JITENDRA J MEHTA, MUMBAI V. CIT 4, MUMBAI

ITA 1872/MUM/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92434 (ITAT-MUMBAI)
• Duration Of Justice: 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 20-05-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 30-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Additional depreciation; Reassessment proceedings
• Section: 143(3); 153A; 14A; 263; 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER . / ITA NO. 1872/MUM/2015 / ASSESSMENT YEAR 2006-07 JITENDRA J. MEHTA, 1401, RAHEJA CHAMBER, NARIMAN POINT, MUMBAI 400 021. / VS. THE COMMISSIONER OF INCOME TAX, CEN.4, ROOM NO.660/661/663, AYAKAR BHAVAN, MK ROAD, MUMBAI 400 020. ! ./ ./ PAN/GIR NO. : AAPPM 2381K ( !$ / APPELLANT ) .. ( %&!$ / RESPONDENT ) A PPELLANT BY SHRI VIJAY MEHTA RESPONDENT BY : SMT. S. PADMAJA ( ) * / DATE OF HEARING : 24/06/2015 ( ) * / DATE OF PRONOUNCEMENT : 24/06/2015 / O R D E R PER I.P.BANSAL, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT IS DIRECTED AGAINST ORDER PASSED BY PRINCIPAL COMMISSIONER OF INCOME TAX, CE NTRAL-4, MUMBAI DATED 11/3/2015 FOR ASSESSMENT YEAR 2006-07 UNDER THE PRO VISIONS OF SECTION 263 OF THE INCOME TAX ACT, 1961(THE ACT). GROUNDS OF APPE AL READ AS UNDER: FOLLOWING GROUNDS OF APPEAL ARE WITHOUT PREJUDICE T O EACH OTHER: 1. ON THE FACTS IN THE CIRCUMSTANCES OF THE CASE, T HE LD. CIT HAS ERRED IN FACTS AND IN LAW IN HOLDING THAT THE ASSESSMENT ORDER U/S. 143(3) R.W.S . 153A OF THE INCOME TAX ACT, 1961 ('THE ACT') IS ERRONEOUS AND HAS ERRED IN SETTING ASIDE THE SAI D ORDER U/S. 263 OF THE ACT. 2. THE LD. CIT HAS ERRED IN TREATING ASSESSMENT OR DER U/ S. 143(3) OF THE ACT TO BE MERGED WITH ASSESSMENT ORDER U/S. 143(3) R.WS. 153A OF THE ACT. THE LEARNED CIT OUGHT TO HAVE APPRECIATED . / ITA NO. 1872/MUM/2015 / ASSESSMENT YEAR 2006-07 2 THAT ORIGINAL ASSESSMENT ORDER PASSED U/S. 143(3) O F THE ACT HAS NEITHER BEEN ABATED NOR MERGED WITH ORDER PASSED U/S. 153A OF THE ACT. 3. THE LD. CIT HAS ERRED IN FACTS AND IN LAW IN NOT APPRECIATING THAT THE ASSESSING OFFICER, WHILE PASSING THE ASSESSMENT ORDER U/S. 153A OF THE ACT, HAD NO JURISDICTION TO DISALLOW THE ADDITIONAL DEPRECIATION ON WINDMILL AND, HENCE, THE COMMISSION ER IS NOT JUSTIFIED IN REVISING THE ORDER IN THIS REGARD. 4. THE LD. CIT HAS ERRED IN FACTS AND IN LAW IN HO LDING THAT THE ASSESSING OFFICER DID NOT CONSIDER THE ISSUE OF ELIGIBILITY OF ADDITIONAL DEP RECIATION ON WINDMILL AND THE SAME HAS RESULTED IN LOSS OF REVENUE. 5. THE LD. CIT HAS FAILED TO APPRECIATE THAT THE AD DITIONAL DEPRECIATION ON WINDMILL HAS BEEN CORRECTLY CLAIMED AS PER THE PROVISIONS OF THE ACT AND RIGHTLY ALLOWED BY THE ASSESSING OFFICER. 2. IT WAS SUBMITTED BY LD. AR THAT ESSENTIALLY GROU ND NO.1 IS RELEVANT TO DISPOSE OF THE PRESENT APPEAL AND THE SAME MAY BE C ONSIDERED FOR ADJUDICATION. LD. AR POINTED OUT THAT THE CHRONOLO GY OF THE EVENTS, WHICH HAS BEEN SUBMITTED ALONGWITH PAPER BOOK AT PAGE-1 AND FOR THE SAKE OF CONVENIENCE THE SAME IS REPRODUCED BELOW: S.NO. DATE EVENTS 1. 