SMT. PALLAVI MISHRA, JAIPUR V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, JAIPUR

CO 23/JPR/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0903 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 7 month(s) 9 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 14-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 05-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B K GUPTA CIT A
• Assessee Lawyers: G M MEHTA
• Keywords: Opportunity of being heard; Principle of natural justice; Question of law; Assessment record; Set aside
• Section: 143(3); 153A; 250; 246A; 13; 153; 22; 147; 54; 154; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 1065/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2013-14 DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, JAIPUR CUKE VS. SMT. PALLAVI MISHRA A-801, AURUM TILAK MARG, C- SCHEME, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACQPT5720L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT IZR;K{KSI.K @ C.O. NO. 23/JP/2019 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 1065/JP/2019) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR 2013-14 SMT. PALLAVI MISHRA A-801, AURUM TILAK MARG, C- SCHEME, JAIPUR CUKE VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACQPT5720L IZR;K{KSID@ OBJECTOR IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI G.M. MEHTA (FCA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI B.K. GUPTA (CIT) A LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 02/07/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 14/07/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 2 THIS IS AN APPEAL FILED BY THE REVENUE AND THE CRO SS OBJECTION BY THE ASSESSEE ARISING OUT OF THE ORDER OF THE LD. CI T(A)-4, JAIPUR DATED 21/06/2019 PERTAINING TO A.Y 2013-14. 2. BRIEFLY STATED, FACTS OF THE CASE ARE THAT SEARC H & SEIZURE OPERATIONS U/S 132(1) WERE CARRIED OUT ON 30.10.201 4 AT THE VARIOUS BUSINESS AND RESIDENTIAL PREMISES OF NIMS GROUP INC LUDING THE PREMISES OF THE ASSESSEE WHO IS PART OF THE SAID GROUP. THER EAFTER IN RESPONSE TO NOTICE U/S 153A, THE ASSESSEE FILED HER RETURN OF I NCOME DECLARING TOTAL INCOME OF RS. 26,26,510/- AS AGAINST TOTAL INCOME O F RS.24,73,160/- DECLARED IN HER ORIGINAL RETURN OF INCOME FILED U/S 139 OF THE ACT. THE ASSESSMENT WAS COMPLETED U/S 143(3) READ WITH SECTI ON 153A VIDE ORDER DATED 29.12.2016 WHEREIN THE ASSESSING OFFICE R MADE AN ADDITION AMOUNTING TO RS. 6,86,686/- TOWARDS UNDISCLOSED INV ESTMENT IN PLOT OF LAND SITUATED AT B-140 TO B-149, SHIVAJI NAGAR, JAI PUR ON SUBSTANTIVE BASIS. FURTHER, PROTECTIVE ADDITION OF RS. 3,27,83, 846/- WAS MADE IN THE HANDS OF THE ASSESSEE AS UNDISCLOSED INVESTMENT IN LAND BEARING KHASRA NO. 551,551/673, 552 AT VILLAGE JUGALPURA, CHITANUK ALAN, TEHSIL AMER, JAIPUR WHEREIN SUBSTANTIVE ADDITION WAS PROPOSED IN THE HANDS OF THE M/S INDIAN MEDICAL TRUST. ACCORDINGLY, THE ASSESSME NT WAS COMPLETED AT RS. 3,60,97,040/- AS AGAINST RETURN OF INCOME OF RS. 26,26,510/-. 3. BEING AGGRIEVED, THE ASSESSEE CHALLENGED THE ORD ER AND THE FINDINGS OF THE ASSESSING OFFICER BEFORE THE LD. CI T(A) IN RESPECT OF BOTH SUBSTANTIVE AND PROTECTIVE ADDITIONS. REGARDING TH E ADDITION OF RS. 6,86,686/- MADE BY THE AO ON SUBSTANTIVE BASIS, THE SAME WAS CONFIRMED BY THE LD. CIT(A) AGAINST WHICH THE ASSES SEE CARRIED THE MATTER IN APPEAL BEFORE THE TRIBUNAL AND THE CO-ORD INATE BENCH VIDE ITS ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 3 ORDER DATED 24.07.2018 IN ITA NO. 1028/JP/2017 HAS DELETED THE SAID ADDITION HOLDING THAT THE ADDITION HAS BEEN MADE WI THOUT REFERENCE TO ANY INCRIMINATING MATERIAL WHICH CAN DEMONSTRATE AN Y INVESTMENT OVER AND ABOVE DISCLOSED IN THE FINANCIAL STATEMENTS. TH E ADDITION MADE BY THE AO WAS HELD NOT SUSTAINABLE AND THE SAME WAS DE LETED. 