IN INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. No: 1426/AHD/2013 (Assessment Year: 2005-06) Shri Nimesh Rasiklal Patel V/S ACIT Central Circle-1(4), 28, Gautamnagar Co. Op. Ahmedabad Housing-Society. Ltd., Detroj Road, Merar Ramji Mandir, Kadi- 382715 (Appellant) (Respondent) PAN: AHYPP5460G Appellant by : Shrin P.M. Mehta, A.R. Respondent by : Shri Rakesh Meena, Sr. D.R. ORDER Date of hearing : 23 -08-2016 Date of Pronouncement : 16-09-2016 PER MAHAVIR PRASAD, JUDICIAL MEMBER: 1. This appeal by Assessee is preferred against order of Ld. CIT (Central)-I, Ahmedabad dated 25.03.2013 pertaining to A.Y. 2005-06 and assessee has taken following grounds:- 2 ITA No . 1426/Ahd/2013 . A.Y. 2005-06 1. On facts and in circumstances of case, learned CIT erred in assuming his jurisdiction u/s.263 of IT. Act, whereas mandatory conditions for assuming such jurisdiction are totally absent, with result that impugned order passed u/s.263 is bad in law. 2. On facts and in circumstances of case, learned CIT erred in arriving at conclusion without any basis whatsoever to effect that assessment order passed by Assessing Officer was erroneous as well as prejudicial to interest of revenue. 3. On facts and in circumstances of case, learned CIT erred in setting aside assessment order passed by Assessing Officer on 21th December, 2010 u/s.143(3) r.w.s. 153A of IT. Act by directing Assessing Officer to modify Assessment Order after making appropriate enquiry in respect of gifts received by appellant for Rs 8,66,612. 2. facts of case are that cases with regard to passing of impugned order u/s. 263 by ld. CIT(Central)-I, Ahmedabad are that original assessment was made by ACIT, Central Circle- 1(4), Ahmedabad after thorough scrutiny u/s. 143(3) r.w.s. 153A of Income Tax act vide his order dated 21.12.2010 determining total income of Rs. 2,79,260/- in accordance with Return of Income. Subsequently, ld. CIT(A) issued notice u/s. 263 dated 13.03.2013 and following are relevant extract. 3. On verification record, it was seen that assessee has received gift of Rs. 8,66,612/- from following for A.Y. 2005-06:- "3 On verification of records it is seen that you have stated to have received gift of Rs. 8,66,612/- from following for A.Y. 2005-06 Rs. 1,50,000/- from Jiviben Patel(Masi) Rs. 1,00,000/- from Shitanshubhai Patel (Brother-in-law) Rs. 2,00,000/- from Chandubhai Patel (Masa) Rs. 2,41,6121- from Shitanshubhai Patel (Cousin) Rs. 1.75.000/- from Shaileshbhai Patel (Cousin) 3 ITA No . 1426/Ahd/2013 . A.Y. 2005-06 above gifts are not considered genuine since in gift declaration filed by you relation mentioned are contradictory to your submissions. It is not clear if Shailesbhai is cousin or brother Shailesbhai Patel is not lineal ascendant descendant of individual, ence gift received from above person is not covered under explanation for purposes of clause 'relative' Section 56 provides explanation in respect of gift which reads as under; (g) Explanation: For purpose of this clause, relative means (xvi) Spouse of individual (xvii) Brother or Sister of individual (xviii) Brother or sister of spouse of individual (xix) Brother or sister of either of parents of individual (xx) Any lineal ascendant or descendant of individual Therefore, assessment made u/s 143(3) r.w.s. 153A of Act is, therefore, considered to be erroneous and prejudicial to interest of Revenue. Since above issues have escaped attention of Assessing Officer, case requires revision u/s 263 of I.T. Act. 4. Accordingly, therefore, assessment made u/s. 143(3) r.w.s. 153A of Act was considered to be erroneous and prejudicial to interest of Revenue. Since above issue had escaped attention of Assessing Officer, case required revision u/s. 263 of Act. 5. In response to above notice, appellant stated that during course of scrutiny assessment proceedings u/s. 153A, Assessing Officer had made proving inquiries regarding received by appellant for which notice was issued u/s. 142(1) on 01/01/2010. It was submitted that against aforesaid notice, appellant filed detailed reply vide letter dated 28/05/2010 and also stated that u/s. 263 cannot be invoked for directing Assessing Officer to re- 4 ITA No . 1426/Ahd/2013 . A.Y. 2005-06 examine issue which has already been considered in detail and assessee submitted ledger account prior to September 2004 and also filed letter dated 28/05/2010 stating that same is covered by exception of Section 56(2) of Income Tax Act. 6. We have gone through relevant record and impugned order in several decisions of superior court it has been held that where appellant had produced relevant material and offered explanation in pursuant to notices issued u/s. 142(1) as well as Section 143(2) of Act and after considering material and explanation, ITO had come to definite conclusion and where material was there on record and said material was considered by Assessing Officer and particular view was taken, mere fact that different view can be taken should not be basis for action u/s. 263 and reliance was also placed on Allahabad High Court in case of CIT vs. Mahendrakumar Bansal 297 ITR 99 wherein it has been held that merely because ITO had not written lengthy order it would not establish without bringing on record specific instances that assessment order passed u/s. 143(3) is erroneous and prejudicial to interest of revenue and appellant strongly relied on Bombay High Court in case of CIT vs. Gabrial Indian Ltd. 203 ITR 188. In this case, it was held that if Assessing Officer has raised queries and appellant had filed written submissions/explanation, merely because there is no discussion in Assessing Officer s order on relevant issue, it cannot be said that such order becomes erroneous. Similar view has been taken by Rajasthan High Court in case of CIT vs. Ganpat Ram Bishnoi 296 ITR 292. 5 ITA No . 1426/Ahd/2013 . A.Y. 2005-06 7. In result, appeal filed by Assessee is allowed for statistical purposes. Order pronounced in Open Court on 16 - 09- 2016. Sd/- Sd/- (PRAMOD KUMAR) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad: True Copy Rajesh Copy of Order forwarded to:- 1. Appellant. 2. Respondent. 3. CIT (Appeals) 4. CIT concerned. 5. DR., ITAT, Ahmedabad. 6. Guard File. By ORDER Deputy/Asstt.Registrar ITAT,Ahmedabad Nimesh Rasiklal Patel v. ACIT, Central Circle-1(4), Ahmedabad