M/S SATYAM EDUCATIONAL HEALTH & CHARITABLE TRUST,PATNA vs. PR. CIT-CENTRAL, PATNA

IN THE INCOME TAX APPELLATE TRIBUNAL “PATNA” BENCH: PATNA VIRTUAL HEARING AT “KOLKATA” [Before Shri Rajpal Yadav, Vice-President(KZ) & Shri Rajesh Kumar, Accountant Member] I.T.A. Nos. 36 to 39/Kol/2021 Assessment Years : 2013-14 to 2016-17

M/s Satyam Educational Health & Vs. PCIT-Central, Patna Charitable Trust (PAN: AAHTS 1627 E) Appellant Respondent

Date of Hearing (Virtual) 14 .02.2022 Date of Pronouncement 09.03.2022 For the Appellant Shri S.K. Tulsiyan, Advocate For the Respondent Shri Sanjay Mukherjee, CITDR

ORDER Per Shri Rajesh Kumar, AM: All the four appeals filed by the assessee are directed against the orders passed u/s 263 of the Income Tax Act, 1961 (hereinafter referred to as the Act) all even dated 30.03.2021 by Principal Commissioner of Income Tax, Central-Patna (hereinafter referred to as the Ld. PCIT) revising the assessments framed by the Assistant Commissioner of Income Tax, Central Circle-2 Patna(hereinafter referred to as AO) for AY 2013-14 to 2016-17 u/s 143(3) r.w.s. 153A of the Act.

2 ITA Nos. 36 to 39/Pat/2021 AYs: 2013-14 to 2016-17 M/s Satyam Educational Health & Charitable Trust the assessment records came to the conclusion that the assessment orders passed by the AO u/s 143(3) read with Section 153A of the Act from AY 2013-14 to 2016-17 were erroneous in so far as prejudicial to the interest of the revenue as the AO has failed to take necessary action in examining the various issues and apply his mind properly. Accordingly, the Ld. PCIT issued show cause notices u/s 263 of the Act dated 03.03.2021 for all the four assessment years for various reasons as stated therein which according to Ld. PCIT were not enquired and examined by the AO. The years wise issues raised by the Ld. PCIT are as under:

• In AY 2013-14, the Ld. PCIT noted that the assessee trust has received Rs. 1,11,00,000/- as an unsecured loan and has also purchased land from unidentified persons which have not been examined by the AO as the same have neither been confronted to the assessee nor the assessee offered any explanation qua these transactions. • In assessment year 2014-15, Ld. PCIT exercised the jurisdiction because of two issues namely i) non examination of credit in a/c no. 3041002100035 with Punjab & National bank of Rs. 1,06,27,500/- on 16.07.2013 and ii) undisclosed enrollment fees in respect of outside students for enrollment with CBSE Board for Class-X & XII amounting to Rs. 26,71,000/-.According to Ld. PCIT, the 1st issue of credit in the a/c with Punjab National Bank was not enquired during the assessment proceedings. Similarly qua the second issue the Ld. PCIT observed from the perusal of searched/impounded materials that various schools which were operated by the Trust were allowing the outside students for enrollment with CBSE Board for Class-X & XII and was charging fees for enrollment which was not disclosed in the regular books of accounts. • In assessment year 2015-16Ld. PCIT invoked the jurisdiction u/s 263 for the sole issue of non disclosure of fee of Rs. 2,12,36,700/- for allowing the outside students for enrollment with CBSE Board for Class-X & XII as noted from the seized digital data.