4. REGARDING PROTECTIVE ADDITION OF RS. 3,27,83,846 /- ON ACCOUNT OF UNDISCLOSED INVESTMENT IN THE LAND SITUATED AT VILL AGE JUGALPURA, CHITANUKALAN, TEH. AMER, JAIPUR, THE ASSESSEE TOOK A SPECIFIC GROUND OF APPEAL CHALLENGING THE SAME BEFORE THE LD CIT(A). D URING THE PENDENCY OF THE APPELLATE PROCEEDINGS BEFORE THE LD CIT(A), THE ASSESSING OFFICER PASSED ANOTHER ORDER DATED 15.09.2017 U/S 143(3)/15 3A/245D(4) OF THE ACT, REFERRED TO AS ORDER PASSED TO GIVE EFFECT TO THE ORDER OF SETTLEMENT COMMISSION U/S 245D(4) DATED 30/06/2017 OF THE ACT, WHEREIN THE AO CONVERTED THE EARLIER PROTECTIVE ADD ITION MADE IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF UNDISCLOSED INV ESTMENT IN THE LAND SITUATED AT VILLAGE JUGALPURA, CHITANUKALAN, TEH. A MER, JAIPUR INTO SUBSTANTIVE ADDITION. THE SAID ORDER PASSED BY THE AO U/S 143(3)/153A/245D(4) OF THE ACT WAS BROUGHT TO KNOWL EDGE OF LD. CIT(A) AND IT WAS SUBMITTED THAT THE ASSESSEE SHALL BE FILING A SEPARATE APPEAL AGAINST THE SAID ORDER PASSED BY THE AO DATE D 15.09.2017 AS REQUIRED BY LAW. THE LD. CIT(A) CONSIDERING THE SUB MISSIONS OF THE ASSESSEE HELD THAT SINCE THE PROTECTIVE ADDITION HA S BEEN CONVERTED AND TREATED AS SUBSTANTIVE ADDITION BY THE ASSESSING OF FICER, THE GROUND OF APPEAL SO TAKEN BY THE ASSESSEE HAS BECOME INFRUCTU OUS AND GROUND OF APPEAL SO TAKEN BY THE ASSESSEE WAS TREATED AS DISM ISSED. ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 4 5. AGAINST THE ORDER U/S 143(3)/153A/245D(4) OF THE ACT DATED 15.09.2017 PASSED BY THE AO WHEREIN THE PROTECTIVE ADDITION WAS CONVERTED INTO SUBSTANTIVE ADDITION, THE ASSESSEE F ILED ANOTHER APPEAL BEFORE THE LD. CIT(A)-4, JAIPUR WHO VIDE IMPUGNED O RDER DATED 17.06.2019 HAS DELETED THE SAID ADDITION. AGAINST T HE SAID ORDER AND FINDINGS OF THE LD CIT(A), THE REVENUE IS NOW IN AP PEAL BEFORE US AND THE ASSESSEE HAS ALSO FILED HER CROSS OBJECTION. 6. FIRSTLY, WE TAKE UP THE REVENUES APPEAL WHEREIN THE GROUNDS OF APPEAL READ AS UNDER:- 1. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DELETIN G THE ADDITION OF RS.3,27,83,846/- IN VIEW OF THE FACT TH AT THE ASSESSEE HAS NOT EXPLAINED THE SOURCE OF UNDISCLOSED INVESTM ENT IN PURCHASE OF LAND. 2. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN IGNORING THE FACTS THAT THE HONBLE ITSC HAS RELIED UPON A SUBSEQUENT REPORT OF THE PR. CIT(C) AND WHEREIN THE PCIT(C) HAS SUBMITTED TH AT THE ADDITION OF UNDISCLOSED INVESTMENT IN LAND SHOULD B E MADE IN THE HANDS OF MS. PALLAVI TOMAR AND NO IMT. 3. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN IGNORING THE FACTS THAT PROTECTIVE ADDITION OF RS.3,27,83,846/- WAS MA DE IN THE CASE OF THE ASSESSEE AND AFTER THE ORDER OF THE HONBLE ITSC, THE SAME WAS MADE AS SUBSTANTIVE ADDITION. THE CONVERSION OF PROTECTIVE TO SUBSTANTIVE ADDITION IS WELL WITHIN THE JURISDIC TION OF THE AO. 7. AT THE OUTSET, THE LD. CIT/DR SUBMITTED THAT THE REVENUE WISHES TO TAKE CERTAIN ADDITIONAL GROUNDS OF APPEAL WHICH ARE PURELY LEGAL IN NATURE AND IN LIGHT OF THE HONBLE SUPREME COURT DE CISION IN CASE OF ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 5 NTPC VS. CIT (229 ITR 883), IT WAS PRAYED THAT THE ADDITIONAL GROUNDS OF APPEAL MAY BE ADMITTED AND ADJUDICATED UPON ON M ERITS. THE ADDITIONAL GROUNDS OF APPEAL SO SOUGHT TO BE RAISED BY THE REVENUE READ AS UNDER:- A. THE LEARNED CIT APPEAL HAS ERRED IN LAW IN ADJU DICATING AGAINST AN ORDER WHICH WAS NOT APPEALABLE BEFORE THE CIT AP PEAL, AB INITIO. B. THE LEARNED CIT(APPEAL) EXCEEDED HIS JURISDICTIO N IN ADJUDICATING AGAINST THE SAID ORDER DATED 15.09.2017, AS SUCH AN ORDER IS NOT COVERED AS AN APPEALABLE ORDER DETAILED IN SECTION 246A OF THE IT ACT 1961. C. THE LEARNED CIT(APPEAL) ERRED IN LAW AND ON FAC TS IN ADMITTING AND ADJUDICATING THE APPEAL PURPORTEDLY F ILED AGAINST ORDER DATED 15.09.2017 PASSED BY THE ACIT CENTRAL C IRCLE-1, JAIPUR SHOWN TO BE PERTAINING TO AY 2013-14 WITH TH E HEADING,' ORDER GIVING EFFECT TO THE ORDER UNDER SECTION 245D (4) OF THE ACT PASSED BY THE INCOME TAX SETTLEMENT COMMISSION, NEW DELHI' D. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN PASSING THE ORDER WITHOUT REMAND REPORT OF THE AO. THE LD. CIT(A) HAS NOT PROVIDED PROPER OPPORTUNITY OF HEARING, WHICH IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE, AND WHICH IS A SPECIFIC REQUIREMEN T OF IT ACT, 1961. E. AFTER THE SEARCH THE NIMS GROUP/IMT WAS CENTRALI ZED WITH THE AO I.E. ACIT, CENTRAL CIRCLE-1, JAIPUR. THE ASSESSE E SMT. PALLAVI TOMAR IS ALSO ONE OF THE MEMBERS OF THIS GROUP AND HER RE SIDENCE WAS ALSO COVERED IN SEARCH AND HER CASE WAS ALSO CENTRALIZED WITH THE AO, CENTRAL CIRCLE-1, JAIPUR. THEREFORE, THE AO HAS JUR ISDICTION OVER THE ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 6 CASE OF THE SMT. PALLAVI TOMAR. THE AO HAS PASSED T HE ORDER WELL WITHIN ITS JURISDICTION. WHETHER THE CIT(A) WAS JUS TIFIED IN HOLDING THAT 'AFTER FRAMING OF ORIGINAL ORDER THE ASSESSING OFFI CER EXHAUSTED HIS JURISDICTIONAL OVER THE APPELLANT. ANY MODIFICATION IN THE ORIGINAL ORDER WOULD HAVE BEEN RESORTED TO ONLY IF THE JURISDICTIO N FOR THE SAME IS VALIDLY ASSUMED. IN ABSENCE OF ASSUMPTION OF JURISD ICTION AS PER KNOW PROVISION OF LAW, THE IMPUGNED ORDER IS NULLITY AND IS REQUIRED TO BE SET ASIDE. . AFTER FRAMING OF ASSESSMENT, THE ASSESSING OFFICER BECOMES FUNCTUS OFFICIO. HE NO LONGER REMAINS IN JURISDICTION TO RE DO OR RE-COMPUTE SUCH ASSESSMENT. 8. IT WAS SUBMITTED BY THE LD CIT/DR THAT THE REVEN UE HAS CHALLENGED THE ASSUMPTION OF JURISDICTION BY THE LD CIT(A) STATING THAT THE ORDER SO PASSED BY THE AO IS NOT AN APPELLABLE ORDER AS SO REFERRED TO IN SECTION 246A OF THE ACT AND HENCE, ADMITTING AN APPEAL AGAINST THE SAID ORDER AND ADJUDICATING THE GROUNDS OF APPE AL SO TAKEN BY THE ASSESSEE IS BEYOND HIS JURISDICTION. IT WAS SUBMIT TED THAT THE AO HAS PASSED THE ORDER DATED 15.09.2017 TO GIVE EFFECT TO THE ORDER U/S 245D(4) PASSED BY THE INCOME TAX SETTLEMENT COMMISS ION AND ONCE THE JURISDICTION OF THE MATTER LIES WITH ITSC AND T HE AO PASSES AN ORDER TO GIVE EFFECT TO THE ORDER OF ITSC, THE MATTER CLE ARLY FALLS OUTSIDE THE REGULAR APPELLATE ROUTE WHEREIN THE APPEAL COULD HA VE BEEN FILED BEFORE THE LD CIT(A). IT WAS FURTHER SUBMITTED THAT THE L D CIT(A) HAS ADJUDICATED THE ADDITIONAL GROUNDS OF APPEAL WITHOU T CALLING FOR THE REMAND REPORT FROM THE AO AND THEREFORE, THE REVENU E HAS NOT BEEN ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 7 PROVIDED AN OPPORTUNITY OF BEING HEARD VIOLATING TH E PRINCIPLES OF NATURAL JUSTICE. IT WAS FURTHER SUBMITTED THAT THE LD CIT(A) WAS AGAIN WRONG IN HOLDING THAT AFTER FRAMING THE ASSESSMENT, THE AO BECOMES FUNCTUS OFFICIO AS IN THE INSTANT CASE, ONCE THE IT SC HAS PASSED THE ORDER, THE AO IS WELL WITHIN HIS JURISDICTION TO CO MPUTE THE INCOME AND GIVE EFFECT TO THE ORDER SO PASSED BY THE ITSC. HE ACCORDINGLY SUBMITTED THAT THE ORDER SO PASSED BY THE LD CIT(A) MAY THUS BE SET- ASIDE FOR WANT OF JURISDICTION AND OTHER REASONS AS STATED ABOVE. 9. IN HIS SUBMISSIONS, THE LD. AR SUBMITTED THAT IN FIRST THREE ADDITIONAL GROUNDS OF APPEAL, THE REVENUE HAS CHALL ENGED THE JURISDICTIONAL OF LD. CIT(A) -4, JAIPUR WHO HAD ADM ITTED AND DECIDED THE APPEAL OF THE ASSESSEE. IT WAS SUBMITTED THAT THESE ADDITIONAL GROUNDS OF APPEAL SHOULD NOT BE ADMITTED FOR THE FOLLOWING REASONS. IT WAS SUBMITTED THAT IN REMAND REPORT DATED 04.04.2018 BE FORE THE LD. CIT(A), THE AO RAISED JURISDICTION ISSUE OF THE LD. CIT(A). HOWEVER, THESE REVISED GROUNDS OF APPEAL, THE JURISDICTION ISSUE OF LD. CIT(A) HAS NOW BEEN CHALLENGED FOR THE FIRST TIME. IT WAS FURTHER SUBMITTED THAT IN FORM NO. 36 DATED 29.08.2019, THERE IS NO G ROUND CHALLENGING THE JURISDICTION OF LD. CIT(A) IN ADMITTING AND DEC IDING THE APPEAL. IT WAS SUBMITTED THAT IN DEMAND NOTICE DATED 15.09.201 7 ISSUED U/S 156 OF THE ACT PURSUANT TO WHICH THE DEMAND WAS RAISED ON THE ASSESSEE, THE AO HERSELF HAD DIRECTED THAT IF ASSESSEE INTEND S TO CHALLENGE THE ASSESSMENT OF INCOME/FINE/PENALTY, APPEAL CAN BE PR ESENTED WITHIN 30 DAYS TO LD. CIT(A)-4, JAIPUR. IT WAS SUBMITTED THAT AS PER THE DIRECTIONS OF THE LD. AO HERSELF, THE ASSESSEE HAD PRESENTED T HE APPEAL BEFORE THE LD. CIT(A)-4, JAIPUR AND THEREFORE, CHALLENGING JUR ISDICTION OF THE LD. ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 8 CIT(A) THROUGH THESE ADDITIONAL GROUNDS OF APPEAL I S AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND SUCH GROUNDS OF AP PEAL SHOULD BE DISMISSED AS VOID AB INITIO. IT WAS FURTHER SUBMITT ED THAT AS PER THE PROVISIONS OF SECTION 246A(1)(A) OF THE ACT WHERE T HE ASSESSEE DENIES HIS LIABILITY TO BE ASSESSED UNDER THE ACT, HE CAN PREFER APPEAL TO THE LD. CIT(A) AND ACCORDINGLY, THE ASSESSEE HAD PREFER RED THE PRESENT APPEAL WITHIN TIME ALLOWED UNDER THE LAW. 10. REGARDING FOURTH ADDITIONAL GROUND OF APPEAL T AKEN BY THE REVENUE, IT WAS SUBMITTED THAT THE SAID GROUND OF A PPEAL HAS BEEN TAKEN WITHOUT CONSIDERING THE ORDER OF THE LD. CIT( A) AS WELL AS THE ASSESSMENT RECORDS. IT WAS SUBMITTED THAT RELEVANT DISCUSSION FOR THE REMAND TO THE AO IS DULY FOUND IN THE ORDER OF LD. CIT(A) AS APPARENT FROM THE FOLLOWING TABLE AS UNDER:- S. NO. PARA & PAGE {OF ORDER OF CIT(A)} RELATED DISCUSSION BY CIT(A) 1. PARA 2.2, PAGE (3) DURING THE COURSE OF HEARING OF THIS APPEAL, THE APPELLANT HAS ALSO RAISED FOLLOWING ADDITIONAL GROUNDS OF APPEAL. SAME WAS FORWARDED TO THE LEARNED AO TOO ON 15.04.2019. 