Dematerialisation Request form to 39 Union Bank of India for dematerialisation of shares of M/s Sunrise Asian Limited 8 Sale note Dt. 14/02/2014 for sale of 2,900 40-42 shares issued by Indira Securities Pvt. Ltd 9 Sale note Dt. 28/02/2014 for sale of 1,000 43 shares issued by Indira Securities Pvt. Ltd 10 Sale note Dt. 04/03/2014 for sale of 900 44-45 shares issued by Indira Securities Pvt. Ltd 7) That the assessee is acting as a broker/agent to various parties for purchase and sale of agri products in the name and style “M/s Samarth Impex”. Copy of the Profit & Loss account of M/s Samarath Impex along with the copy of Ledger A/c of Commission & Brokerage in the books of accounts of the assessee is enclosed for your kind reference. 8) Detail of the TDS as deducted by various parties in the year under consideration along with the reconciliation of Form 26AS with the books of accounts of the assessee is as under:-

S.No Particulars Income Income TDS as TDS as as per as per per per 26AS Books 26AS Books 1 Nature Fresh 6,68,993 6,68,993 66,900 66,900 Exports 8.2) Copy of Form No.26AS of the assessee for the year under consideration is enclosed for your kind perusal. 8.3) That the assessee was not liable to deduct TDS as per the provisions of the Income Tax Act on the payments as made in the year under consideration. Letter dt 17.08.2016 as issued may please be treated as complied with. Thanking you.

Smt. Shweta Agrawal /ITANo.280/Ind/2019

I hereby confirm the content of above letter Yours faithfully, Sd/- Sd/- (Shweta Agrawal) (C.A. Satyanarayan Agrawal) Assessee A.R.

Smt. Shweta Agrawal /ITANo.280/Ind/2019

in the case of Smt. Manita Vs. Pr. CIT ITA

No.3432/Del/2019 dated 12.7.2019. The Co-ordinate

Bench held as under :-

Smt. Shweta Agrawal /ITANo.280/Ind/2019

the A.O. has not made enquiries at assessment stage on all these issues. PB-13 is cash flow statement of assessee for assessment year under appeal in which all the above items have been mentioned on which proposed notice under section 263 have been issued. All these facts were before A.O. at the assessment stage and all the details of sale and purchase of shares on which long term capital gains exemption was claimed have been mentioned in the return of income itself. Thus, there was no reason to believe that the A.O. did not examine this issue at the assessment stage. Further, the case was selected for scrutiny because the ITA.No.3432/Del./2019 Smt. Manita Muzaffarnagar suspicious long term capital gains earned by assessee. This information must be based on information received from Investigation Wing. Therefore, Ld. D.R. was not justified in contending that report of Investigation Wing have not been considered by the A.O. Since it was the sole reason for completing the scrutiny assessment, therefore, it could not be believed that A.O. would not have gone through the material available before him on record. May be the A.O. has not discussed the details in the assessment order but it would not give right to the Ld. Pr. CIT to hold that no investigation or enquiry have been made at assessment stage. It appears that A.O. has taken one of permissible view in the matter as per Law and if the Ld.Pr. CIT does not agree with the view of the A.O, the assessment order could not be treated as erroneous in so far as it is prejudicial to the interests of the Revenue. Considering the totality of the facts and circumstances noted above in the light of material on record, we are of the view that it is not a case of inadequate or no enquiry, thus, Explanation-2 to Section 263 of the I.T. Act would not be attracted in the matter. In this view of the ITA.No.3432/Del./2019 Smt. ManitaMuzaffarnagar.

matter, the assessment order could not be held to be erroneous in so far as it is prejudicial to the interests of the Revenue. We, accordingly, set aside the impugned order under section 263 of the I.T. Act and restore the assessment order.

of Shashi Bhushan Gupta v. Pr. CIT ITA No.768/Chd/2018 held as under:-

"For the purposes of exercise of revisional jurisdiction under section 263 of the Income-tax Act. 1961 by the Principal Commissioner the conclusion that the order of the Assessing Officer is erroneous and 30

Smt. Shweta Agrawal /ITANo.280/Ind/2019

prejudicial to the interests of the Revenue has to be preceded by some minimal inquiry. If the Principal Commissioner is of the view that the Assessing Officer did not undertake any inquiry, it becomes incumbent on him to conduct such inquiry. It has further been held as under:

