TaxTMI 
TaxTMI 
2012 (12) TMI 657
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..... 3) That in the facts & circumstances of the case, the passing of the order beyond the terms of the original notice u/s.263 is illegal & order has to be set aside. 4) That in the facts & circumstances of the case, the Learned Commissioner of Income Tax made a fishing & roving enquiries which is beyond the scope of section 263 & the order passed b' Commissioner of Income Tax has to be set aside. 5) That in the facts & circumstances of the case, the Learned Commissioner of Income Tax erred in assuming jurisdiction u/s 263 of the Income Tax Act 1961 6) Without Prejudice to above, following other grounds are taken - (i) That in the facts & circumstances of the case, the Learned Commissioner of Tax erred in (a) holding without recording any reasons therefore that 'rental income should be accounted for on cash basis' after recording that the Appellant was accounting for Income from Premises let out on leave and license on Accrual basis (b) holding that advance Rent! deposit received by the Appellant was his income though it was in fact in the nature of Liability and did not partake the character of Income (c) record....
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....n assessment year 2004-05 Special audit u/s. 142(2A) was made against the assessee. viii) That in the facts & circumstances of the case, the learned Commissioner of Income Tax erred in holding the order erroneous & prejudicial to the interest of the revenue on the ground that property sold for Rs.34,50,000/- was not shown in opening / closing stock, which is not based on facts. ix) That in the facts & circumstances of the case, the Learned Commissioner of Income Tax erred in holding the order erroneous and prejudicial to the interest of revenue on the ground that Rule 8D of the Income Tax Rules 1962, was not invoked though disallowance LI/S. I 4A was made. x) That in the facts & circumstance of the case. the Learned Commissioner of Income Tax erred in holding the order erroneous and prejudicial to the interest of revenue on the ground that the provision of section 43B(e) was not considered. xi) That in the facts & circumstances of the case, the Learned Commissioner of Income Tax erred in law in holding the order erroneous and prejudicial to the interest of the revenue on the ground that provisions of section 40A(2)(a) of the Act has not been invo....
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....r the firms or AOP, the partner or members thereof. 6. It was the submission that the primary issue on which the show-cause notice was issued was that the assessee was following the cash system of accounting and the assessee had not disclosed the advance of rent received to the extent of Rs.80,00,000/-, though TDS has been deducted on the same. The learned AR drew our attention to the reply given, which is found at page 317 of the assessee's paper book, wherein it was submitted that all the figures, which had been considered by the learned Commissioner of Income-tax in his show-cause notice had been disclosed by the assessee in the computation of rental income and the difference was of an amount of Rs.80,00,000/- as advance rent received from M/s. UBS-AG Mumbai ,Representative Rs.1,95,000, M/s. Colgate Palmolive (I) Ltd Rs.5,25,000/- and M/s. Bennett Coleman Co. Rs.72,80,000/- totalling Rs.80,00,000/-. It was the submission that if the said amount was taken for consideration, then there would not be any dispute between the amount disclosed by the assessee and the amount raised by the learned Commissioner of Income-tax in his show-cause notice and the order passed u/s. 263 of the....
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....e considered the rival submissions. At the outset a perusal of the show-cause notice u/s. 263 as extracted above, clearly shows that when compared the issues raised by the learned Commissioner of Income-tax in his order u/s. 263, only the issue at paras 1-6 at pages 1-3 as also paras 7-10 at pages 3-5 of learned Commissioner of Income-tax 's order u/s. 263 have any connection with the show-cause notice. The other issues as raised in paras 11-13 at pages 5-6 of the order of the learned Commissioner of Income-tax do not find any reference in the show-cause notice. Admittedly, the assessee can be put to question only on the issues, which are raised in the show-cause notice u/s.263. The jurisdiction of the learned Commissioner of Income-tax u/s. 263 though wide is restricted to the issues on which the show cause notice is issued. This is because without giving the notice to the assessee on a particular issue, matters, which have reached finally on an issue can not be raked up. In the circumstances, the direction given by the learned Commissioner of Income-tax in his order u/s. 263 in paras 11-13 are liable to be struck down, as the same does not arise out of the show cause notice and w....
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....u/s. 263 is also erroneous and unsustainable in law. 11. In the circumstances, we are of the view that the order of the learned Commissioner of Income-tax u/s,. 263 is liable to be quashed on account of fact that the issues raised by the learned Commissioner of Income-tax in paras 7-10 of his order are unsustainable on the facts as are emanating from the records and in respect of paras 11-13, the issues do not arise out of the show cause notice and consequently, the order passed by the learned Commissioner of Income-tax u/s. 263 on the said issues is without jurisdiction provided by the show-cause notice. In the circumstances, the order of the learned Commissioner of Income-tax u/s. 263 is quashed. 12. In the result, the appeal of the assessee is allowed. THIS ORDER IS PRONOUNCED IN OPEN COURT ON Dt 10-07-2012 ============= Document 1 OFFICE OF THE COMMISSIONER OF INCOME TAX: KOLKATA-XII Floar. Pedder Court, Kolkata-700.001 18. Rabindra Sarani. No.CIT/Kol-XII/Tech./283/06-09/1379. To Premji Khepar Ruparel. 14/2, Old China Bazar Street, 2nd floor. Kolkata-700.00 Date: 17-03-2009 Sub: Notice u/s. 283 of the IT. Act. 861 in the case....