Sh. Bhajan Singh, Chandigarh v. CIT-II, Chandigarh

ITA 574/CHANDI/2012 | 2002-2003
Pronouncement Date: 31-07-2012 | Result: Dismissed

Appeal Details

RSA Number 57421514 RSA 2012
Assessee PAN BBIPS9374P
Bench Chandigarh
Appeal Number ITA 574/CHANDI/2012
Duration Of Justice 2 month(s) 14 day(s)
Appellant Sh. Bhajan Singh, Chandigarh
Respondent CIT-II, Chandigarh
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2012
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 31-07-2012
Date Of Final Hearing 09-07-2012
Next Hearing Date 09-07-2012
Assessment Year 2002-2003
Appeal Filed On 17-05-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE SHRI H.L. KARWA VP AND SHRI T.R. SOOD AM ITA NO. 574/CHD/2012 ASSESSMENT YEAR: 2002-03 BHAJAN SINGH V CIT-II CHANDIGARH HOUSE NO. 585 VILLAGE KISHANGARH UT CHANDIGARH PAN: BBIPS 9374 P (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI ANIL BATRA RESPONDENT BY: MS. JYOTI KUMARI DATE OF HEARING: 9.07.2012 DATE OF PRONOUNCEMENT: 31.07.2012 ORDER PER T.R. SOOD A.M IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWI NG EFFECTIVE GROUNDS: 1 THE LD. COMMISSIONER HAS ERRED IN INVOKING THE JURISDICTION FOR REVISION U/S 263 OF THE INCOME-TAX ACT 1961 AND IN CANCELING THE ASSESSMENT ORDER PASSED U/S 147 R.W.S. 148 OF THE A CT WITHOUT ESTABLISHING THE ERROR IN THE ASSESSMENT ORDER OR I TS PREJUDICIAL INTEREST TO THE REVENUE. THE REVISION ORDER BE CANCELLED AND T HE ASSESSMENT ORDER BE RESTORED. ` 2. THE ORDER OF THE LD. COMMISSIONER IS BARRED BY PERIOD OF LIMITATION AND DESERVES CANCELLATION. 2. AFTER HEARING BOTH THE PARTIES WE FIND THAT EXAM INATION OF ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 147 LD. COMMISSIONE R WAS OF THE VIEW THAT THE ORDER IS ERRONEOUS AS WELL AS PREJUDICIAL TO THE IN TEREST OF THE REVENUE BECAUSE THE ASSESSING OFFICER HAS FAILED TO GATHER THE FACT S AND CARRY OUT PROPER INVESTIGATION ON THE FOLLOWING ISSUES (AS EXTRACTED BY THE COMMISSIONER IN HIS ORDER U/S 263): (I) THE ASSESSEE HAD MADE INVESTMENT IN PURCHASE OF LAND TO THE TUNE OF RS. 43 11 250/- DURING THE PREVIOUS YEAR RE LEVANT TO A.Y 2002-03. (II) THE ASSESSMENT WAS COMPLETED AT AN INCOME OF R S. 16 10 500/-. A PERUSAL OF THE ASSESSMENT RECORD REVEALS THAT THE ASSESSEE HAD ENTERED INTO AN AGREEMENT WITH SMT. KAILASHWATI ON 14.12.2001 FOR PURCHASE OF LAND MEASURING 9 KANALS SITUATED IN VIL LAGE MANIMAJRA CHANDIGARH. THE PURCHASE PRICE WAS FIXED AS PER TH E AGREEMENT AT RS. 72 00 000/-. A SUM OF RS. 4 00 000/- WAS PAID AS E ARNEST MONEY AND 2 THE BALANCE AMOUNT WAS TO BE PAID AT THE TIME OF FI NALIZATION I.E. ON THE BARGAIN DATE WHICH WAS FIXED ON OR BEFORE 30.12.200 2. THE SALE DEED IN RESPECT OF THE LAND SHOWED THAT THE ASSESSEE HAD PA ID A SALE CONSIDERATION OF RS. 2 62 500/- WHICH WAS ADJUSTED AGAINST THE EARNEST MONEY OF RS. 4 00 000/-. (III) AS PER AGREEMENT TO SELL DATED 14.12.2001 THE SALE PRICE OF 9 KANALS OF LAND WAS FIXED AT RS. 72 00 000/- AND THE ACTUAL PRICE OF 2 KANAL 2 MARLA LAND WORKED OUT TO RS. 16 80 000/- IN STEAD OF RS. 2 62 500/- SHOWN IN THE SALE DEED. IT IS EVIDENT T HAT THE ASSESSEE HAD PAID BALANCE AMOUNTS OF RS. 14 17 500/- (RS. 16 80 000/- MINUS RS. 2 62 500/-) OUT OF UNDISCLOSED SOURCES AND THIS AMO UNT NEEDED TO BE ADDED BACK TO THE RETURNED INCOME.. 