DEV STEEL, NAVI MUMBAI v. PR CIT CEN 4, NAVI MUMBAI

ITA 3748/MUM/2016 | 2006-2007
Pronouncement Date: 24-11-2017 | Result: Dismissed

Appeal Details

RSA Number 374819914 RSA 2016
Assessee PAN ABHPG0909N
Bench Mumbai
Appeal Number ITA 3748/MUM/2016
Duration Of Justice 1 year(s) 5 month(s) 23 day(s)
Appellant DEV STEEL, NAVI MUMBAI
Respondent PR CIT CEN 4, NAVI MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 24-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 24-11-2017
Assessment Year 2006-2007
Appeal Filed On 31-05-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI RAJESH KUMAR ACCOUNTANT MEMBER ITA NO.3747/MUM/2016 ASSESSMENT YEAR: 2008-09 SHRI DEVANG GANDHI A/303 BALAJI GARDENS SECTOR-11 KOPARKHAIRNE NAVI MUMBAI-400709 / VS. PR. CIT CENTRAL-4 MUMBAI ( !' # /ASSESSEE) ( $ / REVENUE) P AN. NO. ABHPG0909N ITA NO.3748 TO 3752/MUM/2016 ASSESSMENT YEAR: 2006-07 TO 2010-11 M/S DEV STEEL 605 6 TH FLOOR THACKER TOWER SECTOR-17 NAVI MUMBAI-400709 / VS. PR. CIT CENTRAL-4 MUMBAI ( !' # /ASSESSEE) ( $ / REVENUE) PAN. N O. AADFD9093M ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 2 $% & # ' / DATE OF HEARING : 01/11/2017 & # ' / DATE OF ORDER: 24/11/2017 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THIS BUNCH OF SIX APPEALS IS BY THE DIFFERENT ASSES SEES CHALLENGING THE INVOCATION OF REVISIONAL JURISDICTI ON U/S 263 OF THE INCOME TAX ACT 1961 (HEREINAFTER THE ACT) O F THE PR. COMMISSIONER OF INCOME TAX FOR ASSESSMENT ORDERS PA SSED U/S 153A R.W.S 143(3) OF THE ACT. FIRST WE SHALL T AKE UP THE APPEAL IN THE CASES OF MR. DEVANG GANDHI (ITA NO.3747/MUM/2016) FOR ASSESSMENT YEAR 2008-09. 2. DURING HEARING SHRI RAKESH JOSHI LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT ASSESSMENT HAD ALR EADY BEEN COMPLETED U/S 153A R.W.S 143(3) OF THE ACT AND DURING ASSESSMENT PROCEEDINGS THE LD. ASSESSING OFFICER A SKED THE ASSESSEE TO EXPLAIN THE SOURCE OF CAPITAL INTRODUCT ION WHICH WAS REPLIED VIDE LETTER DATED 28/01/2014 THEREFORE THE ASSESSMENT WAS FRAMED AFTER DUE APPLICATION OF MIND !' # ! / ASSESSEE BY SHRI RAKESH JOSHI $ ! / REVENUE BY SHRI RAJESH DAMOR CIT-DR ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 3 THEREFORE THE REVISIONAL JURISDICTION U/S 263 OF T HE ACT WAS NOT JUSTIFIED. RELIANCE WAS PLACED UPON THE DECISIO N IN THE CASE OF CIT VS MURLI AGRO PRODUCTS (2014) 49 TAXMAN .COM 172 (BOM.). IT WAS ALSO CONTENDED THAT THE ASSESSM ENT ORDER IS NOT ERRONEOUS. RELIANCE WAS ALSO PLACED U PON THE DECISION IN CIT VS GABRIEL INDIA LTD. 203 ITR 108 ( BOM.) AND MALALBAR INDUSTRIAL CO. LTD. VS CIT 243 ITR 83 (SC) . IN REPLY THE LD. CIT-DR STRONGLY DEFENDED THE INVOCAT ION OF REVISIONAL JURISDICTION BY CONTENDING THAT THE DECI SION FROM HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF MU RLI AGRO IS DATED 29/10/2010 WHICH IS THE AFTER INSERTION OF EXPLANATION-2 I.E. ON 01/06/2015 THUS NOT APPLICA BLE TO THE FACTS OF THE PRESENT APPEAL. THE REMAINING CASE S RELIED UPON BY THE LD. COUNSEL BY THE ASSESSEE WERE ALSO C LAIMED TO BE ON DIFFERENT FACTS. RELIANCE WAS PLACED UPON THE DECISION OF THE TRIBUNAL IN THE CASE OF ANUJ JAYENDRA SHAH V S PR. CIT (2016) (67 TAXMAN.COM 38) (MUM. TRIB.) AND M/S CROM PTON GREAVES LTD. VS CIT (ITA NO.1994/MUM/2013 AND ITA NO.2836/MUM/2014) ORDER DATED 01/02/2016. A QUERY W AS RAISED BY THE BENCH WHETHER THE LETTER DATED 28/01/ 2014 ADDRESSED TO THE ASSESSING OFFICER HAS BEEN CONSIDE RED IN ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 4 THE ASSESSMENT ORDER THE LD. COUNSEL FOR THE ASSES SEE FAIRLY AGREED THAT NO DISCUSSION HAS BEEN MADE WITH RESPEC T TO THIS LETTER BY THE ASSESSING OFFICER. 2.1. SO FAR AS THE APPEALS IN THE CASES OF M/S DEV STEEL (ITA NO.3748 TO 3752/MUM/2016) ARE CONCERNED THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE WAS TH AT THERE WAS A SEARCH IN THE UNITY INFRASTRUCTURE WITH RESPE CT TO ACCOMMODATION ENTRIES IT WAS EXPLAINED THAT THE LD . ASSESSING OFFICER ADDED AT THE RATE OF 2% AGAINST T HE PROPOSED ADDITION AT THE RATE OF 5% BY THE INVESTIG ATION WING. THUS SECTION 263 OF THE ACT CANNOT BE INVOKE D. IT WAS ALSO PLEADED THAT THE APPEAL OF THE ASSESSEE ON THE SAME ISSUE IS PENDING BEFORE THE LD. COMMISSIONER OF INC OME TAX (APPEAL) THEREFORE REVISIONAL JURISDICTION CANNOT BE INVOKED FOR WHICH RELIANCE WAS PLACED UPON THE DECISION IN THE CASE OF COMMISSIONER OF WEALTH-TAX V. SAMPATHMAL CHORDIA EXECUTOR TO THE ESTATE OF LATE NENI KAVUR BAI 256 ITR 440 (MAD.). IT WAS ALSO PLEADED THAT APPRAISAL REPORT WAS NOT CONFRONTED TO THE ASSESSEE FOR WHICH RELIANCE WAS PLACED UPON THE DECISION OF THE PUNE ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 5 BENCH OF THE TRIBUNAL IN ORIENT (GOA) LTD. VS DCIT (1998) 66 ITD 479 (PUNE). IN REPLY THE LD. CIT-DR CONTENDED THAT THE FACTS OF THE ARE SQUARELY COVERED BY THE DECISION O F GAUHATI HIGH COURT COMMISSIONER OF INCOME-TAX V. DAGA ENTRADE P. LTD. (327 ITR 467)(GAU.) ORDER DATED 17/02/2009 BY CONTENDING THAT THERE WAS ENOUGH INCRIMINATING MATERIAL AGAINST THE ASSESSEE FOR WHI CH OUR ATTENTION WAS INVITED TO PARA 10.1 OF THE ASSESSMEN T ORDER AND ALSO THE STATEMENT RECORDED BY THE DEPARTMENT WHEREIN IT WAS SPECIFICALLY ADMITTED THAT BOGUS TR ANSACTIONS WERE TRANSACTED. OUR ATTENTION WAS ALSO INVITED TO EXPLANATION-1(C) TO SECTION 263 OF THE ACT BY CANVA SSING THAT THE DECISION OF THE HON'BLE MADRAS HIGH COURT IS DA TED 01/11/2001 WHICH IS PRIOR TO INSERTION OF EXPLANAT ION W.E.F. 01/06/2015. PLEA WAS ALSO RAISED THAT THE LD . ASSESSING OFFICER HAS NOT FOLLOWED THE INSTRUCTIONS ISSUED BY THE BOARD AND THERE IS VIOLATION OF SUCH GUIDELINES . 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE AD VERTING FURTHER WE ARE EXPECTED TO ANALYZE SECTION 263 OF THE ACT ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 6 THEREFORE IT IS REPRODUCED HEREUNDER FOR READY REF ERENCE AND ANALYSIS:- 263. (1) THE PRINCIPAL COMMISSIONER OR COMMISSIONER MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING U NDER THIS ACT AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE HE MAY AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD A ND AFTER MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSARY PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY INCLUDING AN ORD ER ENHANCING OR MODIFYING THE ASSESSMENT OR CANCELLIN G THE ASSESSMENT AND DIRECTING A FRESH ASSESSMENT. [ EXPLANATION 1 .]FOR THE REMOVAL OF DOUBTS IT IS HEREBY DECLARED THAT FOR THE PURPOSES OF THIS SUB-SECTION ( A ) AN ORDER PASSED ON OR BEFORE OR AFTER THE 1ST DAY OF JUNE 1988 BY THE ASSESSING OFFICER SHALL INCLUDE ( I ) AN ORDER OF ASSESSMENT MADE BY THE ASSISTANT COMM ISSIONER OR DEPUTY COMMISSIONER OR THE INCOME-TAX OFFICER ON TH E BASIS OF THE DIRECTIONS ISSUED BY THE JOINT COMMISSIONER UND ERSECTION 144A; ( II ) AN ORDER MADE BY THE JOINT COMMISSIONER IN EXERCI SE OF THE POWERS OR IN THE PERFORMANCE OF THE FUNCTIONS OF AN ASSESSING OFFICER CONFERRED ON OR ASSIGNED TO HIM UNDER THE ORDERS OR DIRECTIONS ISSUED BY THE BOARD OR BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL DIR ECTOR GENERAL OR DIRECTOR GENERAL OR PRINCIPAL COMMISSION ER OR COMMISSIONER AUTHORISED BY THE BOARD IN THIS BEHALF UNDER SECTION 120; ( B ) 'RECORD' SHALL INCLUDE AND SHALL BE DEEMED ALWAYS TO HAVE INCLUDED ALL RECORDS RELATING TO ANY PROCEEDING UND ER THIS ACT AVAILABLE AT THE TIME OF EXAMINATION BY THE PRINCIP AL COMMISSIONER OR COMMISSIONER; ( C ) WHERE ANY ORDER REFERRED TO IN THIS SUB-SECTION A ND PASSED BY THE ASSESSING OFFICER HAD BEEN THE SUBJECT MATTER O F ANY APPEAL FILED ON OR BEFORE OR AFTER THE 1ST DAY OF J UNE 1988 THE POWERS OF THE PRINCIPAL COMMISSIONER OR COMMISSIONE R UNDER THIS SUB-SECTION SHALL EXTEND AND SHALL BE DEEMED A LWAYS TO HAVE EXTENDED TO SUCH MATTERS AS HAD NOT BEEN CONSI DERED AND DECIDED IN SUCH APPEAL. [ EXPLANATION 2. FOR THE PURPOSES OF THIS SECTION IT IS HEREBY DECLARED THAT AN ORDER PASSED BY THE ASSESSI NG OFFICER SHALL BE DEEMED TO BE ERRONEOUS IN SO FAR A S IT IS ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 7 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 V ERIFICATION WHICH SHOULD HAVE BEEN MADE; ( B ) THE ORDER IS PASSED ALLOWING ANY RELIEF WITHOUT I NQUIRING INTO THE CLAIM; ( C ) THE ORDER HAS NOT BEEN MADE IN ACCORDANCE WITH AN Y 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 T HE JURISDICTIONAL HIGH COURT OR SUPREME COURT IN THE C ASE OF THE ASSESSEE OR ANY OTHER PERSON.] (2) NO ORDER SHALL BE MADE UNDER SUB-SECTION (1) AF TER THE EXPIRY OF TWO YEARS FROM THE END OF THE FINANCIAL Y EAR IN WHICH THE ORDER SOUGHT TO BE REVISED WAS PASSED. (3) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTI ON (2) AN ORDER IN REVISION UNDER THIS SECTION MAY BE PASSED AT ANY TIME IN THE CASE OF AN ORDER WHICH HAS BEEN PASSED IN CO NSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER OF THE APPELLATE TRIBUNAL NATIONAL TAX TRIBU NAL THE HIGH COURT OR THE SUPREME COURT. EXPLANATION .IN COMPUTING THE PERIOD OF LIMITATION FOR THE PURPOSES OF SUB-SECTION (2) THE TIME TAKEN IN GIVI NG AN OPPORTUNITY TO THE ASSESSEE TO BE REHEARD UNDER THE PROVISO TO SECTION 129 AND ANY PERIOD DURING WHICH ANY PROC EEDING UNDER THIS SECTION IS STAYED BY AN ORDER OR INJUNCT ION OF ANY COURT SHALL BE EXCLUDED. 2.5. IF THE AFORESAID SECTION IS ANALYZED IT SPEA KS THAT BEFORE INVOKING THE REVISIONAL JURISDICTION THE AS SESSMENT ORDER SHOULD BE ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE. IT IS ALSO NOTED THAT EXPLANAT ION-2 WAS INSERTED BY THE FINANCE ACT 2015 W.E.F. 01/06/2015 . SUB- CLAUSE (A) SAYS THAT IF THE ORDER IS PASSED WITHOUT MAKING ENQUIRIES OR VERIFICATION WHICH SHOULD HAVE BEEN M ADE THE ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 8 ORDER SHALL BE DEEM TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. 2.6. NOW WE SHALL ANALYZE THE FACTS IN THE LIGHT OF VARIOUS DECISIONS IN FAVOUR AND AGAINST THE ASSESSE E. HOWEVER THESE CASES CAN BE APPLIED TO THE PECULIAR FACTS OF EACH CASE. THE DECISION IN RAMPYARI DEVI SARAOGI V S CIT 67 ITR 83 (SC) MALABAR INDUSTRIAL COMPANY VS CIT (243 ITR 83 (SC) SWAROOP VEGETABLES PRODUCTS INDUSTRIES LTD. V S CIT 187 ITR 412 (ALL.) RAJ LAXMI MILLS LTD. 121 ITD 34 3 (SB)(ITAT)(CHENNAI) AND SRM SYSTEMS AND SOFTWARE PV T. LTD. 2010-TIOL-646-HC-MAD-IT THROWS LIGHT ON THE IS SUE. SIMILARLY CIT VS INFOSYS TECHNOLOGIES LTD. 341 ITR 293 AND CIT VS JAWAHAR BHATTACHARYA JI 341 ITR 434 (GAUH.-F B) WAS DECIDED CONSIDERING THE PARTICULAR FACTS. IT I S ALSO NOTED THAT IN KAPIL RATAN ASSOCIATES VS CIT (2015) 55 TAX MAN.COM 60 (MUM. ITAT) ORDER DATED 14/01/2015 IDENTICALLY SUPPORTS THE CASE OF THE REVENUE. WE HAVE PERUSED THESE ORDERS AND CONSIDERED THE RATIO LAID DOWN THEREIN. LIKEWISE THE HON'BLE CALCUTTA HIGH COURT IN RAJMANDIR ESTATE PVT. LTD. VS PR. CIT (2016) 70 TAXMAN.COM 124 (CAL.) ORD ER DATED 13/05/2016 AND THE RATIO LAID DOWN THEREIN SUPPORTS THE ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 9 CASE OF THE REVENUE. IT IS NOTEWORTHY THAT WHILE COMING TO A PARTICULAR CONCLUSION HON'BLE CALCUTTA HIGH COURT CONSIDERED FOLLOWING JUDICIAL PRONOUNCEMENTS:- I. CIT V. CALCUTTA DISCOUNT CO. LTD. [1973] 91 ITR 8 (SC) (PARA 3) II. SUMATI DAYAL V. CIT [1995] 214 ITR 801/80 TAXMAN 89 (SC) (PARA 4) III. CIT V. NOVA PROMOTERS & FINLEASE (P.) LTD. [2012] 342 ITR 169/206 TAXMAN 207/18 TAXMANN.COM 217 (DELHI) (PARA 4) IV. CIT V. DURGA PRASAD MORE [19711] 82 ITR 540 (SC) (PARA 6) V. CIT V. PRECISION FINANCE (P.) LTD. [1994] 208 ITR 465/[1995] 82 TAXMAN 31 (CAL.) (PARA 6) VI. ITO V. DG HOUSING PROJECTS LTD. [2012] 343 ITR 329/212 TAXMAN 132 (MAG.)/[2012] 20 TAXMANN.COM 587 (DELHI) (PARA 7) VII. DIT V. JYOTI FOUNDATION [2013] 35 ITR 388/219 TAXMAN 105/38 TAXMANN.COM 180 (DELHI) (PARA 7) VIII. CIT V. STELLER INVESTMENT LTD. [1991] 192 ITR 287/59 TAXMAN 568 (DELHI) (PARA 8) IX. CIT V. SOPHIA FINANCE LTD. [1994] 205 ITR 98/70 TAXMAN 69 (DELHI) (FB) (PARA 8) X. CIT V. DIVINE LEASING & FINANCE LTD. [2008] 299 ITR 268/[2007] 158 TAXMAN 440 (DELHI)(PARA 8) XI. LOTUS CAPITAL FINANCIAL SERVICES LTD. V. ITO [IT APPEAL NO. 479 (KOL.) OF 2011] (PARA 8) XII. CIT V. LOTUS CAPITAL FINANCIAL SERVICES (P.) LTD. [ITAT NO. 125 OF 2012] (PARA 8) XIII. CIT V. DATAWARE (P.) LTD. [ITAT NO. 263 OF 2011] (PARA 8) ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 10 XIV. CIT V. ROSEBERRY MERCANTILE (P.) LTD. [G.A. NO. 3296 OF 2010 DATED 10-1-2011] (PARA 8) XV. CIT V. SANCHATI PROJECTS (P.) LTD. [ITAT NO. 140 OF 2011] (PARA 8) XVI. CIT V. SAMIR BIO-TECH. (P.) LTD. [2010] 325 ITR 294 (DELHI) (PARA 8) XVII. CIT V. KAMDHENU STEEL & ALLOYS LTD. [2014] 361 ITR 220/[2012] 206 TAXMAN 254/19 TAXMANN.COM 26 (DELHI) (PARA 8) XVIII. CIT V. DWARKADHISH CAPITAL (P.) LTD. [2011] 330 ITR 298/[2010] 194 TAXMAN 43 (DELHI) (PARAS 9 10) XIX. CIT V. KINETIC CAPITAL FINANCE LTD. [2013] 354 ITR 296/[2011] 202 TAXMAN 548/14 TAXMANN.COM 150 (DELHI) (PARAS 9 10) XX. ZAFA AHMAD & CO. V. CIT [2013] 214 TAXMAN 440/30 TAXMANN.COM 267 (ALL.) (PARAS 9 10) XXI. ANIL RICE MILLS V. CIT [2006] 282 ITR 236/[2005] 149 TAXMAN 313 (ALL.) (PARAS 9 10) XXII. CIT V. FIVE VISION PROMOTERS (P.) LTD. [2016] 380 ITR 289/236 TAXMAN 502/65 TAXMANN.COM 71 (DELHI) (PARA 11) XXIII. CIT V. GABRIEL INDIA LTD. [1993] 203 ITR 108/71 TAXMAN 585 (BOM.) (PARA 12) XXIV. HARI IRON TRADING CO. V. CIT [2003] 263 ITR 437/131 TAXMAN 535 (PUNJ. & HAR.) (PARA 12) XXV. CIT V. LEISURE WEAR EXPORTS (P.) LTD. [2012] 341 ITR 166/[2011] 202 TAXMAN 130/11 TAXMANN.COM 54 (DELHI) (PARA 13) XXVI. OMAR SALAY MOHAMED SAIT V. CIT [1959] 37 ITR 151 (SC) (PARA 14) XXVII. LALCHAND BHAGAT AMBICA RAM V. CIT [1959] 37 ITR 288 (SC) (PARA 14) XXVIII. RELIANCE JUTE & INDUSTRIES LTD. V. CIT [1979] 120 ITR 921/2 TAXMAN 417 (SC) (PARA 15) ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 11 XXIX. KARIMTHARUVI TEA ESTATE LTD. V. STATE OF KERALA [1966] 60 ITR 262 (SC) (PARA 15) XXX. CIT V. SUNBEAM AUTO LTD. [2011] 332 ITR 167/[2010] 189 TAXMAN 436 (DELHI) (PARA 16) XXXI. GRINDLAYS BANK LTD. V. ITO [1978] 115 ITR 799 (CAL.) (PARA 17) XXXII. VIJAY MALLYA V. ASSTT. CIT [2003] 131 TAXMAN 477 (CAL.) (PARA 17) XXXIII. CIT V. J.L. MORRISON (INDIA) LTD. [2014] 366 ITR 593/225 TAXMAN 17 (MAG.)/46 TAXMANN.COM 215 (CAL.) (PARA 17 ) XXXIV. MALABAR INDUSTRIAL CO. LTD. V. CIT [2000] 243 ITR 83/109 TAXMAN 66 (SC) (PARA 18) XXXV. CIT V. MAX INDIA LTD. [2007] 295 ITR 282/166 TAXMAN 188 (SC) (PARA 18) XXXVI. CIT V. MAITHAN INTERNATIONAL [2015] 375 ITR 123/231 TAXMAN 381/56 TAXMANN.COM 283 (CAL.) (PARA 20) XXXVII. CIT V. NAVODAYA CASTLES (P.) LTD. [2014] 367 ITR 306/226 TAXMAN 190/50 TAXMANN.COM 110 (DELHI) (PARA 20) XXXVIII. CIT V. N.R. PORTFOLIO (P.) LTD. [2013] 214 TAXMAN 408/29 TAXMANN.COM 291 (DELHI) (PARA 20) XXXIX. CIT V. ACTIVE TRADERS (P.) LTD. [1995] 214 ITR 583/[1993] 69 TAXMAN 281 (CAL.) (PARA 20) XL. CIT V. JAWAHAR BHATTACHARJEE [2012] 341 ITR 434/209 TAXMAN 174/24 TAXMANN.COM 215 (GAU.) (FB) (PARA 20) AND XLI. SMT. TARA DEVI AGGARWAL V. CIT [1973] 88 ITR 323 (SC) (PARA 27). 2.7. SO FAR AS THE CASES IN FAVOUR OF THE ASSESSE E LIKE CIT VS NIRAV MODI (2016) 71 TAXMAN.COM 272 (BOM.) I S CONCERNED THE FACTUAL FINDING IS THAT THE ASSESSIN G OFFICER ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 12 AFTER MAKING PROPER AND DETAILED ENQUIRIES TOOK A P ARTICULAR VIEW WHEREAS IN THE PRESENT APPEAL PROPER ENQUIRY WAS NOT MADE BY THE ASSESSING OFFICER THEREFORE THIS JUDI CIAL PRONOUNCEMENTS MAY NOT HELP THE ASSESSEE. SIMILAR I S THE POSITION IN OTHER CASES WHICH ARE DIFFERENT ON FAC TS. 2.8. WE HAVE ALSO PERUSED THE ASSESSMENT ORDER WHICH IS A SUBJECT MATTER OF REVISIONAL JURISDICTIO N U/S 263 AND THE IMPUGNED ORDER PASSED BY THE LD. PR. COMMISSIONER. ADMITTEDLY AN INCORRECT ASSUMPTION O F FACT OR AN INCORRECT APPLICATION OF LAW WOULD SATISFY TH E REQUIREMENT OF ORDER BEING ERRONEOUS U/S. 263 OF TH E ACT. THE PHRASE PREJUDICIAL TO THE INTEREST OF THE REVE NUE U/S. 263 HAS TO BE READ IN CONJUNCTION WITH THE EXPRESS ION ERRONEOUS ORDER BY THE ASSESSING OFFICER. EVERY L OSS OF REVENUE AS A CONSEQUENCE OF ASSESSMENT ORDER CANNOT BE TERMED AS PREJUDICIAL TO THE INTEREST OF REVENUE M EANING THEREBY PREJUDICE MUST BE PREJUDICE TO THE REVEN UE ADMINISTRATION. AT THE SAME TIME IF ANOTHER VIEW I S POSSIBLE REVISION IS NOT PERMISSIBLE. OUR VIEW IS FORTIFIED BY THE DECISION FROM HIMACHAL PRADESH FINANCIAL CORP. (186 ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 13 TAXMANN 105)(HP) BISMILLAH TRADING CO. (248 ITR 292)(KER.) AND CIT VS. GREEN WORLD CORPN. (314 ITR 81)(SC) . FOR INVOKING REVISIONAL JURISDICTION U/S. 263 OF THE AC T THE ASSESSMENT ORDER MUST CONTAIN GRIEVOUS ERROR WHICH IS SUBVERSIVE OF THE ADMINISTRATION OF REVENUE. FURTHE R EXACT ERROR MUST BE DISCLOSED BY THE COMMISSIONER AS WAS HELD IN CIT VS. G.K. KABRA (211 ITR 336)(AP). SECTION 263 OF THE ACT ENABLES THE COMMISSIONER TO HAVE A RE-LOOK AT THE O RDERS OR PROCEEDINGS OF THE LOWER AUTHORITY TO EFFECT CORREC TION IF SO NEEDED PARTICULARLY IF THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE OBJ ECT OF THE PROVISION IS TO RAISE REVENUE FOR THE STATE AND SEC TION 263 IS ENABLING PROVISION CONFERRING JURISDICTION UPON THE COMMISSIONER TO REVISE THE ORDER. THE PROVISION IS INTENDED TO PLUG THE LEAKAGE OF THE REVENUE BY THE ERRONEOUS AND PREJUDICIAL ORDER. OUR VIEW FIND SUPPORT FROM THE R ATIO LAID DOWN IN FOLLOWING DECISIONS:- I. CIT VS INFOSYS TECHNOLOGIES LTD. (2012) 341 ITR 293 (KARN.) II. CIT VS JAWAHAR BHATTACHARYAJI (2012) 341 ITR 434 (GUWAHATI) (FB) III. CIT VS LEISURE WEAR EXPORTS LTD. (2012) 341 ITR 166 (DEL.) ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 14 IV. CIT VS TRIVENI ENGINEERING WORKS LTD. (2011) 336 ITR 366 (DEL.) V. R.A. HIMMATSINGHKA & COMPANY VS CIT (2012) 340 ITR 253 (PAT.) VI. CIT VS RAJEEV AGNIHOTRI (2011) 332 ITR 608 (P & H) VII. CIT VS DLF LTD. (2013) 350 ITR 555 (DEL.) VIII. CIT VS GABREAL INDIA LTD. (1993) 203 ITR 108 114 (BOM.) IX. MALABAR INDUSTRIAL COMPANY LTD. VS CIT (2000) 243 ITR 83 (SC) X. NABHA INVESTMENTS PVT. LTD. VS UOI (2000) 246 ITR 41 (DEL.) XI. BISMILLAH TRADING COMPANY LTD. VS IO (2001) 248 ITR 292 308 (KERALA) XII. PAUL MATHEWS & SONS VS CIT (2003) 263 ITR 101 113 (KERALA) XIII. CIT VS SESHASAYEE PAPER & BOARDS LTD. (2000) 242 ITR 490 500 (MAD.) XIV. RAYON SILK MILLS VS CIT 221 ITR 155 (GUJ.) 2.9. IN THE LIGHT OF THE AFOREMENTIONED JUDICIAL PRONOUNCEMENTS NOW WE SHALL ANALYZE THE FACTS OF T HE CASE OF SHRI DEVANG GANDHI (ITA NO.3747/MUM/2016). IT I S NOTED THAT THE LD. ASSESSING OFFICER FRAMED ASSESSM ENT WITHOUT MAKING REQUIRED ENQUIRIES/INVESTIGATION IN TERMS OF EXPLANATION-2 TO SECTION 263 OF THE ACT. THE LD. ASSESSING OFFICER COMPLETED ASSESSMENT VIDE ORDER D ATED 28/02/2014 U/S 153A R.W.S. 143(3) OF THE ACT DETERM INING THE TOTAL INCOME AT RS.6 28 300/-. IT IS NOTICED TH AT THE ASSESSEE INTRODUCED CAPITAL AMOUNTING TO RS.55 LAKH IN THE ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 15 FIRM M/S DEV STEEL. THE LD. ASSESSING OFFICER DID N OT MENTION IN THE ASSESSMENT ORDER WITH RESPECT TO SOU RCE OF FUNDS WHICH WERE INTRODUCED AS CAPITAL IN M/S DEV STEEL. THE SOURCE OF FUND AND ITS GENUINENESS IS NEVER DIS CUSSED IN THE ASSESSMENT ORDER. THOUGH THERE IS MENTION OF LETTER DATED 28/01/2014 BUT THE GENUINENESS AND SOURCE OF FUNDS WERE NOT EXAMINED AS EVEN THERE IS NOT WHISPE R OF THE LETTER IN THE ASSESSMENT ORDER. THIS FACTUAL MA TRIX WAS FAIRLY AGREED BY THE LD. COUNSEL FOR THE ASSESSEE B EFORE THIS TRIBUNAL. EVEN OTHERWISE IT HAS TO BE KEPT IN MIND WHETHER THE ASSESSMENT ORDER IS ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE. CERTAINLY THE INTRODUCTION OF CAPITAL BY THE ASSESSEE AND ITS GENUINENESS REQUIRES INVEST IGATION AND DELIBERATION AND IT HAS TO BE SPELT OUT IN THE ASSESSMENT ORDER WHICH HAS NOT BEEN DONE. EVEN TH E INFORMATION RECEIVED FROM THE INVESTIGATION WING WA S NOT PROPERLY INVESTIGATED. THE LD. ASSESSING OFFICER SIMPLY ACCEPTED THE CLAIM OF THE ASSESSEE MECHANICALLY WITHOUT APPLICATION OF MIND. TOTALITY OF FACTS CLEARLY INDICATES THAT EVEN IN THE IMPUGN ED ORDER THE LD. ASSESSING OFFICER WAS DIRECTED TO FRAME TH E ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 16 ASSESSMENT DENOVO AFTER MAKING NECESSARY ENQUIRES A ND INVESTIGATION AFTER ASCERTAINING NECESSARY FACTS AN D THAT TO AFTER PROVIDING DUE OPPORTUNITY TO THE ASSESSEE. TH US NO GRIEVANCE IS CAUSED TO THE ASSESSEE BECAUSE THE AS SESSEE IS AT LIBERTY TO CONTEST THE OBSERVATION MADE BY TH E LD. COMMISSIONER. OUR VIEW IS FORTIFIED BY THE DECISIO N IN INDIAN TEXTILE VS CIT (157 ITR 112) (MAD.) GEE VEE ENTERPRISES VS ADDL. CIT (99 ITR 375)(DEL.) THALIB AI F JAIN VS ITO 101 ITR 1 (KARN.) AND CIT VS HPFC 186 TAXMAN 105 (HP) CIT VS PUSHPA DEVI 164 ITR 639 (PATNA). WE A RE AWARE THAT BEFORE THE LD. COMMISSIONER INVOKES THE REVISIONAL JURISDICTION U/S 263 OF THE ACT HE SHOU LD GET SATISFIED THAT THE ORDER PASSED BY THE ASSESSING OF FICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. HONBLE GUJARAT HIGH COURT IN CIT VS M. M. KHAMBATB ALA 198 ITR 144 (GUJ.) EVEN WENT TO THE EXTENT THAT REV ISIONAL POWERS CAN BE EXERCISED EVEN IF THE ISSUE IS DEBATA BLE. THE HONBLE JURISDICTIONAL HIGH COURT IN CIT VS GABRIEL INDIA LTD. (1993) 203 ITR 108 (BOM.) CONCLUDED THAT POWER S U/S 263 CANNOT BE EXERCISED FOR STARTING FISHING AND RO VING ENQUIRIES. FOR MAKING A VALID ORDER U/S 263(1) IT IS ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 17 ESSENTIAL THAT THE COMMISSIONER HAS TO RECORD AN EX PRESS FINDING THAT PREJUDICE HAS BEEN CAUSED TO THE INTER EST OF THE REVENUE. OUR VIEW FIND SUPPORT FROM THE RATIO L AID DOWN IN BHARGWA ENGINEERING CORPORATION VS CIT (199 6) 134 TAXATION 493 494 (ALL.) CIT VS DIGVIJAY TRADE RS (1997) 137 CTR (MP) 224 CIT VS REGIONAL AGRO INDUSTRIAL DEVELOPMENT COOPERATIVE SOCIETY LTD. (1998) 143 TAX ATION 293 (KERALA) CIT VS AGARWAL ENTERPRISES (1998) 10 0 TAXMAN 360 (ALL.) AND CIT VS KAILASH APARTMENT PVT. LTD. (200) 243 ITR 795 (DEL.). TOTALITY OF FACTS CLEARL Y INDICATES THAT THE ASSESSMENT ORDER HAS BEEN FRAMED WITHOUT F ULL ENQUIRIES THEREFORE THE LD. PR. COMMISSIONER JUST IFIABLY INVOKED REVISIONAL JURISDICTION. THE HON'BLE APEX COURT IN RAJMANDIR ESTATES PVT. LTD. (2017) 77 TAXMAN.COM 285 (SC) WHEREIN THERE WAS LACK OF REQUISITE ENQUIRY INTO INCREASE OF SHARE CA PITAL AND NON-APPLICATION OF MIND THE COMMISSIONER WAS HELD TO BE JUSTIFIED IN INVOKING THE REVISIONAL JURISDICTION WHICH IS REPRODUCED HEREUNDER:- SECTION 68 READ WITH SECTION 263 OF THE INCOME-TA X ACT 1961 - CASH CREDIT (SHARE APPLICATION MONEY) - ASSESSMENT YEAR 2009- ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 18 10 - DURING RELEVANT YEAR ASSESSEE-COMPANY HAD INC REASED ITS SHARE CAPITAL BY ISSUING 7.93 LAKHS SHARES OF RS.10 EACH AT A PREMIUM OF RS.390 - ASSESSING OFFICER COMPLETED ASS ESSMENT WITHOUT HOLDING REQUISITE INVESTIGATION EXCEPT FOR CALLING FOR RECORDS - COMMISSIONER PASSED ORDER UNDER SECTION 2 63 AND OPINED THAT THIS COULD BE A CASE OF MONEY LAUNDERIN G WHICH WENT UNDETECTED DUE TO LACK OF REQUISITE ENQUIRY IN TO INCREASE OF SHARE CAPITAL INCLUDING PREMIUM RECEIVED BY ASSESSE E AND NON- APPLICATION OF MIND - HIGH COURT BY IMPUGNED ORDER HELD THAT SINCE ASSESSEE WITH AN AUTHORISED SHARE CAPITAL OF RS.1.36 CRORES RAISED NEARLY A SUM OF RS.32 CRORES ON ACCOU NT OF PREMIUM AND CHOSE NOT TO GO IN FOR INCREASE OF AUTH ORISED SHARE CAPITAL MERELY TO AVOID PAYMENT OF STATUTORY FEES W AS AN IMPORTANT POINTER NECESSITATING INVESTIGATION AND T HUS COMMISSIONER WAS JUSTIFIED IN TREATING ASSESSMENT O RDER ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE - WHETHER SPECIAL LEAVE PETITION FILED AGAINST IMPUGNED ORDER WAS TO BE DISMISSED - HELD YES [PARA 2] [IN FAVOUR OF REVENU E] EVEN OTHERWISE THE LD. COMMISSIONER HAS MERELY DIRECTED THE ASSESSING OFFICER TO MAKE PROPER ENQUI RIES AND AFTER AFFORDING OPPORTUNITY TO THE ASSESSEE DECIDE IN ACCORDANCE WITH LAW THEREFORE PRINCIPALLY; THE AS SESSEE SHOULD NOT FEEL AGGRIEVED BECAUSE IF THE ASSESSEE IS IN A POSITION TO EXPLAIN THE FACTUAL MATRIX NO GRIEVANC E WILL BE CAUSED TO THE ASSESSEE. AT THE SAME TIME THE MANDA TE OF ARTICLE 265 OF CONSTITUTION OF INDIA IS TO LEVY AND COLLECT DUE TAXES. IT IS ALSO NOTED THAT THE SCOPE OF REVIS IONARY JURISDICTION U/S 263 HAS BEEN WIDENED BY THE EXPLAN ATION- 1 (C) INSERTED BY THE FINANCE ACT 1989 AND EXPLANA TION-2 INSERTED BY THE FINANCE ACT 2015 W.E.F. 01/06/2015. AS ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 19 PER SUB-CLAUSE(A) TO EXPLANATION-2 THE ORDER WAS T O BE PASSED AFTER MAKING ENQUIRIES OR VERIFICATION WHICH SHOULD HAVE BEEN MADE AND FURTHER SUB-CLAUSE (C) THE ORDE R HAS NOT BEEN MADE IN ACCORDANCE WITH ANY ORDER DIRECTI ON OR INSTRUCTION ISSUED BY THE BOARD U/ S119 OF THE ACT. THE LD. ASSESSING OFFICER MECHANICALLY ACCEPTED THE CLA IM OF THE ASSESSEE AND EVEN THERE IS NO WHISPER IN THE ASSESSMENT ORDER WITH RESPECT TO UNEXPLAINED CASH CREDIT/GENUINENESS AND THE SOURCE OF THE CAPITAL INTRODUCED IN M/S DEV STEELS. EVEN THE HON'BLE APEX COURT IN A LAND MARK DECISION IN MALABAR INDUSTRIAL CO. L TD. VS CIT (SUPRA) HAS HELD THAT IT THE ASSESSING OFFICER HAS ACCEPTED THE ENTRY IN THE STATEMENTS OF ACCOUNTS F ILED BY THE TAX PAYER WITHOUT MAKING ANY ENQUIRY THE SAID ORDER SHALL BE DEEMED TO BE ERRONEOUS IN SO FAR AS PREJUD ICIAL TO THE INTEREST OF REVENUE. SO FAR AS THE DECISION FRO M HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF MURLI AGRO PRODUCTS LTD. IS CONCERNED THIS ORDER IS DATED 29/10/2010 WHEREIN THERE WAS NOTHING ON RECORD TO SUGGEST THA T ANY MATERIAL WAS UNEARTHED DURING SEARCH OR DURING PROCEEDINGS INITIATED U/S 153A SHOWING THAT CERTAIN RELIEF ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 20 IN THE FORM OF DEDUCTION WAS WRONGLY ALLOWED TO THE ASSESSEE THEREFORE IS ON DIFFERENT FACTS. IT IS A LSO NOTED THAT THIS ORDER FROM HON'BLE JURISDICTIONAL HIGH CO URT IS PRIOR TO INSERTION OF EXPLANATION -2 WHICH IS W.E. F. 01/06/2015 AND THE ORDER FROM THE HON'BLE HIGH COUR T IS DATED 29/10/2010. THUS THIS DECISION MAY NOT HELP THE ASSESSEE. THE DECISION DATED 30/12/2015 IN THE CASE OF ANUJ JAYENDRA SHAH VS PR. CIT (2016) (67 TAXMAN.COM 38)(MUM. TRIB.) RELIED UPON BY CIT-DR SQUARELY COV ERS THE ORDER OF THE LD. PR. COMMISSIONER WHEREIN THE GENUINENESS OF GIFT WAS NOT EXAMINED WITH RESPECT T O IDENTITY CREDITWORTHINESS AND CAPACITY OF THE DONO R. LIKEWISE THE DECISION IN THE CASE OF M/S CROMPTON G REAVES VS CIT (ITA NO.1994/MUM/2013) ORDER DATED 01/02/20 16 FURTHER SUPPORTS THE CASE OF THE REVENUE. AS MENTIO NED EARLIER THE LD. PR. COMMISSIONER WHILE INVOKING TH E REVISIONAL JURISDICTION HAS NOT THRUST UPON HIS VIE W AND MERELY ASKED THE LD. ASSESSING OFFICER TO MAKE FRES H INVESTIGATION/ENQUIRY AND TO PROVIDE DUE OPPORTUNIT Y TO THE ASSESSEE. THEREFORE NO GRIEVANCE SHOULD BE CAUSED TO THE ASSESSEE AS THE INTENT OF SECTION 265 OF CONSTITUTI ON OF ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 21 INDIA IS TO LEVY AND COLLECT DUE TAXES. THUS WE FI ND NO INFIRMITY IN INVOKING THE REVISIONAL JURISDICTION B Y THE LD. PR. COMMISSIONER. 3. SO FAR AS THE APPEALS IN THE CASE OF M/S DEV STEELS ARE CONCERNED A SEARCH ACTION U/S 132 OF TH E ACT WAS CARRIED AT THE OFFICE PREMISES OF M/S UNITY INFRA P ROJECTS LTD. (HEREINAFTER UIL) ON 10/02/2012 ALONG WITH THE DIRE CTORS OF THE COMPANY AND OTHER RELATED CONCERNS. IT WAS FOU ND THAT UIL CLAIM TO HAVE MADE PURCHASES STEEL FROM THE ASS ESSEE FIRM. THEREFORE SURVEY ACTION U/S 133A OF THE ACT WAS CARRIED OUT AT TWO PREMISES BELONGING TO THE ASSESS EE. STATEMENT OF SHRI DEVANG GANDHI PARTNER OF THE ASS ESSEE FIRM WAS RECORDED ON OATH WHEREIN HE SPECIFICALLY TENDERED OF ISSUING ACCOMMODATION BILLS TO UIL. DURING SEARC H IN THE CASE OF UIL THE DOCUMENTS BELONGING TO THE ASSESSE E FIRM WERE ALSO SEIZED. AS PER PURCHASE BILLS THE ASSESS EE FIRM ALSO ALLEGED TO HAVE MADE PURCHASES FROM M/S SCANA COLOR INDIA LTD. AND THE DETAILS OF TRANSPORT VEHICLE/LOR RY NO. WERE NOT MENTIONED IN THE BILL. THE SALE CORRESPOND ING TO THE PURCHASES WHEREIN ALSO SUCH NUMBERS WERE NOT MENTIONED. THE MODE OF PAYMENT THROUGH CHEQUE OR CA SH ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 22 WERE ALSO NOT MENTIONED. VIDE PANCHNAMA DATED 11/02/2012 CERTAIN INCRIMINATING DOCUMENTS WERE SE IZED. SHRI DEVANG GANDHI WAS ASKED TO PROVE THE GENUINENE SS OF THE SALES BY THE ASSESSEE FIRM TO UIL AND IN QUESTI ON NO.7 TO THE STATEMENT HE WAS ASKED TO SUBSTANTIATE THE PUR CHASES MADE FROM CERTAIN PARTIES WHEREIN HE CONFESSED TH AT HE IS UNABLE TO SUBSTANTIATE THE PURCHASES MADE FROM SUCH PARTIES AND THERE WAS NO ACTUAL RECEIPT OF GOODS AN D THERE WAS ACCOMMODATION ENTRIES ONLY AND THE SALE ENTRIES WERE BOOKED IN THE NAME OF UIL. THE RELEVANT PORTION OF THE STATEMENT IS AVAILABLE ON RECORD. THE LD. ASSESSING OFFICER WHILE MAKING THE ASSESSMENT WORKED OUT THE COMMISSI ON AT THE RATE OF 2% ON THE SALES (SHOWN BY WAY OF ACCOMMODATION BILLS). THE DDIT(INV.) IN HIS APPRAIS AL REPORT SUGGESTED FOR COMPUTING THE COMMISSION IN PROVIDING ACCOMMODATION BILLS AT THE RATE OF 5% AND THE LD. A SSESSING OFFICER WITHOUT ASSIGNING ANY REASON DIFFERED WITH THE SUGGESTION AND ADOPTED THE RATE AT 2%. WITHOUT GOI NG INTO THE MERITS OF THE ADOPTION OF RATES WE ARE OF THE VIEW THAT THE LD. ASSESSING OFFICER WAS JUDICIOUSLY EXPECTED TO EXAMINE THE FACTS IN THE LIGHT OF THE PROVISION OF THE ACT AND ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 23 FURTHER TO INVESTIGATE/EXAMINE THE FACTUAL MATRIX. IT IS ALSO NOTED THAT BY THE IMPUGNED ORDER THE LD. COMMISSIO NER OF INCOME TAX (APPEAL) CONSIDERING EXPLANATION-2 TO SE CTION 263 (BY THE FINANCE ACT 2015) DIRECTED THE LD. ASSE SSING OFFICER TO MAKE NECESSARY ENQUIRY/INVESTIGATION AND AFTER ASCERTAINING THE FACTS REFRAME THE ASSESSMENT WITH FURTHER DIRECTION TO PROVIDE OPPORTUNITY TO THE ASSESSEE. S O FAR AS THE CASES RELIED UPON BY THE LD. COUNSEL FOR THE AS SESSEE ARE CONCERNED CONSIDERING THE TOTALITY OF FACTS WE AR E OF THE VIEW THAT THESE ARE ON DIFFERENT FACTS THEREFORE M AY NOT HELP THE ASSESSEE. THUS CONSIDERING THE FACTUAL MATRIX AND THE JUDICIAL PRONOUNCEMENTS WE DONT FIND ANY INFIRMIT Y IN THE IMPUGNED ORDER CONSEQUENTLY WE AFFIRM THE REVISIO NAL JURISDICTION INVOKED BY THE LD. PR. COMMISSIONER. FINALLY ALL THE APPEALS ARE DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 24/11/2017. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER % MUMBAI; ) DATED : 24/11/2017 F{X~{T? P.S / /. . . ITA NO. 3747/MUM/2016 ITA NO.3748 TO 3752/MUM/2016 SHRI DEVANG GANDHI & M/S DEV STEEL 24 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. + -. / THE APPELLANT (RESPECTIVE ASSESSEE) 2. /0-. / THE ASSESSEE. 3. 1 1 2# ( + ) / THE CIT MUMBAI. 4. 1 1 2# / CIT(A)- MUMBAI 5. 4$5 /# 1 + ' + 6 % / DR ITAT MUMBAI 6. ! 7% / GUARD FILE. ! / BY ORDER 04 # /# //TRUE COPY// /! (DY./ASSTT. REGISTRAR) % / ITAT MUMBAI