2. PARA 5, PAGE 10 THE WRITTEN SUBMISSIONS FILED BY THE LD. A/R WAS FORWARDED TO THE LEARNED AO CALLING FOR REMAND REPORT VIDE LETTER NO. CIT(A)- 4/JPR/2017-18/815 DATED 05.12.2017 HAS BEEN CALLED FROM THE AO. 3. PARA 5.2, PAGE 10 THE DCIT, CC-1, JAIPUR, VIDE L ETTER NO. 11 DATED 04.04.2018 HAS SUBMITTED THE ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 9 AFORESAID REPORT THROUGH ADDL. CIT, CENTRAL RANGE, JAIPUR NO. 26 ON 05.04.2018, THE RELEVANT EXTRACTS OF WHICH IS REPRODUCED HEREIN AS UNDER:- KINGLY REFER TO YOUR OFFICE LETTER NOS. 4. PARA 6, PAGE 15 A COPY OF THE SAID REPORT HAS AL SO BEEN PROVIDED TO THE A/R OF THE APPELLANT ON 9.4.2018 FOR REJOINDER COMMENTS. 11. IT WAS ACCORDINGLY SUBMITTED THAT THOUGH THERE APPEARS TO BE NO REQUIREMENT UNDER LAW FOR OBTAINING REMAND REPORT F ROM THE AO FOR ADJUDICATION OF ANY LEGAL GROUNDS OF APPEAL. HOWEVE R, FOR ADJUDICATION OF ANY ADDITIONAL GROUNDS RAISED IN APPEAL BY THE A SSESSEE OR WHERE THERE IS ANY COMPLEXITY IN ASSESSMENT ORDER OR WHER E ANY CLARIFICATION IS REQUIRED, THE REMAND REPORT MAY BE OBTAINED FROM THE ASSESSING OFFICER BEFORE DECIDING THE APPEAL. IT WAS SUBMITTE D THAT IN THE INSTANT CASE, THE ADDITIONAL GROUNDS OF APPEAL WERE FORWARD ED TO THE ASSESSING OFFICER AND AFTER CONSIDERING THE REMAND REPORT OF THE AO AND REJOINDER FILED BY THE ASSESSEE, THE APPELLATE ORDER WAS PASS ED BY THE LD. CIT(A) AND ACCORDINGLY, THERE IS NO LEGAL FORCE IN THE ADD ITIONAL GROUND SO RAISED BY THE REVENUE AND THE SAME MAY NOT BE ADMIT TED. 12. REGARDING FIFTH ADDITIONAL GROUND OF APPEAL, I T WAS SUBMITTED THAT IT IS NOT A GROUND OF APPEAL BUT IT IS IN RESP ECT OF PAST HISTORY OF THE ASSESSEE AND JURISDICTION OF THE AO FOR WHICH L D. CIT(A) AT PARA 7.4 OF HIS ORDER HAS GIVING A FINDING THAT AFTER COMPLE TION OF ASSESSMENT, THE ASSESSING OFFICER BECOMES FUNCTUS OFFICIO AND H E NO LONGER REMAINS ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 10 IN JURISDICTION TO REDO OR RE-COMPUTE SUCH ASSESSME NT. SUCH AN ASSESSMENT ONCE FRAMED CAN BE MODIFIED EITHER U/S 1 54 OR U/S 147 OR TO GIVE A GIVE EFFECT TO AN ORDER IN APPEAL U/S 250 OR S. 254 OR REVISION U/S 263/264 OF THE ACT. IT WAS ACCORDINGLY SUBMITTE D THAT THE FINDING OF THE LD. CIT(A) THAT ASSESSING OFFICER HAS BECOME FU NCTUS OFFICIO AFTER COMPLETION OF THE ASSESSMENT ORDER IS AS PER THE PR OVISIONS OF THE ACT AND THEREFORE, THE ADDITIONAL GROUNDS OF APPEAL SO TAKEN BY THE REVENUE MAY NOT BE ADMITTED. 13. AFTER HEARING BOTH THE PARTIES AND CONSIDERING THE GROUNDS SO SOUGHT TO BE RAISED BY THE REVENUE, WE FIND THAT TH ESE GROUNDS OF APPEAL RELATING TO CHALLENGING THE JURISDICTION OF THE LD CIT(A) TO PASS THE IMPUGNED ORDER, NOT PROVIDING ADEQUATE OPPORTUN ITY TO THE REVENUE AND CHALLENGING THE FINDINGS OF THE LD CIT( A) WHEREIN HE HAS SET-ASIDE THE ASSUMPTION OF THE AO IN PASSING THE O RDER DATED 15.09.2017 ARE PURELY LEGAL GROUNDS OF APPEAL WHICH CAN BE RAISED FOR THE FIRST TIME DURING THE COURSE OF PRESENT PROCEED INGS AND THE SAME ARE HEREBY ADMITTED FOR ADJUDICATION ON MERITS. 14. COMING TO THE MERITS OF THESE GROUNDS OF APPEA L, FIRSTLY, WE REFER TO THE ORDER SO PASSED BY THE LD CIT(A) WHEREIN THE RELEVANT FINDINGS READ AS UNDER: 7. AS REGARDS THE ADDITIONAL GROUND, I HAVE CONSID ERED THE ADDITIONAL GROUND RAISED AND THE SUBMISSIONS MADE I N THIS REGARD. IN MY VIEW THE ADDITIONAL GROUND RAISED IS PURELY LEGAL IN NATURE AND INVOLVES THE QUESTION OF LAW. THE ADJUDI CATION OF THE SAME DOES NOT REQUIRE ANY INVESTIGATION OR EXAMINAT ION OF FRESH FACTS BUT THE SAME CAN BE DECIDED ON THE BASIS OF F ACTS AND ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 11 MATERIAL ON RECORD. THEREFORE IN VIEW OF DECISION O F HONBLE SUPREME COURT IN THE CASE OF NTPC VS. CIT 229 ITR 3 83 AS WELL AS MAHINDRA & MAHINDRA LIMITED VS. DCIT 122 TTJ 577 (MUM) (SB), THE ADDITIONAL GROUNDS RAISED IS ADMITTED FOR ADJUDICATION. 7.1 BRIEFLY, THE LD. COUNSEL FOR THE APPELLANT SUBM ITTED THAT THE IMPUGNED ORDER IS PASSED IN THE CASE OF THE APPELLA NT REPORTEDLY GIVING EFFECT TO THE ORDER OF SETTLEMENT COMMISSION WHICH WAS PASSED IN THE CASE OF INDIAN MEDICAL TRUST AND NOT THE APPELLANT HERSELF. THE APPELLANT NEVER FILED ANY AP PLICATION FOR SETTLEMENT OF HER CASE BEFORE SETTLEMENT COMMISSION . THEREFORE THE ORDER IMPUGNED IN THE PRESENT APPEAL COULD NOT HAVE BEEN PASSED BY THE LD. AO. IT IS ALSO CONTENDE D THAT EVEN THE SETTLEMENT COMMISSION IN IT'S' ORDER HAS N OT DIRECTED TO TAKE ANY ACTION OR RECOMPUTE THE INCOME OF THE A PPELLANT HEREIN. THE AO PASSED THE IMPUGNED ORDER WITHOUT AN Y NOTICE OR AFFORDING AN OPPORTUNITY OF HEARING TO THE APPEL LANT AND HENCE THE SAME IS BAD IN LAW AS IT IS IN VIOLATION OF PRINCIPLE IS OF NATURAL JUSTICE. 