3 ITA Nos. 36 to 39/Pat/2021 AYs: 2013-14 to 2016-17 M/s Satyam Educational Health & Charitable Trust • Lastly in respect of AY 2016-17 the Ld. PCIT invoked jurisdiction on three issues. First, non examination of suppression of investments in building of Rs. 21,61,626/- , second non disclosure of fee of Rs. 1,74,12,300/- for allowing the outside students for enrollment with CBSE Board for Class-X & XII and third suppression of receipts by the assessee trust to the tune of Rs.8,74,32,476/- as observed by the ld PCIT from mismatch between tally data retrieved at the time of search vis a vis receipts as per audited accounts. The Ld. PCIT noted from the materials seized that expenditure related to construction was Rs. 1,08,09,545/- from 07.04.15 to 29.01.2016 whereas the total addition of buildings shown in the balance sheet was only 86,47,921/- and thus there was a discrepancy of Rs. 21,61,626/- which was suppressed and not disclosed in the books of assessee which was not examined properly during the assessment proceedings. Ld. PCIT also observed that fee from non-attending students was substantially higher than the fee from regular students. The Ld. PCIT noted that fee of regular students was in the range of Rs. 17,000/- to 21,000/- whereas the fee for non-attending students ranged from Rs. 30,000/- to 49,000/-. The ld. PCIT on the basis of average fee collected from non- attending students came to the conclusion that total receipts for non-attending students for class class X & XII should be Rs. 1,74,12,300/-. The Ld. PCIT also observed that the assessee has suppressed the actual receipt of the trust and utilized the same for personal benefits such as investments in properties in the name of Trustees. According to Ld. PCIT, the sheet as per Tally Accounts of the trust were found from the digital data seized /impounded from the residential cum office premises of Shri Shankar Kumar at 2nd & 3rd Floor, Shivam Convent, New Bypass Road, Patna and from perusal of profit and loss account of assessee revealed total receipt of Rs. 23,30,66,033/- in AY 2016-17 whereas as per audit report ,the total receipts were only Rs. 14,56,33,557/- and thus there was a suppression of fee to the tune of Rs. 8,74,32,476/-. According to Ld. PCIT, these receipts have not been enquired or investigated by the AO in the assessment proceedings.

4 ITA Nos. 36 to 39/Pat/2021 AYs: 2013-14 to 2016-17 M/s Satyam Educational Health & Charitable Trust 3. The assessee replied said show cause notices vide submission dated 16.03.2021 and 25.03.2021 with necessary details/evidences for all four assessment years wherein the it was submitted that all these issues were specifically raised by the AO by issuing notices u/s 142(1) with detailed questionnaires during the assessment proceedings which were complied with by the assessee by filing detailed written submissions with evidences and it is only after examining of the submissions and explanation of the assessee , the assessments u/s 143(3) read with Section 153A of the Act were framed in all four assessment years. The assessee filed before the ld PCIT the copies of the submissions with all evidences as filed before the AO to corroborate the fact that all these issues were examined and accepted by the AO.

5 ITA Nos. 36 to 39/Pat/2021 AYs: 2013-14 to 2016-17 M/s Satyam Educational Health & Charitable Trust questionnaires issued by the AO along with notices issued u/s 142(1) of the Act. The ld AR referred to the specific para in the questionnaires and the replies of the assessee in respect thereof in all four assessment years to explain that all these issues were examined and enquired by the AO by giving yearwise details.

5.1. In AY 2013-14, the Ld. A.R. drew our attention to the notice issued u/s 142(1) dated 14.09.2018 along with questionnaire copy whereof is placed in the PB at page 14 to 16. in which the AO has specifically called upon the assessee vide para 16 to file the name and address of the person from whom the loan was taken, mode of taking loan along with proof of identity, creditworthiness , genuineness qua the unsecured of Rs. 1,11,00,000/- and also the details of land purchased. The Ld. A.R. ,by referring to the written submission/reply filed in response to the questionnaire issued , submitted that vide para 16 the receipt of Rs. 1,11,00,000/- has been explained by the assessee by stating that the assessee has purchased plot ad measuring 1.16 acres from Shri Shankar Kumar , Smt. Neelu Devi at Gharichak for the purpose of expansion of school infrastructure which was registered on 21.12.2012 for a consideration of 1,16,00,000/-. The assessee paid Rs. 5,00,000/- at the time of registration of sale deed and the balance amount of 1,11,00,000/- was to be paid in 18 months from the date of sale deed. The Ld. Counsel for the assessee submitted that the copy of sale deed was also filed before the AO. It was stated that the purchase of land was reflected in the balance sheet as addition in the schedule of fixed asset of the assessee with amount payable of Rs. 1,11,00,000/- was shown as liability against the purchase of land. The Ld. A.R stated that this amount was paid in subsequent years. The ld AR argued that since it was duly explained before the AO , the said amount payable against the purchase of land in no way can be considered as unsecured loan. The Ld. A.R. submitted that the assessment was framed after accepting the arguments of the assessee by the AO with regard to this liability of Rs. 1,11,00,000/- and therefore the assessment order is neither erroneous nor prejudicial to the interest of the revenue and the ld. PCIT has no jurisdiction to set aside the assessment on this issue. The Counsel also drew the attention of the Bench to the audited accounts and the

