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TMI Blog2019 (6) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... . - ITA No.479/PUN/2017 - - - Dated:- 10-6-2019 - Ms. Sushma Chowla, JM And Shri Anil Chaturvedi, AM For the Assessee : Shri Ketan Ved For the Revenue : Shri S.B. Prasad ORDER PER SUSHMA CHOWLA, JM : The appeal filed by the assessee is against the order of Principal Commissioner of Income Tax 1, Aurangabad dated 22.12.2016 relating to assessment year 2010-11 against order passed u/s 143(3) r.w.s.147 of the Income Tax Act 1961 (in short the Act ). 2. The issue raised in the present appeal is against exercise of jurisdiction by the Commissioner of Income Tax under section 263 of the Act. 3. Briefly, in the facts of the case, the assessee had furnished return of income declaring total income of ₹ 1,99,07,894/-. The assessment in the case of the assessee was completed under section 143(3) of the Act on total assessed income of ₹ 7,01,62,300/-. A search and seizure action under section 132 of the Act was carried out in the case of M/s. Praj Industries Ltd., Pune and its associated concern and directors. During the course of search, certain incrimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the reasons on which addition was proposed. However, the assessee did not attend in response and the Assessing Officer issued notice under section 143(2) on 19-02-2015. Thereafter, the Assessing Officer issued letter dated 03-03-2015 communicating the reasons on which addition was proposed. In the case, hearing was fixed on 09-03-2015. The assessee filed return of income on 19-03-2015 along with written submissions wherein it raised objection for issuance of notice under section 148. The assessment order under section 143(3) r.w.s.147 was passed on 21-03-2015. The Commissioner further notes that the Assessing Officer dealt with the objection in the body of the order itself and completed the scrutiny assessment by making addition of ₹ 2.18 crore. The Commissioner further observed as under : It has been objected by the assessee that he was not in receipt of reasons recorded u/s.148. On verification of the record, no such communication or order sheet noting is found on record. Moreover, in view of decision of the Hon ble Supreme Court in the case of GKN Drives Shaft (259 ITR 19 (SC)) and of the Hon ble Bombay High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Representative for the assessee pointed out that the order passed by the Assessing Officer was void since the objections of the assessee on the reasons recorded for reopening the assessment were not separately decided. Hence, the exercise of jurisdiction by the Commissioner under section 263 of the Act was not correct. 9. The learned Departmental Representative for the Revenue placed reliance on order of Commissioner. 10. We have heard the rival contentions and perused the record. The issue which arises in the present appeal is that where the assessment order passed by the Assessing Officer is admittedly void, can there be any exercise of jurisdiction by the Commissioner under section 263 of the Act against such void order which infact did not exist in law. As referred in the facts narrated above, the original assessment in the case of the assessee was completed under section 143(3) of the Act on 26-03-2013. During the course of search on M/s. Praj Industries Ltd., certain documents were found relating to assessee and the reasons were recorded for reopening the assessment under section 147 of the Act against the assessee. The said reasons were recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under section 263 of the Act where the assessment order is live. Incase the order is void, then the same cannot be held to be erroneous and prejudicial to the interest of revenue. We find no merit in the exercise of jurisdiction by the Commissioner in this regard, where he himself admits that the assessment order was void. 12. The Hon ble Calcutta High Court in Keshab Narayan Banerjee Vs. CIT (supra) in similar situation of exercise of power by the Commissioner under section 263 of the Act against the order passed under section 147 of the Act, wherein the condition precedent of service of notice was not fulfilled, held that such orders were bad in law and therefore, the proceedings under section 263 of the Act, admittedly, originating from such orders could not be initiated against the appellants. 13. The Pune Bench of the Tribunal in similar situation of exercise of jurisdiction by the Commissioner under section 263 of the Act, in Manisha Construction Co. Vs. CIT (supra) held that in a case where while initiating the penalty proceedings for concealment observed that where from the assessment order is not clear as to which limb of section 271(1)(c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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