TaxTMI 
TaxTMI 
2010 (11) TMI 682
X X X X Extracts X X X X
X X X X Extracts X X X X
....he appeal is preferred against portion of the judgment and order of the leaned Tribunal by which five several appeals were disposed of. One of the appeals being ITA (SS) 161/Col./ 2004 was preferred against the order of the Commissioner of Income Tax passed under Section 263 of Income Tax Act, 1961, dated 27th November 2006. Above appeal was admitted on the following formulated question of law:- "Whether the learned Tribunal was justified in law in holding that the twin conditions for exercise of the power under Section 263 of the Income Tax Act, 1961, in respect of the block assessment order dated November 29, 2002 were satisfied and its purported findings upholding the order of the Commissioner of the Income Tax cancelling the sam....
X X X X Extracts X X X X
X X X X Extracts X X X X
....examining the cash transaction recorded in seized document KP-19. The learned Tribunal having considered the submission of both the parties upheld the action of CIT under Section 263 so far as the same relates to the total amount of Rs.254,32,93,100. The learned Tribunal did not approve of cancellation of the entire order of assessment. Thereafter the Assessing Officer made fresh assessment and necessary order was passed in terms of the direction of the learned Tribunal. In the context of the aforesaid factual position the present appeal is being heard by the Court. Dr. Pal learned Senior Counsel appearing for the assessee/appellant highlighting the facts submits that the order of assessment dated 29th November 2002 made for the blo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the CIT (Appeal) as also by the learned Tribunal and ultimately by the High Court by necessary implication regarding allowability of the loss on the basis of the audit report, nothing can be reopened. At the highest there are two possible views one of them was taken by CIT (Appeal) and affirmed by the Tribunal and ultimately became final on summary dismissal of appeal by the High Court. In that view of the matter the order cannot be erroneous so as to hold the same being prejudicial to the interest of the revenue. On the above proposition of law Dr. Pal cites decision of Supreme Court reported in 243 ITR 83 (SC). He further submits all erroneous orders of the Assessing Officer cannot be treated as prejudicial to the intere....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er although had proposed to treat the aforesaid account as unexplained cash and added the same to the income of the assessee, had in fact made no discussion on the issue at all. Therefore, this point could not have been urged before the appellate authority and the Appellate Authority had no occasion to consider the said point. Section 263 (1) (c) debars the revision of an assessment order if the said order had been the subject matter of any appeal, but the powers of the Commissioner, under the said subsection extends to such matter as had not been considered and decided previously in such appeal. In the instant case he emphasizes that the point relating to unexplained cash amounting to Rs. 254,32,93,100 was decided in the appeal. Hence Inco....
X X X X Extracts X X X X
X X X X Extracts X X X X
....922 corresponding to Section 263 of the present Act was challenged filing Writ Petition under Article 226 of the Constitution of India and thereafter the assessment order was passed pursuant to the notice. In the factual background as aforesaid ultimately the Supreme Court found that order was passed without jurisdiction as precondition mentioned in the old Section were not satisfied. Here factually the situation is different. Dr. Pal's client approached the Tribunal challenging the order passed under Section 263 and even did not pray for any interim relief for stay of operation of the said order and allowed the order of assessment to be passed. Ultimately an appeal was also preferred. The legal proposition explained by Dr. Pal woul....