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Jt. Commissioner of Income Tax, M/s Surya Vinayak Industries Ltd., (Amalgamated Company of amalgamating company M/s Rim Zim Valley Products Pvt. Ltd.) Versus M/s Surya Vinayak Industries Ltd., M/s J.H. Business India Pvt., Shri Sanjay Jain And Vica-Versa

2015 (10) TMI 1760 - ITAT DELHI

Validity of assessment made u/s 153A - period of limitation - Whether the assessment framed under section 153A/143(3) is legal, when consequent upon action taken by the department under section 132 against the assessee was carried out and nothing incriminatory was found, and re- visiting the issues, which have been settled earlier, is permissible? - Held that:- The provisions contained in the above second proviso to Section 153B of the Act are applicable to the facts of the present case which cl .....

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f the Act on or before 31.12.2008. However, in the present case, the assessment has been framed on 24.12.2009, therefore the assessment framed was barred by limitation and deserves to be quashed as invalid - Decided in favour of assessee. - ITA Nos. 3158 to 3162/Del/2011, CO Nos. 265 to 269/Del/2011 ITA No s. 3167 to 3170 /Del/2011 - Dated:- 6-10-2015 - Sh. N. K. Saini, AM And Sh. A. T. Varkey, JM ITA Nos. 3167 to 3170/Del/2011, CO Nos. 270 to 273/Del/2011, ITA Nos. 3173 to 3177/Del/2011, CO Nos .....

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filed by Department Cross Objections filed by Assessee Date of CIT(A) s order 3158 to 3162/Del/2011 265 to 269/Del/2011 31.03.2011 3167 to 3170/Del/2011 270 to 273/Del/2011 31.03.2011 3173 to 3177/Del/2011 282 to 286/Del/2011 25.03.2011 5325/Del/2013 1/Del/2015 10.07.2013 4753/Del/2011 227/Del/2012 25.08.2011 Appeals filed by the Assessee Date of CIT(A) s order 1682 & 1683/Del/2012 05.01.2012 5024 & 5025/Del/2011 14.09.2011 & 02.09.2011 2. Since the issues involved in these appeals .....

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ross Objection: 1. Whether the assessment framed under section 153A/143(3) of the Income Tax Act, 1961 is legal, when consequent upon action taken by the department under section 132 of the Act on 21.03.2007 against the assessee was carried out and nothing incriminatory was found, and re- visiting the issues, which have been settled earlier, is permissible. 2. Because the order passed by the assessing officer was so vulnerable on both the facts as well as law that the Ld. CIT(A) had no option bu .....

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of trading income by not apportioning the administrative expenses attributable to such trading income is whether justifiable and permissible by law. 5. Because the ld. Lower authorities have ignored the facts and evidences supplied to them and made the addition of ₹ 1,41,068/- being the interest income that was derived from deposits made for obtaining bank guarantees in favour of government authorities, is whether permissible not to be included in making computation of exemption u/s 80IA o .....

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ng the ld. Counsel for the assessee requested for admission of the additional ground by stating that it is a purely legal ground and no fresh investigation is required, therefore, the same is to be admitted. The reliance was placed on the judgment of the Hon ble Supreme Court in the case of National Thermal Power Co. Ltd. Vs CIT 229 ITR 383. The ld. DR opposed the admission of the additional ground and further submitted that the issue of limitation raised by the assessee is not a pure question o .....

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n, the issue raised by the assessee vide additional ground is purely a legal issue, it goes to the root of the matter and for adjudication of this ground, no fresh material outside the record is required to be considered. On a similar issue the Hon ble Supreme Court in the case of National Thermal Power Co. Ltd. Vs CIT (supra) has held as under: Undoubtedly, the Tribunal has the discretion to allow or not to allow a new ground to be raised. But where the Tribunal is only required to consider the .....

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to raise an additional ground on a legal issue going to the root of the matter and adjudication of which does not require consideration of fresh material outside the record. He submitted that under the provisions of Section 253(4) the memorandum of cross- objection shall be disposed of by the Tribunal as if it were an appeal presented within the time specified in Sub-Section (3) or Sub Section (3A) to Section 253 of the Act. The only difference between the cross objection and the appeal remained .....