6 ITA Nos. 36 to 39/Pat/2021 AYs: 2013-14 to 2016-17 M/s Satyam Educational Health & Charitable Trust sale deed registered in the name of assessee to corroborate his arguments which are filed in the PB.

5.2. In AY 2014-15 the Ld. Counsel referred to page no. 132 to 135 of the PB which contained the copy of notice issued u/s 142(1) dated 14.07.2018 along with questionnaire wherein the AO vide para 16 & 18, has called for details/explanation of the assessee on the issues as raked up by the PCIT in the show cause notice. The Ld. A.R. submitted that vide para 16 of the said questionnaire, the AO specifically called upon the assessee to explain the receipt of Rs. 1,06,27,500/- through RTGS in PNB Bank a/c on 16.7.2013 as per the material seized from residential cum office premises of Shri Shankar Kumar. The Ld. Counsel submitted that the said query of the AO was replied by the assessee in the written submission copy of which is filed at page 138 to 142 vide para 16 by submitting that the assessee entered into an agreement dated 04.10.2012 for purchase of land with India Radio Venture Pvt. Ltd and a sum of Rs. 1,06,27,500/- was paid at the time of agreement which was duly shown in the balance sheet as advance as on 31.03.2013. Later on the agreement was cancelled and the advance given was refunded and remitted through RTGS on 16.07.2013 in PNB account by the seller. The ld counsel of the assessee argued that conclusion of the ld. PCIT that the assessee has not disclosed the credit of Rs. 1,06,27,500/- bereft of any truth as the account with PNB is duly shown in the books of account and produced before the AO. Similarly, the AO raised a specific query about the non disclosure of fee of Rs. 26,71,000/- vide para 18 of the questionnaire issued with the notice u/s 142(1) of the Act dated 14.09.2018 copy of which is placed at page no134 of the PB and the assessee replied the said query by submissions copy of which is placed at page no. 138 to 142 of PB. It was submitted before the AO that total number of students as per the books of accounts were matching with the CBSE records by furnishing school wise summary, school wise fee accounted in the books and proof of students appearing from the assessee schools which are matching with CBSE records which was accepted by the AO. Therefore the exercise of jurisdiction u/s 263 was not invalid as the AO has accepted the plea of the assessee on both the issues and accordingly framed the assessment.

7 ITA Nos. 36 to 39/Pat/2021 AYs: 2013-14 to 2016-17 M/s Satyam Educational Health & Charitable Trust 5.3. In respect of AY 2015-16. the ld. Counsel submitted by referring to the notice issued u/s 142(1) dated 14.09.2018 along with questionnaire a copy of which is placed at page no. 214 wherein the AO has vide para 16 called upon the assessee to explain the non disclosure of fee of Rs. 2,12,36,700/- and why the same should not be treated as undisclosed receipt on the basis of seized documents which was replied by the assessee vide para 16 of written submissions copy of which is placed at page 217 to 220 of PB with corroborating evidences. The AO, after examining this reply and evidences filed by the assessee, framed the assessment and therefore the jurisdiction of PCIT u/s 263 was wrongly invoked in this year also.

