TaxTMI 
TaxTMI 
2018 (6) TMI 295
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.... the A.O. is untenable in the absence of order of the A.O. being erroneous as well as prejudicial to the interest of the Revenue. 4.(i) On the facts and circumstances of the case, the initiation of proceedings u/s 263 is bad in law, in view of the assessment order, made u/s 153A which the CIT intended to revise u/s 263, itself being bad is law and a nullity. (ii) That the order u/s 153A is null and void, as in the absence of any search having been carried out on the assessee, no proceedings u/s 153A can be initiated. (iii) Without prejudice to the above and in the alternative, in the absence of any incriminating material found during the course of search original assessment having not been abated, no addition u/s 153A can be made. (iv) Without prejudice to the above and in the alternative, on the facts and circumstances of the case in the absence of any satisfaction being recorded by the AO of the searched person and the AO of the assessee, proceedings initiated against the assessee and the consequent order passed by the AO was without jurisdiction and bad in law and hence can't be subject matter of revision under section 263 of the Act. 5. On the facts and circu....
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....x of 10%. It was further alleged that a sum of Rs. 3,45,03,001/- received by the assessee during the year should have been assessed as income from house property. The assessee submitted a detailed reply where it was pointed out that assessee has not been subjected to any search and as such the proceeding under Section 153A per se are bad in law. Further, in the absence of any incriminating material being found during the search, the assessment originally completed cannot be tinkered with as the same has not abated. It was contended that the assessment for the year was not pending on the date of the search. The Ld. CIT however rejected the contention of the assessee on the ground that assessee has not challenged the validity of the order passed by the AO under Section 153A read with Section 143(3) of the Act and as such the order passed by the AO can be subject matter of revision. Based on this reasoning the Ld. CIT cancelled the order passed by the AO with a direction to frame the same afresh. It was contended by the Ld. AR that the order of the Ld. CIT is not sustainable in the eyes of law as he does not have the power in the revision proceeding to do what AO could not have done i....
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....SC) * Deniel Merchants Pvt. Ltd. Vs. ITO (Appeal No. 2396/2017) dated 29.11.2017 4. We have heard both the parties and perused the records, especially the orders passed by the authorities below as well as the case laws relied upon by both the parties. We find that the issue here is whether Ld. CIT was within her rights to cancel the reassessment order passed under Section 153A of the Act on the ground that the said order is erroneous and prejudicial to the interest of the Revenue. We note that the reasoning given by the Ld. CIT for such revision is taxability of capital gain at the rate of 20% as against the rate of 10% and taxability of income from house property. From the facts, it is evident that the assessee has filed the return on 31.10.2006. The said return was taken up for scrutiny. During the course of the scrutiny the assessee has filed all the details regarding computation of long term capital gain as well as the details of the memberships and subscriptions and service charges. It has also filed service agreement between Punj Business Center and M/s. Punj Lloyd Ltd. The AO after examination of the above details has completed the assessment u/s. 143(3) of the Act vide o....
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....aw. The relevant findings of the ITAT read as under: "Thus, in present case the issue of deemed dividend does not arise from the provisions of Section 153A of the Act and there is no seized material unearthed at the relevant time. Thus it is beyond Assessing Officer's power to address the said issue in proceedings initiated under Section 143(3) read with Section 152A of the Act. The CIT was wrong in directing the examination of taxability of deemed dividend under Section 2(22)(e) of the Act, in the proceedings u/s 153A of the Act while passing order under Section 263 of the Act when the proceedings under Section 153A itself has not unearthed the said issue. Thus, the CIT do not have power under Section 263 of the Act to give its own opinion when there is no new material unearthed. The issue taken up by the CIT was not within the purview of the Assessing Officer at the inception of assessment proceedings." 4.1 We further find that the aforesaid order passed in ITA 1347/Del/2014 dated 8.6.2016 in the case of Mahesh Kumar Gupta vs. CIT of the Tribunal has been confirmed by Hon'ble Delhi High Court in ITA No. 810/2016 vide order dated 22.11.2016 title as Pr. CIT, Central-1, Delhi v....
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.... warranted - based on the proposition taught by this Court in judgment dated 28.08.2015 in ITA 707/2014 titled: CIT vs Kabul Chawla. Therefore, we concur with the ITAT's opinion in this regard. The search and seizure proceedings in such cases are undoubtedly meant to bring to tax amount that are to be determined on the basis of materials seized in the course of such searches; permitting anything over and above that would virtually amount to letting the Revenue have a third or fourth opinion as it were. Searches - to quote the view of Attorney-General (NSW) vsQuin (1990) HCA 21 in another context are "not the key which unlocks the treasury" of the Revenue's jurisdiction in regard to matters that had attracted attention in the regular course of assessment. 6. For the above reasons, we are of the opinion that no questions of law arise. The appeal is, therefore, dismissed." 4.2 We further find that similar view has been taken by the Cochin Bench of the ITAT in the case of Paul John Delicious Cashew Company vs. ITO (2005) 94 ITD 131 (Coch.) wherein, the Tribunal has held as under: "16. In the present case also the re-assessment proceedings have been initiated only for the purpose of ....