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2018 (2) TMI 2025 - AT - Income TaxRevision u/s 263 - Assessment u/s 153A - AO jurisdiction to make additions - HELD THAT:- Assessing Officer had no jurisdiction to make additions in respect of non-abated years i.e. years for which assessment were completed u/s 143(3) of the Act or time limit for issuing notice u/s 143(2) had expired except if the additions were based on incriminating material found during the course of search. We find that the issue is settled in case of CIT v. All Cargo Global Logistics Ltd [2015 (5) TMI 656 - BOMBAY HIGH COURT] wherein, it is held that in respect of non-abated years, additions can only be made on the basis of incriminating material found during the course of search pertaining to those additions. We find that the Assessing Officer had no jurisdiction to make additions on the above issues, non-consideration of those issues in the assessment order would not make the assessment order passed u/s 143(3) r.w.s. 153A of the Act erroneous and prejudicial to the interest of Revenue. Hence, the CIT could not have disturbed the said assessment order by exercising jurisdiction u/s 263 of the Act. Thus we hold that since no incriminating material was found during the course of search that took place in case of appellant the Assessing Officer could not have made any addition in the order passed u/s 143(3) r.w.s. 153A of the Act. Hence, the CIT had no jurisdiction to revise the assessment order on the ground that the said issue was not considered by the Assessing Officer. Necessary approval u/s 153D - Assessing Officer has passed the order after obtaining necessary approval from Addl.CIT u/s.153D of the I.T. Act, therefore,we are of the considered opinion that the CIT has no power to revise the order u/s.263 of the I.T. Act in the instant case since the same has been passed with the approval of the Addl.CIT u/s.153D of the I.T. Act. We hold that the CIT has to conduct minimal inquiry by examining the details filed by appellant and after due application of mind on the details and replies filed by appellant has to come to a conclusion that the order passed by Assessing Officer is erroneous and prejudicial to the interest of revenue. Undisclosed bank account with JP Morgan - We find that the document was found from the premises of Mrs. Priti Milan Mehta, on 11.03.2014 ex-wife of the assessee. They were divorced on 04.09.2009, therefore the document did not found from the assessee hence the AO has no jurisdiction to make an addition pertaining to the said bank account since the said documents was not found during the course of search conducted in case of the assessee. Therefore AO could not have made addition while passing the order u/s.143(3) of the Act since the addition have been made if the assessment order passed u/s.143(3) r.w.s. 153C of the Act. Since the AO has not made this addition in the assessment order u/s.143 r.w.s153 of the Act. Non consideration of this issue would not make the order erroneous and prejudicial to the interest of revenue. Hence CIT has no jurisdiction to invoke the jurisdiction u/s.263 of the Act In respect of 2011-12& 2012-13 - We find that incriminating documents were found from the search conducted in the premises of Mrs. Priti Milan Mehta on 11.03.2014. Mrs. Priti Milan Mehta, ex-wife of the assessee, they were divorced on 04.09.2009. The documents were not found from the search conducted in the case of assessee. Hence in both the assessment years the AO has no jurisdiction to make the addition pertaining to said bank account since the document has been not found during the course of search conducted in the case of the assessee. The AO could not have made any addition in the order passed u/s.143 r.w.s.153A of the Act. Therefore, the AO in case of assessee could not have made this addition while passing the order u/s.143(3) r.w.s.153. of the Act. Since the addition could have made if the order is passed u/s.143(3) r.w.s.153C of the Act. Since the AO could not have made this addition in respect of assessment order passed u/s.143(3) r.w.s.153 of the Act. Hence CIT has no jurisdiction to invoke section 263 of the Act. Therefore we are of the view that no inquiry was conducted by CIT setting aside the order of AO. No enquiry was conducted by CIT before deciding the issue afresh - We find that u/s.263 of the Act, power given to CIT for call for details of the assessee and provide assessee an opportunity of hearing. The CIT has power to call for details and to provide opportunity of hearing to the assessee would show that CIT has to conduct minimal enquiry by examining the detail filed by the assessee and after due application of mind by details and reply filed by the assessee has to come to conclusion that order passed by the AO is erroneous and prejudicial to the interest of the revenue. As per the decision of Hon’ble Delhi High Court in case of CIT v. Delhi Airport Metro Express [2017 (9) TMI 529 - DELHI HIGH COURT]. We respectfully following the decision, we are of the view that CIT is failed to the fundamental requirement of valid presumption of jurisdiction as per mandate of law. Therefore, we allow the appeal of the assessee.
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