It was incumbent upon the Pr. Commissioner to undertake an inquiry as regards which of the assets were purchased and installed by the assessee out of its own funds during the assessment year in question, 2011-12, and. which were those assets that were handed over to it by the Corporation. The Principal Commissioner only referred to the circular issued by the Board and concluded that the Assessing Officer was duty bound to calculate and allow depreciation on the build-operate-transfer arrangement in conformity with the circular, but the Assessing Officer had failed to do so and that therefore the order vas erroneous and prejudicial to the Revenue. That did not constitute the reasons required to be given by the Principal Commissioner to justify the exercise of jurisdiction under section 263. Only after undertaking an enquiry himself, the Principal Commissioner could have remitted the matter. Under section 263(1) to the Assessing Officer for afresh assessment. The Tribunal was not in error in setting aside the revision order under section 263 passed by the Principal commissioner." 1. 10. A similar view has been taken by the Hon'ble Delhi High Court in the case of ITO vs. DG Housing Projects Ltd. (supra) wherein it has been held as under:

“That the findings recorded by the Tribunal were correct as the Commissioner had not given any reason for observing that the order passed by the Assessing Officer was erroneous. The finding recorded by the Commissioner was that "order passed by the Assessing Officer may be erroneous". The Commissioner had doubts about the valuation and sale consideration received but he should have examined this aspect himself and given a finding that the order passed by the Assessing Officer was erroneous. He came to the conclusion and finding that the Assessing Officer had examined this aspect and accepted the computation figures but he had reservations. The Commissioner in the order had recorded consideration was examined by that the receivable the Assessing Officer but was not properly examined and. therefore. assessment order was "erroneous". This finding would be the

Smt. Shweta Agrawal /ITANo.280/Ind/2019

correct. if he had examined and verified the transaction himself and given a finding on the merits. The commissioner was patently wrong in stating that Schedule III to the Wealth-tax Act. 1957. was not applicable but the Assessing Officer should have adopted the formula/method. This reasoning could not be accepted and did not show or establish that the assessment order was erroneous." 11. Similarly the Hon'ble Delhi High Court in the case of Director of Income Tax Vs. Jyoti Foundation (supra) held as under: "Revisionary power under section 263 of the Income-tax Act. 1961 is conferred by the Act on the Commissioner/Director of Income-tax when an order passed by the lower authority is erroneous and prejudicial to the interest of the Revenue. Orders which are passed without inquiry or investigation ore treated as erroneous and prejudicial to the interests of the Revenue. but orders which ore passed after inquiry/ investigation on the question/issue are not perse or normally as treated erroneous and prejudicial to the interests of the Revenue because the revisionary authority feels and opines that further inquiry/investigation was required or deeper or further scrutiny should be undertaken. In cases where there is inadequate enquiry but not lock of enquiry. the commissioner must record a finding that the order / inquiry mode is erroneous. This can happen if an enquiry and verification is conducted by the commissioner and he is able to establish and show the error or mistake made by the Assessing Officer. making the order unsustainable in low. An order of remit cannot be passed by the Commissioner to ask the Assessing Officer to decide whether the order was erroneous. It has further been held that: inquiries were certainly conducted by the Assessing Officer. It was not a case of no inquiry. The order under section 263 itself recorded that the Director felt that the inquiries were not sufficient and further inquiries or details should have been called for. The inquiry should have been conducted by the Director himself to record the finding that the assessment order was erroneous. He should not have set aside the order and directed the Assessing Officer to conduct the inquiry." 12. In the present case also the A.O. conducted enquiry and had taken a possible view and the Pr. CIT simply directed the A.O. to

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make further enquiry in accordance with law but had not taken any step to make enquiry herself and also did not point out that how and in what manner the enquiries made by the A.O. were not sufficient. We therefore considering the totality of the facts and keeping in view the ratio laid down by the Hon'ble Delhi High Court in the aforesaid referred to cases, are of the view that the Ld. CIT(A) was not justified in holding the assessment order dt. 28/1 0/2015 passed by the A.O. as erroneous and prejudicial to the interest of the Revenue, therefore the impugned order is set aside.

shares of M/s Sunrise Asian Limited has been examined by the Co-ordinate Bench

of the Tribunal and this fact is duly recorded by it in the case of Dipesh Ramesh

Vardhan Vs. DCIT-Central Circle -2(2), Mumbai ITA No.7648/Mum/2019 as

observed in para 9 to 12 is as under :-

Smt. Shweta Agrawal /ITANo.280/Ind/2019

PCIT revising the assessment order under the peculiarity of the facts and

circumstances of the case cannot the sustained. The impugned order is therefore,

set aside and the grounds raised by the assessee in this appeal are allowed.

Order was pronounced in the open court on 21.12.2020.

Sd/- Sd/- (MANISH BORAD) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER

Indore; �दनांक Dated :21/12/2020 /Dev 34

Smt. Shweta Agrawal /ITANo.280/Ind/2019

Copy to: Assessee/AO/Pr. CIT/ CIT (A)/ITAT (DR)/Guard file. By order

Assistant Registrar, Indore