M/S SDC CONSTRUCTION, JAIPUR v. PR. COMMISSIONER OF INCOME TAX, JAIPUR-1, JAIPUR

ITA 481/JPR/2019 | 2014-2015
Pronouncement Date: 29-11-2019 | Result: Dismissed

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Appeal Details

RSA Number 48123114 RSA 2019
Assessee PAN ABIFS9788E
Bench Jaipur
Appeal Number ITA 481/JPR/2019
Duration Of Justice 7 month(s) 24 day(s)
Appellant M/S SDC CONSTRUCTION, JAIPUR
Respondent PR. COMMISSIONER OF INCOME TAX, JAIPUR-1, JAIPUR
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2019
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 29-11-2019
Last Hearing Date 10-06-2019
First Hearing Date 10-06-2019
Assessment Year 2014-2015
Appeal Filed On 05-04-2019
Judgment Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENC HES A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO JM & SHRI VIKRA M SINGH YADAV AM VK;DJ VIHY LA- @ ITA NO. 481/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2014-15 M/S SDC CONSTRUCTION A-8 SHYAM NAGAR AJMER ROAD JAIPUR CUKE VS. THE PR. COMMISSIONER OF INCOME TAX JAIPUR-1 JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABIFS9788E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : S. L. PODDAR (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : VARINDER MEHTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 06/11/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 29/11/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. PR.CIT-1 JAIPUR DATED 29.03.2019 WHEREIN THE ASSESSEE HAS TA KEN THE FOLLOWING GROUNDS OF APPEAL:- 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED PR. CIT-1 JAIPUR HAS ERRED IN PASSING THE ORDER U/S 263 OF TH E INCOME TAX ACT 1961. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE L EARNED PR. CIT JAIPUR-1 JAIPUR HAS ERRED IN HOLDING THAT THE ORDE R PASSED BY LEARNED ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT 1961 DATED 19.12.2016 WAS ERRONEOUS AND PREJUDICE TO THE INTER EST OF THE REVENUE. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED PR. CIT JAIPUR-1 JAIPUR HAS ERRED IN HOLDING THAT THE ASSE SSING OFFICER HAS WRONGLY ALLOWED DEDUCTION UNDER SECTION 80IB OF THE INCOME TAX ACT ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 2 1961 FOR RS. 78 03 786/- WITHOUT EXAMINING THE ELIG IBILITY OF THE ASSESSEE FIRM. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS ENGAGED IN THE BUSINESS OF CONSTRUCTION AND DEVELOPMENT OF LOW COST HOUSING PROJECTS. IT FILED ITS RETURN OF INCOME ON 23.09.2014 DECLARING NIL INCOME AFTER CLAIMING DEDUCTION U/S 80IB OF THE ACT. THE CASE WAS SELECTE D FOR SCRUTINY UNDER CASS AND A NOTICE U/S 143(2) WAS ISSUED TO THE ASSESSEE ON 10.09.2015. SUBSEQUENTLY THE ASSESSMENT ORDER WAS PASSED U/S 1 43(3) DATED 19.12.2016 WHEREIN THE RETURNED INCOME WAS ACCEPTED. THEREAFTE R THE ASSESSMENT RECORDS WERE CALLED FOR AND REVIEWED BY THE LD. PR. CIT AND THE ORDER U/S 263 WAS PASSED SETTING ASIDE THE ASSESSMENT ORDER PASSE D BY THE ASSESSING OFFICER U/S 143(3) WITH THE FOLLOWING DIRECTIONS: 12. KEEPING THE ABOVE DISCUSSION IN VIEW BY THE V IRTUE OF THE POWERS CONFERRED ON THE UNDERSIGNED UNDER THE PROVISIONS O F SECTION 263 OF THE IT ACT 1961 I HOLD THAT THE ORDER UNDER SECTION 14 3(3) DATED 19.12.2016 FOR ASSESSMENT YEAR 2014-15 PASSED BY TH E ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE AS THE ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER IN A ROUTINE AND PERFUNCTORY MANNER WITHOUT MAKING ENQUIRIES/VERIFIC ATION WHICH OUGHT TO HAVE BEEN MADE BEFORE ACCEPTING THE SUBMISSION MADE BY THE ASSESSEE REGARDING DEDUCTION U/S 80IB DURING THE YEAR. IT IS THEREFORE LIABLE TO REVISION UNDER EXPLANATION (2) CLAUSE (A) CLAUSE ( B) OF SECTION 263 OF THE INCOME TAX ACT. HENCE THE ASSESSMENT ORDER IS SET A SIDE ON THE ISSUE OF DEDUCTION CLAIMED U/S 80IB OF THE ACT DURING THE YE AR WITH A DIRECTION TO THE ASSESSING OFFICER TO ASSESS THE CASE OF THE ASS ESSEE DENOVO IN ACCORDANCE WITH LAW AFTER MAKING THE NECESSARY ENQU IRIES EXAMINATION AND VERIFICATION IN RESPECT OF THE DEDUCTION CLAIME D BY THE ASSESSEE U/S ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 3 80IB OF THE ACT WHICH CAN ONLY BE ALLOWED IF ALL TH E CONDITIONS LAID DOWN FOR ITS ALLOWABILITY ARE FULFILLED BY THE ASSESSEE. THE AO IS DIRECTED TO FINALIZE THE ASSESSMENT KEEPING IN VIEW THE AFORESA ID DIRECTIONS. HOWEVER AN OPPORTUNITY TO THE ASSESSEE TO STATE ITS CASE IS TO BE ALLOWED IN THE INTEREST OF NATURAL JUSTICE. 3. AGAINST THE AFORESAID FINDINGS OF LD. PR. CIT T HE ASSESSEE IS IN APPEAL BEFORE US. DURING THE COURSE OF HEARING THE LD. A R SUBMITTED THAT THE CASE OF THE ASSESSEE WAS SELECTED FOR LIMITED SCRUTINY AND SAID FACT HAS BEEN MENTIONED BY THE LD. PR.CIT IN HER SHOW CAUSE NOTIC E U/S 263 DATED 10.01.2019. IT WAS SUBMITTED THAT IN LIMITED SCRUTI NY CASES THE ASSESSING OFFICER IS REQUIRED TO MAKE INQUIRY AND FRAME THE A SSESSMENT WITH RESPECT TO THE ISSUES FOR WHICH THE CASE WAS SELECTED. IN THIS REGARD REFERENCE WAS DRAWN TO THE INSTRUCTIONS ISSUED BY THE CBDT ON 14.07.201 6 VIDE INSTRUCTION NO. 5 OF 2016. IT WAS ACCORDINGLY SUBMITTED THAT THE ASSESSI NG OFFICER WAS THEREFORE PRECLUDED FROM MAKING ANY OTHER ENQUIRIES EXCEPT TH OSE COVERED UNDER LIMITED SCRUTINY. IN THE INSTANT CASE THE PARAMETER FOR LI MITED SCRUTINY SELECTION WERE HIGH INTEREST EXPENDITURE AGAINST NEW CAPITAL ADDED WORKING PROGRESS OR ADDITION MADE TO FIXED ASSETS AND SALE CONSIDERATIO N OF THE PROPERTY IN ITR IS LESS THAN SALE CONSIDERATION IN AIR. IT WAS SUBMITT ED THAT IN VIEW OF THE SAME IT WAS NOT WITHIN THE POWERS OF THE ASSESSING OFFIC ER TO EXAMINE THE CORRECTNESS OF THE CLAIM OF DEDUCTION U/S 80IB OF T HE ACT WHICH IS THE SUBSTANCE OF THE ORDER PASSED BY THE LD PR. CIT U/S 263 THAT THE ASSESSING OFFICER HAS ALLOWED DEDUCTION U/S 80IB WITHOUT VERI FYING AND EXAMINING THE CLAIM OF THE ASSESSEE. IT WAS SUBMITTED THAT IN THE INSTANT CASE THE ASSESSMENT ORDER CANNOT BE HELD AS ERRONEOUS AND PR EJUDICIAL TO THE INTEREST OF THE REVENUE WHEN THE ASSESSING OFFICER WAS NOT SUPP OSED TO EXAMINE THE ISSUE AT ALL. ONCE THE ASSESSING OFFICER WAS NOT CO MPETENT TO EXAMINE THE ISSUE OF DEDUCTION U/S 80IB OF THE ACT HE CANNOT BE HELD RESPONSIBLE FOR NOT ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 4 EXAMINING AND VERIFYING THE CLAIM U/S 80IB OF THE A CT. IT WAS ACCORDINGLY SUBMITTED THAT LD. PR. CIT WAS WRONG IN SETTING ASI DE THE ASSESSMENT ORDER AND THEREFORE THE ORDER SO PASSED BY THE LD. PR. CIT D ESERVES TO BE QUASHED. 4. ON MERITS IT WAS SUBMITTED BY THE LD AR THAT DU RING THE PROCEEDINGS U/S 263 BEFORE THE PR. CIT IT WAS SUBMITTED THAT ALL T HE CONDITIONS FOR ALLOWING CLAIM U/S 80IB OF THE ACT STOOD COMPLIED WITH BY TH E ASSESSEE AND THERE WAS NO OCCASION FOR ISSUING DIRECTIONS TO THE ASSESSING OFFICER TO RE-EXAMINE THE ISSUE. IT WAS SUBMITTED THAT IT IS NOT THE CASE OF THE LD. PR.CIT THAT THE ASSESSEE DID NOT COMPLY WITH THE PROVISIONS OF SECT ION 80IB RATHER THE CASE OF THE LD. PR. CIT IS THAT THE CLAIM U/S 80IB OF THE A CT WAS ALLOWED WITHOUT VERIFICATION AND EXAMINATION. FURTHER IT WAS SUBMI TTED THAT IN RESPECT OF VARIOUS OBJECTIONS RAISED BY THE LD. PR. CIT VIS-- VIS CONDITIONS FOR CLAIMING THE DEDUCTION THE ASSESSEE HAS COMPLIED WITH THE SAME AS PER DETAILS BELOW:- SR. NO. OBJECTION BY LEARNED PR. CIT COMPLIANCE BY THE ASSE SSEE (I) FORM NO. 10CCB NOT SENT ELECTRONICALLY IT STOOD FURNISHED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. (II) FORM NO. 10CCB DOES NOT RELATE TO ANY SPECIFIC PROJECT THAT THERE IS ONLY ONE PROJECT IN THE ASSESSEE FIRM WHICH IS METROPLIS. EXCEPT THE METROPLIS PROJECT THE COMPANY HAS NO OTHER PROJECT FOR CONSTRUCTION. (III) FIRM HAS TAKEN LOANS AND HAS GIVEN ADVANCES WHICH SHOWS THAT IT WAS ENGAGED IN OTHER ACTIVITIES ALSO THE ASSESSEE FIRM IS NOT ENGAGED IN OTHER BUSINESS EXCEPT THE BUSINESS OF CONSTRUCTION/REAL ESTATE. THE ASSESSEE COMPANY HAS OBTAINED LOANS ONLY FROM ITS PARTNERS WITHOUT MAKING ANY PAYMENTS FOR INTEREST. THE ASSESSEE HAS ALSO ADVANCED LOAN TO ITS SISTER CONCERNS AND PARTNERS WHICH IS ALSO INTEREST FREE. THEREFORE ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 5 THERE IS NO BUSINESS OTHER THAN CONSTRUCTION OF PROJECT NAMELY METROPOLIS. HENCE THERE IS NO VIOLATION OF ANY PROVISIONS OF RULES OF WHICH MAKES THE ASSESSEE DEFAULTER FOR CLAIM OF DEDUCTION U/S 80IB OF THE INCOME TAX ACT 1961. (IV) INTEREST EXPENSES CANNOT BE RELATED TO ELIGIBLE PROJECT THE INTEREST EXPENSES CLAIMED BY THE ASSESSEE ARE WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. THE LOANS WERE UTILIZED IN COMPLETING THE METROPOLIS PROJECTS. (V) NO SEPARATE BOOKS OF ACCOUNTS WERE KEPT FOR ELIGIBLE PROJECT SINCE THERE IS ONLY ONE PROJECT IN THE ASSESSEE FIRM AS SUCH THE BOOKS MAINTAINED ARE ONLY FOR SUCH PROJECT. (VI) TWO FLATS SOLD TO ONE PERSON SHRI RAHUL MISHRA IN VIOLATION OF SECTION 80IB(10) THAT THE ASSESSEE FIRM HAS SOLD FLAT NO. 207-208 TO SHRI RAHUL MISHRA WHICH IS SINGLE UNIT AND THE TOTAL BUILT-UP AREA OF THIS UNIT IS 1247 SQUARE FEET. (VII) FLAT HAVING SUPER-BUILT AREA OF 1170 SQFT SOLD TO SHRI SUDESH SINGH IN VIOLATION OF LIMIT OF 1500 SQFT FLAT NO. 612 SOLD TO SHRI SUDESH SINGH SOMAN IS HAVING ONLY 1363 SQUARE FEET BUILT-UP AREA WHICH IS IN THE CAP SPECIFIED IN THE SECTION I.E. 1500 SQUARE FEET. THE AREA OF 1770 SQUARE FEET IS SUPER BUILT-UP AREA. THE BUILT-UP AREA IS ONLY 1363 SQUARE FEET. HENCE THE ASSESSEE FIRM HAS NOT VIOLATED ANY PROVISIONS OF THE ACT. (VIII) APPROVAL OF COMPETENT AUTHORITY NOT FILED THE ASSESSEE FIRM HAS TAKEN APPROVAL OF THIS PROJECT FROM JAIPUR DEVELOPMENT AUTHORITY ON 30.03.2007 WHICH IS COMPETENT AUTHORITY. (IX) DATE OF COMMENCEMENT OF 07.04.2007 ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 6 ACTIVITY BY THE FIRM (X) DATE OF COMPLETION OF THE PROJECT 17.10.2009 5. FURTHER REFERRING TO THE PROVISIONS OF SECTION 80IB (10) OF THE ACT THE LD. AR SUBMITTED THAT THE ASSESSEE FULLY COMPLIED WITH THE PROVISIONS OF SECTION 80IB(10) OF THE ACT. IN THIS REGARD IT WAS SUBMITT ED AS UNDER:- THE PERUSAL OF THE AFORESAID PROVISION REVEALS FOL LOWING: - (I) THE DEDUCTION IS AVAILABLE TO THE ASSESSEE WHERE TH E HOUSING PROJECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY ON OR AFTER 1 ST APRIL 2005 AND THE CONSTRUCTION IS COMPLETED WITHIN FIVE YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE PROJECT IS APPROVED BY THE LOCAL AUTHORITY. IN THE CASE OF THE ASSESSEE THE APPROVAL WAS GIVEN ON 30.03.2008 AND THE PROJECT STOOD COMPLETED ON 17.10.2009. THUS THE ASSESSEE HAS COMPLIED WITH THE PROVISIONS OF SECTION 80IB(10)(A) (III). (II) IN THE ORDER U/S 263 THE PR. CIT HAS WRONGLY STATED THAT THE CIRCULAR OF THE BOARD NO. 4/2009 MANDATES COMPLETIO N OF THE PROJECT WITHIN THE SPECIFIED TIME IN FOUR YEARS. IN FACT TH IS TIME LIMIT OF FOUR YEAR IS APPLICABLE IN CASES WHERE APPROVAL BY THE LOCAL AUTHORITY WAS GIVEN BETWEEN 01.04.2004 TO 31.03.2005 [PROVISIONS OF SEC TION 80IB(10(A)(II)]. (III) REGARDING DEFAULT OF THE ASSESSEE IN NOT FURNISHING FORM NO. 10CCB ELECTRONICALLY WITH THE RETURN OF INCOME IT I S SUBMITTED THAT ASSESSEE CANNOT BE DENIED DEDUCTION SIMPLY ON THIS GROUND IF THE ASSESSEE HAS SUCCESSFULLY FILED FORM NO. 10CCB BEFO RE FINAL ASSESSMENT ORDER IS MADE. CIT VS. G.M. KNITTING INDUSTRIES (P) LTD. (2015) 375 ITR 456 (SC). ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 7 PROVISIONS OF SECTION 80-IA(7) REQUIRING FILING OF AUDIT REPORT ALONG WITH RETURN ARE NOT MANDATORY BUT DIRECTLY AND IF AUDIT IS FILED AT ANY TIME BEFORE FRAMING OF ASSESSMENT THEN REQUIREMENT OF SE CTION 80-IA(7) WOULD BE MET. THE FOLLOWING CASE LAWS ARE QUOTED IN SUPPORT: - CIT VS. CONTIMETERS ELECTRICALS (P) LTD 178 TAXMAN 422 (DEL) CIT VS. ACE MULTITAXES SYSTEMS P. LTD (2009) 317 IT R 307 (KAR.) CIT VS. MEDICAPS LTD. (2010) 323 ITR 554 (MP) CIT VS. AKS ALLOYP LTD. (2012) 205 TAXMAN 11 (MAG.) CIT VS. SANJAY KUMAR BANSAL (2013) 219 TAXMAN 41 (U K) (IV) REGARDING COMMITTING MISTAKE IN DATING THE CERTIFIC ATE IN FORM 10CCB AS 30.03.2008 INSTEAD OF 30.03.2007 AN AFFID AVIT OF THE CONCERNED CA IS SUBMITTED HEREWITH. IT WAS ACCORDINGLY SUBMITTED THAT THE LD. PR. CIT W AS NOT JUSTIFYING IN PASSING THE ORDER U/S 263 OF THE ACT AND THE SAME DESERVES TO BE QUASHED. 