M/S. AAKASH GANGA PROMOTERS & DEVELOPERS,BARGARH vs. PRINCIPAL CIT, SAMBALPUR, SAMBALPAR

+ IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK

BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND LAXMI PRASAD SAHU, ACCOUNTANT MEMBER

ITA No.164/CTK/2019 Assessment Year : 2015-16

M/s. Aakash Ganga Promoters & Vs. Pr. CIT, Sambalpur Developers, AT: Haldipali, PO/Dist: Bargarh. PAN/GIR No.AAWFA 8864 A (Appellant) .. ( Respondent)

Assessee by : Shri B.N.Agrawal/Binod Agarwal, ARs Revenue by : Shri S.M.Keshkamat, DR

Date of Hearing : 15 /11/ 2019 Date of Pronouncement : 18 /12/ 2019

O R D E R Per C.M.Garg,JM This is an appeal filed by the assessee against the order u/s.263 of

the Income tax Act, 1961 of the Ld. Pr. CIT, Sambalpur dated 29.3.2019

for the assessment year 2015-16 on the following ground:

“ That the finding of the learned Pr. Commissioner of Income Tax (CIT) in setting aside the assessment order dated 21.3.2017 for adjudication of the issues afresh with a direction to the ld AO to reframe the assessment after proper appreciation of facts and application of law is beyond the scope of powers conferred u/s.263(1).” 2. Facts in brief are that the assessee derives income from real

estate business. The Assessing Officer completed the assessment

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under section 143(3) of the Act on 21.3.2017 assessing income of

Rs.6,81,740. Subsequently, however, the Pd. Commissioner

required the assessee to show cause as to why the said

assessment not be subjected to revision proceedings under section

263 for the following reasons:

“ .It was found that assessee has shown profit @ 3.24% on total turnover, which is too low. The AO asked the assessee to produce the documentary evidence related to the business of the assessee like bills & voucher and details & documents of sale of flats etc., but the assessee failed to submit the same before the AO during the scrutiny proceedings. As the reason for CASS is real estate business with high closing stock', the information about estimated cost of construction of the project, estimated sale value of the project, selling price of individual flats, period of construction etc. should have been examined before completion of scrutiny assessment. But, due to non-submission of the required details by the assessee, the AO estimated the profit @ 4.24% instead of 3.24% as shown by the assessee and completed the scrutiny assessment. But, the reason for the selection of scrutiny was '(a) Real estate business with high closing stock (verify whether assessee has adopted percentage completion method) and (b) mismatch in sales turnover reported in Audit Report and ITR.' The assessee has shown net sales of flats at Rs.2,49,60,000/- in the P&L account, but no details of the, parties / persons to whom sales of flats were made have been furnished by the) assessee. There is no evidence on record about sale deeds.

Secondly, as per Balance Sheet of the assessee, advance from customers amounting to Rs.2,58,08,000/- had been claimed to have been received by the assessee. The AO did not verify in detail about the genuineness and creditworthiness of the parties in respect of whom advance was shown. Further, the AO failed to examine the information like cost of construction of the project, the estimated sale value of the project, the estimated sale value of the project, selling price of individual flat, period of construction/ completion etc.

Thirdly, there was a mismatch in sales turnover reported in audit report and return of income filed by the assessee . In the ITR the assessee had shown Rs.2,31,60,000. The difference amount of

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Rs.18,00,000/- is deducted as land value from the total sales turnover, as stated by the assessee. But, the AO has not made detailed examination on this aspect.”

assessee on 14.1.2019, the assessee, inter alia, submitted as

under:

i) After due examination of the books of account and documents produced and available on record, the AO completed the limited scrutiny assessment u/s.143(3) estimating the net profit @ 4.24% as against 3.24% shown by the assessee. ii) The total sales value of land among the total sales is Rs.18.00 lacs, which can be proved upon receipt of certified copies of sale deeds, which we are expecting to collect from SRO within 10 days. As the land belongs to Kishan Lal Agrawal, HUF, the land value is shown in his return and a copy of computation and ITR V of Kishan Lal Agarwal, HUF is furnished. iii) Shri Kishan Lal Agrawal one of the partners stated that the total sale value of of 9 sale deeds is Rs.18.00 lakhs”

acceptable. According to him, the assessee has shown net sales

of flats at Rs.2,49,60,000/- in P&L accounts but no details of the

parties/persons to whom sales of flats were made have been

furnished; the assessee has shown to have received advance of

Rs.2,58,08,000/- from customers but the AO has not verified in

detail about the genuineness and creditworthiness of the parties

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and there is mismatch in sales turnover reported in audit report

and return of income filed by the assessee, which leads to

difference of Rs.18,00,000/-. Hence, the Pr. CIT observed that

these aspects should have been examined by the AO before

completion of the assessment by calling relevant

details/documents. The Pr. CIT accordingly exercised his powers

u/s.263 of the Act and set aside the assessment order dated

21.3.2017 to the file AO with the following directions:

“(i) The AO is required to verify the net sales of flats shown at Rs.2,49,60,000/- in the P&L account by calling for the details of the parties / persons from whom the assessee claims to have received sale proceeds of flats during the previous year relevant to the assessment year 2015-16. (ii) The AO is also required to verify the genuineness and correctness of the amount of Rs.2,58,08,000/- claimed to have been shown in the Balance Sheet as advance received from customers. (iii) The AO is further required to verify the genuineness and creditworthiness of the parties from whom advance is shown to have received and the information like cost of construction of the project, the estimated sale value of the project, selling price of individual flat, the period of construction of flats/ completion of project etc. should be obtained. (iv) The AO is again required to verify the mismatch in sales figure appearing in audit report & return of income filed and in the Profit & Loss account for the year ending on 31.03.2015. In the audit report & return of income, the assessee has shown Rs.2,31,60,000/- as sales turnover whereas as per Profit & Loss account, the total sales turnover is Rs.2.49.60.000/-. Thus, there is difference of Rs. 18,00.000/- between the sales figure disclosed in audit report & return of income and the sales figure reflected in P&L account which the assessee claims as “land

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value” and deducted the same from the total sales turnover. The AO is required to verify this aspect thoroughly by examining the relevant details/documents”

lower authorities, inter alia, paper book filed by the assessee

consisting of 159 pages, written synopsis and case laws filed by

the assessee.

assessee was selected for limited scrutiny on two points i.e. (i)

real estate business without considering the closing stock to verify

whether the assessee has adopted percentage completion method

and (ii) mismatch in sales turnover reported in the audit report

and income tax return filed by the assessee. Ld counsel submitted

that the Assessing Officer issued statutory notices u/s.143(2) and

142(1) of the Income tax Act, 1961 (in short ‘the Act’), which was

served on the assessee for necessary compliance and in response

to the said notices, the assessee filed reply and also submitted

books of account and other relevant documents as called for by

the Assessing Officer for examination and there was sufficient and

adequate enquiry by the AO on both the points on which limited

scrutiny was started. Ld counsel submitted that the assessee

submitted its reply vide letter dated 20.3.2017 stating that the

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assessee is following percentage completion method for calculating

the profit from their ongoing project and to calculate the profit on

percentage basis every year on turnover. Ld counsel also

submitted that from the copy of said letter available at page 51 of

paper book, it is discernible that the assessee has clearly stated

that it has estimated profit @ 3.24% of the total turnover. As

most of the inventory has not been sold during the relevant

financial period, it is lying at close stock. Therefore, the work-in-

progress as on 31.3.2015 was on little higher side.

order sheet dated 14.1.2019 of the Assessing Officer i.e. ACIT,

Sambalpur, it is clear that the Assessing officer sent a proposal for

initiation of proceedings u/s.263 of the Act alonwtih draft notice

u/s.263 of the Act and ld PCIT has never applied his mind to the

assessment records and notice u/s.263 of the Act dated 14.1.2019

on which proceedings were initiated and notice was issued by the

AO who is not competent to do such exercise. Ld A.R. submitted

that Pr. CIT has simply approved the proposal and draft notice

putfoward by the AO prior to initiation of proceedings u/s.263 of

the Act. Thus, there is no application of mind by the Pr. CIT

before initiating revisional proceedings u/s 263 of the Act neither

to the assessment record nor at the time of issuing notice u/s.263

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of the Act. Therefore, proceedings, notice and impugned order

u/s.263 of the Act is void ab initio and bad in law. Ld counsel

strenuously contended that ld Pr. CIT has not examined

assessment records and revisional proceedings and notice u/s.263

of the Act, which has been initiated without application only on

the proposal of the AO, which is not permissible as per mandate of

section 263 of the Act. Ld counsel submitted that as per latest

provisions of section 263 of the Act and first and foremost

requirement of initiation of revisional proceedings by the

competent authority is that Pr. CIT may call for and examine the record

of any proceeding under this Act, and if he considers that any order passed

therein by the Assessing Officer is erroneous in so far as it is prejudicial to

the interests of the revenue, he may, after giving the assessee an

opportunity of being heard and after making or causing to be made such

inquiry as he deems necessary, pass such order thereon as the

circumstances of the case justify, including an order enhancing or modifying

the assessment, or cancelling the assessment and directing a fresh

assessment. Ld counsel submitted that this is a peculiar case wherein Pr.

CIT has only proceeded to initiate revisional proceedings and issued notice

u/s.263 on the proposal of the Assessing Officer without following the

mandate of section 263 of the Act and without application of mind to the

relevant assessment records and other relevant materials. Therefore, the

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entire revisional proceedings, impugned notice and order u/s.263 of the Act

is bad in law.

dated 14.7.2016, Ld counsel submitted that said instructions are the

direction regarding scope of inquiry in the case of “ limited scrutiny” which

were selected through Computer Aided Scrutiny Selection (CASS) for 2015

& 2016 which falls within the period pertaining to assessment year 2015-16.

Ld counsel submitted that as per this instruction of CBDT, the general scope

of enquiry in scrutiny proceedings should be restricted to the relevant

parameters which formed the basis for selecting the case for scrutiny and if

the AO, during the limited scrutiny proceedings, is of the view that there

was potential escapement of income above a prescribed money limit, then

he has to take permission of Pr. CIT/CIT/Pr. DIT/DIT to convert the ‘ limited

scrutiny’ case into ‘ complete scrutiny’ case and to assume valid

jurisdiction to prepare the limited scrutiny as complete scrutiny, otherwise,

the AO cannot travel beyond the points for which the case has been

selected for complete scrutiny. Ld counsel reiterated that the case was

selected for limited scrutiny on two points only for which the AO has issued

notice u/s.143(2) and 142(1) of the Act, which has been placed at paper

book pages 46 & 47 and the AO also issued notice u/s.143(2), copy of

which has been placed at page 45 of PB. Ld counsel also drew our

attention towards earlier Board Instruction No.20/2015 dated 29.12.2015

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and submitted that the questionnaire u/s.142(1) of the Act for the limited

scrutiny case shall remain confined only to the specific reasons/issues for

which case has been picked up for scrutiny. Ld A.R. drew our attention

towards order of ITAT Chandigarh Bench in the case of Shri Vijay Kumar vs

ITO in ITA No.434/Chd/2019 A.Y. 2014-15 order dated 12.9.2019 and

another order of Delhi Bench of the Tribunal in the case of Rekha Gupta vs

PR. CIT in ITA No.1007/Del/2019 for A.Y. 2014-15 order dated 25.9.2019

and submitted that the mandate given to the AO in the case of Limited

Scrutiny has to be followed by the AO only and shall not travel beyond the

issue and scope of Limited scrutiny and, therefore, if the Pr. CIT alleges that

the AO has not made any enquiry on other issues, then, on such issues,

the allegation cannot be levelled against the AO. Ld counsel submitted that

if there is no specific findings recorded by the Pr. CIT in the impugned order

u/s 263 of the Act that there is lack of enquiry by the AO on the issues of

limited scrutiny then the revisional proceedings u/s.263 of the Act cannot be

triggered and initiated against the assessee. Ld counsel submitted that in

view of CBDT Circulars (supra), the AO was right in confining himself only to

the issues for which the case was selected for scrutiny, the AO cannot travel

beyond the issues of limited scrutiny.

proceedings and issue of notice on the proposal by AO, ld counsel has

placed reliance on the ITAT Kolkata in the case of Manish Chirania vs Pr.

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CIT order dated 8,11.2019 in ITA No.1161/Kol/2019 for A.Y. 2015-16 and

another order of Pune Bench of ITAT in the case of Span Overseas Ltd vs

CIT, order dated 21.12.2015 in ITA No.1223/Pn/2013 for A.Y. 2008-09.

Ld counsel further placing reliance on the ITAT Mumbai ‘F’ Bench in the

case of Vinay Pratap Thacker vs CIT order dated 27.2.2013 in ITA

No.2939/mum/2011 for A.Y. 2006-07 submitted that on receipt of proposal

from the AO u/s./263 of the Act, pointing out some

discrepancies/shortcomings in the assessment order based upon an audit

objection, which was used by the AO to convince the CIT to invoke his

jurisdiction u/s.263, the order passed by the CIT without applying his own

mind has to be set aside and initiation of revisional proceedings should be

annulled being bad in law.

AO on both the points of limited scrutiny, submitted that the AO issued

notice u/s.143(2) of the Act and another notice u/s.142(1) of the Act

alongwith questionnaire both on 18.1.2016, which were duly replied by the

AO by way of written submission dated 19.8.2016, 30.11.2016, 19.1.2017

and 20.3.2017, which reveals that the AO by way of issuing notice

alongwith questionnaire has made detailed enquiry which were complied by

the assessee during the assessment proceedings. Ld counsel also drew our

attention towards the impugned assessment order dated 21.3.2017 passed

u/s./143(3) of the Act and submitted that the AO after issuing notice and

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taking on record the assessee’s reply has dealt the issues in the assessment

order regardding mismatch in sales turnover reported in audit report and

ITR has been discussed and verified and the plea of the assessee has been

accepted that the assessee is following percentage completion method

resulting into higher closing stock. Ld counsel submitted that both the

points have been properly enquired , examined, verified and thereafter the

AO has passed the limited scrutiny assessment order and, therefore, such

assessment order cannot be tagged as erroneous and prejudicial to the

interest of the revenue and in this situation, ld Pr. CIT is not allowed to

invoke revisional proceedings u/s.263 of the Act for tinkering the limited

scrutiny assessment order.

paras 10 & 11 of the impugned order and submitted that the issue of

mismatch in sales turnover reported in the audit report and ITR filed by the

assessee has been dealt with and adjudicated by the AO in the assessment

order and despite this fact, the Pr. CIT alleges that this aspect should have

been examined by the AO before the completion of assessment by calling

relevant details and documents. Ld A.R. prayed that initiation of

proceedings u/s.263 of the Act, notice and impugned revisional order should

be quashed.

and submitted that in the case of limited scrutiny, the AO is not allowed to

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pass the assessment order without sufficient enquiry and due diligence. Ld

CIT DR also invited some part of the impugned order especially para 10 &

11 and submitted that no prejudice is going to be caused to the assessee if

the issues are verified by the AO, which were not properly enquired, verified

and examined by the AO during original assessment proceedings. Ld CIT

DR also submitted that the AO was required to verify the net sales of flats

shown in the profit and loss account by collecting for the details of the

parties/persons from whom the assessee claims to have received sale

proceeds of flats during the previous year relevant to the assessment year

2015-16. Ld CIT DR also submitted that the AO was also required to verify

the genuineness and correctness of the amounts claim to have shown in the

balance sheet as receipts from the customers. Therefore, the order of the

AO is erroneous and prejudicial to the revenue.

submitted that as per CBDT Circular dated 29.12.2015 and 14.7.2016

(supra) in the case of ‘ Limited Scrutiny’ through CASS, the AO is required

to confine only issues to limited scrutiny and questionnaire, enquiry,

investigation, etc would be restricted to such issues only. Therefore, the

impugned assessment order passed by the AO after detailed enquiry on

both the issues for which the case was selected for limited scrutiny cannot

be alleged as erroneous and prejudicial to the interest of the revenue and,

therefore, the appeal of the assessee may kindly be allowed by quashing

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the proceedings, notice and impugned order passed u/s.263 of the Act.

out that undisputedly, the case of the assessee for the assessment year

2015-16 was selected for limited scrutiny on two points i.e. (i) real estimate

business with high closing stock (verify whether assessee has adopted

percentage completion method) and (ii) mismatch in sales turnover

reported in audit report and ITR.

proceedings, the AO issued notice u/s.143(2) and 142(1) of the Act

alongwith questionnaire to the assessee both on 1.8.2016, which were duly

served and complied by the assessee by way of filing replies on 19.8.2016,

30.11.2016, 19.1.2017 and 20.3.2017. From the replies of the assessee

placed at assessee’s paper book at pages 50-51, it is clearly discernible that

the assessee explained that in its profit and loss account, the total turnover

has been shown at Rs.2,31,60,000/- and the same figure has been reflected

in the tax audit report in Cl.40 of Form 3CD under the head P&L, the total

turnover has been shown as same figure and, therefore, there is no

mismatch in the sale turnover shown in the tax audit report and profit and

loss account filed alongwith the return of income. From the reply dated

19.1.2017, we clearly note that the assessee submitted copy of audit report,

complete ITR form & profit and loss account to substantiate sales turnover

figure which was accepted by the AO in the assessment order after due

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deliberation done at page 1 para 3 & 4 of the assessment order. Further

from para 5 of the assessment order, we also gather that the AO, as a

result of enquiry and verification made by him, noted that the assessee has

adopted percentage completion method and has estimated profit @ 3.24%

of the turnover and most of the inventory was not sold and was in stock,

the work-in-progress as on 31.3.2015 was thus on a higher side. In view

of above, we are satisfied that the AO has made enquiry, verification and

examination on both the points for which the case was selected for limited

scrutiny and from the impugned order passed by ld Pr. CIT u/s.263 of the

Act, it is also ample clear that there is no allegation by him against the

assessment order that the AO has not made any enquiry on any of the

issues for which the case was selected for limited scrutiny.

the AO has made sufficient, adequate and proper enquiry and thereafter

took both the issues to a logical conclusion by way of adjudication and

deliberation in the assessment order. Therefore, the impugned assessment

cannot be held as erroneous and prejudicial to the interest of the revenue.

that the p- ld Pr. CIT proceeded to initiate revisional proceedings, issued

notice and passed the impugned order u/s.263 of the Act without

application of mind on the proposal putforward by the Assessing Officer and

draft notice prepared by the AO issued to the assessee.

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assessment order u/s.143(3) of the Act on 21.3.2017 and assessment

proceedings terminated on the said date. From the order sheet of the

Assessing Officer placed at page 52 of paper book vide dated 14.1.2019, we

observe that subsequently, the AO. i.e. JCIT, Ragne-2, Sambalpur vide

letter dated 5.7.2018 send a proposal to ACIT, Sambalpur for initiation of

proceedings u/s.263 of the Act. From the second para of said order sheet,

we note that the ACIT, Sambalpur mentioned that on analysis of the facts

of the case, it is seen that the assessee has shown profit @ 3.24% on total

turnover which is too low. Ld ACIT further noted that the AO asked the

assessee to produce the documentary evidences related to the business of

the assessee like bills & vouchers and details & documents of sale of flats

etc but the assessee failed to submit the same before the AO during the

scrutiny assessment. The ACIT further stated that as the reason for CASS is

real estate business with high closing stock, the information about

estimated cost of construction of the project, estimated sale value of the

project, selling price of individual flats, period of construction etc should

have been examined before completion of scrutiny assessment. But due to

non-submission of the required details by the assessee, the AO estimated

net profit @ 4.24% instead of 3.24% as declared by the assessee and

completed the scrutiny assessment. In para 3.4 of the said note sheet, ld

ACIT noted that in the interest of revenue, as proposed by the ld JCIT,

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Range-2, Sambalpur, revision u/s.263 may be initiated before 31.3.2019.

With these observations, the ld ACIT sent draft notice u/s.263 of the Act to

Pr. CIT, Sambalpur. The ld. Pr. CIT has approved the proposal given by ld

ACIT on the same date i.e. 14.1.2019 and thereafter notice u/s.263 of the

Act has been issued on the very same date to the assessee show causing

for initiation of revisional proceedings u/s.263 of the Act. For proper

adjudication of this contention, we find it necessary and appropriate to

reproduce the provisions of section 263 of the Act, which reads as follows:

“ 263. (1) The Principal Commissioner or Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment.” 20. From the spirit and mandate of section 263 of the Act, which provides

revisional powers to Pr. CIT/CIT in the cases where the assessment order or

any other proceedings under this Act, passed by the AO is erroneous and

prejudicial to the interests of the revenue. This section is itself a mini code

wherein proceedings for revision has also been provided and as per this

provision, the first and foremost requirement for invoking the revisional

proceedings is that the ld. Pr. CIT/CIT shall call and examine the

assessment records of any proceedings under this Act, which include

scrutiny assessment records and if after applying his mind to such record o

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proceedings, he consider that any order passed by the AO is erroneous and

prejudicial to the interest of the revenue, then, he may, after giving the

assessee an opportunity of being heard and after making or causing to be

made such enquiry, he deems necessary, pass such order thereon, as the

circumstances of the case justify, which includes an order of enhancement

or modification assessment or cancelling the assessment with a direction to

pass fresh assessment order. In the present case, from the order sheet

dated 14.1.2019, it is vivid that the JCIT, Range-2, Sambalpur sent a

proposal for initiation of revisional proceedings u/s.263 of the Act to ACIT,

Sambalpur and ld ACIT, Sambalpur after making observation regarding

requirement of examination of certain issues forwarded the proposal to Ld.

PCIT alongwith draft notice u/s.263 which was approved by ld PCIT in a

manner in which administrative actions are proved. Hence, we are

compelled to hold that the initiation of revisional proceedings, issue of

notice has been done on the proposal of JCIT, Range-2, Sambalpur through

ACIT, Sambalpur and mandate of procedure as provided in section 263 of

the Act has not been followed and on this count, the impugned order

u/s.263 of the Act also become unsustainable. While taking this view, we

respectfully follow the order of ITAT Kolkata in the case of Manish Chirania

order of Pune Bench of ITAT in the case of Span Overseas Ltd and order

ITAT Mumbai ‘F’ Bench in the case of Vinay Pratap Thacker (supra).

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that the ld JCIT Range-2, Sambalpur prepared a proposal for revisional

proceedings u/s.263 and ld ACIT, Sambalpur in the order sheet dated

14.1.2019 created an explanation from the AO that the AO should have

asked the assessee produce documentary evidence related to its business

like bills and vouchers, details of documents of sale of flats but the assessee

failed to submit the same before the AO during the scrutiny assessment.

Therefore, he alleged that in real estate business with high closing stock,

the information about estimated cost of construction of the project,

estimated sale value of the project, selling price of individual flats, period of

construction etc should have been examined before completion of scrutiny

assessment but the ld ACIT failed to consider that it was a case of limited

scrutiny only on two points and from the assessment order dated

21.3.2017, it is clearly discernible that the AO has made enquiry and

deliberation on both the points and as per CBDT Circulars (supra), he is not

allowed to travel beyond the ambit of the points for which, case was

selected for limited scrutiny. Therefore, the ld ACIT, who was not having

revisional power u/s.263 wrongly alleged that the AO has not made enquiry

on certain points. Therefore, we are unable to agree with the conclusions

drawn by ld PCIT in paras 10 & 11 of the impugned order and hold that the

assessment order is neither erroneous nor prejudicial to the interests of the

revenue and the AO has made sufficient enquiries, investigations and

examination on both the points. Consequently, the revisional proceedings,

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issue of notice and impugned order u/s.263 of the Act is quashed.

Order pronounced on 18 /12/2019. Sd/- sd/- (Laxmi Prasad Sahu) (Chandra Mohan Garg) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 18 /12/2019 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : M/s. Aakash Ganga Promoters & Developers, AT: Haldipali, PO/Dist: Bargarh.

By order

Sr.Pvt.secretary ITAT, Cuttack

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