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TMI Blog2018 (3) TMI 1938X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. This bunch of appeals filed by the assessee are against the order of Commissioner of Income Tax (Central), Nagpur dt.23.03.2015 relating to different assessment years passed under Section 263 of the Income Tax Act, 1961 (in short 'the Act'). 2. This bunch of appeals relating to related assessees were heard together and are being disposed of by this consolidated order for the sake of convenience. 3. The issue raised in the bunch of appeals are against the exercise of jurisdiction by the Commissioner of Income Tax (Central), Nagpur under Section 263 of the Act. However, we proceed to dispose of the present appeals after referring to the facts and issue in ITA No.811/PUN/2015. 4. The assessee in ITA No.811/PUN/2015 has raised the following grounds of appeal : 1. On the basis of facts and in the circumstances of the case and as per law, the Commissioner of Income Tax (Central), Nagpur is not justified in invoking the provisions of section 263 of the Act. 2. On the basis of facts and in the circumstances of the case, the Commissioner of Income Tax (Central), Nagpur is not justified in invoking the provisions of section 263 of the Act for the reason that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diary was found at the residential premises of Shri Anant Rajegaonkar, which is placed at Annexure A-8. Certain entries were found in the diary under which the conclusion was that the assessee had received certain amounts. The explanation of the assessee was rejected as Shri Anant Rajegaonkar during the statement recorded under Section 131 of the Act on 09.11.2010 had accepted that most of the transactions in the diary were undisclosed receipts and unexplained. The Assessing Officer was of the view that the said amount was to be added in the hands of the assessee totaling to ₹ 11,83,000/-. Hence, the same was added in assessment year 2007-08. Similarly, in the year of search i.e., assessment year 2011-12 additions were made on account of the notings in the seized diary. 6. The Commissioner was of the view that the Assessing Officer had failed to take full cognizance of the incriminating material relating to the assessee, which was seized during the course of search and seizure operations under Section 132 of the Act, which was conducted in the Suyojit Group of cases on 17.09.2010. Thus, the assessment order passed by the Assessing Officer, as per the Commissioner of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amed under Section 153A r.w.s 143(3) of the Act were amenable to revisionary proceedings under Section 263 of the Act. 9. We find that the issue of power of revision by the Commissioner under Section 263 of the Act arose before the Tribunal in the case of Rasiklal M. Dhariwal (HUF) V/s. CIT in ITA Nos.1102 to 1107/PUN/2014 relating to assessment years 2004- 05 and 2006-07 to 2010-11 vide order dt.28.12.2016, in turn relying on the ratio laid down by the Hon'ble Allahabad High Court in the case of CIT Vs Dr Ashok Kumar in ITA No.192 of 2000 vide judgment dated 06.08.2012 and the decision of other benches of the Tribunal, it was held as under : 9. We have heard the rival submissions and perused the material on record. The issue in all the present cases is about the invoking of provisions of Section 263 by ld.CIT. Section 263(1) of the Act, the powers under which CIT has assumed power for revision reads as under: The 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 ITO is erroneous in so far as it is prejudicial to the interests of the Revenue, he may, after giving the assessee an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimates himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and, left to the Commissioner, he would have estimated the income at a higher figure than the one determined by the ITO. That would not vest the Commissioner with power to re-examine the accounts and determine the income himself at a higher figure. It is because the ITO has exercised the quasi-judicial power vested in him in accordance with law and arrived at a conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. It may be said in such a case that in the opinion of the Commissioner the order in question is prejudicial to the interest of the Revenue. But that by itself will not be enough to vest the Commissioner with the power of suo motu revision because the first requirement, namely, the order is erroneous, is absent. Similarly if an order is erroneous but not prejudicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 18.11.2014) the Co-ordinate Bench of the Lucknow Tribunal has observed as under: 19. It is also obvious from the record that while completing the assessment, the Assessing Officer has obtained approval from the JCIT. Therefore, the JCIT has also applied his mind to the factum of seizure of cash of ₹ 2 crores from the assessee and after obtaining approval, the assessment was framed and having convinced with the explanations furnished by the assessee with regard to the availability of cash, no addition was made. Our attention was also invited to the assessment orders framed in the cases of Model Exims; Model Echoes Pvt. Ltd. ; Mohd. Khalid, Prop. S. K. Enterprises and A. L. Razeek Traders, of which copies are available at pages 209 to 309 of the compilation of the assessee, Smt. Nausheen Farah Lari. These assessment orders were framed under section 153C read with section 153A of the Act consequent to the search and seizure operation conducted upon the assessee, in which cash of ₹ 2 crores were found. Therefore, the issue of seizure of ₹ 2 crores was also examined by the Revenue authorities in the hands of the concerned persons to whom the cash relate. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Trinity Infraventures Ltd. Vs. DCIT (ITA Nos.584 to 589/Hyd/2015 order dated 04.12.2015) has noted as under : 5.4 The Ld. Counsel for the assessee has further submitted 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 directions of the Addl.CIT under section 153D of the I.T. Act. The Ld. Counsel for the assessee, has relied upon the decisions of this Tribunal in the case of Ch. Krishna Murthy Vs. ACIT, C.C.3, Hyderabad in I.T.A.No.766/Hyd/2012 dated 13.02.2015 and also the decision of Lucknow Bench of ITAT in the case of Mehtab Alam 288/Luck/2014 dated 18.11.2014 in support of this contention. He has also placed reliance upon the decision of Hon'ble Allahabad High Court in the case of CIT Vs. Dr. Ashok Kumar in I.T. Appeal No.192 of 2000 wherein it has been held that the assessment order approved by the Addl.CIT under section 263 of the I.T. Act. In view of the above decision also, we hold that the revision order under section 263 of the I.T. Act is not sustainable. Accordingly, we allow the grounds of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee are allowed in all the years. 10. The issue arising before us is similar to the issue before the Tribunal in the case of Rasiklal M. Dhariwal (HUF) V/s. CIT (supra). Hence, following the same parity of reasoning and applying the ratio laid down by the Hon'ble Allahabad High Court in the case of CIT Vs Dr. Ashok Kumar (supra), we hold that the exercise of the power by the Commissioner under Section 263 of the Act is invalid. The Commissioner was not justified in resorting to the revisionary powers under Section 263 of the Act. Accordingly, we set aside the order passed by the Commissioner, who in turn had set aside the assessment orders passed by the Assessing Officer under Section 153A r.w.s. 143(3) of the Act. It may be pointed that in the year of search, i.e. assessment year 2011-12, the facts were identical to the facts in the earlier years as is noted by the Commissioner of Income Tax and was based on the incriminating material found during the course of search. Accordingly, we hold where the assessment order in assessment year 2011-12 i.e. year of search was also passed with prior approval of Joint Commissioner of Income Tax, Central Range, Nashik, obtained vid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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