NEXTGEN VYAPAAR ,KOLKATA vs. PR.CIT-2, KOLKATA

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘A’ BENCH, KOLKATA (Before Sri J. Sudhakar Reddy, Hon’ble Accountant Member & Sri Aby T. Varkey, Hon’ble Judicial Member) ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd.............................................................................………………….............Appellant C/o Subash Agarwal & Associates, Advocates Siddha Gibson 1, Gibson Lane Suite -213 2nd Floor Kolkata – 700 069 [PAN : AADCN 5137 H] Vs. Pr. Commissioner of Income Tax-4, Kolkata....................................................………..…......Respondent Appearances by: Shri Subash Agarwal, Advocate, appeared on behalf of the assessee. Shri Anand Kr. Kedia, CIT, D/R, appearing on behalf of the Revenue. Date of concluding the hearing : March 4th, 2021 Date of pronouncing the order : April 16th, 2021 ORDER Per J. Sudhakar Reddy, AM :- This appeal filed by the assessee is directed against the order of the Learned Pr. Commissioner of Income Tax - 2, (hereinafter the “ld. CIT(A)”), passed u/s. 263 of the Income Tax Act, 1961 (the ‘Act’), dt. 27/03/2019, for the Assessment Year 2012-13. 2. The assessee is a company and is in the business of dealing in shares and investments. It filed its return of income for the impugned Assessment Year on 26/09/2012, declaring total income of Rs.50,302/-. The Assessing Officer passed an assessment order u/s 143(3) of the Act on 15/03/2015 determining the total income of the assessee at Rs.2,16,73,630/- interalia making an addition of Rs.2,16,23,328/- u/s 68 of the Act as unexplained cash credit being share application money and premium received by the assessee during the year. 2.1. The ld. Pr. CIT, Kolkata – 4, issued a showcause notice dt. 25/07/2016, proposing to revise the assessment order passed u/s 143(3) of the Act on 15/03/2015, by invoking his powers of revision u/s 263 of the Act. After considering the reply of the assessee dt. 22/08/2016, the ld. Pr. CIT, Kolkata -4, passed an order u/s 263 of the Act on 07/09/2016 (first 263 order)setting aside the original assessment order passed u/s 143(3) of the Act on 15/03/2015 and directing the Assessing Officer to redo the assessment de novo with certain directions. At Para 4(v) of the order passed u/s 263 of the Act, dt. 07/09/2016, the ld. Pr. CIT-4, Kolkata, held as follows:-

2 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. “4(v) Considering the above facts and circumstances of the case, the assessment or “4(v) Considering the above facts and circumstances of the case, the assessment or “4(v) Considering the above facts and circumstances of the case, the assessment order passed on 15.03.2015 is set aside denovo with a direction to AO to carry out proper passed on 15.03.2015 is set aside denovo with a direction to AO to carry out proper passed on 15.03.2015 is set aside denovo with a direction to AO to carry out proper examination of books of accounts and Bank accounts of assessee as well as investors. A.O. is examination of books of accounts and Bank accounts of assessee as well as investors. A.O. is examination of books of accounts and Bank accounts of assessee as well as investors. A.O. is also directed to examine the directed to examine the source of share application, identity of inves source of share application, identity of investor and its genuineness and issue of purchase & sale of seeds. genuineness and issue of purchase & sale of seeds. The assessment proceedings may be initiated at the earliest and to be completed without The assessment proceedings may be initiated at the earliest and to be completed without The assessment proceedings may be initiated at the earliest and to be completed without waiting for the time barring date. The A.O. must provide sufficient opportunity of being time barring date. The A.O. must provide sufficient opportunity of being time barring date. The A.O. must provide sufficient opportunity of being heard to the assessee in order to meet natural justice, equity and fairness.” assessee in order to meet natural justice, equity and fairness.” 2.1.1. Consequently, the Assessing Officer, after completing the assessment proceedings Consequently, the Assessing Officer, after completing the assessment proceedings Consequently, the Assessing Officer, after completing the assessment proceedings for the second time passed an order u/s 143(3) r.w.s. 263 of the Act on 26/12/2016, for the second time passed an order u/s 143(3) r.w.s. 263 of the Act on 26/12/2016, for the second time passed an order u/s 143(3) r.w.s. 263 of the Act on 26/12/2016, determining the total income of the assessee al income of the assessee at Rs.50,300/-. The Assessing Officer held as . The Assessing Officer held as follows:-

“Accordingly notice u/s;142(1) was issued on 16/12/16 and duly served on the assessee “Accordingly notice u/s;142(1) was issued on 16/12/16 and duly served on the assessee “Accordingly notice u/s;142(1) was issued on 16/12/16 and duly served on the assessee company. The case was fixed from time to time. Shri NK Goyal, FCA & NR of the assessee company. The case was fixed from time to time. Shri NK Goyal, FCA & NR of the assessee company. The case was fixed from time to time. Shri NK Goyal, FCA & NR of the assessee company appeared on different dates and produced copy of ITR, audited accounts, ompany appeared on different dates and produced copy of ITR, audited accounts, ompany appeared on different dates and produced copy of ITR, audited accounts, computation of income, details of directors, details of business computation of income, details of directors, details of business activit activities, details of increase in share capital, Form 2& Form 5, list of share increase in share capital, Form 2& Form 5, list of share-holders, details of bank account details of bank account. He also produced the books of accounts and He also produced the books of accounts and supporting documents to explain the ents to explain the balance sheet items and investment which balance sheet items and investment which is checked with bank statement entries. The bank statement entries. The A/R also furnished copies of bills related to copies of bills related to trading in seeds and the same are placed on the same are placed on record. The said details details were examined. The case was discussed & heard. Summons u/s d. The case was discussed & heard. Summons u/s 131 of the LT. Act was issued to the investor companies to prove identity, genuineness, 131 of the LT. Act was issued to the investor companies to prove identity, genuineness, 131 of the LT. Act was issued to the investor companies to prove identity, genuineness, creditworthiness as required by Ld. Pr. CIT creditworthiness as required by Ld. Pr. CIT-4, Kolkata in his order passed u/s 263 d 4, Kolkata in his order passed u/s 263 dated 07/09/2016. Directors of the investor companies to whom summons u/s 131 were 07/09/2016. Directors of the investor companies to whom summons u/s 131 were 07/09/2016. Directors of the investor companies to whom summons u/s 131 were issued had appeared and their statement were recorded u/s.131 of the I.T. Act on oath issued had appeared and their statement were recorded u/s.131 of the I.T. Act on oath issued had appeared and their statement were recorded u/s.131 of the I.T. Act on oath along with books of accounts and other relevant documents which were checked and along with books of accounts and other relevant documents which were checked and along with books of accounts and other relevant documents which were checked and verified. The Directors appearing on behalf of the investor companies confirmed having d. The Directors appearing on behalf of the investor companies confirmed having d. The Directors appearing on behalf of the investor companies confirmed having invested in the assessee company and also submitted copy of investment ledger in their invested in the assessee company and also submitted copy of investment ledger in their invested in the assessee company and also submitted copy of investment ledger in their company. It was also submitted that, bank statement and balance sheet have already company. It was also submitted that, bank statement and balance sheet have already company. It was also submitted that, bank statement and balance sheet have already been submitted at the time of original assessment. The source of fund, identity, ubmitted at the time of original assessment. The source of fund, identity, ubmitted at the time of original assessment. The source of fund, identity, genuineness and creditworthiness were verified and found in order. The source of fund genuineness and creditworthiness were verified and found in order. The source of fund genuineness and creditworthiness were verified and found in order. The source of fund was verified and found in order. was verified and found in order. Total income is computed as below: Total income is computed as below: Total income as per retur Total income as per return : Rs. 50,302/- Assessed income : Rs. 50,302/- Rounded Off : Rs.50,300/- Assessed u/s. 143(3)/263/143(3) as above. Issue copy of the order, computation sheet Assessed u/s. 143(3)/263/143(3) as above. Issue copy of the order, computation sheet Assessed u/s. 143(3)/263/143(3) as above. Issue copy of the order, computation sheet and demand notice to the assessee.” and demand notice to the assessee.” 2.2. The ld. Pr. CIT-4, Kolkata, issued a notice u/s 263 of the Act, dt. 28/01/2019 to 4, Kolkata, issued a notice u/s 263 of the Act, dt. 28/01/2019 to 4, Kolkata, issued a notice u/s 263 of the Act, dt. 28/01/2019 to the assessee company, to showcause as to the assessee company, to showcause as to why the assessment order passed u/s the assessment order passed u/s 143(3) r.w.s. 263 of the Act, dt. 26/12/2016, should not be revised. The sole reason 143(3) r.w.s. 263 of the Act, dt. 26/12/2016, should not be revised. The sole reason 143(3) r.w.s. 263 of the Act, dt. 26/12/2016, should not be revised. The sole reason for giving showcause notice, is stated as follows: howcause notice, is stated as follows:-

3 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. “On perusal of the records it is seen that total income as determine as per ‘Order’ is On perusal of the records it is seen that total income as determine as per ‘Order’ is On perusal of the records it is seen that total income as determine as per ‘Order’ is less than the total income as assessed as per order u/s 143(3) of the ‘Act’ dated less than the total income as assessed as per order u/s 143(3) of the ‘Act’ dated less than the total income as assessed as per order u/s 143(3) of the ‘Act’ dated 15.03.2015. Therefore, the impugned ‘Order’ is 15.03.2015. Therefore, the impugned ‘Order’ is erroneous, in so far as it is erroneous, in so far as it is prejudicial to the interest of revenue.” prejudicial to the interest of revenue.” The assessee filed its explanation. The ld. Pr. CIT, after considering the explanation The assessee filed its explanation. The ld. Pr. CIT, after considering the explanation The assessee filed its explanation. The ld. Pr. CIT, after considering the explanation given by the assessee to the showcause notice, rejected the same and passed an order u/s given by the assessee to the showcause notice, rejected the same and passed an order u/s given by the assessee to the showcause notice, rejected the same and passed an order u/s 263 of the Act on 27/03/2019 revising the order passed u/s 143(3) r.w.s. 263 of the Act he Act on 27/03/2019 revising the order passed u/s 143(3) r.w.s. 263 of the Act he Act on 27/03/2019 revising the order passed u/s 143(3) r.w.s. 263 of the Act, dt. 26/12/2016. Para 8 of this order read as follows: 26/12/2016. Para 8 of this order read as follows:- “8. In my considered opinion. this is a case of lack of enquiry on the part of the AO. Not “8. In my considered opinion. this is a case of lack of enquiry on the part of the AO. Not “8. In my considered opinion. this is a case of lack of enquiry on the part of the AO. Not collecting the full facts and collecting the full facts and not taking enquiry to logical end which could enable the AO not taking enquiry to logical end which could enable the AO decision based on the totality of facts makes this order erroneous in so far as it is decision based on the totality of facts makes this order erroneous in so far as it is decision based on the totality of facts makes this order erroneous in so far as it is prejudicial to the interest of revenue. After having considered the position of law and prejudicial to the interest of revenue. After having considered the position of law and prejudicial to the interest of revenue. After having considered the position of law and facts and circumstances of the instant case, I am of the considered opinion that the es of the instant case, I am of the considered opinion that the es of the instant case, I am of the considered opinion that the assessment order passed by the A.O. is erroneous in so far as it is prejudicial to the assessment order passed by the A.O. is erroneous in so far as it is prejudicial to the assessment order passed by the A.O. is erroneous in so far as it is prejudicial to the interest of revenue in accordance with the Explanation 2(e) below section 263 (I) of the interest of revenue in accordance with the Explanation 2(e) below section 263 (I) of the interest of revenue in accordance with the Explanation 2(e) below section 263 (I) of the Act. Accordingly, the issue is set aside to the file of the A.O., who is directed to provide , the issue is set aside to the file of the A.O., who is directed to provide , the issue is set aside to the file of the A.O., who is directed to provide reasonable opportunity to the assessee company to produce documents and evidences reasonable opportunity to the assessee company to produce documents and evidences reasonable opportunity to the assessee company to produce documents and evidences which it may choose to rely upon for substantiating its own claim. The AO is further which it may choose to rely upon for substantiating its own claim. The AO is further which it may choose to rely upon for substantiating its own claim. The AO is further directed to adjudicate the said issue de adjudicate the said issue de-novo and pass a fresh Assessment order in novo and pass a fresh Assessment order in accordance with relevant provisions of the law and the directions contained separately accordance with relevant provisions of the law and the directions contained separately accordance with relevant provisions of the law and the directions contained separately in this order. Thus, in view of the facts and circumstances or the case as stated in this order. Thus, in view of the facts and circumstances or the case as stated in this order. Thus, in view of the facts and circumstances or the case as stated above, and also respectfully following the judgments cited above, it is deemed fit and respectfully following the judgments cited above, it is deemed fit and respectfully following the judgments cited above, it is deemed fit and appropriate in the interest of justice to restore the matter back to the A.O. for de novo appropriate in the interest of justice to restore the matter back to the A.O. for de novo appropriate in the interest of justice to restore the matter back to the A.O. for de novo assessment with a direction to him to consider the issue as described in para assessment with a direction to him to consider the issue as described in para assessment with a direction to him to consider the issue as described in para-3 supra as per the directions contained in para 5.6 and 7 supra. Accordingly, I direct the AO to re e directions contained in para 5.6 and 7 supra. Accordingly, I direct the AO to re e directions contained in para 5.6 and 7 supra. Accordingly, I direct the AO to re- assess the income of the assessee for the relevant A.Y. assess the income of the assessee for the relevant A.Y. 2012-13, as directed.” 13, as directed.” 3. The ld. Counsel for the assessee submitted that, the Assessing Officer had completed The ld. Counsel for the assessee submitted that, the Assessing Officer had completed The ld. Counsel for the assessee submitted that, the Assessing Officer had completed the impugned order passed u/s 143(3) r.w.s. 263 of the Act, dt. 26/12/2016, after the impugned order passed u/s 143(3) r.w.s. 263 of the Act, dt. 26/12/2016, after the impugned order passed u/s 143(3) r.w.s. 263 of the Act, dt. 26/12/2016, after complying with the specific directions given by the ld. Pr. CIT complying with the specific directions given by the ld. Pr. CIT-4, Kolkata, in his order 4, Kolkata, in his order dt. 07/09/2016. The ld. Counsel for the assessee argued The ld. Counsel for the assessee argued that the Assessing Officer could not that the Assessing Officer could not have travelled beyond the scope of the directions given by the ld. Pr. CIT in his order u/s have travelled beyond the scope of the directions given by the ld. Pr. CIT in his order u/s have travelled beyond the scope of the directions given by the ld. Pr. CIT in his order u/s 263 of the Act, dt. 07/09/2016 263 of the Act, dt. 07/09/2016, while framing the assessment order u/s , while framing the assessment order u/s 143(3) of the Act. He submitted that, the ld. Pr. CIT, in his first revisionary order passed u/s 263 of the Act He submitted that, the ld. Pr. CIT, in his first revisionary order passed u/s 263 of the Act He submitted that, the ld. Pr. CIT, in his first revisionary order passed u/s 263 of the Act has recorded that, all the details and documents as required by the Assessing Officer were all the details and documents as required by the Assessing Officer were all the details and documents as required by the Assessing Officer were submitted before the Assessing Officer. He submitted submitted before the Assessing Officer. He submitted that the Assessing Officer has that the Assessing Officer has examined all these documents and evidences that were required to be examined and documents and evidences that were required to be examined and documents and evidences that were required to be examined and only then passed the second assessment order on 26/12/2016 and that there was no error passed the second assessment order on 26/12/2016 and that there was no error passed the second assessment order on 26/12/2016 and that there was no error whatsoever in that order, which is prejudicial to the int which is prejudicial to the interest of the revenue erest of the revenue, warranting exercise of revisionary powers u/s 263 of the Act exercise of revisionary powers u/s 263 of the Act once again by the ld. Pr. CIT by the ld. Pr. CIT-4, Kolkata. He submitted that, the order passed by the Assessing Officer on 26/12/2016 was a He submitted that, the order passed by the Assessing Officer on 26/12/2016 was a He submitted that, the order passed by the Assessing Officer on 26/12/2016 was a speaking order wherein, the Assessing Officer has speaking order wherein, the Assessing Officer has followed the direction of the ld. Pr. CIT. followed the direction of the ld. Pr. CIT.

4 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. In the impugned revisionary order, Ld. PCIT has pointed out n the impugned revisionary order, Ld. PCIT has pointed out certain certain alleged infirmities in the order of the A.O. which according to in the order of the A.O. which according to the ld. Pr. CIT made the order of the A.O. made the order of the A.O. "erroneous" and "prejudicial" to the "erroneous" and "prejudicial" to the interest of the revenue. On the second impugned revisionary order passed u/s 263 of the Act, the ld. Counsel for On the second impugned revisionary order passed u/s 263 of the Act, the ld. Counsel for On the second impugned revisionary order passed u/s 263 of the Act, the ld. Counsel for the assessee submitted the following point to point rebuttal: the assessee submitted the following point to point rebuttal:- (i) A.O. had failed to examine the net worth of shareholders in order to see th (i) A.O. had failed to examine the net worth of shareholders in order to see th (i) A.O. had failed to examine the net worth of shareholders in order to see the justifiability of such huge investment. justifiability of such huge investment. It was submitted that, the A.O. has already given a finding in the assessment order that , the A.O. has already given a finding in the assessment order that , the A.O. has already given a finding in the assessment order that he had verified the source of fund, identity, genuineness and credit worthiness and he had verified the source of fund, identity, genuineness and credit worthiness and he had verified the source of fund, identity, genuineness and credit worthiness and found the same in order. Further, from t found the same in order. Further, from the chart marked as Annexure: 'B', it is apparent he chart marked as Annexure: 'B', it is apparent that the investment made in the appel that the investment made in the appellant company by the shareholder company lant company by the shareholder company is not more than 3.5% of their net worth more than 3.5% of their net worth of each shareholder company. (ii) Quantum of share premium raised by the appellant has n (ii) Quantum of share premium raised by the appellant has not been examined by ot been examined by analyzing the financials of the investors. analyzing the financials of the investors. It was submitted that this was not an issue required to be examined by the A.O. as per submitted that this was not an issue required to be examined by the A.O. as per submitted that this was not an issue required to be examined by the A.O. as per the directions given in the first revisionary order dated 7.9.2016 first revisionary order dated 7.9.2016 and hence and hence, the A.O. was not bound to examine the issue of share premium. In any case, as stated above, the not bound to examine the issue of share premium. In any case, as stated above, the not bound to examine the issue of share premium. In any case, as stated above, the shareholder companies had robust financials and in the course of shareholder companies had robust financials and in the course of their their deposition, the A.O. had questioned the shareholders as to why they invested in the app the shareholders as to why they invested in the app the shareholders as to why they invested in the appellant company and the due and cogent reply was al and the due and cogent reply was also given by all the shareholder companies so given by all the shareholder companies. (iii) The replies were placed on record and no independent inquiries were carried (iii) The replies were placed on record and no independent inquiries were carried (iii) The replies were placed on record and no independent inquiries were carried out regarding the fact as to whether the subscribing shareholders were available out regarding the fact as to whether the subscribing shareholders were available out regarding the fact as to whether the subscribing shareholders were available at the given address. It was submitted that the A.O. had vide order sheet entry dated 16.12.2016 has given s submitted that the A.O. had vide order sheet entry dated 16.12.2016 has given s submitted that the A.O. had vide order sheet entry dated 16.12.2016 has given direction to his office to issue notice u/s 131 to all the shareholders. Thereafter, the direction to his office to issue notice u/s 131 to all the shareholders. Thereafter, the direction to his office to issue notice u/s 131 to all the shareholders. Thereafter, the shareholders appeared before shareholders appeared before the Assessing Officer on 19.12.2016 and 20.12.2016 and .2016 and 20.12.2016 and the Assessing Officer recorded their deposition. The factum of recording of deposition is recorded their deposition. The factum of recording of deposition is recorded their deposition. The factum of recording of deposition is duly recorded in the order sheet entries and it is also recorded that the directors duly recorded in the order sheet entries and it is also recorded that the directors duly recorded in the order sheet entries and it is also recorded that the directors appeared with their ID proof. Thus, it is apparent that t appeared with their ID proof. Thus, it is apparent that the A.O. had taken a proactive step he A.O. had taken a proactive step

5 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. in making independent enquiries which not only proves the existence of the companies in making independent enquiries which not only proves the existence of the companies in making independent enquiries which not only proves the existence of the companies but also existence of all other necessary ingredients of section 68. but also existence of all other necessary ingredients of section 68. (iv) A.O. failed to examine the directors as regard the genuinenes (iv) A.O. failed to examine the directors as regard the genuinenes (iv) A.O. failed to examine the directors as regard the genuineness of controlling interest. It is submitted in this regard that this is neither a relevant issue in the context of It is submitted in this regard that this is neither a relevant issue in the context of It is submitted in this regard that this is neither a relevant issue in the context of addition u/s 68 nor did the first PCIT had given any such direction the first PCIT had given any such direction in his first 263 order in his first 263 order. (v) The A.O. failed to examine the bank statemen (v) The A.O. failed to examine the bank statement to trace out the money trail to t to trace out the money trail to ascertain the source of funds. ascertain the source of funds. It was submitted that the direction of the first PCIT was confined to examination of bank submitted that the direction of the first PCIT was confined to examination of bank submitted that the direction of the first PCIT was confined to examination of bank accounts of the investors and to examine the source of share application. It is apparent accounts of the investors and to examine the source of share application. It is apparent accounts of the investors and to examine the source of share application. It is apparent from the observation of the A.O. in the assessment order that the bank statements have servation of the A.O. in the assessment order that the bank statements have servation of the A.O. in the assessment order that the bank statements have been examined by the A.O. Further, reference to the page no. of the bank statements of been examined by the A.O. Further, reference to the page no. of the bank statements of been examined by the A.O. Further, reference to the page no. of the bank statements of the shareholders as available in the record of the A.O., is given in the chart marked as the shareholders as available in the record of the A.O., is given in the chart marked as the shareholders as available in the record of the A.O., is given in the chart marked as Annexure: 'B'. It is worth noting here that the first PCIT has directed to examine the xure: 'B'. It is worth noting here that the first PCIT has directed to examine the xure: 'B'. It is worth noting here that the first PCIT has directed to examine the source of share application and not source of source. Thus, it is apparent that source of source of share application and not source of source. Thus, it is apparent that source of source of share application and not source of source. Thus, it is apparent that source of share application received by the appellant has been traced to the shareholders who share application received by the appellant has been traced to the shareholders who share application received by the appellant has been traced to the shareholders whose identity, genuinity and credit worthiness has admittedly been examine by the A.O. identity, genuinity and credit worthiness has admittedly been examine by the A.O. identity, genuinity and credit worthiness has admittedly been examine by the A.O. (vi) The order passed by the A.O. suffers from lack of adequate enquiry making it (vi) The order passed by the A.O. suffers from lack of adequate enquiry making it (vi) The order passed by the A.O. suffers from lack of adequate enquiry making it erroneous insofar as it is prejudicial to the interest of the revenue. erroneous insofar as it is prejudicial to the interest of the revenue. erroneous insofar as it is prejudicial to the interest of the revenue. It was submitted that the A.O. was obliged to follow the direction of the Ld. PCIT, which hat the A.O. was obliged to follow the direction of the Ld. PCIT, which hat the A.O. was obliged to follow the direction of the Ld. PCIT, which he followed strictly and completely strictly and completely.” 4. The ld. Counsel for the assessee The ld. Counsel for the assessee summed-up his arguments that, ld. Pr. CIT’s order u/s 263 of the Act, dt. 27/03/2019, is bad law for the follo order u/s 263 of the Act, dt. 27/03/2019, is bad law for the following reasons: wing reasons:- a) The Assessing Officer had examined the net worth of the shareholders and The Assessing Officer had examined the net worth of the shareholders and The Assessing Officer had examined the net worth of the shareholders and had given a finding had given a finding of facts, in his assessment order about the source of in his assessment order about the source of funds, identity, creditworthiness of the share applicant. He filed a paper funds, identity, creditworthiness of the share applicant. He filed a paper funds, identity, creditworthiness of the share applicant. He filed a paper book wherein at ann book wherein at annexure-B, the details and documentation submitted by B, the details and documentation submitted by each of the share applicant compan each of the share applicant companies are enclosed. That the Assessing are enclosed. That the Assessing Officer was not required to examine the justification of the share premium Officer was not required to examine the justification of the share premium Officer was not required to examine the justification of the share premium

6 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. charged as per the directions of the ld. Pr. CIT, in the f charged as per the directions of the ld. Pr. CIT, in the f charged as per the directions of the ld. Pr. CIT, in the first revisionary order passed u/s 263 of the Act on 07/09/2016. order passed u/s 263 of the Act on 07/09/2016. b) That the Assessing Officer had scrupulously followed the direction of the That the Assessing Officer had scrupulously followed the direction of the That the Assessing Officer had scrupulously followed the direction of the ld. Pr. CIT, given in the first revisionary order passed u/s 263 of the Act on ld. Pr. CIT, given in the first revisionary order passed u/s 263 of the Act on ld. Pr. CIT, given in the first revisionary order passed u/s 263 of the Act on 07/09/2016. Even otherwise, each of the 07/09/2016. Even otherwise, each of the shareholder companies had shareholder companies had robust financials as can be seen from annexure robust financials as can be seen from annexure-B of the submissions. He B of the submissions. He submitted that the Assessing Officer had specifically asked the submitted that the Assessing Officer had specifically asked the submitted that the Assessing Officer had specifically asked the shareholders for the reasons for investing in the assessee company and shareholders for the reasons for investing in the assessee company and shareholders for the reasons for investing in the assessee company and after getting cogent r after getting cogent replies, accepted the same. c) That the Assessing Officer had issued notice u/s 131 of the Act to all the That the Assessing Officer had issued notice u/s 131 of the Act to all the That the Assessing Officer had issued notice u/s 131 of the Act to all the shareholders and that the shareholders had appeared before him on shareholders and that the shareholders had appeared before him on shareholders and that the shareholders had appeared before him on 19/12/2016 & 20/12/2016 19/12/2016 & 20/12/2016. That the Assessing Officer recorded the . That the Assessing Officer recorded the deposition of each of deposition of each of these shareholders and that this fact is evident from these shareholders and that this fact is evident from the order sheet entries and the deposition on record. the order sheet entries and the deposition on record. d) That the Assessing Officer had taken pro That the Assessing Officer had taken pro-active steps in making active steps in making independent enquiries, only after which he was satisfied that all the independent enquiries, only after which he was satisfied that all the independent enquiries, only after which he was satisfied that all the necessary ingr necessary ingredients of Section 68 of the Act, are existing in these edients of Section 68 of the Act, are existing in these transactions. e) That the ld. Pr. CIT has not asked the Assessing Officer to examine the That the ld. Pr. CIT has not asked the Assessing Officer to examine the That the ld. Pr. CIT has not asked the Assessing Officer to examine the Directors on the issue of genuineness of controlling interest as the same Directors on the issue of genuineness of controlling interest as the same Directors on the issue of genuineness of controlling interest as the same was not relevant. He submitted that the was not relevant. He submitted that the ld. Pr. CIT in the first round has ld. Pr. CIT in the first round has directed the Assessing Officer to examine all the bank accounts of the directed the Assessing Officer to examine all the bank accounts of the directed the Assessing Officer to examine all the bank accounts of the investors and also to examine the source of share applicant which investors and also to examine the source of share applicant which investors and also to examine the source of share applicant which investigation was done by the Assessing Officer and that there was not investigation was done by the Assessing Officer and that there was not investigation was done by the Assessing Officer and that there was not direction to trace out the money trails so as to ascertain the source of trace out the money trails so as to ascertain the source of trace out the money trails so as to ascertain the source of funds. 4.1. He argued that the Assessing Officer was bound by the directions of the ld. Pr. He argued that the Assessing Officer was bound by the directions of the ld. Pr. He argued that the Assessing Officer was bound by the directions of the ld. Pr. CIT given in the first round of revisionary proceedings u/s 263 of the Act and that the CIT given in the first round of revisionary proceedings u/s 263 of the Act and that the CIT given in the first round of revisionary proceedings u/s 263 of the Act and that the Assessing Officer has followed each of these directions and after conducting detailed er has followed each of these directions and after conducting detailed er has followed each of these directions and after conducting detailed enquiries and obtaining necessary documents has taken a plausible view and it cannot enquiries and obtaining necessary documents has taken a plausible view and it cannot enquiries and obtaining necessary documents has taken a plausible view and it cannot be said that this is a case where there was lack of enquiry or a case of inadequate be said that this is a case where there was lack of enquiry or a case of inadequate be said that this is a case where there was lack of enquiry or a case of inadequate enquiry and hence that the ld. Pr. CIT has erred in invoking his powers u/s 263 of the e that the ld. Pr. CIT has erred in invoking his powers u/s 263 of the e that the ld. Pr. CIT has erred in invoking his powers u/s 263 of the Act. He relied on a number of case Act. He relied on a number of case-law for each of the propositions cited by him. He law for each of the propositions cited by him. He

7 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. submitted that this case is squarely covered in his favour by the decision of the Kolkata case is squarely covered in his favour by the decision of the Kolkata case is squarely covered in his favour by the decision of the Kolkata ‘B’ Bench of the Tribunal in the case of of the Tribunal in the case of Amritrashi Infra Private Ltd. rivate Ltd. Vs. Principal Commissioner of Income-tax in tax in ITA No. 838/Kol/2019; Assessment Year: 2012 Assessment Year: 2012-13 order dt. 12.08.2020 and the decision of the Kolkata ‘A’ Bench of the Tribunal in the and the decision of the Kolkata ‘A’ Bench of the Tribunal in the and the decision of the Kolkata ‘A’ Bench of the Tribunal in the case M/s Omkar Infracon Private vs ITO,Ward Infracon Private vs ITO,Ward-12(2), Kolkata in ITA No. 896/Kol/2019; Assessment in ITA No. 896/Kol/2019; Assessment Year 2012-13, order dt. 18/03/2020 13, order dt. 18/03/2020, wherein under similar circumstances the order of , wherein under similar circumstances the order of the ld. Pr. CIT u/s 263 of the Act, was quashed as bad in law the ld. Pr. CIT u/s 263 of the Act, was quashed as bad in law. He further relied on the He further relied on the decision in the case of Kanchan Plywood Products Pvt. Ltd. in ITA No. 2411/Kol/2017; Kanchan Plywood Products Pvt. Ltd. in ITA No. 2411/Kol/2017; Kanchan Plywood Products Pvt. Ltd. in ITA No. 2411/Kol/2017; Assessment Year: 2012-13, order dt. 01/05/2019, 13, order dt. 01/05/2019, and other decisions for the proposition and other decisions for the proposition that share premium cannot be taxed, even if it exceeds the fair market value, prior t that share premium cannot be taxed, even if it exceeds the fair market value, prior t that share premium cannot be taxed, even if it exceeds the fair market value, prior to the amendment brought to the Income Tax Act in the Assessment Year 2013 amendment brought to the Income Tax Act in the Assessment Year 2013 amendment brought to the Income Tax Act in the Assessment Year 2013-14. We would be considering each of these decisions as and when necessary. be considering each of these decisions as and when necessary. 5. The ld. D/R, Shri Anand Kedia Anand Kedia, on the other hand, controverted the arguments of , on the other hand, controverted the arguments of the assessee and submitted that the ld. Pr. CIT ted that the ld. Pr. CIT in the impugned order passed u/s 263 of in the impugned order passed u/s 263 of the Act on 27/03/2019 has dealt with each and ever has dealt with each and every argument made by the assessee y argument made by the assessee. He took this Bench through para He took this Bench through para 5.2. to para 8 of the impugned order passed u/s 263 of the Act and relied on the finding of the ld. Pr. CIT finding of the ld. Pr. CIT. He specifically drew the attention of . He specifically drew the attention of the Bench to the judgment of the Hon’ble Supreme Court in the case of the Bench to the judgment of the Hon’ble Supreme Court in the case of the Bench to the judgment of the Hon’ble Supreme Court in the case of Principal Commissioner of Income-tax (Central) tax (Central)-1 v. NRA Iron & Steel (P.) Ltd. reported in reported in [2019] 103 taxmann.com 48 (SC) and argued that in case of private placement of shares, there is and argued that in case of private placement of shares, there is and argued that in case of private placement of shares, there is a higher onus placed on the assessee and the assessee is under a legal obligation, to a higher onus placed on the assessee and the assessee is under a legal obligation, to a higher onus placed on the assessee and the assessee is under a legal obligation, to justify the receipt of share capital and share premium to the satisfaction of the justify the receipt of share capital and share premium to the satisfaction of the justify the receipt of share capital and share premium to the satisfaction of the Assessing Officer. He submitted that the order of the Assessing Officer is a non er. He submitted that the order of the Assessing Officer is a non er. He submitted that the order of the Assessing Officer is a non-speaking order and that a perusal of the same demonstrates that the assessment order is order and that a perusal of the same demonstrates that the assessment order is order and that a perusal of the same demonstrates that the assessment order is erroneous insofar as it is prejudicial to the interest of the revenue. On a specific query erroneous insofar as it is prejudicial to the interest of the revenue. On a specific query erroneous insofar as it is prejudicial to the interest of the revenue. On a specific query from the Bench, though not leaving his ground, the ld. D/R nch, though not leaving his ground, the ld. D/R ultimately submitted that ultimately submitted that could not distinguish the orders of this Bench of the Tribunal, on facts, could not distinguish the orders of this Bench of the Tribunal, on facts, could not distinguish the orders of this Bench of the Tribunal, on facts, as these are identical circumstances, as as in the case of Amritrashi Infra Private Ltd. vs. rivate Ltd. vs. Principal Commissioner of Income-tax (supra) tax (supra) and M/s Omkar Infracon Private vs ITO Omkar Infracon Private vs ITO (supra). He prayed that the order of the ld. Pr. CIT passed u/s 263 of the Act to be upheld. prayed that the order of the ld. Pr. CIT passed u/s 263 of the Act to be upheld. prayed that the order of the ld. Pr. CIT passed u/s 263 of the Act to be upheld. 5.1. In reply, the ld. Counsel for the assessee, submitted that the judgment of the In reply, the ld. Counsel for the assessee, submitted that the judgment of the In reply, the ld. Counsel for the assessee, submitted that the judgment of the Hon’ble Supreme Court in the case of Hon’ble Supreme Court in the case of NRA Iron & Steel (P.) Ltd. (supra), (supra), is not applicable as, in that case, the shareholders were not traceable and whereas in the case of hand as, in that case, the shareholders were not traceable and whereas in the case of hand as, in that case, the shareholders were not traceable and whereas in the case of hand

8 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. each of the shareholder companies’ representatives appeared before the Assessing each of the shareholder companies’ representatives appeared before the Assessing each of the shareholder companies’ representatives appeared before the Assessing Officer in response to summons and that the Assessing Officer recorded statements on Officer in response to summons and that the Assessing Officer recorded statements on Officer in response to summons and that the Assessing Officer recorded statements on oath from them and that they filed all necessary documents including assessment oath from them and that they filed all necessary documents including assessment oath from them and that they filed all necessary documents including assessment orders passed in their cases u/s 143(3) of the Act, by the Department in their cases, ssed in their cases u/s 143(3) of the Act, by the Department in their cases, ssed in their cases u/s 143(3) of the Act, by the Department in their cases, copies of the final accounts, copies of the returns of income filed by them, copies of the copies of the final accounts, copies of the returns of income filed by them, copies of the copies of the final accounts, copies of the returns of income filed by them, copies of the bank account statements and also evidence of sources of investments etc. bank account statements and also evidence of sources of investments etc. bank account statements and also evidence of sources of investments etc. in support of their identity, creditworthiness and also genuineness of the transactions. heir identity, creditworthiness and also genuineness of the transactions. heir identity, creditworthiness and also genuineness of the transactions. He submitted that when the assessments of the share applicant companies have been completed by that when the assessments of the share applicant companies have been completed by that when the assessments of the share applicant companies have been completed by the Department u/s 143(3) of the Act, and when nothing adverse was found, no addition the Department u/s 143(3) of the Act, and when nothing adverse was found, no addition the Department u/s 143(3) of the Act, and when nothing adverse was found, no addition u/s 68 of the Act, can be made in the case of the assessee company, which is a recipient /s 68 of the Act, can be made in the case of the assessee company, which is a recipient /s 68 of the Act, can be made in the case of the assessee company, which is a recipient of the share application money. For this proposition, he relied on a number of case of the share application money. For this proposition, he relied on a number of case of the share application money. For this proposition, he relied on a number of case-law, which we will be referring to, as and when required. which we will be referring to, as and when required. 5.1.1. He once again relied on the order of the Co d on the order of the Co-ordinate Bench of the Tribunal in the ordinate Bench of the Tribunal in the case of Amritrashi Infra Private Ltd. vs. rivate Ltd. vs. Principal Commissioner of Income ipal Commissioner of Income-tax (supra) and submitted that the facts of the assessee’s case are identical to the facts in the case of submitted that the facts of the assessee’s case are identical to the facts in the case of submitted that the facts of the assessee’s case are identical to the facts in the case of Amritrashi Infra Private Ltd. (supra) rivate Ltd. (supra) and under those circumstances, the decision of the and under those circumstances, the decision of the Tribunal in the case of Amritrashi Infra P Amritrashi Infra Private Ltd. (supra), has to be followed, , has to be followed, specifically when no contrary decision is brought to the notice of the Tribunal. specifically when no contrary decision is brought to the notice of the Tribunal. specifically when no contrary decision is brought to the notice of the Tribunal. 6. We have heard rival contentions. On careful consideration of the facts and d rival contentions. On careful consideration of the facts and d rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities circumstances of the case, perusal of the papers on record, orders of the authorities circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows: below as well as case law cited, we hold as follows:- 7. We find that this Bench of the Tribunal, has unde We find that this Bench of the Tribunal, has under identical circumstances and r identical circumstances and identical facts, in the case of identical facts, in the case of Amritrashi Infra Private Ltd. (supra) where the ld. Pr. CIT where the ld. Pr. CIT had passed a second order u/s 263 of the Act, held as follows: had passed a second order u/s 263 of the Act, held as follows:- “46. In the light of the afore In the light of the afore-cited judicial precedents, let us examine the case in examine the case in hand and find out whether pursuant to the specific direction of First Ld. Pr. CIT, the hand and find out whether pursuant to the specific direction of First Ld. Pr. CIT, the hand and find out whether pursuant to the specific direction of First Ld. Pr. CIT, the second AO has discharged his role as an investigator in respect of share capital and second AO has discharged his role as an investigator in respect of share capital and second AO has discharged his role as an investigator in respect of share capital and premium collected by the assessee or whether the AO failed to en premium collected by the assessee or whether the AO failed to enquire on this issue and quire on this issue and whether his re-assessment/second assessment order is a plausible view or it can be assessment/second assessment order is a plausible view or it can be assessment/second assessment order is a plausible view or it can be termed as an unsustainable view in law. We on a conjoint reading of the First termed as an unsustainable view in law. We on a conjoint reading of the First termed as an unsustainable view in law. We on a conjoint reading of the First Revisional Order of the First Pr. CIT dated 23.08.2016 and the reassess Revisional Order of the First Pr. CIT dated 23.08.2016 and the reassess Revisional Order of the First Pr. CIT dated 23.08.2016 and the reassessment /Second assessment of the AO dated 07.12.2016, the following facts can be discerned: assessment of the AO dated 07.12.2016, the following facts can be discerned: assessment of the AO dated 07.12.2016, the following facts can be discerned:-

(a)The First Ld. Pr. CIT has recorded a finding after perusal of the first (a)The First Ld. Pr. CIT has recorded a finding after perusal of the first (a)The First Ld. Pr. CIT has recorded a finding after perusal of the first assessment records/folder that during the first round of scrutiny proceeding, the assessment records/folder that during the first round of scrutiny proceeding, the assessment records/folder that during the first round of scrutiny proceeding, the

9 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. assessee company produced the following documents before the first AO in the original ee company produced the following documents before the first AO in the original ee company produced the following documents before the first AO in the original assessment to satisfy the AO in respect of identity, creditworthiness and genuineous of assessment to satisfy the AO in respect of identity, creditworthiness and genuineous of assessment to satisfy the AO in respect of identity, creditworthiness and genuineous of share subscribers:- (i) audited financial statements; audited financial statements; (ii) copy of Form filed with the ROC; copy of Form filed with the ROC; (iii) copy of PAN Card of the assessee company; of PAN Card of the assessee company; (iv) details and copy of share applicants; details and copy of share applicants; (v) bank statement reflecting the transaction; bank statement reflecting the transaction; (vi) records relating to investors in order to establish identity, genuineness records relating to investors in order to establish identity, genuineness records relating to investors in order to establish identity, genuineness and creditworthiness of the share subscribers. and creditworthiness of the share subscribers. 47. We note that the First Ld. Pr. CIT in his first revisional order, found that AO in the First Ld. Pr. CIT in his first revisional order, found that AO in the First Ld. Pr. CIT in his first revisional order, found that AO in the first assessment proceedings though has been provided with the aforesaid the first assessment proceedings though has been provided with the aforesaid the first assessment proceedings though has been provided with the aforesaid documents has not examined these documents, which according to him, should have documents has not examined these documents, which according to him, should have documents has not examined these documents, which according to him, should have been carried out by the AO been carried out by the AO. The First Ld. Pr. CIT at para (4) of his first revisional order . The First Ld. Pr. CIT at para (4) of his first revisional order has clearly made a finding that “ From the above discussion it is evident that the has clearly made a finding that “ From the above discussion it is evident that the has clearly made a finding that “ From the above discussion it is evident that the assessment proceedings in the case of assessee was completed in a very casual manner assessment proceedings in the case of assessee was completed in a very casual manner assessment proceedings in the case of assessee was completed in a very casual manner and hurried manner flouting all established procedures. flouting all established procedures. The assessee had discharged The assessee had discharged its onus by furnishing/documents before the AO its onus by furnishing/documents before the AO.”Further, the First Ld. Pr. CIT mainly .”Further, the First Ld. Pr. CIT mainly found fault with the AO’s order for non found fault with the AO’s order for non-issuance of notice u/s. 133(6) of the Act to the issuance of notice u/s. 133(6) of the Act to the shareholders. The First Ld. Pr. CIT found fault with the AO’ s order in not discussing the The First Ld. Pr. CIT found fault with the AO’ s order in not discussing the The First Ld. Pr. CIT found fault with the AO’ s order in not discussing the basis of evidence on which adverse inference was drawn against the assessee. basis of evidence on which adverse inference was drawn against the assessee. basis of evidence on which adverse inference was drawn against the assessee. Moreover, the First Ld. Pr. CIT found fault with the AO for not bothering to examine the Moreover, the First Ld. Pr. CIT found fault with the AO for not bothering to examine the Moreover, the First Ld. Pr. CIT found fault with the AO for not bothering to examine the contention of the assessee or to bring on record anything against the assessee and thus f the assessee or to bring on record anything against the assessee and thus f the assessee or to bring on record anything against the assessee and thus according to him, the AO with a pre according to him, the AO with a pre-determined mind has simply jumped to the determined mind has simply jumped to the conclusion that the share capital collected by assessee as unexplained cash credit u/s. conclusion that the share capital collected by assessee as unexplained cash credit u/s. conclusion that the share capital collected by assessee as unexplained cash credit u/s. 68 of the Act. Therefore, according to the First Ld. Pr. CIT, the first original assessment Therefore, according to the First Ld. Pr. CIT, the first original assessment Therefore, according to the First Ld. Pr. CIT, the first original assessment order framed u/s. 143(3) of the Act dated 26 order framed u/s. 143(3) of the Act dated 26-03-2015 was against the principle of 2015 was against the principle of natural justice and, therefore, he found it fit to order denovo assessment and gave natural justice and, therefore, he found it fit to order denovo assessment and gave natural justice and, therefore, he found it fit to order denovo assessment and gave specific direction in respect of share capital & premium collected by assessee. ction in respect of share capital & premium collected by assessee. ction in respect of share capital & premium collected by assessee.