5.4. In the fourth year i.e. AY 2016-17 the Ld. Counsel submitted that the AO called for similar details as in the earlier years vide para 16 of the questionnaire issued with the notice u/s 142(1) of the Act dated 14.09.2018 copy of which is placed at page no. 333 of the PB raising a specific query in respect of undisclosed fee of Rs. 1,74,12,300/-. and as to why it should not be treated as undisclosed . Similarly the second issue as raised by the Ld. PCIT of suppression of fee of Rs. 8,74,32,476/- based on the difference between tally data retrieved at the time of search vis a vis as per audited books of account was also examined by the AO calling the assessee vide para 17 of the questionnaire issued with notice u/s 142(1) dated 14.09.2018 copy of which is placed at page 333 of PB which was also replied in detail by furnishing various evidences as placed at 670-671 along with explanation . It was submitted that fee as per profit and loss account found in the course of search was Rs. 23,30,66,033/- whereas as per the audited accounts of the assessee the fee was only 14,56,33,557/- which was explained by the assessee by written submissions copy of which is filed at page 337 to 342 . In respect of 3rd item appearing in the show cause notice Rs. 21,61,626/- which according to PCIT was suppression of investment in building was queried vid para 18 of the questionnaire issued with the notice as stated above and was also replied by submitting that documents did not relate to the trust but to the company M/s Pratiti Health Institution Pvt. Ltd. of which Shri Shankar Kumar and his family members are holding 49% shares and the said company was doing construction

8 ITA Nos. 36 to 39/Pat/2021 AYs: 2013-14 to 2016-17 M/s Satyam Educational Health & Charitable Trust of building and has shown building under construction to the tune of Rs. 4.05 lakhs which has been accepted by the AO.

5.5. The Ld. A.R. submitted that ,on the basis of the above facts and evidences, it is clear that the AO has examined and enquired all the issues as covered by the ld. PCIT in the order u/s 263 of the Act , the assumption of jurisdiction by the PCIT u/s 263 of the Act is not validly exercised which renders the revisionary proceedings as well as the consequent order as nullity and bad in law and may kindly be quashed. The Ld. A.R. argued that in order to exercise jurisdiction u/s 263 of the Act, the order passed by the AO has to be erroneous in so far as prejudicial to the interest of revenue meaning thereby that the twin conditions, namely assessment being erroneous as well as prejudicial to the interest of revenue, have to be satisfied otherwise recourse cannot be had to the provisions of section 263 of the Act to set aside the assessment by relying on the decision of Malabar Industrial Co vs. CIT 198 ITR 611(SC). The Ld. Counsel further argued the ld PCIT cannot exercise the jurisdiction u/s 263 of the Act where the AO has taken one of the two courses permissible under the law which has resulted in loss of revenue or where two views are possible and the AO has taken one possible view as in that scenario also the assessment cannot be treated as erroneous in so far as prejudicial to the interest of revenue. The AR argued that unless the view taken by the AO is not sustainable in law or not in accordance with law or contrary to the facts , the jurisdiction u/s 263 of the Act cannot be resorted to. In defense of this arguments, the ld A.R relied on the decision of CIT vs. Maxx India Ltd. 295 ITR 282 (SC). The ld. Counsel also argued that where the AO has conducted the proper enquiries by calling upon the assessee to explain the particular point and the assessee has duly responded the same and furnished all the required information/details and the AO has framed the assessment after considering the same, even then the assessment order cannot be held to be erroneous in so far as prejudicial to the interest of the revenue by placing reliance on the decision in the case of CIT vs. Ratlam Coal Ash Company 56 CTR 305(MP). The Ld. Counsel submitted that the AO has called for the details/explanation from the assessee on all the issues proposed by the PCIT u/s 263 of the Act and the assessee has duly responded to all queries by filing

9 ITA Nos. 36 to 39/Pat/2021 AYs: 2013-14 to 2016-17 M/s Satyam Educational Health & Charitable Trust necessary evidences/details/explanation/information, then the assessment order cannot be considered as erroneous and prejudicial to the interest of revenue merely on the ground that there is no discussion on these point in the assessment orders by relying on the decision of CIT vs. Gabriel India Ltd. (1993) 203 ITR 108(Bom). The Ld. Counsel also referred to the decision of Hon’ble Bombay High Court in the case of CIT vs. Vikas Polymers reported 341 ITR 537(Bom) wherein it has been held that there is a distinction between lack of enquiry and inadequate enquiry and it is only a case of lack of enquiry, the ld PCIT can exercise his revisionary powers under the Act The Ld. A.R. has relied on the decision of Hon’ble Delhi High Court in the case of DG Housing Projects Ltd. 343 ITR 329(Del) reiterating his arguments that the jurisdiction by PCIT could only be exercised in case lack of enquiry or no enquiry and not in case of inadequate enquiry. The ld AR argued that PCIT must give a finding that the order passed by the AO is contrary to law or facts which makes the order unsustainable in the eyes of law. The Ld. A.R. contended that the provisions of section 263 of the Act cannot be invoked to conduct the fresh investigation by revising the assessment by relying on the decision of Hon’ble Delhi High Court in the case of CIT vs. Leisure Wear Exports Ltd. 46 DTR 97(Del) and the decision of Co-ordinate Bench of ITAT, Kolkata in the case of Boddhisatva Chattaopadyay vs. CIT in ITA No. 1314/Kol/2019. The Ld. A.R. submitted that the AO has taken a view after examining the details/explanations of assessee,then the Ld. PCIT cannot invoke the provision of section 263 of the Act to revise the assessment for a reason that a different view can be taken on the basis of the same record. The Ld. A.R. relied on a series of decisions to corroborate his arguments:

i) CIT vs. Arvind Jewellers (2003) 259 ITR 502 (Guj) ii) CIT vs. Mehrotra Brothers 270 ITR 157 (MP) iii) CIT vs. Deepak Mittal 324 ITR 411 (P & H) iv) CIT vs. International Travel House, 194 Taxman 324 (Del). 5.6. The Ld. A.R. also referred to explanation (2) of Section 263 as inserted w.e.f. 01.06.2015 which conferred the PCIT specific power to revise the assessment where

10 ITA Nos. 36 to 39/Pat/2021 AYs: 2013-14 to 2016-17 M/s Satyam Educational Health & Charitable Trust order is passed without making any enquiry or verification which should have been made. The Ld. A.R. submitted that this issue has been discussed at length by the Tribunal in the case of Boddhisatva Chattapadhyay (supra) wherein the issue whether “in the opinion of PCIT’s order was erroneous u/s section 263” it was held that based on the explanation ( 2) to Section 263 of the Act, it is not possible to revise the order if in the opinion of PCIT the order has been passed by the AO without making investigation or enquiries which should have been made as the explanation cannot override substantive provisions of law as explanation only intended to explain the law and not override it. The Ld. A.R. finally prayed before the bench that in view of the foregoing facts and position of law as laid down by the various judicial forums as discussed above, the assessment framed u/s 143(3) read with Section 153A of the Act are neither erroneous nor prejudicial and therefore the revisionary proceedings u/s 263 of the Act as exercised by the ld PCIT are invalid and nullity and may kindly be quashed.

11 ITA Nos. 36 to 39/Pat/2021 AYs: 2013-14 to 2016-17 M/s Satyam Educational Health & Charitable Trust referred to the explanation (2) of Section 263 as inserted w.e.f. 01.06.2015 which provides in clears words that the PCIT can revise the assessment if in his opinion the AO has not made the enquiry or not examined the issues which should have been made. The Ld. D.R. submitted that even in the set aside proceedings , the assessee would be free to present its case on all these issues. The Ld. D.R, therefore , prayed before the bench that the order of the PCIT may be upheld by dismissing the appeal of the assessee.

12 ITA Nos. 36 to 39/Pat/2021 AYs: 2013-14 to 2016-17 M/s Satyam Educational Health & Charitable Trust and replies with evidences are part of the assessment records and were also filed before the tribunal in the paper books as discussed above. We note that the assessee has produced the books of accounts before the AO and duly explained as to how the issues raised by the ld PCIT were dealt with in the books of accounts or if not accounted for then the same is not warranted to be added to the income of the assessee in view of the explanation given by the assessee. In our considered view, since the AO has examined all the issues raised by the PCIT in the revisionary orders during assessment proceedings and only thereafter framed the assessments u/s 143(3) r.w.s. 153A of the Act, the jurisdiction u/s 263 of the Act is not maintainable as the AO has taken a possible view or taken one of the two possible views to which the PCIT does not agree or is of the opinion that the AO has taken one view whereas according to PCIT the second view should have been taken by the AO. We also observe from the perusal of the revisionary orders passed u/s 263 of the Act that PCIT has nowhere given a concrete finding as to how the assessments framed by the AO in all the above four years were erroneous in so far as prejudicial to the interest of the revenue. It is settled law that in order to invoke the jurisdiction u/s 263 of the Act by the PCIT, the twin conditions i.e. the order has to be erroneous and prejudicial to the interest of the revenue, have to be satisfied. In case one of the condition is satisfied out of the two, even then the PCIT cannot invoke the jurisdiction u/s 263 of the Act to revise the assessment. It is also a settled law that the jurisdiction is not available to PCIT u/s 263 of the Act to revise the assessment on the issues merely because no reference or discussion has been made in the assessment order especially when the AO has called for details/explanations from the assessee on all the issues as proposed by PCIT in the order passed u/s 263 and assessee has responded the same by filing written submissions with details/evidences which are part of the assessment records. In other words, the revisionary jurisdiction is not available to the PCIT merely on the ground that AO sought reply from the assessee during assessment proceedings which furnished by the assessee with evidences and are available in the assessment records however it did not find an elaborate discussion or reference in the assessment order. Similarly the powers of revision u/s 263 of the Act cannot be exercised arbitrarily in

13 ITA Nos. 36 to 39/Pat/2021 AYs: 2013-14 to 2016-17 M/s Satyam Educational Health & Charitable Trust order to make roving enquiries and initiate fresh enquiries . In our considered view , the jurisdiction u/s 263 can be exercised to revise the assessments where no enquiry at all has been conducted by the AO which is a case of lack of enquiry but not in a case where the AO has conducted an enquiry which in the opinion of PCIT is inadequate /insufficient without showing as to how the order framed by the AO after appreciating the evidences filed by the assessee is contrary to facts or not in accordance with law. The case of the assessee finds supports on all these propositions from several decisions by the Apex Courts and other juridical forums as cited before us during the course of hearing and are being discussed hereunder:

• In the case of Malabar Industrial Co. (supra) the Hon’ble Apex Court has held that the prerequisite to exercise of jurisdiction u/s 263 of the Act by Commissioner is that the order of the AO is erroneous insofar as prejudicial to the interest of the revenue. The Hon’ble Court has held that the Ld. PCIT has to satisfy the twin conditions namely i) the order of the AO sought to be revised is erroneous and ii) it is prejudicial to the interests of the revenue and if one of them is absent, i.e. if the order of the AO is erroneous but is not prejudicial to the revenue or vice versa,recourse cannot be had to Section 263 of the Act. In the present case before us also the PCIT has failed to point out as to how the order passed by the AO is erroneous in so far as prejudicial to the interest of revenue. The Ld. PCIT simply discussed various issues which according to him have not been verified/examined by the AO during the assessment proceedings and has not pointed out as to how the assessments are erroneous in so far as prejudicial to the interest of the revenue and therefore the jurisdiction exercised under Section 263 cannot be sustained. • In the case of CIT vs. Max India Ltd. (supra) the Hon’ble Supreme Court has held that where two views are possible and the AO has taken one of the plausible views, the assessment so framed by the AO cannot be termed as erroneous insofar as prejudicial to the interest of

14 ITA Nos. 36 to 39/Pat/2021 AYs: 2013-14 to 2016-17 M/s Satyam Educational Health & Charitable Trust the revenue. The Hon’ble Apex Court has considered the earlier decision passed by the Co-ordinate Bench in the case of Malabar Industrials Co. (supra). In the case of the assessee since the AO has taken one of the two possible view on all the issues after examining them during assessment proceedings to which the PCIT does not agree and therefore the revisionary proceedings cannot be justified and sustained. • In the case of CIT vs. Gabriel India Ltd. (supra) the Hon’ble Bombay High Court has held that in order to invoke the jurisdiction u/s 263(1) of the Act there must be material before the Commissioner to consider that the order passed by the ITO was erroneous insofar as prejudicial to the interest of the revenue. The Hon’ble court has held that an erroneous order must be an order which is not in accordance with the law or which has been passed by the AO in undue haste without making any enquiry. The Hon’ble Court has further held that the order is said to be prejudicial to the interest of revenue if it is not in accordance with the law in consequence whereof the lawful revenue due to the State has not been realized or cannot be realized. The Hon’ble Court held that such a decision of Income Tax Officer cannot be held to be erroneous simply because he has not made elaborate discussion in that regard in the assessment order. • The same ratio has been laid down by the Hon’ble Bombay High Court in the case of CIT vs. M/s Design & Automation Engineers (Bombay) Pvt. Ltd. in ITA No. 147 of 2002 after following the earlier orders passed by the Co-ordinate Bench in the case of CIT vs. Gabriel India Ltd. by holding that the order of the AO cannot be said to be erroneous or is passed without application of mind because in his order he has not made any elaborate discussion in that regard. The Hon’ble Court has held that the PCIT has set aside the order of the AO only on the ground that the PCIT did not agree the view taken and take a different view by the AO.

15 ITA Nos. 36 to 39/Pat/2021 AYs: 2013-14 to 2016-17 M/s Satyam Educational Health & Charitable Trust • In the case of CIT vs. Leisure Wear Exports Ltd. reported in 46 DTR 97, the Hon’ble Delhi High Court has held that the revisionary power is not meant to be exercised for the purpose of directing the AO to hold another investigation without describing as to how the order of the AO is erroneous. The Hon’ble Court observed that where assessment order has been passed by the AO after taking into account the assessee’s submission and documents furnished by him no material whatsoever has been brought on record by the CIT which showed any discrepancy or falsity in evidences by the assessee the order of the AO cannot be set aside for making deep enquiry only on the presumption and assumption that something new may come out. For making a valid order u/s 263 it is essential that the CIT has to record an express finding to the effect that order passed by the AO is erroneous which has caused loss to the revenue. Furthermore, where acting in accordance with law the AO framed certain assessment order, same cannot branded as erroneous simply because according to the CIT, the order should be written more elaborately. • In the case of Boddhisatva Chattoapadhyay vs. CIT (supra) the Hon’ble Co-ordinate Bench has drawn a distinction between ‘lack of enquiry’ and ‘inadequate enquiry’ if there is an enquiry even if inadequate that would not by itself give occasion to the CIT to exercise the revisionary jurisdiction merely it because is of the opinion that some more enquiry should have been conducted in the matter. The Co-ordinate Bench has also discussed the explanation 2 to Section 263 inserted w.e.f 01.06.2015 to which brought to the said section “the opinion of the Ld. PCIT” as a parameter for holding an order to be erroneous if the assessment order passed by the AO is without enquiry or verification which should have been made which is the one of the conditions provided out of four condition stated under that explanation 2 the

16 ITA Nos. 36 to 39/Pat/2021 AYs: 2013-14 to 2016-17 M/s Satyam Educational Health & Charitable Trust Co-ordinate Bench has gone into the issue whether to exercise the revisionary jurisdiction the opinion of the PCIT that the order was erroneous would be sufficient to initiate the proceedings u/s 263. The Co-ordinate Bench has held that expression “in the opinion of PCIT” cannot be read as information and explanation cannot override substantive provision of law which explanation only tries to explain and clarify unless the Ld. PCIT records a finding that the AO has failed to conduct an enquiry or investigation which has caused loss of revenue to the exchequer the assessment order framed could be treated as erroneous insofar as prejudicial to the interest of the revenue and not otherwise.

Order is pronounced in the open court on 9th March, 2022.

Sd/- Sd/- (Rajpal Yadav) (Rajesh Kumar) Vice-President Accountant Member Dated: 9th March, 2022 SB, Sr. PS

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Copy of the order forwarded to:

Sr. Private Secretary ITAT, Patna Bench, Patna

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