7.2 IT IS ALSO CONTENDED THAT ORDER FOR THE YEAR UN DER APPEAL WAS PASSED U/S 143(3) R.W.S 153A ON 29-12-2016. IN THE SAID ASSESSMENT AN ADDITION OF RS. 3,27,83,846/- WA S MADE ON PROTECTIVE BASIS AS SUBSTANTIVE ADDITION WAS PRO POSED IN THE CASE OF INDIAN MEDICAL TRUST AS PER REPORT OF THE P R. CIT(C) UNDER RULE 9 OF SETTLEMENT COMMISSION RULES. AFTER THE FR AMING OF ORIGINAL ORDER THE ASSESSING OFFICER EXHAUSTED HIS JURISDICTION OVER THE APPELLANT. ANY MODIFICATION IN THE ORIGINA L ORDER WOULD ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 12 HAVE BEEN RESORTED TO ONLY IF THE JURISDICTION FOR THE SAME IS VALIDLY ASSUMED. IN ABSENCE OF ASSUMPTION OF JURISD ICTION AS PER KNOWN PROVISION OF LAW, THE IMPUGNED ORDER IS I N NULLITY AND IS REQUIRED TO BE SET ASIDE. 7.3 FURTHER, I HAVE PERUSED THE ORDER IMPUGNED IN T HE PRESENT APPEAL. THE SAID ORDER IS PASSED PURPORTEDLY GIVING EFFECT TO THE ORDER OF INCOME TAX SETTLEMENT COMMISSION IN THE CA SE OF INDIAN MEDICAL TRUST. AN ORDER GIVING EFFECT TO THE ORDER OF SETTLEMENT COMMISSION CAN BE PASSED PROVIDED THE PE RSON IS AN APPLICANT BEFORE THE SETTLEMENT COMMISSION. ADMITTEDLY, IN THE PRESENT CASE THE PRESENT APPELL ANT WAS NOT AN APPLICANT TO SETTLE HIS CASE BEFORE THE SETT LEMENT COMMISSION. IN THE CASE OF THE APPELLANT, THE ASSES SING OFFICER PASSED ORIGINAL ASSESSMENT ON 29-12-2016 U/S 143(3) R.W.S 153A OF THE ACT. SUCH AN ORDER COULD HAVE BEEN MODI FIED PROVIDED THE ASSESSING OFFICER HAS ACHIEVED JURISDI CTION FOR THE SAME. SINCE THE ORDER IMPUGNED IN THE PRESENT APPEA L DATED 15 SEPTEMBER 2017 IS TO GIVE EFFECT TO THE ORDER PASSE D BY SETTLEMENT COMMISSION U/S 245D(4) DATED 30/06/2017 OF THE ACT, THE PRE-CONDITION IS THAT THE SETTLEMENT COMMI SSION SHOULD HAVE PASSED SOME ORDER DIRECTING THE ASSESS ING OFFICER TO DO SO. SINCE THE APPLICANT BEFORE THE SETTLEMENT COMMISSION WAS NOT THE PRESENT APPELLANT, BUT INDIA N MEDICAL TRUST WHICH IS A SEPARATE LEGAL AND TAXABLE ENTITY, ANY ORDER PASSED IN THE CASE OF INDIAN MEDICAL TRUST BY SETTL EMENT COMMISSION WILL NOT AUTOMATICALLY VEST JURISDICTION IN THE ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 13 ASSESSING OFFICER TO MODIFY ANY ORDER PASSED IN ANY OTHER ASSESSEE'S CASE. 7.4 I HAVE ALSO PERUSED THE ORDER OF SETTLEMENT COM MISSION RUNNING FROM PAGE NO. 1 TO 161 PASSED IN THE CASE O F INDIAN MEDICAL TRUST WEARING (WHEREIN) I DO NOT FIND ANY D IRECTION SO AS TO MODIFY THE ORIGINAL ORDER PASSED IN THE CASE OF THE PRESENT APPELLANT. IT IS THEREFORE NOT FORTHCOMING FROM THE RECORD AS TO HOW THE ASSESSING OFFICER ASSUMED JURISDICTION TO F RAME THE PRESENT ASSESSMENT PURPORTEDLY GIVING EFFECT TO THE ORDER OF SETTLEMENT COMMISSION. SECTION 153 PRESCRIBES THE T IME LIMIT FOR COMPLETION OF ASSESSMENT, REASSESSMENT AND RECOMPUT ATION. ACCORDING TO WHICH THE SAME IS TO BE COMPLETED WITH IN 21 MONTHS FROM THE END OF THE ASSESSMENT YEAR IN WHICH THE INCOME WAS FIRST ASSESSABLE. AFTER FRAMING OF ASSES SMENT, THE ASSESSING OFFICER BECOMES FUNCTUS OFFICIO. HE NO LO NGER REMAINS IN JURISDICTION TO REDO OR RE-COMPUTE SUCH ASSESSME NT. SUCH AN ASSESSMENT ONCE FRAMED CAN BE MODIFIED EITHER U/S. 154 OR U/S. 147 OR TO GIVE A GIVE EFFECT TO AN ORDER IN APPEAL U/S 250 OR S. 254 OR REVISION U/S 263/264. THUS EVERY TIME AN ASS ESSING OFFICER MODIFIES AN ORDER, HE HAS TO REASSUME THE J URISDICTION FOR THE SAME BY TAKING RECOURSE TO SOME PROVISION I N THE ACT, OR BY WAY OF SOME DIRECTION FROM SOME AUTHORITIES. IN THE PRESENT CASE IT IS SEEN THAT THE ASSESSING OFFICER HAS RESORTED TO MODIFY THE ORDER PURPORTEDLY FOR GIVING EFFECT T O THE ORDER OF SETTLEMENT COMMISSION. HOWEVER READING THE ORDER OF SETTLEMENT COMMISSION, THERE IS NO DIRECTION CONTAI NED THEREIN ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 14 SO AS TO MODIFY THE ASSESSMENT OF THE APPELLANT HER EIN. THE ORDER OF SETTLEMENT COMMISSION IS ONLY IN RESPECT O F COMPUTATION OF INCOME OF AN ENTITY CALLED INDIAN ME DICAL TRUST. THE SAID TRUST IS A SEPARATE LEGAL AND TAXABLE ENTI TY. THEREFORE ANY ORDER IN THE CASE OF INDIAN MEDICAL TRUST WILL NOT ALTER THE INCOME OF THE APPELLANT HEREIN. I (AM) THEREFORE OF THE VIEW THAT THE ASSESSING OFFICER EXCEEDED HIS JURISDICTIO N IN PASSING THE ORDER IMPUGNED BEFORE ME PURPORTEDLY STATING TO BE GIVING EFFECT TO THE ORDER OF SETTLEMENT COMMISSION. SINCE THERE IS NO DIRECTION CONTAINED IN THE ORDER OF SETTLEMENT COMM ISSION IN REGARD TO THE PRESENT APPELLANT, THE ADDITIONAL GRO UNDS RAISED BY THE APPELLANT IS VALID AND IS ALLOWED. THE ORDER PASSED BY THE LD. AO IS INVALID AND THE ADDITIONS ARE LIABLE TO BE DELETED AB-INITIO. 15. WE NOW REFER TO THE ORDER PASSED BY THE AO DA TED 15.09.2017 WITH THE HEADING ORDER GIVING EFFECT TO THE ORDER U/S 245D(4) OF THE ACT PASSED BY THE INCOME TAX SETTLEMENT COMMISSION, NEW DELHI AND THE CONTENTS THEREOF READ AS UNDER: 2. NOW, THE ORDER U/S 245D(4) DATED 30-06-2017 ON THE SETTLEMENT APPLICATION NO. RJ/JP-51/15-16/16-IT PAS SED BY THE ITSC, ADDITIONAL BENCH-II, NEW DELHI, HAS BEEN RECE IVED IN THE CASE OF M/S INDIAN MEDICAL TRUST. ON GOING THROUGH THIS ORDER, IT HAS BEEN FOUND THAT THERE IS NO DISCUSSION OF THE U NDISCLOSED INVESTMENT IN THE LAND AT JUGALPURA FOR WHICH SUBST ANTIVE-ADDITION WAS PROPOSED BY THE DEPARTMENT IN THE HANDS OF M/S INDIAN MEDICAL TRUST. THE ISSUE OF INVESTMENT IN THE LAND AT JUGALPURA ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 15 HAS NOT BEEN DISCUSSED AT ALL IN THE ORDER U/S 245D (4) OF THE ACT MEANING THEREBY THAT THIS ISSUE HAS NOT BEEN CONSID ERED BY THE ITSC IN THE HANDS OF M/S INDIAN MEDICAL TRUST. THER EFORE, THE PROTECTIVE ADDITION OF RS. 3,27,83,846/- MADE ON AC COUNT OF UNDISCLOSED INVESTMENT IN THE LAND AT JUGALPURA, TE HSIL AMER, JAIPUR, IN THE ORDER U/S 143(3) R.W.S. 153A OF THE ACT DATED 29-12- 2016 IS BEING CONVERTED INTO SUBSTANTIVE ADDITION I N THE HANDS OF SMT. PALLAVI TOMAR RANA FOR AY 2013-14 ON GIVING TH E EFFECT TO THE ORDER U/S 245D(4) DATED 30-06-2017 ON THE SETTL EMENT APPLICATION NO. RJ/JP-51/15-16/16-IT PASSED BY THE ITSC, ADDITIONAL BENCH-II, NEW DELHI. 2. ON GIVING EFFECT TO THE ORDER U/S 245D(4) DATED 30- 06-2017 ON THE SETTLEMENT APPLICATION NO. RJ/JP-51/15-16/16 -IT PASSED BY THE ITSC, ADDITIONAL BENCH-II, NEW DELHI, THE TOTAL INCOME OF THE ASSESSEE IS COMPUTED AS UNDER:- RETURN INCOME RS. 26,26,510 ADD:- SUBSTANTIVE ADDITION AS DISCUSSED IN PARA NO. 5 OF THE ORDER U/S 143(3) R.W.S 153A DATED 29-12-2016 ADD: SUBSTANTIVE ADDITION AS DISCUSSED IN PARA NO. 6 OF THE ORDER U/S 143(3) R.W.S 153A DATED 29-12-2016 AND PARA NO. 2 OF THIS ORDER RS. 6,86,686/- RS. 3,27,83,846/- ASSESSED TOTAL INCOME RS. 3,60,97,042/- ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 16 R/O RS. 3,60,97,040/- THE TOTAL INCOME OF THE ASSESSEE IN THE STATUS OF I NDIVIDUAL FOR ASSESSMENT YEAR 2013-14 RELEVANT TO PREVIOUS YEAR 2 012-13 IS ASSESSED AT RS. 3,60,97,040/- U/S 143(3) R.W.S 153A OF THE ACT. THE FORM ITNS-150 SHOWING CALCULATION OF TAX AND IN TEREST CHARGEABLE IS ATTACHED HEREWITH AND FORMS A PART OF THIS ORDER. A NOTICE OF DEMAND U/S 156 OF THE ACT AND CHALLAN FOR PAYMENT OF TAX IS HEREBY ISSUED. 16. THE AO HAS STATED THAT THE ORDER OF THE INCOME TAX SETTLEMENT COMMISSION HAS BEEN PASSED U/S 245D(4) DATED 30.06. 2017 IN CASE OF M/S INDIAN MEDICAL TRUST AND THE MATTER RELATING TO INVESTMENT IN THE LAND AT JUGALPURA HAS NOT BEEN DISCUSSED AT ALL AND NOT CONSIDERED IN THE ORDER U/S 245D(4) IN THE HANDS OF M/S INDIAN ME DICAL TRUST. THERE IS THUS A CLEAR ACKNOWLEDGMENT BY THE AO THAT THE A SSESSEE WAS NOT AN APPLICANT BEFORE INCOME TAX SETTLEMENT COMMISSION A ND THERE WAS NO DISCUSSION RELATING TO INVESTMENT IN THE LAND AT JU GALPURA IN THE ORDER SO PASSED BY THE INCOME TAX SETTLEMENT COMMISSION. TH EREFORE, THE QUESTION OF ANY DIRECTION BY THE INCOME TAX SETTLEM ENT COMMISSION AND PASSING OF ANY ORDER BY THE AO TO GIVE EFFECT T O NON-EXISTENT DIRECTIONS DOESNT ARISE AT FIRST PLACE AND THAT TO O, IN THE HANDS OF THE ASSESSEE WHO IS NOT AN APPELLANT BEFORE THE INCOME TAX SETTLEMENT COMMISSION. THEREFORE, WE SEE NO REASON BUT TO AGR EE WITH THE LD CIT(A), WHO AFTER GOING THROUGH THE ORDER PASSED BY THE AO AS WELL AS BY INCOME TAX SETTLEMENT COMMISSION, HAS RECORDED A FINDING THAT THE ASSESSEE WAS NOT AN APPLICANT BEFORE INCOME TAX SET TLEMENT COMMISSION AND THERE BEING NO DIRECTION BY THE INCO ME TAX SETTLEMENT ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 17 COMMISSION IN RESPECT OF THE ASSESSEE BY WAY OF MOD IFICATION OF THE ORIGINAL ASSESSMENT ORDER PASSED U/S 143(3) R/W SEC TION 153A DATED 29.12.2016, THE ORDER SO PASSED BY THE AO PURPORTED LY GIVING EFFECT TO THE ORDER OF ITSC U/S 245D(4) IS WITHOUT JURISDICTI ON. 17. HERE, IT IS RELEVANT TO NOTE, AS APPARENT FROM THE ORIGINAL ASSESSMENT ORDER PASSED U/S 143(3) R/W SECTION 153A DATED 29.12.2016 AND IN PARTICULAR, FROM READING OF PARA 6.8 AND 6.9 OF THE SAID ORDER, THE DEPARTMENT HAS CLAIMED THE UNDISCLOSED INVESTMENT I N IMPUGNED LAND PURCHASE AMOUNTING TO RS 327.83 CRORES IN THE HANDS OF INDIAN MEDICAL TRUST AND SUBSTANTIVE ADDITION WAS THUS PROPOSED BY THE DEPARTMENT BEFORE THE INCOME TAX SETTLEMENT COMMISSION IN THE HANDS OF INDIAN MEDICAL TRUST. THERE WAS THUS A PROPOSAL TO MAKE S UBSTANTIVE ADDITION IN THE HANDS OF INDIAN MEDICAL TRUST, HOWEVER, IN T HE ORDER SO PASSED BY THE INCOME TAX SETTLEMENT COMMISSION U/S 245D(4) , THERE WAS NO DISCUSSION ABOUT ANY UNDISCLOSED INVESTMENT IN AFOR ESAID IMMOVEABLE PROPERTY WHICH IS APPARENTLY SUGGESTIVE OF THE FACT THAT SUCH A PROPOSAL WAS NOT ACCEPTED BY INCOME TAX SETTLEMENT COMMISSIO N AND AS A MATTER OF FACT, NO ADDITION WAS MADE IN THE HANDS O F M/S INDIAN MEDICAL TRUST ON SUBSTANTIVE BASIS. 18. IT IS FURTHER NOTED THAT SUBSEQUENTLY THE AO BA SIS THE RECEIPT AND EXAMINATION OF THE ORDER OF THE INCOME TAX SETTLEME NT COMMISSION, HAS DRAWN AN INFERENCE THAT SINCE THE MATTER RELATI NG TO INVESTMENT IN THE LAND AT JUGALPURA HAS NOT BEEN CONSIDERED BY IN COME TAX SETTLEMENT COMMISSION IN THE HANDS OF M/S INDIAN ME DICAL TRUST (IN WHOSE HANDS SUBSTANTIVE ADDITION WAS ORIGINALLY PRO POSED BY THE ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 18 DEPARTMENT), THE PROTECTIVE ADDITION ORIGINALLY MAD E IN THE HANDS OF THE ASSESSEE U/S 143(3) R/W 153A IN RESPECT OF THE SAID TRANSACTION NEEDS TO BE CONVERTED INTO SUBSTANTIVE ADDITION AND THERE AFTER, THE AO CHANGED HIS EARLIER POSITION AS TAKEN IN THE ORIGIN AL ASSESSMENT PROCEEDINGS AND PROCEEDED TO CONVERTED THE PROTECTI VE ADDITION INTO SUBSTANTIVE ADDITION IN THE HANDS OF THE ASSESSEE B Y WAY OF IMPUGNED ORDER DATED 15.09.2017. 19. WE, THEREFORE, FIND THAT IT IS CASE WHERE THERE WAS NO SUBSTANTIVE ADDITION MADE IN THE HANDS OF INDIAN MEDICAL TRUST AT FIRST PLACE AND IN ABSENCE OF SUBSTANTIVE ADDITION, THE AO HAS PROCEED ED WITH PROTECTIVE ASSESSMENT IN THE HANDS OF THE ASSESSEE. SECONDLY, SUBSEQUENT TO COMPLETION OF ORIGINAL ASSESSMENT PROCEEDINGS MADE ON PROTECTIVE BASIS IN HANDS OF THE ASSESSEE, REALIZING THE FACT THAT N O SUBSTANTIVE ADDITION HAS BEEN MADE IN HANDS OF EITHER OF TWO ASSESSEES, THE AO CHANGED HIS POSITION AND TOOK A SUO-MOTO DECISION TO CONVERT PR OTECTIVE ADDITION INTO SUBSTANTIVE ADDITION IN THE HANDS OF THE ASSES SEE. IT IS AOS OWN INDEPENDENT DECISION SUBSEQUENT TO COMPLETION OF OR IGINAL ASSESSMENT AND NOT SOMETHING WHICH IS DIRECTED BY THE INCOME T AX SETTLEMENT COMMISSION. 20. THE QUESTION WHICH THEREFORE ARISES FOR CONSIDE RATION IS POST COMPLETION OF ORIGINAL ASSESSMENT PROCEEDINGS, WHAT IS THE BASIS OF THE ASSUMPTION OF SUCH JURISDICTION BY AO TO SUO-MOTO C ONVERT PROTECTIVE ASSESSMENT INTO SUBSTANTIVE ASSESSMENT AND UNDER WH AT SPECIFIC PROVISIONS OF LAW, THE AO HAS ASSUMED SUCH JURISDIC TION AND PASSED THE IMPUGNED ORDER DATED 15.09.2017. ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 19 21. THE CONCEPT OF SUBSTANTIVE AND PROTECTIVE ASSES SMENT THOUGH NOT DEFINED IN THE INCOME TAX ACT HAS THE NECESSARY LEG AL RECOGNITION BY THE COURTS. IT HAS BEEN HELD BY THE COURTS THAT IN CASES WHERE IT APPEARS TO THE INCOME TAX AUTHORITIES THAT CERTAIN INCOME HAS BEEN RECEIVED DURING THE RELEVANT ASSESSMENT YEAR BUT IT IS NOT CLEAR WHO HAS RECEIVED THAT INCOME AND PRIMA FACIE, IT APPEARS TH AT THE INCOME MAY HAVE BEEN RECEIVED EITHER BY A OR BY B, IT WOULD BE OPEN TO THE RELEVANT INCOME TAX AUTHORITIES TO DETERMINE THE SAID QUESTI ON BY TAKING APPROPRIATE PROCEEDINGS BOTH AGAINST A AND B BY WAY OF SUBSTANTIVE AND PROTECTIVE ASSESSMENT. ONCE AN ASSESSMENT HAS BEEN MADE, THE VERACITY OF THE ADDITIONS ARE TO BE ADJUDICATED BY THE APPELLATE AUTHORITIES IN BOTH THE CASES AND THE APPELLATE AUT HORITY HAS TO GIVE A SPECIFIC FINDING IN WHOSE HANDS THE INCOME ON ACCOU NT OF IMPUGNED ADDITION IS TO BE FINALLY ASSESSED. THEREFORE, TO S AFEGUARD THE INTEREST OF REVENUE, THE AO CAN ASSESS THE INCOME IN MORE THAN ONE HAND BUT THIS PROCEDURE CAN BE PERMITTED AT THE STAGE OF ASSESSME NT AND ONCE THE ASSESSMENT IS DONE, THE TAXABILITY IN THE RIGHTS HA NDS NEED TO BE DECIDED BY THE APPELLATE AUTHORITY AND PURSUANT TO DECISION BY THE APPELLATE AUTHORITY, THE AO CAN TAKE THE NECESSARY ACTION TO FINALLY ASSESS THE INCOME IN RIGHT HANDS AND ENFORCE RECOVE RY OF TAXES. IN THE INSTANT CASE, AS WE HAVE NOTED ABOVE, THERE IS NO S UBSTANTIVE ADDITION IN HANDS OF INDIAN MEDICAL TRUST AND IN THE CASE OF THE ASSESSEE, POST COMPLETION OF ORIGINAL ASSESSMENT PROCEEDINGS AND D URING THE PENDENCY OF