31.10.2006 RETURN OF INCOME FILED U/S. 139(1) OF THE ACT. 2. 31.12.2008 ASSESSMENT ORDER U/S. 143(3) OF THE A CT. 3. 06.10.2010 DATE OF SEARCH U/S. 132 OF THE ACT. 4 09.04.2012 NOTICE U/S. 153A OF THE ACT RECEIVED 5. 05.07.2012 ROI FILED IN RESPONSE TO NOTICE U/S. 1 53A OF THE ACT. 6. 26.03.2013 ASSESSMENT ORDER PASSED U/S. 143(3) R. W.S. 250 TO GIVE EFFECT TO ITAT ORDER WITH REGARD TO SECTION 14A DISALLOWANCE. 7. 30-03-2013 ASSESSMENT ORDER PASSED U/S. 143(3) R. W.S. 153 OF THE ACT. 8. 02.03.2015 SHOW CAUSE NOTICE ISSUED U/S. 263 OF THE ACT BY CIT 9. 11-03-2015 ORDER PASSED U/S. 263 OF THE ACT. 2.1 IT WAS POINTED OUT THAT ORIGINALLY THE ASSESSME NT WAS FRAMED VIDE ORDER DATED 31/12/2008 PASSED UNDER SECTION 143(3) OF THE ACT, IN WHICH NO DISALLOWANCE OF THE IMPUGNED CLAIM WHICH IS SUBJEC T MATTER OF SECTION 263 (CLAIM OF ADDITION DEPRECIATION ON WIND MILL AMOUNT ING TO RS.61,33,667/-), WAS MADE BY THE AO. THEREAFTER, ON 6/10/2010 SEAR CH WAS CONDUCTED IN THE CASE OF THE ASSESSEE UNDER SECTION 132 OF THE ACT. IN PURSUANCE, SEARCH NOTICE UNDER SECTION 153A OF THE ACT WAS RECEIVED O N 9/4/2012, IN RESPONSE TO WHICH RETURN OF INCOME WAS FILED ON 5/7/2012 AND AS SESSMENT ORDER DATED 30/3/2013 WAS PASSED UNDER SECTION 143(3) R.W.S. 15 3A OF THE ACT. IN SUCH . / ITA NO. 1872/MUM/2015 / ASSESSMENT YEAR 2006-07 3 ORDER ALSO AO DID NOT DISALLOW THE ADDITIONAL DEPR ECIATION ON WIND MILL. SUBSEQUENT TO PASSING THE ORDER, LD. CIT ISSUED SHO W CAUSE NOTICE DATED 2/3/2015 UNDER SECTION 263 ON THE GROUND THAT ADDIT IONAL DEPRECIATION HAS WRONGLY BEEN ALLOWED TO THE ASSESSEE AND, THEREFO RE, ASSESSMENT ORDER PASSED BY AO DATED 30/3/2013 UNDER THE PROVISIONS OF SECTI ON 143(3) R.W.S. 153A OF THE ACT WAS ERRONEOUS AS WELL AS PREJUDICIAL TO TH E INTEREST OF REVENUE, AS TO THAT EXTENT THERE IS A LOSS OF REVENUE. 2.2 IT WAS FURTHER SUBMITTED BY LD. AR THAT IT WAS PLEADED BEFORE LD. CIT THAT ASSESSMENT ORDER PASSED UNDER SECTION 153A CAN NOT BE CONSIDERED TO BE ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE AS AO DID NOT HAVE JURISDICTION TO ENTER INTO THE QUESTION OF ALLOWABI LITY OR OTHERWISE OF THE ADDITIONAL DEPRECIATION ON WIND MILL AS THE QUESTIO N OF ALLOWABILITY OR OTHERWISE OF ADDITIONAL DEPRECIATION ON WIND MILL W AS NOT BASED ON SEIZED MATERIAL FOUND DURING THE COURSE OF THE SEARCH. HE POINTED OUT THAT SUCH CONTENTION OF THE ASSESSEE HAS BEEN DEALT BY LD. CI T IN PARA 12 OF THE IMPUGNED ORDER WHICH FOR THE SAKE OF CONVENIENCE IS REPRODUCED BELOW: 12. IT IS FURTHER CONTENDED BY THE ASSESSEE THAT . THE PROCEEDINGS ARE NOT BASED ON THE SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH A ND THEREFORE NO ADDITION COULD HAVE BEEN MADE BY THE PRESENT AO ON MERITS AS WELL. I HA VE