DINESH KUMAR,NEW DELHI vs. PR. CIT, CENTRAL- 2, NEW DELHI

The Pr. CIT has erred in passing the order u/s 263 directing the AO to examine the balance of Rs. 18,87,160/- shown in the personal balance sheet and addition of Rs.58,500/- during the year in the suspense account by overlooking the detailed ledger of suspense account containing details of all entries outstanding in the alleged suspense account filed before him in proceedings u/s 263.

That the appellant craves leave to add, alter, modify any of grounds at the time of hearing or before the hearing.” Further, upon verifying from each file, it is observed that grounds raised

The assessment records of your case for the A.Y. 2008-09 were called for and examined by the undersigned. From perusal of the assessment records, it is seen that the assessment order passed by the Assessing Officer (A.O) , Central Circle-19, New Delhi u/s 153C/143(3) of the Income Tax Act, 1961 on 31.3.2016 is appears to be erroneous and prejudicial to the interest of revenue as per observations given hereunder: (a) It is seen from the Balance Sheet of the assessment records that there was a Suspense A/c to the tune of Rs.18,28,660/- which was not verified by the AO during the assessment proceedings. Thus, this approach on the part of an AO for not verifying the suspense a/c amount shown by assessee is prima facie appears to be erroneous so as to cause prejudice to the interest of Revenue. Thus, the assessment order passed in your case is appears to be erroneous and prejudicial to the interest of the revenue for the reasons stated as above. In view of the aforesaid facts, you are hereby required to show cause as to why the assessment order passed in your case by the Assessing Officer, Central Circle-19, New Delhi on 31.03.2016, for A.Y. 2008-09, may not be considered as erroneous and prejudicial to the interest of the revenue as per the provisions of section 263 of the Income tax Act, 1961. You are hereby given an opportunity to file submissions on the issues raised, on 19.03.2018 at 2.35 PM. You are required to attend this office, either in person or through a representative duly authorized in writing in this behalf, 4 ITA Nos. 2395 to 2398/Del/18 AYs-2008-09, 2009-10, 2010-11 and 2013-14 Sh. Dinesh Kumar vs. Pr.CIT, Central 2, N.Del. or produce or cause there to be produced at the said time any document, account and any other evidence on which you may rely in support of your contentions. You are also intimated that if nothing is received from your end, then it will be presumed that you have nothing to submit on the issues contained above and your case will be decided on the basis of material available on the record and as per the provisions of the Income Tax Act, 1961. Sd/-(RKS Pandya) Pr.CIT, Central-2, New Delhi” 2.3. Assessee in response to show cause notice filed its reply dated 19/03/18, wherein it was submitted that during assessment proceedings assessee vide reply dated 07/03/16 furnished copy of bank statements of all accounts maintained during the year and Ld. AO verified all details before passing assessment order. 2.4. Ld. CIT on perusal of reply of assessee observed and held as under: “4. I have perused the assessment records and submissions made by the assessee in this case. There was no bifurcation of suspense account of Rs. 18,28,660/- submitted by the assessee during the course of assessment proceeding before the A.O. There was no query raised by the AO and no submission made by the assessee and no verification done by the A.O. that amount in suspense account is received through proper banking channel and disclosed in the bank account of the assessee. Issue raised in the show-cause notice was made without proper examination/verification in the face of clear requirement and obligation of the AO to have verified and considered the impact of transaction in suspense a/c on the taxable income of assessee. In to 2398/Del/18 AYs-2008-09, 2009-10, 2010-11 and 2013-14 Sh. Dinesh Kumar vs. Pr.CIT, Central 2, N.Del. this case, while making assessment for Assessment Year 2008-09, the A.O. has accepted the balance sheet showing suspense account of Rs.18,28,660/- without proper examination/verification. I, thus, hold that the assessment order passed in the case of the assessee by the Assessing Officer, Central Circle-19, New Delhi on 31.03.2016 u/s. 153A/143(3) is erroneous and prejudicial to the interest of revenue. Thus, the said order is set aside and the assessment proceedings are restored back to the file of the Assessing Officer on the aforesaid issue only. The AO is directed to frame the assessment afresh as per the provisions of the Income Tax Act, after affording the assessee an opportunity of being heard and after making proper inquiries and verifications. The AO shall note that during fresh assessment, AO shall restrict himself to examining the transaction in Suspense A/c and taking such examination to its logical culmination as per law only. He shall also afford due opportunity to assessee as per law.

On the contrary Ld.CIT,DR submitted that during the assessment proceedings under section 153A read with 143 (3) of the Act, additions were made on account of unaccounted cash deposits and queries raised by Assessing Officer related to the cash deposits found by Ld. AO in the bank statements filed by assessee. She submitted that there has been no enquiry initiated by Ld. AO regarding details of monies deposited in suspense account and therefore Ld. CIT held assessment order to be erroneous and prejudicial to interest of revenue. She submitted that Assessing Officer is both an investigator as well as an adjudicator and is required to make proper enquiries and conduct verification before accepting statements of accounts filed by assessee. 5.1. Regarding the applicability of decision of Hon’ble Delhi High Court in the case of CIT vs Kabul Chawla, she submitted that upon notice being issued under section 153A, Assessing Officer is empowered to reopen proceedings under section 143 (1) (A) or 143 (3) to assessee or reassess total income, taking note of undisclosed income if any. She further submitted that unaccounted cash deposits were found during search and seizure operations which has triggered completion of assessment u/s 153A of the Act. Ld.A.O. has therefore correctly completed the assessment u/s 153A in respect of all six Assessment years to compute undisclosed income in the hands of assessee. 5.2. She submitted that for issuance of notice under section 263, there is no embargo for incriminating material to be to 2398/Del/18 AYs-2008-09, 2009-10, 2010-11 and 2013-14 Sh. Dinesh Kumar vs. Pr.CIT, Central 2, N.Del. available. Sec.263 proceedings according to Ld.CIT, DR is initiated by Ld.CIT when he finds, assessment order passed under section 143 (3) of the Act or 153A read with 143 (3) of the Act or under section 147 read with 148 of the Act is erroneous as well as prejudicial to interest of revenue. 5.3. She thus submitted that sec.263 proceedings has been rightly initiated as Assessing Officer has failed to verify the audited accounts with specific reference to the suspense account of assessee, while passing assessment order under section 153A read with 143 (3) of the Act.

We have perused the submissions advanced by both the sides in the light of the records placed before us.

At the outset we do not agree with the submissions advanced by Ld.AR regarding sec.263 proceedings being bad in law. The view canvassed by Ld.CIT, D.R. regarding validity of assessment u/s 153A, in our considered opinion is what Hon’ble High Court has held in case of CIT vs. Anil Kumar Bhatia reported in (2012) 24 taxmann.com 98. Moreover, now Explanation 2 to Section 263 of the Act is inserted in the statute which is declaratory and claraficatory in nature to declare the law and provide clarity on the issue whereby if the A.O. failed to make any enquiry or necessary verification which should have been made, the order becomes erroneous in so far as it is prejudicial to the interest of revenue. Hon’ble Supreme Court in the case of Malabar Industrial Company Limited v. CIT reported in (2000) 109 Taxman 66 (SC) held that if AO accepted the entry in the statement of account filed by the taxpayer without making enquiry, the said order of the AO shall be deemed to be erroneous ITA Nos. 2395 to 2398/Del/18 AYs-2008-09, 2009-10, 2010-11 and 2013-14 Sh. Dinesh Kumar vs. Pr.CIT, Central 2, N.Del. in so far as it is prejudicial to the interest of the Revenue. In our considered opinion, the facts of the case of the assessee company are similar to the facts in the case of Malabar Industrial Co. Limited(supra) whereby no enquiry/verification is made by the AO whatsoever with respect to monies shown under the head ‘suspense account’. In our considered view, the CIT has rightly invoked the provisions of section 263 of the Act as Ld.AO failed to make proper enquiry, examination and verifications as warranted for the proper completion of the assessment, with respect to monies shown under the head ‘suspense account’. 7.1. It is correctly pointed out by Ld.CIT-DR, section 263 has been enacted to empower CIT to exercise power of revision and revise any order passed by Assessing Officer if two cumulative conditions are satisfied, where the order sought to be revised should be erroneous and it should be prejudicial to the interest of revenue. In the facts of the present case, admittedly Assessing Officer at assessment stage has not verified amount shown under “suspense account”. It is very apparent that Assessing Officer has not verified its sources and mode of deposit. 7.2. In our view this is clear case of “no enquiry” and therefore, Ld.CIT was right in initiating proceedings under section 263 of the Act. Further, it is observed that, Ld.CIT has specifically directed Assessing Officer to restrict examination of transactions in suspense account and taking such examination to its logical conclusion as per law. We therefore do not find any infirmity in to 2398/Del/18 AYs-2008-09, 2009-10, 2010-11 and 2013-14 Sh. Dinesh Kumar vs. Pr.CIT, Central 2, N.Del. order passed by Ld. CIT under section 263 of the Act as there is no injustice that is caused to assessee. 7.3. Assessing Officer is directed to follow the directions of Ld. CIT by affording assessee an opportunity of being heard.

Facts for all the years under consideration are identical and Ld.CIT had initiated proceedings u/s 263 for verification of suspense a/c which was overlooked by Ld.AO during original assessment proceedings. Accordingly, the grounds raised