Shri Kanaiyalal N.Hemrajani, Godhra v. The CIT-III,, Baroda

ITA 1608/AHD/2010 | 2005-2006
Pronouncement Date: 06-08-2010 | Result: Allowed

Appeal Details

RSA Number 160820514 RSA 2010
Assessee PAN AAJPH2543K
Bench Ahmedabad
Appeal Number ITA 1608/AHD/2010
Duration Of Justice 2 month(s) 23 day(s)
Appellant Shri Kanaiyalal N.Hemrajani, Godhra
Respondent The CIT-III,, Baroda
Appeal Type Income Tax Appeal
Pronouncement Date 06-08-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 06-08-2010
Date Of Final Hearing 30-07-2010
Next Hearing Date 30-07-2010
Assessment Year 2005-2006
Appeal Filed On 14-05-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI JM AND A. N. PAHUJA AM) ITA NO. 1608/AHD/2010 A. Y.: 2005-06 KANAIYALAL N. HEMRAJANI PROP. OF JAY JALARAM BRICK WORKS NR. RTO OFFICE GODHRA 3890 007 VS THE C. I. T- III BARODA 2 ND FLOOR ANNEXE BUILDING AAYAKAR BHAVAN RACE COURSE CIRCLE BARODA 390 007 PA NO. AAJPH 2543 K (APPELLANT) (RESPONDENT) APPELLANT BY SHRI J. P. SHAH AR RESPONDENT BY SHRI SHELLY JINDAL DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF THE COMMISSIONER OF INCOME TAX - I II BARODA DATED 29 TH MARCH 2010 FOR ASSESSMENT YEAR 2005-06. 2. WE HAVE HEARD LEARNED REPRESENTATIVES OF BOTH THE P ARTIES PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND C ONSIDERED THE MATERIAL ON RECORD POINTED OUT BY THE PARTIES. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE AO PASSED ORDER U/S 143(3) OF THE IT ACT ON DATED 28 TH DECEMBER 2007. THE ASSESSEE HAS SHOWN UNSECURED LOANS AMOUNTING TO RS.28 44 981/- I N THE BALANCE SHEET. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO PROVE GENUINENESS OF THE UNSECURED LOANS F ROM THE PERSONS OTHER THAN FAMILY MEMBERS. THE ASSESSEE SUBMITTED A FFIDAVITS FROM 18 PARTIES CONFIRMING THAT THEY HAD GIVEN INTEREST FRE E LOANS/DEPOSITS TO THE ASSESSEE TOTALING TO RS.2 92 000/-. THESE AFFIDAVIT S WERE ACCEPTED BY THE AO. ADDITION OF RS.2 47 500/- WAS MADE U/S 68 OF TH E IT ACT IN RESPECT OF THE BALANCE 16 CREDITORS CONSIDERING DOUBTFUL BY THE AO. THE LEARNED ITA NO.1608/AHD/2010 KANAIYALAL N. HEMRAJANI VS CIT-III BARODA 2 COMMISSIONER OF INCOME TAX ON PERUSAL OF THE AFFIDA VITS FOUND THAT OUT OF 18 DEPOSITORS 16 WERE ILLITERATE AND HAD PUT TH EIR THUMB IMPRESSION AND MADE DEPOSITS IN CASH AND WERE HAVING INCOME FR OM LABOUR WORK AND FARMING. THE LEARNED COMMISSIONER OF INCOME TAX THEREFORE NOTED THAT IT IS DIFFICULT TO BELIEVE THAT PERSONS OF SUC H MEAGER MEANS WOULD HAVE GIVEN INTEREST FREE LOANS TO THE ASSESSEE. THE LEARNED COMMISSIONER OF INCOME TAX ALSO NOTED THAT AFFIDAVITS HAVE BEEN PREPARED IN THE SAME LANGUAGE AND IN THE SAME MANNER AND THAT THE AFFIDA VITS ARE THE ONLY EVIDENCE TO PROVE THE CONFIRMATIONS. THE CREDITWORT HINESS HAS NOT BEEN EXAMINED. FURTHER CASH BOOK OF THE ASSESSEE AVAILA BLE ON RECORD SHOWS THAT THE DATES ON WHICH CASH CREDIT IS CLAIMED THER E IS NO CORRESPONDING ENTRY IN THE CASH BOOK. THE LEARNED COMMISSIONER OF INCOME TAX ACCORDINGLY NOTED THAT THE AFFIDAVITS WOULD NOT CON STITUTE SATISFACTORY EVIDENCE U/S 68 OF THE IT ACT AND AS SUCH THE ASSES SMENT ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF THE REVENUE. SHOW CAUSE NOTICE U/S 263 OF THE IT ACT WAS ISSUED TO THE ASSESSEE. THE ASSESSEE FILED DETAILED REPLY BEFORE THE LEARNED CO MMISSIONER OF INCOME TAX WHICH IS INCORPORATED IN THE IMPUGNED ORDER. TH E LEARNED COMMISSIONER OF INCOME TAX NOTED THE DISCREPANCY IN THE CASH BOOK AS COMPARED TO THE AFFIDAVITS AND NOTED THAT THE AO SH OULD NOT HAVE ACCEPTED THE AFFIDAVITS IN SUPPORT OF THE GENUINENE SS OF THE CREDITS AND ACCORDINGLY HELD THAT THE ASSESSMENT ORDER IS ERRON EOUS. THE ASSESSMENT ORDER WAS SET ASIDE FOR RE-EXAMINING THE LIMITED IS SUE OF SOURCES OF THE LOAN TOTALING TO RS.2 92 000/-. 4. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THA T THE ASSESSEE HAS SHOWN UNSECURED LOANS OF RS.28 44 981/- IN THE BALA NCE SHEET AS ON 31-3-2005. THE AO ASKED THE ASSESSEE TO FURNISH CON FIRMATION FROM THE CREDITORS AND THE ASSESSEE PRODUCED CONFIRMATION LE TTERS FROM ALL THE PARTIES. FROM THE AFFIDAVITS OF THE PARTIES THEY W ERE FOUND TO HAVE LENT ITA NO.1608/AHD/2010 KANAIYALAL N. HEMRAJANI VS CIT-III BARODA 3 MONEY IN CASH BELOW THE LIMIT OF RS.20 000/- ALSO. HE HAS SUBMITTED THAT THE ASSESSEE HOWEVER COULD NOT FURNISH CONFIR MATIONS AS REQUIRED BY THE AO IN RESPECT OF 16 PARTIES AS NOTED AT PAGE 5 OF THE ASSESSMENT ORDER. THEREFORE THE AO MADE ADDITION OF RS.2 47 5 00/- U/S 68 OF THE IT ACT TREATING THE SAME TO BE UNEXPLAINED CASH CREDIT . THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AO WAS SATISFIE D WITH REGARD TO THE CONFIRMATION FILED FOR THE REMAINING CREDITORS AND THE SUBSTANTIAL AMOUNT AND OUT OF THE SAME SOME OF THE AFFIDAVITS I N SUPPORT OF THE CONFIRMATIONS WERE ALSO FILED. HE HAS SUBMITTED THA T THE AO THEREFORE SATISFIED WITH REGARD TO THE EXPLANATION OF THE ASS ESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSEE CHALLENGED THE ADDITION OF RS.2 47 500/- BEFORE THE LEARNED CI T(A) AND THE ASSESSEE FILED CONFIRMATIONS FROM THE REMAINING 16 PARTIES F OR WHICH ADDITION OF RS.2 47 500/- WAS MADE AND THE LEARNED CIT(A) CALLE D FOR THE REMAND REPORT FROM THE AO AND THE LEARNED CIT(A) CONSIDERI NG THE REMAND REPORT AND CONFIRMATIONS OF 16 PARTIES NOTED THAT THE AO H AS ACCEPTED THE GENUINENESS OF THE LOAN TRANSACTION FROM THE 18 PAR TIES ON THE BASIS OF CONFIRMATION PRODUCED BEFORE HIM FOR VERIFICATION. THEREFORE THE CONFIRMATIONS OF 16 PARTIES NOW FILED AT THE APPELL ATE STAGE HAVE TO BE ACCEPTED AS IS ACCEPTED BY THE AO AT THE ASSESSMENT STAGE. THE LEARNED CIT(A) ACCORDINGLY DELETED THE ADDITION OF RS.2 47 500/- VIDE ORDER DATED 15-2-2010 (PB-46). THE LEARNED COUNSEL FOR THE ASSE SSEE SUBMITTED THAT THE AO HELD ENQUIRY ON THE ISSUE OF GENUINENESS OF THE CREDITS AND WAS SATISFIED WITH THE EXPLANATION OF THE ASSESSEE THRO UGH CONFIRMATIONS AND AFFIDAVITS AND THE AO ADOPTED THE ONE OF COURSE PER MISSIBLE IN LAW. THEREFORE THE LEARNED COMMISSIONER OF INCOME TAX I S NOT JUSTIFIED IN TREATING THE SAME AS ERRONEOUS ORDER PREJUDICIAL TO THE INTEREST OF REVENUE. IN SUPPORT OF HIS CONTENTION HE HAS RELIED UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF MALABAR IN DUSTRIAL CO. LTD. 243 ITR 83 AND IN THE CASE OF CIT VS MAX INDIA LTD. 295 ITR 282. HE HAS RELIED UPON THE DECISION OF THE PUNJAB & HARYANA HI GH COURT IN THE CASE ITA NO.1608/AHD/2010 KANAIYALAL N. HEMRAJANI VS CIT-III BARODA 4 OF CIT VS DEEPAK MITTAL 324 ITR 411 IN WHICH IT WAS HELD THAT COMMISSIONER CANNOT RE-APPRISE EVIDENCE AND RECALL FOR TAKING A DIFFERENT FINDING ON THE SAME FACTS U/S 263 OF THE IT ACT. HE HAS ALSO RELIED UPON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF JEWELL OF INDIA VS ACIT 325 ITR 92 IN WHICH IT WAS HELD THAT FOR REVISION U/S 263 OF THE IT ACT THE CONDITION PRECE DENT IS THAT THE ORDER OF THE AO SHOULD BE ERRONEOUS AND ALSO PREJUD ICIAL TO THE INTEREST OF THE REVENUE. ORDER FOUND TO BE ERRONEOU S BUT NOT FOUND THAT IT WAS PREJUDICIAL TO THE INTEREST OF REVENUE. ORDER CANNOT BE REVISED. 5. ON THE OTHER HAND THE LEARNED DR RELIED UPON TH E ORDER OF COMMISSIONER OF INCOME TAX AND SUBMITTED THAT THE A O HAS NOT MADE ENQUIRY INTO THE GENUINENESS OF THE AFFIDAVITS AND SOURCES OF THE CREDIT HAVE NOT BEEN EXAMINED. THEREFORE NON-EXAMINATION OF THE ISSUE WOULD CALL FOR REVISION U/S 263 OF THE IT ACT. IN SUPPORT OF HIS CONTENTION HE HAS RELIED UPON THE DECISION OF THE HONBLE GAUHATI HIG H COURT IN THE CASE OF TORAJAN TEA CO. PVT. LTD. 205 ITR 45. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND MAT ERIAL AVAILABLE ON RECORD. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS MAX INDIA LTD. (SUPRA) RELYING UPON ITS EARLIER DECISION IN T HE CASE OF MALLABAR INDUSTRIAL CO. LTD. (SUPRA) HELD AS UNDER: EXPORT PROFITS DEDUCTION INCOME-TAX ACT 1961 80 HHC. THE PHRASE PREJUDICIAL TO THE INTERESTS OF THE REV ENUE IN SECTION 263 OF THE INCOME-TAX ACT 1961 HAS TO BE READ IN CONJUNCTION WITH THE EXPRESSION ERRONEOUS ORDER P ASSED BY THE ASSESSING OFFICER. EVERY LOSS OF REVENUE AS A C ONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER CANNOT BE TREA TED AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. FOR EX AMPLE WHEN THE ASSESSING OFFICER ADOPTS ONE OF TWO COURSES PER MISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE OR WHER E TWO VIEWS ARE POSSIBLE AND THE ASSESSING OFFICER HAS TAKEN ON E VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE IT CANN OT BE ITA NO.1608/AHD/2010 KANAIYALAL N. HEMRAJANI VS CIT-III BARODA 5 TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE RE VENUE UNLESS THE VIEW TAKEN BY THE ASSESSING OFFICER IS UNSUSTAINABLE IN LAW. THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT V S R. K. CONSTRUCTION CO. 313 ITR 65 HELD AS UNDER: HELD DISMISSING THE APPEAL THAT SINCE ALL THE NE CESSARY DETAILS WERE FURNISHED TO THE ASSESSING OFFICER TH ERE WAS NO REASON FOR THE COMMISSIONER TO INVOKE THE REVISIONA L JURISDICTION UNDER SECTION 263 OF THE ACT. THE ASSE SSING OFFICER HAD TAKEN A PARTICULAR VIEW ON THE BASIS OF THE EVI DENCE PRODUCED BEFORE HIM. ON THE BASIS OF THE EVIDENCE B EFORE THE ASSESSING OFFICER AND MATERIALS WHICH WERE COLLECTE D BY THE COMMISSIONER IN REVISIONAL PROCEEDINGS THE COMMISS IONER HAD TAKEN A DIFFERENT VIEW. HOWEVER IN THE REVISIO NAL PROCEEDINGS UNDER SECTION 263 IT WAS NOT OPEN FOR THE COMMISSIONER TO TAKE SUCH A DIFFERENT VIEW. THERE W AS NOTHING ON RECORD TO SUGGEST THAT THE VIEW TAKEN BY THE ASSESSING OFFICER WAS UNSUSTAINABLE IN LAW. THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS GIRDHARI LAL 258 ITR 331 HELD AS UNDER: HELD THAT WHEN THE ASSESSING OFFICER AFTER GOING THROUGH THE MATERIAL ON RECORD AND AFTER CONSIDERING THE EXPLAN ATION OF THE ASSESSEE MADE SOME ADDITIONS AND REJECTED THE BOOK S OF ACCOUNT IT WOULD NOT BE SAID THAT HE HAD NOT APPL IED HIS MIND. IT IS NOT ALWAYS NECESSARY THAT EVERY ASSESSE E IN THE LINE OF THE BUSINESS SHOULD HAVE THE SAME RATE OF P ROFIT. THE TRIBUNAL WAS CORRECT IN CANCELING THE ORDERS UNDER SECTION 263 OF THE INCOME-TAX ACT FOR THE ASSESSMENT YEARS 1977 -78 1979-80 TO 1981-82. THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS DEEPAK MITTAL 324 ITR 411 HELD AS UNDER: CHANGE OF OPINION BY REAPPRAISING THE EVIDENCE IS NOT WITHIN THE PARAMETERS OF REVISIONAL JURISDICTION OF THE COMMISSIONER UNDER SECTION 263 OF THE INCOME-TAX AC T 1961. HELD DISMISSING THE APPEAL THAT THE TRIBUNAL HAD FOUND THAT THE ASSESSING OFFICER HAD GIVEN A CATEGO RICAL FINDING THAT THE ASSESSEE WAS ENGAGED IN THE PROCES S OF ITA NO.1608/AHD/2010 KANAIYALAL N. HEMRAJANI VS CIT-III BARODA 6 MANUFACTURING OF PRODUCTS AND ACCORDINGLY HE HAD GR ANTED CONCESSION UNDER SECTION 80-IB. THE CLAIM OF THE AS SESSEE HAD BEEF FOUND TO BE GENUINE. THE ASSESSING OFFICER HAD ALSO EXAMINED THE VARIOUS WORKERS OF THE ASSESSEE AND TH EN RECORDED THE FINDING. THE ASSESSING OFFICER WAS JUS TIFIED IN GRANTING THE SPECIAL DEDUCTION UNDER SECTION 80IB. THE ORDER OF REVISION DISALLOWING THE SPECIAL DEDUCTION WAS N OT VALID. 7. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT O F THE ABOVE DECISIONS WE ARE OF THE VIEW THAT THE LEARNED COMMISSIONER WA S NOT JUSTIFIED IN INVOKING JURISDICTION U/S 263 OF THE IT ACT IN THE INSTANT CASE. IT IS ADMITTED FACT THAT THE ASSESSEE HAS SHOWN UNSECURED LOANS OF RS.28 44 981/- IN THE BALANCE SHEET ENDING ON 31-03 -2005. THE AO ASKED THE ASSESSEE TO PRODUCE CONFIRMATION LETTERS FROM THE PARTIES AND ALSO AFFIDAVITS FROM THE PARTIES WHO HAVE GIVEN LOA N IN CASH BELOW THE LIMIT OF RS.20 000/-. THE ASSESSEE FILED CONFIRMATI ONS OF ALL THE PARTIES EXCEPT FOR THE AMOUNT OF RS.2 47 500/- IN CASE OF 1 6 PARTIES AND ALSO FILED AFFIDAVITS AS REQUIRED BY THE AO. THE AO WAS SATISFIED WITH THE EXPLANATION OF THE ASSESSEE REGARDING GENUINENESS O F THE CREDITS ON THE BASIS OF THE CONFIRMATIONS AND AFFIDAVITS FILED BY THE ASSESSEE. THE AO THEREFORE ACCEPTED THE EXPLANATION OF THE ASSESSEE AS REGARDS GENUINE CREDITS EXCEPT OF RS.2 47 500/- FOR WHICH THE ASSES SEE HAS NOT FILED ANY EXPLANATION OR EVIDENCE IN TERMS OF SECTION 68 OF T HE IT ACT. SECTION 68 OF THE IT ACT PROVIDES:- 68. WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE T HEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT IN THE OPINI ON OF THE [ASSESSING] OFFICER SATISFACTORY THE SUM SO CREDI TED MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. THE ABOVE PROVISION THUS WOULD SHOW THAT WHERE A SU M IS FOUND CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND NO EXPL ANATION REGARDING NATURE AND SOURCE IS OFFERED AND THAT THE AO IS NOT SATISFIED WITH THE ITA NO.1608/AHD/2010 KANAIYALAL N. HEMRAJANI VS CIT-III BARODA 7 EXPLANATION OF THE ASSESSEE SUCH CREDITS WOULD BE TREATED AS INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. THE AO IN THIS CASE FOUND THE CREDITS IN THE BOOKS OF ACCOUNT OF THE ASSESSEE FOR WHICH E XPLANATION OF THE ASSESSEE WAS CALLED FOR AND THE ASSESSEE WAS DIRECT ED TO FILE CONFIRMATION OF ALL THE CREDITORS AND AFFIDAVITS OF THE PERSONS WHO HAVE GIVEN LESS THAN RS.20 000/- AS LOAN TO THE ASSESSEE. THE ASSESSEE F ILED CONFIRMATIONS OF ALL THE PARTIES EXCEPT 16 PARTIES IN A SUM OF RS.2 47 500/- AND ALSO FILED AFFIDAVITS OF THE PARTIES WHO HAVE GIVEN CASH LOAN LESS THAN IN A SUM OF RS.20 000/-. THE AO WAS SATISFIED WITH THE GENUINEN ESS OF THE CREDITS OF THE SUBSTANTIAL AMOUNT OUT OF RS.28 44 981/- AND MA DE THE ADDITION OF ONLY RS.2 47 500/- FOR WHICH NO CONFIRMATION WAS FI LED AS REQUIRED BY THE AO. THE ASSESSEE CHALLENGED THE ADDITION OF RS. 2 47 500/- BEFORE THE LEARNED CIT(A) AND CONFIRMATION OF 16 PARTIES WERE FILED AT THE APPELLATE STAGE ON WHICH THE LEARNED CIT(A) CALLED FOR THE RE MAND REPORT FROM THE AO AND AFTER CONSIDERING THE CONFIRMATIONS AND REMA ND REPORT OF THE AO ACCEPTED THE REMAINING 16 CREDITS ALSO AS GENUINE ON THE BASIS OF CONFIRMATIONS AS WAS ACCEPTED BY THE AO AT THE ASSE SSMENT STAGE IN RESPECT OF THE REMAINING PARTIES. THEREFORE THE VI EW OF THE AO IS CONFIRMED BY THE LEARNED CIT(A) IN APPELLATE ORDER DATED 15-2-2010 (PB - 46). SINCE IN THIS CASE THE AO MADE A LIMITED ENQUI RY AND CALLED FOR THE CONFIRMATIONS FROM THE ASSESSEE AND AFFIDAVITS FROM THE PARTIES AND THE AO WAS SATISFIED WITH REGARD TO CONDITIONS OF SECTI ON 68 OF THE IT ACT THEREFORE THE LEARNED COMMISSIONER OF INCOME TAX WA S NOT JUSTIFIED IN TAKING A CONTRARY VIEW ONLY IN RESPECT OF THE AMOUN T OF RS.2 92 000/- OUT OF RS.28 44 981/-. THE LEARNED COMMISSIONER OF INCO ME TAX ALSO IN THE PROCEEDINGS U/S 263 OF THE IT ACT DID NOT DISPUTE T HE FINDINGS OF THE AO AND THE LEARNED CIT(A) WITH REGARD TO THE GENUINENE SS OF THE CASH CREDIT ON THE BASIS OF FURNISHING OF CONFIRMATIONS AND AFF IDAVITS EXCEPT THE AMOUNT OF RS.2 92 000/-. IT MAY ALSO BE NOTED HERE THAT FOR A SUM OF RS.2 92 000/- THE ASSESSEE HAS FILED CONFIRMATION OF ALL THE CREDITORS ALONG WITH THEIR AFFIDAVITS. BUT FOR REST OF THE AM OUNT ONLY CONFIRMATIONS ITA NO.1608/AHD/2010 KANAIYALAL N. HEMRAJANI VS CIT-III BARODA 8 HAVE BEEN FILED WHICH IS NOT DISPUTED BY THE AO AND THE LEARNED COMMISSIONER OF INCOME TAX ALSO IN THE PROCEEDINGS U/S 263 OF THE IT ACT. THEREFORE VIRTUALLY THE LEARNED COMMISSIONER OF INCOME TAX ACCEPTED THE VIEW OF THE AO THAT ON FILING OF THE C ONFIRMATIONS THE CREDITS COULD BE ACCEPTED TO THE SATISFACTION OF THE AO. TH E AO AND THE LEARNED COMMISSIONER OF INCOME TAX HAVE ADOPTED ONE OF THE POSSIBLE VIEWS IN LAW AND AT LEAST WHEN TWO VIEWS ARE POSSIBLE AND TH E AO HAS ACCEPTED ONE OF THE POSSIBLE VIEWS IN LAW THE LEARNED COMMI SSIONER OF INCOME TAX CANNOT TREAT THE ORDER OF THE AO TO BE ERRONEOUS OR DER PREJUDICIAL TO THE INTERESTS OF REVENUE. THE VIEW OF THE AO IS ALSO NO T UNSUSTAINABLE IN LAW BECAUSE THE LEARNED COMMISSIONER OF INCOME TAX (A) ALSO ACCEPTED THE GENUINENESS OF THE CREDITS ON FILING OF THE CONFIRM ATIONS ONLY. THE SATISFACTION OF THE AO IS PROVIDED U/S 68 OF THE IT ACT. THEREFORE CHANGE OF OPINION BY REAPPRAISING THE EVIDENCES IS NOT WIT HIN THE PARAMETERS OF REVISIONAL JURISDICTION OF THE LEARNED COMMISSIONER OF INCOME TAX U/S 263 OF THE IT ACT AS IS HELD BY THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF DEEPAK MITTAL (SUPRA). THE AO WAS SA TISFIED WITH THE EVIDENCE PRODUCED BEFORE HIM ABOUT THE GENUINENESS OF THE CREDITS IN THE MATTER AND THE VIEW OF THE AO IS CONFIRMED BY THE L EARNED CIT(A) IN THE APPELLATE ORDER AS REGARDS ADDITION OF RS.2 47 500/ -. THEREFORE THE ORDER OF THE AO IS CONFIRMED BY THE LEARNED CIT(A) IN THE FIRST APPELLATE ORDER. IT WOULD PROVE THAT THE VIEW TAKEN BY THE AO WAS NOT U NSUSTAINABLE IN LAW. THE ABOVE FACTS WOULD ALSO SHOW THAT THE AO HAD MAD E ENQUIRY AND INVESTIGATIONS INTO THE MATTER OF GENUINENESS OF TH E CREDITS. THEREFORE THE DECISION CITED BY THE LEARNED DR WOULD NOT SUPP ORT THE CASE OF THE REVENUE. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE INSTANT APPEAL WE DO NOT FIND IT TO BE A FIT CASE FOR EXERCISING J URISDICTION U/S 263 OF THE IT ACT. WE MAY CLARIFY HERE THAT THE FINDINGS GIVEN IN THIS ORDER IN THE INSTANT CASE ARE QUA TO THE PROCEEDINGS U/S 263 OF THE IT ACT BASED ON FACTS OF THIS CASE AND SHALL NOT TENTAMOUNT TO EXPR ESSION OF OPINION ON ITA NO.1608/AHD/2010 KANAIYALAL N. HEMRAJANI VS CIT-III BARODA 9 MERIT U/S 68 OF THE IT ACT. WE ACCORDINGLY SET AS IDE THE IMPUGNED ORDER U/S 263 OF THE IT ACT AND QUASHED THE SAME. 8. AS A RESULT THE APPEAL OF THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED ON 06-08-2010 SD/- SD/- (A. N. PAHUJA) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 06-08-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR ITAT AHMEDABAD