CAREFULLY EXAMINED THE CONTENTION OF THE ASSESSEE IN THIS CONNECTION AS WELL AS THE C ASE LAWS CITED BY THE ASSESSEE. IN THIS REGARD, IT IS SEEN THAT THE SAID ISSUE HAS NOT ATTA INED FINALITY BEFORE THE APEX COURT AND THEREFORE, CONTRADICTORY JUDGEMENT OF DIFFERENT HIG H COURTS ON THE ISSUE OF TAXABILITY OF OTHER ITEMS AS WELL. IN FACT IT IS NOT BE OUT OF PL ACE TO MENTION THAT KAMATAKA HIGH COURT IN THE CASE OF CANARA HOUSING DEVELOPMENT CO. [ ITA NO. 38/2014 DATED 25/07/2014] HAS CONSIDERED SEVERAL JUDGMENTS ON THIS ISSUE AND STILL HELD THE ISSUE IN FAVOUR OF THE REVENUE. I AM THEREFORE, UNABLE TO ACCEPT THIS CONT ENTION OF THE ASSESSEE AND ACCORDINGLY, IN ORDER TO KEEP THE ISSUE ALIVE TILL THE DECISION OF THE HONOURABLE APEX COURT, CONSTRAINED TO HOLD THAT THE CITATIONS, CITED BY THE ASSESSEE, ARE SUB-JUDICE. IN VIEW OF THE SAME, THIS OBJECTION OF THE ASSESSEE IS NOT FOUND TENABLE AT T HIS JUNCTURE 2.3 IT WAS SUBMITTED BY LD. AR THAT IN THE ABOVE PA RA LD. CIT HAS REJECTED SUCH CONTENTION OF THE ASSESSEE ON THE GROUND THAT THE ISSUE THAT ASSESSMENT UNDER SECTION 153A SHOULD BE PASSED ON SEIZED MATER IAL IS NOT SETTLED BY THE APEX COURT AND THERE ARE CONTRADICTORY DECISIONS O F DIFFERENT HIGH COURTS ACCORDING TO WHICH ISSUE OF TAXABILITY OF OTHER IT EMS (OTHER THAN ITEMS BASED . / ITA NO. 1872/MUM/2015 / ASSESSMENT YEAR 2006-07 4 ON SEIZED MATERIAL) CAN ALSO BE CONSIDERED WHILE FR AMING ASSESSMENT UNDER SECTION 153A OF THE ACT. HE SUBMITTED THAT LD. C IT HAS MADE SPECIFIC REFERENCE TO DECISION OF HONBLE KARNATAKA HIGH CO URT IN THE CASE OF CANARA HOUSING DEVELOPMENT CO.(SUPRA). HE SUBMITTED THAT IT FOR THIS REASON LD. CIT HAS REJECTED SUCH CONTENTION. 2.4 IT WAS FURTHER SUBMITTED BY LD. AR THAT IN THE LATEST DECISION OF HONBLE BOMBAY HIGH COURT DATED 21/4/2015 IN THE CASE OF CI T VS. CONTINENTAL WAREHOUSING CORPORATION(NHAVA SHEVA) LTD. AND CIT VS. ALL CARGO GLOBAL LOGISTICS LTD. IN INCOME TAX APPEAL NO.523 OF 2013 AND IN INCOME TAX APPEAL NO.1969 OF 2013 RESPECTIVELY HAS CONFIRMED THE VIEW BY FOLLOWING THE EARLIER DECISION OF MUMBAI HIGH COURT DATED 29/10/2010 IN THE CASE OF CIT, CENTRAL, NAGPUR VS. MURLI AGRO PRODUCTS LTD. IN INCOME TAX A PPEAL NO.36 OF 2009 HAS HELD THAT DIVISION BENCH IN THE CASE OF MURLI AGRO PRODUCT LTD., DOES NOT REQUIRE RECONSIDERATION AND IT HAS LAID DOWN CORR ECT PRINCIPLE OF LAW. LD. AR WHILE CONTENDING SO HAS RELIED UPON PARA 28 AND 37 OF THE SAID ORDER, COPY OF WHICH WAS PLACED ON OUR RECORD AND WAS ALSO GIVEN T O LD. DR. FOR THE SAKE OF CONVENIENCE THOSE PARA ARE REPRODUCED. 