Smt. Bhartiben M. Kelawala, Bharuch V. The CIT-III, Baroda

ITSSA 84/AHD/2007

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9217 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 09-07-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 17-06-2010
• Assessment Year: misc
• Appeal Filed On: 30-04-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B S SANDHU
• Assessee Lawyers: M K PATEL
• Keywords: Period of limitation; Corroborative evidences; Procedural lapse; Assessment record; Block assessment
• Section: 143(3); 142(1); 147; 145; 148; 263; 132; 144; 15

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE S/SHRI MAHAVIR SINGH, JM AND D.C.AGRAWAL, AM SMT. BHARTIBEN M. KELAWALA 4/5 SWAMI VIVEKANAND SOCIETY, NR. PRITAM SOCIETY NO.1, BHARUCH. PAN AEEPK 2832 G VS. COMMISSIONER OF INCOME-TAX-III, BARODA. (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI M. K. PATEL, AR REVENUE BY:- SHRI B. S. SANDHU, CIT,DR O R D E R PER D. C. AGRAWAL, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE RAISING F OLLOWING GROUNDS :- (1) THAT THE LD. CIT-III, BARODA HAS GRIEVOUSLY ERRED I N ASSUMING THE JURISDICTION UNDER SECTION 263(1) OF THE INCOME -TAX ACT, 1961 AND THEREBY CANCELING THE ORDER UNDER SECTION 158BC R.W.S. 158BG OF THE INCOME-TAX ACT, 1961. (2) THAT THE LD. CIT-III, BARODA HAS GRIEVOUSLY ERRED I N MENTIONING IN PARA 9 OF THE ORDER UNDER APPEAL THAT THE ORDER UNDER SECTION 158BC R.W.S. 158BG OF THE ACT WAS PASSED BY THE AO, WARD1, BHARUCH WHEREAS IN FACT THE SAID ORDER WAS PASSED B Y THE DY. CIT, CEN. CIR.1, BARODA. (3) THAT THE LD. CIT-III, BARODA HAVE GRIEVOUSLY ERRED IN DIRECTING THE AO TO MAKE A FRESH ASSESSMENT WHEREAS THE ORIGI NAL ASSESSMENT WAS PASSED AFTER GETTING THE APPROVAL OF THE ADDL. CIT, CEN. RANGE, BARODA AND AFTER THOROUGH EXAMINAT ION OF ALL THE RELEVANT SEIZED MATERIALS, BANK TRANSACTIONS, E TC. AND HENCE IT(SS)A NO.84/AHD/2007 BLOCK PERIOD 1.4.1996 TO 13.8.2002 2 GRANTING OF ONE MORE INNINGS TO THE DEPARTMENT IS T OTALLY UNWARRANTED AND UNJUSTIFIED IN LAW. (4) THAT ON FACTS AND IN LAW THE ORIGINAL ORDER NOT BEI NG ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE, THE ORD ER PASSED BY THE LD. CIT-III, BARODA UNDER SECTION 263(1) OF THE INCOME-TAX ACT, 1961 DESERVES TO BE QUASHED. 2. THE ONLY ISSUE INVOLVED IN THE APPEAL IS WHETHER LD. CIT WAS JUSTIFIED IN CANCELING THE ORDER PASSED U/S 158 BC OF THE AO, U/S 263 AND DIRECTING HIM TO PASS FRESH ASSESSMENT BY EXAMINING ALL THE BANK TRANSACTIONS. 3. THE FACTS OF THE CASE ARE THAT SEARCH U/S 132(1) WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE AND HER GROUP ON 13.8. 2002. IN RESPONSE TO NOTICE U/S 158BC ASSESSEE FILED RETURN OF UNDISCLOS ED INCOME AT RS.1,48,500/-. IT INCLUDED THE UNDISCLOSED INCOME A ND DEPOSITS IN S.B. ACCOUNT NO.23743 OF BANK OF BARODA, BHARUCH. THE AO ACCEPTED THE RETURNED UNDISCLOSED INCOME BY OBSERVING AS UNDER : - 2. THE FIRST NOTICE U/S 143(2) WAS ISSUED ON 03.03 .2003. THE SECOND NOTICE U/S 143(2) WAS ISSUED BY THE UNDERSIGNED ON 16.04.2004. IN RESPONSE TO NOTICES U/S 143(2) AND 142(1) OF THE AC T, 1961, SHRI M. K. RAO, C.A. SHRI MUKESH M. KELAWALA, THE HUSBAND OF T HE ASSESSEE AND SHRI SATISH MEHTA, ACCOUNTANT ATTENDED FROM TIME TO TIME AND SUBMITTED THE DETAILS CALLED FOR. 3. AFTER DISCUSSION, THE RETURNED INCOME OF THE ASS ESSEE IS ACCEPTED. TOTAL UNDISCLOSED INCOME AS PER BLOCK RETURN DTD.11 .02.2003 :RS.1,48,500/- 4. THE LD. CIT CALLED FOR THE ASSESSMENT RECORD OF THE ASSESSEE AND NOTICED THAT ASSESSEE AND HER HUSBAND SHRI MUKESH M . KELAWALA HAD MADE UNDISCLOSED INVESTMENT IN M/S EKTA CORPORATION TO THE EXTENT OF 3 RS.23,66,500/-. THIS WAS REVEALED FROM THE DOCUMENT S FOUND AND SEIZED DURING THE COURSE OF SEARCH. OUT OF THIS, SHRI MUKE SH M. KELAWALA DISCLOSED RS.22,39,295/- ONLY AS HIS SHARE OF UNDIS CLOSED INVESTMENT IN M/S EKTA CORPORATION BY FILING HIS BLOCK RETURN. TH E DIFFERENCE AMOUNTING TO RS.1,27,205/- WAS CONSIDERED AS MADE B Y ASSESSEE AS INVESTMENT IN M/S EKTA CORPORATION WAS FOUND TO BE IN JOINT NAMES. THE LD. CIT ACCORDINGLY ISSUED FOLLOWING SHOW CAUSE NOT ICE U/S 263 TO HER: TIME BARRING NO.BRD/CIT-III/U/S 263/BMK/2006-07 DT.07.03.2007 TO SMT. BHARTIBEN M. KELAWALA 4/5 SWAMI VIVEKANAND SOCIETY, NR. PRITAM SOCIETY, NO.1, BHARUCH. MADAM, SUB: NOTICE U/S 263 OF INCOME-TAX ACT, 1961-FOR THE BLOCK PERIOD 1.4.1996 TO 13.8.2002 REGARDING. THE RECORD OF BLOCK ASSESSMENT LEADING TO PASSING O F ORDER U/S 158BC R.W.S. 158BG IN YOUR CASE AS WELL AS IN THE CASE OF SHRI MUKESH M. KELAWALA FOR THE ABOVE MENTIONED PERIOD WERE CALLED FOR AND EXAMINED. 