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TMI Blog2022 (5) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the additional ground raised by the assessee. The Tribunal has decided the additional ground against the assessee by observing in para 8 of the impugned order as under:- "8. In view of the fact that the survey proceedings under section 133A were duly conducted on 6.1.2012 but due to interruption, the political leaders and local leaders of the Vyapar Mandal, the proceedings could not reach to the conclusion and were to stopped unconcluded. The Assessing Officer, thereafter, conducted a post survey enquiry by issuing notice under section 131 to the assessee to appear alongwith the books of accounts and other records. In response to the submissions issued under section 131 of the Act, the assessee appeared alongwith the record and books of accounts and his statement was also recorded under section 131 of the Act. Therefore, apart from the statement recorded under section 133A of the Act on 6.1.2012, a statement of the assessee was also recorded under Section 131 of the Act by the Assessing Officer on 27.01.2012. It appears that there is no much gap between the survey and the post survey enquiry conducted by the Assessing Officer therefore the post survey enquiry are part and pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the scope and jurisdiction of this Tribunal under section 254(2) is very limited and circumscribed to rectify a mistake apparent from record. Therefore, the Tribunal cannot review its own order in the proceedings under section 254(2) of the Act. The case law relied upon by the learned DR on this point are binding and there is no quarrel on this issue however, the failure to consider an important fact or contention raised during the hearing would certainly be a mistake apparent from record as the said relevant fact is likely to effect the decision on an issue. Non consideration of such a crucial and relevant fact and point out which is going to influence the decision is an apparent mistake from record requires to be rectified under section 254(2) of the Income Tax Act. The learned DR has also relied upon the various decisions on the point that the assessee has not raised any objection regarding jurisdiction of the Assessing Officer during the assessment proceedings and therefore cannot be permitted to raise this issue. It is pertinent to note that those decisions are only on the issue of jurisdiction of the Assessing Officer to assess the assessee and not on the validity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for compulsory scrutiny is concerned, these instructions invariably issued for a particular financial year and therefore, for each financial year, fresh instructions are issued by the CBDT. The instructions issued by the CBDT are binding in nature on the Assessing Officer. The CBDT, vide instructions no. 10/2013 dated 5th August, 2013 issued the instructions in suppression of earlier instructions on the subject for selecting the case under compulsory scrutiny during the financial year 2013-14. These instructions were partially modified vide instruction no. 10/2013 dated 20th September, 2013 to include item no. (i) and (j). He has referred to the authorization letter for conducting the survey under section 133A of the Income Tax Act and the Assessing Officer was not authorized officer to carry out the survey. After conclusion of survey on 6.1.2012, the Assessing Officer issued summon under section 131 on 24.1.2012. In response to the said notice, the assessee produced the books of accounts which were impounded by the Assessing Officer on 27.1.2012. Thus, the learned AR has submitted that the books of accounts impounded by the Assessing Officer were not as part of the survey proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration is greater than the income returned in the immediately preceding year and in the absence of any disclose during the survey then the case of the assessee does not fall in any of the criteria for compulsory scrutiny. Thus, the assessee's case is covered under these exceptions and selection of the case by the Assessing Officer for compulsory scrutiny was not as per the binding instructions / directions of the CBDT and consequently the same is invalid and liable to be quashed. The learned AR has submitted that when the statutes provides for a particular procedure, the tax authority has to follow the same and cannot be permitted to act in contravention of the same. In support of his contention, he has relied upon the judgment of Hon'ble jurisdiction High Court in the case of CIT vs. Rajiv Sharma 336 ITR 678. Accordingly, the Assessing Officer was not justified in assuming the jurisdiction for issuing notice under section 143(2) dated 11.6.2013 which is in contravention of the instructions of the CBDT and further the same is much before the guidelines issued by the CBDT dated 5th August, 2013 which were subsequently modified on 20th September, 2013. 6. On the other h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided for compulsory scrutiny. The learned DR has referred to the statement of the assessee recorded under section 133A and submitted that in reply to question no. 4, the assessee has stated that cash ledger is not prepared and books of accounts was not available whereas in response to notice under section 131, the assessee produced the books of accounts as well as other records which is contradictory to the earlier statement. The learned DR has referred to section 131(3) and submitted that Assessing Officer is authorized to impound the books of accounts which was approved by the CIT as per the reasons recorded by the Assessing Officer for impounding the documents. Thus all the conditions are satisfied as provided under section 131(3) of the Act. There is no infirmity in the case taken up for compulsory scrutiny by the Assessing Officer. 7. I have considered the rival submissions as well as relevant material on record. The undisputed facts of the case which are already recorded by the Tribunal in order dated 21st October, 2021 that there was a survey under section 133A of the Act at the business premises of the assessee carried out on 6th January, 2012. There were interruption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s including the cases selected under manual criteria will be completed through AST system software only. 3. The following categories of cases / returns shall be compulsorily scrutinized:- a) Cases where value of international transaction as defined u/s 92B of IT Act exceeds Rs. 15 crores. b) Cases involving addition in an earlier assessment year on the issue of transfer pricing in excess of Rs. 10 Crores or more which is confirmed in appeal or is pending before an appellate authority. c) Cases involving addition in an earlier assessment year in excess of Rs. 10 lacs on a substantial and recurring question of law or fact which is confirmed in appeal or is pending before an appellate authority. d) All assessments pertaining to Survey under section 133A of the IT Act excluding the cases where there are no impounded books of accounts/documents and returned income excluding any disclosure made during the Survey is not less than returned income of preceding assessment year. However, where assessee retracts the disclosure made during the Survey will not be covered by this exclusion. e) Assessment in search and seizure cases to be made under sections 158B, 158BC, 158BD, 153A & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the books of accounts are not impounded during the survey and returned of income for the year is not less than the returned of income of the preceding year the case would not fall in the category of compulsory scrutiny. In the case in hand, the impounding of books of accounts by the Assessing Officer under section 133(1) cannot be linked to the proceedings under section 133A of the Act as the authority under section 133A as well as section 131 of the Income Tax Act are separate and distinct. The Hon'ble Delhi High Court in the case of SKY View Consultant Pvt. Ltd. vs. Income Tax Officer (supra) has observed as under:- "15. As already pointed out hereinabove, the Revenue has no answer to the submission that the entire exercise undertaken by the ITO (Inv.) was without jurisdiction. Which is why in the counter affidavit filed in the present writ petition, the stand taken by the Revenue is that it is not the only reason for re-opening the assessment. The fact remains that it could not form tangible material for re-opening the assessment. The fact remains that the power under Section 131 (1A) can be exercised only by officers named therein and they are all officers in the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article or thing which may be found therein or to furnish such information as he may require as to any matter which may be useful for, or relevant to , any proceeding under the Act. Sub -s. (2) empowers the authority to enter into such premises during the hours at which such place is open for the conduct of business or profession and in case of any other place, only after sunrise and before sunset. Sub-s (3) empowers the Income Tax authorities, if they deem necessary, to place marks of identification on the books of account or other documents inspected by them and make or cause to be made extracts r copies therefrom. It is also permissible to make an inventory of such cash, stock or other articles. The provision also empowers to record the statement of any person, which may be useful for or relevant to any proceedings under the Act. Sub-s. (4) puts a complete ban on removal or causing to be removed from a place where such a tax authority has entered any book of accounts of documents or any cash or stock or other valuable article or thing, by the tax authority. Sub-s (5) provides that where having regard to the nature of scale of expenditure incurred by an assessee, in connection w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TO (1982) 137 ITR 190 (P&H), (4) United Chemical Agency v. R.K Singh, ITO & Ors. (1974) 97 ITR 14 (All), (5) Sri Venkateshwara Tourist Home (P) Ltd. v. Asstt. Director of IT (Inv.) (1999) 8 DTC 36 (Karn-HC) : (1998) 233 ITR 736 (Karn), (6) Ramswaroop Pawankumar v. ITO (1980) 125 ITR 603 (P&H) and Maruti Mills v. Union of India (2000) 14 DTC 667 (Raj-HC) : (2001) 250 ITR 348 (Raj). It is not necessary to traverse the law, nor to go into the facts of each case. There appears to be unanimity among all the High Courts that during the survey under section 133A(3), the tax authority, what to talk of impounding the books of account and documents, he cannot even remove them. Of course, during the survey under section 133A(6), the tax authority, if he so deems necessary, may place marks of identification on the books of account or other documents inspected by him and make or cause to be made extracts or copies therefrom. He may record the statement of any person which may be useful for, or relevant to, any proceeding under the Act. In case, the assessee refuses or evades to cooperate in producing the books or documents asked for inspection, such authority may invoke the provisions of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as impounding of the books of accounts in the proceedings under section 133A of the Act. Once there is no impounding of the books of accounts during the survey under section 133(A) of the Ac and the returned income of the assessee for the year under consideration is not less than the returned income of the immediate preceding year then the case would not fall in the category of compulsory scrutiny. The Assessing Officer has not taken any prior approval for issuing the notice under section 143(2) it is also pertinent to note that the notice under Section 143(2) was issued by the Assessing Officer on 11.6.2013 which is prior to the instruction no. 10/2013 dated 5.8.2013. The timing of issuing the instructions by the CBDT for the scrutiny of the cases is very relevant as the earliest limitation for issuing the notice under section 143(2) expires on 30th September, as per the proviso to section 143(2) being other within six month from the end of the financial year in which the return was filed. The instructions were issued by the CBDT well in time and the Assessing Officer was having the sufficient time even after the instructions dated 5.8.2013 to issue notice under section 143(2) h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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