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urther that when question of law arises even though the same was not raised before the authorities below and for the first time it was raised before the Tribunal, the Tribunal is empowered and have jurisdictional to examine the same. In support, he placed reliance on the following decisions:- NTPC Ltd. Vs. CIT 229 ITR 383 (SC) Jute Corporation of India Vs. 187 ITR 688(SC) 4.2 The Ld. AR submitted that in the present case an additional ground has been raised in the cross-objections on the plea of .....

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e Ld. DR opposed the application. He submitted that additional ground does not disclose as to on which specific date the order was passed, which goes to indicate that the assessee has not approached the Tribunal with the open heart and clean hands. He cited the decision of Hon'ble Calcutta High Court in the case of Indian Steel & Wire Products Ltd. Vs. CIT (1994) 2008 ITR 740 (Calcutta) holding that the Tribunal is to decide only such issues which were the subject matter of the first app .....

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ot be entertained now. Even by virtue of Hon'ble Supreme Court Judgment in NTPC case, the additional ground cannot be allowed to be raked up now. The Ld. CIT DR submitted further that the additional ground has been now raised for the sake of raising because as the factual matrix shows this ground is raised incorrectly. 6. Considering the above submission, we are of the view that it is now a well settled proposition of law that while adjudicating objections raised in the cross- objection, the .....

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l with the issue in detail and has come to the following conclusion:- "We do not see any reason why the assessee should be prevented from raising that question before the Tribunal for the first time, so long as the relevant facts are on record on respect of that item. We do not see any reason to restrict the power of the Tribunal u/s 254 only to decide the ground which arise from the order of the Commissioner of Incometax (Appeals). Both the assessee as well as the department have a right t .....

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o narrow a view of the powers of the Appellate Tribunal (vide, e.g., CIT Vs. Anand Prasad [1981] 128 ITR 388 (Delhi), CIT Vs. Karamchand Permchand P. Ltd. [1969] 74 ITR 254 (Guj) and CIT Vs. Cellulose Products of India Ltd. [1985] 151 ITR 499 (Guj) [FB]). Undoubtedly, the Tribunal will have the discretion to allow or not allow a new ground to be raised. But where the Tribunal is only required to consider a question of law arising from the facts which are non record in the assessment proceedings .....

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(Supra) holding that the question of limitation as a mandate to the forum and irrespective of the fact whether it was raised or not, the forum must consider and apply it, if there is no dispute on facts. The Hon'ble M.P High Court in the case of CIT Vs. Md. Iqbal (Supra) has been pleased to hold that the question of limitation can be raised at any point of time because it goes to the root of the matter. Therefore, it is wrong to contend that the Tribunal should not have permitted the assesse .....

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round for the first time before the Tribunal provided the relevant material for deciding that question already exists on record and no further investigation of facts is required." 7. Considering these material aspect, we are of the view that the assessee is very much entitled to raise the additional ground in question and since the issue of assessment being barred by time limitation, a legal issue goes to the root of the matter and adjudication of which does not require consideration of fre .....

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as per Section 153B of the Income Tax Act, 1961 (hereinafter referred to as the Act) while the same was framed in December 2009. 9. Facts of the case in brief are that the assessee filed the return of income on 31.03.2003 declaring an income of ₹ 12,14,301/- which was processed u/s 143(1) of the Act at the returned income. Later on, search & seizure operation was conducted u/s 132 of the Act on 21.03.2007 in Suyra Vinayak Group of cases and the assessee is one of the Group Companies w .....

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dated 13.03.2008 submitted that the previous return declaring income at ₹ 12,41,301/- filed on 31.03.2003 may be deemed as the return of income submitted in response to the notice u/s 153A of the Act. The AO framed the assessment u/s 153A r.w.s. 143(3) of the Act on 31.12.2009 at an income of ₹ 2,57,89,450/- by making the various additions. 10. Being aggrieved the assessee carried the matter to the ld. CIT(A) who allowed a substantial relief to the assessee. Now against the relief a .....

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that no incriminating material was found as a result of search and the assessment framed u/s 153A without any seized material and documents founds during the course of search was against the provision of section 153A of the Act and it was merely change of opinion from the earlier order passed by the AO. The ld. Counsel for the assessee also submitted that the search took place at the residence of Sh. Sanjay Jain and Sh. Rajiv Jain, Directors of the assessee company and at the business premises o .....