10 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. v) The AO to complete the assessment at the earliest without The AO to complete the assessment at the earliest without waiting for the time waiting for the time barring date. 50. In the second round before the AO for de novo re In the second round before the AO for de novo re-assessment, the second AO as assessment, the second AO as per the specific direction of the First Ld. Pr. CIT (supra), conducted the reassessment per the specific direction of the First Ld. Pr. CIT (supra), conducted the reassessment per the specific direction of the First Ld. Pr. CIT (supra), conducted the reassessment proceeding. As per the specific direction of Ld. proceeding. As per the specific direction of Ld. First Pr. CIT, the Second AO firstly First Pr. CIT, the Second AO firstly Sl. Name of company CIN PAN ITR filed No for AY . 2012-13 1. M/s. K. R. Overseas Pvt. Ltd. M/s. K. R. Overseas Pvt. Ltd. U51109WB1994PTC061965 AACCK0101B AACCK0101B yes 2. M/s. Kakrania Trading Pvt. M/s. Kakrania Trading Pvt. U70101WB1994PTC062137 AABCK151611 AABCK151611 yes Ltd. 3. M/s. AmbalaTrafin Pvt. Ltd. M/s. AmbalaTrafin Pvt. Ltd. U67120WB1995PTCO74397 AACCA1184G AACCA1184G yes 4. M/s. Subhiksha Pvt. Ltd. M/s. Subhiksha Pvt. Ltd. U52190WB2011PTC157073 AAPCS2068E AAPCS2068E yes 5. M/s. Shivarshi Construction M/s. Shivarshi Construction U45400WB2011PTC170957 AAQCS7848M AAQCS7848M yes Pvt. Ltd. 6. M/s. Shivashiv Pvt. Ltd. M/s. Shivashiv Pvt. Ltd. U74999WB2012PTC 173749 AARCS0094C AARCS0094C yes 7. M/s. Flowtop Agency Pvt. Ltd. M/s. Flowtop Agency Pvt. Ltd. U52190WB2012PTC 173352 AABCF9036D AABCF9036D yes 8. M/s. SukhSagar Residency M/s. SukhSagar Residency U45400WB2011PTC170958 AARCS1553N AARCS1553N yes Pvt. Ltd. 9. M/s. Kamaldhan Developers M/s. Kamaldhan Developers U45400WB2011PTC170944 AAECK6810D AAECK6810D yes Pvt. Ltd. 10 M/s. LabhdhanImpex Pvt. Ltd. M/s. LabhdhanImpex Pvt. Ltd. U51909WB2011PTC171524 AACCL2111J AACCL2111J yes . 11 M/s. SubhsreeImpex Pvt. Ltd. Pvt. Ltd. U51909WB2011PTC171513 AARCS1845D AARCS1845D yes . 12 M/s. M/s. Maharaja Maharaja Merchants Merchants U51109WB2005PTC102343 AAECM224E AAECM224E yes . Pvt. Ltd. 13 M/s. Sristi Sales Pvt. Ltd. M/s. Sristi Sales Pvt. Ltd. U51109WB2005PTC102121 AAICS8900L AAICS8900L yes . summoned the director of the assessee company Shri NavinTahin before him, who duly summoned the director of the assessee company Shri NavinTahin before him, who duly summoned the director of the assessee company Shri NavinTahin before him, who duly appeared and produced the books of account on 01.12.2016 and furnished the relevant appeared and produced the books of account on 01.12.2016 and furnished the relevant appeared and produced the books of account on 01.12.2016 and furnished the relevant details viz., (i) copy of ITR, (ii) audited account details viz., (i) copy of ITR, (ii) audited accounts, (iii) details of directors, (iv) the s, (iii) details of directors, (iv) the details of the share-applicants, (v) details of business activity, (vi) details of increase in applicants, (v) details of business activity, (vi) details of increase in applicants, (v) details of business activity, (vi) details of increase in share capital, (vii) Form 2, (viii) Form 5, (ix) bank statements evidencing payment share capital, (vii) Form 2, (viii) Form 5, (ix) bank statements evidencing payment share capital, (vii) Form 2, (viii) Form 5, (ix) bank statements evidencing payment through banking transaction, which through banking transaction, which fact the AO has acknowledged in the reassessment fact the AO has acknowledged in the reassessment order. [And here we should keep in mind that the First Ld. Pr. CIT’s finding of fact after order. [And here we should keep in mind that the First Ld. Pr. CIT’s finding of fact after order. [And here we should keep in mind that the First Ld. Pr. CIT’s finding of fact after perusal of original assessment records that assessee in the first round before AO has perusal of original assessment records that assessee in the first round before AO has perusal of original assessment records that assessee in the first round before AO has produced PAN,ROC details, audi produced PAN,ROC details, audited financial statements, details and copy of share ted financial statements, details and copy of share applicants, bank statements reflecting the transaction, records relating to investors to applicants, bank statements reflecting the transaction, records relating to investors to applicants, bank statements reflecting the transaction, records relating to investors to establish identity, creditworthiness & genuineness. And the finding of First Ld. Pr. CIT establish identity, creditworthiness & genuineness. And the finding of First Ld. Pr. CIT establish identity, creditworthiness & genuineness. And the finding of First Ld. Pr. CIT that assessee had discharg that assessee had discharged its onus by furnishing/documents before the ed its onus by furnishing/documents before the AO.]Secondly, after examining these documents, we also find that the second AO issued AO.]Secondly, after examining these documents, we also find that the second AO issued AO.]Secondly, after examining these documents, we also find that the second AO issued notices u/s. 133(6) of the Act to all the thirteen (13) share applicants and pursuant to notices u/s. 133(6) of the Act to all the thirteen (13) share applicants and pursuant to notices u/s. 133(6) of the Act to all the thirteen (13) share applicants and pursuant to the notice, all the shareholder the notice, all the shareholders have filed their respective (i) PAN details, (ii) CIN s have filed their respective (i) PAN details, (ii) CIN detail, (iii) Audited Annual Report for FY 2011 detail, (iii) Audited Annual Report for FY 2011-12 (AY 2012 12 (AY 2012-13), (iv) ITR acknowledgment for AY 2012 acknowledgment for AY 2012-13 which the AO acknowledges that he verified the same 13 which the AO acknowledges that he verified the same and thus we note that the identity of the i and thus we note that the identity of the investors were duly furnished by the nvestors were duly furnished by the assessee’s director; and the AO verified the veracity of the same from all the share assessee’s director; and the AO verified the veracity of the same from all the share assessee’s director; and the AO verified the veracity of the same from all the share applicants by issuing notice u/s 133(6) of the Act and moreover it is common applicants by issuing notice u/s 133(6) of the Act and moreover it is common applicants by issuing notice u/s 133(6) of the Act and moreover it is common knowledge that in this computer/digital era, the AO on a c knowledge that in this computer/digital era, the AO on a click of the mouse, could have lick of the mouse, could have easily verified the identity of the share applicant which is available in the website of easily verified the identity of the share applicant which is available in the website of easily verified the identity of the share applicant which is available in the website of Ministry of Corporate Affairs and the ITR Acknowledgments filed by them, will enable Ministry of Corporate Affairs and the ITR Acknowledgments filed by them, will enable Ministry of Corporate Affairs and the ITR Acknowledgments filed by them, will enable the AO to cross verify and collect details from the the AO to cross verify and collect details from the AO of the respective share applicants AO of the respective share applicants and independently from the Revenue’s departmental data base. We note that all the and independently from the Revenue’s departmental data base. We note that all the and independently from the Revenue’s departmental data base. We note that all the share subscribing parties filed all the documents called for by the AO [PB share subscribing parties filed all the documents called for by the AO [PB share subscribing parties filed all the documents called for by the AO [PB-2] and were also examined by the AO along with audited accou also examined by the AO along with audited accounts from which these details show nts from which these details show their identity.

11 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. 51. Thus, we note that the AO after verification as aforesaid, has not drawn any 51. Thus, we note that the AO after verification as aforesaid, has not drawn any 51. Thus, we note that the AO after verification as aforesaid, has not drawn any adverse opinion or doubted the adverse opinion or doubted the identity of the share applicants which view of AO is a of the share applicants which view of AO is a possible view in the light of the possible view in the light of the documents referred to and we also by applying the documents referred to and we also by applying the presumption in section 114 of Indian Evidence Act 1872, we presume that the quasi presumption in section 114 of Indian Evidence Act 1872, we presume that the quasi presumption in section 114 of Indian Evidence Act 1872, we presume that the quasi- judicial act of the second AO have been regularly performed. Coming to the contention judicial act of the second AO have been regularly performed. Coming to the contention judicial act of the second AO have been regularly performed. Coming to the contention of Ld. CIT, DR, that order sheet mai of Ld. CIT, DR, that order sheet maintained by the Second AO does not reveal that AO ntained by the Second AO does not reveal that AO had issued notice u/s. 133(6) of the Act to the share subscribers, we note that the AO in had issued notice u/s. 133(6) of the Act to the share subscribers, we note that the AO in had issued notice u/s. 133(6) of the Act to the share subscribers, we note that the AO in his reassessment/second assessment order has clearly asserted that he had issued his reassessment/second assessment order has clearly asserted that he had issued his reassessment/second assessment order has clearly asserted that he had issued notice u/s. 133(6) of the Act to a notice u/s. 133(6) of the Act to all the share applicants as directed by the First Ld. Pr. ll the share applicants as directed by the First Ld. Pr. CIT and we note from the perusal of some letters written by the share applicants CIT and we note from the perusal of some letters written by the share applicants CIT and we note from the perusal of some letters written by the share applicants clearly referring to the AO’s sec. 133(6) notice (refer inter clearly referring to the AO’s sec. 133(6) notice (refer inter-alia page 32 of PB alia page 32 of PB-I). So, the clear assertion of the S the clear assertion of the Second AO in his order that pursuant to his issue of notice econd AO in his order that pursuant to his issue of notice u/s. 133(6), he received the documents called for cannot be disbelieved merely because u/s. 133(6), he received the documents called for cannot be disbelieved merely because u/s. 133(6), he received the documents called for cannot be disbelieved merely because he did not mention this event in the order sheet. Moreover, the assessee or the share he did not mention this event in the order sheet. Moreover, the assessee or the share he did not mention this event in the order sheet. Moreover, the assessee or the share applicants does not hav applicants does not have any control over the order sheet maintained by the AO and e any control over the order sheet maintained by the AO and the failure of AO to mention this action cannot be a reason to disbelieve the AO’s the failure of AO to mention this action cannot be a reason to disbelieve the AO’s the failure of AO to mention this action cannot be a reason to disbelieve the AO’s assertion that he issued notice u/s. 133(6) of the Act. Moreover, we have to examine assertion that he issued notice u/s. 133(6) of the Act. Moreover, we have to examine assertion that he issued notice u/s. 133(6) of the Act. Moreover, we have to examine the re-assessment/second as assessment/second assessment order of AO and not the order-sheet maintained sheet maintained by him which has not been negatively commented upon by the Second Ld Pr CIT and it by him which has not been negatively commented upon by the Second Ld Pr CIT and it by him which has not been negatively commented upon by the Second Ld Pr CIT and it is not the fault for which the Ld Pr CIT exercised his power u/s 263 of the Act. Thus, we is not the fault for which the Ld Pr CIT exercised his power u/s 263 of the Act. Thus, we is not the fault for which the Ld Pr CIT exercised his power u/s 263 of the Act. Thus, we note that second AO issued note that second AO issued sec. 133(6) notice and collected documents running more sec. 133(6) notice and collected documents running more than 352 pages. Moreover, the First Ld. Pr. CIT while setting aside the first AO’s order than 352 pages. Moreover, the First Ld. Pr. CIT while setting aside the first AO’s order than 352 pages. Moreover, the First Ld. Pr. CIT while setting aside the first AO’s order has returned a finding that assessee in the first round itself has filed the relevant has returned a finding that assessee in the first round itself has filed the relevant has returned a finding that assessee in the first round itself has filed the relevant documents to prove the id documents to prove the identity, creditworthiness and genuineness of the share capital entity, creditworthiness and genuineness of the share capital and that assessee had discharged its onus by filing the same. So we find that during and that assessee had discharged its onus by filing the same. So we find that during and that assessee had discharged its onus by filing the same. So we find that during the second round, the AO issued notices to share the second round, the AO issued notices to share-holders u/s. 133(6) and after perusing holders u/s. 133(6) and after perusing their replies and supporting documents and thereafter having verified their veracity, pporting documents and thereafter having verified their veracity, pporting documents and thereafter having verified their veracity, the second AO was satisfied with the explanation of assessee in respect to the nature the second AO was satisfied with the explanation of assessee in respect to the nature the second AO was satisfied with the explanation of assessee in respect to the nature and source of share capital which view of second AO cannot be faulted. And we also and source of share capital which view of second AO cannot be faulted. And we also and source of share capital which view of second AO cannot be faulted. And we also note that all the share-holders are regular income tax assessee’s. Therefore in the light holders are regular income tax assessee’s. Therefore in the light holders are regular income tax assessee’s. Therefore in the light of the aforesaid documents discussed their of the aforesaid documents discussed their identity cannot be disbelieved and the AO’s cannot be disbelieved and the AO’s satisfaction in respect of identity of the shareholders is a possible view and cannot be satisfaction in respect of identity of the shareholders is a possible view and cannot be satisfaction in respect of identity of the shareholders is a possible view and cannot be termed as unsustainable in law or facts. nsustainable in law or facts. 52. Coming to the creditworthiness creditworthiness of the shareholders, our attention was drawn of the shareholders, our attention was drawn to the balance sheet of the shareholders (PB to the balance sheet of the shareholders (PB- 2) which was filed before the AO and the 2) which was filed before the AO and the Ld. Pr. CIT and we note that their source of investment and Ld. Pr. CIT and we note that their source of investment and net worth as per balance net worth as per balance sheet as on 31.03.2012 as well as the sum invested by them in the assessee is sheet as on 31.03.2012 as well as the sum invested by them in the assessee is sheet as on 31.03.2012 as well as the sum invested by them in the assessee is discernible as under: Name Source of investment Capital & Sum invested in Reserves assessee’s business M/s. K. R. Overseas Pvt. Ltd. Page 8 Paper Book-2 Rs.66,77,47,921 Rs.66,77,47,921 Rs.1,30,000/- (page 22 PB-2 2) M/s. Kakrania Trading Pvt. M/s. Kakrania Trading Pvt. Page 45Paper Book-2 Rs.66,52,71,914 Rs.66,52,71,914 Rs.1,39,00,000/- Ltd. (page 62 PB-2 2) M/s. AmbalaTrafinpvt. Ltd. Page 88Paper Book-2 Rs.624,711,003 Rs.624,711,003 Rs.4,40,00,000/- (page 101 PB PB- 2) M/s. Subhiksha Pvt. Ltd. Page 115Paper Book- Rs.222,397,317 Rs.222,397,317 Rs.45,00,000/- (page 128 PB-2 2) 2 M/s. Shivarshi Construction M/s. Shivarshi Construction Page 146Paper Book-2 Rs.53,89,95,046 Rs.53,89,95,046 Rs.4,66,00,000/- Pvt. Ltd. (page 153 PB-2 2) M/s. Shivashiv Pvt. Ltd. Page 170Paper Book-2 Rs.14,29,56,146 Rs.14,29,56,146 Rs.6,55,00,000/- (page 178 PB-2 2)

12 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. M/s. Flowtop Agency Pvt. Ltd. M/s. Flowtop Agency Pvt. Ltd. Page 193Paper Book-2 Rs.15,38,94,946 Rs.15,38,94,946 Rs.4,49,00,000/- (page 200 PB-2 2) M/s. Sukh Sagar Residency M/s. Sukh Sagar Residency Page 212 Paper Book-2 Rs.56,18,93,960 Rs.56,18,93,960 Rs.2,31,00,000/- Pvt. Ltd. (page 220 PB-2 2) M/s. Kamaldhan Developers M/s. Kamaldhan Developers Page246-247Paper Rs.56,18,94,080 Rs.56,18,94,080 Rs.12,54,00,000/- Pvt. Ltd. Book-2 (page 254 PB-2 2) M/s. Labhdhan Impex Pvt. M/s. Labhdhan Impex Pvt. Page 270PaperBook-2 Rs.56,18,94,080 Rs.56,18,94,080 Rs. 3,80,00,000/- Ltd. (page 277 PB-2 2) M/s. SubhsreeI mpex Pvt. Ltd. Ltd. Page 290 of paper book Rs.76,60,93,960 Rs.76,60,93,960 Rs. 2,76,00.000/- (page 297 PB-2 2) M/s. M/s. Maharaja Maharaja Merchants Merchants - Rs.1,54,58,399 Rs.1,54,58,399 Rs. 50,00,000/- Pvt. Ltd. (page 313 PB-2 2) M/s. Sristi Sales Pvt. Ltd. - Rs.1,12,25,632 Rs.1,12,25,632 Rs.50,00,000/- (page 336 PB-2 2)

(i) On perusal of the paper book On perusal of the paper book-2, it reveals that the documents are placed 2, it reveals that the documents are placed at page 12 to 37 of share applicant at page 12 to 37 of share applicant M/s. K.R. Overseas Pvt. Limited M/s. K.R. Overseas Pvt. Limited which is a Private Limited Company, and which has Permanent Account No. a Private Limited Company, and which has Permanent Account No. a Private Limited Company, and which has Permanent Account No. AACCK0101B AACCK0101B and CIN U51109WB1994PTC061965 and its Net and its Net-worth as on 31.03.2012 (in total) 31.03.2012 (in total)- share capital & reserve is to the tune of share capital & reserve is to the tune of Rs.66,77,47,921/ Rs.66,77,47,921/- (PB page 22) and the investment made in the assessee (PB page 22) and the investment made in the assessee- company including the share premium comes to Rs.1,30,00 company including the share premium comes to Rs.1,30,00 company including the share premium comes to Rs.1,30,00,000/-. The payment has been made through banking channel and deposit amount of payment has been made through banking channel and deposit amount of payment has been made through banking channel and deposit amount of Rs.1,05,00,000/ Rs.1,05,00,000/- took place as on 01.03.2012 by NEFT and Rs.25,00,000/ took place as on 01.03.2012 by NEFT and Rs.25,00,000/- as on 06.03.2012. The Board Resolution for investment of the Company is as on 06.03.2012. The Board Resolution for investment of the Company is as on 06.03.2012. The Board Resolution for investment of the Company is filed and the share application filed and the share application form, ITR acknowledgment, Bank form, ITR acknowledgment, Bank statement, explanation of source of funds as well as financial statements statement, explanation of source of funds as well as financial statements statement, explanation of source of funds as well as financial statements

13 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. have been filed by the assessee at P. B page 3 have been filed by the assessee at P. B page 3-37and thus we note that the 37and thus we note that the assessee had duly discharged its onus to prove the identity of the share assessee had duly discharged its onus to prove the identity of the share assessee had duly discharged its onus to prove the identity of the share applicants by adducing PAN as well as income licants by adducing PAN as well as income-tax returns. The financial tax returns. The financial statement shows that the share applicant had enough funds to invest in the statement shows that the share applicant had enough funds to invest in the statement shows that the share applicant had enough funds to invest in the assessee-company and the transaction has happened through banking company and the transaction has happened through banking company and the transaction has happened through banking channel. Further, it is noted that the share a channel. Further, it is noted that the share applicant had furnished the pplicant had furnished the source of investment made in the assessee source of investment made in the assessee-company after getting the company after getting the notice under section 133(6) of the Act. notice under section 133(6) of the Act. (ii) We note from a perusal of the paper book We note from a perusal of the paper book-2 pages 38 to 77 38 to 77, the details of share applicant share applicant M/s. Kakrania Trading Pvt. Ltd. It is a Private Limited It is a Private Limited Company which has a PAN Company which has a PAN AABCK151611and its CIN number is and its CIN number is U70101WB1994PTC062137 U70101WB1994PTC062137 and the Net worth of this company as on and the Net worth of this company as on 31.3.2012Rs.66,52,71,914/ 31.3.2012Rs.66,52,71,914/- (PB-page62) and investment made in the page62) and investment made in the assessee company is to the tune of Rs. assessee company is to the tune of Rs.1,39,00,000/- and this share applicant has made the transaction through banking channel four times applicant has made the transaction through banking channel four times applicant has made the transaction through banking channel four times on 01.03.2012 Rs.30,00,000 through NEFT; and by cheque on 02.03.2012a on 01.03.2012 Rs.30,00,000 through NEFT; and by cheque on 02.03.2012a on 01.03.2012 Rs.30,00,000 through NEFT; and by cheque on 02.03.2012a sum of Rs. 59,00,000/ sum of Rs. 59,00,000/-; and on 7.3.2012 and by cheque on 12.3.2012 Rs. 25 ; and on 7.3.2012 and by cheque on 12.3.2012 Rs. 25 lakh each. T lakh each. There is board resolution for investment in assessee’s company here is board resolution for investment in assessee’s company and Share Application Form, Bank statement, ITR acknowledgement, and and Share Application Form, Bank statement, ITR acknowledgement, and and Share Application Form, Bank statement, ITR acknowledgement, and explanation of source of fund as well as financial statement available in explanation of source of fund as well as financial statement available in explanation of source of fund as well as financial statement available in the PB-page 39 to 77. This share applicant regularl page 39 to 77. This share applicant regularly filed Income Tax y filed Income Tax Return (ITR) and it has filed its Bank statement. This company has Return (ITR) and it has filed its Bank statement. This company has Return (ITR) and it has filed its Bank statement. This company has furnished the details of source of Funds and has duly filed financial furnished the details of source of Funds and has duly filed financial furnished the details of source of Funds and has duly filed financial statements and thus we note that the assessee had duly discharged its onus statements and thus we note that the assessee had duly discharged its onus statements and thus we note that the assessee had duly discharged its onus to prove the identity of to prove the identity of the share applicant by adducing PAN as well as the share applicant by adducing PAN as well as income-tax returns. The financial statement shows that the share tax returns. The financial statement shows that the share tax returns. The financial statement shows that the share applicants had enough funds to invest in the assessee applicants had enough funds to invest in the assessee-company and the company and the transaction has happened through banking channel. Further, it is noted transaction has happened through banking channel. Further, it is noted transaction has happened through banking channel. Further, it is noted that the share applicant had furnished the source of investment made in t the share applicant had furnished the source of investment made in t the share applicant had furnished the source of investment made in the assessee the assessee-company after getting the notice under section 133(6) of the company after getting the notice under section 133(6) of the Act.

(iii) We note from a perusal of the paper book (iii) We note from a perusal of the paper book-2 pages78 to 111 78 to 111, the details of share applicant of share applicant M/s. Ambala Trafin Pvt. Ltd. It is a Private Limited It is a Private Limited Company which has a PAN Company which has a PAN AACCA1184G and its CIN number is and its CIN number is U67120WB1995PTCO74397 U67120WB1995PTCO74397 and the Net worth of this company as on and the Net worth of this company as on 31.3.2012 Rs.62,47,11,003 31.3.2012 Rs.62,47,11,003- (PB-page101) and investment made in the ) and investment made in the assessee company is to th assessee company is to the tune of Rs. 4,40,00,000/- and this share applicant and this share applicant has made the transaction through banking channel on 01.03.2012 Rs. 25 has made the transaction through banking channel on 01.03.2012 Rs. 25 has made the transaction through banking channel on 01.03.2012 Rs. 25 lakhs; and on 03.03.2012 Rs. 40 lakhs through NEFT; and by cheque on Rs. lakhs; and on 03.03.2012 Rs. 40 lakhs through NEFT; and by cheque on Rs. lakhs; and on 03.03.2012 Rs. 40 lakhs through NEFT; and by cheque on Rs. 3,75,00,000/ 3,75,00,000/-on 27.3.2012 . There is board resolution for in on 27.3.2012 . There is board resolution for investment in assessee’s company and Share Application Form, Bank statement, ITR assessee’s company and Share Application Form, Bank statement, ITR assessee’s company and Share Application Form, Bank statement, ITR acknowledgement, explanation of source of fund as well as financial acknowledgement, explanation of source of fund as well as financial acknowledgement, explanation of source of fund as well as financial statement available in the PB statement available in the PB-page 79 to 111 in the PB page 79 to 111 in the PB-II. This share applicant regularly filed Income Tax Re applicant regularly filed Income Tax Return (ITR) and it has filed its Bank turn (ITR) and it has filed its Bank statement. This company has furnished the details of source of Funds and statement. This company has furnished the details of source of Funds and statement. This company has furnished the details of source of Funds and has duly filed financial statements. Thus we note that the assessee had duly has duly filed financial statements. Thus we note that the assessee had duly has duly filed financial statements. Thus we note that the assessee had duly discharged its onus to prove the identity of the share applicants by discharged its onus to prove the identity of the share applicants by discharged its onus to prove the identity of the share applicants by adducing PAN as well as income adducing PAN as well as income-tax returns. The financial statement shows tax returns. The financial statement shows that the share applicant had enough funds to invest in the assessee that the share applicant had enough funds to invest in the assessee that the share applicant had enough funds to invest in the assessee- company and the transaction has happened through banking channel. company and the transaction has happened through banking channel. company and the transaction has happened through banking channel. Further, it is noted that the share applicants h Further, it is noted that the share applicants had furnished the source of ad furnished the source of

14 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. investment made in the assessee investment made in the assessee-company after getting the notice under company after getting the notice under section 133(6) of the Act. section 133(6) of the Act. (iv) We note from a perusal of the paper book pages (iv) We note from a perusal of the paper book pages-2,112 to 137 112 to 137, the details of share applicant details of share applicant M/s. Subhiksha Pvt. Ltd. It is a It is a Private Limited Company which has a PAN Company which has a PAN AAPCS2068E and its CIN number is and its CIN number is U52190WB2011PTC157073 U52190WB2011PTC157073 and the Net worth of this company as on and the Net worth of this company as on 31.3.2012 Rs.22,23,97,317/ 31.3.2012 Rs.22,23,97,317/- (PB-page 128.) and investment made in the page 128.) and investment made in the assessee company is to the tune of Rs. 45,00,000/ assessee company is to the tune of Rs. 45,00,000/- and this share applicant and this share applicant has made the transaction through banking channel on 02.03.2012 a sum of has made the transaction through banking channel on 02.03.2012 a sum of has made the transaction through banking channel on 02.03.2012 a sum of Rs.45 lakhs through NEFT. There is board resolution for investment in Rs.45 lakhs through NEFT. There is board resolution for investment in Rs.45 lakhs through NEFT. There is board resolution for investment in assessee’s company and Share Application Form Bank statement, ITR assessee’s company and Share Application Form Bank statement, ITR assessee’s company and Share Application Form Bank statement, ITR acknowledgement, exp acknowledgement, explanation of source of fund as well as financial lanation of source of fund as well as financial statement available in the PB statement available in the PB-page 113 to 137 in the PB. This share page 113 to 137 in the PB. This share applicant regularly filed Income Tax Return (ITR) and it has filed its Bank applicant regularly filed Income Tax Return (ITR) and it has filed its Bank applicant regularly filed Income Tax Return (ITR) and it has filed its Bank statement. This company has furnished the details of source of F statement. This company has furnished the details of source of F statement. This company has furnished the details of source of Funds and has duly filed financial statements and thus we note that the assessee had has duly filed financial statements and thus we note that the assessee had has duly filed financial statements and thus we note that the assessee had duly discharged its onus to prove the identity of the share applicants by duly discharged its onus to prove the identity of the share applicants by duly discharged its onus to prove the identity of the share applicants by adducing PAN as well as income adducing PAN as well as income-tax returns. The financial statement shows tax returns. The financial statement shows that the share applicant that the share applicant had enough funds to invest in the assessee had enough funds to invest in the assessee- company and the transaction has happened through banking channel. company and the transaction has happened through banking channel. company and the transaction has happened through banking channel. Further, it is noted that the share applicants had furnished the source of Further, it is noted that the share applicants had furnished the source of Further, it is noted that the share applicants had furnished the source of investment made in the assessee investment made in the assessee-company after getting the notice under company after getting the notice under section 133(6) of the Act. section 133(6) of the Act.

(v) We note from a perusal of the paper book (v) We note from a perusal of the paper book-2, pages 138 to 159 the 2, pages 138 to 159 the details of share applicant details of share applicant M/s. Shivarshi Construction Pvt. Ltd M/s. Shivarshi Construction Pvt. Ltd. It is a Private Limited Company which has a PAN AAQCS7848M and its CIN Private Limited Company which has a PAN AAQCS7848M and its CIN Private Limited Company which has a PAN AAQCS7848M and its CIN number is U45400WB2011PTC170957 and the net worth of this company number is U45400WB2011PTC170957 and the net worth of this company number is U45400WB2011PTC170957 and the net worth of this company as on 31.3.2012 Rs.53,89,95,046/ as on 31.3.2012 Rs.53,89,95,046/- (PB-page 153) and investment made in page 153) and investment made in the assessee company is to the tune of Rs. 4, the assessee company is to the tune of Rs. 4,66,00,000/- and this share applicant has made the transaction through banking channel on applicant has made the transaction through banking channel on applicant has made the transaction through banking channel on 29.03.2012 Rs.4,66,00,000/ 29.03.2012 Rs.4,66,00,000/-through Cheque. There is board resolution for through Cheque. There is board resolution for investment in assessee’s company and Share Application Form Bank investment in assessee’s company and Share Application Form Bank investment in assessee’s company and Share Application Form Bank statement, ITR acknowledgem statement, ITR acknowledgement, explanation of source of fund as well as ent, explanation of source of fund as well as financial statement available in the PB financial statement available in the PB-page 139 to 159 in the PB. This page 139 to 159 in the PB. This share applicant regularly filed Income Tax Return (ITR) and it has filed its share applicant regularly filed Income Tax Return (ITR) and it has filed its share applicant regularly filed Income Tax Return (ITR) and it has filed its Bank statement. This company has furnished the details of sou Bank statement. This company has furnished the details of sou Bank statement. This company has furnished the details of source of Funds and has duly filed financial statements. This share applicant regularly filed and has duly filed financial statements. This share applicant regularly filed and has duly filed financial statements. This share applicant regularly filed Income Tax Return (ITR) and it has filed its Bank statement and thus we Income Tax Return (ITR) and it has filed its Bank statement and thus we Income Tax Return (ITR) and it has filed its Bank statement and thus we note that the assessee had duly discharged its onus to prove the identity of note that the assessee had duly discharged its onus to prove the identity of note that the assessee had duly discharged its onus to prove the identity of the share applic the share applicants by adducing PAN as well as income-tax returns. The tax returns. The financial statement shows that the share applicant had enough funds to financial statement shows that the share applicant had enough funds to financial statement shows that the share applicant had enough funds to invest in the assessee invest in the assessee-company and the transaction has happened through company and the transaction has happened through banking channel. Thus the assessee has discharged the onu banking channel. Thus the assessee has discharged the onu banking channel. Thus the assessee has discharged the onus to prove the identity, creditworthiness and genuineness of the transactions. Further, it is identity, creditworthiness and genuineness of the transactions. Further, it is identity, creditworthiness and genuineness of the transactions. Further, it is noted that the share applicants had furnished the source of investment noted that the share applicants had furnished the source of investment noted that the share applicants had furnished the source of investment made in the assessee made in the assessee-company after getting the notice under section 133(6) company after getting the notice under section 133(6) of the Act. (vi) We note from a perusal of the paper book pages ) We note from a perusal of the paper book pages-2, 160 to 184 the 2, 160 to 184 the details of share applicant details of share applicant M/s. Shivashiv Dealcom Pvt. Ltd M/s. Shivashiv Dealcom Pvt. Ltd. It is a Private Limited Company which has a PAN AARCS0094C and its CIN number is Limited Company which has a PAN AARCS0094C and its CIN number is Limited Company which has a PAN AARCS0094C and its CIN number is U74999WB2012PTC 173749 and the net worth of thi U74999WB2012PTC 173749 and the net worth of this company as on s company as on

15 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. 31.3.2012 Rs.14,29,56,146/ 31.3.2012 Rs.14,29,56,146/-(PB-page 178) and investment made in the page 178) and investment made in the assessee company is to the tune of Rs.6,55,00,000/ assessee company is to the tune of Rs.6,55,00,000/- and this share applicant and this share applicant has made the transaction through banking channel on 29.03.2012 has made the transaction through banking channel on 29.03.2012 has made the transaction through banking channel on 29.03.2012 Rs.6,55,00,000/ Rs.6,55,00,000/- through Cheque. There is board resolution for investment ue. There is board resolution for investment in assessee’s company and Share Application Form Bank statement, ITR in assessee’s company and Share Application Form Bank statement, ITR in assessee’s company and Share Application Form Bank statement, ITR acknowledgement, explanation of source of fund as well as financial acknowledgement, explanation of source of fund as well as financial acknowledgement, explanation of source of fund as well as financial statement available in the PB statement available in the PB-page 161 to 184 in the PB. This share page 161 to 184 in the PB. This share applicant regularly filed Income Tax Return (ITR) and it has filed its Bank ant regularly filed Income Tax Return (ITR) and it has filed its Bank ant regularly filed Income Tax Return (ITR) and it has filed its Bank statement. This company has furnished the details of source of Funds and statement. This company has furnished the details of source of Funds and statement. This company has furnished the details of source of Funds and has duly filed financial statements and thus we note that the assessee had has duly filed financial statements and thus we note that the assessee had has duly filed financial statements and thus we note that the assessee had duly discharged its onus to prove the duly discharged its onus to prove the identity of the share applicants by identity of the share applicants by adducing PAN as well as income adducing PAN as well as income-tax returns. The financial statement shows tax returns. The financial statement shows that the share applicant had enough funds to invest in the assessee that the share applicant had enough funds to invest in the assessee that the share applicant had enough funds to invest in the assessee- company and the transaction has happened through banking channel. Thus company and the transaction has happened through banking channel. Thus company and the transaction has happened through banking channel. Thus the assessee has discharged the onus to prove the identity, creditworthiness essee has discharged the onus to prove the identity, creditworthiness essee has discharged the onus to prove the identity, creditworthiness and genuineness of the transactions. Further, it is noted that the share and genuineness of the transactions. Further, it is noted that the share and genuineness of the transactions. Further, it is noted that the share applicants had furnished the source of investment made in the assessee applicants had furnished the source of investment made in the assessee applicants had furnished the source of investment made in the assessee- company after getting the notice under sec company after getting the notice under section 133(6) of the Act. tion 133(6) of the Act.

(vii) We note from a perusal of the paper book (vii) We note from a perusal of the paper book-2, pages 185 to 206 the 2, pages 185 to 206 the details of share applicant details of share applicant M/s. Flowtop Agency Pvt. Ltd. It is a Private . It is a Private Limited Company which has a PAN AABCF9036D and its CIN number is Limited Company which has a PAN AABCF9036D and its CIN number is Limited Company which has a PAN AABCF9036D and its CIN number is U52190WB2012PTC 1 U52190WB2012PTC 173352and the net worth of this company as on 73352and the net worth of this company as on 31.3.2012 Rs.15,38,94,946/ 31.3.2012 Rs.15,38,94,946/- (PB-page 200 ) and investment made in the page 200 ) and investment made in the assessee company is to the tune of Rs. 4,49,00,000/ assessee company is to the tune of Rs. 4,49,00,000/- and this share applicant and this share applicant has made the transaction through banking channel on 30.03.201 has made the transaction through banking channel on 30.03.201 has made the transaction through banking channel on 30.03.2012 Rs.4,49,00,000/ Rs.4,49,00,000/- through Cheque. . There is board resolution for investment through Cheque. . There is board resolution for investment in assessee’s company and Share Application Form, Bank statement, ITR in assessee’s company and Share Application Form, Bank statement, ITR in assessee’s company and Share Application Form, Bank statement, ITR acknowledgement, explanation of source of fund as well as financial acknowledgement, explanation of source of fund as well as financial acknowledgement, explanation of source of fund as well as financial statement available in the PB statement available in the PB-page 186 to 206 n the PB. This share to 206 n the PB. This share applicant regularly filed Income Tax Return (ITR) and it has filed its Bank applicant regularly filed Income Tax Return (ITR) and it has filed its Bank applicant regularly filed Income Tax Return (ITR) and it has filed its Bank statements and thus we note that the assessee had duly discharged its onus statements and thus we note that the assessee had duly discharged its onus statements and thus we note that the assessee had duly discharged its onus to prove the identity of the share applicants by adducing PAN as well as to prove the identity of the share applicants by adducing PAN as well as to prove the identity of the share applicants by adducing PAN as well as income-tax returns. The financial statement shows that the share applicant tax returns. The financial statement shows that the share applicant tax returns. The financial statement shows that the share applicant had enough funds to invest in the assessee had enough funds to invest in the assessee-company and the transaction has company and the transaction has happened through banking channel. Thus the assessee has discharged the happened through banking channel. Thus the assessee has discharged the happened through banking channel. Thus the assessee has discharged the onus to prove the identity, creditworth onus to prove the identity, creditworthiness and genuineness of the iness and genuineness of the transactions. Further, it is noted that the share applicants had furnished the transactions. Further, it is noted that the share applicants had furnished the transactions. Further, it is noted that the share applicants had furnished the source of investment made in the assessee source of investment made in the assessee-company after getting the notice company after getting the notice under section 133(6) of the Act. under section 133(6) of the Act. (viii) We note from a perusal of the pa (viii) We note from a perusal of the paper book pages-2,207 to 226 the 2,207 to 226 the details of share applicant details of share applicant M/s. SukhSagar Residency Pvt. Ltd. M/s. SukhSagar Residency Pvt. Ltd. It is a Private Limited Company which has a PAN AARCS1553N and its CIN number is Limited Company which has a PAN AARCS1553N and its CIN number is Limited Company which has a PAN AARCS1553N and its CIN number is U45400WB2011PTC170958and the net worth of this company as on U45400WB2011PTC170958and the net worth of this company as on U45400WB2011PTC170958and the net worth of this company as on 31.3.2012 Rs.56,18 31.3.2012 Rs.56,18,93,960/-(P.B-2 pages-220) and investment made in the 220) and investment made in the assessee company is to the tune of Rs.2,31,00,000/ assessee company is to the tune of Rs.2,31,00,000/- and this share applicant and this share applicant has made the transaction through banking channel on 31.3.2012 Rs. has made the transaction through banking channel on 31.3.2012 Rs. has made the transaction through banking channel on 31.3.2012 Rs. 2,31,00,000/ 2,31,00,000/- through NEFT. There is board resolution for through NEFT. There is board resolution for investment in assessee’s company and Share Application Form, Bank statement, ITR assessee’s company and Share Application Form, Bank statement, ITR assessee’s company and Share Application Form, Bank statement, ITR acknowledgement, explanation of source of fund as well as financial acknowledgement, explanation of source of fund as well as financial acknowledgement, explanation of source of fund as well as financial statement available in the PB statement available in the PB-page 208-226 in the PB. This share applicant 226 in the PB. This share applicant regularly filed Income Tax Retu regularly filed Income Tax Return (ITR) and it has filed its Bank statement. rn (ITR) and it has filed its Bank statement. This company has furnished the details of source of Funds and has duly filed This company has furnished the details of source of Funds and has duly filed This company has furnished the details of source of Funds and has duly filed

16 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. financial statements and thus we note that the assessee had duly discharged financial statements and thus we note that the assessee had duly discharged financial statements and thus we note that the assessee had duly discharged its onus to prove the identity of the share applicants by its onus to prove the identity of the share applicants by adducing PAN as adducing PAN as well as income well as income-tax returns. The financial statement shows that the share tax returns. The financial statement shows that the share applicant had enough funds to invest in the assessee applicant had enough funds to invest in the assessee-company and the company and the transaction has happened through banking channel. Thus the assessee has transaction has happened through banking channel. Thus the assessee has transaction has happened through banking channel. Thus the assessee has discharged the onus to pr discharged the onus to prove the identity, creditworthiness and genuineness ove the identity, creditworthiness and genuineness of the transactions. Further, it is noted that the share applicants had of the transactions. Further, it is noted that the share applicants had of the transactions. Further, it is noted that the share applicants had furnished the source of investment made in the assessee furnished the source of investment made in the assessee furnished the source of investment made in the assessee-company after getting the notice under section 133(6) of the Act. getting the notice under section 133(6) of the Act.

(ix) We note from a perusal of the paper book ote from a perusal of the paper book-2, pages 227 to 261 the 2, pages 227 to 261 the details of share applicant details of share applicant M/s. Kamaldhan Developers Pvt. Ltd M/s. Kamaldhan Developers Pvt. Ltd. It is a Private Limited Company which has a PAN AAECK6810D and its CIN Private Limited Company which has a PAN AAECK6810D and its CIN Private Limited Company which has a PAN AAECK6810D and its CIN number is U45400WB2011 PTC 170944 and the net worth of this number is U45400WB2011 PTC 170944 and the net worth of this number is U45400WB2011 PTC 170944 and the net worth of this company as on 31.3.2012 Rs.56,18,94,080/ as on 31.3.2012 Rs.56,18,94,080/- and investment made in the assessee and investment made in the assessee company is to the tune of Rs.12,54,00,000/ company is to the tune of Rs.12,54,00,000/- and this share applicant has and this share applicant has made the transaction through banking channel on 31.03.2012 Rs. made the transaction through banking channel on 31.03.2012 Rs. made the transaction through banking channel on 31.03.2012 Rs. 12,54,00,000/ 12,54,00,000/- through NEFT. There is board resolution for investment in ard resolution for investment in assessee’s company and Share Application Form, Bank statement, ITR assessee’s company and Share Application Form, Bank statement, ITR assessee’s company and Share Application Form, Bank statement, ITR acknowledgement, explanation of source of fund as well as financial acknowledgement, explanation of source of fund as well as financial acknowledgement, explanation of source of fund as well as financial statement available in the PB statement available in the PB-page 228 to 261 in the PB. This share page 228 to 261 in the PB. This share applicant regularly applicant regularlyfiled Income Tax Return (ITR) and it has filed its Bank filed Income Tax Return (ITR) and it has filed its Bank statement. This company has furnished the details of source of Funds and statement. This company has furnished the details of source of Funds and statement. This company has furnished the details of source of Funds and has duly filed financial statements. This share applicant regularly filed has duly filed financial statements. This share applicant regularly filed has duly filed financial statements. This share applicant regularly filed Income Tax Return (ITR) and it has filed its Bank st Income Tax Return (ITR) and it has filed its Bank statement. This company atement. This company has furnished the details of source of Funds and has duly filed financial has furnished the details of source of Funds and has duly filed financial has furnished the details of source of Funds and has duly filed financial statements. The financial statement shows that the share applicant had statements. The financial statement shows that the share applicant had statements. The financial statement shows that the share applicant had enough funds to invest in the assessee enough funds to invest in the assessee-company and the transaction has company and the transaction has happened through b happened through banking channel. Thus the assessee has discharged the anking channel. Thus the assessee has discharged the onus to prove the identity, creditworthiness and genuineness of the onus to prove the identity, creditworthiness and genuineness of the onus to prove the identity, creditworthiness and genuineness of the transactions. Further, it is noted that the share applicants had furnished the transactions. Further, it is noted that the share applicants had furnished the transactions. Further, it is noted that the share applicants had furnished the source of investment made in the assessee source of investment made in the assessee-company after getting the notice getting the notice under section 133(6) of the Act. under section 133(6) of the Act. (x) We note from a perusal of the paper book (x) We note from a perusal of the paper book-2, pages 262 to 283 the 2, pages 262 to 283 the details of share applicant details of share applicant M/s. Labhdhan Impext Pvt. Ltd. It is a Private Limited Company which has a PAN AACCL2111J and its CIN num Limited Company which has a PAN AACCL2111J and its CIN num Limited Company which has a PAN AACCL2111J and its CIN number is U51909WB2011PTC171524 and the net worth of this company as on U51909WB2011PTC171524 and the net worth of this company as on U51909WB2011PTC171524 and the net worth of this company as on 31.3.2012 Rs.56,18,94,080/ 31.3.2012 Rs.56,18,94,080/- (P.B-2, page 277) and investment made in the 2, page 277) and investment made in the assessee company is to the tune of Rs.3,80,00,000/ assessee company is to the tune of Rs.3,80,00,000/- and this share applicant and this share applicant has made the transaction through ba has made the transaction through banking channel on 31.03.2012 a sum of nking channel on 31.03.2012 a sum of Rs.3,80,00,000/ Rs.3,80,00,000/-through NEFT. There is board resolution for investment in through NEFT. There is board resolution for investment in assessee’s company and Share Application Form, Bank statement, ITR assessee’s company and Share Application Form, Bank statement, ITR assessee’s company and Share Application Form, Bank statement, ITR acknowledgement, explanation of source of fund as well as financial acknowledgement, explanation of source of fund as well as financial acknowledgement, explanation of source of fund as well as financial statement available in the PB available in the PB-page 163-283 in the PB. This share applicant 283 in the PB. This share applicant regularly filed Income Tax Return (ITR) and it has filed its Bank statement. regularly filed Income Tax Return (ITR) and it has filed its Bank statement. regularly filed Income Tax Return (ITR) and it has filed its Bank statement. This company has furnished the details of source of Funds and has duly filed This company has furnished the details of source of Funds and has duly filed This company has furnished the details of source of Funds and has duly filed financial statements. The financi financial statements. The financial statement shows that the share al statement shows that the share applicant had enough funds to invest in the assessee applicant had enough funds to invest in the assessee-company and the company and the transaction has happened through banking channel. Thus the assessee has transaction has happened through banking channel. Thus the assessee has transaction has happened through banking channel. Thus the assessee has discharged the onus to prove the identity, creditworthiness and genuineness discharged the onus to prove the identity, creditworthiness and genuineness discharged the onus to prove the identity, creditworthiness and genuineness of the transactions. Further, it is noted that the share applicants had e transactions. Further, it is noted that the share applicants had e transactions. Further, it is noted that the share applicants had furnished the source of investment made in the assessee furnished the source of investment made in the assessee furnished the source of investment made in the assessee-company after getting the notice under section 133(6) of the Act. getting the notice under section 133(6) of the Act.

17 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. (xi) We note from a perusal of the paper book (xi) We note from a perusal of the paper book-2 pages 284 to 303 t 2 pages 284 to 303 the details of share applicant details of share applicant M/s. Subhsree Impex Pvt. Ltd. It is a Private Limited Company which has a PAN AARCS1845D and its CIN number is Limited Company which has a PAN AARCS1845D and its CIN number is Limited Company which has a PAN AARCS1845D and its CIN number is U51909WB2011PTC171513 and the net worth of this company as on U51909WB2011PTC171513 and the net worth of this company as on U51909WB2011PTC171513 and the net worth of this company as on 31.3.2012 Rs.76,66,93,960/ 31.3.2012 Rs.76,66,93,960/- (P.B-2, page-297)and investment made in the vestment made in the assessee company is to the tune of Rs.2,76,00,000/ assessee company is to the tune of Rs.2,76,00,000/- and this share applicant and this share applicant has made the transaction through banking channel on 31.03.2012 a sum of has made the transaction through banking channel on 31.03.2012 a sum of has made the transaction through banking channel on 31.03.2012 a sum of Rs.2,76,00,0000/ Rs.2,76,00,0000/-through NEFT. There is board resolution for investment in through NEFT. There is board resolution for investment in assessee’s company and Share Application Form , Bank statement, ITR s company and Share Application Form , Bank statement, ITR s company and Share Application Form , Bank statement, ITR acknowledgement, explanation of source of fund as well as financial acknowledgement, explanation of source of fund as well as financial acknowledgement, explanation of source of fund as well as financial statement available in the PB statement available in the PB-page 285-303 in the PB. This share applicant 303 in the PB. This share applicant regularly filed Income Tax Return (ITR) and it has fil regularly filed Income Tax Return (ITR) and it has filed its Bank statement. ed its Bank statement. This company has furnished the details of source of Funds and has duly filed This company has furnished the details of source of Funds and has duly filed This company has furnished the details of source of Funds and has duly filed financial statements. The financial statement shows that the share financial statements. The financial statement shows that the share financial statements. The financial statement shows that the share applicant had enough funds to invest in the assessee applicant had enough funds to invest in the assessee-company and the company and the transaction has happ transaction has happened through banking channel. Thus the assessee has ened through banking channel. Thus the assessee has discharged the onus to prove the identity, creditworthiness and genuineness discharged the onus to prove the identity, creditworthiness and genuineness discharged the onus to prove the identity, creditworthiness and genuineness of the transactions. Further, it is noted that the share applicants had of the transactions. Further, it is noted that the share applicants had of the transactions. Further, it is noted that the share applicants had furnished the source of investment made in the assessee furnished the source of investment made in the assessee furnished the source of investment made in the assessee-company after getting the notice under section 133(6) of the Act. getting the notice under section 133(6) of the Act. (xii) We note from a perusal of the paper book (xii) We note from a perusal of the paper book-2, pages 304 to 326 the 2, pages 304 to 326 the details of share applicant details of share applicant M/s. Maharaja Merchants Pvt. Ltd. M/s. Maharaja Merchants Pvt. Ltd. It is a Private Limited Company which has a PAN AAECM22 Limited Company which has a PAN AAECM224E and its CIN number is 4E and its CIN number is U51109WB2005PTC102343 and the net worth of this company as on U51109WB2005PTC102343 and the net worth of this company as on U51109WB2005PTC102343 and the net worth of this company as on 31.3.2012 Rs.1,54,58,399/ 31.3.2012 Rs.1,54,58,399/-(page 313 of P.B-2)and investment made in the 2)and investment made in the assessee company is to the tune of Rs.50 lakhs and this share applicant has assessee company is to the tune of Rs.50 lakhs and this share applicant has assessee company is to the tune of Rs.50 lakhs and this share applicant has made the transaction made the transaction through banking channel on 28.02.2012 a sum of through banking channel on 28.02.2012 a sum of Rs.50lakhs through Cheque. There is Share Application Form, Bank Rs.50lakhs through Cheque. There is Share Application Form, Bank Rs.50lakhs through Cheque. There is Share Application Form, Bank statement, ITR acknowledgement, financial statement available in the PB statement, ITR acknowledgement, financial statement available in the PB statement, ITR acknowledgement, financial statement available in the PB- page 304 to 326 in the PB. This share applicant regularly filed Income page 304 to 326 in the PB. This share applicant regularly filed Income page 304 to 326 in the PB. This share applicant regularly filed Income Tax Return (ITR) and it has filed its Bank statement. The financial statement Return (ITR) and it has filed its Bank statement. The financial statement Return (ITR) and it has filed its Bank statement. The financial statement shows that the share applicant had enough funds to invest in the assessee shows that the share applicant had enough funds to invest in the assessee shows that the share applicant had enough funds to invest in the assessee- company and the transaction has happened through banking channel. Thus company and the transaction has happened through banking channel. Thus company and the transaction has happened through banking channel. Thus the assessee has discharged the o the assessee has discharged the onus to prove the identity, creditworthiness nus to prove the identity, creditworthiness and genuineness of the transactions. Further, it is noted that the share and genuineness of the transactions. Further, it is noted that the share and genuineness of the transactions. Further, it is noted that the share applicants had furnished the source of investment made in the assessee applicants had furnished the source of investment made in the assessee applicants had furnished the source of investment made in the assessee- company after getting the notice under section 133(6) of the Act. company after getting the notice under section 133(6) of the Act. company after getting the notice under section 133(6) of the Act.

(xiii)We note from a perusal of the paper book (xiii)We note from a perusal of the paper book-2 pages 327 to 352 the details 2 pages 327 to 352 the details of share applicant of share applicant M/s. Sristi Sales Pvt. Ltd. It is a Private Limited Company It is a Private Limited Company which has a PAN AAICS8900L and its CIN number is U51109WB2005PTC which has a PAN AAICS8900L and its CIN number is U51109WB2005PTC which has a PAN AAICS8900L and its CIN number is U51109WB2005PTC 102121 and the net worth of this 102121 and the net worth of this company as on 31.3.2012 Rs.1,12,25,612/ company as on 31.3.2012 Rs.1,12,25,612/- and investment made in the assessee company is to the tune of Rs.50 lakhs and investment made in the assessee company is to the tune of Rs.50 lakhs and investment made in the assessee company is to the tune of Rs.50 lakhs and this share applicant has made the transaction through banking channel and this share applicant has made the transaction through banking channel and this share applicant has made the transaction through banking channel on 28.02.2012 a sum of Rs. 50 lakhs through Cheque. There is Sh on 28.02.2012 a sum of Rs. 50 lakhs through Cheque. There is Sh on 28.02.2012 a sum of Rs. 50 lakhs through Cheque. There is Share Application, Bank statement, ITR acknowledgement, financial statement Application, Bank statement, ITR acknowledgement, financial statement Application, Bank statement, ITR acknowledgement, financial statement available in the PB available in the PB-2, page 328 to 352. This share applicant regularly filed 2, page 328 to 352. This share applicant regularly filed Income Tax Return (ITR) and it has filed its Bank statement. The financial Income Tax Return (ITR) and it has filed its Bank statement. The financial Income Tax Return (ITR) and it has filed its Bank statement. The financial statement shows that the share statement shows that the share applicant had enough funds to invest in the applicant had enough funds to invest in the assessee-company and the transaction has happened through banking company and the transaction has happened through banking company and the transaction has happened through banking channel. Thus the assessee has discharged the onus to prove the identity, channel. Thus the assessee has discharged the onus to prove the identity, channel. Thus the assessee has discharged the onus to prove the identity, creditworthiness and genuineness of the transactions. Thus from the dis creditworthiness and genuineness of the transactions. Thus from the dis creditworthiness and genuineness of the transactions. Thus from the discussion above, it is noted except the last two investors the other eleven (11) share above, it is noted except the last two investors the other eleven (11) share above, it is noted except the last two investors the other eleven (11) share

18 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. applicants out of thirteen (13) share applicants out of thirteen (13) share-holders had furnished the source of holders had furnished the source of investment made in the assessee investment made in the assessee-company after getting the notice from second company after getting the notice from second AO under section 13 AO under section 133(6) of the Act. Thus we note that the AO on the basis of 3(6) of the Act. Thus we note that the AO on the basis of the aforesaid documents has taken a plausible view and did not draw any the aforesaid documents has taken a plausible view and did not draw any the aforesaid documents has taken a plausible view and did not draw any adverse inference against the assessee, and the view thus taken by the AO adverse inference against the assessee, and the view thus taken by the AO adverse inference against the assessee, and the view thus taken by the AO cannot be termed as unsustainable in law. cannot be termed as unsustainable in law.

19 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. u/s. 263 of the Act, he has to show that the enquiry conducted by AO was flawed or the u/s. 263 of the Act, he has to show that the enquiry conducted by AO was flawed or the u/s. 263 of the Act, he has to show that the enquiry conducted by AO was flawed or the enquiry conducted by AO was on a wrong direction or on wron enquiry conducted by AO was on a wrong direction or on wrong assumption of g assumption of fact/law or that the AO misdirected himself in factual investigation or applied the law fact/law or that the AO misdirected himself in factual investigation or applied the law fact/law or that the AO misdirected himself in factual investigation or applied the law erroneously in respect of the facts collected by him. For doing so, in the facts discussed erroneously in respect of the facts collected by him. For doing so, in the facts discussed erroneously in respect of the facts collected by him. For doing so, in the facts discussed supra, he second (Ld. Pr. CIT) should himself had conducted a supra, he second (Ld. Pr. CIT) should himself had conducted an enquiry or at least n enquiry or at least conducted a preliminary enquiry and was able to bring some evidence/material on conducted a preliminary enquiry and was able to bring some evidence/material on conducted a preliminary enquiry and was able to bring some evidence/material on record to upset the AO’s satisfaction in respect of identity, creditworthiness or record to upset the AO’s satisfaction in respect of identity, creditworthiness or record to upset the AO’s satisfaction in respect of identity, creditworthiness or genuineness of the share subscribers and thus recorded a finding of fact genuineness of the share subscribers and thus recorded a finding of fact genuineness of the share subscribers and thus recorded a finding of fact that the decision of AO’s enquiry was faulted or wrong and in that process tried to show that it decision of AO’s enquiry was faulted or wrong and in that process tried to show that it decision of AO’s enquiry was faulted or wrong and in that process tried to show that it has resulted in a view which is “unsustainable in law” which would have justified his has resulted in a view which is “unsustainable in law” which would have justified his has resulted in a view which is “unsustainable in law” which would have justified his action of passing the impugned order u/s. 263 of the Act, which unfort action of passing the impugned order u/s. 263 of the Act, which unfort action of passing the impugned order u/s. 263 of the Act, which unfortunately is not the case. Since the AO’s view on the facts collected and discussed is definitely a possible the case. Since the AO’s view on the facts collected and discussed is definitely a possible the case. Since the AO’s view on the facts collected and discussed is definitely a possible view, so in the factual background discussed in detail, we are of the considered opinion view, so in the factual background discussed in detail, we are of the considered opinion view, so in the factual background discussed in detail, we are of the considered opinion that Ld. second Pr. CIT ought not to have interfered with th that Ld. second Pr. CIT ought not to have interfered with the AO’s reassessment order e AO’s reassessment order which in any case can be classified as ‘unsustainable in law’ since it is in line with which in any case can be classified as ‘unsustainable in law’ since it is in line with which in any case can be classified as ‘unsustainable in law’ since it is in line with plethora of judicial decisions of the subject. plethora of judicial decisions of the subject. 56. To sum up, we find from the above said facts that the Second AO has conducted To sum up, we find from the above said facts that the Second AO has conducted To sum up, we find from the above said facts that the Second AO has conducted enquiry as directed by the First Ld. Pr. CIT on the specific subject matter i.e. share irected by the First Ld. Pr. CIT on the specific subject matter i.e. share irected by the First Ld. Pr. CIT on the specific subject matter i.e. share capital and premium collected by the assessee capital and premium collected by the assessee-company. Therefore, the finding of company. Therefore, the finding of Second Pr. CIT that the Second AO has not conducted enquiry is incorrect and is Second Pr. CIT that the Second AO has not conducted enquiry is incorrect and is Second Pr. CIT that the Second AO has not conducted enquiry is incorrect and is flowing from suspicion only. And as discussed, the allegation/fault pointed out by the on only. And as discussed, the allegation/fault pointed out by the on only. And as discussed, the allegation/fault pointed out by the Second Ld. Pr. CIT that the Second AO failed to collect total facts also cannot be Second Ld. Pr. CIT that the Second AO failed to collect total facts also cannot be Second Ld. Pr. CIT that the Second AO failed to collect total facts also cannot be accepted for the simple reason that Ld. Pr. CIT has not spelt out in the impugned order accepted for the simple reason that Ld. Pr. CIT has not spelt out in the impugned order accepted for the simple reason that Ld. Pr. CIT has not spelt out in the impugned order what he meant by total facts or in the alternative when the assessee has discharged its total facts or in the alternative when the assessee has discharged its total facts or in the alternative when the assessee has discharged its onus, as required by the law in force in this AY 2012 onus, as required by the law in force in this AY 2012-13, then the Ld. Pr. CIT ought to 13, then the Ld. Pr. CIT ought to have called for which ever additional documents/materials or issued summons or have called for which ever additional documents/materials or issued summons or have called for which ever additional documents/materials or issued summons or issued notices and collected those facts which according to Second Ld. Pr. CIT, the AO collected those facts which according to Second Ld. Pr. CIT, the AO collected those facts which according to Second Ld. Pr. CIT, the AO omitted to collect and then demonstrated that those actions/documents which he omitted to collect and then demonstrated that those actions/documents which he omitted to collect and then demonstrated that those actions/documents which he collected in that process gave result to a different finding of fact which will turn upside collected in that process gave result to a different finding of fact which will turn upside collected in that process gave result to a different finding of fact which will turn upside down the claim of the assessee and thus able to show that the actions/omission of AO of the assessee and thus able to show that the actions/omission of AO of the assessee and thus able to show that the actions/omission of AO in conducting the investigation was erroneous, which unfortunately is not the case in conducting the investigation was erroneous, which unfortunately is not the case in conducting the investigation was erroneous, which unfortunately is not the case before us. And equally bad is the bald allegation/fault that second AO has not collected before us. And equally bad is the bald allegation/fault that second AO has not collected before us. And equally bad is the bald allegation/fault that second AO has not collected total facts cannot be accepted being vague and based on conjectures and surmises and cannot be accepted being vague and based on conjectures and surmises and cannot be accepted being vague and based on conjectures and surmises and so meritless. Since the assessee company has discharged its onus as discussed supra, so meritless. Since the assessee company has discharged its onus as discussed supra, so meritless. Since the assessee company has discharged its onus as discussed supra, and still if the Second Pr. CIT had to find the order of Second AO erroneous for lack of and still if the Second Pr. CIT had to find the order of Second AO erroneous for lack of and still if the Second Pr. CIT had to find the order of Second AO erroneous for lack of enquiry or for not collecting the entire facts, then the Second Pr. CIT ought to have or for not collecting the entire facts, then the Second Pr. CIT ought to have or for not collecting the entire facts, then the Second Pr. CIT ought to have called for the additional facts which he thinks that the Second AO has not collected called for the additional facts which he thinks that the Second AO has not collected called for the additional facts which he thinks that the Second AO has not collected from the assessee or the shareholders and then explained in his impugned order as to from the assessee or the shareholders and then explained in his impugned order as to from the assessee or the shareholders and then explained in his impugned order as to what effect those additional documents would have made on the second assessment ect those additional documents would have made on the second assessment ect those additional documents would have made on the second assessment order/reassessment order or in other words the impact on the decision making process order/reassessment order or in other words the impact on the decision making process order/reassessment order or in other words the impact on the decision making process of framing the second assessment order due to the failure of second AO’s omission to of framing the second assessment order due to the failure of second AO’s omission to of framing the second assessment order due to the failure of second AO’s omission to collect the additional documents. However, we note that the Second Pr. CIT has not ditional documents. However, we note that the Second Pr. CIT has not ditional documents. However, we note that the Second Pr. CIT has not carried out any such exercise or even spelled out in his impugned order, which all carried out any such exercise or even spelled out in his impugned order, which all carried out any such exercise or even spelled out in his impugned order, which all documents the second AO failed to collect for considering the total facts; and even if we documents the second AO failed to collect for considering the total facts; and even if we documents the second AO failed to collect for considering the total facts; and even if we presume he has conducted such an exercise, then he has not been able to bring out any conducted such an exercise, then he has not been able to bring out any conducted such an exercise, then he has not been able to bring out any adverse factual finding to upset the view of Second AO. So we find no merit in the adverse factual finding to upset the view of Second AO. So we find no merit in the adverse factual finding to upset the view of Second AO. So we find no merit in the vague allegation of second Pr. CIT that the second AO has not collected the full facts vague allegation of second Pr. CIT that the second AO has not collected the full facts vague allegation of second Pr. CIT that the second AO has not collected the full facts necessary to decide the issue of share capital & premium.So we note that the Second ecide the issue of share capital & premium.So we note that the Second ecide the issue of share capital & premium.So we note that the Second AO, the assessing authority who is a quasi AO, the assessing authority who is a quasi- judicial office has discharged his dual role judicial office has discharged his dual role as an investigator as well as an adjudicator. Looking from another angle of doctrine of as an investigator as well as an adjudicator. Looking from another angle of doctrine of as an investigator as well as an adjudicator. Looking from another angle of doctrine of merger canvassed before us, we note from the facts of this case that the nvassed before us, we note from the facts of this case that the nvassed before us, we note from the facts of this case that the second Ld. Pr. CIT – 4 by passing the second revisional order dated 14.03.2019 has substituted the 4 by passing the second revisional order dated 14.03.2019 has substituted the 4 by passing the second revisional order dated 14.03.2019 has substituted the First Pr. CIT’s order passed u/s. 263 of the Act dated 23.08.2016 with his own order First Pr. CIT’s order passed u/s. 263 of the Act dated 23.08.2016 with his own order First Pr. CIT’s order passed u/s. 263 of the Act dated 23.08.2016 with his own order which he cannot do since the second assessment order/re cannot do since the second assessment order/re-assessment of the Second AO assessment of the Second AO

20 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. dated 07.12.2016 was pursuant to the first revisional order of the First Ld. Pr. CIT and dated 07.12.2016 was pursuant to the first revisional order of the First Ld. Pr. CIT and dated 07.12.2016 was pursuant to the first revisional order of the First Ld. Pr. CIT and on the very same subject matter on which specific directions/instructions were given on the very same subject matter on which specific directions/instructions were given on the very same subject matter on which specific directions/instructions were given by the First Ld. Pr.CIT, which direction since having been complied by the AO, brings e First Ld. Pr.CIT, which direction since having been complied by the AO, brings e First Ld. Pr.CIT, which direction since having been complied by the AO, brings into operation the doctrine of merger the subject matter i.e. share capital & premium into operation the doctrine of merger the subject matter i.e. share capital & premium into operation the doctrine of merger the subject matter i.e. share capital & premium collected by assessee company. Resultantly the second Ld. Pr.CIT, again cannot rake collected by assessee company. Resultantly the second Ld. Pr.CIT, again cannot rake collected by assessee company. Resultantly the second Ld. Pr.CIT, again cannot rake-up the same subject matter without the second Ld. Pr.CIT in the second revisional order e same subject matter without the second Ld. Pr.CIT in the second revisional order e same subject matter without the second Ld. Pr.CIT in the second revisional order spells out where the error happened to second AO as an investigator or adjudicator, spells out where the error happened to second AO as an investigator or adjudicator, spells out where the error happened to second AO as an investigator or adjudicator, which exercise the Second Ld. Pr.CIT has not done, so the second Ld. Pr. CIT cannot be which exercise the Second Ld. Pr.CIT has not done, so the second Ld. Pr. CIT cannot be which exercise the Second Ld. Pr.CIT has not done, so the second Ld. Pr. CIT cannot be permitted to again ask the AO to start the investigation in the way he thinks it proper permitted to again ask the AO to start the investigation in the way he thinks it proper permitted to again ask the AO to start the investigation in the way he thinks it proper on the very same subject on which merger has taken place by virtue of the order of on the very same subject on which merger has taken place by virtue of the order of on the very same subject on which merger has taken place by virtue of the order of First Ld. Pr. CIT. And if this practice is allowed, then there will be no end to the First Ld. Pr. CIT. And if this practice is allowed, then there will be no end to the First Ld. Pr. CIT. And if this practice is allowed, then there will be no end to the assessment proceedings meaning no finality to assessment proceedings and that is assessment proceedings meaning no finality to assessment proceedings and that is assessment proceedings meaning no finality to assessment proceedings and that is exactly why the Parliament in its wisdom has brought in safe exactly why the Parliament in its wisdom has brought in safe-guards, restrictions & guards, restrictions & conditions precedent to be satisfied strictly before assumption of revisional conditions precedent to be satisfied strictly before assumption of revisional conditions precedent to be satisfied strictly before assumption of revisional jurisdiction. Be that as it may be, as discussed above, we find that the Second Ld. Pr. . Be that as it may be, as discussed above, we find that the Second Ld. Pr. . Be that as it may be, as discussed above, we find that the Second Ld. Pr. CIT without satisfying the condition precedent u/s 263 of the Act has invoked the CIT without satisfying the condition precedent u/s 263 of the Act has invoked the CIT without satisfying the condition precedent u/s 263 of the Act has invoked the revisional jurisdiction (second time), so all his actions are ab initio void.” revisional jurisdiction (second time), so all his actions are ab initio void.” revisional jurisdiction (second time), so all his actions are ab initio void.” 8. On similar facts, when the revisionary jurisdiction u/s 263 of the Act, was s, when the revisionary jurisdiction u/s 263 of the Act, was s, when the revisionary jurisdiction u/s 263 of the Act, was exercised second time by the ld. Pr. CIT, this Bench of the Tribunal in the case exercised second time by the ld. Pr. CIT, this Bench of the Tribunal in the case exercised second time by the ld. Pr. CIT, this Bench of the Tribunal in the case M/s Omkar Infracon Private (supra) (supra) held as under:- “13. Further, we note that even though the re 13. Further, we note that even though the re-assessment order dated 5.11.2016 was set dated 5.11.2016 was set aside again by the impugned order of Pr. CIT, we note that one of the faults pointed out by aside again by the impugned order of Pr. CIT, we note that one of the faults pointed out by aside again by the impugned order of Pr. CIT, we note that one of the faults pointed out by the Ld. Pr. CIT to invoke his revisionary jurisdiction were the Ld. Pr. CIT to invoke his revisionary jurisdiction were – “(a) Detailed investigation /verification in the nature of independent enquir “(a) Detailed investigation /verification in the nature of independent enquir “(a) Detailed investigation /verification in the nature of independent enquiry regarding identify, credit worthiness, and genuineness of transaction that was intended to be carried identify, credit worthiness, and genuineness of transaction that was intended to be carried identify, credit worthiness, and genuineness of transaction that was intended to be carried but not done and merely accepted the submissions of the assessee” but not done and merely accepted the submissions of the assessee” However, we are unable to agree with this allegation of Ld. Pr. CIT. We note that AO However, we are unable to agree with this allegation of Ld. Pr. CIT. We note that AO However, we are unable to agree with this allegation of Ld. Pr. CIT. We note that AO in this case had issued during the first and second round of assessment notice u/s. 142(1) of the case had issued during the first and second round of assessment notice u/s. 142(1) of the case had issued during the first and second round of assessment notice u/s. 142(1) of the Act, pursuant to which the assessee had filed all details and the AO examined the same, and Act, pursuant to which the assessee had filed all details and the AO examined the same, and Act, pursuant to which the assessee had filed all details and the AO examined the same, and thereafter had issued notice u/s 133(6) of the Act and verified t thereafter had issued notice u/s 133(6) of the Act and verified the details, and issued he details, and issued summon u/s 131 to the directors of the assessee company as well as to all the shareholders. summon u/s 131 to the directors of the assessee company as well as to all the shareholders. summon u/s 131 to the directors of the assessee company as well as to all the shareholders. And we note that all of them responded and duly appeared before the AO and their And we note that all of them responded and duly appeared before the AO and their And we note that all of them responded and duly appeared before the AO and their statements were recorded and only one shareholder an individ statements were recorded and only one shareholder an individual was new and all the ual was new and all the shareholder's companies were group companies and the new individual share subscriber shareholder's companies were group companies and the new individual share subscriber shareholder's companies were group companies and the new individual share subscriber was father of a director. was father of a director. (b). We note that next fault pointed out by the Ld. Pr. CIT was “the AO failed to carryout (b). We note that next fault pointed out by the Ld. Pr. CIT was “the AO failed to carryout (b). We note that next fault pointed out by the Ld. Pr. CIT was “the AO failed to carryout detailed investigation as to detailed investigation as to how they decided to invest in a company at premium which how they decided to invest in a company at premium which was never a known company”. was never a known company”. According to us, the Ld Pr. CIT did not appreciate the facts in the proper perspective and According to us, the Ld Pr. CIT did not appreciate the facts in the proper perspective and According to us, the Ld Pr. CIT did not appreciate the facts in the proper perspective and did not had taken notice of the important fact that these were the promoters wh did not had taken notice of the important fact that these were the promoters wh did not had taken notice of the important fact that these were the promoters who started the company in the year 2010 for the business of making ash the company in the year 2010 for the business of making ash-fly bricks and the only new fly bricks and the only new shareholder individual was father of an existing director; and the assessee company in this shareholder individual was father of an existing director; and the assessee company in this shareholder individual was father of an existing director; and the assessee company in this assessment year had started expansion activities of the business o assessment year had started expansion activities of the business of making/manufacturing f making/manufacturing fly ash bricks. We note that the share capital infused into the company has yielded result. fly ash bricks. We note that the share capital infused into the company has yielded result. fly ash bricks. We note that the share capital infused into the company has yielded result. And moreover the investor companies were group companies and shares allotted this year And moreover the investor companies were group companies and shares allotted this year And moreover the investor companies were group companies and shares allotted this year was to existing shareholders and only new shareholders was to existing shareholders and only new shareholders was the father of a director. As was the father of a director. As stated earlier, the promoter and group companies found potential of growth in the stated earlier, the promoter and group companies found potential of growth in the stated earlier, the promoter and group companies found potential of growth in the business and had made the investment and premium which was agreed upon mutually by business and had made the investment and premium which was agreed upon mutually by business and had made the investment and premium which was agreed upon mutually by

21 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. all the existing shareholders taking into consideration t all the existing shareholders taking into consideration the expansion and future return he expansion and future return expected of it. After appreciating these facts and taking into consideration the financial expected of it. After appreciating these facts and taking into consideration the financial expected of it. After appreciating these facts and taking into consideration the financial results of the assessee company as on the date of reassessment order, the AO had accepted results of the assessee company as on the date of reassessment order, the AO had accepted results of the assessee company as on the date of reassessment order, the AO had accepted the genuinity of the transaction, so nothing the genuinity of the transaction, so nothing turns around in respect of this fault raised by turns around in respect of this fault raised by the Ld. Pr. CIT. (c) The next fault found by the Ld. Pr. CIT is that the AO failed to examine the rationale (c) The next fault found by the Ld. Pr. CIT is that the AO failed to examine the rationale (c) The next fault found by the Ld. Pr. CIT is that the AO failed to examine the rationale behind the premium. From the aforesaid reasons (supra) (b), the AO has accepted the behind the premium. From the aforesaid reasons (supra) (b), the AO has accepted the behind the premium. From the aforesaid reasons (supra) (b), the AO has accepted the transaction which on the factual background is a probable view. ich on the factual background is a probable view. (d) The other fault noted by Ld. Pr. CIT is that the AO failed to collect relevant evidences in (d) The other fault noted by Ld. Pr. CIT is that the AO failed to collect relevant evidences in (d) The other fault noted by Ld. Pr. CIT is that the AO failed to collect relevant evidences in order to reach a logical conclusion. order to reach a logical conclusion. We do not countenance this fault pointed out by ld. Pr. CIT for the We do not countenance this fault pointed out by ld. Pr. CIT for the simple reason that it is simple reason that it is first of all a vague allegation without spelling out what relevant evidences were not first of all a vague allegation without spelling out what relevant evidences were not first of all a vague allegation without spelling out what relevant evidences were not collected by the AO. We note that assessee had filed documents before AO, copies of which collected by the AO. We note that assessee had filed documents before AO, copies of which collected by the AO. We note that assessee had filed documents before AO, copies of which are produced before us, which is running to three (3) v are produced before us, which is running to three (3) volumes. [ Volume I olumes. [ Volume I-201 pages, volume II 231 pages, volume III volume II 231 pages, volume III-362 pages;] and the AO after personally summoning the 362 pages;] and the AO after personally summoning the individual share holders and directors of corporate shareholders and after recording their individual share holders and directors of corporate shareholders and after recording their individual share holders and directors of corporate shareholders and after recording their statements, and after verifying the documents pro statements, and after verifying the documents produced before him, has accepted the share duced before him, has accepted the share capital/premium infused into the assessee company which action of AO cannot be called a capital/premium infused into the assessee company which action of AO cannot be called a capital/premium infused into the assessee company which action of AO cannot be called a perverse order and according to us, the AO from the actions discussed above has perverse order and according to us, the AO from the actions discussed above has perverse order and according to us, the AO from the actions discussed above has discharged his duty as an investigator and adju discharged his duty as an investigator and adjudicator and taken a plausible view which dicator and taken a plausible view which cannot be called an un-sustainable view on facts or law. sustainable view on facts or law. (e) The other fault taken note by the Ld. Pr. CIT is that the AO failed to examine all bank (e) The other fault taken note by the Ld. Pr. CIT is that the AO failed to examine all bank (e) The other fault taken note by the Ld. Pr. CIT is that the AO failed to examine all bank accounts for the entire period. accounts for the entire period. To this allegation of Ld. Pr. CI To this allegation of Ld. Pr. CIT, we are unable to comprehend the same since the assessee T, we are unable to comprehend the same since the assessee during the first and second round had filed before AO all the relevant bank statements. during the first and second round had filed before AO all the relevant bank statements. during the first and second round had filed before AO all the relevant bank statements. Before us also all copies and details of bank accounts, have been filed and we find that AO Before us also all copies and details of bank accounts, have been filed and we find that AO Before us also all copies and details of bank accounts, have been filed and we find that AO during the assessment proceeding called for the same and examined it, so he has not made ment proceeding called for the same and examined it, so he has not made ment proceeding called for the same and examined it, so he has not made any adverse observation against it. So, Ld. Pr. CIT’s allegation in respect of nonexamination any adverse observation against it. So, Ld. Pr. CIT’s allegation in respect of nonexamination any adverse observation against it. So, Ld. Pr. CIT’s allegation in respect of nonexamination of bank accounts are baseless and deserves to be rejected. of bank accounts are baseless and deserves to be rejected. (f) The other fault pointed ou (f) The other fault pointed out by the Ld. Pr. CIT is that the AO failed to trace out the money t by the Ld. Pr. CIT is that the AO failed to trace out the money trail We note that the assessee company is into manufacturing of bricks using fly ash and had We note that the assessee company is into manufacturing of bricks using fly ash and had We note that the assessee company is into manufacturing of bricks using fly ash and had set up its factory and the share holder are the promoters/group companies and no set up its factory and the share holder are the promoters/group companies and no set up its factory and the share holder are the promoters/group companies and no allegation has been levelled against the shareholders that they are entry providers. been levelled against the shareholders that they are entry providers. been levelled against the shareholders that they are entry providers. We note that earlier contribution made by them have been accepted in previous years, and We note that earlier contribution made by them have been accepted in previous years, and We note that earlier contribution made by them have been accepted in previous years, and also the fact remains that the earlier years of assessment have not been reopened t also the fact remains that the earlier years of assessment have not been reopened t also the fact remains that the earlier years of assessment have not been reopened though there was sufficient time for the same. In the light of the documents discussed supra, we there was sufficient time for the same. In the light of the documents discussed supra, we there was sufficient time for the same. In the light of the documents discussed supra, we are of the opinion that assessee has discharged the onus on it. are of the opinion that assessee has discharged the onus on it. (g) The last fault taken note by the Ld. Pr. CIT is that the reassessment order prima facie (g) The last fault taken note by the Ld. Pr. CIT is that the reassessment order prima facie (g) The last fault taken note by the Ld. Pr. CIT is that the reassessment order prima facie suffers from independent and adequate enquiry. suffers from independent and adequate enquiry. We do not countenance this allegation of the Ld. Pr. CIT. We have already discussed in We do not countenance this allegation of the Ld. Pr. CIT. We have already discussed in We do not countenance this allegation of the Ld. Pr. CIT. We have already discussed in detail about how the AO has called the individual share holders and the directors of the detail about how the AO has called the individual share holders and the directors of the detail about how the AO has called the individual share holders and the directors of the corporate shareholders and reco corporate shareholders and recorded their statements and gone through the voluminous rded their statements and gone through the voluminous documents filed by the assessee. Thus, the shareholders had discharged the onus on it to documents filed by the assessee. Thus, the shareholders had discharged the onus on it to documents filed by the assessee. Thus, the shareholders had discharged the onus on it to prove the identity, creditworthiness and genuinity of the share transaction who are none prove the identity, creditworthiness and genuinity of the share transaction who are none prove the identity, creditworthiness and genuinity of the share transaction who are none other than the promoter other than the promoters, directors and group companies and the AO after examining and s, directors and group companies and the AO after examining and

22 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. satisfying himself about the share capital and premium has accepted it. Thus it is noted satisfying himself about the share capital and premium has accepted it. Thus it is noted satisfying himself about the share capital and premium has accepted it. Thus it is noted that independent and adequate enquiry was made and further it is not pointed out by Ld. that independent and adequate enquiry was made and further it is not pointed out by Ld. that independent and adequate enquiry was made and further it is not pointed out by Ld. Pr. CIT as to what further enquiry was needed or how the enquiry made by AO is wrong, what further enquiry was needed or how the enquiry made by AO is wrong, what further enquiry was needed or how the enquiry made by AO is wrong, without which in the facts of the case as discussed supra, the ld Pr CIT cannot term the without which in the facts of the case as discussed supra, the ld Pr CIT cannot term the without which in the facts of the case as discussed supra, the ld Pr CIT cannot term the order of AO as erroneous. order of AO as erroneous. 15. Thus, we find that during the reassessment proceeding pursuant Thus, we find that during the reassessment proceeding pursuant Thus, we find that during the reassessment proceeding pursuant to the first revisional order under section 263 of the Act dated 10.06.2016 and pursuant to the specific revisional order under section 263 of the Act dated 10.06.2016 and pursuant to the specific revisional order under section 263 of the Act dated 10.06.2016 and pursuant to the specific directions of the Ld. Pr. CIT, the AO in the second round had summoned the directors of directions of the Ld. Pr. CIT, the AO in the second round had summoned the directors of directions of the Ld. Pr. CIT, the AO in the second round had summoned the directors of Group companies as well as that of assessee and examined the b Group companies as well as that of assessee and examined the b Group companies as well as that of assessee and examined the books and the bank statement and other documents furnished by them to discharge the onus on them about statement and other documents furnished by them to discharge the onus on them about statement and other documents furnished by them to discharge the onus on them about the identity, creditworthiness and genuineness of the transactions and the AO has the identity, creditworthiness and genuineness of the transactions and the AO has the identity, creditworthiness and genuineness of the transactions and the AO has recorded their statement during reassessment proceedings wherein he has recorded their statement during reassessment proceedings wherein he has recorded their statement during reassessment proceedings wherein he has questioned and elicited answers about the identity, creditworthiness and genuineness of the transaction as elicited answers about the identity, creditworthiness and genuineness of the transaction as elicited answers about the identity, creditworthiness and genuineness of the transaction as well as the source of the investment etc. So, from the aforesaid actions carried out by the well as the source of the investment etc. So, from the aforesaid actions carried out by the well as the source of the investment etc. So, from the aforesaid actions carried out by the AO during the reassessment proceeding cannot be found AO during the reassessment proceeding cannot be found fault with for lack of enquiry and fault with for lack of enquiry and thus, we note that AO has discharged his duty as an Investigator as per the direction of Ld. thus, we note that AO has discharged his duty as an Investigator as per the direction of Ld. thus, we note that AO has discharged his duty as an Investigator as per the direction of Ld. Pr. CIT dated 10.06.2016 u/s. 263 of the Act (First 263 order) and further we note that the Pr. CIT dated 10.06.2016 u/s. 263 of the Act (First 263 order) and further we note that the Pr. CIT dated 10.06.2016 u/s. 263 of the Act (First 263 order) and further we note that the Ld. Pr. CIT while issuing the Show Ld. Pr. CIT while issuing the Show Cause Notice while exercising his revisional jurisdiction Cause Notice while exercising his revisional jurisdiction for second time has not made even a whisper about the non for second time has not made even a whisper about the non-compliance/failure on the compliance/failure on the part of AO in respect of the specific direction given by the Ld. Pr. CIT dated 10.06.2016 part of AO in respect of the specific direction given by the Ld. Pr. CIT dated 10.06.2016 part of AO in respect of the specific direction given by the Ld. Pr. CIT dated 10.06.2016 while setting aside the original assessment order passed by the AO dated 20.03.2015. And e original assessment order passed by the AO dated 20.03.2015. And e original assessment order passed by the AO dated 20.03.2015. And in the impugned order the Ld. Pr. CIT has not found fault with the action of the AO in giving in the impugned order the Ld. Pr. CIT has not found fault with the action of the AO in giving in the impugned order the Ld. Pr. CIT has not found fault with the action of the AO in giving effect to the specific directions given by him while passing the first revisional order on effect to the specific directions given by him while passing the first revisional order on effect to the specific directions given by him while passing the first revisional order on 10.06.2016. Thus, we note that when the AO while framing the reassessment order 06.2016. Thus, we note that when the AO while framing the reassessment order 06.2016. Thus, we note that when the AO while framing the reassessment order pursuant to the specific direction of the Ld. Pr. CIT’s order dated 10.06.2016 (first pursuant to the specific direction of the Ld. Pr. CIT’s order dated 10.06.2016 (first pursuant to the specific direction of the Ld. Pr. CIT’s order dated 10.06.2016 (first revisional order) has complied with the specific directions of Ld. Pr. CIT and based on the revisional order) has complied with the specific directions of Ld. Pr. CIT and based on the revisional order) has complied with the specific directions of Ld. Pr. CIT and based on the inquiry conducted and after perusal of the documents running more than 794 pages which inquiry conducted and after perusal of the documents running more than 794 pages which inquiry conducted and after perusal of the documents running more than 794 pages which reveals the identity, creditworthiness and genuineness of the share capital and premium reveals the identity, creditworthiness and genuineness of the share capital and premium reveals the identity, creditworthiness and genuineness of the share capital and premium collected by the assessee from the share subscribers, the satisfaction of AO as collected by the assessee from the share subscribers, the satisfaction of AO as collected by the assessee from the share subscribers, the satisfaction of AO as envisaged in sec. 68 of the Act is a plausible view and the share subscribers/directors participating in sec. 68 of the Act is a plausible view and the share subscribers/directors participating in sec. 68 of the Act is a plausible view and the share subscribers/directors participating in the reassessment proceedings along with the audited financial statements and other the reassessment proceedings along with the audited financial statements and other the reassessment proceedings along with the audited financial statements and other documents referred supra, the assessee had discharged the onus on it documents referred supra, the assessee had discharged the onus on it documents referred supra, the assessee had discharged the onus on it about the identity, creditworthiness and genuineness of the share capital and premium collected by the creditworthiness and genuineness of the share capital and premium collected by the creditworthiness and genuineness of the share capital and premium collected by the assessee from the respective share subscribers. Since the aforesaid exercise was carried assessee from the respective share subscribers. Since the aforesaid exercise was carried assessee from the respective share subscribers. Since the aforesaid exercise was carried out by the AO in the original as well as reassessment proceedi out by the AO in the original as well as reassessment proceedings and the documents are in ngs and the documents are in the assessment folder and the statements have been recorded of the individual share the assessment folder and the statements have been recorded of the individual share the assessment folder and the statements have been recorded of the individual share subscribers and directors of the Group company share subscribers, the Ld. Pr. CIT erred in subscribers and directors of the Group company share subscribers, the Ld. Pr. CIT erred in subscribers and directors of the Group company share subscribers, the Ld. Pr. CIT erred in holding the reassessment order of the AO in respect holding the reassessment order of the AO in respect of share capital and premium collected of share capital and premium collected by the assessee as erroneous as well as prejudicial to the interest of the revenue unless the by the assessee as erroneous as well as prejudicial to the interest of the revenue unless the by the assessee as erroneous as well as prejudicial to the interest of the revenue unless the Ld. Pr. CIT based on an enquiry conducted by himself in the second round atleast is able to Ld. Pr. CIT based on an enquiry conducted by himself in the second round atleast is able to Ld. Pr. CIT based on an enquiry conducted by himself in the second round atleast is able to upset the AO’s satisfaction in upset the AO’s satisfaction in respect of identity, creditworthiness and genuineness of the respect of identity, creditworthiness and genuineness of the share subscribers and his decision not to make any addition under section 68 of the Act. In share subscribers and his decision not to make any addition under section 68 of the Act. In share subscribers and his decision not to make any addition under section 68 of the Act. In the light of the aforesaid discussions and on perusal of the documents, we are of the view the light of the aforesaid discussions and on perusal of the documents, we are of the view the light of the aforesaid discussions and on perusal of the documents, we are of the view that AO’s view to accept the identity, creditworthiness and genuineness of the share capital iew to accept the identity, creditworthiness and genuineness of the share capital iew to accept the identity, creditworthiness and genuineness of the share capital and premium collected from the share subscribers as a plausible view and at any rate can and premium collected from the share subscribers as a plausible view and at any rate can and premium collected from the share subscribers as a plausible view and at any rate can be termed as an unsustainable view on law or facts. be termed as an unsustainable view on law or facts. 25. Thus, in the light of the judicial precedents of the Hon’ble Apex/High Thus, in the light of the judicial precedents of the Hon’ble Apex/High Thus, in the light of the judicial precedents of the Hon’ble Apex/High court/Tribunal, we are of the view that the action/view taken by the AO after enquiry court/Tribunal, we are of the view that the action/view taken by the AO after enquiry court/Tribunal, we are of the view that the action/view taken by the AO after enquiry made by him as per the direction of the Ld. Pr. CIT in the set aside proceedings dated made by him as per the direction of the Ld. Pr. CIT in the set aside proceedings dated made by him as per the direction of the Ld. Pr. CIT in the set aside proceedings dated 10.06.2016 pursuant to which the AO has reassessed the assessee after inquiry and ursuant to which the AO has reassessed the assessee after inquiry and ursuant to which the AO has reassessed the assessee after inquiry and accepted the share capital and premium collected by assessee is a plausible view and accepted the share capital and premium collected by assessee is a plausible view and accepted the share capital and premium collected by assessee is a plausible view and cannot be held to be unsustainable view in facts or law, therefore, the impugned action of cannot be held to be unsustainable view in facts or law, therefore, the impugned action of cannot be held to be unsustainable view in facts or law, therefore, the impugned action of

23 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. the Ld. Pr. CIT to interfere with the reassessment order of the AO, is without jurisdiction . CIT to interfere with the reassessment order of the AO, is without jurisdiction . CIT to interfere with the reassessment order of the AO, is without jurisdiction and liable to be quashed. and liable to be quashed. 26. Therefore, in the light of the discussion on fact as well as on law, we are of the Therefore, in the light of the discussion on fact as well as on law, we are of the Therefore, in the light of the discussion on fact as well as on law, we are of the considered opinion that AO’s action (reassessment) pursuant considered opinion that AO’s action (reassessment) pursuant to the first revisional order of to the first revisional order of Ld. Pr. CIT dated 10.06.2016, to accept the share capital and premium as a possible view in Ld. Pr. CIT dated 10.06.2016, to accept the share capital and premium as a possible view in Ld. Pr. CIT dated 10.06.2016, to accept the share capital and premium as a possible view in facts and law as per the ratio laid by the Hon’ble Supreme Court in Malabar Industrial Co. facts and law as per the ratio laid by the Hon’ble Supreme Court in Malabar Industrial Co. facts and law as per the ratio laid by the Hon’ble Supreme Court in Malabar Industrial Co. Ltd. Vs. CIT 243 ITR 83 (SC) the AO’s a Ltd. Vs. CIT 243 ITR 83 (SC) the AO’s action/reassessment order cannot be termed as ction/reassessment order cannot be termed as erroneous and prejudicial to the interest of the Revenue. Therefore, the condition erroneous and prejudicial to the interest of the Revenue. Therefore, the condition erroneous and prejudicial to the interest of the Revenue. Therefore, the condition precedent for usurping revisional jurisdiction u/s. 263 of the Act is absent and, therefore, precedent for usurping revisional jurisdiction u/s. 263 of the Act is absent and, therefore, precedent for usurping revisional jurisdiction u/s. 263 of the Act is absent and, therefore, the Ld. Pr. CIT lacked jurisdictio the Ld. Pr. CIT lacked jurisdiction to assume second time revisional jurisdiction u/s. 263 of n to assume second time revisional jurisdiction u/s. 263 of the Act. Therefore, the assessee succeeds on the legal issue raised and, therefore, on the the Act. Therefore, the assessee succeeds on the legal issue raised and, therefore, on the the Act. Therefore, the assessee succeeds on the legal issue raised and, therefore, on the facts and circumstances discussed (supra), we are inclined to quash the impugned order of facts and circumstances discussed (supra), we are inclined to quash the impugned order of facts and circumstances discussed (supra), we are inclined to quash the impugned order of ted 12.03.2019. Ld. Pr. CIT dated 12.03.2019.

The case on hand has identical facts and circumstances and thus, this case The case on hand has identical facts and circumstances and thus, this case The case on hand has identical facts and circumstances and thus, this case-law is applicable on all fours, to the case on hand. applicable on all fours, to the case on hand. 9. In the case on hand, we find that that Section 143(3) orders have been passed by In the case on hand, we find that that Section 143(3) orders have been passed by In the case on hand, we find that that Section 143(3) orders have been passed by the revenue in the case of following share applicant companies: of following share applicant companies:- M/s. Rohan Finance & Securities Ltd. Rohan Finance & Securities Ltd. M/s. Swastik Securities and Finance Ltd M/s. Swastik Securities and Finance Ltd. M/s. Visudh Marketing Pvt. Ltd. M/s. Visudh Marketing Pvt. Ltd. M/s. Goldline Comtrade Private Limited Goldline Comtrade Private Limited M/s. Gajbandan Barter Pvt. Ltd., assessment order 25/03/2015 M/s. Gajbandan Barter Pvt. Ltd., assessment order 25/03/2015

9.1. When the assessment orders When the assessment orders of the share applicant companies have been passed of the share applicant companies have been passed u/s 143(3) of the Act, by the Department, it cannot be said that the identity and u/s 143(3) of the Act, by the Department, it cannot be said that the identity and u/s 143(3) of the Act, by the Department, it cannot be said that the identity and creditworthiness of the share applicant companies have not been proved. It is so held by creditworthiness of the share applicant companies have not been proved. It is so held by creditworthiness of the share applicant companies have not been proved. It is so held by the ITAT Kolkata Bench in the following cases: he ITAT Kolkata Bench in the following cases:- 1) M/s. Omkar Infracon (P) Ltd. vs. ITO in ITA No. 896/Kol/2019, Assessment M/s. Omkar Infracon (P) Ltd. vs. ITO in ITA No. 896/Kol/2019, Assessment M/s. Omkar Infracon (P) Ltd. vs. ITO in ITA No. 896/Kol/2019, Assessment Year: 2012-13, order dt. 18/03/2020 13, order dt. 18/03/2020 2) Amritrashi Infra Private Ltd. vs. Pr. CIT in ITA No. 838/Kol/2019, Amritrashi Infra Private Ltd. vs. Pr. CIT in ITA No. 838/Kol/2019, Amritrashi Infra Private Ltd. vs. Pr. CIT in ITA No. 838/Kol/2019, Assessment Year: 2012 Assessment Year: 2012-13, order dt. 12/08/2020

9.2 Persons representing the share applicant companies have appeared before the Persons representing the share applicant companies have appeared before the Persons representing the share applicant companies have appeared before the Assessing Officer in the second round of assessment proceedings, in response to notice u/s Assessing Officer in the second round of assessment proceedings, in response to notice u/s Assessing Officer in the second round of assessment proceedings, in response to notice u/s 131 of the Act, and their statements were recorded on oath. The share 131 of the Act, and their statements were recorded on oath. The share 131 of the Act, and their statements were recorded on oath. The share applicant companies have also responded to notice u/s 133(6) of the Act by furnishing the information called have also responded to notice u/s 133(6) of the Act by furnishing the information called have also responded to notice u/s 133(6) of the Act by furnishing the information called for. The information filed by the creditor share applicant companies are as follows: for. The information filed by the creditor share applicant companies are as follows: for. The information filed by the creditor share applicant companies are as follows:-

24 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. 1) Copy of I.T. Return/Acknowledgment Copy of I.T. Return/Acknowledgment 2) Copy of annual au Copy of annual audited accounts 3) Balance sheet and profit & loss a/c statement Balance sheet and profit & loss a/c statement 4) Copy of Bank Statement Copy of Bank Statement These documents prove the genuineness of the transactions. These documents prove the genuineness of the transactions. 9.3. A perusal of these documents show that the Assessing Officer has followed the A perusal of these documents show that the Assessing Officer has followed the A perusal of these documents show that the Assessing Officer has followed the directions of the ld. Pr. CIT, issued in his first order dt. . Pr. CIT, issued in his first order dt. 26/12/2016 passed u/s 263 of the passed u/s 263 of the Act and has taken a plausible view. It is not a case of lack of enquiry, nor a case of Act and has taken a plausible view. It is not a case of lack of enquiry, nor a case of Act and has taken a plausible view. It is not a case of lack of enquiry, nor a case of inadequate enquiry. A decision was taken after examination of all evidences and inadequate enquiry. A decision was taken after examination of all evidences and inadequate enquiry. A decision was taken after examination of all evidences and documents. Such a view cannot be termed as erroneous insofar as it is prejudicial to the a view cannot be termed as erroneous insofar as it is prejudicial to the a view cannot be termed as erroneous insofar as it is prejudicial to the interest of the revenue. 10. The Hone’ble Andhra Pradesh High Court in the case of The Hone’ble Andhra Pradesh High Court in the case of Spectra Shares and Scrips Spectra Shares and Scrips Pvt. Ltd. V CIT (AP) 354 ITR 35 Pvt. Ltd. V CIT (AP) 354 ITR 35 had considered a number of judgments on this issue of had considered a number of judgments on this issue of exercise of jurisdiction u/s 263 of the Act by the Principal Commissioner of Income Tax exercise of jurisdiction u/s 263 of the Act by the Principal Commissioner of Income Tax exercise of jurisdiction u/s 263 of the Act by the Principal Commissioner of Income Tax and culled out various principles laid down in principles laid down in different judgments by the Courts by the Courts as below :

“24. In Malabar Industrial Co.Ltd. ( 2 Supra), Malabar Industrial Co.Ltd. ( 2 Supra), the Supreme Court held that a the Supreme Court held that a bare reading of Sec.263 makes it clear that the prerequisite for the exercise of bare reading of Sec.263 makes it clear that the prerequisite for the exercise of bare reading of Sec.263 makes it clear that the prerequisite for the exercise of jurisdiction by the Commissioner suomotu under it, is the order of the Income Tax jurisdiction by the Commissioner suomotu under it, is the order of the Income Tax jurisdiction by the Commissioner suomotu under it, is the order of the Income Tax Officer is erroneous in Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. The so far as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Reven interests of the Revenue. If one of them is absent – if the order of the Income Tax if the order of the Income Tax Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous but it is prejudicial to the Revenue but it is prejudicial to the Revenue – recourse cannot be had to Sec.263 (1) of the recourse cannot be had to Sec.263 (1) of the Act. It also held at pg Act. It also held at pg-88 as follows: "The phrase "prejudicial to the interests of the Revenue" has to be read in "The phrase "prejudicial to the interests of the Revenue" has to be read in "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 conjunction with an erroneous order passed by the Assessing Officer. Every loss of 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 revenue as a consequence of an order of the Assessing Officer cannot be treated as 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 Income prejudicial to the interests of the Revenue. For example, when an Income prejudicial to the interests of the Revenue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of Officer adopted one of the courses permissible in law and it has resulted in loss of Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income Revenue: or where two views are possible and the Income-tax Officer has taken tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an ich the Commissioner does not agree, it cannot be treated as an ich the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken erroneous order prejudicial to the interests of the Revenue, unless the view taken erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law. It has been held by this Court tax Officer is unsustainable in law. It has been held by this Court tax Officer is unsustainable in law. It has been held by this Court that where a sum not earned that where a sum not earned by a person is assessed as income in his hands on his by a person is assessed as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such so offering, the order passed by the Assessing Officer accepting the same as such 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. will be erroneous and prejudicial to the interests of the Revenue. will be erroneous and prejudicial to the interests of the Revenue. RampyarideviSaraogi v. CIT (1968) 67 ITR 84 (SC) and RampyarideviSaraogi v. CIT (1968) 67 ITR 84 (SC) and in Smt. Tara Devi in Smt. Tara Devi Aggarwal V. CIT (1973) 88 ITR 323 (SC)". Aggarwal V. CIT (1973) 88 ITR 323 (SC)". 25. In Max India Ltd. Max India Ltd. (3 Supra), reiterated the view in Malabar Industrial Malabar Industrial Co.Ltd. (2 Supra) and observed that every loss of Revenue as a consequence of an (2 Supra) and observed that every loss of Revenue as a consequence of an (2 Supra) and observed that every loss of Revenue as a consequence of an order of the Assessing Officer cannot b order of the Assessing Officer cannot be treated as prejudicial to the interests of e treated as prejudicial to the interests of the Revenue. For example, when an Income Tax Officer adopted one of the courses the Revenue. For example, when an Income Tax Officer adopted one of the courses the Revenue. For example, when an Income Tax Officer adopted one of the courses

25 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. permissible in law and it has resulted in loss of revenue; or where two views are permissible in law and it has resulted in loss of revenue; or where two views are permissible in law and it has resulted in loss of revenue; or where two views are possible and the Income Tax Officer has taken one possible and the Income Tax Officer has taken one view with which the view with which the Commissioner does not agree, it cannot be treated as an erroneous order Commissioner does not agree, it cannot be treated as an erroneous order 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 Income prejudicial to the interests of the Revenue, unless the view taken by the Income prejudicial to the interests of the Revenue, unless the view taken by the Income Tax Officer is unsustainable in law. On the facts of that case, Sec.80HHC(3) as it Tax Officer is unsustainable in law. On the facts of that case, Sec.80HHC(3) as it Tax Officer is unsustainable in law. On the facts of that case, Sec.80HHC(3) as it then stood was interpreted by the Assessing Officer but the Revenue contended then stood was interpreted by the Assessing Officer but the Revenue contended then stood was interpreted by the Assessing Officer but the Revenue contended that in view of the 2005 Amendment which is clarificatory and retrospective in that in view of the 2005 Amendment which is clarificatory and retrospective in that in view of the 2005 Amendment which is clarificatory and retrospective in nature, the view of the Assessing Officer was unsustainable in law and the nature, the view of the Assessing Officer was unsustainable in law and the nature, the view of the Assessing Officer was unsustainable in law and the Commissioner was correc Commissioner was correct in invoking Sec.263. But the Supreme Court rejected t in invoking Sec.263. But the Supreme Court rejected the said contention and held that when the Commissioner passed his order the said contention and held that when the Commissioner passed his order the said contention and held that when the Commissioner passed his order disagreeing with the view of the Assessing Officer, there were two views on the disagreeing with the view of the Assessing Officer, there were two views on the disagreeing with the view of the Assessing Officer, there were two views on the word "profits" in that section; that the said sec word "profits" in that section; that the said section was amended eleven times; tion was amended eleven times; that different views existed on the day when the Commissioner passed his order; that different views existed on the day when the Commissioner passed his order; that different views existed on the day when the Commissioner passed his order; that the mechanics of the section had become so complicated over the years that that the mechanics of the section had become so complicated over the years that that the mechanics of the section had become so complicated over the years that two views were inherently possible; and therefore, the subsequent two views were inherently possible; and therefore, the subsequent amendment in amendment in 2005 even though retrospective will not attract the provision of Sec.263. 2005 even though retrospective will not attract the provision of Sec.263. 2005 even though retrospective will not attract the provision of Sec.263. 26. In Vikas Polymers Vikas Polymers (4 Supra), the Delhi High Court held that the power of (4 Supra), the Delhi High Court held that the power of suomotu revision exercisable by the Commissioner under the provisions of Sec.263 suomotu revision exercisable by the Commissioner under the provisions of Sec.263 suomotu revision exercisable by the Commissioner under the provisions of Sec.263 is supervisory in nature; that an "erroneous judgment" means one which is not in isory in nature; that an "erroneous judgment" means one which is not in isory in nature; that an "erroneous judgment" means one which is not in accordance with law; that if an Income Tax Officer acting in accordance with law accordance with law; that if an Income Tax Officer acting in accordance with law accordance with law; that if an Income Tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as "erroneous" by the makes a certain assessment, the same cannot be branded as "erroneous" by the makes a certain assessment, the same cannot be branded as "erroneous" by the Commissioner simply becaus Commissioner simply because, according to him, the order should have been e, according to him, the order should have been written differently or more elaborately; that the section does not visualize the written differently or more elaborately; that the section does not visualize the written differently or more elaborately; that the section does not visualize the substitution of the judgment of the Commissioner for that of the Income Tax substitution of the judgment of the Commissioner for that of the Income Tax substitution of the judgment of the Commissioner for that of the Income Tax Officer, who passed the order unless the decision i Officer, who passed the order unless the decision is not in accordance with the s not in accordance with the law; that to invoke suomotu revisional powers to reopen a concluded assessment law; that to invoke suomotu revisional powers to reopen a concluded assessment law; that to invoke suomotu revisional powers to reopen a concluded assessment under Sec.263, the Commissioner must give reasons; that a bare reiteration by under Sec.263, the Commissioner must give reasons; that a bare reiteration by under Sec.263, the Commissioner must give reasons; that a bare reiteration by him that the order of the Income Tax Officer is erroneous in so far as him that the order of the Income Tax Officer is erroneous in so far as him that the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must prejudicial to the interests of the Revenue, will not suffice; that the reasons must prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show that the enhancement or modification of the assessment or be such as to show that the enhancement or modification of the assessment or be such as to show that the enhancement or modification of the assessment or cancellation of the assessment or directions issued for a fresh assessment were cancellation of the assessment or directions issued for a fresh assessment were cancellation of the assessment or directions issued for a fresh assessment were called for, and must irresistibly lead to the conclusion that the order of the for, and must irresistibly lead to the conclusion that the order of the for, and must irresistibly lead to the conclusion that the order of the Income Tax Officer was not only erroneous but was prejudicial to the interests of Income Tax Officer was not only erroneous but was prejudicial to the interests of Income Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an the Revenue. Thus, while the Income Tax Officer is not called upon to write an the Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment givi elaborate judgment giving detailed reasons in respect of each and every ng detailed reasons in respect of each and every disallowance, deduction, etc., it is incumbent upon the Commissioner not to disallowance, deduction, etc., it is incumbent upon the Commissioner not to disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for exercise his suomotu revisional powers unless supported by adequate reasons for exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the cour doing so; that if a query is raised during the course of the scrutiny by the se of the scrutiny by the Assessing Officer, which was answered to the satisfaction of the Assessing Officer, Assessing Officer, which was answered to the satisfaction of the Assessing Officer, Assessing Officer, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this but neither the query nor the answer were reflected in the assessment order, this but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the would not by itself lead to the conclusion that the order of the Assessing Officer Assessing Officer called for interference and revision. called for interference and revision. 27. In Sunbeam Auto Ltd. Sunbeam Auto Ltd.( 5 Supra), the Delhi High Court held that the Assessing ( 5 Supra), the Delhi High Court held that the Assessing Officer in the assessment order is not required to give a detailed reason in respect Officer in the assessment order is not required to give a detailed reason in respect Officer in the assessment order is not required to give a detailed reason in respect of each and every item of deduct of each and every item of deduction, etc.; that whether there was application of ion, etc.; that whether there was application of mind before allowing the expenditure in question has to be seen; that if there was mind before allowing the expenditure in question has to be seen; that if there was mind before allowing the expenditure in question has to be seen; that if there was an inquiry, even inadequate that would not by itself give occasion to the an inquiry, even inadequate that would not by itself give occasion to the an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Sec.263 merely b Commissioner to pass orders under Sec.263 merely because he has a different ecause he has a different opinion in the matter; that it is only in cases of lack of inquiry that such a course opinion in the matter; that it is only in cases of lack of inquiry that such a course opinion in the matter; that it is only in cases of lack of inquiry that such a course of action would be open; that an assessment order made by the Income Tax of action would be open; that an assessment order made by the Income Tax of action would be open; that an assessment order made by the Income Tax Officer cannot be branded as erroneous by the Commissioner simply becau Officer cannot be branded as erroneous by the Commissioner simply becau Officer cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately; there according to him, the order should have been written more elaborately; there according to him, the order should have been written more elaborately; there must be some prima facie material on record to show that the tax which was must be some prima facie material on record to show that the tax which was must be some prima facie material on record to show that the tax which was

26 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. lawfully exigible has not been imposed or that by the application of the relevant lawfully exigible has not been imposed or that by the application of the relevant lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a lesser tax than what was rrect or incomplete interpretation, a lesser tax than what was rrect or incomplete interpretation, a lesser tax than what was just, has been imposed. In that case, the Delhi High Court held that the just, has been imposed. In that case, the Delhi High Court held that the just, has been imposed. In that case, the Delhi High Court held that the Commissioner in the exercise of revisional power could not have objected to the Commissioner in the exercise of revisional power could not have objected to the Commissioner in the exercise of revisional power could not have objected to the finding of the Assessing Officer that ex finding of the Assessing Officer that expenditure on tools and dies by the assessee, penditure on tools and dies by the assessee, a manufacturer of Car parts, is revenue expenditure where the said claim was a manufacturer of Car parts, is revenue expenditure where the said claim was a manufacturer of Car parts, is revenue expenditure where the said claim was allowed by the latter on being satisfied with the explanation of the assessee and allowed by the latter on being satisfied with the explanation of the assessee and allowed by the latter on being satisfied with the explanation of the assessee and where the same accounting practice followed by the a where the same accounting practice followed by the assessee for number of years ssessee for number of years with the approval of the Income Tax Authorities. It held that the Assessing Officer with the approval of the Income Tax Authorities. It held that the Assessing Officer with the approval of the Income Tax Authorities. It held that the Assessing Officer had called for explanation on the very item from the assessee and the assessee had called for explanation on the very item from the assessee and the assessee had called for explanation on the very item from the assessee and the assessee had furnished its explanation. Merely because the Assessing Offic had furnished its explanation. Merely because the Assessing Officer in his order er in his order did not make an elaborate discussion in that regard, his order cannot be termed did not make an elaborate discussion in that regard, his order cannot be termed did not make an elaborate discussion in that regard, his order cannot be termed as erroneous. The opinion of the Assessing Officer is one of the possible views and as erroneous. The opinion of the Assessing Officer is one of the possible views and as erroneous. The opinion of the Assessing Officer is one of the possible views and there was no material before the Commissioner to vary that opinion and ask f there was no material before the Commissioner to vary that opinion and ask f there was no material before the Commissioner to vary that opinion and ask for fresh inquiry. 28. In Gabriel India Ltd. Gabriel India Ltd. (6 Supra), the Bombay High Court held that a (6 Supra), the Bombay High Court held that a consideration of the Commissioner as to whether an order is erroneous in so far consideration of the Commissioner as to whether an order is erroneous in so far consideration of the Commissioner as to whether an order is erroneous in so far as it is prejudicial to the interests of the Revenue, must be based on materials on as it is prejudicial to the interests of the Revenue, must be based on materials on as it is prejudicial to the interests of the Revenue, must be based on materials on the record of the proceedings called for by him the record of the proceedings called for by him. If there are no materials on . If there are no materials on record on the basis of which it can be said that the Commissioner acting in a record on the basis of which it can be said that the Commissioner acting in a record on the basis of which it can be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the very initiation of reasonable manner could have come to such a conclusion, the very initiation of reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. It held proceedings by him will be illegal and without jurisdiction. It held proceedings by him will be illegal and without jurisdiction. It held that the Commissioner cannot initiate proceedings with a view to start fishing and roving Commissioner cannot initiate proceedings with a view to start fishing and roving Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded; that the department inquiries in matters or orders which are already concluded; that the department inquiries in matters or orders which are already concluded; that the department cannot be permitted to begin fresh litigation because of new views they entertain cannot be permitted to begin fresh litigation because of new views they entertain cannot be permitted to begin fresh litigation because of new views they entertain on facts or new versions which they present as to what should be the inference or facts or new versions which they present as to what should be the inference or facts or new versions which they present as to what should be the inference or proper inference either of the facts disclosed or the weight of the circumstance; proper inference either of the facts disclosed or the weight of the circumstance; proper inference either of the facts disclosed or the weight of the circumstance; that if this is permitted, litigation would have no end except when legal ingenuity that if this is permitted, litigation would have no end except when legal ingenuity that if this is permitted, litigation would have no end except when legal ingenuity is exhausted; that to do so is to divide one argument into two and multiply the d; that to do so is to divide one argument into two and multiply the d; that to do so is to divide one argument into two and multiply the litigation. It held that cases may be visualized where the Income Tax Officer while litigation. It held that cases may be visualized where the Income Tax Officer while litigation. It held that cases may be visualized where the Income Tax Officer while making an assessment examines the accounts, makes inquiries, applies his mind making an assessment examines the accounts, makes inquiries, applies his mind making an assessment examines the accounts, makes inquiries, applies his mind to the facts and circumst to the facts and circumstances of the case and determines the income either by ances of the case and determines the income either by accepting the account or by making some estimate himself; that the accepting the account or by making some estimate himself; that the accepting the account or by making some estimate himself; that the Commissioner, on perusal of the record, may be of the opinion that the estimate Commissioner, on perusal of the record, may be of the opinion that the estimate Commissioner, on perusal of the record, may be of the opinion that the estimate made by the Officer concerned was on the lower side and made by the Officer concerned was on the lower side and left to the Commissioner left to the Commissioner he would have estimated the income at a figure higher than the one determined he would have estimated the income at a figure higher than the one determined he would have estimated the income at a figure higher than the one determined by the Income Tax Officer; but that would not vest the Commissioner with power by the Income Tax Officer; but that would not vest the Commissioner with power by the Income Tax Officer; but that would not vest the Commissioner with power to reexamine the accounts and determine the income himself at a higher fi to reexamine the accounts and determine the income himself at a higher fi to reexamine the accounts and determine the income himself at a higher figure; there must be material available on the record called for by the Commissioner to there must be material available on the record called for by the Commissioner to there must be material available on the record called for by the Commissioner to satisfy him prima facie that the order is both erroneous and prejudicial to the satisfy him prima facie that the order is both erroneous and prejudicial to the satisfy him prima facie that the order is both erroneous and prejudicial to the interests of the Revenue. Otherwise, it would amount to giving unbridled and interests of the Revenue. Otherwise, it would amount to giving unbridled and interests of the Revenue. Otherwise, it would amount to giving unbridled and arbitrary power to the revising authority to initiate proceedings for revision in wer to the revising authority to initiate proceedings for revision in wer to the revising authority to initiate proceedings for revision in every case and start re every case and start re-examination and fresh inquiry in matters which have examination and fresh inquiry in matters which have already been concluded under law. already been concluded under law. 29. In M.S. Raju(15 Supra), this Court has held that the power of the (15 Supra), this Court has held that the power of the (15 Supra), this Court has held that the power of the Commissioner under Sec.263 (1) is not limited only to the material which was ssioner under Sec.263 (1) is not limited only to the material which was ssioner under Sec.263 (1) is not limited only to the material which was available before the Assessing Officer and, in order to protect the interests of the available before the Assessing Officer and, in order to protect the interests of the available before the Assessing Officer and, in order to protect the interests of the Revenue, the Commissioner is entitled to examine any other records which are Revenue, the Commissioner is entitled to examine any other records which are Revenue, the Commissioner is entitled to examine any other records which are available at the time available at the time of examination by him and to take into consideration even of examination by him and to take into consideration even those events which arose subsequent to the order of assessment. those events which arose subsequent to the order of assessment. 30. In Rampyari Devi Saraogi Rampyari Devi Saraogi(21 Supra), the Commissioner in exercise of (21 Supra), the Commissioner in exercise of revisional powers cancelled assessee’s assessment for the yea revisional powers cancelled assessee’s assessment for the years 1952 rs 1952-1953 to

27 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. 1960-61 because he found that the income tax officer was not justified in 61 because he found that the income tax officer was not justified in 61 because he found that the income tax officer was not justified in accepting the initial capital, the gift received and sale of jewellery, the income accepting the initial capital, the gift received and sale of jewellery, the income accepting the initial capital, the gift received and sale of jewellery, the income from business etc., without any enquiry or evidence whatsoever . He directed the from business etc., without any enquiry or evidence whatsoever . He directed the from business etc., without any enquiry or evidence whatsoever . He directed the income tax officer to do fresh assessment after making proper enquiry and come tax officer to do fresh assessment after making proper enquiry and come tax officer to do fresh assessment after making proper enquiry and investigation in regard to the jurisdiction. The assessee complained before the investigation in regard to the jurisdiction. The assessee complained before the investigation in regard to the jurisdiction. The assessee complained before the Supreme Court that no fair or reasonable opportunity was given to her. The Supreme Court that no fair or reasonable opportunity was given to her. The Supreme Court that no fair or reasonable opportunity was given to her. The Supreme Court held that there Supreme Court held that there was ample material to show that the income tax was ample material to show that the income tax officer made the assessments in undue hurry; that he had passed a short stereo officer made the assessments in undue hurry; that he had passed a short stereo officer made the assessments in undue hurry; that he had passed a short stereo typed assessment order for each assessment year; that on the face of the record, typed assessment order for each assessment year; that on the face of the record, typed assessment order for each assessment year; that on the face of the record, the orders were pre- -judicial to the interest of the Revenue; and no prejudice was the Revenue; and no prejudice was caused to the assessee on account of failure of the Commissioner to indicate the caused to the assessee on account of failure of the Commissioner to indicate the caused to the assessee on account of failure of the Commissioner to indicate the results of the enquiry made by him, as she would have a full opportunity for results of the enquiry made by him, as she would have a full opportunity for results of the enquiry made by him, as she would have a full opportunity for showing to the income tax officer whether he had jurisdiction or showing to the income tax officer whether he had jurisdiction or not and whether not and whether the income tax assessed in the assessment years which were originally passed the income tax assessed in the assessment years which were originally passed the income tax assessed in the assessment years which were originally passed were correct or not" were correct or not" 31. From the above decisions, the following principles as to exercise of jurisdiction 31. From the above decisions, the following principles as to exercise of jurisdiction 31. From the above decisions, the following principles as to exercise of jurisdiction by the Commissioner u/s.263 of the Act can be culled ou by the Commissioner u/s.263 of the Act can be culled out: a) The Commissioner has to be satisfied of twin conditions, namely, (i) the order a) The Commissioner has to be satisfied of twin conditions, namely, (i) the order a) The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If erroneous but is not prejudicial to the Revenue to the interests of the Revenue. If erroneous but is not prejudicial to the Revenue to the interests of the Revenue. If erroneous but is not prejudicial to the Revenue or if it is not erroneous but it is prejudicial to the Revenue or if it is not erroneous but it is prejudicial to the Revenue – recourse cannot be recourse cannot be had to Sec.263 (1) of the Act. had to Sec.263 (1) of the Act. b) Every loss of revenue as a consequence of an order of the Assessing Officer b) Every loss of revenue as a consequence of an order of the Assessing Officer b) Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Reven cannot be treated as prejudicial to the interests of the Revenue. For example, ue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it tax Officer adopted one of the courses permissible in law and it tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income has resulted in loss of Revenue: or where two views are possible and the Income has resulted in loss of Revenue: or where two views are possible and the Income- tax Officer has taken one view with which the Commissioner does not agree, it tax Officer has taken one view with which the Commissioner does not agree, it tax Officer 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 annot be treated as an erroneous order prejudicial to the interests of the annot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income Revenue, unless the view taken by the Income-tax Officer is unsustainable in law. tax Officer is unsustainable in law. c) To invoke suomotu revisional powers to reopen a concluded assessment under c) To invoke suomotu revisional powers to reopen a concluded assessment under c) To invoke suomotu revisional powers to reopen a concluded assessment under Sec.263, the Commissi Sec.263, the Commissioner must give reasons; that a bare reiteration by him that oner must give reasons; that a bare reiteration by him that the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show interests of the Revenue, will not suffice; that the reasons must be such as to show interests of the Revenue, will not suffice; that the reasons must be such as to show that the and must irresi that the and must irresistibly lead to the conclusion that the order of the Income stibly lead to the conclusion that the order of the Income Tax Officer was not only erroneous but was prejudicial to the interests of the Tax Officer was not only erroneous but was prejudicial to the interests of the Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an Revenue. Thus, while the Income Tax Officer is not called upon to write an Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons elaborate judgment giving detailed reasons in respect of each and every in respect of each and every disallowance, deduction, etc., it is incumbent upon the Commissioner not to disallowance, deduction, etc., it is incumbent upon the Commissioner not to disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suomotu revisional powers unless supported by adequate reasons for exercise his suomotu revisional powers unless supported by adequate reasons for exercise his suomotu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny b doing so; that if a query is raised during the course of the scrutiny b doing so; that if a query is raised during the course of the scrutiny by the Assessing Officer, which was answered to the satisfaction of the Assessing Officer, Assessing Officer, which was answered to the satisfaction of the Assessing Officer, Assessing Officer, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this but neither the query nor the answer were reflected in the assessment order, this but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer would not by itself lead to the conclusion that the order of the Assessing Officer would not by itself lead to the conclusion that the order of the Assessing Officer called for interference and revision. alled for interference and revision. e) The Commissioner cannot initiate proceedings with a view to start fishing and e) The Commissioner cannot initiate proceedings with a view to start fishing and e) The Commissioner cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded; that the roving inquiries in matters or orders which are already concluded; that the roving inquiries in matters or orders which are already concluded; that the department cannot be permitted to begin fresh litigation becau department cannot be permitted to begin fresh litigation because of new views se of new views they entertain on facts or new circumstance; that if this is permitted, litigation they entertain on facts or new circumstance; that if this is permitted, litigation they entertain on facts or new circumstance; that if this is permitted, litigation would have no end except when legal ingenuity is exhausted would have no end except when legal ingenuity is exhausted f) Whether there was application of mind before allowing the expenditure in f) Whether there was application of mind before allowing the expenditure in f) Whether there was application of mind before allowing the expenditure in question has to be see question has to be seen; that if there was an inquiry, even inadequate that would n; that if there was an inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under Sec.263 not by itself give occasion to the Commissioner to pass orders under Sec.263 not by itself give occasion to the Commissioner to pass orders under Sec.263 merely because he has a different opinion in the matter; that it is only in cases of merely because he has a different opinion in the matter; that it is only in cases of merely because he has a different opinion in the matter; that it is only in cases of lack of inquiry that such a course lack of inquiry that such a course of action would be open; that an assessment of action would be open; that an assessment order made by the Income Tax Officer cannot be branded as erroneous by the order made by the Income Tax Officer cannot be branded as erroneous by the order made by the Income Tax Officer cannot be branded as erroneous by the

28 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. Commissioner simply because, according to him, the order should have been Commissioner simply because, according to him, the order should have been Commissioner simply because, according to him, the order should have been written more elaborately; there must be some prima facie mater written more elaborately; there must be some prima facie material on record to ial on record to show that the tax which was lawfully exigible has not been imposed or that by the show that the tax which was lawfully exigible has not been imposed or that by the show that the tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation, a application of the relevant statute on an incorrect or incomplete interpretation, a application of the relevant statute on an incorrect or incomplete interpretation, a lesser tax than what was just, has been imposed. lesser tax than what was just, has been imposed. g) The power of the Comm g) The power of the Commissioner under Sec.263 (1) is not Commissioner is issioner under Sec.263 (1) is not Commissioner is entitled to examine any other records which are available at the time of entitled to examine any other records which are available at the time of entitled to examine any other records which are available at the time of examination by him and to take into consideration even those events which arose examination by him and to take into consideration even those events which arose examination by him and to take into consideration even those events which arose subsequent to the order of assessment. subsequent to the order of assessment.

10.1. Now we examine the principles laid down in the principles laid down in the following judgements the following judgements. :-

DIRECTOR OF INCOME TAX vs. JYOTI FOUNDATION 357 ITR 388 (Delhi High Court ) DIRECTOR OF INCOME TAX vs. JYOTI FOUNDATION 357 ITR 388 (Delhi High Court ) It was held that revisionary power u/s 263 is conferred on the Commissioner/Director of It was held that revisionary power u/s 263 is conferred on the Commissioner/Director of It was held that revisionary power u/s 263 is conferred on the Commissioner/Director of Income Tax when an order passed by the lower authority is erroneous and prejudicial to Income Tax when an order passed by the lower authority is erroneous and prejudicial to Income Tax when an order passed by the lower authority is erroneous and prejudicial to the interest of the Revenue. the interest of the Revenue. Orders which are passed without inquiry or investiga Orders which are passed without inquiry or investigation are treated as erroneous and prejudicial to the interest of the Revenue, but orders which are treated as erroneous and prejudicial to the interest of the Revenue, but orders which are treated as erroneous and prejudicial to the interest of the Revenue, but orders which are passed after inquiry/investigation on the question/issue are not per se or normally treated passed after inquiry/investigation on the question/issue are not per se or normally treated passed after inquiry/investigation on the question/issue are not per se or normally treated as erroneous and prejudicial to the interest of the Revenue becau as erroneous and prejudicial to the interest of the Revenue because the revisionary se the revisionary authority feels and opines that further inquiry/investigation was required or deeper or authority feels and opines that further inquiry/investigation was required or deeper or authority feels and opines that further inquiry/investigation was required or deeper or further scrutiny should be undertaken. further scrutiny should be undertaken. INCOME TAX OFFICER vs. DG HOUSING PROJECTS LTD343 ITR 329 (Delhi) INCOME TAX OFFICER vs. DG HOUSING PROJECTS LTD343 ITR 329 (Delhi) Revenue does not have any right to appeal Revenue does not have any right to appeal to the first appellate authority against an to the first appellate authority against an order passed by the Assessing Officer. S. 263 has been enacted to empower the CIT to order passed by the Assessing Officer. S. 263 has been enacted to empower the CIT to order passed by the Assessing Officer. S. 263 has been enacted to empower the CIT to exercise power of revision and revise any order passed by the Assessing Officer, if two exercise power of revision and revise any order passed by the Assessing Officer, if two exercise power of revision and revise any order passed by the Assessing Officer, if two cumulative conditions are satisfied. Fi cumulative conditions are satisfied. Firstly, the order sought to be revised should be rstly, the order sought to be revised should be erroneous and secondly, it should be prejudicial to the interest of the Revenue. The erroneous and secondly, it should be prejudicial to the interest of the Revenue. The erroneous and secondly, it should be prejudicial to the interest of the Revenue. The expression "prejudicial to the interest of the Revenue" is of wide import and is not expression "prejudicial to the interest of the Revenue" is of wide import and is not expression "prejudicial to the interest of the Revenue" is of wide import and is not confined to merely loss of tax. The te confined to merely loss of tax. The term "erroneous" means a wrong/incorrect decision rm "erroneous" means a wrong/incorrect decision deviating from law. This expression postulates an error which makes an order deviating from law. This expression postulates an error which makes an order deviating from law. This expression postulates an error which makes an order unsustainable in law. The Assessing Officer is both an investigator and an adjudicator. If the Assessing Officer as The Assessing Officer is both an investigator and an adjudicator. If the Assessing Officer as The Assessing Officer is both an investigator and an adjudicator. If the Assessing Officer as an adjudicator decides a question or aspect and makes a wrong assessment which is decides a question or aspect and makes a wrong assessment which is decides a question or aspect and makes a wrong assessment which is unsustainable in law, it can be corrected by the Commissioner in exercise of revisionary unsustainable in law, it can be corrected by the Commissioner in exercise of revisionary unsustainable in law, it can be corrected by the Commissioner in exercise of revisionary power. As an investigator, it is incumbent upon the Assessing Officer to investigate the power. As an investigator, it is incumbent upon the Assessing Officer to investigate the power. As an investigator, it is incumbent upon the Assessing Officer to investigate the facts required to be examined and verified to compute the taxable income. If the Assessing red to be examined and verified to compute the taxable income. If the Assessing red to be examined and verified to compute the taxable income. If the Assessing Officer fails to conduct the said investigation, he commits an error and the word Officer fails to conduct the said investigation, he commits an error and the word Officer fails to conduct the said investigation, he commits an error and the word "erroneous" includes failure to make the enquiry. In such cases, the order becomes "erroneous" includes failure to make the enquiry. In such cases, the order becomes "erroneous" includes failure to make the enquiry. In such cases, the order becomes erroneous because enquiry or verification has not been made and not because a wrong ecause enquiry or verification has not been made and not because a wrong ecause enquiry or verification has not been made and not because a wrong order has been passed on merits order has been passed on merits. Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneous, by conduct and himself decide that the order is erroneous, by conducting necessary enquiry, if ing necessary enquiry, if required and necessary, before the order under s. 263 is passed. In such cases, the order of required and necessary, before the order under s. 263 is passed. In such cases, the order of required and necessary, before the order under s. 263 is passed. In such cases, the order of the Assessing Officer will be erroneous because the order passed is not sustainable in law the Assessing Officer will be erroneous because the order passed is not sustainable in law the Assessing Officer will be erroneous because the order passed is not sustainable in law and the said finding must be recorded. CIT can and the said finding must be recorded. CIT cannot remand the matter to the Assessing not remand the matter to the Assessing Officer to decide whether the findings recorded are erroneous. Officer to decide whether the findings recorded are erroneous. In cases where there is In cases where there is inadequate enquiry but not lack of enquiry, again the CIT must give and record a finding inadequate enquiry but not lack of enquiry, again the CIT must give and record a finding inadequate enquiry but not lack of enquiry, again the CIT must give and record a finding that the order/inquiry made is erroneous. that the order/inquiry made is erroneous. This can happen if an enquiry and verification This can happen if an enquiry and verification is conducted by the CIT and he is able to establish and show the error or mistake made by is conducted by the CIT and he is able to establish and show the error or mistake made by is conducted by the CIT and he is able to establish and show the error or mistake made by the Assessing Officer, making the order unsustainable in Law. In some cases possibly the Assessing Officer, making the order unsustainable in Law. In some cases possibly the Assessing Officer, making the order unsustainable in Law. In some cases possibly though rarely, the CIT can also s though rarely, the CIT can also show and establish that the facts on record or inferences how and establish that the facts on record or inferences drawn from facts on record per se drawn from facts on record per se justified and mandated further enquiry or investigation justified and mandated further enquiry or investigation but the Assessing Officer had erroneously not undertaken the same. However, the said but the Assessing Officer had erroneously not undertaken the same. However, the said but the Assessing Officer had erroneously not undertaken the same. However, the said finding must be clear, u finding must be clear, unambiguous and not debatable. The matter cannot be remitted for The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding a fresh decision to the Assessing Officer to conduct further enquiries without a finding a fresh decision to the Assessing Officer to conduct further enquiries without a finding

29 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. that the order is erroneous. that the order is erroneous. Finding that the order is erroneous is a condition or Finding that the order is erroneous is a condition or requirement which mu requirement which must be satisfied for exercise of jurisdiction under s. 263 of the Act. In st be satisfied for exercise of jurisdiction under s. 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply and mean such matters, to remand the matter/issue to the Assessing Officer would imply and mean such matters, to remand the matter/issue to the Assessing Officer would imply and mean the CIT has not examined and decided whether or not the order is erroneous but has the CIT has not examined and decided whether or not the order is erroneous but has the CIT has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question. Assessing Officer to decide the aspect/question. This distinction must be kept in mind by the CIT while exercising jurisdiction under s. 263 This distinction must be kept in mind by the CIT while exercising jurisdiction under s. 263 This distinction must be kept in mind by the CIT while exercising jurisdiction under s. 263 of the Act and in the absence of the finding that the order is erroneous and prejudicial to of the Act and in the absence of the finding that the order is erroneous and prejudicial to of the Act and in the absence of the finding that the order is erroneous and prejudicial to the interest of Revenue the interest of Revenue, exercise of jurisdiction under the said section is not sustainable. , exercise of jurisdiction under the said section is not sustainable. In most cases of alleged "inadequate investigation", it will be difficult to hold that the order most cases of alleged "inadequate investigation", it will be difficult to hold that the order most cases of alleged "inadequate investigation", it will be difficult to hold that the order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, i of the Assessing Officer, who had conducted enquiries and had acted as an investigator, i of the Assessing Officer, who had conducted enquiries and had acted as an investigator, is erroneous, without CIT conducting verification/inquiry. The order of the Assessing Officer erroneous, without CIT conducting verification/inquiry. The order of the Assessing Officer erroneous, without CIT conducting verification/inquiry. The order of the Assessing Officer may be or may not be wrong. CIT cannot direct reconsideration on this ground but only may be or may not be wrong. CIT cannot direct reconsideration on this ground but only may be or may not be wrong. CIT cannot direct reconsideration on this ground but only when the order is erroneous. when the order is erroneous. An order of remit cannot be passed by the CIT to An order of remit cannot be passed by the CIT to ask the Assessing Officer to decide whether the order was erroneous. This is not permissible. An Assessing Officer to decide whether the order was erroneous. This is not permissible. An Assessing Officer to decide whether the order was erroneous. This is not permissible. An order is not erroneous, unless the CIT hold and records reasons why it is erroneous. An order is not erroneous, unless the CIT hold and records reasons why it is erroneous. An order is not erroneous, unless the CIT hold and records reasons why it is erroneous. An order will not become erroneous because on remit, the Assessing Office order will not become erroneous because on remit, the Assessing Officer may decide that r may decide that the order is erroneous. Therefore CIT must after recording reasons hold that the order is the order is erroneous. Therefore CIT must after recording reasons hold that the order is the order is erroneous. Therefore CIT must after recording reasons hold that the order is erroneous. The jurisdictional precondition stipulated is that the CIT must come to the erroneous. The jurisdictional precondition stipulated is that the CIT must come to the erroneous. The jurisdictional precondition stipulated is that the CIT must come to the conclusion that the order is erroneous and is unsustainable i conclusion that the order is erroneous and is unsustainable in law. It may be noticed that n law. It may be noticed that the material which the CIT can rely includes not only the record as it stands at the time the material which the CIT can rely includes not only the record as it stands at the time the material which the CIT can rely includes not only the record as it stands at the time when the order in question was passed by the Assessing Officer but also the record as it when the order in question was passed by the Assessing Officer but also the record as it when the order in question was passed by the Assessing Officer but also the record as it stands at the time of examination by the CIT. N stands at the time of examination by the CIT. Nothing bars/prohibits the CIT from othing bars/prohibits the CIT from collecting and relying upon new/additional material/evidence to show and state that the collecting and relying upon new/additional material/evidence to show and state that the collecting and relying upon new/additional material/evidence to show and state that the order of the Assessing Officer is erroneous. order of the Assessing Officer is erroneous. COMMISSIONER OF INCOME TAX vs. J. L. MORRISON (INDIA) LTD. 366 ITR COMMISSIONER OF INCOME TAX vs. J. L. MORRISON (INDIA) LTD. 366 ITR 593 As regard the submission on behalf of the Revenue that power under Section 263 of the As regard the submission on behalf of the Revenue that power under Section 263 of the As regard the submission on behalf of the Revenue that power under Section 263 of the Act can be exercised even in a case where the issue is debatable, it was held that the case Act can be exercised even in a case where the issue is debatable, it was held that the case Act can be exercised even in a case where the issue is debatable, it was held that the case of CIT vs. M. M. Khambhatwala was not applicable. The observation that the of CIT vs. M. M. Khambhatwala was not applicable. The observation that the of CIT vs. M. M. Khambhatwala was not applicable. The observation that the Commissioner can exercise power under Section 263 of the Act even in a case were the missioner can exercise power under Section 263 of the Act even in a case were the missioner can exercise power under Section 263 of the Act even in a case were the issue is debatable was a mere passing remark which is again contrary to the view taken issue is debatable was a mere passing remark which is again contrary to the view taken issue is debatable was a mere passing remark which is again contrary to the view taken by the Apex Court in thecase of Malabar Industrial Company Ltd. & Max India Ltd. If the by the Apex Court in thecase of Malabar Industrial Company Ltd. & Max India Ltd. If the by the Apex Court in thecase of Malabar Industrial Company Ltd. & Max India Ltd. If the Assessing Officer has taken a possible view, it cannot be said that the view taken by him is Assessing Officer has taken a possible view, it cannot be said that the view taken by him is Assessing Officer has taken a possible view, it cannot be said that the view taken by him is erroneous nor the order of the Assessing Officer in that case can be set aside in revision. It erroneous nor the order of the Assessing Officer in that case can be set aside in revision. It erroneous nor the order of the Assessing Officer in that case can be set aside in revision. It has to be shown unmistakably that the order of the Assessing Office has to be shown unmistakably that the order of the Assessing Officer is unsustainable. r is unsustainable. Anything short of that would not clothe the CIT with jurisdiction to exercise power under Anything short of that would not clothe the CIT with jurisdiction to exercise power under Anything short of that would not clothe the CIT with jurisdiction to exercise power under Section 263 of the Act. CIT vs. M. M. Khambhatwala reported in 198 ITR 144; CIT vs. Section 263 of the Act. CIT vs. M. M. Khambhatwala reported in 198 ITR 144; CIT vs. Section 263 of the Act. CIT vs. M. M. Khambhatwala reported in 198 ITR 144; CIT vs. Ralson Industries Ltd. reported in 288 ITR 322 (SC), not appli Ralson Industries Ltd. reported in 288 ITR 322 (SC), not applicable; Malabar Industrial cable; Malabar Industrial Co. Ltd. v. CIT reported in 243 ITR 83, relied on. Co. Ltd. v. CIT reported in 243 ITR 83, relied on. (Para 72) As regard the third question as to whether the assessment order was passed by the As regard the third question as to whether the assessment order was passed by the As regard the third question as to whether the assessment order was passed by the Assessing Officer without application of mind, it was held that the Court has to start Assessing Officer without application of mind, it was held that the Court has to start Assessing Officer without application of mind, it was held that the Court has to start with the presumption that the assessment order was regularly passed. There is evidence to the presumption that the assessment order was regularly passed. There is evidence to the presumption that the assessment order was regularly passed. There is evidence to show that the assessing officer had required the assessee to answer 17 questions and to show that the assessing officer had required the assessee to answer 17 questions and to show that the assessing officer had required the assessee to answer 17 questions and to file documents in regard thereto. It is difficult to proceed on the basis that file documents in regard thereto. It is difficult to proceed on the basis that file documents in regard thereto. It is difficult to proceed on the basis that the 17 questions raised by him did not require application of mind. Without application of mind questions raised by him did not require application of mind. Without application of mind questions raised by him did not require application of mind. Without application of mind the questions raised by him in the annexure to notice under Section 142 (1) of the Act the questions raised by him in the annexure to notice under Section 142 (1) of the Act the questions raised by him in the annexure to notice under Section 142 (1) of the Act could not have been formulated. The Assessing Officer was required to ex could not have been formulated. The Assessing Officer was required to examine the return amine the return filed by the assessee in order to ascertain his income and to levy appropriate tax on that filed by the assessee in order to ascertain his income and to levy appropriate tax on that filed by the assessee in order to ascertain his income and to levy appropriate tax on that basis. When the Assessing Officer was satisfied that the return, filed by the assessee, was in basis. When the Assessing Officer was satisfied that the return, filed by the assessee, was in basis. When the Assessing Officer was satisfied that the return, filed by the assessee, was in accordance with law, he was under no obligation to ju accordance with law, he was under no obligation to justify as to why was he satisfied. On stify as to why was he satisfied. On the top of that the Assessing Officer by his order dated 28 the top of that the Assessing Officer by his order dated 28th March, 2008 did not adversely March, 2008 did not adversely affect any right of the assessee nor was any civil right of the assessee prejudiced. He was affect any right of the assessee nor was any civil right of the assessee prejudiced. He was affect any right of the assessee nor was any civil right of the assessee prejudiced. He was as such under no obligation in law as such under no obligation in law to give reasons. The fact, that all requisite papers were to give reasons. The fact, that all requisite papers were summoned and thereafter the matter was heard from time to time coupled with the fact summoned and thereafter the matter was heard from time to time coupled with the fact summoned and thereafter the matter was heard from time to time coupled with the fact that the view taken by him is not shown by the revenue to be erroneous and was also that the view taken by him is not shown by the revenue to be erroneous and was also that the view taken by him is not shown by the revenue to be erroneous and was also considered both by the Tribun considered both by the Tribunal as also by us to be a possible view, strengthens the al as also by us to be a possible view, strengthens the presumption under Clause (e) of Section 114 of the Evidence Act. A prima facie evidence, presumption under Clause (e) of Section 114 of the Evidence Act. A prima facie evidence, presumption under Clause (e) of Section 114 of the Evidence Act. A prima facie evidence, on the basis of the aforesaid presumption, is thus converted into a conclusive proof of the on the basis of the aforesaid presumption, is thus converted into a conclusive proof of the on the basis of the aforesaid presumption, is thus converted into a conclusive proof of the fact that the order was passed by the assessing officer after due application of mind. was passed by the assessing officer after due application of mind. was passed by the assessing officer after due application of mind.

30 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. Meerut Roller Flour Mills Pvt. Ltd. vs. C.I.T., ITA No. 116 /Coch/ 2012; CIT vs. Infosys Meerut Roller Flour Mills Pvt. Ltd. vs. C.I.T., ITA No. 116 /Coch/ 2012; CIT vs. Infosys Meerut Roller Flour Mills Pvt. Ltd. vs. C.I.T., ITA No. 116 /Coch/ 2012; CIT vs. Infosys Technologies Ltd., 341 ITR 293 (Karnataka); S.N. Mukherjee vs. Union of India, AIR 1990 Technologies Ltd., 341 ITR 293 (Karnataka); S.N. Mukherjee vs. Union of India, AIR 1990 Technologies Ltd., 341 ITR 293 (Karnataka); S.N. Mukherjee vs. Union of India, AIR 1990 SC 1984; A. A. Doshi vs. JCIT, 256 ITR 685; Hindusthan Tin Works Ltd. Vs. CIT, 275 ITR 43 A. Doshi vs. JCIT, 256 ITR 685; Hindusthan Tin Works Ltd. Vs. CIT, 275 ITR 43 A. Doshi vs. JCIT, 256 ITR 685; Hindusthan Tin Works Ltd. Vs. CIT, 275 ITR 43 (Del), distinguished. (Paras 90-92, 102) COMMISSIONER OF INCOME TAX vs. SOHANA WOOLLEN MILLS 296 ITR 238 (P&H HC) COMMISSIONER OF INCOME TAX vs. SOHANA WOOLLEN MILLS 296 ITR 238 (P&H HC) A reference to the provisions of s. 263 shows that jurisdicti A reference to the provisions of s. 263 shows that jurisdiction thereunder can be exercised on thereunder can be exercised if the CIT finds that the order of the AO was erroneous and prejudicial to the interest of if the CIT finds that the order of the AO was erroneous and prejudicial to the interest of if the CIT finds that the order of the AO was erroneous and prejudicial to the interest of Revenue. Mere audit objection and merely because a different view could be taken, were Revenue. Mere audit objection and merely because a different view could be taken, were Revenue. Mere audit objection and merely because a different view could be taken, were not enough to say that the order of the AO was not enough to say that the order of the AO was erroneous or prejudicial to the interest of erroneous or prejudicial to the interest of the Revenue. The jurisdiction could be exercised if the CIT was satisfied that the basis for the Revenue. The jurisdiction could be exercised if the CIT was satisfied that the basis for the Revenue. The jurisdiction could be exercised if the CIT was satisfied that the basis for exercise of jurisdiction existed. No rigid rule could be laid down about the situation when exercise of jurisdiction existed. No rigid rule could be laid down about the situation when exercise of jurisdiction existed. No rigid rule could be laid down about the situation when the jurisdiction can be exe the jurisdiction can be exercised. Whether satisfaction of the CIT for exercising rcised. Whether satisfaction of the CIT for exercising jurisdiction was called for or not, has to be decided having regard to a given fact jurisdiction was called for or not, has to be decided having regard to a given fact jurisdiction was called for or not, has to be decided having regard to a given fact situation. In the present case, the Tribunal has held that the assessee had disclosed that situation. In the present case, the Tribunal has held that the assessee had disclosed that situation. In the present case, the Tribunal has held that the assessee had disclosed that out of sale consideration, out of sale consideration, a sum of Rs. 1 lakh was to be received for sale of permit. If that is a sum of Rs. 1 lakh was to be received for sale of permit. If that is so, there was no error in the view taken by the AO and no case was made out for invoking so, there was no error in the view taken by the AO and no case was made out for invoking so, there was no error in the view taken by the AO and no case was made out for invoking jurisdiction under s. 263. jurisdiction under s. 263. 11. In view of the above discussion and applying the proposition of In view of the above discussion and applying the proposition of In view of the above discussion and applying the proposition of law laid down in the above case law to the facts of this case to the facts of this case and specifically applying the decision of the and specifically applying the decision of the Tribunal in the case of M/s. M/s. Amritrashi Infra Private Ltd. (supra) and in the case of and in the case of M/s. Omkar Infrastructure Pvt. Ltd. (supra) Omkar Infrastructure Pvt. Ltd. (supra) to the facts of the case on hand, we have to to the facts of the case on hand, we have to necessarily hold that the exercise of revisionary power by the ld. Pr. CIT, u/s 263 of the necessarily hold that the exercise of revisionary power by the ld. Pr. CIT, u/s 263 of the necessarily hold that the exercise of revisionary power by the ld. Pr. CIT, u/s 263 of the Act, vide order dt. 27/03/2019, is bad in law. /03/2019, is bad in law. The Assessing Officer in the second round The Assessing Officer in the second round of assessment proceedings, has of assessment proceedings, has followed all the instructions given by the ld. Pr. CIT in followed all the instructions given by the ld. Pr. CIT in his first order passed u/s 263 of the Act on 07/09/2016. This is not a case of non his first order passed u/s 263 of the Act on 07/09/2016. This is not a case of non his first order passed u/s 263 of the Act on 07/09/2016. This is not a case of non- enquiry or non-application of mind. The Assessing Officer has examined all the application of mind. The Assessing Officer has examined all the application of mind. The Assessing Officer has examined all the evidences and taken a possible view. evidences and taken a possible view. Just because the total income determined by the the total income determined by the Assessing Officer in the second round of assessment proceedings, is less than the Assessing Officer in the second round of assessment proceedings, is less than the Assessing Officer in the second round of assessment proceedings, is less than the income determined in the first assessment proceedings, the order does not become income determined in the first assessment proceedings, the order does not become income determined in the first assessment proceedings, the order does not become erroneous. In adequate enquiry does not warr erroneous. In adequate enquiry does not warrant invocation of powers u/s 263 of the ant invocation of powers u/s 263 of the Act. Hence we quash the same and allow the appeal of the assessee. Hence we quash the same and allow the appeal of the assessee.

Kolkata, the Kolkata, the 16th day of April, 2021.

Sd/- Sd/- J. Sudhakar Reddy] [Aby T. Varkey] [J. Sudhakar Judicial Member Accountant Member Accountant Member Dated : 16.04.2021 {SC SPS}

31 ITA No. 1176/Kol/2019 Assessment Year: 2012-13 Nextgen Vyapaar (P) Ltd. Copy of the order forwarded to: 1. Nextgen Vyapaar (P) Ltd C/o Subash Agarwal & Associates, Advocates C/o Subash Agarwal & Associates, Advocates Siddha Gibson 1, Gibson Lane Suite -213 2nd Floor Kolkata – 700 069