3. A SHOW CAUSE NOTICE WAS ACCORDINGLY ISSUED IN RE SPONSE TO THE NOTICE WRITTEN SUBMISSIONS WERE MADE IN WHICH IT WAS STAT ED AS UNDER:- THIS IS IN RESPONSE TO YOUR NOTICE DATED 15.3.2012 PROPOSING TO MAKE ADDITION OF RS. 14 17 500/- ON THE BASIS THAT THE A SSESSEE HAS ENTERED INTO AGREEMENT TO SELL DATED 14.12.2001 FOR THE PUR CHASE OF 9 KANALS LAND IN VILLAGE MANIMAJRA CHANDIGARH WITH ONE SMT. KAILASHWATI FOR A SUM OF RS. 72 LACS WHICH GIVES THE AVERAGE RATE OF 8 LACS PER KANAL. AGAINST THIS AGREEMENT THE ASSESSEE PAID RS. 4 LAC S AS ADVANCE MONEY AND WAS REQUIRED TO FINALISE THE AGREEMENT BY 31.12 .2002. THIS AGREEMENT COULD NOT BE ACTED UPON AND ONLY 2 K ANAL 2 MARLA LAND WAS PURCHASED FOR CONSIDERATION OF RS. 2 62 500/- I N JULY 2002 FOR INTERVENING CIRCUMSTANCES VIZ THE CHANDIGARH ADMIN ISTRATION HAD NOTIFIED THE LAND FOR ACQUISITION UNDER THE LAND A CQUISITION ACT 1894 U/S 4 OF THE LAND ACQUISITION ACT 1894 VIDE NOTIFICAT ION NO. 43/3/143- 1(5)/8368 DATED 1.10.2002 FOR THE DEVELOPMENT OF IN FORMATION TECHNOLOGY PARK. AS A CONSEQUENCE THE ENTIRE AGREE MENT BECAME UNFEASIBLE AND EXECUTABLE. THE CHANDIGARH ADMINIST RATION ANNOUNCED THE AWARD VIDE AWARD NO. 574 (LAND TREES TUBEWELL ) DATED 15.12.2004 (COPY OF AWARD IS ENCLOSED) ACQUIRING T HE LAND FOR RS. 1 31 260/- PER KANAL. THE ONLY ALTERNATIVE LEFT WA S TO SOMEHOW ADJUST THE MONEY ADVANCED TO THE SELLER AND UNDER THE THEN PREVAILING CIRCUMSTANCES THE SELLER PARTED WITH ONLY 2 KANAL 2 MARLA OF THE AGRICULTURAL LAND. IN THE LIGHT OF THE CIRCUMSTANCES EXPLAINED ABOVE T HE ASSESSEE HAS DISCLOSED THE ACTUAL AND CORRECT VALUE OF THE TRANS ACTION AND HENCE THE PRESENT PROCEEDINGS ARE NOT CALLED FOR AND SO MAY K INDLY BE VACATED. 4. A SUPPLEMENTARY REPLY DATED 26.3.2012 WAS ALSO F URNISHED WHICH IS ALSO REPRODUCED AS UNDER:- THE ASSESSEE BY WAY OF PRELIMINARY OBJECTION TO T HE PRESENT PROCEEDINGS HA TO SUBMIT THAT THE ORIGINAL RETURN OF INCOME WAS FILED ON 20.12.2012 AND ASSESSED VIDE ORDER DATED 21.2.2003 AND REASSESSMENT PROCEEDINGS WERE INITIATED VIDE NOTICE U/S 147 R.W. S. 148 DATED 26.3.2009 HENCE THE PRESENT PROCEEDINGS ARE BARRED BY PERIOD OF LIMITATION U/S 263(2) FROM DATED 21.2.2003. REFERENCE CIT V. M/S DISTILLERS CO. LTD. (SC-TIOL-49-ITC) DATED 5.4.2007 (COPY OF ORDER ENCL OSED). THE HON'BLE SUPREME COURT HAS HELD THAT U/S 263(2) CLOCK OF LIMITATION STARTS TICKING FROM THE DATE OF ASSESSME NT ORDER AND NOT FROM REASSESSMENT ORDER. 