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efore, the order was required to be passed by the Assessing Officer on or before 31.12.2008 but the assessment order has been passed on 24.12.2009 which is barred by limitation and deserves to be quashed. It was stated that the restraint order passed on 22.03.2007 was only to gain the time because when the said order was revoked and search action took place on 15.05.2007, no material was seized rather the jewellary already seized on 22.03.2007 was released. It was submitted that the issue is cov .....

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of Smt. Neena Jain which was valued on 21.03.2007 and all other jewellaries which were earlier seized were released. Therefore, practically the search was concluded on 22.03.2007 when the Panchnama was drawn. As regards to the objection of the ld. CIT DR that the Cross Objections were not filed within stipulated time. It was submitted that as per the provision contained in sub-Section 4 of Section 253 of the Act. It is specifically provided that the Cross Objection can be filed within 30 days a .....

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4.12.2009 which was beyond time and deserves to be quashed as per the aforesaid referred to order dated 30.05.2014. The reliance was placed on the following case laws: DCIT Vs Adolf Patric Pinto 284 ITR (A.T) 207 (SC). CIT Vs Deepak Agarwal 308 ITR 116 (Del.) CIT Vs White and White Mineral Pvt. Ltd. 330 ITR 172 (Raj) CIT Vs O.P Mandora 94 DTR (Raj). 209 ACIT Vs Shri Ram Lime Products Ltd. 2012 TIOL 329 ITAT Jodhpur Rakesh Sareen Vs DCIT 2011 TIOL 185 HC- Mad-IT CIT Vs Plastica Enterprises ITA 12 .....

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are to be seen. It was contended that in the decision relied by the ld. Counsel for the assessee, the arguments advanced on behalf of the department were not considered and appreciated in right prospective. However, when a question was raised as to whether any Miscellaneous Application was filed against the said order. The ld. CIT DR admitted that no such Miscellaneous Application against the said order dated 30.05.2014 was filed by the department. The ld. CIT DR stated that the assessee did no .....

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. He pointed out that in earlier decision of the ITAT, the provisions of Section 124(3) were not considered, which provides that after the finalization of the assessment proceedings it is not open to the assessee to challenge the jurisdiction of the AO to assess it. Therefore, the case relied by the ld. Counsel for the assessee is distinguishable on facts. The ld. CIT DR vehemently argued that the issue relating to limitation was neither raised before the AO or before the ld. CIT(A). Therefore, .....

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9 ITR 130 (FB Gau) UOI Vs Major Bahadur Singh (2006) 1 SCC 368 (SC) 14. The ld. CIT DR also submitted that the search was stopped on 22.03.2007 because one of the Director Sh. Sanjeev Jain fell ill, so it was not the fault of the department and the search was temporarily concluded on the said date by passing a restraint order which was lifted on 15.05.2007 and search started again, therefore, the order passed by the AO was not belated. The reliance was placed on the following case laws: Baroda D .....

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007 at 4:25 PM, the earlier jewellary seized was released, only a part of jewellary belonging to Smt. Neena Jain which was valued on 21.03.2007 was seized and the search was conclude at 6:45 PM. Therefore, practically there was no search on 15.05.2007 and in fact the search was already concluded on 22.03.2007 at 6 AM. It was further stated that the facts of the present case are identical to the facts involved in the case of M/s J. H. Finvest Pvt. Ltd. Vs ACIT in CO Nos. 131 to 137/Del/2011 order .....

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hnama was drawn. On the said date a restraint order u/s 132(3) of the Act was passed which was revoked on 15.05.2007. However, on 15.05.2007 no incriminating document or any other asset was found or seized. On the said date the earlier jewellary belonging to Smt. Neena Jain was released and a part of jewellary which was valued on 21.03.2007 was seized, so practically it can be said that the search concluded on 22.03.2007 because on 15.05.2007 nothing was found when restraint order was revoked an .....

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e financial year in which the last of the authorisations for search under Section 132 or for requisition under Section 132A was executed; (b) in respect of the assessment year relevant to the previous year in which search is conducted under Section 132 or requisition is made under Section 132A, within a period of two years from the end of the financial year in which the last of the authorisations for search under Section 132 or for requisition under Section 132A was executed : [Provided that in .....

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authorisations for search under Section 132 or for requisition under Section 132A was executed during the financial year commencing [on or after the 1st day of April, 2004 but before the 1st day of April, 2010],- (i) the provisions of clause (a) or clause (b) of this sub-section shall have effect as if for the words "two years" the words "twenty-one months" had been substituted; (ii) the period of limitation for making the assessment or reassessment in case of other person r .....

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isions contained in the above second proviso to Section 153B of the Act are applicable to the facts of the present case which clearly provides that the assessment u/s 153A is required to be completed within 21 months from the end of the financial year in which last of the authorization for search u/s 132 of the Act was executed. In the present case, the authorization for search was executed on 21.03.2007, the panchnama was drawn on 22.03.2007 after completion of the search, as such the financial .....

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t years 2001-02 to 2006-07 in the case of J. H. Finvest Pvt. Ltd. Vs ACIT. The said company also belongs to the same group to which the assessee belongs. In the said order dated 30.05.2014. The relevant findings have been given in paras 10 to 10.5 which read as under: Considering the above submission if the date 23/3/2007 is taken as the date of authorization, executed as per Section 153B of the Act then the AO was required to frame the assessment within 21 months from the date from the end of t .....

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53B. 10.1. Having gone through the relevant provisions of the I.T Act, it is pertinent to mention over here that assessment/reassessment in search cases is required to be made within the time specified u/s 153B of the Act. The assessment/reassessment in respect of six assessment years specified in Section 153A (1) (b) as well as the assessment year relevant to the previous year in which search is conducted u/s 132 or requisition is made u/s 132A has to be made within the period of two years from .....

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ving jurisdiction over such other persons, whichever is later. However, the period specified under various clauses of the Explanation to Section 153B will have to be excluded while computing period of limitation u/s 153B. This limitation period is applicable to those cases where last of the authorizations for search u/s 132 or for requisition u/s 132A was executed before 1/4/2004. Where such authorization has been executed on or after 1/4/2004, the period of limitation would be 21 months as per .....

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b Section (1) or the first or second proviso as the case may be. The forth proviso is applicable to the proceedings which were initiated with reference to, Section 153C ,and reference to u/s 92CA has been made as mentioned in the third proviso. In such cases, the period of limitation is 33 months from the end of the financial year in last of authorization u/s 132/132A was executed or 21 months from the end of the financial year in which books of accounts or documents or assets seized or requisit .....

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n 158 BE of the Act. Therefore, the decisions rendered with reference to the provisions of Section 158 BE would be relevant while deciding the issue of limitation u/s 153B. It would be also important to understand the scope of the expression "Panchnama". Panchnama has not been defined in the Act. The provisions of the Code of Criminal Procedure, 1973 ('Cr. PC') relating to search and seizure have been made applicable to the searches and seizure under sub-section (1) and sub-sec .....

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anchnama" comprises of two Indian works "Panch" and "Nama" mean-"witness" while "nama" is used to represent "document". Thus, "Panchnama" in common parlance as well as in judicial circle is understood as a document prepared in respect of any proceeding in the presence of witnesses. The concept of "Panchnama" has been brought or introduced vis-a-vis the search and seizure proceedings in order to safeguard the interest of t .....

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uly inventorised in the presence of witnesses. Further, if any seizure is required to be made, then the same should also be made in their presence. Once it is done, the same should be truly recorded in such panchnama. Search can be said to be concluded if all these transactions are complied with. In this regard we find strength from the contents of para 6 of the order of judicial member in the case of Nandlal Gandhi 115 ITD 1 (Mum). In the case of CIT Vs. Sandhya P Naik 253 ITR 534 (Bom), the qu .....

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132(3) of the Income-tax Act thus cannot be exercised so as to circumvent the provisions of section 132(3) read with section 132(5) of the Income-tax Act. The position has become much more clear after the insertion of the Explanation to section 132(3) effective from 1/7/1995, that a restraint order does not amount to seizure. Therefore, by passing a restraint order, the time-limit available for framing of the order cannot be extended." In the case of B. K. Nowlakha & ors Vs. UOI 192 IT .....

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nder: "Coming to the facts of the present case, we find that the restraint orders which have been issued u/s 132(3), from time to time, suffer from two infirmities, firstly, for the reasons stated in the reply affidavit, which are also borne out from the Department' record, it cannot be said that it was not practicable to effect seizure. In other words, the conditions necessary for the exercise of the jurisdiction u/s 132(3) did not exist. Secondly, we find that the restraint orders hav .....

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nation is coming forward in respect thereof. Therefore, when the search was effected on February 11, 1991, and the petitioners were unable to give any valid explanation as demanded by the respondents, then the only power which could have been exercised or should have been exercised by the authorized officer was to effect seizure." Though the above decision was rendered with reference to limitation u/s 132(5) of the Act yet it would be relevant for deciding the issue of limitation u/s 132(3) .....

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d the search was stated to be temporarily concluded. A prohibitory order was issued u/s 132(3) in respect of the shares and jewellery which was lifted on 8/9/97. A panchnama was also prepared on that day which merely stated that search was concluded. The block assessment was concluded on 30/9/99. The question before the Tribunal was whether assessment was time barred. The Tribunal, by majority opinion, held that panchnama dated 8/9/97 as well as restraint order were invalid and therefore, the pe .....

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Naik (supra). Similar view has been taken by the tribunal in the case of DCIT vs. Adolf Patric Pinto 100 ITD 191 (Mum), Sarb Consulate Marine Products 97 ITD 333(Del). In the case of V. L. S. Finance Ltd. Vs CIT 289 ITR 286 (Del), a search warrant was issued and search was conducted on 22/6/98. However, due to voluminous record, search had to be conducted again and again till 5/8/98 when the last panchnama was prepared. The block assessment remained pending till 29/6/2000 when order for special .....

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court found that the said authorization was revalidated from time to time and therefore search was validly continued till 5/8/98. Consequently, it was held that the period of limitation had to be counted from the end of the month of August 98 since last panchnama was prepared on 5/8/98. The legal position emerging from the above decisions is that if all actions of search are completed and nothing is left to be done by the search party then, the action of the authorized officer u/s 132(3) would b .....

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s were issued on 23/12/96 in respect of two lockers. In respect of search of lockers, panchnamas were prepared on the same date. However, the authorization dated 17/12/96 was issued on three dates i.e. 17/12/96, 23/12/96 and 30/1/97, the case of revenue was that period of limitation would commence from the end of the month of January 97 while the case of assessee was that it would commence from the end of the month of December 96. The Tribunal agreed with the contention of assessee by observing .....

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n (1) of Section 158BE shall be deemed to have been executed on the conclusion of search as recorded in the last panchnama drawn in relation to any person in whose case the warrant of authorization has been issued. The said Explanation is with regard to authorization referred to sub-section (1) which refers to last of the authorizations. Which means that the last of the panchnama has to be taken into account in respect of last of the authorizations for search, as there could be more than one pan .....

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which last of the authorizations was executed. It pre-supposes that there can be a situation where more than one authorizations for search U/S 132 are issued and the execution of the last of the such authorizations is to be considered as the starting point for the purpose of limitation. It dearly refers to the last authorization in case where more than one authorizations are issued. As such it cannot be held that all the authorizations issued should be treated as a common kitty and anyone of th .....

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.T) 207 affirmed by Mumbai High Court (856 of 2008 dated 5/9/2008. SLP dismissed 322 ITR (St) (SC). CIT Vs. Deepak Agarwal 308 ITR 116 (Del.) SLP No. 16360/2009 dated 91712009 dismissed. CIT Vs. White and White Mineral Pvt. Ltd 330 ITR 172 (Raj) SLP dismissed CC 1138/2010 dated 1/2/2010. CIT Vs. O.P Mandora 94 DTR (Raj). 209 dated 23/8/2013. ACIT Vs. Shri Ram Lime Products Ltd. 2012 TIOL 329 ITAT Jodhpur Special Bench dated 61612012. Rakesh Sareen Vs. DCIT 2011 TIOL 185 HC- Mad-IT CIT Vs. Plasti .....

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ed that too relating to assets of Smt. Neena Jain inventory of which was already made on 21/3/2007. Thus, the assessments in question were required to be framed by 31/12/2008 while the same have been framed in December, 2009. We also note that in the authorization letter dated 20/3/2007 names and address of the assessee in question have not been mentioned but in Panchnama dated 15/5/2007 drawn in pursuance to the execution of the said authorization letter dated 20/3/2007 names of all these asses .....

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f the aforesaid discussion and respectfully following the order dated 30.05.2014 in the case of J. H. Finevest Pvt. Ltd. Vs ACIT (supra) allow the additional ground of the Cross Objection in assessee s favour. Since we have allowed the legal issue in favour of the assessee and quashed the assessment framed by the AO. Therefore, no findings are being given on other issues raised by the department or by the assessee on merit. In other CO s i.e. CO Nos. 266 to 269/Del/2011, the facts are similar th .....

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