Sh. Parshotam Aggarwal, Mandi Gobindgarh V. Principal Commissioner of Income Tax, Ludhiana

ITA 428/CHANDI/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0031 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 08-01-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 21-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Document seized; Period of limitation; Block assessment; Tax effect; Documents seized
• Section: 153A; 263; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 428/CHD/2015 ASSESSMENT YEAR: 2006-07 SHRI PARSHOTAM AGGARWAL, VS THE PR.CIT # 378, SECTOR 3-C, (CENTRAL), G.T.ROAD, GIRDHAR MARKET, LUDHIANA. MANDI GOBINDGARH. PAN: ABBPA0540P ITA NO. 430/CHD/2015 ASSESSMENT YEAR: 2006-07 M/S GOPAL CASTINGS P.LTD., VS THE PR.CIT GT ROAD, GIRDHAR MARKET (CENTRAL), MANDI GOBINDGARH LUDHIANA. PAN: AABCG6616N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHG AL RESPONDENT BY : SHRI SUSHIL KUMAR,CIT-DR DATE OF HEARING : 26.04.2016 DATE OF PRONOUNCEMENT : 29.04.2016 O R D E R PER BHAVNESH SAINI,JM BOTH APPEALS BY DIFFERENT ASSESSEES ARE DIRECTED AGAINST DIFFERENT ORDERS OF LD. PRINCIPAL CIT, CENT RAL LUDHIANA DATED 26.02.2015 FOR ASSESSMENT YEAR 2006- 07 UNDER SECTION 263 OF THE INCOME TAX ACT. 2. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PA RTIES, PERUSED THE FINDINGS OF AUTHORITIES BELOW AND CONSI DERED THE MATERIAL AVAILABLE ON RECORD. IT IS STATED THAT T HE ISSUE IS SAME IN BOTH THE APPEALS AND PARTIES HAVE ARGUED MA INLY IN THE CASE OF THE ASSESSEE SHRI PARSHOTAM AGGARWAL. THEREFORE, IT IS STATED THAT ORDER IN THE CASE OF SHRI PARSHOT AM 2 AGGARWAL COULD BE FOLLOWED IN THE CASE OF OTHER ASS ESSEE M/S GOPAL CASTINGS PVT. LTD. ITA 428/2015 ( SHRI PARSHOTAM AGGARWAL) 3. BRIEFLY THE FACTS OF THE CASE ARE THAT ORIGINAL RETURN IN THIS CASE WAS FILED ON 30.10.2006 DECLARING AN INCO ME OF RS. 9,13,190/-. THEREAFTER, A SEARCH UNDER SECTION 132 OF THE ACT WAS CARRIED OUT AT RESIDENTIAL PREMISES OF THE ASSESSEE AND HIS FAMILY MEMBERS ON 30.06.2010. ACCORDINGLY, A NOTICE UNDER SECTION 153A WAS ISSUED TO THE ASSESSE E IN RESPONSE TO WHICH THE ASSESSEE FILED RETURN IN PRES CRIBED FORM DECLARING SAME INCOME AS WAS DECLARED EARLIER. THE ASSESSING OFFICER ASKED FOR SEVERAL INFORMATIONS AN D PROVIDED COPIES OF THE SEIZED MATERIAL TO THE ASSES SEE. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT IS NOTICED THAT ASSESSEE PURCHASED SHARES OF M/S PRAGA TI NIRMAN PVT. LTD. (PNPL). THE ASSESSEE WAS ASKED TO FILE THE NUMBER OF SHARES AND SOURCE FOR PURCHASE. THE ASSE SSING OFFICER NOTICED THAT ASSESSEE HAD PURCHASED 1150 SH ARES OF PNPL FROM SHRI HARMOHINDER SINGH CHADHA, HUF AND 10 SHARES FROM L.S.CHADHA & SONS, HUF, CHANDIGARH. TH E SEARCH & SEIZURE OPERATION WERE ALSO CARRIED OUT BY THE DEPARTMENT AT THE BUSINESS AND RESIDENTIAL PREMISES OF S/SHRI HARMOHINDER SINGH CHADHA, SURINDER GULATI AN D BALDEV RAJ GULATI AND OTHERS. DURING THE COURSE OF SEARCH, SOME INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED FROM RESIDENTIAL PREMISES OF SH SURINDER GULATI MARKED A S A-2 AND A-5.THESE DOCUMENTS WERE CONFRONTED TO THE ASSE SSEE 3 DURING ASSESSMENT PROCEEDINGS AND PAGE NO. 5 OF DOC UMENT NO. A-5 DEPICTS THAT TOTAL NUMBER OF 3258 SHARES WE RE HELD BY SHRI MUNSHI RAM GULATI AND SHRI BALDEV RAJ GULAT I AND THEIR FAMILY MEMBERS. THIS FACT IS ALSO CORROBORAT ED BY ENTRIES RECORDED ON BACKSIDE OF PAGE NO. 34 OF A-2 FOUND FROM THE RESIDENCE OF SHRI SURINDER GULATI IN THE C OURSE OF SEARCH OPERATION. 4(I) SIMILARLY, BACKSIDE OF PAGE 3 OF THE DOCUMENT NO. A-5 DEPICTS THE ACTUAL SALE PROCEEDS ON ACCOUNT OF SHARES OF PNPL, FROM THE SAID DOCUMENT, IT IS SEEN THAT THE SALE OF 3258 SHARES OF PNPL WERE MADE AT RS. 2,13,54,281/-. IF THE SALE PROCEEDS OF RS. 2,13,54 ,281/- IS DIVIDED BY 3258, THE SALE PRICE OF EACH SHARE CO MES TO RS. 6554/-. THE ASSESSEE WAS CONFRONTED WITH THE DOCUMENT AND SHOW CAUSED AS TO WHY THE RATE OF RS. 6554/- PER SHARE SHOULD NOT BE APPLIED AGAINST THE RATE OF PER SHARE OF RS. 3900/- AS SHOWN BY THE ASSESSEE AND ASSESSED IN THE CASES OF GULATI FAMILY, WHERE BLOCK ASSESSMENT UNDER SECTION 153A WAS ALSO MADE. 5. THE ASSESSEE FILED REPLY BEFORE ASSESSING OFFICE R WHICH IS REPRODUCED IN THE ASSESSMENT ORDER IN WHIC H ASSESSEE EXPLAINED THAT 2860 SHARES OF PNPL WERE PURCHASED FROM DIFFERENT PERSONS THROUGH BANKING CHANNEL @ 3900/- PER SHARE. THE DOCUMENT WERE FOUN D FROM THE RESIDENCE OF SHRI SURINDER GULATI DURING THE COURSE OF SEARCH AND NAME OF THE ASSESSEE IS NOT MENTIONED IN ANY DOCUMENT OR IN THE STATEMENT OF SH RI 4 SURINDER GULATI. NO EVIDENCE OF ANY EXTRA CONSIDER ATION PAID BY ASSESSEE WAS FOUND DURING THE COURSE OF SEA RCH. THE ASSESSING OFFICER WAS, HOWEVER, NOT SATISFIED W ITH THE REPLY OF THE ASSESSEE AND APPLIED THE RATE OF R S. 6554/- PER SHARE AND AFTER REDUCING THE CONSIDERATI ON SHOWN BY ASSESSEE, MADE THE ADDITION OF RS. 30,78,648/- CONSIDERING THE DIFFERENCE IN VALUATION OF SHARE AT RS. 2654/- VIDE ASSESSMENT ORDER UNDER SEC TION 153A/143(3) DATED 25.03.2013. 6. THE ASSESSMENT ORDER DATED 25.03.2013 WHEREBY ADDITION OF RS. 30,78,640/- WAS MADE BY ASSESSING OFFICER WAS CHALLENGED BEFORE LD. CIT(APPEALS)-I LUDHIANA WHO VIDE HIS ORDER DATED 07.11.2013 (PB-46 ) CONSIDERING THE ISSUE IN DETAIL, DELETED THE ADDITI ON AND ALLOWED APPEAL OF THE ASSESSEE. 7. THE REVENUE PREFERRED APPEAL BEFORE ITAT AGAINST THE FINDINGS OF LD. CIT(APPEALS) DELETING THE ABOVE ADDITION, HOWEVER, THE DEPARTMENTAL APPEAL IN ITA 128/2014 WAS DISMISSED BY THE TRIBUNAL VIDE ORDER DATED 28.12.2015 (PB-) HAVING LOW TAX EFFECT. 8. THE LD. PRINCIPAL CIT (CENTRAL) LUDHIANA AFTER PASSING OF THE APPELLATE ORDER BY LD. CIT(APPEALS) ON 07.11.2013, ISSUED SHOW CAUSE NOTICE UNDER SECTION 263 OF THE ACT DATED 08.01.2015 WHICH IS REPRODUCED IN THE IMPUGNED ORDER IN WHICH THE LD. PR. CIT NOTED THAT ASSESSEE HAS PURCHASED 2860 SHARES OF PNPL 5 CHANDIGARH FROM VARIOUS PERSONS AND ASSESSING OFFIC ER MADE ADDITION CONSIDERING THE SHARES TO BE 1160 ONL Y. THE LD. PR. CIT ALSO CONSIDERED THE SAME SEIZED DOCUMENT AS HAVE BEEN CONSIDERED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER AND NOTED THAT INST EAD OF ADDITION OF RS. 30,78,640/-, ASSESSING OFFICER S HOULD HAVE MADE ADDITION OF RS. 45,11,800/- IN RESPECT OF ALL THE SHARES. THE ASSESSMENT ORDER WAS, THEREFORE, F OUND TO BE ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INT EREST OF REVENUE. 9. THE ASSESSEE IN RESPONSE TO NOTICE UNDER SECTION 263 FILED REPLY BEFORE LD. PR. CIT WHICH IS REPRODU CED IN THE IMPUGNED ORDER IN WHICH THE ASSESSEE BRIEFLY EXPLAINED THAT ASSESSING OFFICER HAS DULY CONSIDERE D ALL THE SEIZED DOCUMENT AND MATERIAL ON RECORD VIDE ORD ER DATED 25.03.2013 AND MADE THE ADDITION WHICH HAVE BEEN DELETED BY THE LD. CIT(APPEALS) VIDE ORDER DAT ED 07.11.2013. NO DOCUMENT WAS FOUND FROM POSSESSION OF THE ASSESSEE AND SAME DOCUMENT WAS FOUND FROM THE RESIDENCE OF SHRI SURINDER GULATI WHICH IS NOT INCRIMINATING IN NATURE AGAINST THE ASSESSEE. 9(I) THE CIT, HOWEVER, DID NOT ACCEPT CONTENTION OF THE ASSESSEE AND NOTED THAT TOTAL PURCHASE OF SHAREHOLD ING SHOULD BE CONSIDERED BY ASSESSING OFFICER AND ACCORDINGLY SET ASIDE THE ASSESSMENT ORDER DATED 25.03.2013 AND DIRECTED THE ASSESSING OFFICER TO PA SS THE ASSESSMENT DENOVO AFTER MAKING PROPER ENQUIRY. 6 10. THE ASSESSEE IS IN APPEAL CHALLENGING THE ORDER UNDER SECTION 263 OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW. HE HAS SUBMITTED THAT ALL SEIZE D MATERIAL HAVE BEEN CONSIDERED BY ASSESSING OFFICER IN ASSESSMENT ORDER DATED 25.03.2013 AND MADE THE ADDITION ON ACCOUNT OF UNDER-VALUATION OF PURCHASE OF SHARES OF PNPL AND THE SAID ADDITION HAVE BEEN DELE TED BY LD. CIT(APPEALS) VIDE ORDER DATED 07.11.2013. H E HAS SUBMITTED THAT DEPARTMENTAL APPEAL HAVE BEEN DISMISSED BY TRIBUNAL. HE HAS, THEREFORE, SUBMITTE D THAT THE ISSUE MERGED WITH THE FINDINGS OF LD. CIT(APPEALS) AND PROCEEDINGS UNDER SECTION 263 OF T HE ACT WOULD NOT BE VALID IN LAW. HE HAS RELIED UPON ORDER OF ITAT CHANDIGARH IN THE CASE OF M/S R.P. IMPORT A ND EXPORT PVT. LTD. VS PR. CIT, CENTRAL, LUDHIANA IN I TA 421/2015 FOR ASSESSMENT YEAR 2007-08 DATED 15.01.2016. HE HAS FURTHER SUBMITTED THAT EVEN THE IDENTICAL ISSUE ON MERIT HAVE BEEN CONSIDERED BY IT AT CHANDIGARH IN VARIOUS CASES TITLED AS DCIT VS ASHIS H SINGLA & ORS. IN ITA 129/2014 DATED 15.02.2016 AND THE ADDITION ON MERIT ON IDENTICAL FACTS WAS FOUND TO BE UNJUSTIFIED AND DEPARTMENTAL APPEAL HAVE BEEN DISMISSED. HE HAS, THEREFORE, SUBMITTED THAT THERE WAS NO JUSTIFICATION FOR PASSING ORDER UNDER SECTION 26 3 OF THE ACT. 7 10(I) ON THE OTHER HAND, LD. DR RELIED UPON IMPUGNE D ORDER. 11. WE HAVE CONSIDERED RIVAL SUBMISSIONS. THE FACT S NOTED ABOVE AND THE DATES AND EVENTS HAVE NOT BEEN DISPUTED BY THE LD. DR. IT IS, THEREFORE, CLEAR TH AT THE ASSESSING OFFICER EXAMINED THE MATTER IN ISSUE AT ASSESSMENT STAGE ON THE BASIS OF THE SEIZED MATERIA L FOUND FROM THE PREMISES OF SHRI SURINDER GULATI. T HE SUBJECT MATTER OF THE ISSUE IN THE ASSESSMENT PROCEEDINGS WAS VALUATION OF SHARES OF PNPL AS PURCHASED BY THE ASSESSEE AND OTHERS. THE LD. CIT(APPEALS) VIDE ORDER DATED 07.11.2013 DELETED TH E ENTIRE ADDITION. ITAT CHANDIGARH IN THE CASE OF M/ S R.P. IMPORT & EXPORT PVT. LTD. (SUPRA) ON IDENTICAL FACTS QUASHED THE PROCEEDINGS UNDER SECTION 263 OF THE AC T. FINDINGS OF THE TRIBUNAL IN PARA 8 TO 17 ARE REPROD UCED AS UNDER : 8. WE HAVE CONSIDERED RIVAL SUBMISSIONS. SECTION 263 OF THE INCOME TAX ACT READS AS UNDER : 263. (1) THE PRINCIPAL COMMISSIONER OR COMMISSIONER MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDI NG 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 REVENU E, HE MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING H EARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORD ER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLIN G THE ASSESSMENT AND DIRECTING A FRESH ASSESSMENT. [EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HERE BY DECLARED THAT, FOR THE PURPOSES OF THIS SUB-SECTION , (A) AN ORDER PASSED [ON OR BEFORE OR AFTER THE 1ST DAY OF JUNE, 1988] BY THE ASSESSING OFFICER SHALL INCLUDE 8 (I) AN ORDER OF ASSESSMENT MADE BY THE ASSISTANT COMMISSIONER [OR DEPUTY COMMISSIONER] OR THE INCOM E- TAX OFFICER ON THE BASIS OF THE DIRECTIONS ISSUED B Y THE [JOINT] COMMISSIONER UNDER SECTION 144A ; (II) AN ORDER MADE BY THE [JOINT] COMMISSIONER IN EXERCISE OF THE POWERS OR IN THE PERFORMANCE OF THE FUNCTIONS OF AN ASSESSING OFFICER CONFERRED ON, OR ASSIGNED TO, HIM UNDER THE ORDERS OR DIRECTIONS ISSUED BY TH E BOARD OR BY THE [ PRINCIPAL CHIEF COMMISSIONER OR ] CHIEF COMMISSIONER OR [ PRINCIPAL DIRECTOR GENERAL OR ] DIRECTOR GENERAL OR [ PRINCIPAL COMMISSIONER OR ] COMMISSIONER AUTHORISED BY THE BOARD IN THIS BEHALF UNDER SECTIO N 120 ; (B) 'RECORD' [SHALL INCLUDE AND SHALL BE DEEMED AL WAYS TO HAVE INCLUDED] ALL RECORDS RELATING TO ANY PROCEEDI NG UNDER THIS ACT AVAILABLE AT THE TIME OF EXAMINATION BY THE [ PRINCIPAL COMMISSIONER OR ] COMMISSIONER; (C) WHERE ANY ORDER REFERRED TO IN THIS SUB-SECTION AND PASSED BY THE ASSESSING OFFICER HAD BEEN THE SUBJEC T MATTER OF ANY APPEAL [FILED ON OR BEFORE OR AFTER THE 1ST DAY OF JUNE, 1988], THE POWERS OF THE [ PRINCIPAL COMMISSIONER OR ] COMMISSIONER UNDER THIS SUB-SECTION SHALL EXTEND [AND SHALL BE DEEMED ALWAYS TO HAVE EXTENDED] TO SUCH MATTERS AS HAD NOT BEEN CONSIDERE D AND DECIDED IN SUCH APPEAL.] [(2) NO ORDER SHALL BE MADE UNDER SUB-SECTION (1) A FTER THE EXPIRY OF TWO YEARS FROM THE END OF THE FINANCIAL Y EAR IN WHICH THE ORDER SOUGHT TO BE REVISED WAS PASSED.] (3) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTI ON (2), AN ORDER IN REVISION UNDER THIS SECTION MAY BE PASS ED AT ANY TIME IN THE CASE OF AN ORDER WHICH HAS BEEN PAS SED IN CONSEQUENCE OF, OR TO GIVE EFFECT TO, ANY FINDING O R DIRECTION CONTAINED IN AN ORDER OF THE APPELLATE TR IBUNAL, [NATIONAL TAX TRIBUNAL,] THE HIGH COURT OR THE SUPR EME COURT. EXPLANATION.IN COMPUTING THE PERIOD OF LIMITATION FOR THE PURPOSES OF SUB-SECTION (2), THE TIME TAKEN IN GIVI NG AN OPPORTUNITY TO THE ASSESSEE TO BE REHEARD UNDER THE PROVISO TO SECTION 129 AND ANY PERIOD DURING WHICH ANY PROCEEDING UNDER THIS SECTION IS STAYED BY AN ORDER OR INJUNCT ION OF ANY COURT SHALL BE EXCLUDED. 9. SECTION 263(1) EXPLANATION (C) PROVIDES THAT WHERE ANY ORDER REFERRED TO IN THIS SUB-SECTION AN D PASSED BY THE ASSESSING OFFICER HAD BEEN SUBJECT MATTER OF ANY APPEAL FILED ON OR BEFORE OR AFTER FI RST DATE OF JUNE, 1988, POWERS OF THE COMMISSIONER UNDER THIS SUB-SECTION SHALL EXTEND AND SHALL BE DEEMED ALWAYS TO HAVE EXTENDED TO SUCH MATTERS AS HAD NOT BEEN CONSIDERED AND DECIDED IN SUCH 9 APPEAL. IT WOULD, THEREFORE, SHOW THAT IF A MATTE R IN ISSUE HAS BEEN CONSIDERED IN APPEAL AND DECIDED BY THE APPELLATE AUTHORITIES, THE SAME COULD NOT BE SUBJECT MATTER OF REVISION UNDER SECTION 263 OF THE INCOME TAX ACT. IT IS NO EXPLAINED WHEN ORIGINAL SEIZED DOCUMENT HAS ALREADY BEEN CONSIDERED BY THE APPELLATE AUTHORITIES AGAINST THE REVENUE, HOW THE COPY OF THE SAME IS ADMISSIBLE IN EVIDENCE IN SUBSEQUENT REVISION PROCEEDINGS UNDER SECTION 263 O F THE INCOME TAX ACT. 10. HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS SHALIMAR HOUSING & FINANCE LTD. 320 ITR 157 HELD AS UNDER : A SEARCH WAS CONDUCTED IN THE ASSESSEE'S GROUP AND A BLOCK ASSESSMENT WAS PASSED WITH SEVERAL ADDITIONS AGAINST THE ASSESSEE. THE COMMISSIONER (APPEALS) ALLOWED THE APPEAL OF THE ASSESSEE IN PAR T. THE ASSESSEE AND THE DEPARTMENT PREFERRED APPEALS WHICH WERE PENDING DISPOSAL BEFORE THE TRIBUNAL. MEANWHILE, THE COMMISSIONER UNDER SECTION 263 OF THE INCOME-TAX ACT, 1961, REVISED THE ORDER OF THE ASSESSING OFFICER ON THE GROUNDS THAT (I) FROM THE PROJECT-WISE ANALYSIS IT WAS PERCEPTIBLE THAT WORK- IN- PROGRESS AS PER THE SEIZED DOCUMENTS AMOUNTED TO RS . 26,83,97,827 AS AGAINST RS. 8,42,62,301 AS ARRIVED AT BY THE ASSESSEE WHICH RESULTED IN UNDERVALUATION OF THE WORK-IN-PROGRESS TO THE EXTENT OF RS. 18.41 CRORES; (II) THAT ONE OF THE DIRECTORS OF THE ASSES SEE HAD ADMITTED TO HAVE RECEIVED SALARY AND PERQUISITE S WHICH WERE NOT RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE; (III) THAT THE ASSESSING OFFICER IN THE INDIVIDUAL CASE OF THE DIRECTORS HAD HELD THAT EACH DIRECTOR HAD BEEN PAID SALARY AND PERQUISITES TO TH E TUNE OF RS. 84,000 BUT, WHILE FRAMING THE ASSESSMEN T OF THE ASSESSEE, SALARY AND PERQUISITES OF ONLY ONE DIRECTOR WERE ADDED TO THE INCOME OF THE ASSESSEE; AND (IV) THAT DURING THE ASSESSMENT PROCEEDINGS OF INS BANK, WHICH WAS RUN BY THE ASSESSEE, IT COULD NOT EXPLAIN THE DEPOSIT OF RS. 79,40,246 AND, THEREFORE, THE ADDITION OF THE AMOUNT WAS MADE IN T HE CASE OF THE BANK ON PROTECTIVE BASIS WITH THE FINDI NG THAT THE ADDITION SHOULD BE CONSIDERED ON SUBSTANTI VE BASIS IN THE HANDS OF VARIOUS DEPOSITORS AND ALSO PROTECTIVE ADDITION SHOULD BE MADE IN THE HANDS OF THE ASSESSEE BUT IT WAS NOT CONSIDERED BY THE ASSESSING OFFICER WHILE FRAMING THE ASSESSMENT OF T HE 10 ASSESSEE. THE TRIBUNAL HELD THAT THE ACTION OF THE COMMISSIONER WAS NOT JUSTIFIED. ON APPEAL: HELD , DISMISSING THE APPEAL, THAT THE TRIBUNAL HAD ADVERTED TO THE FACTUAL, POSITION IN A DETAILED MAN NER, HAD APPRECIATED THOSE ISSUES THAT HAD BEEN TAKEN UP BY THE COMMISSIONER WHILE EXERCISING JURISDICTION UNDER SEC: 263 AND HELD THAT THE FACETS HAD BEEN DEALT WITH BY THE COMMISSIONER (APPEALS) AND, THEREFORE, BY VIRTUE OF CLAUSE (C) OF SECTION 263(1 ) THE COMMISSIONER WAS NOT COMPETENT TO ASSUME JURISDICTION AND DIRECT REASSESSMENT. THE ORDER OF THE TRIBUNAL WAS JUSTIFIED. 10(I) THE AFORESAID JUDGEMENT HAS BEEN CONFIRMED BY HON'BLE SUPREME COURT BY DISMISSING THE SLP OF THE DEPARTMENT REPORTED IN 322 ITR (STATUTES)-14 IN THE NAME OF CIT VS SHALIMAR HOUSING & FINANCE LTD. 11. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE PROVISIONS CONTAINED UNDER SECTION 263(1) EXPLANATION (C) OF THE INCOME TAX ACT AND THE JUDGEMENT ABOVE, IT IS CLEAR THAT LD. PRINCIPAL CIT HAS EXCEEDED HIS JURISDICTION UNDER SECTION 263 OF THE ACT. SINCE THE SAME SEIZED DOCUMENT HAS BEEN CONSIDERED BY ASSESSING OFFICER WHO MADE THE ADDITION AGAINST THE ASSESSEE WHICH REMAINED SUBJECT MATTER IN APPEAL BEFORE LD. CIT(APPEALS) AN D ADDITION HAS BEEN DELETED, WOULD CLEARLY SHOW THAT THE MATTER IN ISSUE REMAINED IN SUBJECT MATTER IN APPEAL BEFORE LD. CIT(APPEALS) PRIOR TO INITIATION OF THE PROCEEDINGS UNDER SECTION 263 OF THE ACT. NOT ONLY THIS, WHEN THE DEPARTMENT HAS PREFERRED APPEAL BEFORE TRIBUNAL, TRIBUNAL ALSO DISMISSED THE DEPARTMENTAL APPEAL VIDE ORDER DATED 12.12.2014 (SUPRA). THE TRIBUNAL IN THE FINDING HAS SPECIFICAL LY OBSERVED THAT ASSESSEE IS NOT PARTY TO THE AGREEMENT TO SELL IN QUESTION AND NONE OF THE 11 PERSONS RELATING TO THE ASSESSEE COMPANY ALSO CONNECTED WITH THE SAID AGREEMENT IN QUESTION. IT WAS ALSO NOTED THAT NO EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH TO PROVE IF ANY OVER AND ABOVE CONSIDERATION HAVE BEEN PAID IN RESPECT OF ANY PROPERTY PURCHASED BY THE ASSESSEE COMPANY. EVEN DURING THE COURSE OF SEARCH, NO ADVERSE MATERIAL WAS FOUND AGAINST THE ASSESSEE. IT WAS ALSO NOTED THAT SINCE AGREEMENT IN QUESTION IS CANCELLED DOCUMENT AND DID NOT RELATE TO THE ASSESSEE DIRECTL Y OR INDIRECTLY, THEREFORE, ASSESSING OFFICER HAS MERELY INFERRED THAT ASSESSEE MIGHT HAVE PAID SOME MORE CONSIDERATION OVER AND ABOVE WHAT IS STATED IN THE REGISTERED DOCUMENT. THE DEPARTMENTAL APPEAL WAS DISMISSED BECAUSE THE ADDITION WAS FOUND TO HAVE BEEN MADE MERELY ON SUSPICION. 12. HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS KULWANT RAI 291 ITR 36 HELD AS UNDER : HELD, DISMISSING THE APPEAL (I) THAT ADMITTEDLY THE ASSESSEE HAD NOT SIGNED THE AGREEMENT IN QUESTION AND SINCE HE HAD NOT SIGNED THE AGREEMENT, NO LIABILITY COULD BE ATTRACTED QUA THAT AGREEMENT TOWARDS HIM SINCE HE WAS NOT A PARTY TO THE AGREEMENT TILL HE HAD SIGNED THE AGREEMENT. THE MERE FACT THAT THIS AGREEMENT WAS FOUND IN THE POSSESSION OF THE ASSESSEE DID NOT LEAD ANYWHERE. THUS, THE ADDITION OF RS. 17,00,892/- MADE BY THE ASSESSING OFFICER BY WAY OF HALF SHARE OF THE ASSESSEE IN THE EARNEST MONEY WAS BASED ON SURMISES AND GUESS WORK ONLY AND WAS LIABLE TO BE DELETED. 13. SINCE THE SEIZED DOCUMENT PAGE NO. 34-35 OF ANNEXURE A-9 SEIZED FROM THE OFFICE PREMISES OF M/S 12 NARAIN & COMPANY WAS NOT EXECUTED BY THE ASSESSEE COMPANY AND DID NOT RELATE TO THE ASSESSEE COMPANY AT ALL, THEREFORE, WHERE IS THE QUESTION OF MAKING ANY ADDITION AGAINST THE ASSESSEE EVEN IN RESPECT OF THE BALANCE LAND OF 44 BIGHA AS IS NOTED IN THE IMPUGNED ORDER. THE ASSESSING OFFICER, AT THE ASSESSMENT STAGE HAS EXAMINED THE ISSUE IN DETAIL AND ASSESSEE ALSO FILE D DETAILED REPLY BEFORE ASSESSING OFFICER IN RESPECT OF THE ENTIRE PROPERTY SO PURCHASED AND ALSO MADE A DETAILED REPLY ON THE SEIZED PAPER, THEREFORE, IT C AN NOT BE SAID THAT ASSESSING OFFICER HAS NOT EXAMINED THE ISSUE IN DETAIL. THEREFORE, WHEN PRIOR TO THE INITIATION OF THE PROCEEDINGS UNDER SECTION 263 OF THE ACT, MATTER IN ISSUE HAS BEEN EXAMINED BY THE APPELLATE AUTHORITIES I.E. LD. CIT(APPEALS) AND ITA T CHANDIGARH BENCH ON THE BASIS OF THE SEIZED DOCUMENT, THEREFORE, PRINCIPAL CIT WAS NOT COMPETENT TO ASSUME JURISDICTION UNDER SECTION 263 OF THE ACT AND DIRECT THE RE-ASSESSMENT IN THE MATTER. THE DECISION IN THE CASE OF SHALIMAR HOUSING & FINANCE LTD. (SUPRA) SQUARELY APPLY IN FAVOUR OF THE ASSESSEE. 14. THE CIT WAS SWAYED BY THE COPY OF THE SEIZED DOCUMENT WHICH, ACCORDING TO HIM WAS RECEIVED FROM INDEPENDENT SOURCES. IT WOULD, THEREFORE, CLEARLY SHOW THAT THE COPY OF THE SAID AGREEMENT WHICH IS REFERRED TO BY LD. PRINCIPAL CIT WAS NOT SEIZED DURING THE COURSE OF SEARCH. THEREFORE, HOW THIS COULD BE RELEVANT IN PROCEEDINGS UNDER SECTION 153A OF THE ACT, WAS NOT AT ALL EXPLAINED. IT IS ADMITT ED FACT THAT DURING THE COURSE OF SEARCH, THE SEIZED PAPER AS WAS RECOVERED, WAS A CANCELLED/CROSSED DOCUMENT. THEREFORE, THERE IS NO QUESTION OF CONSIDERING SAME AGAINST THE ASSESSEE, THAT TOO WHEN THE SAME IS NOT SIGNED BY THE ASSESSEE 13 COMPANY. FURTHER MORE WHEN THE ORIGINAL SEIZED DOCUMENT PAGE 34-35 OF ANNEXURE A-9 WAS CONSIDERED AND DISCUSSED IN DETAIL AND IT IS HELD B Y THE APPELLATE AUTHORITIES THAT NO ADDITION COULD BE MADE ON THE BASIS OF THE SAME CANCELLED DOCUMENT AGAINST THE ASSESSEE, THERE IS NO QUESTION OF CONSIDERING THE SAME AGAINST THE ASSESSEE ON THE BASIS OF COPY OF THE SAME SEIZED DOCUMENT. WHEN THE MATTER IN ISSUE HAS ALREADY BEEN EXAMINED BY THE APPELLATE AUTHORITIES, PRIOR TO PROCEEDINGS UND ER SECTION 263 OF THE ACT, THE LD. PRINCIPAL CIT SHOUL D NOT HAVE RESORTED TO THE PRESENT PROCEEDINGS UNDER SECTION 263. WHEN THE ORDER OF THE ASSESSING OFFICER IS MERGED WITH THE ORDERS OF THE APPELLATE AUTHORITIES, THEREFORE, PROCEEDINGS UNDER SECTION 263 OF THE ACT ON THE SAME MATTER IN ISSUE COULD NO T BE RESORTED TO IN VIEW OF THE EXPLANATION (C) OF SU B SECTION (1) OF SECTION 263 OF THE ACT. WE MAY ALSO REFER TO THE JUDGEMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS CIT 243 ITR 83 WHEREIN IT WAS HELD AS UNDER : EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER, CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, FOR EXAMPLE, WHEN AN INCOME-TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME- TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE UNLESS THE VIEW TAKEN BY THE INCOME-TAX OFFICER IS UNSUSTAINABLE IN LAW. 15. IN THIS CASE, THE ASSESSING OFFICER EXAMINED THE SEIZED DOCUMENT AT ASSESSMENT STAGE AND HIS 14 ORDER HAS BEEN SET ASIDE BY THE APPELLATE AUTHORITIES, THEREFORE, THERE IS NO QUESTION OF CONSIDERING HIS ORDER TO BE ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF REVENUE. IN THIS CA SE, WHEN THE SEIZED DOCUMENT ITSELF WAS NOT RELIED UPON BY THE APPELLATE AUTHORITIES, THE COPY OF THE SAME AGREEMENT AS WAS RECEIVED THROUGH INDEPENDENT SOURCES, AS STATED BY THE LD. PRINCIPAL CIT WOULD N OT MAKE ANY DIFFERENCE IN FAVOUR OF THE REVENUE. 16. CONSIDERING THE ABOVE DISCUSSION, WE ARE OF TH E VIEW THE PROCEEDINGS UNDER SECTION 263 OF THE ACT ARE CLEARLY BEYOND THE COMPETENCE OF LD. PRINCIPAL CIT AND WHOLE PROCEEDINGS ARE UNJUSTIFIED AND UNREASONABLE. THEREFORE, THE IMPUGNED ORDER COULD NOT BE SUSTAINED IN LAW. WE, ACCORDINGLY, SET ASID E THE IMPUGNED ORDER UNDER SECTION 263 OF THE ACT AND QUASH THE SAME. 17. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. 12. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE ABOVE ORDER, IT IS CLEAR THAT WHEN MATTER IN ISSUE HAS BEEN CONSIDERED IN APPEAL AND DECIDED BY THE APPELL ATE AUTHORITY, SAME WOULD NOT BE SUBJECT MATTER OF PROCEEDINGS UNDER SECTION 263 OF THE ACT. ALL THE ORIGINAL SEIZED MATERIAL HAVE ALREADY BEEN CONSIDER ED BY THE ASSESSING OFFICER AND THE LD. CIT(APPEALS), THE RE WAS NO JUSTIFICATION TO INITIATE THE PROCEEDINGS UNDER SECTION 263 AFTER PASSING OF THE ASSESSMENT ORDER AND THE APPELLATE ORDER. FURTHER, NO EVIDENCE WAS FOUND AGA INST ASSESSEE TO CONNECT WITH THE ADDITION ON MERIT. 15 THEREFORE, THE ISSUE IS COVERED IN FAVOUR OF THE AS SESSEE BY ORDER OF ITAT CHANDIGARH BENCH IN THE CASE OF M/ S R.P. IMPORT & EXPORT PVT. LTD. AND THERE IS NO JUSTIFICATION FOR THE LD. PR. CIT TO INITIATE PROCE EDINGS UNDER SECTION 263 OF THE ACT. 13. WE MAY ALSO NOTE HERE THAT WHEN ADDITIONS ON MERIT HAVE BEEN MADE ON THE IDENTICAL ISSUE IN THE CASES OF SHRI ASHISH SINGLA AND OTHERS AND LD. CIT(APPEAL S) DELETED ON MERIT, REVENUE PREFERRED APPEALS TITLED AS DCIT VS ASHISH SINGLA & OTHERS IN ITA 129/2014 FOR SAME ASSESSMENT YEAR 2006-07, THE TRIBUNAL VIDE ORD ER DATED 15.02.2016 DISMISSED THE DEPARTMENTAL APPEAL HOLDING NO JUSTIFICATION FOR MAKING ADDITION ON IDE NTICAL ISSUE. THE FINDINGS OF THE TRIBUNAL IN THIS CASE I N PARA 10-11 ARE REPRODUCED AS UNDER : 10. WE HAVE HEARD RIVAL SUBMISSIONS. IT IS NOT IN DISPUTE THAT SEIZED PAPERS WERE FOUND AND RECOVERED DURING THE COURSE OF SEARCH IN THE CASE OF SHRI SURINDER GULAT I. THESE DOCUMENTS WERE USED AGAINST SHRI SURINDER GULATI IN HIS ASSESSMENT AND ALL THESE SEIZED PAPERS HAVE BEEN ME NTIONED IN THE ASSESSMENT ORDER OF SHRI SURINDER GULATI DAT ED 28.02.2013 FOR ASSESSMENT YEAR 2006-07. THE STATEM ENT OF SHRI SURINDER GULATI AT THE TIME OF SEARCH WAS RECO RDED UNDER SECTION 132(4) OF THE INCOME TAX ACT WHICH IS ALSO REPRODUCED IN HIS ASSESSMENT ORDER AS ABOVE. THE S EIZED PAPER ALONGWITH SMALL BLUE DIARY MARKED RAYMOND W ERE CONFRONTED TO HIM IN WHICH HE HAS ADMITTED THAT DIA RY WAS WRITTEN IN HIS HANDWRITING AND BELONGS TO HIM. HE HAS ALSO EXPLAINED THE ABBREVIATIONS CONTAINED IN THE SEIZED PAPER BUT NONE OF THE ABBREVIATIONS WERE HAVING ANY LINK OR CONNECTION WITH THE ASSESSEE. IN ANSWER TO ONE OF THE 16 QUESTION, WHILE REFERRING TO THE SEIZED PAPER, HE H AS EXPLAINED THAT THESE ARE ESTIMATES AND THE ACTUAL F ACT REMAINED THAT HE HAS RECEIVED MONEY @ RS. 3900/- PE R SHARE. SHRI SURINDER GULATI DID NOT MAKE ANY ALLEG ATION AGAINST THE ASSESSEE IN RESPECT OF SHARES PURCHASED BY THE ASSESSEE. THE SEIZED PAPER AS REFERRED IN HIS ASSE SSMENT ORDER HAVE BEEN REPRODUCED IN WHICH, ON CERTAIN SHA RES THE VALUE HAVE BEEN SHOWN @ 3900/- AS WELL AS IN ANOTHE R PAPER, THE SAME RATE IS MENTIONED AGAINST THE TOTAL SHARES OF 3258 AND IN THE THIRD SEIZED PAPER, TOTAL SALE P ROCEEDS OF 3258 SHARES HAVE BEEN CONSIDERED BY ASSESSING OFFIC ER IN A SUM OF RS. 2.13 CRORES. THIS SALE CONSIDERATION WA S DIVIDED BY 3258 SHARES AND ASSESSING OFFICER CONCLUDED THE VALUE OF EACH SHARE AT RS. 6554/-. HOWEVER, ALL THE ABOVE M ATERIAL ON RECORD I.E. STATEMENT OF SHRI SURINDER GULATI AN D THE SEIZED PAPER DID NOT MAKE ANY ALLEGATION AGAINST TH E ASSESSEE OF PURCHASE OF SHARES AT RS.6554/-. IT WA S A PRESUMPTION OF THE ASSESSING OFFICER THAT WHEN ONE OF THE TRANSACTIONS IS CONDUCTED BY SHRI SURINDER GULATI F OR A SUM OF RS. 6554/- THEN PRESUMPTION WOULD BE THAT OTHER SHARES HAVE ALSO BEEN TRANSFERRED AT THE SAME VALUE. HOWE VER, IT IS WELL SETTLED LAW THAT PRESUMPTION, WHAT-SO-EVER MAY BE STRONG BUT SAME CANNOT TAKE PLACE OF PROOF. IT IS ALSO ADMITTED FACT THAT ASSESSEE DID NOT HAVE ANY TRANSA CTION WITH SHRI SURINDER GULATI OR ANY OF HIS FAMILY MEMB ERS. THE ASSESSEE HAD PURCHASED SHARES FROM CHADHA FAMIL Y AND EVEN IN SEARCH IN THE CASE OF CHADHA FAMILY, NO MAT ERIAL OR DOCUMENT WAS FOUND MAKING ANY ALLEGATION AGAINST TH E ASSESSEE. 10(I) IT IS INTERESTING TO NOTE THAT WHEN ADDITION IS MADE BY THE ASSESSING OFFICER IN THE CASE OF SHRI SURINDER GULATI BASED ON THE SAME SEIZED MATERIAL BY TAKING THE SAM E VALUE OF THE SHARE AT RS. 6554/-, SHRI SURINDER GULATI PR EFERRED APPEAL BEFORE LD. CIT(APPEALS), CENTRAL, GURGAON AN D THE ENTIRE ADDITION, ON THE BASIS OF THE SAME SEIZED MA TERIAL HAVE BEEN DELETED VIDE ORDER DATED 25.03.2014. COP IES OF THE SAME ASSESSMENT ORDER AND APPELLATE ORDER IN TH E CASE 17 OF SHRI SURINDER GULATI HAVE BEEN PLACED ON RECORD. THE LD. DR ADMITTED THAT SINCE TAX EFFECT WAS LOW IN THE CA SE OF SHRI SURINDER GULATI, THEREFORE, NO DEPARTMENTAL APPEAL HAVE BEEN FILED BEFORE THE TRIBUNAL. IT, THEREFORE, STA NDS CONCLUDED THAT THE ADDITION MADE ON THE BASIS OF TH E SAME SEIZED MATERIAL FOUND FROM THE RESIDENCE OF SHRI SU RINDER GULATI WAS NOT RELIABLE AND WOULD NOT LEAD TO ANY A DDITION EVEN IN THE CASE OF SHRI SURINDER GULATI FROM WHOSE POSSESSION, SEIZED PAPERS WERE FOUND AND RECOVERED. IT IS NOT EXPLAINED DURING THE COURSE OF ARGUMENTS HOW TH E SAME SEIZED PAPERS CONTAINING NO ALLEGATION AGAINST THE ASSESSEE ARE ADMISSIBLE IN EVIDENCE AGAINST THE ASSESSEE. WH ERE THERE IS NO INCRIMINATING EVIDENCE AVAILABLE AGAINS T THE ASSESSEE ON RECORD, THE ABOVE ADDITION FOR ENHANCIN G VALUE OF THE ASSET COULD NOT BE MADE ON SUSPICION AND SUR MISES. THE PRESUMPTION UNDER SECTION 132(4A) IS, THEREFORE , NOT AVAILABLE WHEN THE SEIZED PAPER IS RECOVERED FROM T HE THIRD PARTY AND NOT FROM THE ASSESSEE. WE ARE FORTIFIED IN OUR VIEW BY ORDER OF ITAT AHMEDABAD BENCH IN THE CASE O F AKSHAY PUSHPVANDAN VS DCIT (SUPRA). ONCE THE SEIZE D PAPERS WERE NOT FOUND RELIABLE IN THE CASE OF SHRI SURINDER GULATI FROM WHOSE POSSESSION SAME WERE RECOVERED, T HERE IS NOTHING LEFT FOR CONSIDERATION AGAINST THE ASSESSEE . 10(II) THE ASSESSEE IN ADDITION TO THE ABOVE ALSO EXPLAINED THAT WHEN STATEMENT OF SHRI SURINDER GULATI WAS ALS O RECORDED IN THE CASE OF SHRI MADAN GULATI, HE HAS N OT SUPPORTED THE CASE OF THE REVENUE IN HIS STATEMENT. HE HAS ALSO EXPLAINED IN THE STATEMENT THAT RS. 80 LACS WA S SURRENDERED ON ACCOUNT OF DEALING WITH THE VARANASI PARTY WHICH HAS ALSO NO CONNECTION WITH THE ASSESSEE. TH E ASSESSEE ALSO FILED PROFIT & LOSS ACCOUNT OF THE PN PL TO SHOW THAT THERE WAS VERY LITTLE PROFIT IN THEIR CAS E AND THAT PROPERTY WAS LEASE-HOLD HELD BY THEM AND THAT RE-VA LUATION OF THE SHARES SHOWS THE LESSER AMOUNT AS AGAINST TH E PURCHASE CONSIDERATION DECLARED BY ASSESSEE WOULD C LEARLY SUPPORT THE CASE OF THE ASSESSEE THAT ADDITION WAS MADE AGAINST HIM WITHOUT ANY BASIS. THE ASSESSEE ALSO C ITED A 18 COMPARABLE CASE OF JAGAT THEATER IN WHICH THE VALUE PER SHARE WAS LESSER AND THE SALE CONSIDERATION WAS ALS O LESSER. THESE EVIDENCES AND MATERIAL ON RECORD ALSO SUPPORT THE FINDINGS OF THE LD. CIT(APPEALS) THAT ADDITION WAS MADE MERELY ON PRESUMPTION AND WITHOUT ANY BASIS. SINCE NO DOCUMENT OR MATERIAL WAS FOUND DURING THE SEARCH AG AINST THE ASSESSEE TO PROVE THAT ASSESSEE PAID ANY AMOUN T OVER AND ABOVE WHAT IS PAID THROUGH THE BANKING CHANNEL, WOULD CLEARLY INDICATE THAT ASSESSING OFFICER, WITHOUT AN Y JUSTIFICATION MADE THE ADDITION AGAINST THE ASSESSE E. THE LD. DR, HOWEVER, RELIED UPON DECISION OF THE HON'BL E PUNJAB & HARYANA HIGH COURT IN THE CASE OF JOGINDER LAL (S UPRA). IN THIS CASE, THE ASSESSEE PURCHASED A PLOT VIDE RE GISTERED SALE DEED FOR CONSIDERATION OF RS. 3.70 LACS AND DU RING THE SURVEY CONDUCTED UNDER SECTION 133A, VENDORS DECLAR ED SALE CONSIDERATION OF THE SAID PLOT AT RS. 38 LACS. IN THE CASE OF HIREN VASANT LAL SHAH (SUPRA) PURSUANT TO THE SEARC H AT THE ASSESSEE'S PREMISES, CERTAIN DOCUMENTS WERE FOUND A ND ONE OF THE SAID DOCUMENT CONTAINED WORKING OF INTEREST @ 3% ON THE TOTAL SUM OF RS. 3 LACS. HOWEVER, IN THE CASE OF THE ASSESSEE, NO DOCUMENT OR MATERIAL WAS FOUND DURING THE COURSE OF SEARCH AGAINST THE ASSESSEE WHEN THE SEAR CH WAS CONDUCTED IN THE CASE OF SHRI SURINDER GULATI OR IN THE CASE OF THE ASSESSEE. THEREFORE, BOTH DECISIONS ARE DISTINGUISHABLE ON FACTS. THE DECISION IN THE CASE OF R.P. VASHISHT (SUPRA) RELIED UPON BY LD. DR IS ALSO NOT APPLICABLE TO THIS CASE. 11. CONSIDERING THE TOTALITY OF THE FACTS AND CIRC UMSTANCES IN THE LIGHT OF THE FINDINGS OF LD. CIT(APPEALS), P ARTICULARLY WHEN THE ADDITIONS HAVE BEEN DELETED IN THE CASE OF SHRI SURINDER GULATI AND THE MATTER HAS REACHED FINALITY , NOTHING SURVIVE IN FAVOUR OF THE REVENUE TO MAKE ANY ADDIT ION AGAINST THE ASSESSEE. IN THE ABSENCE OF ANY EVIDEN CE ON RECORD AGAINST THE ASSESSEE, WE ARE NOT INCLINED TO INTERFERE WITH THE ORDER OF THE LD. CIT(APPEALS) FOR DELETING THE ADDITION. NO ERROR HAVE BEEN POINTED OUT IN THE OR DER OF THE LD. CIT(APPEALS). THE CONTENTION OF LD. DR HAVE NO FORCE 19 THAT WHEN ONE TRANSACTION IS CONDUCTED AT THE SAME RATE, THE SAME RATE SHOULD BE APPLIED IN OTHER CASES. IN VIE W OF THE ABOVE, WE DO NOT FIND ANY MERIT IN THE DEPARTMENTAL APPEAL. THE SAME IS ACCORDINGLY DISMISSED. 13(I) FOLLOWING THE FINDINGS OF THE TRIBUNAL IN TH E CASES OF SHRI ASHISH SINGLA (SUPRA), THERE WOULD BE NO JUSTIFICATION TO PROCEED WITH THE PROCEEDINGS UNDER SECTION 263 OF THE ACT AND NO PURPOSE WOULD SERVE T O UPHOLD THE ORDER OF LD. PR. CIT UNDER SECTION 263 O F THE INCOME TAX ACT, PARTICULARLY WHEN THE DEPARTMENTAL APPEAL IN THE CASE OF THE ASSESSEE HAS ALREADY BEEN DISMISSED BY THE TRIBUNAL CONFIRMING DELETION OF ADDITIONS ON MERIT BY THE LD. CIT(APPEALS). 14. CONSIDERING THE ABOVE DISCUSSION AND IN THE LIG HT OF VARIOUS ORDERS REFERRED TO ABOVE, WE ARE OF THE VIEW THAT PROCEEDINGS UNDER SECTION 263 ARE CLEARLY BEYO ND THE COMPETENCE OF LD. PR. CIT AND WHOLE PROCEEDINGS ARE UNJUSTIFIED AND UNREASONABLE, THEREFORE, THE IMPUGN ED ORDER COULD NOT BE SUSTAINED IN LAW. WE, ACCORDING LY, SET ASIDE THE IMPUGNED ORDER UNDER SECTION 263 OF T HE ACT AND QUASH THE SAME. 15. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ITA 430/2015 (M/S GOPAL CASTINGS P.LTD.) 16. IT IS STATED THAT ISSUE IS SAME IN THIS APPEAL AS HAVE BEEN CONSIDERED IN THE CASE OF SHRI PARSHOTTAM AGGARWAL (SUPRA). FOLLOWING THE REASONS FOR DECISI ON IN 20 THE CASE OF SHRI PARSHOTTAM AGGARWAL (SUPRA), WE SE T ASIDE THE IMPUGNED ORDER UNDER SECTION 263 OF THE A CT AND QUASH THE SAME. 17. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. 18. IN THE RESULT, BOTH APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (ANNAPURNA GUPTA) (BHAVNESH SA INI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH APRIL, 2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD