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TMI Blog2022 (10) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... 13, preferred by the respondent herein whereby the learned ITAT has allow ed the appeal of the respondent Assessee and quashed the entire proceeding initiated under Section 263 of the Income Tax Act, 1961 (hereinafter to be referred as the Act) 2. The brief facts of the case are that a search and seizure operation was carried out in the business and residential premises of respondent Assessee on 03.07.2014. After completion of search and seizure, a notice under Section 153A of the Act was issued to the Assessee on 09.02.2015. In response to the notice, the Assessee filed his return of income for the assessment year 2012 13 on 02.10.2016 declaring total income of Rs.15,34,97,400/. On 28.12.2016 Assessment Order under Section 153(A) read wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Order under Section 263 r.w.s 143(3) of the Act. On 30.12.2019 as the 3rd assessment proceeding was not dropped by the Assessing Officer, the respondent Assessee filed an appeal before ITAT against the order dated 28.03.2019 passed under Section 263 of the Act for the 2nd time On 08.07.2020 , learned ITAT quashed the aforesaid 2nd order under Section 263 dated 28.03.2019 and allowed the appeal of the respondent, which is impugned in the instant Appeal. 3. Ms. Amrita Sinha, learned counsel appearing for the revenue submits that pursuant to the second round of proceeding under Section 263 of the Act, an Assessment Order dated 28.12.2019 has already been passed on an assessed income of Rs.32,13,19,780/ and the said Assessment Order has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 263 in the second round of order under Section 263 is merely a technical error. The Hon'ble Apex Court time and again held that the entire assessment proceeding cannot be vitiated only on technical ground. She concluded her argument by submitting that during the first round proceeding under Section 263 of the Act, the issues raised therein are entirely different with the issue rose in second round of proceeding under Section 263 of the Act. Relying upon the aforesaid submissions, she prayed that the instant application may be admitted on substantial questions of law and finally be allowed in favour of Revenue. 4. Learned sr. counsel for the respondent Assessee submits that the order passed by the learned ITAT does not require any int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and passed an order on 29.12.2017 directing the Assessing Officer to pass a fresh order. Thereafter the A.O in compliance to the aforesaid order passed by the PCIT u/s 263, issued notice under Section 142(1) with letter of query. Thereafter the Assessee filed a detailed reply. Subsequently, the second Assessment Order under Section 143(3) read with Section 263 was passed on 31.12.2018. It appears that though the first Assessment Order dated 28.12.2016 was already cancelled by the order passed by PCIT under Section 263 of the Act on 29.12.2017 but the second order under Section 263 was also passed again cancelling the non existent first assessment order dated 28.12.2016. Here lies the lacuna committed by the PCIT while passing the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in the Original Assessment Order dated 28.12.2016, and the said expenditure has also been examined by the Assessing Officer in the second Assessment Order passed by the A.O under Section 143(3) read with Section 2 63 of the Act which was framed in pursuance to the direction given by the PCIT Therefore, the said loss and damage expenses of Rs.4 Crores have been examined by the A.O twice. Again, in the Section 263 order, the PCIT has directed the A.O to examine the s aid loss and damage expenses of Rs.4 Crores this means the A.O would examine 3rd time the said loss and damage expenses of Rs.4 Crores. Likewise, the sales incentive expenses of Rs. 9,45,96,300/ has been examined by the A.O in the first Assessment Order and again he examined t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, in the instant case the Assessee was directed to produce 3rd time the same books of accounts. In addition, interestingly the PCIT while passing the order under Section 263 for the 2nd time has quashed and set aside 1st Assessment Order passed under Section 153(A)/143(3) of the Act dated 28.12.2016, though the same was already cancelled by the first round of 263 which is not permissible in the eye of law and the second assessment order which was passed after the first round of 263 was never cancelled and is still in existence. 8. At the cost of repetition the learned Tribunal has taken notes of each and every feature of the case, both on facts and on law, especially the point of law that there cannot be any proceeding under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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