2. FROM THE DOCUMENTS FOUND AND SEIZED DURING THE S EARCH, IT CAME TO NOTICE THAT UNDISCLOSED INVESTMENT IN M/S EKTA CORPORATION WAS MADE BY YOU AND YOUR HUSBAND SHRI MUKESH M. KELAWALA TO THE TUNE OF RS.23,66,500 /-. OUT OF THIS SHRI MUKESH M. KELAWALA DISCLOSED RS.22,39,295/- ONLY AS UNDISCLOS ED INVESTMENT IN M/S EKTA CORPORATION IN HIS BLOCK RETURN OF INCOME. ON PERUS AL OF DOCUMENTS, RECORDS AND APPELLATE ORDERS IT CAME TO NOTICE THAT YOU HAD MAD E AN INVESTMENT OF RS.1,27,205/- IN M/S EKTA CORPORATION OVER AND ABOVE THE AMOUNT OF R S.1,48,500/- AS DISCLOSED BY YOU IN BLOCK RETURN OF INCOME WHICH IS REQUIRED TO BE T AXED IN YOUR HAND. THUS THE ORDER DATED 30.18.2004 PASSED IN YOUR CASE UNDER SECTION 158BC R.W.S. 158BG IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF R EVENUE. 3. YOU ARE HEREBY GIVEN AN OPPORTUNITY OF BEING HEA RD AND SHOW CAUSE AS TO WHY THE ORDER PASSED BY THE AO SHOULD NOT BE ENHANCED O R CANCELLED BY DIRECTING HIM TO MAKE FRESH ASSESSMENT IN ACCORDANCE WITH LAW. 4 4. YOU ARE REQUESTED TO APPEAR BEFORE THE UNDERSIGN ED EITHER PERSONALLY OR THROUGH YOUR AUTHORISED REPRESENTATIVE ON 14.03.200 7 AT 11.30 P.M AT MY OFFICE IN ROOM NO.215, 2 ND FLOOR, AAYAKAR BHAVAN ANNEXE, RACE COURSE CIRCLE, BARODA ALONG WITH ALL THE SUPPORTING EVIDENCE ON WHICH YOU WISH TO RELY UPON IN THIS REGARD. IN CASE OF NON-COMPLIANCE IT WILL BE PRESUMED THAT YOU HAVE NOTHING TO SAY AND THE MATTER WILL BE DECIDED ON MERITS. YOURS FAITHFULLY, SD/- PROMILA BHARDWAJ) COMMISSIONER OF INCOME-TAX-III BARODA. IN RESPONSE TO THIS, THE ASSESSEE FURNISHED FOLLOWI NG EXPLANATION :- DEAR MADAM, THIS HAS REFERENCE TO YOUR NOTICE U/S 263 OF THE AC T ASKING ME TO ATTEND YOUR OFFICE ON 21.03.2007, SINCE MY HUSBAND IS INCA PACITATED, I SHALL NO BE ABLE TO ATTEND THE HEARING PERSONALLY AND I AUTH ORIZE MR. MUKUND K. RAO, CHARATERED ACCOUNTANT TO ATTEND ON MY BEHALF A ND SUBMIT MY FOLLOWING PAPER : A. FIRST AND FOREMOST, I WISH TO POINT OUT THAT THE PR OVISION OF SECTION 263 OF THE ACT WOULD NOT BE APPLICABLE TO O RDER PASSED U/S 158BC OF THE ACT SINCE THE CHAPTER XIV-B OF THE ACT IS A SELF CONTAINED CODE WHEREIN ALL PROVISION ARE INCORPORAT ED. THE PROVISION OF U/S 158BG OF THE ACT REQUIRED PRIOR AP PROVAL BEFORE PASSING OF THE ORDER BY (JOINT) COMMISSIONER OR BY (JOINT) DIRECTOR. THIS BASICALLY IMPLIES THAT THE O RDER U/S 158BC HAVE BEEN PASSED AFTER HAVING EXAMINED ALL THE ISSU ES WHICH LEAVES NO SCOPE FOR APPLICATION OF ANY OTHER SECTIO N OF THIS ACT. HENCE IN MY HUMBLE OPINION THE PROVISION OF SECTION 263 CANNOT BE APPLIED IN MY CASE. B. NOT WITHSTANDING WHAT STATED IN ABOVE POINT A IN MY RETURN OF INCOME FOR THE BLOCK PERIOD 1.04.1996 TO 13.08.2002 I HAVE CLEARLY SHOWN UNDISCLOSED INVESTMENT OF RS.1,50,000 /- IN M/S EKTA CORPORATION. COPY OF MY DETAILS OF UNDISCLOSED INCOME AND INVESTMENT FOR THE SAID BLOCK PERIOD IS ENCLOSE D FOR YOUR REFERENCE. DURING THE COURSE OF SEARCH, POST SEARCH AND EVEN THEREAFTER THROUGH OUT THE ASSESSMENT PROCEEDING, N O FACTS OF INVESTMENT OVER AND ABOVE RS.1,48,500/- WAS POINTED OUT. THE AMOUNT OF RS.1,27,205/- IS THEREFORE FULLY COVERED BY THE 5 INVESTMENT OF RS.1,50,000/- AS SHOWN IN THE RETURN OF BLOCK PERIOD. YOU ARE REQUESTED TO TAKE MY THIS REPLY ON RECORD A ND DROP THE PROCEEDING U/S 263 OF THE ACT AND OBLIGE. IN NUTSHELL IT WAS EXPLAINED THAT (I) ORDER U/S 158 BC WAS PASSED AFTER EXAMINING ALL THE ISSUES AND (2) INVESTMENT OF RS.1 ,27,205/- IS FULLY COVERED BY THE DISCLOSURE OF RS.1,48,500/- MADE BY HER IN THE BLOCK RETURN. 5. THE LD. CIT, HOWEVER, BEING NOT SATISFIED PROCEE DED TO PASS HIS ORDER U/S 263. HE INDICATED IN THE ORDER U/S 263 TH AT SHRI MUKESH M. KELAWALA AND THE ASSESSEE BECAME PARTNERS IN THE FI RM OF M/S EKTA CORPORATION ON 24.9.1997. THIS FIRM ACQUIRED A PLOT IN SURVEY NO.79 MEASURING 3175 SQ.MTS. AT VILLAGE GHADOKOL, ANKLESH WAR ON 30.10.1996 FOR RS.10 LACS. THE FIRM UNDERWENT CHANGE IN CONSTI TUTION WHEREBY ASSESSEE AND HER HUSBAND SHRI MUKESH M. KELAWALA AC QUIRED 35% AND 50% IN THE PROFITS RESPECTIVELY AND THE REST 15% WA S LEFT FOR SHRI GULAM MOHMED SHAIKH. ON THE DATE OF CHANGE IN THE CONSTIT UTION I.E. 24.9.1997, THE PLOT WAS VALUED AT RS.32.70 LACS AND 85% SHARE THERE WAS WORKED OUT AT RS.27,60,500/-. MR. MRS. KELAWALA HAD ALREADY MA DE INVESTMENT OF RS.3,96,000/- AS REFLECTED IN THE BOOKS AND FURTHER INVESTMENT OF RS.23,66,500/- WAS MADE FOR ACQUIRING SHARES IN PRO FIT OF THE FIRM. SHRI MUKESH M. KELAWALA DECLARED UNDISCLOSED INCOME OF R S.22,39,295/- AS HIS PART OF INVESTMENT IN THE FIRM. HE ALSO STATED THAT UNDISCLOSED INVESTMENT TO THE TUNE OF RS.1,50,000/- WAS MADE BY HIS WIFE. A SUM OF RS.1,00,000/- WAS WITHDRAWN BY HER FROM S.B. A/C N O.23743 WITH BANK OF BARODA ON 6.1.1998 AND ANOTHER SUM OF RS.50,000/ - WAS WITHDRAWN FROM THE SAME ACCOUNT ON 30.7.2002. THE DEPARTMENT SOUGHT TO ASSESSEE 6 THE SUM OF RS.1,27,205/- (BEING DIFFERENCE BETWEEN RS.23,66,500/- THE SUM REQUIRED TO BE AND EXPLAINED SUM OF RS.22,39,29 5/- DECLARED AS UNDISCLOSED INCOME BY SHRI MUKESH M. KELAWALA) IN T HE HANDS OF SHRI MUKESH M. KELAWALA BUT THE TRIBUNAL DELETED THE ADD ITION ON THE GROUND THAT HIS WIFE, THE PRESENT ASSESSEE HAD MADE INVEST MENT AFTER WITHDRAWAL FROM HER BANK ACCOUNT AND, THEREFORE, THE SUM COULD NOT BE ASSESSED IN THE HANDS OF SHRI MUKESH M. KELAWALA. ON THESE FACT S, LD. CIT HAD GIVEN ABOVE NOTICE AND AFTER CONSIDERING THE REPLY FILED BY THE ASSESSEE, REJECTED BOTH THE CONTENTIONS BY OBSERVING AS UNDER :- 7. THE ASSESSEES REPLY HAS BEEN CAREFULLY CONSIDE RED. AS REGARDS THE ASSESSEES OBJECTION AS AT (A) ABOVE, IT MAY BE POI NTED OUT THAT AS PER THE PROVISIONS OF SECTION 158BH OF THE INCOME-TAX ACT, 1961, ALL OTHER PROVISIONS OF INCOME-TAX ACT, 1961 APPLY TO THE ASS ESSMENT MADE UNDER CHAPTER XIV-B. ACCORDINGLY, BLOCK ASSESSMENTS MADE U/S 158BG ARE ALSO COVERED. THE OBJECTION IS, THEREFORE, REJECTED. 8. AS REGARDS THE ASSESSEE'S CONTENTION AT (B) ABOV E, IT MAY BE WORTHWHILE TO REITERATE THAT THE NEW PARTNERSHIP FIRM WHEN SMT BHARATIBEN M. KELAWALA AND SHRI MUKESH M. KELAWALA BECAME PARTNER S IN M/S. EKTA CORPORATION, CAME INTO BEING ON 24.9.1997. THE ASSE SSEE AND HER HUSBAND HELD 35% AND 50% SHARE ACCORDINGLY. IN OTHE R WORDS, THE PARTNERSHIP DEED WAS FINALISED ON 24.9.1997. LT IS ONLY WHEN THE INVESTMENTS AS REQUIRED ARE MADE THAT A PARTNERSHIP DEED CAN BE FINALIZED. ACCORDINGLY, IT IS REASONABLE TO HOLD TH AT THE INVESTMENTS, IN NEW M/S. EKTA CORPORATION BY SMT. BHARTIBEN M, KELA WALA AND HER HUSBAND SHN MUKESH M. KELAWALA WERE MADE ON OR BEFO RE 29.9.1997 BUT NOT LATER. THE ASSESSEE'S PLEA THAT IN HER RETURN F OR THE BLOCK PERIOD 1.4.1996 TO 13.8.2002 SHE HAD CLEARLY SHOWN UNDISCL OSED INVESTMENT OF RS. L50,000/- IN M/S. EKTA CORPORATION DOES NOT HOL D WATER FOR THE SIMPLE REASON THAT THE WITHDRAWALS HAD BEEN MADE FR OM S.B. ACCOUNT NO. 23743 ON 6.1.1998 AND 31.7.20112 I.E. MUCH AFTER TH E FINALIZATION OF THE PARTNERSHIP. IT IS. THEREFORE, NEITHER FEASIBLE NOR LOGICAL TO BELIEVE THAT THE INVESTMENTS ON 24.9.I997 WERE MADE OUT OF FUNDS WIT HDRAWN IN 1998 AND 2002. THE FACTS AND CIRCUMSTANCES ARE A CLEAR POINT ER TO THE INEVITABLE CONCLUSION THAT SMT, BHARATIBEN M KELAWALA MADE AN UNEXPLAINED 7 INVESTMENT OF RS. !,27,205/- IN M/S. EKTA CORPORATI ON OU 24.9.1997 OVER AND ABOVE THE SUM OF RS. 1,50,000/- SHOWN BY HER M BLOCK RETURN OF INCOME, 9. THE REPLIES SUBMITTED BY THE ASSESSEE'S REPRESEN TATIVE ON 21.3.2007 ARE COMPLETELY SILENT ON THIS ASPECT TAKEN BY THE DEPAR TMENT. UNDER THE CIRCUMSTANCES AND HAVING REGARD TO THE ENTIRETY OF FACTS OF THE CASE, THE ORDER U/S 158BC R.W.S. 158BG PASSED BY THE AO, WARD -1, BHARUCH ON 30,8,2004, DETERMINING TOTAL INCOME AT RS.1,48,500/ -. IS HEREBY CANCELLED. THE ASSESSING OFFICER IS DIRECTED TO MAKE FRESH ASS ESSMENT BY THOROUGHLY EXAMINING ALL_THE BANK TRANSACTIONS AND AFTER TAKIN G INTO ACCOUNT OTHER MATERIAL FACTS, IF ANY. 6. BEFORE US, THE LD. AR FOR THE ASSESSEE SUBMITTED TH AT LD. CIT COULD NOT HAVE SET ASIDE THE ASSESSMENT UNDER SECTION 263 BECAUSE IT WILL CREATE A PROCEDURAL BOTTLE NECK. HE SUBMITTED THAT BLOCK A SSESSMENT UNDER CHAPTER XIV-B COULD BE COMPLETED WITHIN 2 YEARS FRO M THE END OF THE MONTHS WHEN SEARCH TOOK PLACE. THERE IS NO PROVISIO N IN CHAPTER XIV-B WHICH WOULD ALLOW ANY EXTENSION OF LIMITATION IN CO MPLETING BLOCK ASSESSMENT UNDER ANY CIRCUMSTANCES. HE SUBMITTED TH AT SEARCH IN THE CASE OF THE ASSESSEE WAS CARRIED OUT ON 13.8.2002. THERE FORE, IN ANY CASE BLOCK ASSESSMENT HAS TO BE COMPLETED BY 31.8.2002, EVEN I F IT WAS TO BE SET ASIDE BY LD. CIT UNDER SECTION 263. SINCE LD. CIT H AS HIMSELF PASSED HIS ORDER ON 30.3.2007 AO COULD NOT HAVE FRAMED THE ASS ESSMENT BY 31.8.2004. THEREFORE, THE ORDER OF LD. CIT WAS WITH OUT JURISDICTION. HE REFERRED TO THE DECISION OF HON. GUJARAT HIGH COURT IN THE CASE OF CARGO CLEARING AGENCY VS. ACIT (2008) 307 ITR 1 (GUJ). LD . AR SPECIFICALLY REFERRED TO THE FOLLOWING PORTION FROM THE ABOVE JU DGMENT FOR HIS PROPOSITION - TIME LIMIT FOR COMPLETION OF BLOCK ASSESSMENT HAS BEEN PROVIDED IN SECTION 158BE OF THE ACT. IT INDICATES THAT THE SAME HAS TO BE WITHIN ONE YEAR/ TWO YEARS FROM THE END OF THE MONT H IN WHICH THE LAST OF THE AUTHORIZATIONS FOR SEARCH UNDER SECTION 132 OF THE ACT WAS EXECUTED, 8 ETC. FOR THE PRESENT, IT IS NOT NECESSARY TO REFER TO THE OTHER PROVISIONS OF THE SAID SECTION. HOWEVER, EXPLANATION 2 AS APPEARI NG IN SECTION 158BE OF THE ACT GIVES AN INDICATION AS TO WHAT WOULD BE THE DATE ON WHICH AN AUTHORISATION SHALL BE DEEMED TO HAVE BEEN EXECUTED . UNDER CLAUSES (A) AND (B) OF EXPLANATION 2, DIFFERENT POINTS OF TIME HAVE BEEN SPECIFIED. BUT IN NO CASE, CAN ONE ENVISAGE THE APPLICABILITY OF T HE PERIOD OF LIMITATION PRESCRIBED UNDER SECTION 153 OF THE ACT FOR COMPLET ION OF ASSESSMENTS AND REASSESSMENTS. THE REVENUE CANNOT CONTEND THAT FOR THE PURPOSE OF REASSESSING THE SO-CALLED ESCAPED UNDISCLOSED INCOM E THE REVENUE WILL RESORT TO THE LIMITATION UNDER SECTION 153 OF THE A CT, BECAUSE UNDISCLOSED INCOME HAS TO BE ASSESSED IN THE MANNER PROVIDED AN D BY ADOPTING THE PROCEDURE PROVIDED IN CHAPTER XIV-B OF THE ACT. NOR IS IT POSSIBLE TO RESORT TO LIMITATION UNDER SECTION 158BE OF THE ACT BECAUSE THE SAID PERIOD OF LIMITATION HAS ALREADY EXPIRED. AT THE CO ST OF REPETITION IN THIS CONTEXT ONE HAS TO REFER TO THE LANGUAGE EMPLOYED I N SECTION 158BA OF THE ACT WHERE THERE IS A POSITIVE MANDATE TO THE ASSESS ING OFFICER TO ASSESS THE UNDISCLOSED INCOME IN ACCORDANCE WITH THE PROVI SIONS OF CHAPTER XIV-B OF THE ACT, NOTWITHSTANDING ANYTHING CONTAINE D IN ANY OTHER PROVISIONS OF THE ACT. AS AGAINST THAT SECTION 158B H STATES THAT EXCEPT AS OTHERWISE PROVIDED IN CHAPTER XIV-B OF THE ACT, ALL OTHER PROVISIONS OF THE ACT SHALL APPLY TO ASSESSMENT MADE UNDER THIS C HAPTER. THEREFORE, ONCE PERIOD OF LIMITATION HAS BEEN PRESCRIBED UNDER SECTION 158BE OF THE ACT THE TIME LIMIT FOR COMPLETION OF ASSESSMENT OF UNDISCLOSED INCOME HAS TO BE AS PROVIDED UNDER THE SAID SECTION. IF THE CO NTENTION OF THE REVENUE IS ACCEPTED SECTION 158BE BECOMES UNWORKABLE THE LI MITATION PRESCRIBED FROM THE DATE OF LAST OF THE AUTHORIZATIONS, OR IN CASE OF REQUISITION UNDER SECTION 132A OF THE ACT, HAS ALREADY EXPIRED. THIS IS ONE MORE INHERENT POINTER WHICH FLOWS ON A CONJOINT READING OF THE PR OVISIONS OF CHAPTER XIV-B OF THE ACT TO INDICATE THAT THE LEGISLATURE D OES NOT INTEND TO REOPEN 9 ASSESSMENTS COMPLETED UNDER CHAPTER XIV-B OF THE AC T ASSESSING THE UNDISCLOSED INCOME BY ADOPTING THE SPECIAL PROCEDUR E PROVIDED IN THE SAID CHAPTER. ACCORDING TO HIM THE LIMITATION FOR COMPLETING THE BLOCK ASSESSMENT IS PROVIDED ONLY IN CHAPTER XIV-B AND THEREFORE, IN AN Y CASE BLOCK ASSESSMENT HAS TO BE COMPLETED WITHIN TWO YEARS. 7. ON MERIT, THE LD. AR SUBMITTED THAT AO HAD CARRI ED OUT ALL THE ENQUIRIES RELATING TO THE ISSUES. HE WAS SATISFIED AND HAD COME TO THE CONCLUSION THAT SUM OF RS.1,27,205/- IS COVERED BY THE DISCLOSURE OF RS.1,48,500/- MADE BY THE ASSESSEE IN THE BLOCK RET URN. 8. HE ALSO REFERRED TO THE DECISION OF HON. SUPREME COURT IN CIT VS. MAX INDIA LTD. 295 ITR 282(SC) FOR THE PROPOSITION THAT THE LAW PREVALENT AT THE TIME WHEN CIT SOUGHT TO REVISE THE ORDER SHOULD BE APPLIED AND NOT THE LAW AMENDED SUBSEQUENTLY RETROS PECTIVELY. 9. FINALLY HE SUBMITTED THAT BY PASSING ORDER UNDER SECTION 263 LD. CIT HAS PAVED THE WAY FOR VIOLATING TIME LIMIT PRES CRIBED UNDER SECTION 158BE. 10. ON OUR ASKING LD. AR FAIRLY SUBMITTED THAT NEIT HER THE AO HAD PUT UP ANY QUESTION REGARDING INVESTMENT MADE IN M/S EK TA CORPORATION NOR THE ASSESSEE HAS HERSELF FURNISHED ANY REPLY, ON T HIS ISSUE. 11. THE LD. DR ON THE OTHER HAND, SUBMITTED THAT AO HAD IN FACT NOT CARRIED OUT ANY ENQUIRY ON THE ISSUE AS TO WHEN INV ESTMENT IN M/S EKTA CORPORATION WAS MADE. IT IS A FACT ON RECORD THAT C HANGE IN CONSTITUTION IN 10 EKTA CORPORATION HAD TAKEN PLACE ON 24.9.1997 WHEN MONEY WAS REQUIRED TO BE PAID TO OUTGOING PARTNERS AND INVESTMENT BY T HE KELAWALA COUPLE WAS MADE AT THAT TIME IN M/S EKTA CORPORATION. HOWE VER, THE WITHDRAWAL FROM THE BANK ACCOUNT AS CLAIMED BY THE ASSESSEE WA S ONLY MADE ON 6.1.1998 AND 31.7.2002. THEREFORE, INVESTMENT IN EK TA CORPORATION COULD NOT BE COVERED BY DISCLOSURE OF RS.1,48,500/-. IN A NY CASE LD. DR SUBMITTED THAT AO HAD NOT CARRIED OUT ANY ENQUIRY A ND LD. CIT HAD ONLY DIRECTED TO MAKE FRESH ASSESSMENT BY THOROUGHLY EXA MINING ALL THE BANK ACCOUNTS. REGARDING TECHNICAL ISSUE OF LIMITATION L D. DR SUBMITTED THAT THE DECISION OF HON. GUJARAT HIGH COURT IN CARGO CL EARING AGENCY (SUPRA) WOULD NOT BE APPLICABLE BECAUSE THAT CASE W AS IN RELATION TO REOPENING OF BLOCK ASSESSMENT BY INVOKING PROVISION S OF SECTION 148(1). THERE IS SPECIFIC BAR IN SECTION 158 BC AGAINST INV OKING PROVISIONS OF SECTION 148(1) TO ASSESSMENT FRAMED UNDER CHAPTER X IV-B. THIS DECISION, THEREFORE, COULD NOT BE APPLIED IN THE CASE COVERED UNDER SECTION 263. HE THEN REFERRED TO SECTION 158BH WHICH PROVIDED FOR A PPLICABILITY OF THE PROVISIONS OF INCOME-TAX ACT EXCEPT THOSE WHICH ARE PROVIDED IN CHAPTER XIV-B. HE SUBMITTED THAT IF PROVISIONS OF SECTION 1 43(2) AND ITS PROVISO CAN BE INVOKED IN BLOCK ASSESSMENT PROCEEDINGS THEN THERE IS NO REASON THAT PROVISION OF SECTION 263 CANNOT BE INVOKED AND LD. CIT CANNOT SET ASIDE THE BLOCK ASSESSMENT IF OTHER CONDITIONS ARE SATISFIED. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW LD. CIT WAS FULLY JUSTIFIED IN CANCELING THE ORDER UNDER SECTION 263. THE LD. AR COULD NOT P OINT OUT AS TO WHETHER THE AO DURING THE COURSE OF BLOCK ASSESSMENT PROCEE DINGS PUT UP ANY QUESTION ABOUT THE INVESTMENT IN EKTA CORPORATION O R THE PERIOD WHEN MONEY WAS WITHDRAWN FROM HER BANK ACCOUNTS. PRIMA F ACIE THE WITHDRAWL 11 OF THE MONEY FROM BANK ACCOUNT WAS MUCH AFTER THE D ATE WHEN CHANGE IN CONSTITUTION OF FIRM EKTA CORPORATION HAD TAKEN PLA CE AND ACCORDINGLY MUKESH M. KELAWALA AND ASSESSEE WERE REQUIRED TO MA KE PAYMENT FOR ACQUIRING HIGHER SHARES OF PROFIT IN THE FIRM. SINC E ENQUIRIES WERE IN FACT NOT CARRIED OUT BY THE AO, LD. CIT WAS JUSTIFIED IN REVISING THE ORDER AND DIRECTING THE AO TO THOROUGHLY EXAMINE BANK STATEME NTS AND PASS FRESH ASSESSMENT. HON. SUPREME COURT IN MALABAR INDUSTRIA L CO. LTD. VS. CIT (2000) 243 ITR 83 (SC) HAS HELD THAT WHERE AO DID N OT MAKE PROPER ENQUIRIES CALLED FOR IN THE CIRCUMSTANCES OF THE CA SE AND ASSESSMENT ORDER DID NOT SHOW THAT AO HAS CONSIDERED ALL ASPECTS OF THE CASE, THE EXERCISE OF JURISDICTION BY THE COMMISSIONER UNDER SECTION 2 63(1) WAS JUSTIFIED. HON. APEX COURT IN THIS REGARD HAS OBSERVED AS UNDE R :- THE COMMISSIONER NOTED THAT THE INCOME-TAX OFFICER PASSED THE ORDER OF 'NIL' ASSESSMENT WITHOUT APPLICATION OF MIND. INDEE D, THE HIGH COURT RECORDED THE FINDING THAT THE INCOME-TAX OFFICER FA ILED TO APPLY HIS MIND TO THE CASE IN ALL PERSPECTIVE AND THE ORDER PASSED BY HIM WAS ERRONEOUS. THE RESOLUTION PASSED BY THE BOARD OF THE APPELLANT -COMPANY WAS NOT PLACED BEFORE THE ASSESSING OFFICER. THUS, THERE WA S NO MATERIAL TO SUPPORT THE CLAIM OF THE APPELLANT THAT THE SAID AM OUNT REPRESENTED COMPENSATION FOR LOSS OF AGRICULTURAL INCOME. HE AC CEPTED THE ENTRY IN THE STATEMENT OF THE ACCOUNT FILED BY THE APPELLANT IN THE ABSENCE OF ANY SUPPORTING MATERIAL AND WITHOUT MAKING ANY INQUIRY. ON THESE FACTS, THE CONCLUSION THAT THE ORDER OF THE INCOME-TAX OFFICER WAS ERRONEOUS WAS IRRESISTIBLE. THE HIGH COURT HAD RIGHTLY HELD THAT THE EXERCISE OF JURISDICTION BY THE COMMISSIONER UNDER SECTION 263( 1) WAS JUSTIFIED. THIS JUDGMENT WAS FOLLOWED BY FOLLOWING COURTS/TRIB UNAL BENCHES IN COMING TO THE CONCLUSION THAT WHERE AO DID NOT MAKE PROPER ENQUIRIES THEN ORDER OF THE AO WOULD BE ERRONEOUS AND PREJUDI CIAL TO THE INTEREST OF REVENUE AND, THEREFORE, THE LD. CIT WOULD BE JUSTI FIED IN REFUSING THE SAME: 12 1. CIT V. DEEPAK KUMAR GARG [2008] 299 ITR 0435- [M .P.] 2. RAJALAKSHMI MILLS LTD V ITO. (2009) 121 ITD 343 (CHENNAI) (SB). 3. RAJIV AGNIHOTRI VS. CIT (2009) 23 DTR 476 (DEL.) (TRIB.) 4. DUGGAL AND CO. V. CIT [1996] 220 ITR 0456- [DEL] 5. CIT V. SOUTH INDIA SHIPPING CORPORATION LTD. [19 98] 233 ITR 0546- [MAD] 6. CIT V. EMERY STONE MFG. CO. [1995] 213 ITR 0843- [RAJ] THEREFORE, WE REJECT THE ARGUMENTS OF LD. AR ON THI S POINT. 13. NOW WE DEAL WITH THE MAIN CONTENTION RAISED BY LD. AR THAT LD. CIT COULD NOT HAVE EXERCISED JURISDICTION UNDER SEC TION 263 BECAUSE IT WOULD ENABLE THE AO TO PASS FRESH ASSESSMENT ORDER BEYOND TIME LIMIT PRESCRIBED UNDER SECTION 158BE. FOR THIS CONTENTION HE HAS RELIED ON THE DECISION OF HON. GUJARAT HIGH COURT IN CARGO CLEARI NG AGENCY (SUPRA). IN OUR CONSIDERED VIEW AS ALSO AS PER ARGUMENT BY LD. DR, ABOVE JUDGMENT WAS ON THE ISSUE WHETHER NOTICE U/S 148(1) CAN BE ISSUED TO REASSESS ANY ESCAPED INCOME IN BLOCK ASSESSMENT. HO N. GUJARAT HIGH COURT HELD THAT THE AO HAS NO JURISDICTION TO REOPE N BLOCK ASSESSMENT BY ISSUING NOTICE U/S 148(1). IT WAS HELD THAT CHAPTER XIV-B PROVIDES FOR A SPECIAL PROCEDURE FOR ASSESSMENT OF SEARCH CASES. I T PROVIDES FOR COMPUTATION OF UNDISCLOSED INCOME IN THE MANNER AS LAID DOWN IN SECTION 158BB. ONE CANNOT ENVISAGE ESCAPEMENT OF UNDISCLOSE D INCOME ONCE A SEARCH HAS TAKEN PLACE, ALL THE MATERIAL DISCOVERED IN SEARCH IS PROCESSED AND UNDISCLOSED INCOME IS BROUGHT TO TAX. ON THE OT HER HAND, SECTION 147 APPLIES FOR ASSESSING ESCAPED INCOME IN REGULAR ASS ESSMENT. IN CHAPTER XIV-B THERE CANNOT BE A CASE OF NON-DISCLOSURE OF M ATERIAL FACT AS EVERY THING HAS BEEN DISCOVERED AND UNEARTHED BY WAY OF S EARCH. THE BLOCK ASSESSMENT HAS TO BE CARRIED OUT ON THE BASIS OF MA TERIAL AND INFORMATION FOUND AS A RESULT OF SEARCH AND ON THE BASIS OF ENQ UIRIES CARRIED OUT THEREAFTER. FURTHER THERE IS ALWAYS AN APPLICATION OF MIND OF COMMISSIONER OR DIRECTOR WHILE GIVING APPROVAL AS P ER SECTION 158BG. IT 13 WAS TO ENSURE THAT THERE IS NO UNDISCLOSED INCOME E SCAPING ASSESSMENT AND ALSO THERE IS NO HIGH PITCH ASSESSMENT. CHAPTER XIV-B PROVIDES SEPARATE TIME LIMIT TO COMPLETE BLOCK ASSESSMENT AS PER SECTION 158BE. THE PROVISIONS LAID DOWN U/S 147 TO 153 PERTAINING TO REASSESSMENT ARE SEPARATE AND DISTINCT FROM EACH OTHER AND SCHEME UN DER CHAPTER XIV-B FOR THE PURPOSES OF BLOCK ASSESSMENT IS SEPARATE. S ECTION 158 BH PROVIDES THAT WHERE THERE IS A CONFLICT BETWEEN THE TWO SCHEME OF PROCEDURE, THE PROVISION OF CHAPTER XIV-B OF THE AC T SHALL PREVAIL AND HOLD PRIMACY. IN NUT SHELL THE HON. GUJARAT HIGH CO URT HELD THAT NOTICE UNDER SECTION 148(1) CANNOT BE ISSUED TO ASSESS ANY ESCAPED INCOME IN CASE OF ASSESSMENT FRAMED UNDER CHAPTER XIV-B AS TH ERE CANNOT BE ANY ESCAPEMENT OF CONCEALED INCOME AS EVERY THING HAS B EEN DISCOVERED, UNEARTHED OR BROUGHT TO SURFACE. THERE CANNOT BE ES CAPEMENT BEHIND CONCEALMENT. 14. WHEN WE EXAMINE THE PROVISIONS OF SECTION 158BC AND FIND THAT THERE IS A SPECIFIC PROVISION MADE THEREIN BY WAY O F FIRST PROVISO IN CLAUSE (A) THEREOF AS UNDER. PROVIDED THAT NO NOTICE UNDER SECTION 148 IS REQUIRED TO BE ISSUED FOR THE PURPOSES OF PROCEDURE UNDER THIS CHAPTER . THUS THERE IS A SPECIFIC BAR IN THE STATUTE ITSELF FOR TAKING ACTION UNDER SECTION 148 IN A BLOCK ASSESSMENT. NO SUCH PROVISION IS MADE FOR DEBARRING THE COMMISSIONER FROM TAKING ACTION UNDER SECTION 263. ON THE OTHER HAND, SECTION 263 PROVIDES THAT COMMISSIONER CAN CALL FOR AND EXAMINE RECORDS OF ANY PROCEEDINGS UNDER THIS ACT. THUS A JURISDICTION IS GIVEN TO THE COMMISSIONER TO CALL FOR RECORD OF ANY PROCEEDINGS UNDER THIS ACT MEANING THEREBY THAT HE CAN ALSO CALL FOR RECORDS O F PROCEEDINGS CARRIED 14 OUT UNDER CHAPTER XIV-B. UNLESS THERE IS A SPECIFIC BAR OR PROHIBITION ON THE POWER OF THE COMMISSIONER, HE CANNOT BE PREVENT ED FROM CALLING RECORD OF PROCEEDINGS CARRIED OUT BY THE AO UNDER C HAPTER XIV-B. 15. FURTHER, IT IS PROVIDED UNDER SECTION 263 THAT IF COMMISSIONER CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE AO IT MEANS AND IT COVERS ANY ORDER PASSED BY THE AO UNDER INCOME-TAX ACT. CHAPTER XIV- B IS UNDISPUTEDLY ENACTED WITHIN INCOME-TAX ACT AND ORDER PASSED BY THE AO U/S 158BC OR 158BD IS WITHOUT ANY DISPUTE AN ORD ER UNDER INCOME- TAX ACT. THEN CIT WOULD BE WITHIN HIS JURISDICTION TO CONSIDER THE ORDER PASSED UNDER SECTION 158BC AS ERRONEOUS IN SO FAR I T IS PREJUDICIAL TO THE INTEREST OF REVENUE. THE WORD ORDER MENTIONED IN SECTION 263 WHICH COULD BE THE SUBJECT MATTER OF REVISION BY THE CIT WOULD MEAN AN ORDER DETERMINING THE RIGHTS AND LIABILITIES OF THE ASSES SEE UNDER INCOME-TAX ACT. AN ORDER U/S 158BC OR 158BD DOES DETERMINE RIG HTS AND LIABILITIES OF THE ASSESSEE SUBJECTED TO SEARCH. 16. THEREAFTER ONLY REQUIREMENT WITH THE CIT IS TO HOLD THAT ORDER WHICH IS SUBJECT TO REVISION IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE. WE HAVE ALREADY HELD ABOVE THA T WHERE ORDER IS PASSED BY AN ASSESSING OFFICER WITHOUT CARRYING OUT PROPER ENQUIRIES WOULD BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL T O THE INTEREST OF REVENUE. 17. THE CONTENTION OF LD. AR IS BASICALLY FOCUSED O N LIMITATION ON THE ISSUE. WE ARE UNABLE TO AGREE WITH THIS CONTENTION. WE HAVE ALREADY DISCUSSED THAT THE CASE OF CARGO CLEARING AGENCY (S UPRA) IS NOT APPLICABLE IN THE MATTER OF REVISION UNDER SECTION 263 AND FURTHER WE ALSO HOLD THAT THE OBSERVATION OF HON. GUJARAT HIGH COUR T REGARDING LIMITATION IS APPLICABLE ONLY IN A CASE OF REOPENING BLOCK ASS ESSMENT UNDER SECTION 15 148(1). IT CANNOT BE FOR GENERAL APPLICATION FOR AL L OTHER ACTIONS TO BE TAKEN UNDER INCOME-TAX ACT. IN OUR CONSIDERED VIEW THE PROVISIONS OF SECTION 158BH WOULD BE APPLICABLE IN RESPECT OF PRO CEEDINGS UNDER SECTION 263 ALSO. THIS SECTION READS AS UNDER :- 158BH. APPLICATION OF OTHER PROVISIONS OF THIS ACT. --SAVE AS OTHERWISE PROVIDED IN THIS CHAPTER, ALL OTHER PROVISIONS OF T HIS ACT SHALL APPLY TO ASSESSMENT MADE UNDER THIS CHAPTER. THIS PROVISION HAS BEEN INTERPRETED BY HON. APEX CO URT IN ACIT VS. HOTEL BLUE MOON (2010) 321 ITR 362 (SC) WHEREIN IT IS HELD THAT BY VIRTUE OF SECTION 158BH IT WOULD BE NECESSARY TO IS SUE THE NOTICE UNDER SECTION 143(2) BEFORE FRAMING BLOCK ASSESSMENT. THE OBSERVATIONS OF HON. APEX COURT IN THIS REGARD ARE AS UNDER :- IF THE ASSESSING OFFICER, FOR ANY REASON, REPUDIAT ES THE RETURN FILED BY AN ASSESSEE IN RESPONSE TO NOTICE UNDER SECTION 158BC( A) OF THE INCOME-TAX ACT, 1961 RELATING TO A BLOCK ASSESSMENT, THE ASSES SING OFFICER MUST NECESSARILY ISSUE NOTICE UNDER SECTION 143(2) OF TH E ACT WITHIN THE TIME PRESCRIBED IN THE PROVISO TO SECTION 143(2). BY MAKING THE ISSUE OF NOTICE MANDATORY, SECTION 15 8BC, DEALING WITH BLOCK ASSESSMENTS, MAKES SUCH NOTICE THE VERY FOUND ATION FOR JURISDICTION. SUCH NOTICE IS REQUIRED TO BE SERVED ON THE PERSON WHO IS FOUND TO HAVE UNDISCLOSED INCOME. SECTION 158BC PROVIDES FOR ENQUIRY AND ASSESSMENT. AFTER THE RETURN IS FILED, CLAUSE (B) OF SECTION 158BC PROVIDES THAT TH E ASSESSING OFFICER SHALL PROCEED TO DETERMINE THE UNDISCLOSED INCOME O F THE BLOCK PERIOD IN THE MANNER LAID DOWN IN SECTION 158BB AND 'THE PROV ISIONS OF SECTION 142, SUB-SECTIONS (2) AND (3) OF SECTION 143, SECTI ON 144 AND SECTION 145 SHALL, SO FAR AS MAY BE, APPLY'. THIS INDICATES THA T THIS CLAUSE ENABLES THE ASSESSING OFFICER, AFTER THE RETURN IS FILED, TO CO MPLETE THE ASSESSMENT UNDER SECTION 143(2) BY FOLLOWING THE PROCEDURE LIK E ISSUE OF NOTICE UNDER SECTION 143(2) /142. THIS DOES NOT PROVIDE ACCEPTIN G THE RETURN AS PROVIDED UNDER SECTION 143(1)(A) : THE OFFICER HAS TO COMPLETE THE ASSESSMENT UNDER SECTION 143(3) ONLY. IF AN ASSESSM ENT IS TO BE COMPLETED 16 UNDER SECTION 143(3) READ WITH SECTION 158BC, NOTIC E UNDER SECTION 143(2) SHOULD BE ISSUED WITHIN ONE YEAR FROM THE DA TE OF FILING OF THE BLOCK RETURN. OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE UNDER SECTION 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND IS NOT CURABLE. THEREFORE, THE REQUIREMENT OF NOTICE U NDER SECTION 143(2) CANNOT BE DISPENSED WITH. IN RESPECT OF APPLICABILITY OF SECTION 127 HON. APE X COURT IN K.P. MD. SALIM VS. CIT (2008) 300 ITR 302 (SC) HELD THAT SEC TION 127 WOULD APPLY IN BLOCK ASSESSMENT ALSO BY VIRTUE OF SECTION 158BH: THE POWER UNDER SECTION 127 OF THE INCOME-TAX ACT, 1961, TO TRANSFER CASES FROM ONE ASSESSING OFFICER TO ANOTHER CAN ALS O BE EXERCISED IN RESPECT OF BLOCK ASSESSMENTS. THE WORD ANY IN THA T SECTION MUST BE READ AS ALL. THE POWER TO TRANSFER IS IN EFFECT A MACHINERY PROV ISION. IT MUST BE GIVEN FULL EFFECT. IT MUST BE CONSTRUED IN A MANNER SO AS TO BE WORKABLE. IT SHOULD BE CONSTRUED TO EFFECTUATE THE CHARGING SECT ION SO AS TO ALLOW THE AUTHORITIES CONCERNED TO DO SO IN A MANNER WHEREFOR THE STATUTE WAS ENACTED. DECISION OF THE KERALA HIGH COURT IN K. V. KADER HA JI V. CIT [2004] 268 ITR 465 AFFIRMED. ONCE THE PROVISIONS OF SECTION 158BH HAS BEEN INTER PRETED SO TO ENABLE THE APPLICABILITY OF ALL OTHER PROVISIONS OF THE AC T WHICH ARE NOT SPECIFICALLY PROVIDED IN CHAPTER XIV-B, THEN THERE IS NO REASON TO HOLD THAT PROVISIONS OF SECTION 263 WOULD NOT BE APPLICA BLE TO BLOCK ASSESSMENT. 18. ONCE PROVISIONS OF SECTION 263 ARE APPLICABLE T O BLOCK ASSESSMENT THEN THEREAFTER QUESTION OF RESTRICTING COMPLETION OF FRESH ASSESSMENT BY PROVISIONS OF SECTION 158BE WOULD NOT ARISE. SINCE SEC.158BE DOES NOT PRESCRIBE ANY LIMIT FOR COMPLETING ASSESSMENT AFTER IT IS BEING SET ASIDE BY 17 CIT, THEN BY VIRTUE OF SECTION 158BH LIMITATION AS LAID DOWN IN SECTION 153(2A) WOULD BE APPLICABLE. THEREFORE, IT IS NOT A CASE WHERE LIMITATION FOR COMPLETING ASSESSMENT AFTER REVISION IS NOT AVA ILABLE UNDER INCOME- TAX ACT. IT IS NOT PROPER TO HOLD THAT ONCE LIMITAT ION FOR COMPLETING FRESH ASSESSMENT AFTER REVISION IS NOT PROVIDED UNDER SEC TION 158BE THEN CIT CANNOT REVISE THE ASSESSMENT UNDER SECTION 263. IN OUR CONSIDERED VIEW THE REVISION UNDER SECTION 263 IS INDEPENDENT AND D IFFERENT FROM COMPLETION OF FRESH ASSESSMENT AFTER REVISION. IF F OR SOME REASON AO DOES NOT CONFINE TO A LIMITATION PRESCRIBED UNDER I.T. A CT OR THERE IS A DISPUTE ON ISSUE OF LIMITATION FOR COMPLETING FRESH ASSESSM ENT THEN IT WILL NOT TAKE AWAY THE JURISDICTION OF CIT TO REVISE THE ASSESSME NT AND ALSO BLOCK ASSESSMENT BY EXERCISING HIS POWER UNDER SECTION 26 3. WHEN WE PRECONDITION THE ISSUE OF LIMITATION IN COMPLETING FRESH ASSESSMENT, FOR DETERMINING WHETHER CIT COULD EXERCISE HIS POWER UN DER SECTION 263 IT WOULD MEAN THAT NEW CONDITION IS BEING ATTACHED UND ER SECTION 263 FOR EXERCISING JURISDICTION THERE-UNDER I.E. IF AO CAN COMPLETE FRESH ASSESSMENT WITHIN LIMITATION THEN CIT WILL HOLD JUR ISDICTION U/S 263 TO REVISE AN ORDER AND IF AO COULD NOT COMPLETE FRESH ASSESSMENT WITHIN LIMITATION, THEN CIT WILL NOT HOLD JURISDICTION TO REVISE THE ERRONEOUS ORDER OF A.O. IN OUR VIEW THIS IS AKIN TO LEGISLATI ON. NO NEW CONDITION CAN BE SEEN OR READ IN EXERCISING OF ANY PROVISION IF T HEY ARE NOT SPECIFICALLY PROVIDED THERE-UNDER. THE ONLY CONDITION FOR INVOKI NG PROVISIONS OF SECTION 263 IS THAT ORDER OF THE AO IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE AND NO MORE. WHETHER AO WOULD COMPLETE FRESH ASSESSMENT WITHIN A LIMITATION OR NO T, OR WHETHER THERE IS A DISPUTE ON THE LIMITATION OR WHETHER PROVISIONS FOR LIMITATION UNDER IT ACT TO COMPLETE ASSESSMENT BY AO AFTER REVISION ARE APPLICABLE OR NOT, ARE ALIEN TO THE EXERCISE OF JURISDICTION BY THE CO MMISSIONER UNDER SECTION 263. 18 19. AS A RESULT, WE HOLD THAT LD. CIT WAS JUSTIFIED IN CANCELING THE ASSESSMENT UNDER SECTION 263. BOTH ON TECHNICAL GRO UND AS WELL AS ON MERIT THE APPEAL FILED BY THE ASSESSEE IS DISMISSED . 20. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER WAS PRONOUNCED IN OPEN COURT ON 9/7/2010 SD/- SD/- (MAHAVIR SINGH) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD, DATED :9/7/2010 MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD FIT FOR PUBLICATION. (JUDICIAL MEMBER) (ACCOUNTANT MEMBER)