DHARMENDRA MEHTA,JAIPUR vs. PRINCIPAL COMMISSIONER OF INCOME TAX-2, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”B” JAIPUR MkWa- ,l-lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ fu/kZkj.k o"kZ@Assessment Years : 2012-13 cuke Dharmendra Mehta Principal Commissioner of Income 36 Kalyan Colony, Vs. Tax-2, Jaipur. Malviya Nagar, Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AHQPM 7381 P vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Manish Agarwal (C.A.) jktLo dh vksj ls@ Revenue by : Shri Avadhesh Kumar (CIT) lquokbZ dh rkjh[k@ Date of Hearing 14/03/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 13/04/2023 vkns'k@ ORDER PER: DR. S. SEETHALAKSHMI, J.M.

This appeal filed by the assessee aggrieved from the order of the Learned Principal Commissioner of Income Tax, Jaipur-2 [hereinafter referred to as “PCIT”], dated 24.03.2022 for the assessment year 2012-13 passed under section 263 of the Income Tax Act [ here in after referred as Act ] which turn arise from the order of the assessing officer passed under section 143(3) read with section 147 of the Act passed on 05.08.2019.

Dharmendra Mahta vs. PCIT 2. The assessee has raised the following in this appeal grounds: - “1. In the facts and circumstances of the case and in law the ld. PCIT has erred in exercising the revisionary powers by passing the order u/s 263 of I.T. Act, 1961 setting aside the order passed u/s 147 r.w.s. 143(3) dated 05.08.2019. The action of the ld. PCIT is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the order passed u/s 263.

3. The appellant craves his rights to add, amend or alter any of the grounds on or before the hearing.”

3.1 In this case originally no return of income was filed by the assessee for A. Y. 2011-12. The ld. AO found from the record that the assessee sold immovable property for an aggregate amount of Rs. 50,03,552/- and Dharmendra Mahta vs. PCIT also deposited cash in bank account. Therefore, as per reasons recorded for issuance of notice u/s 148, the case of the assessee was reopened to examine: (i) sale of immovable property i.e. Flat at Plot No. D-191, D Block, Malviya Naga, Jaipur for Rs.34,51,000/-, Plot No. 33, Nandpuri Yojna, Malviya Nagar,Jaipur for Rs7,52,552/- (DLC value) & Plot No. 276, Jagatpura, Jaipur for Rs.8,00,000/-(DLC Value) totaling to Rs.50,03,552/- (DLC Value) and also (ii) Deposit of cash of Rs.9,98,000/- in bank account with HDFC Bank. 3.2 In compliance to the notice the assessee filed the return of income declaring total income at Rs. 4,91,830/-. Various details and explanations as required to examine the above-mentioned issues were sought by ld.AO, in response to which assessee furnished written submission alongwith supporting documentary evidences, such as bank account statement, cash statement and Sale deeds etc. After thorough examination of the details filed, ld. AO completed the assessment at Returned Income vide order dated 05.08.2019.

4. After culmination of the assessment proceeding the ld. PCIT, Jaipur-2, initiated revision proceedings u/s 263 based on the following facts that he observed from the assessment record:- “1. The claim made by the assessee to file the return u/s 44Ad does not hold good on account of absence of any previous years returns and the latest ITR on record.

Dharmendra Mahta vs. PCIT 2. The mismatch of the source of cash deposits made by the assessee was not verified to the tune of Rs. 1,59,000/- (10,57,000-8,98,000)/ The source of deposit of Rs. 7,98,000/- (4,00,000+3,98,000) have not been enquired into as to whether same were out of withdrawal shown by the assessee on specified dates.

3. Payment of Rs. 28,30,000/- (70,81,000-42,51,000) received through cheque by the assessee as per the bank statements found on record has not been discussed and verified by the AO.”

8. Accordingly, by virtue of powers conferred on the undersigned under the provisions of section 263 of the Income Tax Act 1961, I hold that the order under Section 143 (3) read with section 147 of the IT Act dated 05.08.2019 for AY 2012-13 passed by the Assessing Officer is erroneous in so far as it prejudicial to the interest of revenue as the said order has been passed by the Assessing Officer in a routine and perfunctory manner without considering the issues in hand. The order of the Assessing Officer is therefore liable to revision under the clause (a) & (b) of Explanation (2) to section 263 of the Income Tax Act. Hence, the assessment order is set aside as discussed above to be done de- novo after affording an opportunity to the assessee.”

6. Feeling dissatisfied from the order of the PCIT the assessee preferred this appeal before the tribunal on the grounds as reiterated here in above. To support the grounds so raised the ld. AR of the assessee has filed the detailed written submission as extracted here in below: GROUNDS OF APPEAL NO. 1 & 2: In both these grounds of appeal, assessee has challenged the action of ld. PCIT in exercising the Revisionary powers u/s 263 and thereby holding the order passed by ld.AO u/s 143(3) r.w.s.147 as erroneous and prejudicial to the interest of the revenue. In this regard, at the outset, it is submitted that ld. PCIT has proceeded in a very casual and slipshod manner and has overlooked the facts as well as details filed by the assessee which are not only available on the record of ld. AO but also submitted by assessee on two different occasions (APB 1-5), during the course of Revision Proceedings, physically as well as online through e-filing portal.

Dharmendra Mahta vs. PCIT In these replies it was submitted that assessment was reopened u/s 148 to examine two issues i.e. (i) Sale of three immovable properties i.e. Flat at Plot No. D-191, D Block, Malviya Naga, Jaipur for Rs.34,51,000/-, Plot No. 33, Nandpuri Yojna, Malviya Nagar,Jaipur for Rs7,52,552/- (DLC value ) & Plot No. 276, Jagatpura, Jaipur for Rs.8,00,000/-(DLC Value) totaling to Rs.50,03,552/- (DLC Value) and also (ii) Cash deposit in bank account with HDFC Bank at Rs.9,98,000/-. At this juncture, kind attention of your honours is invited to notice dated 27.05.2019 issued u/s 142(1) of the Act (APB 8-9), wherein ld.AO inter-alia has sought following details: “……….. b) Please give the detail of all bank accounts as on date with name of bank of bank, branch, type of account, account number. Also produce copy of bank statement for F.Y. 2009-10. …………. d) As per information available on record you have sold immovable property situated at Flat No.G-2, Ground Floor in P.No.33, Nandpuri Malviya Nagar, Jaipur & Plot No. 276, Scheme Vinayak Enclave Granshri Kishanpura, Jagatpura, Jaipur during F.Y. 2011-12 for Rs.15,51,000/-. Please furnish copy of sale deeds and calculation of capital gain on these transaction. ………… 3. Please furnish Cash book and ledger account for F.Y. 2011-12 relevant to AY 2012-13 regarding cash deposits in bank account.

2. Further, you stated that the profit earned from sale of immovable properties are shown u/s 44AD. After considering your submission, you are required to justify with section in which such type of profit can be shown in business income instead of capital gain.”

Dharmendra Mahta vs. PCIT In response to above, again, assessee vide reply dated 22.07.2019 (APB 64-89), furnished relevant details sought including Cash statement duly explaining the source of cash deposit on various dates. After considering both the replies furnished by the assessee, ld. AO passed the assessment order, which duly find mention of the documents furnished by the assessee. In other words, ld.AO after making all the necessary enquiries and after applying his mind on the documents furnished by the assessee and material available on record and after being satisfied with the explanation furnished by the assessee, passed the assessment order u/s 143(3) r.w.s.147 of the Income Tax Act. At this juncture, kind attention of the Hon’ble bench is invited to the observations made by ld. PCIT in para 7 at page 4 of her order, which are reproduced herein below for the sake of convenience: “7. From the above facts and circumstances of the case and having regards to the material available on record, the Assessing officer failed to consider/apply his mind to the information available on record with regard to the receipts declared by the assessee of Rs.42,51,000/- and subsequently received by him in his bank account of Rs.70,81,000/-. Further, AO also did not verify the cash deposited by the assessee in his bak account on or before 07.09.2011 of Rs.8,98,000/-. Thus, the assessment was made without application of mind on the given facts on record. This in turn has resulted in passing of an erroneous order by the Assessing officer in the case due to non application of mind to relevant material, reflecting non appreciation of facts an incorrect application of mind to law which is prejudicial to the interest of the revenue. Thus, the order passed u/s 143(3) on 05.08.2019 is erroneous and prejudicial to the interest of the revenue in terms of judgement of the Hon’ble Supreme Court in the case of Malabar Industrial Limited vs CIT 243 ITR wherein it has been held as under: ………………..” From the perusal of the above, it is evident that the ld. PCIT has held the assessment order passed by ld.AO as erroneous and prejudicial to the interest of revenue on the ground that ld.AO failed to apply his mind regarding: - receipts declared by the assessee of Rs.42,51,000/- and subsequently received by him in his bank account of Rs.70,81,000/- and - not verifying cash deposited by assessee in bank account of Rs.8,98,000/- It is submitted that so far as verification of cash deposits is concerned, ld.AO has examined this issue in depth and the cash statements showing availability of cash for making deposit in bank was also obtained and examined. With regard to the sale consideration, it is submitted that assessee has declared total confirmation of Rs. 50,02,000/- (APB 68) and not 42,51,000/- as has been observed by ld. PCIT. Further sale deeds to confirm that profit on sale of properties has been duly declared in return of Income and bank statements wherein entries on sale of property are duly reflecting were also filed and Dharmendra Mahta vs. PCIT examined. Thus, ld.AO not only obtained all the details necessary for making verification of the issue raised in the reasons recorded but also thoroughly examined the same with reference to the reasons of reopening, and being satisfied with the material furnished before him and after due application of mind no additions were made. At this juncture, kind attention of Hon’ble bench is invited to Explanation 2 inserted in section 263 by Finance Act, 2015, w.e.f. 01.06.2015, which has widened the powers of CIT to revise the already completed assessment and in the present case ld, PCIT has taken shelter of clause (a) and (b) of the same, which reads as under: Explanation 2.—For the purposes of this section, it is hereby declared that an order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue, if, in the opinion of the Principal Commissioner or Commissioner,— (a) the order is passed without making inquiries or verification which should have been made; (b) the order is passed allowing any relief without inquiring into the claim; (c) the order has not been made in accordance with any order, direction or instruction issued by the Board under section 119; or (d) the order has not been passed in accordance with any decision which is prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Court in the case of the assessee or any other person.] A perusal of above clarifies that order passed by assessing officer shall be “deemed to be erroneous and prejudicial to the interest of the revenue if (a) AO has passed such order without making inquiries or verification which should have been made and (b) AO has passed the order allowing any relief without inquiring into the claim.

It is worthwhile to note here that the phrase “which should have been made” here in no way means that enquiries should have been made in manner as desired by PCIT, rather it means that before holding an order to be erroneous, PCIT should have conducted necessary enquiries or verification which brings on record certain material in order to show that the finding given by the assessing officer is erroneous. Further from the perusal of various details filed by the assesse it is evident that no claim of the assesse was allowed without making enquires. In this regard reliance is placed on the following decisions: M/s Hariom Stones Vs. PCIT in wherein the hon’ble bench of Jaipur ITAT has held as under (case law compilation pages 1-23):

Dharmendra Mahta vs. PCIT “7.…Thus, these facts suggest that the Assessing Officer has taken into consideration the material before him and after due application of law and of facts and then reached at the conclusion to conclude the assessment U/s 143(3) of the Act. It was not a case where Assessing Officer completed the assessment without conducting necessary and proper enquiries. The issue raised by the ld. Pr.CIT has been considered by the Assessing Officer at the time of assessment and the assessee has submitted evidences and details in support of its claim made in P&L account. Therefore, in our considered view, the order passed by the Assessing Officer U/s 143(3) of the Act on 24/3/2014 was not an erroneous order, which could be said to be prejudicial to the interest of the revenue. Considering the ratio laid down in various case laws relied upon, we set aside the order passed by the ld. Pr.CIT. Shri Narayan Tatu Rane vs ITO & 2691/Mum/16 (Case laws compilation pages 24-44) dated 06.05.2016 wherein hon’ble Mumbai bench of ITAT has held as under : “20. Further clause (a) of Explanation states that an order shall be deemed to be erroneous, if it has been passed without making enquiries or verification, which should have been made. In our considered view, this provision shall apply, if the order has been passed without making enquiries or verification which a reasonable and prudent officer shall have carried out in such cases, which means that the opinion formed by Ld Pr. CIT cannot be taken as final one, without scrutinising the nature of enquiry or verification carried out by the AO vis-à-vis its reasonableness in the facts and circumstances of the case. Hence, in our considered view, what is relevant for clause (a) of Explanation 2 to sec. 263 is whether the AO has passed the order after carrying out enquiries or verification, which a reasonable and prudent officer would have carried out or not. It does not authorise or give unfettered powers to the Ld Pr. CIT to revise each and every order, if in his opinion, the same has been passed without making enquiries or verification which should have been made. In our view, it is the responsibility of the Ld Pr. CIT to show that the enquiries or verification conducted by the AO was not in accordance with the enquries or verification that would have been carried out by a prudent officer. Hence, in our view, the question as to whether the amendment brought in by way of Explanation 2(a) shall have retrospective or prospective application shall not be relevant.” Sanjeev Kr. Khemka vs Pr. CIT (Kolkatta ITAT) (Case law compilation pages 45-56) “5.1 In view of the above we find that Ld. CIT has passed impugned order u/s. 263 of the Act by holding the order of AO as erroneous in so far as prejudicial to the interest of revenue on account of inadequate enquiry made by AO while passing order u/s. 143(3) of the Act. However, we find that proper and sufficient enquiries were conducted by the AO at the time of assessment as evident from the order of AO. Therefore it cannot be concluded that no proper enquiry has been conducted by the AO at the time of assessment proceedings. The AO has Dharmendra Mahta vs. PCIT taken conscious view after considering the facts and circumstances of the case and giving proper opportunity to the assessee. Thus, the view expressed by AO in the form in his assessment order cannot be replaced with the view of Ld. CIT u/s 263 of the Act. In holding so, we find support and guidance from the judgment of Hon'ble jurisdictional High Court in the case of CIT vs. M/s. J.L. Morrison (India) Ltd.(ITA No 168 of 2011) in GA No 1541 of 2012 dated 15.05.2014, wherein it was held as under:- “By sections 3 and 4, the Indian Income-tax Act, 1922, imposes a general liability to tax upon all income. But the Act does not provide that whatever is received by a person must be regarded as income liable to tax. In all cases in which a receipt is sought to be taxed as income, the burden lies upon the department to prove that it is within the taxing provision.” We also rely on the judgment of the Hon’ble Supreme Court in the case of CIT Vs. Max India Limited reported in 295 ITR 282 wherein it was held as under : “When the CIT passed the impugned order under s. 263, two views were inherently possible on the word "profits" occurring in the proviso to s. 80HHC(3) and therefore, subsequent amendment of s. 80HHC made in the year 2005, though retrospective, did not render the order of the AO erroneous and prejudicial to the interest of the Revenue, and CIT could not exercise powers under s. 263.” In view of the above proposition, and respectfully following principle laid down by the Hon'ble courts and keeping in view all these discussion, as also bearing in mind entirety of the case, we deem it fit and proper to uphold the grievance of the assessee and quash the impugned revision order as devoid of jurisdiction. The assessee gets the relief, accordingly.” It is thus submitted that when the ld.AO has made all the enquires necessary for the completion of assessment, the action of the ld. PCIT in holding such assessment as erroneous and prejudicial to the interest of revenue in terms of clause (a) and (b) of Explanation 2 to section 263 is not permissible as in such situation there would be no end to the proceedings and in each and every case, PCIT will ask the AO to make the enquiry in the manner he likes irrespective of the fact whether the reasonable and sufficient enquiries were already made by the AO or not. LD. PCIT also observed that claim made by the assessee to file the return u/s 44Ad does not hold good on account of absence of any previous year’s return and the latest ITR on record. While observing so ld. PCIT has ignored the vital fact which was submitted by the assessee vide reply dt. 22.07.2019 (APB 64-65) wherein it is categorically stated that the assessment for immediately preceding year i.e. for AY 2011-12 was also completed u/s 148 and the return of income was also filed by the assessee u/s 44AD. Since the record for the previous assessment was available with the ld.AO, such observations of the ld. PCIT Dharmendra Mahta vs. PCIT being contrary to the fact available on record and thus no revision could be made on this wrong observation. Another important aspect which requires the kind attention of the hon’ble bench is that in Revision proceedings, other than cash deposit, ld. PCIT has further observed that ld.AO failed to apply his mind regarding receipts declared by the assessee and the credit entries in his bank account which are more than the receipts declared. In this regard as submitted above, the case of the assesse was reopened by issue of notice u/s 148 for the two reasons First for non-disclosure of capital gains from the sale of three properties and Second for verification of source of cash deposit. Once the ld. AO has examined both of these two issues and found the same in order and no addition is proposed, he has no jurisdiction to enquire on the other issues which were not the subject matter of the reasons recorded. In the scenario, ld. AO had no jurisdiction to make any other addition/disallowance in view of CIT vs Ram Singh (Raj HC) (caselaw compilation pages 57-64) and CIT vs Jet Airways (I) Ltd. (Bom. HC) reported in of 2009 with ITA No. 1526 of 2008 (caselaw compilation pages 65-83). Now in the revision order ld. PCIT held the assessment order as erroneous and prejudicial to the interest of revenue on those issues which are not in the reasons recorded thus ld. PCIT exceeded the jurisdiction given in the reasons recorded and accordingly such directions deserves to be held bad in law. Hon’ble Jaipur bench of ITAT in the case of Radha Govind Lashkari vs PCIT in ITA No. 32/JP2021 has held that : (caselaw compilation pages 84-107) 10. We have considered the rival submissions and the facts and circumstances of the case mentioned supra that the case of the assessee was selected for limited scrutiny and accordingly the ld. AO could not travel beyond his jurisdiction. The AO after taking into consideration the evidences and documents filed by the assessee and on examination of the said documents, and on being satisfied himself, accepted the income returned by the assessee. The ld. Pr. CIT has not mentioned that the AO has not examined the issues raised in the limited scrutiny show cause notice. We, therefore, are of the view that the observations made by the ld. Pr. CIT are beyond the points mentioned for limited scrutiny. Thus we find no force in the order of the ld. Pr. CIT which is quashed.

Dharmendra Mahta vs. PCIT 11. Undoubtedly, the jurisdiction under section 263 is wide and is meant to ensure that due revenue ought to reach the public treasury and if it does not reach on account of some mistake of law or fat committed by the Assessing officer, the CIT can cancel that order and require the concerned Assessing Officer to pass a fresh order in accordance with law after holding a detailed enquiry. But when enquiry in fact has been conducted and the Assessing Officer has reached a particular conclusion, though reference to such enquiries has not been made in the order of the assessment, but the same is apparent from the record of the proceedings, in the present case, without anything to say how and why the enquiry conducted by the Assessing officer was not in accordance with law, the invocation of jurisdiction by the CIT was unsustainable. As the exercise of jurisdiction by the CIT is founded on no material, it was liable to be set aside. Jurisdiction under section 263 cannot be invoked for making short enquiries or to go into the process of assessment again and again merely on the basis that more enquiry ought to have been conducted to find something. Jhunjhunu Kraya Vikraya Sahkari Samiti Ltd. vs PCIT (Jaipur ITAT) (Relevant extracts reproduced): (caselaw compilation pages 111- 138) 11. Clearly, therefore, as long as the action of the Assessing Officer cannot be said to be lacking bonafides, his action in accepting an explanation of the assessee cannot be faulted merely because it could have been lawful to make mere detailed inquiries or because he did not write specific reasons of accepting the explanation. As for learned PCIT's observations regarding accepting the explanation "in a routine and perfunctory manner", there is nothing to question the bonfides of the Assessing Officer or to elaborate as to what should have been 'appropriate' evidence. The fact remains that the specific issue mentioned and has been examined and the contention of the assessee accepted by the Assessing officer. Merely because the Assessing Officer did not write specific reasons for accepting the explanation of the assessee cannot be reason enough to invoke powers under section 263, and non-mentioning of these reasons do not render the assessment order "erroneous and prejudicial to the interest of the revenue".

Dharmendra Mahta vs. PCIT Reliance Industries Ltd. vs PCIT decision dated 01.09.2021 (Mumbai ITAT)(Relevant extracts) (caselaw compilation pages 139-154) 5.In the present case, we find that the issue was duly considered by Ld. AO after considering assessee’s detailed submissions. The view could not be said to be unsustainable view and it was one of the possible view. Therefore, on the given facts and circumstances, we find that the subject matter of proposed revision was already deliberated upon by Ld. AO and a possible was taken in the matter. That view could not be said to be contrary to law, perverse or unsustainable in law, in any manner and the same would be a possible view keeping in mind the assessee’s submissions during reassessment proceedings. This being the case, the assessment order could not be subjected to revision u/s 263 and the action of Ld. Pr.CIT in invoking jurisdiction u/s 263 could not be sustained in the eyes of law. Similar is the view of the Tribunal in assessee’s group concern i.e. M/s Reliance Corporate IT Park Ltd. V/s Pr. CIT (ITA No.2748/Mum/2015 dated 08/03/2017) wherein it has been observed by the coordinate bench that when Ld. AO had applied his mind on the given facts and material on record and took a possible view then such an assessment order could not be cancelled u/s 263 unless it was shown that the view was not tenable either in law or on facts.

7. Finally, on the facts and circumstances of the case, we quash the order passed by Ld. Pr. CIT in terms of settled legal position as enumerated by us in opening paragraphs. Ground nos. 1 to 3 stands allowed which render adjudication of ground no.4 merely academic in nature.

8. The appeal stands allowed in terms of our above order.” Torrent Pharmaceuticals Ltd. vs DCIT: Ahmedabad ITAT I.T.A. No. 164/Ahd/2018 9.5 We thus find merit in the plea of the assessee that the Revisional Commissioner is expected show that the view taken by the AO is wholly unsustainable in law before embarking upon exercise of revisionary powers. The revisional powers cannot be exercised for directing a fuller inquiry to merely find out if earlier view taken is erroneous particularly when a view was already taken after inquiry. If such course of action as interpreted by the Revisional Commissioner in the light of the Explanation 2 is permitted, Revisional Commissioner can possibly find fault with each and every assessment order without himself Dharmendra Mahta vs. PCIT making any inquiry or verification and without establishing that assessment order is not sustainable in law. This would inevitably mean that every order of the lower authority would thus become susceptible to Section 263 of the Act and, in turn, will cause serious unintended hardship to the tax payer concerned for no fault on his part. Apparently, this is not intended by the Explanation. Howsoever wide the scope of Explanation 2(a) may be, its limits are implicit in it. It is only in a very gross case of inadequacy inquiry or where inquiry is per se mandated on the basis of record available before the AO and such inquiry was not conducted, the revisional power so conferred can be exercised to invalidate the action of AO. The AO in the present case has not accepted the submissions of the assessee on various issues summarily but has shown appetite for inquiry and verifications. The AO has passed the order in great detail after making several allowances and disallowances on the issues involved impliedly after due application of mind. Therefore, the Explanation 2 to Section 263 of the Act do not, in our view, thwart the assessment process in the facts and the context of the case. Consequently, we find that the foundation for exercise of revisional jurisdiction is surely missing in the present case. Resultantly, the order of the Pr.CIT passed under s.263 of the Act is set aside and cancelled and the order of the AO under s.143(3) is restored.” Indus Best Hospitality & Realtors Pvt. Ltd vs. PCIT (ITAT Mumbai) S. 263 Revision: Explanation 2 to s. 263 inserted by the FA 2015 (which confers power upon the CIT to revise assessments where inadequate inquiries have been conducted by the AO) is prospective in nature and does not apply even to a case where the CIT passed the order after Explanation 2 came on the statute. The CIT should show that the view taken by the AO is unsustainable in law. The action of the CIT in directing the AO to conduct enquiry in a particular manner is contrary to the law interpreted by the Delhi High Court in CIT v. Goetze (India) Ltd 361 ITR 505. If such course of action is permitted, the CIT can find fault with each and every assessment order without making any enquiry or verification in order to establish that the assessment order is not sustainable in law. Amira Pure Foods Pvt. Ltd vs. Pr CIT (ITAT Delhi) ITA No. 3205/Del/2017 S. 263 Revision: Explanation 2 to s. 263 inserted w.e.f. 01.06.2015 does not override the law as interpreted by the various High Courts whereby it is held that the CIT cannot treat the AO's order as being erroneous and prejudicial to the interest of revenue without conducting an enquiry and recording a finding. If the Explanation is interpreted otherwise, the CIT will be empowered to find fault with each and every assessment order and also to force the AO to conduct enquiries in the manner preferred by the CIT, thus prejudicing the mind of the AO, This will lead to unending litigation and no finality in the legal proceedings which cannot be the intention of the legislature in inserting the Explanation.

Dharmendra Mahta vs. PCIT Small Wonder Industries vs. CIT (ITAT Mumbai) S. 263: There is a distinction between “lack of enquiry” and “inadequate enquiry”. If the AO has called for the necessary details and the assessee has furnished the same, the fact that the AO is silent in the assessment order does not mean that he has not applied his mind so as to justify exercise of revisional powers by the CIT u/s 263. In view of above, it is submitted there order has been passed after due application of mind and is neither erroneous nor prejudicial to the interest of the revenue, therefore order passed by ld. PCIT is not in accordance with law and deserves to be quashed.”

Dharmendra Mahta vs. PCIT 10.1. It is evident from the records that the assessment was reopened u/s 148 to examine two issues i.e. sale of three immovable properties i.e. Flat at Plot No. D-191, D Block, Malviya Naga, Jaipur for Rs.34,51,000/-, Plot No. 33, Nandpuri Yojna, Malviya Nagar, Jaipur for Rs7,52,552/- (DLC value ) & Plot No. 276, Jagatpura, Jaipur for Rs.8,00,000/-(DLC Value) totaling to Rs.50,03,552/- (DLC Value) and also (ii) Cash deposit in bank account with HDFC Bank at Rs.9,98,000/-. We note that the notice was issued 142(1) of the Act dated 27.05.2019 by the AO which is annexed as paper book at page 8-9. We further noted that in response to the above notice, the assessee has furnished reply dated 12.07.2019 where the assessee has furnished bank account, sale deeds as well as source of cash deposit which is in paper book at page 12-13. Further, the AO again issued another notice dated 17.07.2019 whereby some more information was sought, which include: “1. The explanation given in respect of cash deposited in bank account during the year under consideration is not found acceptable as no supporting evidences i.e. cash books, income & expenditure account were filed. Please furnish the same.

2. Further, you stated that the profit earned from sale of immovable properties are shown u/s 44AD. After considering your submission, you are required to justify with section in which such type of profit can be shown in business income instead of capital gain.”

Dharmendra Mahta vs. PCIT 10.2 In response to the above notice again, the assessee filed reply and furnished relevant details sought including cash statement duly explaining the source of cash deposit on various dates. After considering both the replies furnished by the assessee, ld. AO passed the assessment order, which is duly find mention of the documents furnished by the assessee. We note that the ld. AO after making all the necessary enquiries and after applying his mind on the documents furnished by the assessee and material available on record and after satisfied with the explanation furnished by the assessee, passed the assessment order u/s 143(3) r.w.s. 147 of the Income Tax Act. Whereas the ld. PCIT in para 7 at page 4 of his order observed that:-

7. From the above facts and circumstances of the case and having regards to the material available on record, the Assessing officer failed to consider/apply his mind to the information available on record with regard to the receipts declared by the assessee of Rs.42,51,000/- and subsequently received by him in his bank account of Rs.70,81,000/-. Further, AO also did not verify the cash deposited by the assessee in his bak account on or before 07.09.2011 of Rs.8,98,000/-. Thus, the assessment was made without application of mind on the given facts on record. This in turn has resulted in passing of an erroneous order by the Assessing officer in the case due to non application of mind to relevant material, reflecting non appreciation of facts an incorrect application of mind to law which is prejudicial to the interest of the revenue. Thus, the order passed u/s 143(3) on 05.08.2019 is erroneous and prejudicial to the interest of the revenue in terms of judgement of the Hon’ble Supreme Court in the case of Malabar Industrial Limited vs CIT 243 ITR wherein it has been held as under:

An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind".

Dharmendra Mahta vs. PCIT 10.3 The bench noted that even though the assessee submitted two response to the notice issued u/s. 263 of the Act, the ld. PCIT has passed an ex-parte order ignoring two reply filed by the assessee fist through e- mail filed on 23.03.2021 which is paper book at page 3 to 5 and secondly was sent on 17.01.2022 paper book at page 1 to 2. The relevant observation of the ld. PCIT is reproduced as under:- “5.Considering the above facts, a show-cause notice u/s 263 of the I.T. Act, 1961 was issued to the assessee vide this office letter No. ITBA/REVIF/REV1/2020- 21/1031089393(1) dated 01-03-2021and again show cause notice No. ITBA/REV/F/REV1/2020-21/1031370866(1) dated 10.03.2021 to explain as to why the assessment order passed by the ITO Ward-5(3), Jaipur on 05.08.2019 may not be revised u/s 263 and may not be treated as erroneous and prejudicial to the interest of the revenue, as the assessment order was passed mechanically without application of mind for the reason mentioned in the notice. No compliance has been made to the show cause notices. Accordingly, the matter is being decided on the basis of information available on record.”

10.4 From the above discussion the bench noted that assessee filed all the details before the ld. PCIT we also note that while setting aside the assessment order the ld. PCIT as erred in not appropriating the finding of the ld. AO and the ld. PCIT has erred in not appropriating the fact that the AO as enquired and verified the issue under question or subject matter before the ld. AO during the assessment proceedings. The bench note that the ld. PCIT filed to appreciate that the income declared by the assessee u/s 44AD of the Act include all the property transaction that we were Dharmendra Mahta vs. PCIT subject matter while issuing notice us/. 148 of the Act. We also take note that on both the issues i.e. sale of immovable property and cash deposit the ld. AO has made verification and has also issued final show cause notice to the assessee dated 17.07.2019 and the assessee filed the detailed reply dated 22.07.2019 and the assessee has explained the sources of cash earlier also before the AO and ld. PCIT where the assessee deposited during the assessment year 2012-13 is Rs. 4,00,000/- on 07.09.2021 and Rs. 3,98,000/- on 07.09.2011 and Rs. 1,00,000/- on 20.04.2011 and some time small cash was also deposited in bank account out of all cash deposited Rs. 4,00,000/-+3,98,000/- was deposited out of the cash withdraw from bank account as on 11.07.2011 and Rs. 12.07.2011 and Rs. 1,00,000/- was deposited out of the past cash balance and along with documents produced in paper book at page 66 to 67 which is reproduced as under:-

10.5 The other aspect where the ld. AR for the assessee has given justification for the income u/s 44AD of the Act as a business income Dharmendra Mahta vs. PCIT where the assessee is doing purchase and sale in real estate from last various year and all the properties he purchase shown as closing stock and when he sale the same shown its sale amount as sale in income tax return. From the records it is seen that the total sale of the assessee was less than the limit specified u/s 44AD in financial year 2011-12 where the assessee can opt for presumptive taxation as per provision of section 44AD. Moreover, considering the fact that the assessee has filed ITR as per provision of section 44AD for the assessment year 2011-12 which was accepted by the ld. AO during the assessment proceedings and the same was accepted and verified by the ld. AO the scrutiny assessment and the assessment order was kept in the paper book filed by the assessee.

10.6 In relating to cash deposits, the ld. AO examined in detail based on cash statement for withdrawn and deposits on two occasions. The assessee has deposited in the bank account of Rs. 9,98,000/- where Rs. 4,00,000/- on 07.09.2021 and Rs. 3,98,000/- on 07.09.2011 and Rs. 1,00,000/- on 20.04.2011 and some time small cash was also deposited in bank account out of all cash deposited Rs. 4,00,000/-+3,98,000/- was deposited out of the cash withdraw from bank account as on 11.07.2011 and Rs. 12.07.2011 this evidence has been brought to our notice before us even before the ld. PCIT and ld. AO also. During the assessment Dharmendra Mahta vs. PCIT proceedings also, sale deeds to confirm that profit on sale of properties declared in return of income and bank statement wherein entries on sale of property are duly reflecting were also filed and examined. There is no doubt that the ld. AO for making verification of the issue raised in the reasons recorded and where the ld. AO thoroughly examined the same and the reasons to reopen and being satisfied with the material furnished before him and after due application of mind no additions were made by following due process of issuing even the show cause notice on both the issues.

10.7 The ld. AR of the assessee relied upon the various judgment on the issue on hand and considering the relevant judgment as applicable in the present case the hon’ble jurisdictional high court has quashed the proceeding u/s. 263 of the Act in the case of CIT Vs. Ganpat Ram Bishnoi 296 ITR 292 (Raj). The relevant observation of the jurisdictional high court is reiterated for the sake of convenience:-

“11. Undoubtedly, the jurisdiction under Section 263 is wide and is meant to ensure that due revenue ought to reach the public treasury and if it does not reach on account of some mistake of law or fact committed by the AO, the CIT can cancel that order and require the concerned AO to pass a fresh order in accordance with law after holding a detailed enquiry. But when enquiry in fact has been conducted and the AO has reached a particular conclusion, though reference to such enquiries has not been made in the order of the assessment, but the same is apparent from the record of the proceedings, in the Dharmendra Mahta vs. PCIT present case, without anything to say how and why the enquiry conducted by the AO was not in accordance with law, the invocation of jurisdiction by the CIT was unsustainable. As the exercise of jurisdiction by the CIT is founded on no material, it was liable to be set aside. Jurisdiction under Section 263 cannot be invoked for making short enquiries or to go into the process of assessment again and again merely on the basis that more enquiry ought to have been conducted to find something.

12. The finding of the Tribunal that the ITO had passed assessment order after relevant enquiries and considering the aspects of the matter required by the CIT to be considered by him is a finding of fact and on the basis of which, the jurisdiction assumed by the CIT being non-existent must be held to be not sustainable.”

10.8 Relying on above finding equally applicable in the present case wherein in this case also the ld. AO made enquiry and issued the show cause notice to the assessee and after due process he reached to a particular conclusion then as held in the above case that when enquiry in fact has been conducted and the AO has reached a particular conclusion, though reference to such enquiries has not been made in the order of the assessment, but he same is apparent from the record of the proceedings in the present case, without anything to say how the and why the enquiry conducted by the AO was not in accordance with law the invocation of jurisdiction by the CIT was unsustainable. As the jurisdiction u/s. 263 cannot be invoked for making short enquiries or to go into the process of Dharmendra Mahta vs. PCIT assessment again and again merely on the basis that more enquiry ought to have been conducted to find something.

10.9 In the result after considering the entirety of the facts on hand after considering the submission placed before us and after perusing the orders of the lower authorities we quash the order passed by the PCIT in terms of the settled legal position as discussed in above paras.

` In the result, the appeal of the assessee is allowed.

Order pronounced in the open Court on 13/04/2023.