^^^Sft' ~^^ .^ » o'^ Xi-HC- W^I ^I <^SW •9V} 3H^| WlN? | -R ^ ^"^ ~:3W^V,, 'gFatwTS, f^TR3TP: StT^t-iRWC y) TOIWK ^ife?! .?IICT qnqferaFi •'wrerf •if feist •d^^H •^sifroan^i DlVISiON'BENCHT HON'BLE Mft. DHIRENDRA MISHRA & HON'BLE_M8. R.N^CHANDRAKAR, JJ Tax Caee No.36/2008 (ADpeal u/s 260-Alof the Income Tax Act, 1961) Appellant Co(nmissioner of Income Tax, Bilaspur (C$) Versus Respondent Dri Chi (C$) Smt. Anju 6oyal, Arihant Hospital, apda Coiony, Ambikapur, bistt. Surguja 01.09.2009 Mr. S.R. Rao, Jr. Stan<|ing Counsel for the appellant. 1 None appear'ed on beh|ilf of the respondent though served. In these circumstjanc^s, the appellant was finally heard on this appeal. j This appeal has bepn admitted on following substantial question of law; "Whether on the facts and in the circumstances of the case, the ITAT was justified in law in canceling the order only on the ground that the order was based on me.re. change of opinion while overlooking the facts that specific infirmities and errors had been clearly mentioned in the order? «.«l"'-t-'<. XI-HC—78 5:!17S1 ^! TeFlRr ^qi 311^?! gTqfe 'S^ '^TRTST?1, sifll'M'iS, fsRTFRy "3?ITWP TR!TWgfe?3?1W -2- (^I*l!<'l4)l ^f^lt^1! ^ tS1E^ <ra|'f^K •^a'^man^i Briefly stated, facts |of the case are that the respondent- assessee is a doctor by profession, she filed her return of income for the assessment year uncjer consideration declaring total income of Rs.3,15,010/- During tl^e course of survey proceedings un- accounted cashof Rs.1,83,425/- was found, which was surrendered by the assessee treating th^ same as her undisclosed income. Thus, the income declared at Rsi3,45,040/- is inclusive of undisclosed income. Her case was select^d for scrutiny under Section 143 (3) of the Income Tax Act, 1961 [for short 'the Act') and query letters were issued to the assess^e to gather certain information. The Assessing Officer (for shor^ 'AO") on verification found that most of the expenses claimed wene un-vouched & unverifiable and keeping in view all these facts, a lum^-sum addition of Rs.50,000/- is made to the income of the assessee 1jo cover-up the possible leakages. The Commissioner of IIncome Tax (for short 'CIT) examined the matter by invoking Section 263 of the Act and vide its order dated 9.5.2007 reached to the conclusion that the AO while making assessment failed to examine certain aspects detailed in the order which resulted in under assessment of the income and therefore, it was held that the order passed by the AO is erroneous and pre- lu ""w^ XI-HC—78 3n^f%'¥ri3-: ! ?im an^i W:TRT ^r^w^,, wvtww, fsidi'l-y n srr^i tpffi- c^f^q) -^ wrafeNN WiWff •?ft%r tN%R itsii'n;!^ TOnw'sm?? 3nw juSicial to fFiemTeresl'of nevenue^na~WCOliTtrligty7'The-^^ order was cancelled under Section 263 of the Act and the AO was directed to frame it afreshj after proper examination of the issues pointed out in the order by obtaining proper details and particulars and after affording due opp^rtunity of being heard to the assessee. However, on appeal b^ the assessee, the Income Tax Appellate Tribunal (for short 'ITAT) held that action of the CIT in invoking provisions of Section 263 c|f the Act is not correct and therefore, the order of the CIT was cdnceled. 1 Learned counsel for|the appellant submits that from bare perusal of the order of th^ AO, it would be evident that the same has been passed in a most cf-yptic manner without making any enquiry <& without assigning any r-elason for making a lump-sum addition of Rs.50,000/-. The CIT, after careful examination of. the record, has detailed various aspects inj Para-2 of its order which clearly points out that the assessment was completed in haste and without proper enquiry. Notice under Section 263 (1) of the Act was issued to the assessee and after affording opportunity of hearing to the assessee the reasoned detailed order canceling the assessment by the AO has been passed. However, the ITAT, without dealing with various inIUi; l!uhllLUn&!(ani^jbu>n-Uir^^^-fidii^- rj'^i 'imin 1 Xl-H^-idrf^ sn^i qii R-ti'* wn sii^i *ti* 'S^T -'<l'41d'LI, 8>Tll^'IS, fqcll'My /, W1WI »»*11<*» WI.200 sn^i'^^ ('^?f3^(') TCiiwafCT 3ti^i t|y aspects detailed in the order^ CIT with an observation thal Act is nothing but based on permissible underthe law. 11^ opinion" heavily relied upon present case as the original o| ondue appreciation and exan\ under Section 263 of the opinion as held by the ITAT. Amma Vs. Commissioner of| (1998) 144 CTR (Ker) 259: Further reliance is pl<j Supreme Court in the mattt reported in (1968) 67 ITR CIT repbrted in (1973) 88 CIT may consider an order contains some apparent error| face of it but also because accepts what the assessee enquiries which are called for 4ct ^ti^fl^ *11^t<ylt'^ rs^t •(f'T^K °t73(fTO31I^I of the CIT, has set aside the order of the order under Section 263 of the jmere "change of opinion", which is not was argued that concept of "change of the tribunal was not available in the 'der was passed by the AO and the CIT ination of record has passed the order and it is not a case of change of |Reliance is placed on K.A. Ammarkunhi A9ricultural Income Tax reported in (|1999) 235 ITR 401 (Ker). |ced on the judgments of the Hon'ble [r-s of Rampyari bevi Sarogi V. CIT |84 (SC) and Tara Devi Aggarwal Vs. JTTR 323 (SC) it was argued that the jof AO to be erroneous not only if it |of reasoning or of law or of fact on the |it is stereo-typed order which simply stated in his return and fails to make |in the circumstances of the case. hols + a5» Si?. . "•^Sf^—.s'' XI-HC-S78-^ an^i^Tl^NT w sn^i »ww 'S'ST "41't|ld'4, ®Tll'M'ls,fqyiyy ^_s^~ ^ •^200 sn^I •q3W (ipf^^q) TOliw^ifeian^t We have heard learni perused the order of A.O. a^ the impugned order. As already detailed records, books of account, that most of the expenses even then without making arv^ Rs.50,000/- has been made. On the other hand, the AO has detailed various which resulted in under opportunity of hearing to th< of the High Court of Delhi inj Additional CIT reported in ( assessment in this case has proper and thorough enquir^ order of the AO is erroneoul revenue. However, the t< considering the reasons assicihed +i<ii<')<)i-< w^vS ^ fslzt <r'nt<;i< ^;3lRpT 311^1 ;d counsel for the parties. We have also the order passed by the CIT and al|>ove, the AO after verification of the ^ouchers etc. reached to the conclusion clbimed are unvouched & unverifiable and further enquiry a lump-sum addition of ttte CIT after examination of record of 4spects left to be considered by the AO ass4ssment of income ond after affording assessee and relying upon the decision the matter of Ge.e. Vee Enterprises Vs. 1975) 99 ITR 375 it was held that the |>een completed by AO in haste without and investigation and therefore, the i^ and prejudicial to the interestof the •ibunal vide impugned order without by the CIT for canceling the order B /•<•: ^" -^-':^. ---K^^ XI-HC—78 ^-p a-ni, •viffi^r.fB^ '•3WWW, 3n?Ti^<yiw 'a'Ti an^i'a^fRr ws?i 'vm (.'^yys) wnw ^tfN 3T*ff -41- wNa'N''?iwf •? fyst ?f5R5K iFatRma^ of AO hasCancelled the ordirofZlT on thegrounBTTiaTTRe^ame is based on mere change of opi^iion. For the aforesaid re4sons, the impugned order of the ITAT cannot be sustained and ac^ordingly, the same is hereby set aside and the order of the CIT is f'estored. Cerfifie^cgBy as per Sd/- Dhirendra Mishra Judge 'ules. Sdi- R.N. Chandrakar Judge