28. IN DEALING WITH THOSE ARGUMENTS, THE DIVISION BENCH OUTLINED THE AMBIT AND SCOPE OF THE POWERS CONFERRED BY SECTION 153A AND O BSERVED THUS : 8. WE FIND IT DIFFICULT TO ACCEPT THE ABOVE CONTEN TION RAISED ON BEHALF OF THE REVENUE. THE OBJECT OF INSERTING SECTIONS 153A, 153 B AND 153C BY FINANCE ACT, 2003 BY DISCARDING THE EXISTING PROVISIONS REL ATING TO SEARCH CASES CONTAINED IN CHAPTER XIV B OF THE INCOME-TAX ACT, A S STATED IN THE MEMORANDUM EXPLAINING THE PROVISIONS IN THE FINANCE BILL 2003 (SEE 260 ITR (ST) 191 AT 219) WAS THAT UNDER THE EXISTING PR OVISIONS RELATING TO SEARCH CASES, OFTEN DISPUTES WERE RAISED ON THE QUE STION, AS TO WHETHER A PARTICULAR INCOME COULD BE TREATED AS `UNDISCLOSED INCOME' OR WHETHER A PARTICULAR INCOME COULD BE SAID TO BE RELATABLE TO THE MATERIAL FOUND DURING THE COURSE OF SEARCH, ETC. WHICH LED TO PROLONGED L ITIGATION. TO OVERCOME THAT DIFFICULTY, THE LEGISLATURE BY FINANCE ACT 200 3, DECIDED TO DISCARD CHAPTER XIV B PROVISIONS AND INTRODUCE SECTIONS 153 A, 153B AND 153C IN THE IT ACT. . / ITA NO. 1872/MUM/2015 / ASSESSMENT YEAR 2006-07 5 9) WHAT SECTION 153A CONTEMPLATES IS THAT, NOTWITHS TANDING THE REGULAR PROVISIONS FOR ASSESSMENT/REASSESSMENT CONTAINED IN THE IT ACT, WHERE SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITIO N IS MADE UNDER SECTION 132A ON OR AFTER 31/5/2003 IN THE CASE OF A NY PERSON, THE ASSESSING OFFICER SHALL ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH RETURN OF INCOME WITHIN THE TIME STIPULATED THEREIN , IN RESPECT OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSME NT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH IS CONDUCTED OR REQUISITION IS MADE AND THEREAFTER ASSESS OR REASSESS THE TOTAL INCOME FOR THOSE ASSESSMENT YEARS. THE SECOND PROVISO TO SECTION 153A PROVIDES FOR ABATEMENT OF ASSESSMENT/REASSESSMENT PROCEEDINGS WHICH ARE PENDI NG ON THE DATE OF SEARCH/REQUISITION. SECTION 153A (2) PROVIDES THAT WHEN THE ASSESSMENT MADE UNDER SECTION 153(A)(1)IS ANNULLED, THE ASSESS MENT OR REASSESSMENT THAT STOOD ABATED SHALL STAND REVIVED. 10) THUS ON A PLAIN READING OF SECTION 153A OF THE INCOME-TAX ACT, IT BECOMES CLEAR THAT ON INITIATION OF THE PROCEEDINGS UNDER SECTION 153A, IT IS ONLY THE / REASSESSMENT PROCEEDINGS THAT ARE PEND ING ON THE DATE OF CONDUCTING SEARCH UNDER SECTION 132 OR MAKING REQUI SITION UNDER SECTION 132A OF THE ACT STAND ABATED AND NOT THE ASSESSMENT S/REASSESSMENTS ALREADY FINALISED FOR THOSE ASSESSMENT YEARS COVERE D UNDER SECTION 153A OF THE ACT. BY A CIRCULAR NO. 8 OF 2003 DATED 18-9- 2003 (SEE 263 ITR (ST) 61 AT 107) THE CBDT HAS CLARIFIED THAT ON INITIATIO N OF PROCEEDINGS UNDER SECTION 153A, THE PROCEEDINGS PENDING IN APPEAL, RE VISION OR RECTIFICATION PROCEEDINGS AGAINST FINALISED ASSESSMENT/REASSESSME NT SHALL NOT ABATE. IT IS ONLY BECAUSE, THE FINALISED ASSESSMENTS/REASS ESSMENTS DO NOT ABATE, THE APPEAL REVISION OR RECTIFICATION PENDING AGAINS T FINALISED ASSESSMENT/REASSESSMENTS WOULD NOT ABATE. THEREFORE , THE ARGUMENT OF THE REVENUE, THAT ON INITIATION OF PROCEEDINGS UNDE R SECTION 153A, THE ASSESSMENTS/REASSESSMENTS FINALISED FOR THE ASSESSM ENT YEARS COVERED UNDER SECTION 153A OF THE INCOME-TAX ACT STAND ABAT ED CANNOT BE ACCEPTED. SIMILARLY ON ANNULMENT OF ASSESSMENT MADE UNDER SECTION 153A (1) WHAT STANDS REVIVED IS THE PENDING ASSESSMENT / REASSESSMENT PROCEEDINGS WHICH STOOD ABATED AS PER SECTION 153A( 1). 11) IN THE PRESENT CASE, AS CONTENDED BY SHRI MANI , LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSMENT FOR ASSESSMENT YEAR 19 98-99 WAS FINALISED ON THE 29-12- 2000 AND SEARCH WAS CONDUCTED THEREAF TER ON 3-12- 2003. THEREFORE, IN THE FACTS OF THE PRESENT CASE, INITIA TION OF PROCEEDINGS UNDER SECTION 153A WOULD NOT AFFECT THE ASSESSMENT FINALI SED ON 29-12-2000. 12) ONCE IT IS HELD THAT THE ASSESSMENT FINALISED ON 29.12.2000 HAS ATTAINED FINALITY, THEN THE DEDUCTION ALLOWED UNDER SECTION 80 HHC OF THE INCOME-TAX ACT AS WELL AS THE LOSS COMPUTED UNDER T HE ASSESSMENT DATED 29-12-2000 WOULD ATTAIN FINALITY. IN SUCH A CASE, T HE A.O. WHILE PASSING THE INDEPENDENT ASSESSMENT ORDER UNDER SECTION 153A READ WITH SECTION 143 (3) OF THE I.T. ACT COULD NOT HAVE DISTURBED TH E ASSESSMENT / REASSESSMENT ORDER WHICH HAS ATTAINED FINALITY, UNL ESS THE MATERIALS GATHERED IN THE COURSE OF THE PROCEEDINGS UNDER SEC TION 153A OF THE . / ITA NO. 1872/MUM/2015 / ASSESSMENT YEAR 2006-07 6 INCOME-TAX ACT ESTABLISH THAT THE RELIEFS GRANTED U NDER THE FINALISED ASSESSMENT/ REASSESSMENT WERE CONTRARY TO THE FACTS UNEARTHED DURING THE COURSE OF 153 A PROCEEDINGS. 13) IN THE PRESENT CASE, THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY MATERIAL WAS UNEARTHED DURING THE SEARCH OR DURING THE 153A PROCEEDINGS WHICH WOULD SHOW THAT THE RELIEF UNDER SECTION 80 H HC WAS ERRONEOUS. IN SUCH A CASE, THE A.O. WHILE PASSING ORDER UNDER SEC TION 153A READ WITH SECTION 143(3) COULD NOT HAVE DISTURBED THE ASSESSM ENT ORDER FINALIZED ON 29.12.2000 RELATING TO SECTION 80 HHC DEDUCTION AND CONSEQUENTLY THE CIT COULD NOT HAVE INVOKED JURISDICTION UNDER SECTI ON 263 OF THE ACT. 37. WE DO NOT SEE AS TO HOW WHILE ALLOWING THE APP EAL OF THE ASSESSEE AND SETTING ASIDE THE ORDER OF COMMISSIONER UNDER S ECTION 263 COULD THE JUDGMENT BE SAID TO BE LAYING DOWN A PROPOSITION AS CANVASSED BY MR. PINTO. TRUE IT IS THAT THE ASSESSEE WHICH HAS TO B E MADE IN PURSUANCE OF THE NOTICE IN RELATION TO THE SIX YEARS. AN ORDER WILL HAVE TO BE MADE IN THAT REGARD. WHILE MAKING THE ORDER THE INCOME OR THE RETURN OF INCOME FILED FOR ALL THESE ASSESSMENT YEARS IS TO BE TAKE N INTO ACCOUNT. A REFERENCE WILL HAVE TO BE MADE TO THE INCOME DISCLO SED THEREIN. HOWEVER, THE SCOPE OF ENQUIRY, THOUGH NOT CONFIRMED AS HELD BY THE HIGH COURT OF KARNATAKA, IT ESSENTIALLY REVOLVES AROUND THE SEARC H OR THE REQUISITION UNDER SECTION 132A AS THE CASE MAY BE. WE DO NOT F IND ANYTHING IN THESE OBSERVATIONS AND REPRODUCED ABOVE WHICH WOULD ENABL E US TO CONCLUDE THAT THE DIVISION BENCH JUDGEMENT OF THIS COURT IN THE CASE OF MURLI AGRO REQUIRES RECONSIDERATION OR DOES NOT LAY DOWN A COR RECT PRINCIPLE OF LAW. WE CANNOT, THEREFORE, ACCEDE TO THE SUBMISSIONS OF MR. PINTO AND REVIST ANY OF THE CONCLUSIONS RENDERED BY DIVISION BENCH OF THIS COURT. 2.5 HE SUBMITTED THAT REFERENCE IN PARA-28 AND 37 I S MADE BY THEIR LORDSHIPS TO THE EARLIER DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. MURALI AGRO PRODUCTS LTD.(SUPRA). IT WAS S UBMITTED BY LD. AR IN VIEW OF THE AFOREMENTIONED DECISION OF HONBLE BOMBAY HI GH COURT THE ASSESSMENT ORDER PASSED BY AO UNDER SECTION 143(3) R.W.S. 153A WAS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE. TH EREFORE, IT WAS PLEADED BY LD. AR THAT SECTION 263 HAS WRONGLY BEEN INVOKED BY LD. CIT AND HIS ORDER SHOULD BE QUASHED. 3. ON THE OTHER HAND, LD CIT-DR RELIED UPON THE ORD ER PASSED BY LD. CIT. . / ITA NO. 1872/MUM/2015 / ASSESSMENT YEAR 2006-07 7 4. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. RELEVANT PORTION OF THE ORDER OF LD . CIT(A) HAS ALREADY BEEN REPRODUCED IN WHICH HE HAS DEALT WITH THE CONTE NTION OF THE ASSESSEE THAT ASSESSMENT ORDER CANNOT BE CONSIDERED TO BE ERRONE OUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AS AO DID NOT HAVE JURISDICTION TO THE MAKE ADDITION ON THE IMPUGNED ISSUE AS THE SAME IS NOT BASED ON SEIZED M ATERIAL. SUCH CONTENTION HAS BEEN REJECTED ONLY ON THE GROUND THAT THERE ARE CONFLICTING VIEWS RENDERED BY VARIOUS HIGH COURTS AND THE CONTENTION OF THE A SSESSEE HAS NOT BEEN REJECTED ON THE GROUND THAT THE IMPUGNED ADDITION I S BASED ON SEIZED MATERIAL. ALSO THERE IS NO MATERIAL ON RECORD TO SUGGEST THA T ISSUE REGARDING ADDITIONAL DEPRECIATION ON WIND MILL WAS BASED ON SEIZED MATER IAL. THEREFORE, CERTAINLY, THIS ISSUE IS OTHER THAN THE ADDITIONS BASED ON SE IZED MATERIAL. IF IT IS SO THEN ACCORDING TO THE AFOREMENTIONED DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD.(SUPRA), THE AO WOULD NOT HAVE JURISDICTION TO BRING SUCH ISSUE IN THE ASSESSMENT COMPLETED U/S. 153A R.W.S 143(3) AND NO N-CONSIDERATION THEREOF IN THE ASSESSMENT ORDER WOULD NOT MAKE THE ASSESSME NT ORDER PASSED UNDER SECTION 143(3) R.W.S. 153A AS ERRONEOUS AND PREJUDI CIAL TO THE INTEREST OF REVENUE. 4.1 IN VIEW OF ABOVE DISCUSSION, WE HOLD THAT POWER UNDER SECTION 263 OF THE ACT INVOKED BY LD. CIT IS CONTRARY TO THE PROVISI ONS OF THE STATUTE. THEREFORE, WE QUASH THE ORDER PASSED BY LD. CIT UNDER SECTION 263 OF THE ACT AND ALLOW THE APPEAL FILED BY THE ASSESSEE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24/06/2015 ( 0 1 2 24/06/2015 ( ( / N.K.BILLAIYA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER . / ITA NO. 1872/MUM/2015 / ASSESSMENT YEAR 2006-07 8 MUMBAI; 1 DATED 24/06/2015 / COPY OF THE ORDER FORWARDED TO : 1. !$ / THE APPELLANT 2. %&!$ / THE RESPONDENT. 3. 4) ( ) / THE CIT(A)- 4. 4) / CIT 5. 56 %)78 , * 78 , / DR, ITAT, MUMBAI 6. 9 / GUARD FILE. / BY ORDER, & 5) %) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . ./ VM , SR. PS