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2022 (3) TMI 661 - AT - Income TaxRectification of mistake u/s 154 - Assessment u/s 153A - Addition u/s 68 - HELD THAT:- Review of his own order under the garb of rectification of mistake u/s. 154 done by the ld.CIT(A) is complete travesty of appellate proceeding. By no stretch of imagination it can be said that ld.CIT(A) is rectifying a mistake apparent from the record. In the earlier order, ld.CIT(A) has quashed the assessment framed u/s. 153A on a finding that it was a non abated assessment and the addition was dehors any incriminating material found in search. In the present so called rectification order, the ld.CIT(A) has got new found knowledge that there may be a case where subsequent to the search AO may receive or obtain some addition information, which is not emanating from the search and seizure proceeding. Hence, he opined that AO can assume valid jurisdiction. This view of ld.CIT(A) is completely alien to the jurisprudence from Hon’ble Bombay High court and Hon’ble Supreme Court in this regard. It is clear that dehors incriminating material found during the search, no addition is sustainable u/s. 153A of the I.T. Act in case of unabated assessment. It is undisputed that the assessment for present assessment year is non-abated. The earlier assessment order was already duly framed and subsequently pursuant to search fresh notice u/s. 153A was issued. The AO in the assessment order has clearly noted that during the course of search proceedings, it was found that assessee was generating cash by bogus invoices. There is not a whisper about anything found relating to share application money. The issue of share application money was taken up by the AO by mentioning that on perusal of the balance sheet of the assessee, he has found the same. AO further refers that an information was obtained from FT&TR division, Mauritius Revenue authority vide letter dated 14.03.2016. When this is juxtaposed with the date of earlier assessment order i.e. 26.3.2014 and the date of search i.e. 19.3.2015, it is abundantly clear that this is a non-abated asessment and the so called material arose much after search. Hence, there is not an iota of doubt that the material being referred by the AO for making the addition was not found and seized during search. Hence, the jurisdiction of the AO in making the assessment is not legally valid. Hence, the order passed by the ld.CIT(A) as review also is totally unsustainable on merits. Hon’ble Supreme Court in the case of T.S. Balram, ITO vs. Volkart Brothers & Ors [1971 (8) TMI 3 - SUPREME COURT] has held that mistakes apparent on record must be obvious and patent mistake. It should not require a long drawn process of reasoning where there may be conceivably be two opinions. The aforesaid exp osition applies on all fours in the present case. Hence, have no hesitation in holding that this rectification order u/s. 154 passed by ld.CIT(A) is not at all sustainable. Hence, we set aside the same. Appeal of the assessee is allowed.
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