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TMI Blog2022 (11) TMI 1515X X X X Extracts X X X X X X X X Extracts X X X X ..... OURT] . In fact, the Co-ordinate Bench, in the case of Manishbhai Laljibhai Vekaria [ 2022 (8) TMI 1538 - ITAT RAJKOT] in the identical situation has been pleased to quash the proceeding initiated u/s 263 wherein held in the process of considering as to what relief the assessee is entitled to, the AO held that the assessee is entitled to claim deduction u/s 54F of the Act and assigned certain reasons for that. Therefore, the larger issue was pending before the Commissioner of Appeals, and in such circumstances, the Commissioner could not exercise power u/s 263 of the Act on account of the statutory bar. Therefore, on this ground also, the assumption of jurisdiction u/s 263 of the Act was wholly erroneous. Assessee appeal allowed. - Ms. MA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 147 by issuing of notice u/s 148 on 24.03.2017for the reason that the cash of Rs.1,08,78,635/- was deposited in the appellant's Bank account. 6. Assessment under section 147 r.w.s. 143(3)was completed at an income of Rs.70,23,010/- by making addition of Rs. 64,87,360/- on account of unexplained money under section 69A of the Income Tax Act 1961. The determination is reproduced hereunder: Income as shown in the Return of income Rs. 5,35,650/- Add: 1. Out of unexplained money u/s69A Rs. 4,87,360/- Assessed Income Rs-70,23,010/- 7. The appellant filed an appeal before the Ld.CIT(A), Bhopal vide Ack. No. 383778091020218 dated 02.02.2018 contesting the addition made in the order under Section 147 of the Act. 8. Subsequently, a notice dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk account were raised by the Department and it was submitted by the assessee that the cash deposit was partly out of proceeds of donation received from Mandir construction and partly for proceeds of sale of books and other documents whereupon the Ld.AO on 27.12.2017 finally made the addition of Rs.64,87,360/- which was also appealed against and the same is still pending before the First Appellate Authority. 10. However, the 263 proceedings has been finalized on 15.12.2020 holding the assessment order under section 147 r.w.s 143(3) of the Act dated 27.12.2017 for the year under consideration passed by the ITO 1(2)Bhopal to be erroneous and prejudicial to the interest of Revenue. The Ld.AO has been directed to make fresh assessment after giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Bench, in the case of Manishbhai Laljibhai Vekaria vs. PCIT, Rajkot in ITA No.107/Rjt/2022 in the identical situation has been pleased to quash the proceeding initiated under Section 263 of the Act with the following observation: 6. It appears from the records that Ld. AO has examined each and every aspect of the matter after analyzing the entire set of documents submitted by the assessee as demanded by Revenue which is reflecting in the order passed by the Ld. AO. In that view of the matter we do not justify the remand order to be sustainable particularly when the appeal has been preferred by the assessee against the said order passed by the Ld. AO. We further note that the Ld. CIT(A) is yet to decide the order either way and therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in such circumstances, the Commissioner could not exercise power under Section 263 of the Act on account of the statutory bar. Therefore, on this ground also, the assumption of jurisdiction under Section 263 of the Act was wholly erroneous. Apart from that we have further considered the judgment passed by the Hon ble Allahabad High Court in the case of Vam Resorts Hotels Pvt. Ltd. (supra). We find that on the identical situation the Hon ble Court was pleased to quash the order passed under Section 263 of the Act during the pendency of the appeal preferred by the assessee under Section 250 of the Act. While upholding the order passed by the Tribunal in holding the order exercising power under Section 263 was barred by Clause (c) of Expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances of the case, we are of the considered opinion, that the revenue has failed to make any case for interference in the order of the ITAT, as the CIT had proceeded to remand the matter back to the assessing authority while the appeal of the assessee was pending under Section 250 and the power of exercise under Section 263 was barred by Clause (c) to Explanation 1 of Section 263 of the Act. Further, the remand order by the CIT was based merely on suspicion and presumption. 29. The appeal is devoid of merit and is hereby dismissed. The question of law is, therefore, answered against the revenue and in favour of the assessee. Hence, respectfully relying upon the same we do not find any reason/basis of the impugned proceeding under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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