TaxTMI 
TaxTMI 
2009 (4) TMI 406
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....1, 2002, and was concluded on March 13, 2002. The Assessing Officer framed the block assessment order under section 158BC on September 17, 2004, and made several additions against the assessee. 3. Being dissatisfied with the aforesaid order the assessee preferred an appeal before the Commissioner of Income-tax (Appeals)-II, Bhopal, who, vide order dated October 5, 2005, allowed the appeal in part. When the matter stood thus, the Commissioner of Income-tax, Bhopal, examined all the records of the assessment of the assessee-respondent for the block period April 1, 1995, to February 27, 2002, and observed that while framing the order of assessment on September 17, 2004, for the block period the Assessing Officer had failed to consider certain issues, namely, (i) from the project, wise analysis it was perceptible the "work-in-progress" as per the seized documents amounted to Rs. 26,83,97,827 as against Rs. 8,42,62,301 as arrived at by the assessee which resulted in undervaluation of the work-in-progress to the extent of Rs. 18.41 crores; (ii) that Shri Vijay Mirchandani, director of the company had categorically admitted to have received the salary and perquisite which were not reco....
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....31 ITR 50 (SC), Sujata Grover v. Deputy CIT [2002] 74 TTJ (Delhi) 347, Remex Constructions/Remex Electricals v. ITO (First) [1987] 166 ITR 18 (Bom), Oil India Ltd. v. CIT [1982] 138 ITR 836 (Cal), CIT v. Gabriel India Ltd. [1993] 203 ITR 108 (Bom), CIT v. Kanda Rice Mills [1989] 178 ITR 446 (P&H), CIT v. Shiv Hari Madhu Sudan [1998] 233 ITR 649 (Raj) and CIT v. G. K. Kabra [1995] 211 ITR 336 (AP) and many other decisions and eventually concluded as follows: "11. As noted above, the Assessing Officer has examined all the seized records and investigated all the issues subject-matter of the proceeding under section 263 and thereby took one of the possible views in the matter while framing the block assessment order, the order of the Assessing Officer cannot be treated as erroneous and prejudicial to the interest of the Revenue. The reply of the assessee is not considered by the learned Commissioner of Income-tax in proper perspective and hence proceedings under section 263 are not valid. We are fortified in our view by the decision of the Gauhati High Court in the case of Smt. Lila Choudhury v. CIT [2007] 289 ITR 226, the hon'ble Gauhati High Court in the case of B and A Plantat....
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....t day of June, 1988, by the Assessing Officer shall include- (i) an order of assessment made by the Assistant Commissioner or Deputy Commissioner or the Income-tax Officer on the basis of the directions issued by the Joint Commissioner under section 144A; (ii) an order made by the Joint Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to him under the orders or directions issued by the Board or by the Chief Commissioner or Director General or Commissioner authorised by the Board in this behalf under section 120; (b) 'record' shall include and shall be deemed always to have included all records relating to any proceeding under this Act available at the time of examination by the Commissioner; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject-matter of any appeal, filed on or before or after the 1st day of June, 1988, the powers of the Commissioner under this sub-section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal." 8. On a perusal of clause (c) of the....
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..../closing stock in the balance-sheet and the regular returns. Learned counsel for the assessee vehemently submitted that no physical verification of ` work-in-progress' was done on the date of the search. This contention of the learned counsel for the assessee is not in dispute by the Revenue. The Assessing Officer considering the reply of the assessee and explanation on the ` work-in-progress', expenses and examining the books of account was of the view that the assessee has not produced complete books of account because the same were incomplete. The only option left with the Assessing Officer was to reject the books results of the assessee under section 145 of the Income-tax Act which the Assessing Officer did in this case and took the figure of disclosed sales and undisclosed sales and directed to apply net profit rate of 15 per cent. on the consolidated sales to make the addition of Rs. 6.97 crores being undisclosed income in the block period. Separate addition in one year was also made on account of ` work-in-progress' being undisclosed income in a sum of Rs. 83.99 lakhs. It is not a denying of fact that in the subsequent assessment years 2002-03 and 2003-04 the Assessing Offic....
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....Appeals) in the order dated October 5, 2005. Therefore, on the principle of merger, the learned Commissioner of Income-tax was also not justified in invoking the jurisdiction under section 263 of the Income-tax Act." 9. As regards payment of salary to the directors the Tribunal in paragraph 8.3 has expressed the view as under: "8.3 The learned Commissioner of Income-tax in paragraph 4 of the impugned order noted that one of the directors Shri Vijay Meerchandani admitted in statement to have received salary/perquisite from the assessee-company, which raises the doubt that the other directors might have also received the salary. The learned Commissioner of Income-tax noted that this issue was taken up in the cases of all the directors in their individual cases and additions are made. Therefore, on the same pattern he was of the view that addition should be considered in the case of the assessee-company. The learned Commissioner of Income-tax also noted that in the individual cases the learned Commissioner of Income-tax (Appeals) deleted the addition. On going through these facts we find that the learned Commissioner of Income-tax merely on presumption found that the order of th....
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....hameshwar Nagrik Sahkari was passed on February 7, 2005, therefore, there is no question of the same being considered in the case of the assessee-company because on the date of the block assessment order, the assessment order of the bank did not exist. Since this issue is considered in detail by the Assessing Officer as well as by the learned Commissioner of Income-tax (Appeals), therefore, on the principle of merger the same could not have been considered in the proceeding under section 263 of the Income-tax Act. The Income-tax Appellate Tribunal, Madras Bench, in the case of L. Saroja [2001] 76 ITD 344, held that protective assessment qua the person sought to be covered under section 158BB cannot be sustained. Therefore, there is no basis for initiating the proceedings under section 263 on this issue." 11. From the aforesaid it is crystal clear that the Tribunal has adverted to the factual position in a detailed manner and has appreciated those issues that have been taken up by the Commissioner of Income-tax while exercising jurisdiction under section 263 of the Act it and has held that the said facets have already been dealt with by the Commissioner of Income-tax (Appeals) an....