Case Law Details

Case Name : Smt. N.K. Vinayak Vs Commissioner of Income Tax (ITAT Delhi)
Appeal Number : I.T.A.No.2454/Del/2012
Date of Judgement/Order : 28/03/2014
Related Assessment Year :
Courts : All ITAT (7341) ITAT Delhi (1720)

CA Prarthana Jalan

We have heard the rival contentions, material available on the record and case laws cited by both the parties. From the facts narrated above and the paper books filed it emerges that during the course of assessment proceeding questions, enquiries and explanation on the relevant issues were called for by the ld AO and were replied by the assessee. Thus these are not the assessments where there was no enquiry on the relevant aspect. The questionnaires, order sheet entries, assessees submissions and explanations make it quite clear. Thus we are unable to hold that assessment orders suffer from lack of enquiries. In sunbeam Auto case Hon’ble Delhi High Court has held that though revision can be made in a case when there is lack of enquiry in the order, however, inadequate inquiries cannot be a basis of revision as it depends on the perception of the officer exercising assessment powers. A mere deference is perception of CIT and AO cannot make the order erroneous and prejudicial to the interest or revenue. Hon’ble Delhi High Court in the recent judgment in the case of DLF Ltd. squarely held that:

“It is not mere prejudice to the revenue, or a mere erroneous view which can be revised under section 263. There should be the added element of ‘unsustainability’ in the order of the Assessing Officer, which clothes the Commissioner with jurisdiction to issue notice and proceed to make appropriate orders. [Para 10]”

Looking at the entirety of facts, it cannot be held that the impugned assessment orders suffer from unsustainability also.

Since reasonable enquiries were made, assesssee was called on to file their explanation and submissions on relevant issue and besides the assessment orders are sustainable, it cannot be held that these are cases of any manifest inadequate inquiry or impossible view or unsustainability.

We also find merit in the argument of ld. counsel that CIT must in demonstrative terms establish as to what prejudice is caused to the revenue. In these cases instead of establishing this mandatory condition ld. CIT has merely chosen to set aside the assessments back to AO to conduct further enquiries. ITAT judgment in the case of – S.S.I. Ltd (supra) supports the view of the assessee.

In view of the entirety of facts, circumstances, arguments and case laws mentioned above we are of the view that the exercise of jurisdiction u/s 263 by ld. CIT in setting aside the impugned assessments passed u/s 153A r/w sec 143(3) in the case of both the assessee is bad in law, his orders are quashed.

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