6. PER CONTRA THE LD. CIT DR STRONGLY SUPPORTED TH E FINDINGS AND THE DIRECTIONS OF THE LD. PR. CIT IN SETTING ASIDE THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT. REFERRING TO THE NOTICE U/S 143( 2) AND ASSESSMENT ORDER PASSED U/S 143(3) IT WAS SUBMITTED THAT THE CASE O F THE ASSESSEE WAS SELECTED UNDER CASS AS MENTIONED IN BOTH THE NOTICE AND THE ASSESSMENT ORDER. FURTHER OUR REFERENCE WAS DRAWN TO THE ISSUE OF NO TICE BY THE AO U/S 142(1) DATED 11.08.2016 WHICH HAS BEEN REPRODUCED BY THE L D PR. CIT AT PARA 4 OF THE ORDER WHICH SHOWS THAT THE ASSESSING OFFICER HAS IS SUED THE QUERIES AND SOUGHT INFORMATION/DOCUMENTS ON VARIOUS MATTERS ARISING OU T OF THE RETURN FILED BY THE ASSESSEE COMPANY. FURTHER OUR REFERENCE WAS DRAWN TO THE PARA 2 AND 3 OF THE LD. PR. CIT ORDER WHEREIN IT WAS STATED THAT TH E CASE WAS SELECTED FOR ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 8 COMPLETE SCRUTINY UNDER CASS. IT WAS FURTHER SUBMIT TED THAT THE CASE WAS TAKEN FOR REVIEW BY THE LD. ADD. CIT RANGE 2 JAIP UR AND IN HIS REPORT AS WELL HE HAS ALSO STATED THAT THE CASE WAS SELECTED FOR C OMPLETE SCRUTINY. IT WAS ACCORDINGLY SUBMITTED THAT EVEN THOUGH IN THE SHOW CAUSE NOTICE ISSUED BY THE LD. PR. CIT. IT HAS BEEN STATED THAT THE CASE WAS S ELECTED FOR LIMITED SCRUTINY THE SAME APPEARS TO BE INADVERTENT MISTAKE AND FACT UALLY NOT CORRECT IN VIEW OF THE OTHER MATERIALS FACTS AVAILABLE ON RECORD. IT W AS ACCORDINGLY SUBMITTED THAT THE CASE OF THE ASSESSEE WAS CLEARLY SELECTED FOR C OMPLETE SCRUTINY AND NOT LIMITED SCRUTINY. THEREFORE THE CONTENTION ADVANC ED BY THE LD AR SHOULD NOT BE ACCEPTED. IT WAS FURTHER SUBMITTED THAT EVEN WHE RE IT IS HELD BY THE BENCH THAT THE CASE WAS INITIALLY SELECTED FOR LIMITED SC RUTINY GIVEN THAT THE ASSESSING OFFICER WAS SEIZED OF THE MATERIAL THAT THE ASSESSE E HAS CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT AND ON PRIMA FACIE READING OF T HE REPORT IN FORM NO. 10CCB SO SUBMITTED MANUALLY BY THE ASSESSEE IT IS REASON ABLY POSSIBLE TO FORM THE VIEW THAT THE CLAIM SO MADE BY THE ASSESSEE COMPANY IS NOT ADMISSIBLE THE ASSESSING OFFICER SHOULD HAVE SOUGHT THE PERMISSION OF THE CONCERNED HIGHER AUTHORITIES TO CONVERT THE CASE FROM LIMITED SCRUTI NY TO COMPLETE SCRUTINY AND OUR REFERENCE WAS DRAWN TO THE INSTRUCTION NO. 5/20 16 DATED 14 TH JULY 2016 ISSUED BY THE CBDT. IT WAS ACCORDINGLY SUBMITTED TH AT WHERE THERE EXISTS MATERIAL AND INFORMATION ON RECORD THAT THE CLAIM M ADE BY THE ASSESSEE IS PRIMA FACIE NOT ADMISSIBLE THEN THE ASSESSING OFFIC ER SHOULD HAVE REFERRED THE MATTER TO SUPERIOR AUTHORITIES AND SOUGHT THE NECES SARY PERMISSION TO CONVERT THE MATTER FROM LIMITED SCRUTINY TO COMPLETE SCRUTI NY. IT WAS THEREFORE SUBMITTED THAT THERE WAS A FAILURE ON THE PART OF T HE ASSESSING OFFICER AND NON APPLICATION OF MIND BY THE ASSESSING OFFICER IN RES PECT OF MATERIAL AVAILABLE ON RECORD AND WHERE ON PERUSAL OF THE SAID MATERIAL T HE LD. PR. CIT HAS INVOKED HER JURISDICTION U/S 263 OF THE ACT THE SAME CANNO T BE CHALLENGED BY THE ASSESSEE AS THE SAME WILL RENDER THE PROVISIONS OF SECTION 263 REDUNDANT AND ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 9 MAKE THE INVOCATION OF JURISDICTION U/S 263 IN ALL CASES OF LIMITED SCRUTINY OTIOSE. 7. IT WAS FURTHER SUBMITTED BY THE LD CIT DR THAT T HE ASSESSEE SUBMITTED A COPY OF FORM NO. 10CCB DURING THE COURSE OF ASSESSM ENT PROCEEDINGS ONLY ON 15.12.2016 AND THEREAFTER THE ASSESSMENT WAS COMPL ETED AND ORDER PASSED ON 19.12.2016 BY SIMPLY ACCEPTING THE CLAIM OF THE ASSESSEE U/S 80IB OF THE ACT WITHOUT ANY QUERY AND ANY QUESTION BEING ASKED BY THE ASSESSING OFFICER. IT WAS FURTHER SUBMITTED THAT BASIS THE REVIEW OF T HE FORM NO. 10CCB AND OTHER INFORMATION AND DOCUMENTS SUBMITTED BY THE AS SESSEE DURING THE REVISION PROCEEDINGS BEFORE THE LD. PR. CIT THE LATTER HAS CARRIED OUT DETAIL EXAMINATION AND GIVEN HER FINDING AT PAGES 15 TO 19 OF HER ORDE R BASIS WHICH FURTHER EXAMINATION BY THE ASSESSING OFFICER HAS BEEN DIREC TED HENCE THE MATTER WAS RIGHTLY SET ASIDE TO THE FILE OF THE ASSESSING OFFI CER. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FIRSTLY ON THE ISSUE OF WHETHER THE MAT TER WAS SELECTED FOR LIMITED SCRUTINY OR COMPLETE SCRUTINY ON PERUSAL OF THE NO TICES ISSUED U/S 143(2) 142(1) AND THE ASSESSMENT ORDER PASSED U/S 143(3) WE ARE OF THE CONSIDERED VIEW THAT THE CASE OF THE ASSESSEE WAS SELECTED UND ER CASS FOR COMPLETE SCRUTINY AND NOT FOR LIMITED SCRUTINY. WE FIND THAT FIRSTLY THERE IS NO MENTION IN THE NOTICE U/S 143(2) THAT THE MATTER HAS BEEN SELE CTED FOR LIMITED SCRUTINY SECONDLY ALONG WITH NOTICE U/S 142(1) A DETAILED QUESTIONNAIRE WAS ISSUED BY THE ASSESSING OFFICER ON VARIOUS ISSUES EMANATING F ROM THE RETURN OF INCOME FILED BY THE ASSESSEE AND THE SAME HAVE BEEN RESPON DED BY THE ASSESSEE COMPANY FROM TIME TO TIME. HAD THE CASE OF THE ASS ESSEE BEING SELECTED FOR LIMITED SCRUTINY AS SO CLAIMED BY THE LD AR THE QUESTIONNAIRE/INQUIRY/INVESTIGATION WOULD HAVE BEEN LIMITED AND RESTRICTED TO SUCH ISSUES AS ALSO APPARENT FROM INSTRUCTION NO. 5 /2016 DATED 14 TH JULY 2016 ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 10 ISSUED BY CBDT WHICH HAS BEEN RELIED UPON BY THE LD. AR AND BINDING ON THE ASSESSING OFFICER. PARA 4 OF THE SAID INSTRUCTIONS IS RELEVANT AND THE SAME READS AS UNDER:- 4. IT IS FURTHER CLARIFIED THAT IN CASES UNDER LI MITED SCRUTINY THE SCRUTINY ASSESSMENT PROCEEDINGS WOULD INITIALLY BE CONFINED ONLY TO ISSUES UNDER LIMITED SCRUTINY AND QUESTIONNAIRES ENQUIRY INVESTIGATION ETC. WOULD BE RESTRICTED TO SUCH ISSUES. ONLY UPON CONVERSION OF CASE OF COMPLETE SCRUTINY AFTER FOLLOWING THE PROCEDURE O UTLINES ABOVE THE AO MAY EXAMINE THE ADDITIONAL ISSUES BESIDES THE ISSUE (S) INVOLVED IN LIMITED SCRUTINY. THE AO SHALL ALSO EXPEDITIOUSLY INTIMATE THE TAXPAYER CONCERNED REGARDING CONDUCTING COMPLETE SCRUTINY IN SUCH CASES. 9. THE AFORESAID INSTRUCTIONS ISSUED BY THE CBDT AR E CLEAR TO THE EFFECT THAT ONLY WHEN THE CASE HAS BEEN CONVERTED FROM LIMITED INTO COMPLETE SCRUTINY THE ADDITIONAL ISSUES CAN BE EXAMINED BY THE ASSESSING OFFICER AND THAT TOO AFTER THE ASSESSEE HAS BEEN INFORMED THAT THE CASE HAS BE EN CONVERTED INTO COMPLETE SCRUTINY. IN THE INSTANT CASE THEREFORE HAD IT BEEN THE CASE OF LIMITED SCRUTINY THE ENQUIRY AND LINE OF INVESTIGA TION WOULD HAVE BEEN LIMITED. HOWEVER GOING BY THE NOTICES AND THE QUESTIONNAIRE ISSUED BY THE ASSESSING OFFICER AND SUBSEQUENT RESPONSES FILED BY THE ASSES SEE COMPANY IT IS VERY APPARENT THAT THE CASE WAS SELECTED FOR COMPLETE SC RUTINY ONLY. FURTHER SIMILAR FACTUAL POSITION HAVE BEEN RECORDED AT PARA 2 AND 3 OF THE LD. PR. CITS ORDER AND ALSO APPARENT FROM THE FOLLOWING FINDINGS OF LD. PR. CIT WHICH READS AS UNDER: THE CASE OF THE ASSESSEE HAD BEEN SELECTED UNDER C OMPLETE SCRUTINY CATEGORY TO EXAMINE ALL THE FINANCIAL ASPECTS OF TH E CASE HAVING POTENTIAL IMPLICATION ON REVENUE. THIS ITSELF MANDA TED A CAREFUL AND ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 11 DETAILED EXAMINATION TO BE DONE OF ALL MATERIAL AVA ILABLE BEFORE THE CLAIM OF DEDUCTION/ EXEMPTION COULD BE ALLOWED TO T HE ASSESSEE. FURTHER THE LD. ADD. CIT RANGE 2 JAIPUR IN HIS REPORT HAS ALSO STATED THAT THE CASE OF THE ASSESSEE WAS SELECTED FOR COMPLETE SCRU TINY. WE ARE THEREFORE UNABLE TO AGREE WITH THE CONTENTIONS OF LD AR THAT MERELY BECAUSE IN THE INITIAL SHOW CAUSE NOTICE ISSUED BY THE LD. PR. CIT. IT HA S BEEN STATED THAT THE CASE WAS SELECTED FOR LIMITED SCRUTINY IT SHOULD BE ACC EPTED THAT THE CASE OF THE ASSESSEE WAS SELECTED FOR LIMITED SCRUTINY IN VIEW OF MATERIAL FACTS AS WE HAVE NOTICED ABOVE AS EMANATING FROM THE RECORDS WHICH SHOWS CLEARLY THAT THE CASE OF THE ASSESSEE WAS SELECTED FOR COMPLETE SCRU TINY. FURTHER WE FIND THAT THE ASSESSEE HAVING PARTICIPATED IN THE ASSESSMENT PROCEEDINGS AND NOT RAISING THIS OBJECTION BEFORE THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS CANNOT BE PERMITTED TO RAISE THIS CONTENTION IN THE REVISION PROCEEDINGS. WE ARE THEREFORE OF THE CONSIDERED VIEW THAT THE CASE OF T HE ASSESSEE HAD BEEN SELECTED UNDER COMPLETE SCRUTINY AND NOT UNDER LIMI TED SCRUTINY. 10. NOW COMING TO THE CONTENTIONS OF LD. AR ON MERI TS THAT THE ASSESSEE COMPANY HAS FULLY COMPLIED WITH ALL THE NECESSARY C ONDITIONS PRESCRIBED FOR CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT AND THUS THERE IS NO BASIS FOR INVOCATION OF JURISDICTION U/S 263 AND SETTING ASID E THE ASSESSMENT ORDER. FIRSTLY WE FIND THAT THE CLAIM OF THE ASSESSEE U/S 80IB WAS NOT EXAMINED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSME NT PROCEEDINGS. ADMITTEDLY THE ASSESSING OFFICER RAISED AN INITIAL QUERY ON 11 .08.2016 AND IN RESPONSE THE ASSESSEE SUBMITTED VIDE LETTER DATED 26.08.2016 THA T IT FULFILLS ALL CONDITIONS STIPULATED IN SECTION 80IB OF THE ACT. HOWEVER TH ERE IS NOTHING ON RECORD TO SUBSTANTIATE SUCH CLAIM BY THE ASSESSEE COMPANY. I T IS ONLY TOWARDS THE FAG END OF THE ASSESSMENT PROCEEDINGS THAT THE ASSESSEE SUBMITTED A COPY OF FORM NO. 10CCB ON 15.12.2016 AND THEREAFTER THE ASSESSM ENT WAS COMPLETED AND ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 12 ORDER U/S 143(3) PASSED ON 19.12.2016 BY SIMPLY ACC EPTING THE CLAIM OF THE ASSESSEE U/S 80IB OF THE ACT WITHOUT ANY QUERY AND ANY QUESTION BEING ASKED BY THE ASSESSING OFFICER AS TO HOW THE ASSESSEE HAS FULFILLED THE CONDITIONS FOR SUCH CLAIM. THE FACT THAT THE ASSESSING OFFICER HAS NOT EXAMINED THE CLAIM IS APPARENT FROM THE FACT THAT ON A READING OF THE FOR M NO. 10CCB FILED BY THE ASSESSEE COMPANY DEDUCTION IS PRIMA FACIE NOT ADMI SSIBLE AS THE DATE OF COMMENCEMENT OF OPERATION/ ACTIVITY BY THE UNDERTAK ING OR ENTERPRISE SHOWN AT 07/4/2007 DATE OF APPROVAL FROM AUTHORITY WAS S HOWN ON 30/3/2008 AND THE DATE OF COMPLETION OF PROJECT SHOWN ON 18/3/201 3. FURTHER WE NOTE THAT IN THE ASSESSMENT ORDER PASSED U/S 143(3) THE ASSESSI NG OFFICER HAS STATED THAT THE ASSESSEE FIRM IS NOTIFIED BY THE CENTRAL GOVT. IN THE SPECIAL ECONOMIC ZONES FOR CONSTRUCTION AND DEVELOPMENT OF LOW COST PROJEC T OF HOUSES AND IS ALSO ENTITLED FOR CLAIM OF DEDUCTION UNDER SECTION 80IB FOR ANY 10 CONSECUTIVE ASSESSMENT YEARS OUT OF FIFTEEN YEARS BEGINNING FRO M THE YEAR IN WHICH SPECIAL ECONOMIC ZONE HAS BEEN NOTIFIED. THIS FINDING OF T HE ASSESSING OFFICER IS CLEARLY OUT OF SYNC WITH THE FACTUAL POSITION AND CLAIM MAD E BY THE ASSESSEE COMPANY IN ITS RETURN OF INCOME. THIS AGAIN SHOWS CLEAR NON -APPLICATION OF MIND AND MECHANICAL ACCEPTANCE OF THE CLAIM OF DEDUCTION. F URTHER ON EXAMINATION BY THE LD. PR. CIT SHE HAS GIVEN SPECIFIC FINDINGS AT PAGES 15 TO 19 OF HER ORDER AND WHICH HAVE BEEN SUMMARIZED AS UNDER: THIS ACTION HAS ALLOWED THE CLAIM OF DEDUCTION TO THE TUNE OF RS. 78 03 786/- TO BE ACCEPTED WITHOUT ANY INVESTIGATIO N THUS RENDERING THE ORDER NOT ONLY ERRONEOUS BUT ALSO PREJUDICIAL TO TH E INTEREST OF REVENUE TO THAT EXTENT. THIS BY ITSELF LEAVES IT OPEN TO THE I NVOCATION OF SECTION 263 OF THE I T ACT 1961 SPECIALLY WHEN IT IS REQUIRED THAT COMPLETE INVESTIGATION ENQUIRY AND VERIFICATION IS TO BE DONE SO THAT THE DEDUCTION CLAIMED IS FIRST ESTABLISHED BEYOND DOUBT BEFORE ACCEPTANCE. THE CAS E OF THE ASSESSEE HAD BEEN SELECTED UNDER COMPLETE SCRUTINY CATEGORY TO EXAMINE ALL THE ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 13 FINANCIAL ASPECTS OF THE CASE HAVING POTENTIAL IMPL ICATION ON REVENUE. THIS ITSELF MANDATED A CAREFUL AND DETAILED EXAMINATION TO BE DONE OF ALL MATERIAL AVAILABLE BEFORE THE CLAIM OF DEDUCTION/ E XEMPTION COULD BE ALLOWED TO THE ASSESSEE. IN THIS CASE IT IS SEEN TH AT NO EFFORT TO DO SO HAS BEEN MADE. THE AO HAS NOT MADE ANY ENQUIRY ON THE I SSUE. THE DISCUSSION IN THE PRECEDING PARAGRAPHS HAS CLEARLY MADE IT APPARENT THAT ROUTINE ALLOWANCE OF CLAIM OF DEDUCTION AS MADE BY THE ASSESSEE WITHOUT ANY SCRUTINY BY THE ASSESSING OFFICER HAS RESULTED IN AN ERRONEOUS ASSESSMENT ORDER BEING FRAMED UNDER SECTION 143 (3) OF THE INCOME TAX ACT WHICH IS CLEARLY PREJUDICIAL TO THE INTEREST O F REVENUE AND CLEARLY CALLS FOR INVOCATION OF SECTION 263 OF THE INCOME TAX ACT 1961. IN THE SAID ORDER A CLAIM OF DEDUCTION U/S SECTION 801B STANDS MECHAN ICALLY ALLOWED BY THE AO WHICH APPARENTLY WAS NOT TO BE ALLOWED WITH THE SET OF FACTS AVAILABLE BEFORE THE AO I.E THE ASSESSEE HAS NOT FILED AUDITOR'S REPORT IN FORM 10CCB ELECTRONICALLY WITH RETURN OF INCOME WHICH IS MANDA TORY AS PER RULE 12(2) FOR CLAIMING DEDUCTION U/S. 80IB OF ACT. AO F AILED TO OBSERVE THE SAME. THE DATES OF PROJECTS AVAILABLE IN THE PHYSICAL COP Y OF THE AUDIT REPORT FILED DURING ASSESSMENT DOES NOT ALLOW THE B ENEFIT OF SECTION 80IB TO THE ASSESSEE IN THE CURRENT YEAR. HERE IT I S ALSO FOR CONSIDERATION THAT TILL THE SAID DEFECT WAS POINTED OUT TO THE ASSESSEE THE ASSESSEE HAD RELIED UPON THE AUDITOR'S REPORT SUBMITTED DURING THE ASSESSMENT PROCEEDINGS FOR CLA IMING THE DEDUCTION. IT IS ONLY ON POINTING OUT THE DEFECT AN D ITS INELIGIBILITY TO CLAIM THE SAID DEDUCTION THAT THE ASSESSEE HAS STAT ED THAT THE FIRST REPORT OF THE AUDITOR WAS INCORRECT AND HAS SUBMITT ED ANOTHER REPORT STATING THAT IT IS THE CORRECT ONE. ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 14 IF THE SECOND REPORT IS TRUE THEN IT STANDS THAT TH E FIRST REPORT WILL NEED TO BE DISREGARDED AND IT WOULD MEAN THAT THERE WAS NO REPORT FILED WHICH WILL RENDER THE ASSESSEE INELIGIBLE FOR THE SAID CLAIM AS THE MANDATORY CONDITION WOULD NOT HAVE BEEN FULFILLED. SECONDLY THE ASSESSEE HAS GIVEN NO REASON OR BASIS OF CHANGING ITS REPORT EXCEPT TO SAY THAT THERE WAS A TYPOGRAPHICAL ERROR. IT IS NOT UNDERSTOOD HOW A PROFESSIONAL CHARTERED ACCOUNT FIR M WOULD HAVE MADE THE SAID ERROR IN RESPECT OF ALL THE DATES CON CERNED. BESIDES EVEN IF THEY HAD DONE SO IT IS EXPECTED THAT THE AS SESSEE COMPANY WHICH IS RUN BY EXPERIENCED EDUCATED INDIVIDUALS WH O REGULARLY TAKE THE HELP OF EXPERIENCED CHARTERED ACCOUNTS FOR THEI R INCOME TAX ISSUES WOULD HAVE NOTICED THE ERROR MADE AND NOT RE LIED ON IT BLINDLY. THEREFORE IT CAN SAFELY BE PRESUMED THAT T HE ASSESSEE AT THE STAGE OF REVISIONARY PROCEEDINGS HAS TRIED TO INTRO DUCE MATERIAL/DOCUMENTS THE VERACITY OF WHICH HAS NOT BE EN EXPLAINED AT ALL TO CLAIM THE DEDUCTION U/S 801B OF THE ACT WHIC H AS PER FACTUAL DETAILS AVAILABLE ON ASSESSMENT RECORD WAS NOT ALLO WABLE TO HIM. HERE IT IS ALSO TO BE APPRECIATED THAT THE SECOND A UDIT REPORT FILED CANNOT BE ACCEPTED DUE TO LACK OF AFFIDAVIT BY THE AUDITOR AS TO WHY AND ON WHAT BASIS THE CHANGES HAVE BEEN MADE AND AS TO WHY A WRONG AUDIT REPORT WAS SUBMITTED EARLIER AND NOT CO RRECTED TILL THE DEFECTS WERE POINTED OUT. THE AUDITOR'S REPORT IN FORM 10CCB FILED NOWHERE RE CORDS A SPECIFIC PROJECT BUT IT SHOWS ASSESSEE'S NAME AND PROJECT NA ME SAME AS 'SDC CONSTRUCTION'. NO SEPARATE PROFIT & LOSS ACCOUNT WERE SUBMITTED FOR THE ELIGIBLE PROJECT BUT ONLY FIRM'S P&L ACCOUNT SUBMITTED. ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 15 IT WAS APPARENT THAT DURING THE YEAR FIRM WAS ENG AGED IN OTHER ACTIVITIES ALSO WHICH IS EVIDENT FROM THE FACT THAT THE FIRM HAS SHOWN LOANS & ADVANCES OF RS. 19 78 43 679/- WHICH IS FOR FIRM'S BUSINESS ADVANCE AND NOT RELATED TO THE PROJECT. FROM THE REPLY OF ASSESSEE DATED 14/9/2016 IT IS CLEAR THAT THE FIRM HAS TAKEN NEW LOAN OF RS. 13 83 44 622/- DURIN G THE YEAR WHICH CERTAINLY CANNOT BE RELATED TO THE PROJECT FOR WHIC H DEDUCTION STANDS CLAIMED BY THE ASSESSEE AS THE PROJECT HAS ALREADY COMPLETED ON 18/3/2013. THE FIRM HAS ALSO CLAIMED INTEREST EXPEN SE WHICH CANNOT BE EXPENSE OF THE ELIGIBLE PROJECT AS THE BORROWED FUND WHICH TAKEN DURING PREVIOUS YEAR WAS NOT UTILIZED FOR THE PROJE CT. THIS DEFINITELY NEEDED LOOKING INTO AND THE NECESSARY CALCULATIONS BE MADE REGARDING THE DEDUCTION CLAIMED.LN ABSENCE OF SEPAR ATE BOOKS PROFIT & LOSS ACCOUNT AND BALANCE SHEET OF ELIGIBLE BUSINE SS FOR WHICH DEDUCTION U/S 8018(10) IS CLAIMED SHOULD NOT HAVE A LLOWED BY THE AO. AO FAILED TO APPRECIATE THESE FACTS DURING THE ASSESSMENT PROCEEDINGS. FROM THE FORM 10CCB REPORT WHICH WAS SUBMITTED MA NUALLY DURING THE PROCEEDINGS IT IS OBSERVED THAT THE DATE OF CO MMENCEMENT OF OPERATION/ ACTIVITY BY THE UNDERTAKING OR ENTERPRIS E SHOWN AT 07/4/2007 DATE OF APPROVAL FROM AUTHORITY WAS SHOW N ON 30/3/2008 AND THE DATE OF COMPLETION OF PROJECT SHOWN ON 18/3 /2013. AO SHOULD HAVE GONE THROUGH THE CBDT INSTRUCTION NO.4/ 2009 IN WHICH BOARD CLARIFY THAT 3.(B) 'IN CASE IT IS LATE FOUND THAT THE CONDITION OF COMPLETING THE PROJECT WITHIN THE SPECIFIED TIME LI MIT OF 4 YEARS AS STATED IN SECTION 80IB(10) HAS NOT BEEN SATISFIED THE DEDUCTION GRANTED 16 MADE TO THE ASSESSEE IN EARLIER YEARS SH OULD BE WITHDRAWN'. ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 16 HERE IT IS SEEN THAT THERE WAS NO CLAIM FOR SECTI ON 80IB DEDUCTION IN AY 2012-12 AND 2013-14 THE REASON FOR WHICH HAS NOT BEEN INQUIRED INTO BY THE AO AND ON WHAT GROUNDS HAVE TH E CLAIM BE MADE IN THE AY UNDER CONSIDERATION AND ITS ALLOWABI LITY VIS A VIS THE PROVISIONS OF THE ACT/ RULES AND THE VARIOUS CIRCUL ARS / INSTRUCTIONS ON THE SUBJECT. THERE IS APPARENT VIOLATION OF PROVISIONS OF SECTI ON 80IB(10) WHERE ASSESSEE HAS SOLD TWO UNITS TO ONE PERSON I.E. FLAT NO. 207-208 TO RAHUL MISHRA THROUGH POA HARI RAM SHARMA WHICH ALSO DOES NOT STAND QUESTIONED OR EXPLAINED DURING THE ASSESSMENT PROCEEDINGS. IN FACT WITH THESE SET OF ACTS THE AO SHOULD HAVE TAKEN REMEDIAL ACTION NOT ONLY IN THE PRECEDING YEARS BUT ALSO IN ALL EARLIER YEARS WHERE DEDUCTION CLAIMED BY THE ASSESSEE. 11. BASIS THE ABOVE DISCUSSIONS WE ARE OF THE CONS IDERED VIEW THAT IT IS A CLEAR CASE OF LACK OF ENQUIRY ON PART OF THE ASSESS ING OFFICER IN NOT EXAMINING THE CLAIM OF DEDUCTION U/S 80IB OF THE ACT AND THE ORDER PASSED BY THE ASSESSING OFFICER IS CLEARLY ERRONEOUS AND PREJUDIC IAL TO THE INTEREST OF THE REVENUE AND WHERE THE LD PR CIT HAS DIRECTED FURTHE R EXAMINATION BY THE ASSESSING OFFICER AND THE MATTER HAS BEEN SET ASIDE TO THE FILE OF THE AO WE SEE NO INFIRMITY IN THE ACTION OF THE LD PR CIT BY INVOKING HER JURISDICTION U/S 263 OF THE ACT. IN THIS REGARD WE DRAW USEFUL REFE RENCE TO OBSERVATIONS OF THE COORDINATE BENCH IN CASE OF SUBHLAKSHMI VANIJYA (P. ) LTD. VS COMMISSIONER OF INCOME-TAX-I KOLKATA REPORTED IN 60 TAXMANN.COM 6 0 (KOLKATA) WHEREIN IT WAS HELD AS UNDER: SCOPE OF THE TERM 'ENQUIRY' CAN BE DIVERSE IN DIF FERENT CIRCUMSTANCES. THERE CANNOT BE STRAIGHT JACKET FORMULA TO POSITIVE LY CONCLUDE AS TO CONDUCTING OR NON-CONDUCTING OF 'ENQUIRY' BY THE AS SESSING OFFICER. IT DEPENDS ON THE FACTS AND CIRCUMSTANCES OF EACH CASE . WHERE THE FACTS ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 17 ARE JUST ORDINARY AND PRIMA FACIE THERE IS NOTHING UNTOWARD THE RECORDED TRANSACTION IN SUCH CIRCUMSTANCES THE OBTAINING O F THE DOCUMENTS AND THE APPLICATION OF MIND THEREON WITHOUT A FURTHER OUTSIDE ENQUIRY MAY MEAN THAT THE ASSESSING OFFICER DID CONDUCT ENQUIRY LEAVING THE QUESTION OPEN AS TO WHETHER IT WAS A PROPER OR AN I MPROPER ENQUIRY. BUT WHERE THE FACTUAL SCENARIO OF A CASE PRIMA FACIE IN DICATES ABNORMALITIES AND CRY FOR LOOKING DEEP INTO IT THEN A MERE COLLE CTION OF DOCUMENTS CANNOT BE HELD AS CONDUCTING ENQUIRY LEAVE ASIDE ADEQUATE OR INADEQUATE. IN SUCH LATER CASES ONLY WHEN THE ASSE SSING OFFICER AFTER COLLECTION OF THE INITIAL DOCUMENTS EMBARKS UPON F URTHER INVESTIGATION THAT IT CAN BE SAID THAT HE INITIATED ENQUIRY. WHER E THE FACTS OF A PARTICULAR TRANSACTION CRY HOARSE ABOUT ITS NON-GEN UINENESS AND EVEN A CASUAL LOOK AT SUCH FACTS PRIMA FACIE DIVULGES FO UL PLAY THEN THE ALARM BELL MUST RING IN THE MIND OF THE ASSESSING OFFICER FOR MAKING FURTHER EXAMINATION. COLLECTION OF PAPERS ON RECORD IN SUCH CIRCUMSTANCES CANNOT BE CONSTRUED AS CONDUCTING A PROPER ENQUIRY. IF IN SUCH CIRCUMSTANCES THE ASSESSING OFFICER SIMPLY GATHERS DOCUMENTS AND KEEPS THEM ON RECORD THEN SUCH NOMINAL ENQUIRY FALLS WITHIN THE OVERALL CATEGORY OF 'NO ENQUIRY' BECAUSE OF THE INACTION ON THE PART OF THE ASSESSING OFFICER TO READ A WRITING ON THE WALL. THEREFORE WHEN THE MATTER HAS NOT BEEN EXAMINED AT FIRST PLACE BY THE AO AND THERE ARE SPECIFIC DIRECTIONS GIVEN BY THE LD. PR. CIT TO EXAMINE THE SAME AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSES SEE WE DO NOT SEE ANY INFIRMITY IN THE ACTION OF THE LD PR CIT. THE ASSE SSEE WOULD BE WITHIN ITS RIGHT TO RAISE ALL ITS CONTENTION ON MERIT BEFORE THE ASS ESSING OFFICER AND THE SAME ARE LEFT OPEN AND NOT EXAMINED BY US. WE THEREFORE UPHELD THE ORDER PASSED BY THE LD PR CIT U/S 263 OF THE ACT AND THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE DISMISSED. ITA NO. 481/JP/2019 M/S SDC CONSTRUCTION JAIPUR VS. PR. CIT JAIPUR 18 IN THE RESULT APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29/11/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 29/11/2019 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S SDC CONSTRUCTION JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE PR. CIT JAIPUR-1 JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR ITAT JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 481/JP/2019} VKNS'KKUQLKJ@ BY ORDER LGK;D IATHDKJ@ ASST. REGISTRAR