3 IN THE LIGHT OF THE CIRCUMSTANCES EXPLAINED ABOVE T HE PRESENT PROCEEDINGS ARE NOT CALLED FOR AND SO MAY KINDLY BE VACATED. 5. LD. COMMISSIONER AFTER EXAMINING THE SUBMISSION S THAT THE AGREEMENT TO SELL HAS CLEARLY STATED THAT 9 KANALS OF LAND WA S TO BE PURCHASED FOR A SUM OF RS. 72.00 LAKHS GIVING AN AVERAGE RATE OF RS. 8.00 LAKHS PER KANAL. THEREFORE FOR PURCHASING 2 KANALS THE ASSESSEE WAS REQUIRED T O SPEND RS. 16 80 000/- AND SINCE THE ASSESSING OFFICER HAS NOT MADE PROPER ENQUIRY IN THIS RESPECT THEREFORE THE ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. HE ALSO OBSERVED THAT CASE LAWS CITED BY THE ASSESSEE REGARDING LIMITATION IS NOT RELEVANT BECAUSE THE SAME WAS NOT FOR REASSESSMENT. IN THE LIGHT OF THESE OBSERVATIONS HE SET ASIDE THE ASSESS MENT ORDER OF THE ASSESSING OFFICER WHICH WAS PASSED BY ASSESSING OFFICER ON 13 .12.2009 U/S 143(3) AND DIRECTED TO MAKE FRESH ASSESSMENT AFTER PROPER INVE STIGATION IN THESE ISSUES. 6. BEFORE US THE LD. COUNSEL OF THE ASSESSEE SUBMI TTED THAT THE DEPARTMENT HAS ISSUED A NOTICE U/S 148 BECAUSE IT SEEMS THAT T HE DEPARTMENT WAS IN POSSESSION OF CERTAIN SALE AGREEMENT PERTAINING TO THE ASSESSEE. THE ASSESSEE HAS FILED RETURN IN PURSUANCE TO NOTICE U/ S 148 DECLARING THE SAME INCOME AND COPIES OF THE SAME IS PLACED AT PAGE 5 T O 7 OF THE PAPER BOOK. HE ARGUED THAT THE ASSESSEE HAD FILED COPIES OF STATEM ENT OF AFFAIRS EXPLAINING THE INVESTMENT IN LAND DURING RE-ASSESSMENT PROCEEDINGS IN PURSUANCE OF NOTICE ISSUED U/S 143(1) AND 143(2). HE CONTENDED THAT RE -ASSESSMENT WAS DONE ON THE BASIS OF THESE REPLIES AND CERTAIN ADDITIONS A MOUNTING TO RS. 15 21 067/- WERE MADE AND THEREFORE THE ASSESSMENT COULD NOT BE CALLED ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. IN AN Y CASE SINCE THE COPIES OF STATEMENT OF AFFAIRS AND DETAILED SUBMISSIONS WERE FILED BEFORE THE LD. COMMISSIONER WHO HAS PASSED THE ORDER WITHOUT CONSI DERING THE SAME IN DETAIL THEREFORE REVISION ORDER PASSED BY THE COMMISSIONE R WAS NOT JUSTIFIED. IN THIS REGARD HE STRONGLY RELIED ON THE DECISION OF SMT LI LA CHAUDHURY V. CIT AND OTHERS 289 ITR 226 (GAU). 7. ON THE OTHER HAND THE LD. DR FOR THE REVENUE S UBMITTED THAT THE REASONS GIVEN FOR ISSUING NOTICE U/S 148 COPY WHICH IS ENCLOSED AT PAGE 8 & 9 4 OF PAPER BOOK CLEARLY SHOWS THAT VARIOUS AGREEMENTS TO SELL SHOWING PURCHASE OF LAND BY THE ASSESSEE WERE THERE AND THE ASSESSIN G OFFICER HAS NEVER EVEN BOTHERED TO ASK FOR THESE AGREEMENTS DURING RE-ASSE SSMENT PROCEEDINGS. THEREFORE RE-ASSESSMENT HAS BEEN COMPLETED WITHOUT MAKING PROPER ENQUIRIES AND ON THIS COUNT ITSELF THE ASSESSMENT ORDER IS ER RONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. HE ALSO CONTENDED T HAT THE DECISION OF HON'BLE GAUHATI HIGH COURT IN CASE OF SMT LILA CHAUDHURY V. CIT AND OTHERS 289 ITR 226 (GAU) IS TOTALLY DISTINGUISHABLE ON FACTS. 8. IN THE REJOINDER THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE DEPARTMENT ALREADY HAD THE INFORMATION THAT THE ASS ESSEE HAD PURCHASED CERTAIN LANDS WHICH MEANS SO CALLED AGREEMENT TO SE LL WERE ALREADY IN THE POSSESSION OF THE ASSESSING OFFICER. THERE WAS NO NEED TO REQUISITE THE SAME AGAIN. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS CAREFULLY AN D FIND FORCE IN THE SUBMISSIONS OF THE LD. DR FOR THE REVENUE. THE REA SONS GIVEN FOR ISSUING OF NOTICE U/S 148 READS AS UNDER:- THE ASSESSEE HAS FILED THE RETURN OF INCOME FOR A. Y 2002-03 ON 20.12.2002 AT THE TOTAL INCOME OF RS. 89 429/- AND AGRICULTURAL INCOME AT RS. 3 20 000/-. THIS OFFICE HAS RECEIVED THE TEP F ROM THE O/O COMMISSIONER-II CHANDIGARH AND THE O/O DIRECTOR OF INCOME-TAX (INVESTMENT) PANCHKULA ENCLOSING THEREIN A LIST OF TRANSACTIONS ENTERED INTO BY THE ASSESSEE (ALONGWITH HIS BROTHER SHRI KU LWINDER SINGH) DURING THE F.Y 2001-02 RELEVANT TO A.Y 2002-03. THE ABOVE SAID LIST IS FURTHER SUPPORTED BY THE DOCUMENTARY EVIDENCES IN THE FORM OF AGREEMENT TO S ELL AND SALE DEEDS. FROM THE PERUSAL OF THE ABOVE SAID RECORDS AND DOCUMENTS IT HAS TRANSPIRED THAT THE ASSESSEE HAS NOT DECLARED THESE TRANSACTIONS IN HIS RETURN OF INCOME FOR A.Y 2002-0 3 AND AS SUCH THE UNDERSIGNED HAS REASONS TO BELIEVE THAT THE TRANSAC TIONS WHOSE DETAILS ARE ENUMERATED BELOW HAVE ESCAPED ASSESSMENT AND NO TICE U/S 148 OF THE INCOME-TAX ACT 1961 IS REQUIRED TO BE ISSUED. NECESSARY APPROVAL AS PER THE PROVISIONS OF THE INCOME-TAX ACT 1961 H AS BEEN OBTAINED FROM THE ADDL COMMISSIONER OF INCOME TAX-V CHANDI GARH AND HAS BEEN TAKEN ON RECORD. S NO PROPERTY PURCHASED DATE OF PURCHASE AMOUNT REMARKS 1 AGRICULTURAL LAND MEASURING 9 KANAL AT VILLAGE KISHANGARH VIDE AGREEMENT TO SELL DT. 14.12.2001 14.12.2001 72 00 000/- THE AGREEMENT TO SELL FOR TH IS PROPERTY WAS FOR RS. 72 00 000/- BUT ASSESSEE HAS PAID RS. 4 00 000/- IN CASH TO THE PROPOSED SELLER. TOTAL INVESTMENT AS PER AVAILABLE INFORMATION IS RS. 4 00 000/- 2 AGRICULTURAL LAND MEASURING 36 BIGHA AND 2 3.8.2001 4 90 000/- (CASH) + 58 000/- THE ASSESSEE HAS INVESTED HALFL THE AMOUNT OF RS. 5 48 000/- OF THE TOTAL 5 BISWA AT VILLAGE BADH TEH- KALKA VIDE SALE DEED DT. 2.8.2001 (STAMP PAPERS) TRANSACTION I.E. RS. 2 74 000/- (REMAINING HALF AMOUNT OF RS. 2 74 000/- HAS BEEN INVESTED BY THE BROEHR OF THE ASSESSEE. TOTAL INVESTMENT IS RS. 2 74 000/- 3 AGRICULTURAL LAND MEASURING 8 KANALS AT VILLAGE MANIMAJRA VIDE SALE DEED DT. 11.5.2001 11.5.2001 8 00 000/- CASH + 1 00 000/- THE ASSESSEE HAS INVESTED HALF THE AMOUNT OF RS. 9 00 000 OF THE TOTAL TRANSACTION I.E. RS. 4 75 000/- (REMAINING HALF AMOUNT OF RS. 4 75 000/- HAS BEEN INVESTED BY THE BROTHER OF THE ASSESSEE. TOTAL INVESTMENT IS RS. 4 75 000/- 4 AGRICULTURAL LAND MEASURING 3 KANALS 11 MAARLAS AT VILLAGE KISHANGARH MAUJA MANIMAJRA VIDE SALE DEED DT. 24.8.2001 24.8.2001 3 55 000/- CASH + 44 375/- TOTAL INVESTMENT OF RS. 3 99 375/- 5 AGRICULTURAL LAND MEASURING 5 BIGHAS AT VILLAGE BADH TEH. KALKA VIDE SALE DEED DT 11.10.2001 11.10.2001 68 000 + 8 000 THE ASSESSEE HAS INVESTED HALF THE AMOUNT OF RS. 76 000/- OF THE TOTAL TRANSACTION I.E. RS. 38 000/- (REMAINING HALF AMOUNT OF RS. 38 000/- HAS BEEN INVESTED BY THE BROTHER OF THE ASSESSEE. TOTAL INVESTMENT IS RS. 38 000/-. 6 AGRICULTURAL LAND MEASURING 4 BIGHAS 11 VBISWAS AT VILLAGE BADH TEH-KALKA VIDE SALE DEED DT. 10.10.2001 10.10.2001 62 000/- + 7750/- THE ASSESSEE HAS INVESTED HALF THE A MT OF RS. 69 750/- OF THE TOTAL TRANSACTION I.E. RS. 34 875/- (REMAINING HALF AMOUNT OF RS. 34 875/- HAS BEEN INVESTED BY THE BROTHER OF THE ASSESSEE. TOTAL INVESTMENT IS RS. 34 875/-. 7 AGRICULTURAL LAND MEASURING 3 ACRES (HADVAST NO. 375) NEAR 266 KV POWER HOUSE VIDE SALE DEED (BETWEEN OCT 2001 TO MARCH 2002) BETWEEN OCT 2001 TO MARCH 2002 30 50 000/- TOTAL INVESTMENT AS PERP AVAILABLE INFORMATION IS RS. 30 50 000/- (DOCUMENTARY EVIDENCE NOT AVAILABLE) TOTAL INVESTMENT MADE DURING FINANCIAL YEAR 2001-02 IS RS. 43 11 250/-. IN VIEW OF THE ABOVE FACTS NOTICE U/S 148 OF THE I NCOME-TAX ACT 1961 IS ISSUED TODAY I.E. 26.3.2009. 10. FROM THE ABOVE IT IS CLEAR THAT REVENUE WAS IN POSSESSION OF INFORMATION THAT THE ASSESSEE HAD PURCHASED VARIOUS LANDS WHICH WERE NOT REFLECTED IN THE RETURN. ONCE THE ISSUE WAS REOPENED TO INVESTIGATE THE PURCHASE OF VARIOUS LANDS THEN THE ASSESSING OFFICER WAS DUTY BOUND TO MAKE ENQUIRIES TO EXAMINE 6 THE PURCHASE OF THESE LAND AS WELL AS THE SOURCES F OR THE SAME. THE ASSESSING OFFICER HAS SIMPLY ISSUED NOTICE U/S 142(1) AND 143 (2) DATED 2.12.2009 WHICH IS STANDARD FOR FORMAT OF THE NOTICE. THE ASSESSING O FFICER NEVER BOTHERED TO CALL FOR COPIES OF VARIOUS AGREEMENTS OF SALE. ON A SP ECIFIC QUERY OF THE BENCH THE LD. COUNSEL OF THE ASSESSEE HAD ADMITTED THAT THESE AGREEMENT WERE NEITHER CALLED FOR BY THE ASSESSING OFFICER NOR FURNISHED B Y THE ASSESSING OFFICER. IN FACT THESE AGREEMENTS WERE NOT FURNISHED BY THE COM MISSIONER OR EVEN BEFORE US. THE ASSESSING OFFICER HAS PROCEED TO MAKE ASSE SSMENT U/S 143(3) R.W.S. 147 MERELY ON THE BASIS OF STATEMENT OF AFFAIRS AN D MADE ADDITION IN RESPECT OF AMOUNTS STATED IN THE STATEMENT OF AFFAIRS WHICH CO ULD NOT BE PROVED. THIS CLEARLY SHOWS THAT THE ASSESSING OFFICER HAS NOT EX AMINED WHAT WAS ACTUAL CONSIDERATION FOR PURCHASE OF LAND AND WHAT WERE TH E SOURCES. IT IS SETTLED POSITION OF LAW THAT FAILURE TO MAKE ENQUIRES WHICH ARE REQUIRED IN THE FACTS OF THE CASE WOULD ITSELF MAKE THE ASSESSMENT ORDER ERR ONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. REFERENCE MAY BE MADE TO THE DECISION OF HON'BLE SUPREME COURT IN CASE OF RAMPYARI DEVI SARAOGI V CI T 67 ITR 84 AND TARA DEVI AGGARWAL V CIT 88 ITR 323. THE REASONING FOR THIS RULE THAT IN THE ABSENCE OF PROPER ENQUIRY THE ASSESSMENT ORDER WOUL D BECOME ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE HAS BEEN GIVEN BY HON'BLE DELHI HIGH COURT CASE OF GEE VEE ENTERPRISES V. ADDL CIT DELH I ! AND OTHERS 99 ITR 375 DISCUSSING THE CASE OF RAMPYARI DEVI SARAOGI V CIT (SUPRA) AND TARA DEVI AGGARWAL V CIT (SUPRPA) IN THE FOLLOWING PARAGRAPHS :- THE REASON IS OBVIOUS. THE POSITION AND FUNCTION OF THE INCOME-TAX OFFICER IS VERY DIFFERENT FROM THAT OF A CIVIL COUR T. THE STATEMENTS MADE IN A PLEADING PROVED BY THE MINIMUM AMOUNT OF EVIDENCE MAY BE ACCEPTED BY A CIVIL COURT IN THE ABSENCE OF ANY REBUTTAL. T HE CIVIL COURT IS NEUTRAL. IT SIMPLY GIVES DECISION ON THE BASIS OF THE PLEADI NG AND EVIDENCE WHICH COMES BEFORE IT. THE INCOME-TAX OFFICER IS NOT ONL Y AN ADJUDICATOR BUT ALSO AN INVESTIGATOR. HE CANNOT REMAIN PASSIVE IN THE FACE OF A RETURN WHICH IS APPARENTLY IN ORDER BUT CALLS FOR FURTHER INQUIRY . IT IS HIS DUTY TO ASCERTAIN THE TRUTH OF THE FACTS STATED IN THE RETU RN WHEN THE CIRCUMSTANCES OF THE CASE ARE SUCH AS TO PROVOKE AN INQUIRY. THE MEANING TO BE GIVEN TO THE WORK ERRONEOUS IN SECT ION 263 EMERGES OUT OF THIS CONTEXT. IT IS BE CAUSE IT IS INCUMBENT ON THE INCOME-TAX OFFICER TO FURTHER SUCH AN INQUIRY PRUDENT THAT THE WORK ERRO NEOUS IN SECTION 263 INCLUDES THE FAILURE TO MAKE SUCH AN INQUIRY. THE ORDER BECOMES ERRONEOUS BECAUSE SUCH AN INQUIRY HAS NOT BEEN MADE AND NOT BECAUSE 7 THERE IS ANYTHING WRONG WITH THE ORDER IF ALL THE F ACTS STATED THEREIN ARE ASSUMED TO BE CORRECT. IN THE CASE BEFORE US THE REASONS FOR ISSUING NOTI CE U/S 148 CLEARLY WARRANTED THAT THE ASSESSING OFFICER SHOULD HAVE CALLED FOR A GREEMENT TO SELL AND THEN TO MAKE ENQUIRY. ACCORDINGLY THE ASSESSING OFFICER H AS NOT TAKEN EVEN THIS BASIC STEP. THERE IS NO FORCE IN THE SUBMISSIONS THAT THE DEPARTMENT ALREADY HAD AGREEMENT TO SELL EVEN IF ASSUMING THEY WERE IN THE POSSESSION OF THE DEPARTMENT THEY WERE AVAILABLE WITH LD. COMMISSIONE R-II CHANDIGARH FROM WHOM INFORMATION WAS RECEIVED. SINCE THE ASSESSING OFFICER HAS NOT EVEN MENTIONED ANYTHING ABOUT SUCH AGREEMENTS IT IS CLE AR THAT THEY WERE NOT EXAMINED AT ALL. THEREFORE THE ASSESSMENT ORDER HAS BEEN DEFINITELY PASSED WITHOUT PROPER ENQUIRIES AND THE LD. COMMISSIONER H AD RIGHTLY HELD THE ASSESSMENT ORDER TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 11. AS FAR AS DECISION CITED BY THE LD. COUNSEL OF THE ASSESSEE IS CONCERNED IN THAT CASE THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER AND THE ASSESSING OFFICER HAD ASSESSED THE INVESTMENT MADE BY THE ASSESSEE IN THE HOUSE PROPERTY ON SUBSTANTIVE BASIS WITHOUT MAKING ANY ENQUIRY AS TO WHETHER THE INVESTMENT IN THE HOUSE PROPERTY COULD BE MADE FROM THE KNOWN SOURCES OF INCOME OF THE ASSESSEE. IN THE NOTICE THE ISSUED LD. COMMISSIONER RECORDED THAT THE ASSESSING OFFICER HAD ACCEPTED AN ADDITION IN HOUSE PROPERTY AT RS. 7.02 LAKHS WITHOUT HOLDING ANY ENQUIRY. IT WAS FUR THER MENTIONED THAT FROM THE REPORT OF CBI ACB GAUHATI THAT ACCORDING TO CBI IN VESTMENT MADE IN THE AFORESAID HOUSE PROPERTY WAS MADE BY ONE SHRI MOTI LAL DATTA SON-IN-LAW OF THE ASSESSEE AND ACCORDING TO THE CBI THE COST OF ACQ UISITION OF THE HOUSE WAS RS. 16 16 500/-. ON THESE FACTS THE LD. COMMISSION ER IN THE NOTICE ISSUED RECORDED HIS OPINION THAT THE ASSESSMENT IN QUESTIO N BEING WITHOUT NECESSARY ENQUIRIES WAS ERRONEOUS AND PREJUDICIAL TO THE INTE REST OF THE REVENUE. ON THE RECEIPT OF THIS NOTICE THE ASSESSEE FILED DETAILED EXPLANATION AND ENCLOSED VARIOUS ANNEXURES SHOWING YEARLY INVESTMENT MADE WH ICH WAS SUPPORTED BY THE BALANCE SHEETS WHICH WERE ANNEXED. THE DETAIL OF FUNDS AVAILABLE TO THE ASSESSEE WERE ALSO DISCLOSED. THEREAFTER THROUGH I MPUGNED ORDER THE 8 COMMISSIONER AFTER RECORDING HIS OPINION THAT THE A SSESSMENT WAS MADE WITHOUT MAKING ENQUIRIES IN RESPECT OF HOUSE PROPE RTIES AND INVESTMENT IN THE HOUSE PROPERTY AND SOURCE OF INCOME AND WRITTEN SUB MISSIONS GIVING EXHAUSTIVE EXPLANATION WERE FILED AND THE MATTER RE QUIRED FURTHER EXAMINATION AND THEREFORE ASSESSMENT WAS SET ASIDE WITH A DIR ECTION TO EXAMINE THE SUBMISSIONS ADVANCED BY THE ASSESSEE. BEFORE THE H ON'BLE COURT IT WAS ARGUED THAT THE POWER OF SECTION 263 CAN BE INVOKED ONLY ON THE BASIS OF MATERIAL AVAILABLE TO THE ASSESSING OFFICER AND COU LD NOT BE INVOKED ON THE BASIS OF REPORT OF CBI WHICH WAS AVAILABLE ONLY BE FORE THE LD. COMMISSIONER. THIS ARGUMENT WAS NEGATED BY THE COURT BECAUSE OF C OURTS OWN DECISION IN CASE OF SHREE AUTO MOBILES P LTD (2003) 3 GLT AND T HE COURT HAS GIVEN FURTHER REASONS FOR NEGATING THIS ARGUMENT AND AT PAGE 233 OF THE REPORT. 12. HOWEVER HON'BLE HIGH COURT QUASHED THE ORDER P ASSED U/S 263 BECAUSE THE FINDING THAT THE ASSESSMENT ORDER WAS E RRONEOUS BECAUSE OF LACK OF ENQUIRY WAS GIVEN IN THE NOTICE BUT NOT IN THE O RDER. HOWEVER THE REASONS FOR QUASHING THE SAME HAS BEEN GIVEN BY THE HON'BLE GAUHATI HIGH COURT ITSELF IN PARA 17 OF THE ORDER WHICH READS AS UNDER:- THE BASIS ON WHICH THIS COURT HAD THOUGHT IT PROPER TO INTERFERE WITH THE ORDER DATED NOV 1 1996 AS DISCUSSED ABOVE ORDINARILY AND IN THE NORMAL COURSE WOULD NOT HAVE PRECLUDED THE C OMMISSIONER TO REDO THE EXERCISE IF THE SAID AUTHORITY SO DESIR ES. HOWEVER FROM THE MATERIALS PLACED BEFORE THE COURT BY MEANS OF T HE ADDITIONAL AFFIDAVIT FILED BY THE PETITIONER IT WOULD APPEAR THAT THE CO MPETENT CRIMINAL COURT I.E. THE COURT OF THE SPECIAL JUDGE ASSAM IN SPE CIAL CASE NO. 27(C)/1994 BY JUDGMENT AND ORDER DATED JUNE 9 2003 HAS EXONERATED THE SON-IN-LAW OF THE PETITIONER FROM ANY LIABILITY ON ACCOUNT OF THE HOUSE PROPERTY IN QUESTION BY HOLDING THE SAME TO BE BELO NGING TO THE PETITIONER. THE FINDINGS RECORDED BY THE LD. SPECI AL JUDGE IN THIS REGARD CANNOT BE BRUSHED ASIDE BY THE REVENUE. IN SUCH CI RCUMSTANCES I AM OF THE VIEW THAT ANY DE NOVO PROCEEDINGS AT THIS ST AGE WOULD BE FUTILE AND MAY TURN INTO A WEAPON OF HARASSMENT AGAINST TH E PETITIONER. IN SUCH CIRCUMSTANCES I AM OF THE VIEW THAT AFTER REC ORDING THE INTERFERENCE MADE WITH THE IMPUGNED ORDER DATED NOV 1 1996 PAS SED BY THE LD. COMMISSIONER OF INCOME-TAX N.E. REGION SHILLONG THIS COURT SHOULD PROCEED TO DIRECT THE REVENUE TO TREAT THE ASSESSME NT OF THE PETITIONER FOR THE ASSESSMENT YEAR 1992-93 MADE BY ORDER DATED MAY 16 1994 TO BE COMPLETE AND FINAL. 13. THE HIGHLIGHTED PORTION OF THE ABOVE CLEARLY SH OWS THAT THE COURT HAS ITSELF VERY CLEARLY STATED THAT ORDINARILY IN THE N ORMAL COURSE LD. COMMISSIONER WAS ENTITLED TO RE-DO REVISIONARY EXERCISE IF HE SO DESIRES. THE COURT HAS GIVEN 9 PECULIAR CIRCUMSTANCES BECAUSE OF WHICH THE ORDER P ASSED U/S 263 WAS QUASHED. THIS CLEARLY SHOWS THAT THIS KIND OF EXTR A JURISDICTION CAN BE EXERCISED ONLY IN SPECIFIC CIRCUMSTANCES AND NOT IN ALL THE C ASES. THEREFORE THIS DECISION CAN NOT BE TAKEN AS A PRECEDENT IN ALL THE CASES. IN ANY CASE IN THE CASE BEFORE US THE FINDING HAS BEEN GIVEN IN THE REVISI ONARY ORDER ALSO STATING WHY THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 147 W AS ERRONEOUS BECAUSE OF LACK OF ENQUIRY. THEREFORE WE ARE OF THE OPINION THAT THE LD. COMMISSIONER HAS CLEARLY EXERCISED THE REVISIONARY JURISDICTION U/S 263 OF THE ACT BECAUSE THE ASSESSING OFFICER HAS CLEARLY FAILED TO MAKE ANY EN QUIRY IN THE GIVEN FACTS OF THE CASE AS STATED ABOVE. 14 IN THIS APPEAL ONE MORE GROUND HAS BEEN TAKEN IN RESPECT OF LIMITATION BUT NO ARGUMENTS WERE MADE BEFORE US BY THE LD. COU NSEL OF THE ASSESSEE OR THE DEPARTMENT. HOWEVER FROM THE READING OF REVIS IONARY ORDER U/S 263 IT BECOMES CLEAR THAT THE REVISIONARY ORDER HAS BEEN P ASSED IN RESPECT OF ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 147 ON 31 .12.2009. IT IS SETTLED POSITION OF LAW THAT POWER U/S 263 IS AVAILABLE TO REVISE ANY ORDER PASSED BY THE ASSESSING AUTHORITY AND RE-ASSESSMENT ORDER IS DEFI NITELY AN ORDER WHICH WAS PASSED ON 31.12.2009. THEREFORE LIMIT WOULD STAR T U/S 263(2) FROM THE END OF FINANCIAL YEAR IN WHICH THE ORDER HAS BEEN PASSED I .E. 31.3.2010 AND WOULD EXPIRE ON 31.3.2012 WHEREAS THE ORDER CHALLENGED BE FORE US HAS BEEN PASSED BEFORE 28.3.2012 I.E. WELL WITHIN TIME LIMIT PRESCR IBED U/S 263(2). THEREFORE THE ORDER IS VERY MUCH WITHIN THE LIMITATION PERIOD . 15 IN VIEW OF ABOVE DISCUSSION WE UPHOLD THE ORDER PASSED U/S 263 OF THE ACT. 16 IN THE RESULT APPEAL FILED BY THE ASSESSEE IS D ISMISSED. ORDER PRONOUNCED ON 31.07.2012 SD/- SD/- (H.L. KARWA) (T.R. SOOD) VICE PRESIDENT ACCOUNTANT MEMBER DATED: 31.07.2012 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/ THE DR 10