THE APPELLATE PROCEEDINGS BEFORE THE LD CIT(A), THE AO TOOK A SUO- MOTO DECISION TO CONVERT PROTECTIVE ASSESSMENT INTO SUBSTANTIVE ASSESSMENT AND RAISED THE DEMAND NOTICE FOR RECOVER Y OF TAXES ON THE ASSESSEE, THEREBY INITIATING THE RECOVERY PROCEEDIN GS AGAINST THE ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 20 ASSESSEE. AS TO THE BASIS OF SUCH CHANGE IN POSITIO N OF THE AO, THE LD CIT(A) HAS ALSO RECORDED A FINDING THAT POST COMPLE TION OF THE ORIGINAL ASSESSMENT PROCEEDINGS, THERE ARE NO FRESH FACTS OR ENQUIRIES WHICH HAVE BEEN CONDUCTED BY THE AO AND ALL THE ENQUIRIES AND FACTS WERE FORMING PART OF THE ORIGINAL ASSESSMENT PROCEEDINGS AND ONLY BASIS IS THAT THERE WAS NO REFERENCE TO THE ISSUE OF INVESTM ENT IN HANDS OF INDIAN MEDICAL TRUST IN THE ORDER OF THE SETTLEMENT COMMISSION. SUCH A CHANGE IN POSITION THUS AMOUNTS TO CHANGE OF OPINIO N ON SAME SET OF FACTS. IN ANY CASE, ONCE THE LD CIT(A) WAS CEASED OF THE MATTER, THE AO COULD HAVE BROUGHT THIS UP BEFORE THE LD CIT(A) AND SOUGHT NECESSARY DIRECTIONS. WHERE HOWEVER, THE AO STILL HOLD THE BELIEF TO TAKE SUO-MOTO ACTION TO CONVERT PROTECTIVE ASSESSME NT INTO SUBSTANTIVE ASSESSMENT, HE COULD HAVE INVOKED HIS JURISDICTION IN TERMS OF SECTION 147 ON SATISFACTION OF CONDITIONS SPECIFIED THEREIN AND IN ABSENCE OF THEREOF, THE PRESENT ACTION OF THE AO CANNOT BE SUS TAINED IN THE EYES OF LAW. IN THIS REGARD, WE FIND THAT THE LD CIT(A) HA S RIGHTLY HELD THAT ONCE AN ASSESSMENT HAS BEEN FRAMED BY THE AO, HE BECOMES FUNCTUS OFFICIO AND WHENEVER THE AO WISHES TO MODIFY AND/OR ENHANCE THE ASSESSMENT, HE IS REQUIRED TO REASSUME THE JURISDIC TION UNDER THE ACT AFTER SATISFYING THE CONDITIONS AS SO CONTAINED IN SECTION 154 OR SECTION 147 OF THE ACT. FURTHER, THE AO CAN ASSUME JURISDI CTION SO AS TO GIVE EFFECT TO AN ORDER OR DIRECTIONS SO CONTAINED IN OR DER PASSED U/S 250/254/263/264 OF THE ACT. IN THE INSTANT CASE, TH E AO HAS NOT INVOKED HIS JURISDICTION UNDER SECTION 154 AND SECT ION 147 AND THE ORDER SO PASSED IS AGAIN NOT AN ORDER TO GIVE EFFECT TO T HE DIRECTIONS CONTAINED IN ANY ORDER PASSED U/S 250/254/263/264 O F THE ACT, THUS, THE ACTION OF THE AO DOESNT HAVE THE NECESSARY SAN CTION OF THE RELEVANT ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 21 PROVISIONS AND THE ORDER SO PASSED HAS BEEN RIGHTLY SET-ASIDE BY THE LD CIT(A) FOR WANT OF JURISDICTION AND REQUISITE SANCT ION UNDER LAW. 22. FURTHER, GIVEN THE FACT THAT THE ORDER SO PASSE D BY THE AO WHEREBY PROTECTIVE ASSESSMENT U/S 153A R/W 143(3) H AS BEEN CONVERTED INTO SUBSTANTIVE ASSESSMENT ALONGWITH RAI SING THE DEMAND NOTICE ON THE ASSESSEE U/S 156 AND INITIATING THE R ECOVERY PROCEEDINGS, THE ORDER SO PASSED IS CLEARLY AN ORDER AGAINST WHI CH THE ASSESSEE CAN APPEAL BEFORE THE LD CIT(A) U/S 246A WHICH CLEARLY PROVIDES THAT THE ASSESSEE CAN APPEAL AGAINST AN ORDER WHERE THE ASSE SSEE DENIES HIS LIABILITY TO BE ASSESSED UNDER THE ACT. THEREFORE, THERE IS NO INFIRMITY IN THE ACTION OF LD CIT(A) IN ASSUMING JURISDICTION U/ S 246A IN THE INSTANT CASE AND PASSING THE IMPUGNED ORDER AFTER CALLING F OR THE REMAND REPORT FROM THE AO AND PROVIDING ADEQUATE OPPORTUNITY TO B OTH THE PARTIES. 22. IN THE RESULT, ALL THE ADDITIONAL GROUNDS OF AP PEAL AS WELL AS ORIGINAL GROUND OF APPEAL NO. 3 TAKEN BY THE REVENUE ARE HER EBY DISMISSED. 23. GIVEN THAT WE HAVE CONFIRMED THE FINDINGS OF TH E LD CIT(A) IN SETTING ASIDE THE ORDER OF THE AO FOR WANT OF JURIS DICTION AND NECESSARY SANCTION UNDER LAW, OTHER GROUNDS OF APPEAL TAKEN B Y THE REVENUE HAVE BECOME ACADEMIC AND WE DONT DEEM IT NECESSARY TO A DJUDICATE THE SAME. HENCE, THE SAME ARE DISMISSED AS INFRUCTIOUS . 24. THE GROUNDS IN ASSESSEES CROSS OBJECTIONS ARE EFFECTIVELY IN SUPPORT OF THE FINDINGS OF THE LD CIT(A) WHICH WE HAVE ALRE ADY DEALT WITH SUPRA, HENCE, DOESNT REQUIRE ANY SEPARATE ADJUDICATION. ITA NO. 1065/JP/2019 & CO NO. 23/JP/2019 DCIT, JAIPUR VS. SMT. PALLAVI MISHRA, JAIPUR 22 IN THE RESULT, BOTH THE APPEAL OF THE REVENUE AND T HE CROSS OBJECTION OF THE ASSESSEE ARE DISPOSED OFF IN LIGHT OF ABOVE DIR ECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 14/07/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 14/07/2021 *GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- DCIT, CENTRAL CIRCLE-1, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- SMT. PALLAVI MISHRA, 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. 1065/JP/2019 & CO NO. 23/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR