SURENDRA L. HIRANANDANI, MUMBAI V. PR CIT CEN 1, MUMBAI

ITA 3226/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0282 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 03-05-2017

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE D.T. GARASIA, JUDICIAL MEMBER AND SHRI N. K. PRADHAN, ACCOUNTANT MEMBER ITA NO.3226/M/2017, 3227/M/2017, 3228/M/2017, 3229/ M/2017, 3230/M/2017, 3231/M/2017, 3232/M/2017 ASSESSMENT YEAR: 2008-09,2009-10, 2010-11, 2011-12, 2012-13, 2013-14, 2014-15 SHRI SURENDRA L. HIRANANDANI 2 ND FLOOR, NEPTUNE COURT, 60, L JAGMOHANDAS MARG, MUMBAI 400006 PAN NO. AAAPH1094H VS. PRINCIPAL COMMISSIONER OF INCOME TAX, CENTRAL I MUMBAI (ASSESSEE) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI VIJAY MEHTA REVENUE BY : SHRIMANJUNATHA SWAMY DATE OF HEARING : 24.01.2018 DATE OF PRONOUNCEMENT : 14.02.2018 O R D E R PER D.T. GARASIA , JUDICIAL MEMBER: ITA NO.3227/M/2017:- THE ABOVE TITLED APPEAL HAS BEEN PREFERRED BY THE A SSESSEE AGAINST THE ORDER DATED 10.03.2017OF THE PRINCIPAL COMMISSIONER OF IN COME TAX (CENTRAL)-I, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT] RELEVAN T TO ASSESSMENT YEAR2009- 10. 2. THE SHORT FACTS OF THE CASE ARE AS UNDER:- THE ASSESSEE HAS FILED HIS RETURN OF INCOME IN RES PONSE TO THE NOTICE U/S.153A OF THE ACT ON 10.12.2014 DECLARING TOTAL INCOME AT RS.7,05 ,70,282/-. THE ASSESSMENT WAS COMPLETED U/S.143(3) R.W.S.153A OF THE ACT ON 18.06 .2015. THE RECORDS WERE CALLED FOR AND THE COMMISSIONER WAS OF THE VIEW THAT ASSES SEE HAS CREDITED AN AMOUNT OF RS.52,21,39,690/- IN HIS CAPITAL GAIN WHILE WHICH R EADS AS UNDER:- S.NO. HEAD AMOUNT 1 ADV. TO COS AND OTHERS 41,75,65,793 2 CAPITAL CREDIT BALANCE IN THE FIRM 9,95,81,999 3 FDS, PF AND MISC 49,91,897 THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSME NT HAS FAILED TO EXAMINE THE ISSUE AS TO WHY THIS AMOUNT HAS NOT BEEN OFFERED TO TAX. IT IS ALSO OBSERVED THAT ASSESSEE HAS CLAIMED DEDUCTION IN RESPECT OF INTERE ST PAID ON ICICI LOAN AT ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 2 RS.11,21,756/- AGAINST THE INCOME FROM HOUSE PROPER TY. HOWEVER, ASSESSING OFFICER FAILED TO EXAMINE THE UTILISATION OF LOAN A ND ITS ALLOWABILITY AS DEDUCTION WHILE COMPUTING THE INCOME FROM HOUSE PROPERTY. DU RING THE COURSE OF SEARCH AT THE PREMISES OF MS.PRITI MILAN MEHTA, CERTAIN PAGES WER E SEIZED OUT OF WHICH PAGE 118 TO 127 PERTAIN TO SWISS BANK ACCOUNT STATEMENT WITH JP MORGAN IN THE NAME OF THE ASSESSEE. THIS PARTICULAR BANK ACCOUNT WITH JP MOR GAN WAS NOT DISCLOSED BY THE ASSESSEE IN HIS RETURN OF INCOME FILED U/S.139 OR U /S.153A OF THE ACT. THE ASSESSING OFFICER FAILED TO EXAMINE THE SAID MENTIONED BANK A CCOUNT AND TAX THE UNDISCLOSED INCOME. THE ASSESSING OFFICER WAS GIVEN SHOW CAUSE NOTICE AND ASSESSEE HAS REPLIED AS UNDER:- 3. THE ASSESSEE SUBMITTED HIS EXPLANATION THROUGH HIS AUTHORIZED REPRESENTATIVE. THE EXPLANATION OF THE ASSESSEE IS SUMMARIZED BELOW :- 1. AS REGARDS FIRST ISSUE, THE ASSESSEE STATED THAT THESE BALANCE IN THE VARIOUS COMPANIES, FIRMS AND PF ACCOUNTS ETC WERE STANDING IN THE NAME OF WIFE MRS.PRITI HIRANANDANI. PURSUANT TO THE FAMILY ARRANGEMENT, A LL THESE BALANCES WERE ASSIGNED TO THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION . THESE FACTS WERE CLEARLY EVIDENT FROM THE DETAILS OF CAPITAL ACCOUNT ALREADY AVAILAB LE IN THE ASSESSMENT ORDER. 2. THE INTEREST WAS PAID ON HOUSE LOANS FOR BUYING FOUR RESIDENTIAL FLATS SITUATED AT TIVOLI. THESE FLATS WERE LEASED OUT BY THE ASSE SSEE DURING THE YEAR UNDER CONSIDERATION AND RENTAL INCOME WAS OFFERED TO TAX INCOME FROM HOUSE PROPERTY. INTEREST PAID ON HOUSING WAS RIGHTLY CLAIMED DEDUCT ION U/S.24(B) OF THE I.T. ACT 1961. 3. AS REGARDS BANK ACCOUNT WITH JP MORGAN, THE ASSE SSEE DENIED ANY CONNECTION WITH SUCH BANK ACCOUNT. 3. AFTER CONSIDERING THE REPLY THE COMMISSIONER WAS OF A VIEW THAT WHILE COMPLETING THE ASSESSMENT U/S.143(3) R.W.S.153A OF THE ASSESSEE, ASSESSING OFFICER DID NOT CARRY OUT ANY ENQUIRIES ON THE ABOV E ISSUES, THE ASSESSING OFFICER FAILED TO MAKE THE ENQUIRY INTO AMOUNT CRED ITED IN THE CAPITAL ACCOUNT LYING TO THE CREDIT OF WIFE MRS.PRITI HIRANANDANI. THE ASSESSING OFFICER FAILED TO VERIFY THE DEED OF FAMILY ARRANGEMENT. THEREFOR E, THE ASSESSING OFFICER ALSO FAILED TO MAKE THE ENQUIRY WHICH SHOWS EXISTEN CE OF SUCH BANKS ACCOUNTS IN SEIZED PAPERS, THEREFORE, THE CIT HAS SET ASIDE THIS ASSESSMENT ORDER WITH A DIRECTION TO COMPLETE THE ASSESSMENT ORDER AFRESH A FTER CONDUCTING NECESSARY ENQUIRIES. AY 2008-09 4. GROUND RAISED BY THE ASSESSEE IN AY 2008-09 IS A S UNDER: GROUND NO. 1:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE HONBLE PRINCIPAL COMMISSIONER OF INCOME TAX (CENTR AL)-I ERRED IN INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 3 THEREBY ASSUMING JURISDICTION UNDER THE SAID PROVIS IONS. THE LD. PCIT FURTHER ERRED IN HOLDING THAT THE ASSESSMENT C OMPLETED IN THE CASE OF APPELLANT HAD BEEN MADE WITHOUT CARRYIN G OUT NECESSARY ENQUIRES INTO VARIOUS ISSUES AND HENCE, T HE ASSESSMENT ORDER SO PASSED BY THE LEARNED A.O. U/S. 153A R.W.S 143(3) OF THE ACT DATED 18.06.2015 IS ERRONEOUS AND PREJUDICI AL TO THE INTEREST OF THE REVENUE. THE APPELLANT PRAYS THAT T HE ORDER OF THE PRINCIPAL CIT U/S. 263 MAY KINDLY BE QUASHED AND TH E ASSESSMENT ORDER OF THE A.O DATED 18.06.2015 MAY BE RESTORED. GROUND NO. 2:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE HONBLE PRINCIPAL COMMISSIONER OF INCOME TAX (CENTR AL)-I ERRED IN HOLDING THAT THE ASSESSMENT ORDER PASSED B Y THE LD. AO U/S. 153A R.W.S 143(3) OF THE ACT DATED 18.06.2015 IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND HENCE SET ASIDE THE APPELLANT CASE BACK TO THE LD. A.O. FOR MAKING A FRESH ASSESSMENT. THE APPELLANT PRAYS THAT THE SAID ACTIO N OF HONBLE PRINCIPAL CIT BE MAY KINDLY BE QUASHED. GROUND NO. 3:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE HONBLE PRINCIPAL COMMISSIONER OF INCOME TAX (CENTR AL)-I ERRED IN HOLDING THAT THE LD. A.O. HAS FAILED TO EX AMINE GOODWILL CREDITED FROM GUFICHIRA CONSTRUCTION AMOUN TING TO RS.3,76,98,585 AND SETTING ASIDE THE APPELLANTS CA SE BACK TO THE LD. A.O. FOR MAKING A FRESH ASSESSMENT OF SUCH ISSU E. THE APPELLANT PRAYS THAT THE SAID ACTION OF HONBLE PRI NCIPAL CIT BE MAY KINDLY BE QUASHED. GROUND NO. 4:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE HONBLE PRINCIPAL COMMISSIONER OF INCOME TAX (CENTR AL)-I ERRED IN HOLDING THAT THE LD. A.O. HAS FAILED TO EX AMINE THE UTILIZATION OF LOAN AND ALLOWABILITY OF INTEREST AM OUNTING TO RS.21,48,340 PAID ON THE SAME AGAINST INCOME FROM H OUSE PROPERTY. ALSO, THE HONBLE PRINCIPAL COMMISSIONER OF INCOME TAX (CENTRAL)-I HAS ERRED IN SETTING ASIDE THE APPE LLANTS CASE BACK TO THE LD. A.O. FOR MAKING A FRESH ASSESSMENT OF SUCH ISSUE. THE APPELLANT PRAYS THAT THE SAID ACTION OF HONBLE PRINCIPAL CIT BE MAY KINDLY BE QUASHED. GROUND NO. 5:- ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 4 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE HONBLE PRINCIPAL COMMISSIONER OF INCOME TAX (CENTR AL)-I ERRED IN HOLDING THAT THE LD. A.O. HAS FAILED TO EX AMINE THE SWISS BANK ACCOUNT STATEMENT WITH JP MORGAN IN THE NAME OF THE APPELLANT AND TAXING THE UNDISCLOSED INCOME THE REIN. ALSO, THE HONBLE PRINCIPAL COMMISSIONER OF INCOME TAX (C ENTRAL)-I HAS ERRED IN SETTING ASIDE THE APPELLANTS CASE BAC K TO THE LD. A.O. FOR MAKING A FRESH ASSESSMENT OF SUCH ISSUE. T HE APPELLANT PRAYS THAT THE SAID ACTION OF HONBLE PRINCIPAL CIT BE MAY KINDLY BE QUASHED. 5. IN RESPECT OF A.Y.2009-10 TO 2013-14 ALL THE ISS UES ARE SIMILAR EXCEPT THE FIGURES. 6. THE LEARNED AR SUBMITTED THAT NO INCRIMINATING M ATERIAL PERTAINING TO THE ISSUES RAISED BY CIT U/S 263 OF THE ACT WAS FOU ND DURING THE COURSE OF SEARCH THAT TOOK PLACE IN CASE OF ASSESSEE. CIT HA S REVISED THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 153A OF THE ACT WITH OUT REVISING THE APPROVAL GRANTED BY ADDL. CIT. CIT HAS NOT APPLIED HIS MIN D AND NOT CONDUCTED ANY ENQUIRY BEFORE DIRECTING THE ASSESSING OFFICER TO D ECIDE THE ISSUES AFRESH. THE LEARNED AR IN RESPECT OF NO INCRIMINATING MATERIAL PERTAINING TO THE ISSUES RAISED BY CIT U/S 263 OF THE ACT WAS FOUND PERTAINI NG TO ISSUE RAISE BY THE CIT. IN THIS CONNECTION LEARNED AR SUBMITTED THAT THAT SEARCH AND SEIZURE ACTION TOOK PLACE ON 11.03.2014 AND THE ASSESSEE WA S ALSO COVERED IN THIS SEARCH ACTION. AS PER THE PROVISIONS OF SECTION 15 3A OF THE ACT THE AO HAD TO RE-ASSESS THE INCOME OF THE ASSESSEE IMMEDIATELY PR ECEDING 6 ASSESSMENT YEARS. AS MENTIONED ABOVE, FOR THE AYS 2008-09, 201 0-11 AND 2012-13, THE RETURN OF INCOME WAS FILED AND DUE DATES FOR SELECT ING THE RESPECTIVE CASES FOR SCRUTINY ASSESSMENT HAS BEEN PASSED BEFORE THE DATE OF SEARCH. IN AYS 2009- 10 AND 2011-12, THE RETURN OF INCOME WAS FILED AND ASSESSMENT WAS COMPLETED BEFORE THE DATE OF SEARCH. THE ASSESSMENT FOR SUCH ASSESSMENT YEARS WAS THEREFORE NON-ABATED AS TIME LIMIT FOR ISSUANCE OF NOTICE WAS ALREADY EXPIRED BEFORE THE DATE OF SEARCH.AS PER THE SAID PROVISION S, THE ASSESSING OFFICER HAD NO JURISDICTION TO MAKE ADDITIONS IN RESPECT OF NON -ABATED YEARS I.E. YEARS FOR ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 5 WHICH ASSESSMENT WERE COMPLETED U/S 143(3) OF THE A CT OR TIME LIMIT FOR ISSUING NOTICE U/S 143(2) HAD EXPIRED EXCEPT IF THE ADDITIONS WERE BASED ON INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH. AS PER THE SAID PROVISIONS, THE ASSESSING OFFICER HAD NO JURISDICTI ON TO MAKE ADDITIONS IN RESPECT OF NON-ABATED YEARS I.E. YEARS FOR WHICH AS SESSMENT WERE COMPLETED U/S 143(3) OF THE ACT OR TIME LIMIT FOR ISSUING NOTICE U/S 143(2) HAD EXPIRED EXCEPT IF THE ADDITIONS WERE BASED ON INCRIMINATING MATERI AL FOUND DURING THE COURSE OF SEARCH. THE LEARNED AR ALSO SUBMITTED THAT NO I NCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH THAT TOOK PLACE I N CASE OF ASSESSEE WITH RESPECT TO THE ABOVE ISSUES AT THE ASSESSEES PREMI SES. HENCE, IN ABSENCE OF INCRIMINATING MATERIAL, THE ASSESSING OFFICER COULD NOT HAVE MADE ANY ADDITIONS ON THE ABOVE ISSUES. THE ISSUE IS NOW SE TTLED BY THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN CASE OF CIT V. ALL CARGO GLOBAL LOGISTICS LTD (375 ITR 645) WHEREIN, IT HAS BEEN HELD THAT IN RESPECT OF NON-A BATED YEARS, ADDITIONS CAN ONLY BE MADE ON THE BASIS OF I NCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH PERTAINING TO THOSE ADD ITIONS. THE LEARNED AR ALSO SUBMITTED THATIF THE ASSESSING OFFICER HAD NO JURIS DICTION TO MAKE ADDITIONS ON THE ABOVE ISSUES, NON-CONSIDERATION OF THOSE ISSUES IN THE ASSESSMENT ORDER WOULD NOT MAKE THE ASSESSMENT ORDER PASSED U/S 143( 3) R.W.S. 153A OF THE ACT ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E. HENCE, THE CIT COULD NOT HAVE DISTURBED THE SAID ASSESSMENT ORDER BY EXERCIS ING JURISDICTION U/S 263 OF THE ACT. IN SUPPORT OF THIS CONTENTION, THE LEARNE D AR RELIED UPON THE DECISION OF TRIBUNAL IN CASE OF JITENDRA MEHTA V. CIT IN ITA NO. 1872/MUM/2015 DATED 24.06.2015 WHICH IS AT PAGE NOS. 18 TO 24 OF THE PAPER BOOK. THE SECOND DECISION RELIED BY THE ASSESSEE IS OF SHWETA AVARSEKAR V. CIT IN ITA NO. 3186 AND 3187/MUM/2016 DATED 01.08.2016 WHICH I S AT PAGE NOS. 25-43 OF THE PAPER BOOK. THE AR IS ALSO RELIED UPON THE D ECISION OF HANSPRO.COM PVT. LTD. V. CIT IN ITA NO. 3573/MUM/2016 DATED 31.01.2017 WHICH IS AT PAGE NOS. 44-48 OF THE PAPER BOOK. RELIANCE IS ALS O PLACED ON DECISION OF ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 6 HONBLE DELHI HIGH COURT IN CASE OF CIT V. MAHESH KUMAR GUPTA IN ITA NO. 810 OF 2016 DATED 22.11.2016. THEREFORE, LEARN ED AR SUBMITTED THAT IN ABSENCE OF INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH THAT TOOK PLACE IN CASE OF ASSESSEE ON THE ABOVE ISSUE, THE ASSESSING OFFICER COULD NOT HAVE MADE ANY ADDITION IN THE ORDER PASSED U/S 143(3) R.W.S. 153A OF THE ACT. HENCE, THE CIT HAD NO JURISDICTION TO REVISE T HE ASSESSMENT ORDER ON THE GROUND THAT THE SAID ISSUE WAS NOT CONSIDERED BY TH E ASSESSING OFFICER. 7. IN RESPECT OF SECOND CONTENTION, THE LEARNED AR HAS SUBMITTED THAT CIT HAS REVISED THE ASSESSMENT ORDER PASSED U/S.143(3) R.W.S. 153A OF THE ACT CANNOT BE REVISED WITHOUT REVISING THE APPROVAL OF ADDL. CIT. THE LEARNED AR ALSO SUBMITTED THAT ASSESSMENT ORDER PASSED U/S.143 (3) R.W.S.153A OF THE ACT CANNOT BE REVISED WITHOUT REVISING THE APPROVAL OF ADDL. CIT. THE LEARNED AR ALSO SUBMITTED THAT THE ASSESSMENT ORDER U/S.143(3) R.W.S.153C OF THE ACT WAS PASSED AFTER GETTING APPROVAL OF ADDL. CIT U/S.153D OF THE ACT. IT WAS SUBMITTED THAT THE ASSESSMENT ORDER U/S.143(3) R.W. S.153A OF THE ACT CANNOT BE REVISE WITHOUT REVISING THE APPROVAL OF ADDL. CIT. THE LEARNED AR FOR THIS PROPOSITION RELIED UPON THE DECISION OF HONBLE ALL AHABAD HIGH COURT IN THE CASE OF CIT VS. DR. ASHOK KUMAR IN I.T.A NO.192 OF 2000 WHEREIN IT HAS BEEN HELD THAT THE ASSESSMENT ORDER APPROVED BY THE ADDL . CIT U/S.153D, CANNOT BE SUBJECTED TO REVISION U/S.263 OF THE ACT. THEREFOR E, IT WAS SUBMITTED THAT SINCE THE CIT HAS NOT REVISED THE APPROVAL OF ADDL. CIT I N THE PRESENT CASE, THE CIT COULD NOT HAVE REVISED THE ORDER PASSED BY ASSESSIN G OFFICER U/S. 143(3) R.W.S 153A OF THE ACT. IN THIS PROPOSITION THE CIT HAS RE LIED UPON THE DECISION OF:- 1. HONBLE ALLHABAD HIGH COURT IN CASE OF CIT VS. DR. ASHOK KUMAR IN ITA NO.192 OF 2000. 2. TRIBUNALS JUDGEMENT IN CASE OF TRINITY INFRA VENTU RES LTD. VS. DCIT CC 2(1) IN ITA NO.584-589/HYD/2015 DATED 04.12.2015 3. TRIBUNALS JUDGEMENT IN CASE OF DHARIWAL INDUSTRIES LTD. VS. CIT IN ITA NOS.1108-1113/PN/2014 DATED 23.12.2016. ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 7 8. THE LEARNED AR SUBMITTED THAT CIT HAS NO CIT HAS NOT CONDUCTED ANY ENQUIRY BEFORE DIRECTING THE ASSESSING OFFICER TO D ECIDE THE ISSUES AFRESH. IT WAS SUBMITTED THAT A SHOW-CAUSE NOTICE DATED 09.02. 2017 WAS ISSUED TO THE ASSESSEE WHEREIN, HE PROPOSED TO REVISE THE ASSESSM ENT ORDERS ON CERTAIN ISSUES. IN REPLY DATED 23.02.2017 TO THE SHOW CAUSE NOTICE, THE ASSESSEE FILED DETAILED REPLY ON ALL THE ISSUES RAISED BY THE CIT IN THE SHOW CAUSE NOTICE ISSUED. IT WAS ALSO SUBMITTED THAT TAKING INTO ACCO UNT THIS REPLY OF ASSESSEE, IT CAN BE CONCLUDED THAT THE ORDER OF ASSESSING OFFICE R IS NOT ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THE LEARNE D AR SUBMITTED THAT ASSESSEE HAS FILED REPLY IN RESPONSE TO THE SHOW CAUSE NOTIC E IT IS THE DUTY OF THE CIT TO MAKE A PRELIMINARY ENQUIRY AS TO WHY THE REPLY FURN ISHED BY ASSESSEE IS NOT CORRECT. IT WAS ALSO SUBMITTED THAT NO REASON HAS B EEN GIVEN BY THE CIT AS TO WHY THE EXPLANATION OF THE ASSESSEE THAT THE ORDER PASSED BY THE A.O WAS NOT ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE ON THIS ISSUE ON WHICH IT WAS SOUGHT TO BE REVISED. HE HAS MERELY STATED IN T HE ORDER THAT ASSESSING OFFICER HAS NOT CALLED FOR ANY DETAILS AND HAS NOT EXAMINED THE ISSUE AND DIRECTED THE ASSESSING OFFICER TO EXAMINE THE ISSUE AFRESH. LEARNED AR SUBMITTED THAT AS PER PROVISIONS OF SECTION 263 OF THE ACT, POWERS HAVE BEEN GIVEN TO CIT TO CALL FOR DETAILS FROM ASSESSEE AND PROVIDE ASSESSEE AN OPPORTUNITY FOR HEARING. IT WAS ALSO SUBMITTED THAT THE VERY PURPOSE OF GIVING CIT THE POWER TO CALL FOR DETAILS AND TO PROVIDE OP PORTUNITY OF HEARING TO ASSESSEE WOULD SHOW THAT THE CIT HAS TO CONDUCT SOM E ENQUIRY U/S.263 OF THE ACT BEFORE COMING TO CONCLUSION THAT THE ORDER PASS ED BY ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE. F OR THIS PROPOSITION WE RELIED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT I N CASE OF CIT V. DELHI AIRPORT METRO EXPRESS IN ITA NO. 705 OF 2017 DATED 05.09.2017. THE LEARNED AR ALSO RELIED UPON THE DECISION OF TRIBUNA L IN CASE OF METACAPS ENGINEERING AND MAHENDRA CONSTRUCTION CO V. CIT IN ITA NO. 2895/MUM/2014 DATED 11.09.2017. ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 8 9. IN RESPECT OF UNDISCLOSED BANK ACCOUNT WITH JP M ORGAN, THE LEARNED AR SUBMITTED THAT CERTAIN DOCUMENTS FROM MS. PRITI MIL AN MEHTA, THE EX-WIFE OF THE ASSESSEE. IN THIS CONNECTION IT WAS POINTED OU T THAT DURING THE COURSE OF SEARCH IN THE PREMISES OF MS. PRITI MILAN MEHTA CER TAIN PAGES WERE SEIZED OUT OF WHICH PAGE 118 TO 127 PERTAIN TO SWISS BANK ACCO UNT STATEMENT WITH JP MORGAN IN THE NAME OF ASSESSEE. IT WAS HELD BY CIT THAT SINCE, THIS ACCOUNT WAS NOT DISCLOSED BY THE ASSESSEE IN HIS RETURN OF INCOME THE ASSESSING OFFICER HAD NOT EXAMINED THE SAID BANK ACCOUNT AND THE ORDE R WAS ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE AND HE DIRECTED THE ASSESSING OFFICER TO EXAMINE THE ISSUE AFRESH. IN RESPECT OF THIS THE LE ARNED AR SUBMITTED THAT CERTAIN ALLEGEDLY INCRIMINATING DOCUMENTS WERE FOUN D FROM THE SEARCH CONDUCTED IN PREMISES OF MS.PRITI MILAN MEHTA 11.03 .2014. IT WAS SUBMITTED THAT MS.PRITI MILAN MEHTA IS EX-WIFE OF ASSESSEE. T HEY WERE DIVORCED ON 04.09.2009. IT WAS SUBMITTED THAT THE DOCUMENTS WER E NOT FOUND FROM THE SEARCH CONDUCTED IN CASE OF ASSESSEE. HENCE, WITH R ESPECT TO THE CURRENT ASSESSMENT YEAR, THE ASSESSING OFFICER WOULD HAVE N O JURISDICTION TO MAKE ANY ADDITION PERTAINING TO THE SAID BANK ACCOUNT SINCE THE SAID DOCUMENT HAS NOT BE FOUND DURING THE COURSE OF SEARCH CONDUCTED IN CASE OF ASSESSEE. THE LEARNED AR SUBMITTED THAT THE ASSESSING OFFICER HAS TO ASSE SSES THE INCOME FOUND DURING THE COURSE OF SEARCH S. 132 OF THE ACT CONDU CTED IN CASE OF ASSESSEE. ON A CONJOINT READING OF SECTION 153A AND SECTION 132 OF THE ACT, IT IS EVIDENT THAT THE PURPOSE OF SECTION 132 OF THE ACT IS TO UNEARTH THE DOCUMENTS IN POSSESSION OF ASSESSEE WHICH HAVE NOT BEEN DISCLOSED BY HIM IN HIS RETURN OF INCOME. HE RELIED UPON THE DECISION OF HONBLE BOMBAY HIGH COU RT IN CASE OF CIT V. ALL CARGO GLOBAL LOGISTICS LTD (375 ITR 645). THE LEARNED AR SUBMITTED THAT AS PER THIS DECISION THE INCRIMINATING DOCUMENTS SH OULD BE PRESENT IN THE PREMISES OF ASSESSEE. IT IS SUBMITTED THAT ASSESSIN G OFFICER WOULD HAVE JURISDICTION TO MAKE ADDITIONS ON THE BASIS OF THOS E INCRIMINATING DOCUMENTS U/S 153A OF THE ACT. AS PER NON-ABATED YEARS, ADDIT IONS CAN ONLY BE MADE ON ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 9 BASIS OF INCRIMINATING DOCUMENTS FOUND IN CASE OF S EARCH OF ASSESSEE. IT WAS ALSO SUBMITTED THAT IF DOCUMENTS WERE FOUND FROM SE ARCH IN CASE OF OTHER PERSON THEN NO ADDITIONS COULD HAVE BEEN MADE ON TH E BASIS OF THOSE DOCUMENTS SINCE THE SAME CANNOT BE CONSIDERED AS IN CRIMINATING DOCUMENTS FOUND FROM SEARCH CONDUCTED IN CASE OF ASSESSEE. TH E LEARNED AR SUBMITTED THAT IN RESPECT OF NON-ABATES YEARS TWO CONDITIONS HAVE TO BE FULFILLED. HENCE THE ADDITIONS HAVE TO BE MADE ON THE BASIS OF INCRI MINATING MATERIAL AND THE INCRIMINATING MATERIAL SHOULD BE FOUND DURING THE C OURSE OF SEARCH IN CASE OF ASSESSEE AND NOT ANY OTHER PERSON. IN THE PRESENT C ASE, THE DOCUMENT WAS FOUND DURING THE COURSE OF SEARCH IN THE CASE OF THIRD PA RTY, HENCE, THE SAME COULD NOT BE CONSIDERED AS INCRIMINATING DOCUMENT FOUND DUR ING THE COURSE OF SEARCH. IN VIEW OF THE ABOVE, IT IS SUBMITTED THAT NO INCRI MINATING DOCUMENT PERTAINING TO THE ISSUES REVISED BY THE CIT WAS FOUND DURING T HE COURSE OF SEARCH AND HENCE, THE PROPOSITION CANVASSED BY ASSESSEE EARLIE R WOULD APPLY TO THIS ISSUE ALSO IN CASE OF ASSESSEE HENCE, THE ASSESSING OFFIC ER HAD NO JURISDICTION TO MAKE ADDITIONS IN RESPECT OF THOSE ISSUES U/S 143(3 ) R.W.S 153A OF THE ACT. IT WAS UNDISPUTED FACT THAT THE DOCUMENTS WERE SEIZED FROM THE RESIDENCE OF MS.PRITI MILAN MEHTA. THE SAME FACT HAS ALSO BEEN A CCEPTED BY THE DR VIDE LETTER DATED 05.01.2018 BELONGING TO DCIT CC-1(2), MUMBAI. LEARNED AR ALSO SUBMITTED THAT THE DOCUMENTS BELONGING TO THE ASSESSEE WAS FOUND IN THE PREMISES OF THIRD PARTY, ASSESSMENT IN CASE OF ASSE SSEE SHOULD BE COMPLETED U/S.143(3) R.W.S.153C OF THE ACT. IT WAS SUBMITTED THAT THE CORRECT COURSE OF ACTION WOULD BE THAT THE ASSESSING OFFICER OF MS.PR ITI MILAN MEHTA SHOULD HAVE RECORDED SATISFACTION THAT THE SAID DOCUMENT D OES NOT BELONG TO HER BUT BELONGS TO THE ASSESSEE. AFTER RECORDING THE SAID S ATISFACTION, THE ASSESSING OFFICER OF MS.PRITI MILAN MEHTA SHOULD HAVE FORWARD ED THE DOCUMENTS BELONGING TO THE ASSESSEE TO THE ASSESSING OFFICER IN CASE OF ASSESSEE. THE ASSESSING OFFICER IN CASE OF ASSESSEE SHOULD HAVE R ECORDED SEPARATE SATISFACTION THAT THE SAID DOCUMENT BELONGS TO ASSE SSEE. THE RECORDING OF SUCH ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 10 SATISFACTION THE ASSESSING OFFICER IN CASE OF ASSES SEE SHOULD HAVE COMPLETED THE ASSESSMENT U/S 143(3) R.W.S. 153C OF THE ACT. T HE CORRECT COURSE OF ACTION FOR MAKING ADDITION, IF ANY, ON THIS ISSUE WOULD BE MAKING ASSESSMENT U/S 143(3) R.W.S. 153C OF THE ACT. HENCE, THE ASSESSING OFFICER IN CASE OF ASSESSEE COULD NOT HAVE MADE THIS ADDITION WHILE PASSING THE ASSESSMENT ORDER U/S 143(3) R.W.S. 153A OF THE ACT SINCE THIS ADDITION C OULD ONLY HAVE BEEN MADE IF THE ASSESSMENT ORDER WAS PASSED U/S 143(3) R.W.S. 1 53C OF THE ACT AFTER FOLLOWING THE ABOVE MENTIONED PROCEDURE. SINCE THE ASSESSING OFFICER COULD NOT HAVE MADE THIS ADDITION IN THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 153A OF THE ACT, NON-CONSIDERATION OF THIS ISSUE IN THE ASSESSMENT ORDER WOULD NOT MAKE THE ORDER ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF ASSESSEE. 10. IN RESPECT OF ASSESSMENT YEARS 2009-10, 2010-11 , 2011-12, 2012-13 & 2013-14, THE LEARNED AR SUBMITTED THAT ALL THESE YE AR ARE NON-ABATED, THEREFORE NO INCRIMINATING MATERIAL WAS FOUND DURING THE COUR SE OF SEARCH. THE CIT CANNOT REVISE THE ASSESSMENT ORDER PASSED U/S.143(3 ) R.W.S.153A OF THE ACT WITHOUT REVISING THE APPROVAL GRANTED BY ADDL. CIT AND CIT HAS NOT APPLIED HIS MIND AND NOT CONDUCTED ANY ENQUIRY BEFORE DIREC TING THE ASSESSING OFFICER TO DECIDE THE ISSUES AFRESH, THEREFORE, APPEAL MAY BE ALLOWED. 11. IN RESPECT OF A.Y.2013-14 AND 2014-15, THE LEAR NED AR SUBMITTED THAT THESE YEARS ARE ABATED, THEREFORE, THE LEARNED AR S UBMITTED THAT CIT WASCIT HAS REVISED THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 153A OF THE ACT WITHOUT REVISING THE APPROVAL GRANTED BY ADDL. CIT. CIT HAS NOT APPLIED HIS MIND AND NOT CONDUCTED ANY ENQUIRY BEFORE DIRECTING THE ASSESSING OFFICER TO DECIDE THE ISSUES AFRESH. 12. THE LEARNED DR HAS ALSO SUBMITTED THAT NO INCRI MINATING MATERIALS PERTAINING TO THE ISSUES RAISED BY CIT U/S.263 OF T HE ACT WAS FOUND DURING THE COURSE OF SEARCH THAT TOOK PLACE IN THE CASE OF THE ASSESSEE. THE LD. DR. HAS RELIED UPON DECISION OF JAI STEEL (INDIA) LTD. VS. ASST. CIT [259 CTR 281 (RAJ)] WHEREIN IT IS SUBMITTED THAT THE PROVISIONS DETERMI NING THE UNDISCLOSED ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 11 INCOME UNDER THE CHAPTER XIVB WITH DETERMINATION OF TOTAL INCOME UNDER SECTIONS 153A TO 153C OF THE ACT HAVE TO BE READ IN THE CONTEXT OF SECOND PROVISO ONLY, WHICH DEALS WITH THE PENDING ASSESSME NT / REASSESSMENT PROCEEDINGS. THE ASSESSMENT PROCEEDING MADE IN THE CONTEXT OF DE NOVO INCRIMINATING MATERIAL IS FOUND DURING THE COURSE O F SEARCH, THE NOTICE AND CONSEQUENTIAL ASSESSMENT UNDER SECTION 153A HAVE TO BE UNDERTAKEN. THE LEARNED DR FURTHER RELIED UPON DECISION OF HONBLE KARNATAKA HIGH COURT IN CASE OF CANARA HOUSING DEVELOPMENT AND CO. AND SUBMITTED THIS DECISION HAS BEEN CONSIDERED BY THE HONBLE DELHI HIGH COURT IN CASE OF CIT VS. KABUL CHAWLA [380 ITR 573 (DEL) AND THE PROPOSITION CANVA SSED INSERTED DURING THE COURSE OF SEARCH. THE HONBLE KARNATAKA HIGH COURT HAS DISPROVE THE DECISION OF ALL CARGO GLOBAL LOGISTICS 137 ITD 287 (SB). TH E LEARNED DR ALSO RELIED UPON THE DECISION OF HONBLE DELHI HIGH COURT IN CA SE OF CIT VS. ANIL KUMAR BHATIAAND SUBMITTED THAT ASSESSING OFFICER IS EMPOW ERED TO ASSESS OR REASSESS THE TOTAL INCOME WHICH (WHICH INCLUDES THE DISCLOSE D & UNDISCLOSED INCOME) OF 6 YEARS. IN THE CASE OF SANJAY AGGARWALVS. DCIT, I TAT, DELHI HAS ADDITION IN A SEARCH ASSESSMENT FOR A A.Y. WHICH IS NOT PENDING CAN BE MADE ONLY IF INCRIMINATING MATERIAL IS FOUND DURING SEARCH. THE LEARNED DR IS RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE O F RAJMANDIR ESTATES (P.) LTD. VS. PR.CIT [77 TAXMAN.COM 285 (SC)] AND SUBMIT TED THAT THE ASSESSING OFFICER HAS COMPLETED ASSESSMENT WITHOUT HOLDING RE QUISITE INVESTIGATION EXCEPT FOR CALLING FOR RECORDS. COMMISSIONER PASSE D ORDER UNDER SECTION 263 OF THE ACT AND OPINED THAT THIS COULD BE A CASE OF MONEY LAUNDERING WHICH WENT UNDETECTED DUE TO LACK OF REQUISITE ENQUIRY IN TO INCREASE AND IT IS NON- APPLICATION OF MIND OF ASSESSING OFFICER. THE ACTI ON OF 263 OF THE ACT WAS UPHELD BY THE HONBLE SUPREME COURT OF INDIA. TH E LEARNED DR ALSO RELIED UPON THE DECISION OF HONBLE DELHI HIGH COURT IN CA SE OF CIT VS. ASHOK LOGANI [2011] 11 TAXMANN.COM 208 WHEREIN IT IS HELD THAT THE ASSESSING OFFICER VIDE PASSING THE ORDER THE ASSESSMENT BECOM ES FINAL AND NO APPEAL CAN ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 12 BE FILED AGAINST THE ORDER OF ASSESSING OFFICER BY THE REVENUE DEPARTMENT. LIMITED JURISDICTION IS GIVEN TO THE CIT TO REVISE SUCH ORDERS, IF HE FINDS THAT THE SAME IS PREJUDICIAL TO THE INTEREST OF REVENUE AND ON THE FACTS OF THIS CASE, WHEN IT IS FOUND THAT THERE WAS NO PROPER CONSIDERA TION BY THE ASSESSING OFFICER TO THE ISSUE AT HAND, HE LEFT MANY LOOSE EN DS, THEN THE COMMISSIONER HAS ALL THE RIGHT TO PASS THE ORDER U/S.263 OF THE ACT TO MAKE A PROPER ENQUIRY UNDER THE ASSESSMENT PASSED U/S.153 R.W.S. 144 OF T HE ACT. MOREOVER, THE LEARNED DR HAS FILED TWO APPEAL BEFOR E US. THE WRITTEN SUBMISSION WHICH READS AS UNDER:- 3. TO SUM UP, I WOULD LIKE TO BRING THE FOLLOWING POINTS FOR YOUR KIND CONSIDERATION: I)(A) IN THE CASE OF AMBRISHMANOJDHUPELIA V/S. D Y. C.I.T. IN ITA NOS. 5720 TO 5729, 5751 85 5752 (MUM.) OF 2016 REPORTED IN [2017 ] 87 TAXMANN.COM 195, THE DEPOSIT MADE TO ALL FOREIGN BANK A/CS HAS BEEN CONF IRMED BY THE JURISDICTIONAL ITAT. (B) THE MATTER MAY BE REFERRED TO THE SPL. BENCH BECAUSE IT IS PARAMOUNT IMPORTANCE. AFFECTING 100 CASES OF HIRANDAM GROUP. II) SECTION 263 OF THE INCOME TAX ACT, 1961 IS REPR ODUCED AS UNDER FOR YOUR READY REFERENCE: E. REVISION BY THE PRINCIPAL COMMISSIONER OR COMMISSIO NER REVISION OF ORDERS PREJUDICIAL TO REVENUE. 263. (1) THE PRINCIPAL COMMISSIONER OR COMMISSIONER MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, HE MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH I NQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLIN G THE ASSESSMENT AND DIRECTING AFRESH ASSESSMENT I [EXPLANATION 2.FOR THE PURPOSES OF THIS SECTION, I T IS HEREBY DECLARED THAT AN ORDERPASSED BY THE ASSESSING OFFICER SHALL BE DEEMED TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, IF, IN THE OPINION OF THE PRINCIPAL COMMISSIONER OR (A) THE ORDER IS PASSED WITHOUT MAKING INQUIRIES OR VERIFICATION WHICH SHOULD HAVE BEEN MADE; (B) THE ORDER IS PASSED ALLOWING ANY RELIEF WITHOUT INQUIRING INTO THE CLAIM; (C) THE ORDER HAS NOT BEEN MADE IN ACCORDANCE WITH ANY ORDER, DIRECTION OR INSTRUCTION ISSUED BY THE BOARD UNDER SECTION 119; OR (D) THE ORDER HAS NOT BEEN PASSED IN ACCORDANCE WIT H ANY DECISION WHICH IS PREJUDICIAL TO THE ASSESSES, RENDERED BY THE JURISDICTIONAL HIGH COURT OR SUPREM E COURT IN THE CASE OF THE ASSESSEE OR ANY OTHER PERS ON.] IT IS PERTINENT TO MENTION HERE THAT 'EXPLANATION 2 ' HAS BEEN AMENDED BY FINANCE ACT, 2015 (W.E.F.-01/06/2015). THEREFORE, IF THE OR DER U/S. 263 PASSED EITHER BEFORE OR AFTER 01/06/2015, THE WORDS 'DECLARED' AND 'SHAL L BE' ARE REMAINED IN THE FRAMEWORK ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 13 OF THE ACT. THEREFORE, THE INTENTION OF THE LEGISLA TURE WAS CLEAR THAT THE COMMISSIONER OF INCOME TAX HAS THE POWER TO MAKE RE VISION OF THE ORDER OF THE AO IF IT IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. III) IT IS WORTH MENTIONING THAT THAT THE SECTION 2 63 DOES NOT INVALIDATE THE ORDER OF THE PR. COMMISSIONER OF INCOME TAX. IV) RELIANCE IS ALSO PLACED SC DECISION IN THE CASE OF C.I.T V/S. AMITABH BACHCHAN REPORTED IN [2016] 69 TAXMANN.COM 170 (SC), WHEREIN THE POWERS OF PR COMMISSIONER OF INCOME TAX HAS BEEN EXPLAINED. THIS IS THE LATEST LEGAL POSITION; THEREFORE, THE SAME MAY BE TAKEN NOTE OF. V) THE VARIOUS OBJECTION RAISED BY THE ASSESSEE DUR ING THE COURSE OF HEARING INCLUDING ISSUING OF SVRONG NOTICES', RAISED NEITHE R BEFORE THE AO NOR PR. COMMISSIONER OF INCOME TAX, THEREFORE, AT THIS JUNC TURE THE SAME MAY NOT BE ENTERTAINED. MOREOVER, THE ASSESSEE FULLY CO-OPERAT ED DURING THE ASSESSMENT AS WELL AS REVISION PROCEEDINGS. VI) THE PLEA OF DIVORCE WAS NEVER TAKEN BEFORE THE AO/PR. CIT-KINDLY REFER TO THE AO'S REPORT IN THIS REGARD. VII) MOREOVER, SECTION 292C OF THE INCOME TAX ACT, 1961 STATES AS UNDER: PRESUMPTION AS TO ASSETS, BOOKS OF ACCOUNT, ETC. 292C. (1) WHERE ANY BOOKS OF ACCOUNT, OTHER DOCUMENTS, MO NEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING ARE OR IS FOUND IN THE POSSESSION OR CONTROL OF ANY PERSON IN THE COURSE OF A SEARCH UNDER SECTION 132 OR SURVEY UNDER SECTION 133A, IT MAY, IN ANY PROCEEDING UNDER THIS ACT, BE PRESUMED (I) THAT SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS, MO NEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING BELONG OR BELONGS TO SUCH PERSON; (II) THAT THE CONTENTS OF SUCH BOOKS OF ACCOUNT AND OTHER DOCUMENTS ARE TRUE; AND (III) THAT THE SIGNATURE AND EVERY OTHER PART OF SU CH BOOKS OF ACCOUNT AND OTHER DOCUMENTS WHICH PURPORT TO BE IN THE HANDWRITING OF ANY PARTICULAR PERSON OR WHICH MAY REASONABLY BE ASSUMED TO HAVE BEEN SIGNED BY, O R TO BE IN THE HANDWRITING OF, ANY PARTICULAR PERSON, ARE IS THAT PERSONS HANDWRI TING, AND IN THE CASE OF A DOCUMENT STAMPED, EXECUTED OR ATTESTED, THAT IT WAS DULY STAMPED AND EXECUTED OR ATTESTED BY THE PERSON BY WHOM IT PURPORTS TO HAVE BEEN SO EXECUTED OR ATTESTED. (2) WHERE ANY BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ASSETS HAVE BEEN DELIVERED TO THE REQUISITIONING OFFICER IN ACCORDANCE WITH TH E PROVISIONS OF SECTION 132A, THE, THE PROVISIONS OF SUB-SECTION (1) SHALL APPLY AS IF SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ASSETS WHICH HAD BEEN TAKEN INTO CUSTO DY FROM THE PERSON REFEREED TO IN CLAUSE (A) OR CLAUSE (B) OR CLAUSE (C), AS THE C ASE MAY BE, OF SUB-SECTION (1) OF SECTION 132A HAD BEEN FOUND IN THE POSSESSION OR CO NTROL OF THAT PERSON IN THE COURSE OF A SEARCH UNDER SECTION 132. IN VIEW OF THE ABOVE, THE CONTENTION OF THE ASSESSE E WITH REGARD TO NEW OBJECTIONS BEING RAISED NOW DOES NOT HOLD WATERS. 13. IN REPLY TO DRS ARGUMENT, LEARNED AR SUBMITTED THAT IN CASE OF JAY STEEL, THE SAID JUDGMENT SUPPORTS THE ASSESSEE THAT IN CASE OF NON-ABATED YEARS, ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 14 ADDITIONS CAN BE MADE ONLY ON THE BASIS ON INCRIMIN ATING MATERIAL FOUND DURING THE COURSE OF SEARCH PERTAINING TO THOSE ADDITIONS IN RESPECT OF NON-ABATED YEARS. IN RESPECT OF CANARA HOUSING DEVELOPMENT AND CO. AND SUBMITTED THIS DECISION HAS BEEN CONSIDERED BY THE HONBLE DE LHI HIGH COURT IN CASE OF CIT VS. KABUL CHAWLA [380 ITR 573 (DEL) HAS CONSIDE RED. MOREOVER, IN CASE OF HONBLE KARNATAKA HIGH COURT, THE HONBLE DELHI HIGH COURT HAS CONSIDERED THE DECISION OF HONBLE KARNATAKA HIGH C OURT. LEARNED AR SUBMITTED THAT THE JURISDICTIONAL HIGH COURT IN CAS E OF CIT V. ALL CARGO GLOBAL LOGISTICS LTD (375 ITR 645) HAS DECIDED IN FAVOUR OF THE ASSESSEE AND WHEREIN IT IS HELD THAT IN CASE OF NON-ABATED ADDIT IONS CAN ONLY BE MADE ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING THE CO URSE OF SEARCH PERTAINING TO THOSE ADDITIONS. IN CASE OF CIT VS. BALLARPUR INDUSTRIES LTD. [2017] TAX PUB (DT) 4015 (BOMBAY HIGH COURT / 85 TAXMANN.COM 1 0) RELIED BY THE ASSESSING OFFICER. LEARNED AR SUBMITTED THAT THE R EASON FOR UPHELD THE CIT U/S.263 OF THE ACT WAS THAT THE ASSESSING OFFICER H AD FAILED TO CAUSE INQUIRY. IN THE PRESENT CASE, ALL THE DETAILS WERE FILED BEFORE CIT AND THE CIT HAD NOT APPLIED HIS MIND TO THE DETAILS FILED BY THE ASSESS EE. IN RESPECT OF BASSERA REALTORS (P.) LTD. V CIT [163 TTJ 736 (CHANDIGARH)] , THE ASSESSING OFFICER HAS NOT APPLIED HIS MIND. IN RESPECT OF HONBLE DE LHI HIGH COURT IN CASE OF CIT VS. ASHOK LOGANI [2011] 11 TAXMANN.COM 208, LEA RNED AR SUBMITTED THAT ASSESSEE HAS FILED RELEVANT DETAILS BEFORE THE CIT, NO INQUIRY HAS BEEN CAUSE BEFORE PASSING ORDER U/S.263 OF THE ACT. IN LOGANI S CASE ASSESSEE HAS GIVEN EXPLANATION BEFORE CIT WAS DIFFERENT WHICH GIVES IM PRESSION THAT THERE WAS AFTERTHOUGHT ON THE PART OF THE ASSESSEE. THEREFOR E, THE MATTER HAS SET ASIDE BEFORE CIT AND ASSESSING OFFICER FOR FRESH INQUIRY. THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF RAJMANDIR ESTATES (P.) LTD. VS. PR.CIT [77 TAXMAN.COM 285 (SC)] THIS ISSUE IS PURELY BASED ON THE DISTINGUISHABLE FACTS WHICH ARE DISTINGUISHABLE. ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 15 14. WE HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PARTIES, WE FIND THAT THE ASSESSEE IS A DIRECTOR IN VARIOUS COMPANIES OF HIRA NANDANI GROUP AND PARTNER IN VARIOUS FIRMS OF THE GROUP. A SEARCH TOOK PLACE ON 11.03.2014 U/S.132 OF THE ACT ON HIRANANDANI GROUP. THE ASSESSEE WAS ALS O COVERED UNDER THE SEARCH. PURSUANT TO THE SEARCH, THE ASSESSEE FILED A RETURN OF INCOME IN RESPONSE TO THE NOTICE ISSUED U/S 153A OF THE ACT. THE ASSESSING OFFICER ISSUED CERTAIN QUERIES DURING THE COURSE OF ASSESSMENT PRO CEEDINGS AND PASSED ASSESSMENT ORDERS U/S 153A R.W.S. 143(3) OF THE ACT DATED 18.06.2015. THE SAID ORDERS WERE PASSED BY ASSESSING OFFICER AFTER OBTAI NING PRIOR APPROVAL OF ADDL. CIT RANGE 1 AS REQUIRED UNDER THE PROVISIONS OF S. 153D OF THE ACT. SUBSEQUENTLY THE CIT ISSUED SHOW CAUSE NOTICES U/S 263 OF THE ACT. THE ASSESSEE FILED DETAILED REPLIES IN RESPONSE TO THE SHOW CAUSE NOTICES AND CIT HAS PASSED THE ORDERS DATED 18.06.2015 U/S 263 OF T HE ACT WHEREIN IT WAS OBSERVED THAT THE ORDERS PASSED BY THE ASSESSING OF FICER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE ON CERTA IN ISSUES. HENCE, THE CIT SET ASIDE THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER AND DIRECTED THE ASSESSING OFFICER TO PASS FRESH ORDERS AFTER CONDUC TING NECESSARY ENQUIRIES AND PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. 15. FOR GOING TO THE MERITS TO THE CASE THESE ARE T HE CHRONOLOGY OF EVENTS WHICH ARE TABULATED AS UNDER:- SR. NO. PARTICULARS AY 2008-09 AY 2009-10 AY 2010-11 AY 2011-12 AY 2012-13 1. RETURN OF INCOME FILED U/S. 139(1) OF THE ACT 30.09.2008 29.09.2009 29.09.2010 29.09.2011 28.09.2012 2. DATE OF SEARCH 11.03.2014 3. DUE DATE FOR SELECTING THE CASE FOR SCRUTINY 30.09.2009 30.09.2010 30.09.2011 30.09.2012 30.09.2013 4. DATE OF SCRUTINY ASSESSMENT U/S. 143(3) OF THE ACT NOT SELECTED 20.08.2010 NOT SELECTED 31.07.2012 NOT SELECTED 16. SHORT TABLE FOR ISSUE INVOLVES IN THE YEARS WHI CH READS AS UNDER:- SR. NO. ISSUE GROUND NO A.Y. 08- 09 A.Y. 09- 10 A.Y. 10- 11 A.Y. 11- 12 A.Y. 12-13 A.Y. 13-14 A.Y. 14-15 ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 16 1. CIT ERRED IN ASSUMING JURISDICTION U/S. 263 AND HOLDING THAT ASSESSMENT COMPLETED HAD BEEN MADE WITHOUT CARRYING OUT NECESSARY ENQUIRES AND HENCE, THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 1 2. CIT ERRED IN SETTING ASIDE THE ASSESSEES CASE BACK TO THE LD. A.O. FOR MAKING A FRESH ASSESSMENT. 2 3. AMOUNT RECEIVED FROM PARTNERSHIP FIRM UPON RETIREMENT 3 - - - - - - 4. AMOUNT CREDITED IN CAPITAL ACCOUNT - 3 - - - - - 5. INTEREST WAIVED BY HDFC BANK - - 3 - - - - 6. DISALLOWANCE U/S 24(B) OF THE ACT 4 4 4 - - - - 7. DISALLOWANCE OF INTEREST U/S 57(III) - - - 3 3 3 3 8. DISALLOWANCE U/S 14A - - - 4 4 4 4 9. BANK ACCOUNT WITH JP MORGAN 5 5 5 5 5 5 5 10. PAYMENT MADE TO KINGSTAR - - - - - 6 - 17. WE HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PARTIES WE FIND THAT FOLLOWING PROPOSITIONS HAS BEEN EMERGED TO DECIDED THIS ISSUE WHICH IS AS UNDER:- I) NO INCRIMINATING MATERIAL PERTAINING TO THE ISSUES RAISED BY CIT U/S 263 OF THE ACT WAS FOUND DURING THE COURSE OF S EARCH THAT TOOK PLACE IN CASE OF ASSESSEE II) CIT HAS REVISED THE ASSESSMENT ORDER PASSED U/S 143 (3) R.W.S. 153A OF THE ACT WITHOUT REVISING THE APPROVAL GRANT ED BY ADDL. CIT III) CIT HAS NOT APPLIED HIS MIND AND NOT CONDUCTED ANY ENQUIRY BEFORE DIRECTING THE ASSESSING OFFICER TO DECIDE TH E ISSUES AFRESH ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 17 (I) NO INCRIMINATING MATERIAL PERTAINING TO THE ISSUES RAISED BY CIT U/S 263 OF THE ACT WAS FOUND DURING THE COURSE OF S EARCH THAT TOOK PLACE IN CASE OF ASSESSEE. 18. WE HAVE HEARD THE RIVAL CONTENTION OF BOTH TH E PARTIES AND WE FIND THAT SEARCH AND SEIZURE ACTION TOOK PLACE ON 11.03.2014 AND THE ASSESSEE WAS ALSO COVERED IN THIS SEARCH ACTION. AS PER THE PROVISIO NS OF SECTION 153A OF THE ACT THE AO HAD TO RE-ASSESS THE INCOME OF THE ASSESSEE IMMEDIATELY PRECEDING 6 ASSESSMENT YEARS. AS RETURN FOR THE AYS 2008-09, 20 10-11 AND 2012-13, THE RETURN OF INCOME WAS FILED AND DUE DATES FOR SELECT ING THE RESPECTIVE CASES FOR SCRUTINY ASSESSMENT HAD PASSED BEFORE THE DATE OF S EARCH. IN AYS 2009-10 AND 2011-12, THE RETURN OF INCOME WAS FILED AND ASSESSM ENT WAS COMPLETED BEFORE THE DATE OF SEARCH. THE ASSESSMENT FOR SUCH ASSESSM ENT YEARS WAS THEREFORE NON-ABATED AS TIME LIMIT FOR ISSUANCE OF NOTICE WAS ALREADY EXPIRED BEFORE THE DATE OF SEARCH. AS PER THE SAID PROVISIONS, THE ASS ESSING OFFICER HAD NO JURISDICTION TO MAKE ADDITIONS IN RESPECT OF NON-AB ATED YEARS I.E. YEARS FOR WHICH ASSESSMENT WERE COMPLETED U/S 143(3) OF THE A CT OR TIME LIMIT FOR ISSUING NOTICE U/S 143(2) HAD EXPIRED EXCEPT IF THE ADDITIONS WERE BASED ON INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH. WE FIND THAT THE ISSUE IS SETTLED BY THE HONBLE BOMBAY HIGH COURT I N CASE OF CIT V. ALL CARGO GLOBAL LOGISTICS LTD (375 ITR 645) WHEREIN, IT IS HELD THAT IN RESPECT OF NON-ABATED YEARS, ADDITIONS CAN ONLY BE MADE ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH PERTAINI NG TO THOSE ADDITIONS. WE FIND THAT THE ASSESSING OFFICER HAD NO JURISDICTION TO MAKE ADDITIONS ON THE ABOVE ISSUES, NON-CONSIDERATION OF THOSE ISSUES IN THE ASSESSMENT ORDER WOULD NOT MAKE THE ASSESSMENT ORDER PASSED U/S 143(3) R.W .S. 153A OF THE ACT ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E. HENCE, THE CIT COULD NOT HAVE DISTURBED THE SAID ASSESSMENT ORDER BY EXERCIS ING JURISDICTION U/S 263 OF THE ACT. ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 18 19. FURTHER IT IS OBSERVED THAT IN THE CASE OF JITENDRA MEHTA V. CIT IN ITA NO. 1872/MUM/2015 DATED 24.06.2015 ALSO, THE CIT SOUGHT TO REVISE THE ASSESSMENT ORDER PASSED U/S 153A OF THE ACT ON THE GROUND THAT THE ASSESSING OFFICER HAD NOT EXAMINED THE ISSUE OF DEPRECIATION ON WINDMILL. HOWEVER, THE YEAR PERTAINING TO WHICH ASSESSMENT ORDER WAS PASSE D, BEING A NON-ABATED YEAR, ADDITION COULD HAVE BEEN MADE IN CASE ANY INC RIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH PERTAINING TO THE SAID ADDITION. IT WAS HELD BY THE HONBLE TRIBUNAL THAT SINCE NO INCRIMINATING MA TERIAL WAS FOUND DURING THE COURSE OF SEARCH PERTAINING TO THE ADDITION, THE AS SESSING OFFICER COULD NOT HAVE MADE ANY ADDITION AND HENCE, THE CIT CANNOT TE RM THE ASSESSMENT ORDER AS ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE . THE RELEVANT PORTION OF THE ORDER OF HONBLE TRIBUNAL IS REPRODUCED BELOW: 2.4 IT WAS FURTHER SUBMITTED BY LD. AR THAT IN TH E LATEST DECISION OF HONBLE BOMBAY HIGH COURT DATED 21/4/20 15 IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPORA TION (NHAVASHEVA) LTD. AND CIT VS. ALL CARGO GLOBAL LOGI STICS LTD. IN INCOME TAX APPEAL NO. 523 OF 2013 AND IN IN COME TAX APPEAL NO. 1969 OF 2013 RESPECTIVELY HAS CONFIR MED THE VIEW BY FOLLOWING THE EARLIER DECISION OF MUMBAI HI GH COURT DATED 29/10/2010 IN THE CASE OF CIT, CENTAL N AGPUR VS. MURLI AGRO PRODUCTS LTD. IN INCOME TAX APPEAL N O. 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 CORRECT PRINCIPLE OF LAW. LD. AR WHIL E CONTENDING SO HAS RELIED UPON PARA 28 AND 37 OF THE SAID ORDER, COPY OF WHICH WAS PLACED ON OUR RECORD AND W AS ALSO GIVEN TO LD. DR. . 4.WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENTI ONS HAVE CAREFULLY BEEN CONSIDEREDTHEREFORE, CERTAINLY, THI S ISSUE IS OTHER THAN THE ADDITIONS BASED ON SEIZED MATERIAL . IF IT IS SO THEN ACCORDING TO THE AFOREMENTIONED DECISION OF HO NBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. CONTINENTA L WAREHOUSING CORPORATION (NHAVASHEVA) LTD. (SUPRA), THE ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 19 A.O 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 ASSESSMENT ORDER PASSED UNDER SECTION 143( 3) R.W.S. 153A AS ERRONEOUS AND PREJUDICIAL TO THE INT EREST OF REVENUE. 4.1. IN VIEW OF ABOVE DISCUSSION, WE HOLD THAT POWE R UNDER SECTION 263 OF THE ACT INVOKED BY LD. CIT IS CONTRARY TO THE PROVISIONS OF THE STATUTE. 20. THE ORDER OF HONBLE TRIBUNAL IN CASE OF SHWETAAVARSEKAR V. CIT IN ITA NO. 3186 AND 3187/MUM/2016 DATED 01.08.2016 WHE REIN A SIMILAR ISSUE WAS INVOLVED, THE HONBLE TRIBUNAL HELD AS UNDER: 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE MATERIAL PLACED BEFORE US INCLUDING THE ORDERS OF A UTHORITIES BELOW AND JUDICIAL DECISIONS RELIED UPON BY THE PARTIESWE FIND FORM THE RECORD AVAILABLE BEFORE US AND FROM THE CONTENTIONS OF BOTH THE PARTIES THAT NO IN CRIMINATING DOCUMENTS WERE FOUND AND SEIZED DURING THE COURSE O F SEARCH WITH RESPECT TO THREE LOAN CREDITORS AS MENTIONED A BOVE AND THEREFORE THE ISSUE WHICH IS NOT BACKED OR SUPPORTE D BY ANY INCRIMINATING DOCUMENT FOUND IN THE SEARCH COULD NO T BE ADDED BY THE A.O IN THE ASSESSMENT WHICH IS FRAMED U/S. 143(3) R.W.S. 153A OF THE ACT. .. 8. FINALLY, IN VIEW OF THE RATIO LAID DOWN IN THE ABOV E DECISIONS, THE LD. AR SUBMITTED THAT THE ASSESSMENT ORDER PASSED BY THE A.O UNDER SECTION 143(3) R.W.S. 153A WAS NOT ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE AND THEREFORE REVISIONARY POWERS U/S 263 OF THE ACT WER E WRONGLY INVOKED AND EXERCISED BY THE COMMISSIONER AND PRAYE D THAT THE ORDER PASSED BY THE COMMISSIONER U/S 263 BE SET ASIDE AND THAT OF A.O BE RESTORED BY ALLOWING THE APPEAL OF THE ASSESSEE. 9 ..IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (BOMBAY HIGH COURT) (SUPRA) IN WHICH THE HONBLE JURISDICTIONAL HIGH COURT HAS HELD THE ADDITION CAN ONLY BE MADE ON THE BASIS OF INCRIMINATING MATERIALS FOUND DURING ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 20 SEARCH IN THE CASE OF ASSESSMENTS WHICH HAVE ATTAIN ED FINALITY ON THE DATE OF SEARCH ACTION. 11. A CLOSE PERUSAL OF THE ABOVE REVEAL THAT FACTS OF THE ASSESSEES CASE ARE SQUARELY COVERED BY THE RATIO L AID DOWN BY THE ABOVE SAID JUDGMENTS REFERRED TO HEREINABOVE AN D WE, RESPECTFULLY FOLLOWING THE SAME, QUASH THE ORDER PA SSED BY THE COMMISSIONER U/S. 263 OF THE ACT AND ALLOW THE APPE AL OF THE ASSESSEE.. 16. THE ASSESSEE FURTHER RELIED ON THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF MURLI AGRO PRODUCTS LTD (SUPRA) WHEREIN IT HAS BEEN HELD THAT WHERE NO MATERIAL WAS UNEARTHED DURING SEARCH OR DURING PROCEEDINGS INITIATED UNDER SECTION 153A SHOWING THAT CERTAIN RELIEF IN FORM OF DEDUCTI ON WAS WRONGLY ALLOWED TO ASSESSEE, THE A.O WHILE PASSING THE ORDER U/S 143(3) R.W. SECTION 153A CANNOT INVOKE JURISDIC TION UNDER SECTION 263 ON GROUND THAT ASSESSMENT ORDER PASSED UNDER SECTION 153A, READ WITH SECTION 143(3) WAS ERRONEOU S OR PREJUDICIAL TO INTEREST OF REVENUE. SINCE WE HAVE QUASHED THE ORDER PASSED BY THE COMMISSIONER U/S 263 IN THE APP EAL BEARING ITA NO. 3186/MUM/2016 ON THE GROUND THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH ACTION AND THEREFORE, THE ASSESSMENT WHICH WAS ALREADY COM PLETED AND HAS ATTAINED FINALITY COULD NOT BE DISTURBED BY EXERCISING JURISDICTION BY COMMISSIONER U/S 263 FOR THE ACT... (EMPHASIS SUPPLIED) 21. IN CASE OF HANSPRO.COM PVT. LTD. V. CIT IN ITA NO. 3573/MUM/2016 DATED 31.01.2017, THE HONBLE TRIBUNAL HELD AS UNDE R: 3. .THUS, THE LD. A.O HAD NO JURISDICTION TO EXAM INE THE LOAN OF RS. 35 LAKHS RECEIVED BY THE ASSESSEE FROM M/S STI PRODUCTS PVT. LTD. THE LEGAL POSITION IS NOW WELL SETTLED IN THIS REGARD BY THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS 374 ITR 645 (BOM) AND JUDGMENTS OF HONBLE DELHI HIGH COURT IN THE CA SE OF GURVINDERSINGHBAWAVS DCIT 386 ITR 483 (DEL) AND CIT VS KABUL CHAWLA 380 ITR 573 (DEL). ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 21 4. UNDER THESE CIRCUMSTANCES, WHEN THE A.O HIMSELF DID NOT HAVE THE JURISDICTION TO EXAMINE THE SAID LOAN, THE N HOW THE LAD. PRINCIPAL CIT CAN TAKE A VIEW THAT NON EXAMINA TION OF LOAN BY THE A.O MADE THE ASSESSMENT ORDER AS ERRONE OUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. IT IS N OTED BY US THAT THE LEGAL POSITION HAS ALSO BEEN CLARIFIED IN THIS REGARD BY THE CO-ORDINATE BENCH OF MUMBAI BENCH IN THE CAS E OF JITENDRA MEHTA (SUPRA) BY OBSERVING AS UNDER . 5. THIS VIEW HAS BEEN FOLLOWED BY MUMBAI BENCH OF T HE TRIBUNAL IN THE CASE OF MRS.SHWETAAVARSEKAR V. DCIT (SUPRA). THUS, FROM THE FACTS OF THIS CASE AND LEGA L DISCUSSION AS MADE ABOVE, IT IS CLEAR THAT THE ASSESSMENT ORDE R PASSED BY AO CANNOT BE HELD TO BE ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF THE REVENUE FOR THE REASON AS HAS BEEN MENTIONED BY LD. PRINCIPAL CIT. WE FIND THAT THE IMPUGNED ORD ER U/S 263 IS CONTRARY TO LAW AND FACTS AND, THEREFORE THE SAM E IS HEREBY QUASHED 22. THE DECISION OF THE HONBLE DELHI HIGH COURT IN CASE OF CIT V. MAHESH KUMAR GUPTA IN ITA NO. 810 OF 2016 DATED 22.11.2016 WHEREIN THE ASSESSING OFFICER HAD PASSED THE ORDER U/S 153A OF THE ACT IN RESPECT OF NON- ABATED YEAR. THE CIT SOUGHT TO REVISE THE ORDER PAS SED BY ASSESSING OFFICER ON THE GROUND THAT THE ASSESSING OFFICER HAD NOT MADE ANY ADDITION U/S 2(22)(E) OF THE ACT. IT WAS SUBMITTED THAT NO INCRIMINATING MAT ERIAL WAS FOUND DURING THE COURSE OF SEARCH WITH RESPECT TO THE SAID ISSUE AND HENCE, NO ADDITION COULD HAVE BEEN MADE BY THE ASSESSING OFFICER IN HIS ORDE R. THE HONBLE TRIBUNAL ACCEPTED THE PLEA OF APPELLANT. ON APPEAL TO THE HI GH COURT, THE HONBLE COURT UPHELD THE ORDER OF THE HONBLE TRIBUNAL AND HELD A S UNDER: 3. THE ITAT CONCLUDED BASED UPON THE MATERIALS AVAILAB LE THAT THE SEARCH AND SEIZURE OPERATIONS DID NOT YIEL D ANY FRESH MATERIAL WARRANTING ADDITION UNDER SECTION 153A OF THE ACT, AND THEREFORE, COULD NOT CLOTHE THE CIT WITH THE AU THORITY TO ADD AN AMOUNT ON THE BASIS OF A FRESH APPRAISAL OF THE EXISTING MATERIALS THAT FORMED PART OF THE ORIGINAL ASSESSMENT. ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 22 4. .THE CIT, THEREFORE, HAD OPPORTUNITY TO EXERCIS E HIS POWERS AS IT WERE ON THE BASIS OF RETURNS AS FILED ORIGINALLY AND VALIDLY UNDER SECTION 263 OF THE ACT. 5. IN THE CIRCUMSTANCES IN THE ABSENCE OF ANY MATERIAL DISCLOSING THAT THE ISSUE OF DEEMED DIVIDEND HAD BE EN WILLFULLY DERIVED OR HAD BEEN DEEMED OR OTHERWISE W ITHHELD FROM THE ASSESSMENT AN ADDITION UNDER SECTION 153A WAS WARRANTED BASED ON THE PROPOSITION TAUGHT BY THIS COURT IN JUDGMENT DATED 28.08.2015 IN ITA 707/2014 TITLED: C IT VS KABUL CHAWLA . THEREFORE, WE CONCUR WITH THE ITATS OPINION IN THIS REGARD. 23. IN VIEW OF THE ABOVE, WE HOLD THAT SINCE NO INC RIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH THAT TOOK PLACE I N CASE OF APPELLANT ON THE ABOVE ISSUE, THE ASSESSING OFFICER COULD NOT HAVE M ADE ANY ADDITION IN THE ORDER PASSED U/S 143(3) R.W.S. 153A OF THE ACT. HEN CE, THE CIT HAD NO JURISDICTION TO REVISE THE ASSESSMENT ORDER ON THE GROUND THAT THE SAID ISSUE WAS NOT CONSIDERED BY THE ASSESSING OFFICER. 24. THEREFORE, IN VIEW OF THE DECISION, WE ARE OF T HE VIEW THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH, THE ASSESSING OFFICER CAN MAKE ANY ADDITION U/S 143(3) R.W.S. 153 A OF THE ACT. HENCE THE CIT HAS UNDER JURISDICTION TO REVISE THE ASSESSMENT ON THE GROUND THAT ISSUE WAS NOT CONSIDERED BY THE ASSESSING OFFICER. (II) CIT HAS REVISED THE ASSESSMENT ORDER PASSED U/S 143 (3) R.W.S. 153A OF THE ACT WITHOUT REVISING THE APPROVAL GRANT ED BY ADDL. CIT 25. WE FIND THAT ASSESSMENT ORDER U/S.143 R.W.S.153 A OF THE ACT WAS PASSED AFTER GETTING APPROVAL OF ACIT AS PER PROVISIONS OF SECTION 153D OF THE ACT. WE FIND THAT THE ORDER U/S.143A R.W.S. 153 OF THE A CT CANNOT REVISE WITHOUT REVISING THE APPROVAL OF ACIT. WE FIND THAT AS PER THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. DR. ASH OK KUMAR IN I.T. APPEAL NO.192 OF 2000 WHEREIN IT IS HELD THAT THE ASSESSME NT ORDER APPROVED BY THE ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 23 ACIT U/S.153D OF THE ACT CANNOT SUBJECT TO REVISION U/S.263 OF THE ACT.THE LEARNED DR COULD NOT FILE ANY EVIDENCE TO SHOW THAT SUCH PERMISSION WAS REVISED BY ACIT IN PRESENT CASE, THEREFORE, CIT CAN NOT REVISE THE ORDER PASSED BY AO U/S.153 OF THE ACT. AS PER SECTION 153A OF T HE ACT. 26. TRIBUNAL IN CASE OF TRINITY INFRA VENTURES LTD V. DCIT CC 2(1) IN ITA NOS. 584-589/HYD/2015 DATED 04.12.2015 WHEREIN, THE HONBLE TRIBUNAL HAS HELD THAT THE ASSESSMENT ORDER PASSED U/S 143(3) R. W.S. 153A OF THE ACT CANNOT BE REVISED WITHOUT REVISING THE APPROVAL OF ADDL. C IT: 5.4. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER S UBMITTED THAT THE ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 153C WAS PASSED AFTER GETTING APPROVAL OF ADDL. CIT UNDER SECTION 153D OF THE I.T. ACT AND THEREFORE SUCH AN ASSESSMENT CANNOT BE REVISED WITHOUT REVISING THE D IRECTIONS OF THE ADDL. CIT UNDER SECTION 153D OF THE I.T. ACT . THE LD. COUNSEL FOR THE ASSESSEE, HAS RELIED UPON THE DECIS IONS OF THIS TRIBUNAL IN THE CASE OF CH. KRISHNA MURTHY VS. ACIT, C.C. 3, HYDERABAD IN ITA NO. 766/HYD/2012 DATED 13.02.2015 AND ALSO THE DECISION OF LUCKNOW BENCH O F ITAT IN THE CASE OF MEHTABALAM 288/LUCK/2014 DATED 18.11 .2014 IN SUPPORT OF THIS CONTENTION. HE HAS ALSO PLACED RELIANCE UPON THE DECISION OF HONBLE ALLAHABAD HIGH COURT I N THE CASE OF CIT VS. DR. ASHOK KUMAR IN I.T. APPEAL NO. 192 OF 2000 WHEREIN IT HAS BEEN HELD THAT THE ASSESSMENT O RDER APPROVED BY THE ADDL. CIT UNDER SECTION 153D, CANNO T BE SUBJECTED TO REVISION UNDER SECTION 263 OF THE I.T. ACT. IN VIEW OF THE ABOVE DECISION ALSO, WE HOLD THAT THE R EVISION ORDER UNDER SECTION 263 OF THE I.T. ACT IS NOT SUST AINABLE. ACCORDINGLY, WE ALLOW THE GROUNDS OF THE ASSESSEE . 27. HONBLE TRIBUNAL IN CASE OF DHARIWAL INDUSTRIES LTD V. CIT IN ITA NOS. 1108-1113/PN/2014 DATED 23.12.2016 WHEREIN, TH E HONBLE TRIBUNAL HELD AS UNDER: 9. REFERRING TO THE DECISION OF THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF M/S. TRINITY INFRA VENTURES LTD. VS. DCIT VIDE ITA NOS. 584 TO 589/H/2015 ORDER DATED 04 -12- 2015 FOR A.YRS. 2005- 06 TO 2010-11 HE SUBMITTED TH AT THE TRIBUNAL IN THE SAID DECISION, FOLLOWING VARIOUS DE CISIONS ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 24 INCLUDING THE DECISION OF HONBLE ALLAHABAD HIGH CO URT IN THE CASE OF CIT VS. DR. ASHOK KUMAR VIDE INCOME TAX APPEAL NO.192/2000 ORDER DATED 06-08-2012, HAS HELD THAT ASSESSMENT ORDER APPROVED BY THE ADDL.CIT U/S.153D CANNOT BE SUBJECTED TO REVISE U/S.263 OF THE I.T. ACT. 12. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE LD.CIT AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. 14. WE FIND MERIT IN THE ABOVE SUBMISSION OF THE LD . COUNSEL FOR THE ASSESSEE. WE FIND THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF MEHTABALAM VS. ACIT VIDE ITA NOS.288 TO 294/LKW/2014 ORDER DATED 18-11-2014 WHILE DECIDING AN IDENTICAL ISSUE HAS OBSERVED AS UNDER. 14.1 WE FIND THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF CH. KRISHNA MURTHY VS. ACIT VIDE ITA NO.766/HYD/ 2012 ORDER DATED 13-02-2015 FOLLOWING THE DECISION OF TH E LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF MEHTABALAM (SU PRA) HELD THAT CIT IS NOT JUSTIFIED IN ASSUMING JURISDICTION U/S.263 WHEN THE ORDER HAS BEEN PASSED IN TERMS OF SECTION 153D OF THE ACT. 14.2 WE FIND THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF M/S. TRINITY INFRA VENTURES LTD. (SUPRA) HAD AN OCCASION TO DECIDE AN IDENTICAL ISSUE AND IT HELD THAT THE ASSE SSMENT ORDER APPROVED BY THE ADDL.CIT U/S.153D CANNOT BE SUBJECT TO REVISION U/S.263 OF THE I.T. ACT. THE RELEVANT OBSE RVATION OF THE TRIBUNAL AT PARA 5.4 OF THE ORDER READS AS UNDE R. 28. SINCE IN THE INSTANT CASE ALSO THE ASSESSING OF FICER HAS PASSED THE ORDER AFTER OBTAINING NECESSARY APPROVAL FROM ADDL.CIT U/ S.153D OF THE I.T. ACT, THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE-MENTION ED DECISIONS OF THE COORDINATE BENCHES OF THE TRIBUNAL WE ARE OF THE CO NSIDERED OPINION THAT THE CIT HAS NO POWER TO REVISE THE ORDER U/S.263 OF THE I.T. ACT IN THE INSTANT CASE SINCE THE SAME HAS BEEN PASSED WITH THE APPROVAL OF THE ADDL.CIT U/S.153D OF THE I.T. ACT. WE RESPECTFULLY FOLLOWING THE DECISIO N OF ACIT VS.DR. ASHOK KUMAR, ITA 192 OF 2000. WE FIND THAT IN THE INSTAN T CASE THE ORIGINAL APPROVAL ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 25 WAS GRANTED BY ADDL. CIT AND THIS ASSESSMENT ORDER IS CANNOT BE REVISE WITHOUT APPROVAL OF ADD. CIT. (III) CIT HAS NOT CONDUCTED ANY ENQUIRY BEFORE DIRECTING THE ASSESSING OFFICER TO DECIDE THE ISSUES AFRESH 29. IT HAS BEEN SUBMITTED BY THE LEARNED AR THAT A SHOW-CAUSE NOTICE DATED 09.02.2017 WAS ISSUED TO THE APPELLANT WHEREIN, THE CIT PROPOSED TO REVISE THE ASSESSMENT ORDERS ON CERTAIN ISSUES. IN REPLY DATED 23.02.2017 TO THE SHOW CAUSE NOTICE, THE APPELLANT FILED DETAILED REPLY ON ALL THE ISSUES RAISED BY THE CIT IN THE SHOW CAUSE NOTICE ISSUED. IT WAS HELD BY THE CIT THAT TAKING INTO ACCOUNT THE REPLY OF APPELLANT, IT CAN BE CONCLUDED THAT THE ORDER OF ASSESSING OFFICER IS NOT ERRONEOUS AND PREJUDICIAL TO THE INT EREST OF REVENUE. 30. IT IS SUBMITTED BY THE LEARNED AR THAT THE CIT, IN HIS ORDER, MERELY NOTED THAT THE APPELLANT HAS FILED REPLY IN RESPONS E TO THE SHOW CAUSE NOTICE. IT IS SUBMITTED THAT THE CIT HAS NOT CAUSED ANY PRELIM INARY ENQUIRY AS TO WHY THE REPLY FURNISHED BY APPELLANT IS NOT CORRECT. IT IS FURTHER SUBMITTED THAT NO REASON HAS BEEN GIVEN BY THE CIT AS TO WHY THE EXPLANATION OF THE APPELLANT THAT THE ORDER PASSED BY THE A.O WAS NOT ERRONEOUS AND PREJU DICIAL TO THE INTEREST OF THE REVENUE ON THIS ISSUE ON WHICH IT WAS SOUGHT TO BE REVISED. HE HAS MERELY STATED IN THE ORDER THAT ASSESSING OFFICER HAS NOT CALLED FOR ANY DETAILS AND HAS NOT EXAMINED THE ISSUE AND DIRECTED THE ASSESSING O FFICER TO EXAMINE THE ISSUE AFRESH. 31. IT IS SUBMITTED THAT AS PER PROVISIONS OF S. 26 3 OF THE ACT, POWERS HAVE BEEN GIVEN TO CIT TO CALL FOR DETAILS FROM APPELLAN T AND PROVIDE APPELLANT AN OPPORTUNITY FOR HEARING. IT IS SUBMITTED THAT THE V ERY PURPOSE OF GIVING CIT THE POWER TO CALL FOR DETAILS AND TO PROVIDE OPPORTUNIT Y OF HEARING TO APPELLANT WOULD SHOW THAT THE CIT HAS TO CONDUCT SOME ENQUIRY U/S.263 OF THE ACT BEFORE COMING TO CONCLUSION THAT THE ORDER PASSED B Y ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE. I T IS SUBMITTED THAT THE CIT HAS TO APPLY HIS MIND TO THE REPLIES FILED BY APPELLANT DURING THE COURSE OF ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 26 PROCEEDINGS U/S.263 OF THE ACT AND AFTER DUE APPLIC ATION OF MIND HE MAY PROCEED TO DIRECT THE ASSESSING OFFICER TO DECIDE T HE ISSUE DE-NOVO. 32. THE LEARNED DR HAS RELIED UPON FOLLOWING DECISI ONS IN SUPPORT OF HIS ARGUMENTS THAT SINCE THE ASSESSING OFFICER HAS NOT CONDUCTED ANY ENQUIRY, THE ORDER PASSED BY ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO INTEREST OF REVENUE: I. CIT V. BALLARPUR INDUSTRIES LTD. [2017 TAXPUB (DT) 4015 (BOM- HC) / 85 TAXMANN.COM 10] II. BASSERA REALTORS (P.) LTD. V CIT [163 TTJ 736 (CHAN DIGARH)] III. SUBHLAKSHMIVANIJYA P. LTD. V CIT (155 ITD 171) IV. CIT V ASHOK LOGANI [347 ITR 22 (DEL)] V. RAJMANDIR ESTATES (P.) LTD. V PR.CIT [77 TAXMANN.CO M 285 (SC)] VI. INTAS PHARMACEUTICALS LTD. V DCIT [148 ITD 26 (AHD) . 33. IN REPLY TO DRS ARGUMENT, LEARNED AR SUBMITTED THAT IN CASE OF CIT V. BALLARPUR INDUSTRIES LTD. THE ORDER PASSED BY THE CIT U/S. 263 OF THE ACT WA S UPHELD FOR THE REASON THAT THE ASSESSING OFFICER HA D FAILED TO CAUSE INQUIRY. IT WAS NOT A CASE WHERE ALL DETAILS WERE FILED BEFORE CIT AND THE CIT HAD NOT APPLIED HIS MIND TO THE DETAILS FILED BY APPELLANT. SIMILARLY THE CASE OF SUBHLAKSHMIVANIJYA P. LTD. V CIT AND CIT V ASHOK LOGANI AND RAJMANDIR ESTATES (P.) LTD. V PR.CIT AND INTAS PHARMACEUTICALS LTD. V DCIT THE ORDER PASSED BY THE CIT U/S. 263 OF THE ACT WAS UPHELD FOR THE REASON THAT THE ASSESSING OFFICER HAD FAILED TO CAU SE INQUIRY. IT WAS NOT A CASE WHERE ALL DETAILS WERE FILED BEFORE CIT AND THE CIT HAD NOT APPLIED HIS MIND TO THE DETAILS FILED BY APPELLANT. IN THE CASE OF BASSERA REALTORS (P.) LTD. V CIT IS THE HONBLE TRIBUNAL HELD THAT THE CIT HAD ANALY SED THE DOCUMENTS FURNISHED BEFORE HIM AND THUS, THE HONBLE TRIBUNAL REJECTED THE CONTENTION RAISED BY THE APPELLANT THAT CIT HAD NOT EXAMINED A NYTHING. 34. FURTHER, THE LD. DR VIDE LETTERS DATED 11.01.20 18 AND 24.01.2018 OBSERVED THAT EXPLANATION 2 HAS BEEN AMENDED BY FIN ANCE ACT 2015 W.E.F. ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 27 01.06.2015. THEREFORE, IF THE ORDER U/S.263 PASSED EITHER BEFORE OR AFTER 01.06.2015, THE WORDS DECLARED AND SHALL BE ARE REMAINING IN THE FRAMEWORK OF THE ACT. THEREFORE, THE INTENTION OF THE LEGISLATURE WAS CLEAR THAT THE COMMISSIONER OF INCOME-TAX HAS THE POWER TO MAK E REVISION OF THE ORDER OF THE AO IF IT IS ERRONEOUS AND PREJUDICIAL TO INT EREST OF REVENUE. IN THIS CONNECTION, IT WAS POINTED OUT BY THE LD. AR THAT T HOUGH THERE IS AN AMENDMENT IN THE PROVISIONS OF SECTION 263 OF THE I .T.ACT, BUT THE BASIC INGREDIENTS OF THE PROVISIONS REMAINS THE SAME. TH E LD. CIT HAS NOT CONDUCTED ANY INQUIRY IN THE MATTER AND SIMPLY SET ASIDE THE ORDER. THE AMENDMENT IN THE PROVISIONS OF SECTION 263 OF THE A CT THEREFORE HAS NO IMPACT IN THE APPELLANTS MATTER. 35. THE LD. DR HAS ALSO RELIED ON THE JUDGMENT OF H ONBLE MUMBAI TRIBUNAL IN THE CASE OF AMBRISHMANOJDHUPELIA VS. DY. CIT , MUMBAI 87 TAXMANN.COM 195 (MUMBAI- TRIB.) WHERE THE ISSUES IN VOLVED IN THIS APPEAL WERE DECIDED ON MERIT. IN THE APPELLANTS CASE, TH E ISSUES ARE BEING AGITATED ON THE BASIS OF LEGALITY OF PROVISIONS OF SECTION 263 OF THE ACT. THE RATIO OF THIS JUDGMENT HAS THEREFORE NO APPLICABILITY IN THE APPE LLANTS CASE. 36. THE DR FURTHER RELIED ON THE JUDGMENT OF HONBL E SUPREME COURT IN THE CASE OF CIT VS. AMITABH BACHCHAN (2016) 69 TAXMANN.COM 170 (SC). IN RESPECT OF THIS JUDGMENT, THE HONBLE SUPREME COURT HAS HELD THAT BEFORE PASSING 263 ORDER BY COMMISSIONER, THE PROPER AND R EASONABLE OPPORTUNITY OF BEING HEARD SHOULD BE GIVEN TO THE APPELLANT. IN T HIS CONNECTION, IT IS POINTED OUT THAT THE APPELLANT HAD NOT RAISED THE ISSUE OF NOT ALLOWING PROPER AND REASONABLE OPPORTUNITY TO THE APPELLANT IN THE MATT ER BEFORE PASSING THE ORDER U/S.263. THUS, THE RATIO OF THIS JUDGMENT HAS ALSO THEREFORE NO APPLICABILITY TO THE FACTS OF THE APPELLANTS CASE. 37. WE HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PART IES AND WE FIND THAT U/S.263 OF THE ACT, POWER HAS BEEN GIVEN TO CIT TO CALL FOR DETAILS OF THE ASSESSEE AND PROVIDE ASSESSE WITH AN OPPORTUNITY OF HEARING. THE CIT HAS ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 28 POWER TO CALL FOR DETAILS AND TO PROVIDE OPPORTUNIT Y OF HEARING TO THE ASSESSEE WOULD SHOW THAT CIT HAS TO CONDUCT SOME ENQUIRY U/S .263 OF THE ACT. BEFORE COMING TO THE CONCLUSION THAT THE ORDER PASSED BY T HE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E, WE ARE OF THE VIEW THAT THE CIT HAS TO APPLY HIS MIND TO THE REPLY FILED BY THE ASSESSEE DURING THE COURSE OF PROCEEDING U/S.263 OF THE ACT AND AFTER DUE APPL ICATION OF THE MIND HE MAY PROCEED TO DIRECT THE DECIDE AN ISSUE DENOVO. THE HONBLE DELHI HIGH COURT IN CASE OF CIT V. DELHI AIRPORT METRO EXPRESS IN ITA NO. 705 OF 2017 DATED 05.09.2017, THE HONBLE COURT HAS HELD AS UNDER: 9. IT IS SEEN, IN THE ORDER DATED 30 TH MARCH, 2016, THE PCIT HAS PROCEEDED BY SETTING OUT THE CONTENTS OF SCN AN D THE CONTENTS OF REPLY GIVEN BY THE ASSESSEE. IT APPEARS THAT NO INQUIRY, AS SUCH, WAS UNDERTAKEN BY THE PCIT TO COM E TO CONCLUSION THAT THE ORIGINAL ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE R EVENUE . 10. FOR THE PURPOSE OF EXERCISING JURISDICTION UNDE R SECTION 263 OF THE ACT, THE CONCLUSION THAT THE ORD ER OF THE A.O IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS O F THE REVENUE HAS TO BE PRECEDED BY SOME MINIMAL INQUIRY. IN FACT, IF THE PCIT IS OF THE VIEW THAT THE A.O DID N OT UNDERTAKE ANY INQUIRY, IT BECOMES INCUMBENT ON THE PCIT TO CONDUCT SUCH INQUIRY . 11. IN THE CONSIDERED VIEW OF THE COURT, THIS CAN H ARDLY CONSTITUTE THE REASONS REQUIRED TO BE GIVEN BY THE PCIT TO JUSTIFY THE EXERCISE OF JURISDICTION UNDER SECTION 263 OF THE ACT. IN THE CONTEXT OF THE PRESENT CASE IF, AS URGE D BY THE REVENUE, THE ASSESSEE HAS WRONGLY CLAIMED DEPRECIAT ION ON ASSETS LIKE LAND AND BUILDING, IT WAS INCUMBENT UPO N THE PCIT TO UNDERTAKE AN INQUIRY AS REGARDS WHICH OF TH E ASSETS WERE PURCHASED AND INSTALLED BY THE ASSESSEE OUT OF ITS OWN FUNDS DURING THE AY IN QUESTION AND, WHICH WERE THO SE ASSETS THAT WERE HANDED OVER TO IT BY THE DMRC. THAT BASIC EXERCISE OF DETERMINING TO WHAT EXTENT THE DEPRECIA TION WAS CLAIMED IN EXCESS HAS NOT BEEN UNDERTAKEN BY THE PC IT. 12. MR. ASHEESH JAIN THEN VOLUNTEERED THAT THE PCIT HAD EXERCISED THE SECOND OPINION AVAILABLE TO HIM U NDER ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 29 SECTION 263(1) OF THE ACT BY SENDING THE ENTIRE MAT TER BACK TO THE A.O FOR A FRESH ASSESSMENT. THAT OPTION, IN THE CONSIDERED VIEW OF THE COURT, CAN BE EXERCISED ONLY AFTER THE PCIT UNDERTAKES AN INQUIRY HIMSELF IN THE MANNE R INDICATED HEREINBEFORE. THAT IS MISSING IN THE PRES ENT CASE. (EMPHASIS SUPPLIED) 38. THE ORDER PASSED BY THE CIT THE ABOVE CASE WAS DATED 31.03.2016 AND HENCE THE AMENDMENT MADE ON 01.06.2015 IN EXPLANATI ON 2 OF SECTION 263 OF THE ACT WAS VERY MUCH AVAILABLE ON THAT DAY. 39. THE HONBLE TRIBUNAL IN CASE OF METACAPS ENGINEERING AND MAHENDRA CONSTRUCTION CO V. CIT IN ITA NO. 2895/MUM/2014 DATED 11.09.2017 HELD AS UNDER: 13. HOWEVER, WE FIND THAT THE CIT WITHOUT POINTIN G OUT ANY INFIRMITY IN THE REPLY/EXPLANATION OF THE A SSESSEE, AND AS TO WHY THE SAME COULD NOT BE ACCEPTED HAD RA THER HUSHED THROUGH THE MATTER AND CONCLUDED THAT THE ASSESSMENT ORDER PASSED BY THE A.O WAS FOUND TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. 14 . WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORD ER PASSED BY THE CIT AND ARE UNABLE TO PERSUADE OURSEL VES TO UPHOLD THE SAME. WE FIND THAT AS PER THE MANDATE OF SEC. 263, A STATUTORY OBLIGATION IS CAST UPON THE CIT TO AFFORD AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, BEFO RE AN ORDER PASSED BY THE A.O IS REVISED IN EXERCISE OF T HE REVISIONAL JURISDICTION VESTED WITH HIM UNDER THE S AID STATUTORY PROVISION. THE UNDERLYING PURPOSE OF AFFO RDING OF SUCH AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IS TO GIVE AN OPPORTUNITY TO HIM TO EXPLAIN AS TO HOW THE ORDER PASSED BY THE A.O ON THE ISSUES ON WHICH THE SAME I S SOUGHT TO BE REVISED BY THE CIT, IS NOT ERRONEOUS A ND PREJUDICIAL TO THE INTEREST OF THE REVENUE. WE ARE OF THE CONSIDERED VIEW THAT THE VERY PURPOSE OF AFFORDING OF AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, ON THE ISSUES ON WHICH THE ORDER PASSED BY THE A.O IS SOUGHT TO BE R EVISED BY THE CIT WOULD BE LOST AND RENDERED OTIOSE, IN CA SE THE ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 30 REPLY OF THE ASSESSEE EXPLAINING AS TO WHY THE ORDE R SOUGHT TO BE REVISED IS NOT ERRONEOUS AND PREJUDICIAL TO T HE INTEREST OF THE REVENUE IS NOT JUDICIALLY DELIBERAT ED UPON BY THE CIT. WE ARE OF THE CONSIDERED VIEW THAT IT IS OBLIGATORY ON THE PART OF THE CIT TO CONSIDER THE R EPLY OF THE ASSESSEE IN RESPECT OF THE ISSUES ON WHICH THE ORDER OF THE A.O IS SOUGHT TO BE REVISED BY HIM . . WE THOUGH ARE NOT OBLIVIOUS OF THE FACT THAT THE VIEW THAT AN ORDER PASSED BY THE A.O IS FOUND TO BE ERRONEOUS AND PREJ UDICIAL TO THE INTEREST OF THE REVENUE REMAINS WITHIN THE E XCLUSIVE REALM OF THE WISDOM OF THE CIT, BUT THEN THE LEGISLATURE BY CONTEMPLATING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, CAN THUS SAFELY BE HELD TO HAVE PRESUPPOS ED DUE APPLICATION OF MIND BY THE REVISIONAL AUTHORITY BEF ORE REVISING THE ORDER PASSED BY THE A.O. WE ARE OF THE CONSIDERED VIEW THAT THE CIT AFTER RECEIVING THE REPLY/OBJECTIONS OF THE ASSESSEE IN RESPECT OF THE ISSUES ON WHICH THE ORDER OF THE A.O IS SOUGHT TO BE REVISED, IN ALL FAIRNESS, IS REQUIRED TO DELIBERATE ON THE SAME, AN D THEREAFTER ON THE BASIS OF LOGICAL REASONING CONCLU DE AS TO WHETHER IN THE BACKDROP OF THE REPLY/EXPLANATION OF THE ASSESSEE CAN THE ORDER OF THE A.O BE CHARACTERIZED AS BOTH ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF T HE REVENUE. . WE ARE AFRAID THAT IN THE CASE OF THE P RESENT ASSESSEE, THOUGH THE CIT HAD PLACED ON RECORD THE R EPLY OF THE ASSESSEE IN RESPECT OF THE ISSUES ON WHICH T HE ORDER PASSED BY THE A.O WAS SOUGHT TO BE REVISED AND HAD ALSO REFERRED ABOUT THE SAME IN THE BODY OF HIS ORDER PA SSED UNDER SEC. 263, HOWEVER, NEITHER ANY REASON HAD BEE N GIVEN BY THE CIT, NOR IT CAN BE GATHERED FROM THE IMPUGNED ORDER, AS TO WHY THE EXPLANATION OF THE ASSESSEE THAT THE ORDER PASSED BY THE A.O WAS NOT ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE ON THE ISSUES ON WHICH IT WAS SOUGHT TO BE REVISED, WAS NOT FOUND TO BE ACCEPTABLE. WE ARE OF THE CONSIDERED VIEW THAT IN THE BACKDROP OF THE EXPLANATION/OBJECT IONS FILED BY THE ASSESSEE DURING THE COURSE OF REVISION AL PROCEEDINGS IN RESPECT OF CERTAIN ISSUES ON WHICH T HE CIT ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 31 HAD SOUGHT TO REVISE THE ORDER PASSED BY THE A.O UN DER SEC. 143(3), THE CIT HAD FAILED TO POINT OUT AS TO HOW THE ORDER OF THE A.O WAS FOUND TO BE ERRONEOUS. WE AR E OF THE CONSIDERED VIEW THAT IN THE ABSENCE OF CLEAR OBSERVATIONS OF THE CIT AS TO HOW THE ORDER OF THE A.O AFTER CONSIDERING THE EXPLANATION/OBJECTIONS FILED BY THE ASSESSEE WAS FOUND TO BE ERRONEOUS IN RESPECT OF TH E SAID RESPECTIVE ISSUES, THUS, CAN SAFELY BE HELD TO HAVE FAILED THE FUNDAMENTAL REQUIREMENT FOR VALID ASSUMPTION OF JURISDICTION AS PER THE MANDATE OF LAW. WE FIND OUR AFORESAID VIEW TO BE SUPPORTED BY THE JUDGMENT OF T HE HONBLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. VIKAS POLYMERS (2012) 341 ITR 537 (DEL). 40. ACCORDINGLY, WE HOLD THAT THE CIT HAS TO CONDUC T MINIMAL INQUIRY BY EXAMINING THE DETAILS FILED BY APPELLANT AND AFTER DUE APPLICATION OF MIND ON THE DETAILS AND REPLIES FILED BY APPELLANT HAS TO C OME TO A CONCLUSION THAT THE ORDER PASSED BY ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. (IV) SPECIFIC CONTENTION FOR GROUND NO 5 I.E.UNDISCLOSED BANK ACCOUNT WITH JP MORGAN 41. APART FROM THE CONTENTION RAISED ABOVE, FURTHER SPECIFIC SUBMISSIONS HAVE BEEN MADE BY THE APPELLANT AS CERTAIN DOCUMENT S WERE SEIZED FROM THE RESIDENCE OF MS.PRITI MILAN MEHTA, THE EX-WIFE OF A PPELLANT. IN THIS CONNECTION, IT IS POINTED OUT THAT DURING THE COURS E OF SEARCH AT THE PREMISES OF MS.PRITI MILAN MEHTA, CERTAIN PAGES WERE SEIZED OUT OF WHICH PAGE 118 TO 127 PERTAIN TO SWISS BANK ACCOUNT STATEMENT WITH JP MOR GAN IN THE NAME OF APPELLANT. IT WAS HELD BY CIT THAT SINCE, THIS ACCO UNT WAS NOT DISCLOSED BY APPELLANT IN HIS RETURN OF INCOME THE ASSESSING OFF ICER HAD NOT EXAMINED THE SAID BANK ACCOUNT AND THE ORDER WAS ERRONEOUS AND P REJUDICIAL TO INTEREST OF REVENUE AND HE DIRECTED THE ASSESSING OFFICER TO EX AMINE THE ISSUE AFRESH. 42. IT IS SUBMITTED BY THE LEARNED AR THAT CERTAIN ALLEGEDLY INCRIMINATING DOCUMENTS WERE FOUND FROM THE SEARCH CONDUCTED IN P REMISES OF MS.PRITIMILAN ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 32 MEHTA 11.03.2014. IT IS SUBMITTED THAT MS.PRITI MIL AN MEHTA IS EX-WIFE OF APPELLANT. THEY WERE DIVORCED ON 04.09.2009. IT IS SUBMITTED THAT THE DOCUMENTS ARE NOT FOUND FROM THE SEARCH CONDUCTED I N CASE OF APPELLANT. HENCE, WITH RESPECT TO THE CURRENT ASSESSMENT YEAR, THE ASSESSING OFFICER WOULD HAVE NO JURISDICTION TO MAKE ANY ADDITION PER TAINING TO THE SAID BANK ACCOUNT SINCE THE SAID DOCUMENT HAS NOT BE FOUND DU RING THE COURSE OF SEARCH CONDUCTED IN CASE OF APPELLANT. 43. IT IS FURTHER SUBMITTED THAT AS PER S. 153A OF THE ACT, THE ASSESSING OFFICER HAS TO ASSESSES THE INCOME FOUND DURING THE COURSE OF SEARCH S. 132 OF THE ACT CONDUCTED IN CASE OF APPELLANT. ON A CONJOI NT READING OF S. 153A AND S. 132 OF THE ACT, IT IS EVIDENT THAT THE PURPOSE O F S. 132 OF THE ACT IS TO UNEARTH THE DOCUMENTS IN POSSESSION OF APPELLANT WH ICH HAVE NOT BEEN DISCLOSED BY HIM IN HIS RETURN OF INCOME. THE PURPO SE OF S. 153A OF THE ACT IS TO TAX THE INCOME FROM THOSE DOCUMENTS WHICH HAVE N OT BEEN DISCLOSED BY APPELLANT. AT THIS STAGE, IT WOULD BE RELEVANT TO R EFER TO THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN CASE OF CIT V. ALL CARGO GLOBAL LOGISTICS LTD (375 ITR 645) WHEREIN IT WAS HELD AS UNDER: 31. WE, THEREFORE, HOLD THAT THE SPECIAL BENCH'S UNDERSTANDING OF THE LEGAL PROVISION IS NOT PERVERS E NOR DOES IT SUFFER FROM ANY ERROR OF LAW APPARENT ON TH E FACE OF THE RECORD. THE SPECIAL BENCH IN THAT REGARD HELD A S UNDER : '48. THE PROVISION UNDER SECTION 153A IS APPLICABLE WHERE A SEARCH OR REQUISITION IS INITIATED AFTER 31.5.200 3. IN SUCH A CASE.. 50. THE PROVISION CONTAINED IN SECTION 132 (1) EMPO WERS THE OFFICER TO ISSUE A WARRANT OF SEARCH OF THE PRE MISES OF A PERSON WHERE ANY ONE OR MORE OF CONDITIONS MENTIONE D THEREIN IS OR ARE SATISFIED, I.E. - (A) SUMMONS OR NOTICE HAS BEEN ISSUED TO PRODUCE BOOKS OF ACCOUNT OR OTHER DOCUMENTS BUT SUCH BOOKS OF ACCOUNT OR DOCUMENTS HA VE NOT BEEN PRODUCED, (B) SUMMONS OR NOTICE HAS BEEN O R ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 33 MIGHT BE ISSUED, HE WILL NOT PRODUCE THE BOOKS OF A CCOUNT OR OTHER DOCUMENTS MENTIONED THEREIN, OR (C) HE IS IN POSSESSION OF ANY MONEY OR BULLION ETC. WHICH REPRE SENTS WHOLLY OR PARTLY THE INCOME OR PROPERTY WHICH HAS N OT BEEN AND WHICH WOULD NOT BE DISCLOSED FOR THE PURPOSE OF ASSESSMENT, CALLED AS UNDISCLOSED INCOME OR PROPERT Y. WE FIND THAT THE PROVISION IN SECTION 132 (1) DOES NOT USE THE WORD 'INCRIMINATING DOCUMENT'. CLAUSES (A) AND (B) OF SECTION 132(1) EMPLOY THE WORDS 'BOOKS OF ACCOUNT O R OTHER DOCUMENTS'. FOR HARMONIOUS INTERPRETATION OF THIS PROVISION WITH PROVISION CONTAINED IN SECTION 153A, ALL THE THREE CONDITIONS ON SATISFACTION OF WHICH A WARRANT OF SEARCH CAN BE ISSUED WILL HAVE TO BE TAKEN INTO ACCOUNT. FROM THE ABOVE EXTRACT OF THE DECISION, IT IS CLEAR THAT THE PURPOSE OF SEARCH IS TO UNEARTH INCR IMINATING DOCUMENTS IN POSSESSION OF APPELLANT. IT MEANS THAT THE INCRIMINATING DOCUMENTS SHOULD BE PRESENT IN THE PR EMISES OF APPELLANT. IT IS SUBMITTED THAT ASSESSING OFFICE R WOULD HAVE JURISDICTION TO MAKE ADDITIONS ON THE BASIS OF THOSE INCRIMINATING DOCUMENTS U/S 153A OF THE ACT. HENCE, IT IS SUBMITTED THAT, IN RESPECT OF NON-ABATED YEARS, ADD ITIONS CAN ONLY BE MADE ON BASIS OF INCRIMINATING DOCUMENTS FO UND IN CASE OF SEARCH OF APPELLANT. IT IS SUBMITTED THAT I F DOCUMENTS ARE FOUND FROM SEARCH IN CASE OF OTHER PERSON THEN NO ADDITIONS COULD HAVE BEEN MADE ON THE BASIS OF THOS E DOCUMENTS SINCE THE SAME CANNOT BE CONSIDERED AS INCRIMINATING DOCUMENTS FOUND FROM SEARCH CONDUCTED IN CASE OF APPELLANT. 44. IT CAN BE INFERRED FROM THE ABOVE DECISION THAT TO MAKE ADDITION U/S 153A OF THE ACT IN RESPECT OF NON-ABATED YEARS, TWO COND ITIONS HAVE TO BE FULFILLED; I) THE ADDITIONS HAVE TO BE MADE ON THE BASIS OF INCRI MINATING MATERIAL AND; II) THE INCRIMINATING MATERIAL SHOULD BE FOUND DURING T HE COURSE OF SEARCH IN CASE OF APPELLANT AND NOT ANY OTHER PERSO N. 45. IN THE PRESENT CASE, THE DOCUMENT WAS FOUND DUR ING THE COURSE OF SEARCH IN THE CASE OF THIRD PARTY, HENCE, THE SAME COULD N OT BE CONSIDERED AS INCRIMINATING DOCUMENT FOUND DURING THE COURSE OF APPELLANTS SEARCH. IN VIEW OF THE ABOVE, IT IS SUBMITTED THAT NO INCRIMINATING DOCUMENT PERTAINING TO THE ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 34 ISSUES REVISED BY THE CIT WAS FOUND DURING THE COUR SE OF SEARCH AND HENCE, THE PROPOSITION CANVASSED BY APPELLANT EARLIER WOULD AP PLY TO THIS ISSUE ALSO IN CASE OF APPELLANT HENCE, THE ASSESSING OFFICER HAD NO JU RISDICTION TO MAKE ADDITIONS IN RESPECT OF THOSE ISSUES U/S 143(3) R.W.S 153A OF THE ACT. AT THIS JUNCTURE, IT HAS BEEN SUBMITTED BY THE LD. DR THAT IF ANY DOCUME NT BELONGING TO APPELLANT IS FOUND IN PREMISES OF THIRD PARTY, ASSESSMENT IN CASE OF APPELLANT SHOULD BE COMPLETED U/S 143(3) R.W.S. 153C OF THE ACT. 46. WE HAVE HEARD THE RIVAL CONTENTIONS. IT IS UNDI SPUTED FACT THAT THE DOCUMENTS WERE SEIZED FROM THE RESIDENCE OF MS.PRIT I MILAN MEHTA. THE SAME FACT HAS ALSO BEEN ACCEPTED BY THE DR VIDE LETTER D ATED 05.01.2018 BELONGING TO DCIT CC-1(2), MUMBAI. 47. IF ANY DOCUMENT BELONGING TO APPELLANT IS FOUND IN PREMISES OF THIRD PARTY, ASSESSMENT IN CASE OF APPELLANT SHOULD BE CO MPLETED U/S 143(3) R.W.S. 153C OF THE ACT. HENCE, THE CORRECT COURSE OF ACTIO N WOULD BE THAT THE ASSESSING OFFICER OF MS.PRITI MILAN MEHTA SHOULD HA VE RECORDED SATISFACTION THAT THE SAID DOCUMENT DOES NOT BELONG TO HER BUT B ELONGS TO THE APPELLANT. AFTER RECORDING THE SAID SATISFACTION, THE ASSESSING OFFI CER OF MS.PRITI MILAN MEHTA SHOULD HAVE FORWARDED THE DOCUMENTS BELONGING TO TH E APPELLANT TO THE ASSESSING OFFICER IN CASE OF APPELLANT. FURTHER, TH E ASSESSING OFFICER IN CASE OF APPELLANT SHOULD HAVE RECORDED SEPARATE SATISFACTIO N THAT THE SAID DOCUMENT BELONGS TO APPELLANT. SUBSEQUENT TO RECORDING OF SU CH SATISFACTION THE ASSESSING OFFICER IN CASE OF APPELLANT SHOULD HAVE COMPLETED THE ASSESSMENT U/S 143(3) R.W.S. 153C OF THE ACT. THE CORRECT COURSE OF ACTIO N FOR MAKING ADDITION, IF ANY, ON THIS ISSUE WOULD BE MAKING ASSESSMENT U/S 143(3) R.W.S. 153C OF THE ACT. HENCE, THE ASSESSING OFFICER IN CASE OF APPELLANT C OULD NOT HAVE MADE THIS ADDITION WHILE PASSING THE ASSESSMENT ORDER U/S 143 (3) R.W.S. 153A OF THE ACT SINCE THIS ADDITION COULD ONLY HAVE BEEN MADE IF TH E ASSESSMENT ORDER WAS PASSED U/S 143(3) R.W.S. 153C OF THE ACT AFTER FOLL OWING THE ABOVE MENTIONED PROCEDURE. SINCE THE ASSESSING OFFICER COULD NOT HA VE MADE THIS ADDITION IN THE ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 35 ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 153A OF T HE ACT, NON-CONSIDERATION OF THIS ISSUE IN THE ASSESSMENT ORDER WOULD NOT MAKE T HE ORDER ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF APPELLANT. IN VIEW O F THE SAME, WE HOLD THAT THE CIT WOULD HAVE NO POWER TO INVOKE JURISDICTION U/S 263 OF THE ACT. IN RESPECT OF A.Y.2009-10:- 48. IN RESPECT OF A.Y.2009-10, WE FIND THAT THIS YE AR IS NON-ABATED YEAR THEREFORE, OUR FINDING IS SIMILAR AS DISCUSSED ABOV E. WE FIND THAT IN A.Y.2009- 10 THE SEARCH AND SEIZURE TOOK PLACE ON 11.03.2014. ASSESSEE WAS COVERED IN THE SEARCH ACTION. AS PER PROVISIONS OF SECTION 15 3 OF THE ACT, AO HAS TO REASSESS THE INCOME OF THE ASSESSEE IMMEDIATELY PRE CEDING SIX YEARS. THE ASSESSEES RETURN WAS ASSESSED U/S.143 OF THE ACT. THE ASSESSMENT YEAR THEREFORE NON-ABATED AS THE ASSESSMENT WAS CONCLUDE D U/S.143(3) OF THE ACT BEFORE DATE OF SEARCH. SINCE NO INCRIMINATING MATE RIAL WAS FOUND DURING THE COURSE OF SEARCH THAT TOOK PLACE IN THE CASE OF ASS ESSEE ON THE ISSUES INVOLVED THE AO COULD NOT HAVE MADE ANY ADDITION IN RESPECT OF A.Y. PASSED U/S.143(3) R.W.S. 153 OF THE ACT. THE CIT HAS NO JURISDICTION TO REVISE THE ISSUE ON THE GROUND THAT PARTICULAR ISSUE WAS NOT CONSIDERED BY AO. WE ALSO HELD THAT SINCE THE CIT HAS NOT REVISE THE APPROVAL IN THE PRESENT CASE THE CIT SHOULD NOT HAVE REVISE THE ORDER U/S.143(3) R.W.S. 153 OF THE ACT. WE ALSO HELD THAT CIT HAS TO CONDUCT MINIMAL INQUIRY BY EXAMINING THE DETAIL FIL ED BY THE ASSESSEE AFTER DUE APPLICATION OF MIND ON THE DETAIL REPLY FILED BY TH E ASSESSEE HAS TO COME TO CONCLUSION THAT ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICE IN THE INTEREST OF REVENUE. WE ALSO RELY UPON OUR ABOVE D ISCUSSION ON FORGOING PARAGRAPHS. 49. IN RESPECT OF UNDISCLOSED BANK ACCOUNT WITH JP MORGAN, WE FIND THAT THE DOCUMENT WAS FOUND FROM THE PREMISES OF MRS. PRITI MILAN MEHTA, ON 11.03.2014 EX-WIFE OF THE ASSESSEE. THEY WERE DIVO RCED ON 04.09.2009, THEREFORE THE DOCUMENT DID NOT FOUND FROM THE ASSES SEE HENCE THE AO HAS NO JURISDICTION TO MAKE AN ADDITION PERTAINING TO THE SAID BANK ACCOUNT SINCE THE ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 36 SAID DOCUMENTS WAS NOT FOUND DURING THE COURSE OF S EARCH CONDUCTED IN CASE OF THE ASSESSEE. THEREFORE AO COULD NOT HAVE MADE ADD ITION WHILE PASSING THE ORDER U/S.143(3) OF THE ACT SINCE THE ADDITION HAVE BEEN MADE IF THE ASSESSMENT ORDER PASSED U/S.143(3) R.W.S. 153C OF THE ACT. SI NCE THE AO HAS NOT MADE THIS ADDITION IN THE ASSESSMENT ORDER U/S.143 R.W.S 153 OF THE ACT. NON CONSIDERATION OF THIS ISSUE WOULD NOT MAKE THE ORDE R ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. HENCE CIT HAS NO JURIS DICTION TO INVOKE THE JURISDICTION U/S.263 OF THE ACT. IN RESPECT OF A.Y.2010-11 50. WE FIND THAT THE SEARCH TOOK PLACE ON 11.03.201 4 AS PER THE PROVISION OF SECTION 153 OF THE ACT AO HAS TO RE-ASSESS THE INCO ME FOR 6 ASSESSMENT YEARS. IN A.Y.2010-11 THE ASSESSMENT OF 2010-11 THE RETURN WAS FILED ON 20.09.2009. THE ASSESSMENT WAS COMPLETED U/S.143(3) OF THE ACT. THEREFORE, IT IS NON- ABATED YEAR. IN RESPECT OF 2011-12& 2012-13:- 51. THIS BOTH YEARS ARE NON-ABATED YEAR, THEREFORE, OUR FINDING IS AS PER THE ABOVE DISCUSSION FOREGOING PARAGRAPHS IN RESPECT OF 2013-14 & 2014-15 52. THESE TWO A.Y.S ARE ABATED YEAR. LEARNED AR A ND LEARNED DR HAS RELIED UPON THE ARGUMENT TAKEN FOR EARLIER YEARS. THE PURPOSE OF SEARCH IS TO UNEARTH INCRIMINATING DOCUMENTS IN POSSESSION OF AS SESSEE. IT MEANS THAT THE INCRIMINATING DOCUMENTS SHOULD BE PRESENT IN THE PR EMISES OF ASSESSEE. ASSESSING OFFICER WOULD HAVE JURISDICTION TO MAKE A DDITIONS ON THE BASIS OF THOSE INCRIMINATING DOCUMENTS U/S 153A OF THE ACT. HENCE, ADDITIONS CAN ONLY BE MADE ON BASIS OF INCRIMINATING DOCUMENTS FOUND I N CASE OF SEARCH OF ASSESSEE. IF DOCUMENTS ARE FOUND FROM SEARCH IN CAS E OF OTHER PERSON THEN NO ADDITIONS COULD HAVE BEEN MADE ON THE BASIS OF THOS E DOCUMENTS SINCE THE SAME CANNOT BE CONSIDERED AS INCRIMINATING DOCUMENT S FOUND FROM SEARCH CONDUCTED IN CASE OF ASSESSEE. ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 37 53. IN THE PRESENT CASE, THE DOCUMENT WAS FOUND DUR ING THE COURSE OF SEARCH IN THE CASE OF THIRD PARTY, HENCE, THE SAME COULD N OT BE CONSIDERED AS INCRIMINATING DOCUMENT FOUND DURING THE COURSE OF ASSESSEES SEARCH. IN VIEW OF THE ABOVE, NO INCRIMINATING DOCUMENT PERTAINING TO THE ISSUES REVISED BY THE CIT WAS FOUND DURING THE COURSE OF SEARCH AND HENCE , THE PROPOSITION CANVASSED BY ASSESSEE EARLIER WOULD APPLY TO THIS I SSUE ALSO IN CASE OF ASSESSEE HENCE, THE ASSESSING OFFICER HAD NO JURISDICTION TO MAKE ADDITIONS IN RESPECT OF THOSE ISSUES U/S 143(3) R.W.S 153A OF THE ACT.IT IS UNDISPUTED FACT THAT THE DOCUMENTS WERE SEIZED FROM THE RESIDENCE OF MS.PRIT I MILAN MEHTA. THE SAME FACT HAS ALSO BEEN ACCEPTED BY THE DR VIDE LETTER D ATED 05.01.2018 BELONGING TO DCIT CC-1(2), MUMBAI. 54. AT THIS JUNCTURE, IF ANY DOCUMENT BELONGING TO ASSESSEE IS FOUND IN PREMISES OF THIRD PARTY, ASSESSMENT IN CASE OF ASSE SSEE SHOULD BE COMPLETED U/S 143(3) R.W.S. 153C OF THE ACT. DOCUMENT BELONGING T O ASSESSEE WAS FOUND DURING THE COURSE OF SEARCH CONDUCTED IN PREMISES O F MS.PRITI MILAN MEHTA. HENCE, THE CORRECT COURSE OF ACTION WOULD BE THAT T HE ASSESSING OFFICER OF MS.PRITI MILAN MEHTA SHOULD HAVE RECORDED SATISFACT ION THAT THE SAID DOCUMENT DOES NOT BELONG TO HER BUT BELONGS TO THE ASSESSEE. AFTER RECORDING THE SAID SATISFACTION, THE ASSESSING OFFICER OF MS.PRITI MIL AN MEHTA SHOULD HAVE FORWARDED THE DOCUMENTS BELONGING TO THE ASSESSEE T O THE ASSESSING OFFICER IN CASE OF ASSESSEE. FURTHER, THE ASSESSING OFFICER IN CASE OF ASSESSEE SHOULD HAVE RECORDED SEPARATE SATISFACTION THAT THE SAID DOCUME NT BELONGS TO ASSESSEE. SUBSEQUENT TO RECORDING OF SUCH SATISFACTION THE AS SESSING OFFICER IN CASE OF ASSESSEE SHOULD HAVE COMPLETED THE ASSESSMENT U/S 1 43(3) R.W.S. 153C OF THE ACT. THE CORRECT COURSE OF ACTION FOR MAKING ADDITI ON, IF ANY, ON THIS ISSUE WOULD BE MAKING ASSESSMENT U/S 143(3) R.W.S. 153C O F THE ACT. HENCE, THE ASSESSING OFFICER IN CASE OF ASSESSEE COULD NOT HAV E MADE THIS ADDITION WHILE PASSING THE ASSESSMENT ORDER U/S 143(3) R.W.S. 153A OF THE ACT SINCE THIS ADDITION COULD ONLY HAVE BEEN MADE IF THE ASSESSMEN T ORDER WAS PASSED U/S ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 38 143(3) R.W.S. 153C OF THE ACT AFTER FOLLOWING THE A BOVE MENTIONED PROCEDURE. SINCE THE ASSESSING OFFICER COULD NOT HAVE MADE THI S ADDITION IN THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 153A OF T HE ACT, NON-CONSIDERATION OF THIS ISSUE IN THE ASSESSMENT ORDER WOULD NOT MAK E THE ORDER ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF ASSESSEE. IN VIEW OF THE SAME, THE CIT WOULD HAVE NO POWER TO INVOKE JURISDICTION U/S 263 OF THE ACT. 55. WE FIND THAT INCRIMINATING DOCUMENTS WERE FOUND FROM THE SEARCH CONDUCTED IN THE PREMISES OF MRS. PRITI MILAN MEHTA ON 11.03.2014. MRS. PRITI MILAN MEHTA, EX-WIFE OF THE ASSESSEE, THEY WERE DIV ORCED ON 04.09.2009. THE DOCUMENTS WERE NOT FOUND FROM THE SEARCH CONDUCTED IN THE CASE OF ASSESSEE. HENCE IN BOTH THE ASSESSMENT YEARS THE AO HAS NO JU RISDICTION TO MAKE THE ADDITION PERTAINING TO SAID BANK ACCOUNT SINCE THE DOCUMENT HAS BEEN NOT FOUND DURING THE COURSE OF SEARCH CONDUCTED IN THE CASE OF THE ASSESSEE. THE AO COULD NOT HAVE MADE ANY ADDITION IN THE ORDER PA SSED U/S.143 R.W.S.153A OF THE ACT. THEREFORE, THE AO IN CASE OF ASSESSEE COULD NOT HAVE MADE THIS ADDITION WHILE PASSING THE ORDER U/S.143(3) R.W.S.1 53. OF THE ACT. SINCE THE ADDITION COULD HAVE MADE IF THE ORDER IS PASSED U/S .143(3) R.W.S.153C OF THE ACT. SINCE THE AO COULD NOT HAVE MADE THIS ADDITION IN RESPECT OF ASSESSMENT ORDER PASSED U/S.143(3) R.W.S.153 OF THE ACT. HENC E CIT HAS NO JURISDICTION TO INVOKE SECTION 263 OF THE ACT. THEREFORE WE ARE OF THE VIEW THAT NO INQUIRY WAS CONDUCTED BY CIT SETTING ASIDE THE ORDER OF AO. THEREFORE ORDER PASSED U/S.263 OF THE ACT IS BAD IN LAW. 56. HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. DR. ASHOK KUMAR IN I.T. APPEAL NO.192 OF 2000 WHEREIN IT HAS BEEN H ELD THAT THE ASSESSMENT ORDER APPROVED BY THE ADDL. CIT UNDER SECTION 153D, CANNOT BE SUBJECTED TO REVISION UNDER SECTION 263 OF THE I.T. ACT. 57. WE RESPECTFULLY FOLLOWING THE DECISION OF HONB LE ALLAHABAD HIGH COURT AND VARIOUS TRIBUNAL DECISIONS, WE ARE OF THE VIEW THAT DR COULD NOT FILED ANY EVIDENCE TO SHOW THE CIT HAS NOT REVISE A DDL. CIT IN THE PRESENT ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 39 CASE, THEREFORE, WE ARE OF THE VIEW THAT THE CIT CO ULD NOT REVISE THE ORDER PASSED BY THE CIT U/S.153A OF THE ACT. WE ALSO HOL D THAT SINCE IN ALL THESE ASSESSMENT YEAR THEN THE CIT HAS NOT REVISE THE APP ROVAL OF CIT IN THE PRESENT CASE. THE CIT COULD HAVE NOT REVISE THE ORDER PASS ED BY AO U/S.143 R.W.S.153 OF THE ACT AS PER ABOVE DISCUSSION BY US. 58. THE NEXT CONTENTION REGARDING THAT NO ENQUIRY W AS CONDUCTED BY CIT BEFORE DECIDING THE ISSUE AFRESH. WE ALSO HELD THA T IN ALL THESE ASSESSMENT YEARS CIT HAS TO CONDUCT MINIMAL INQUIRY BY EXAMINI NG THE DETAILS BY THE ASSESSEE AND AFTER DUE APPLICATION OF MIND ON THE D ETAILS AND REPLY FILED BY THE ASSESSEE HAS TO COME TO CONCLUSION THAT ORDER PASSE D BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. WE ALS O RELIED ON THE DECISION AND DISCUSSION ON THE FOREGOING PARAGRAPH OF OUR ORDERS . WE FIND THAT U/S.263 OF THE ACT, POWER GIVEN TO CIT FOR CALL FOR DETAILS OF THE ASSESSEE AND PROVIDE ASSESSEE AN OPPORTUNITY OF HEARING. THE CIT HAS PO WER TO CALL FOR DETAILS AND TO PROVIDE OPPORTUNITY OF HEARING TO THE ASSESSEE W OULD SHOW THAT CIT HAS TO CONDUCT MINIMAL ENQUIRY BY EXAMINING THE DETAIL FIL ED BY THE ASSESSEE AND AFTER DUE APPLICATION OF MIND BY DETAILS AND REPLY FILED BY THE ASSESSEE HAS TO COME TO CONCLUSION THAT ORDER PASSED BY THE AO IS E RRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. AS PER THE DECISION O F HONBLE DELHI HIGH COURT IN CASE OF CIT V. DELHI AIRPORT METRO EXPRESS IN ITA NO. 705 OF 2017 DATED 05.09.2017. WE RESPECTFULLY FOLLOWING THE DECISION , WE ARE OF THE VIEW THAT CIT IS FAILED TO THE FUNDAMENTAL REQUIREMENT OF VAL ID PRESUMPTION OF JURISDICTION AS PER MANDATE OF LAW. THEREFORE, WE ALLOW THE APPEAL OF THE ASSESSEE. 59. IN THE RESULT ALL THE APPEALS FOR A.Y.2008-09, 2009-10, 2010-11, 2011- 12, 2012-13, 2013-14 AND 2014-15 OF THE ASSESSEE AL LOWED. ITA NO3226-3232.M.17 A.Y.2008-09 TO 2014-15 40 ORDER PRONOUNCED IN THE OPEN COURT ON 14.02.2018. SD/- SD/- (N.K.PRADHAN) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 14.02.2018. *MP. / COPY OF THE ORDER FORWARDED TO : 1. / THE ASSESSEE 2. / THE RESPONDENT. 3. ) (/ THE CIT- 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / /(DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI