TMI Blog2012 (9) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... rected against the three separate orders of CIT passed under Section 263 and the fourth appeal is against the order dated 27-11-2008 of CIT(A) arising from the consequential order, passed by the Assessing Officer in pursuant to the revision order of CIT(A) passed under Section 263 for the assessment year 2003-04. 2. The assessees raised common grounds in all the appeals against the revision order under Section 263 as under :- 1) The Commissioner of Income Tax Central-1, Mumbai has grossly erred in cancelling the assessment made U/s 153A r.w.s. 143(3) by the then ACIT, CC-12 by invoking the provisions of section 263, merely on the basis of comparing the incomplete data with audited accounts and without brining on record any material to show any infirmities in audited accounts. 2) The CIT Central has erred in not appreciating the fact that the then AO had already compared and verified the details of incomplete data with that of the audited accounts and that assessment was completed on the basis of such audited and complete accounts and hence the said order could not be treated as erroneous or for that matter prejudice to the interest of the revenue and therefore his action o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain Khan Vs. CIT, in ITA No.3769/M/2008, vide order dated 27-7-2011, an identical issue has been considered and decided by this Tribunal and it was held that when the Assessing Officer passed an order without application of mind, the order so passed by him, is erroneous and exercise of jurisdiction by the CIT under Section 263, is proper and justified. However, learned AR of the assessee has tried to distinguish the earlier order of this Tribunal dated 27-7-2011 and submitted that the Assessing Officer has duly examined the contents of floppies and thereafter passed the assessment order under Section 153A r.w.s. 143(3), therefore, if the Assessing Officer has verified the details then merely because there is no mention in the assessment order by itself is not sufficient to hold the order as erroneous and prejudicial to the interest of revenue. 3.4 Learned AR has submitted that in the Mazharnama dated 21-3-2006, a copy of which has been placed at page No.57 of the paper book, it has been clearly mentioned that the ACIT/AO opened the seal of the floppies allegedly containing the second set of books of accounts in the presence of two witnesses and after taking out the computer back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r examined the details in the computer back up seized and sealed at the time of search and seizure but only it was verified that the seals were intact, which was opened and it was found as working and thereafter again sealed and signed. Thus, the Mazharnama itself does not exhibit that the details of data containing in the computer back up were examined or verified by the Assessing Officer. Therefore, we do not find any merit in the contention of the learned AR of the assessee that because of the Mazharnama, a different decision can be taken when the issue has already been considered and adjudicated by this Tribunal in the case of Shri Akhtar Hussain Khan, one of the group concerned subjected to the same search and seizure action. The Tribunal after considering the detail arguments of the assessee has adjudicated the issue in para 6 as under :- 6. We have considered the rival contentions and carefully perused the records. In the assessment order, the AO has recorded that the A.R. of the assessee appeared in response to the notice from time to time and filed details called for, produced the books of account and explanation. As far as the issue of inflation of the expenditure, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed. When the AO passed an order without application of mind, the order so passed by him is erroneous and exercise of jurisdiction by the CIT u/s. 263 is proper and justified. In view of the above discussion, we are of the considered opinion that there is no error or illegality in the impugned order of CIT passed while exercising jurisdiction u/s. 263. the case relied upon by the ld. A.R. does not help the case of the assessee because in the case in hand the AO has not made even an attempt to verify and adjudicate the issue. Further, the assessee has also not been able to show that the relevant record or explanation has been produced before the AO on this issue. Accordingly, the said decision is not applicable to the facts of the present case. The appeal of the assessee is devoid of merits. 3.7 When the assessment order is silent and does not indicate that the Assessing Officer has applied its mind on the issue which is subject matter of the revision order then it cannot be said that the Assessing Officer has taken a view of this issue. We further note that no query was raised by the Assessing Officer regarding the difference of the expenditure booked by the assessee in final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut application of mind and without appreciating the true nature of arguments placed before him and as such the order passed by the Ld. CIT(A) lacks the sanctity and deserves to be struck off and consequently the additions made by the AO be deleted. 5. The Ld. CIT(A) has erred in not appreciating the material produced before him in support of the argument where each and every expenditure being subject matter of additions by the AO were explained and thereby the Ld. CIT(A) has violated the principles of natural justice and as such the order passed by the Ld. CIT(A) deserves to be struck off. Relief claimed: 1. The additions made by the AO and confirmed by the Ld. CIT(A) being had in law be deleted. 2. The order passed by the Ld. CIT(A) lacks sanctity and being violative of natural justice should be struck off. 3. The appellant craves the right to add, amend, alter, modify and or substitute any or all the grounds of appeal at the time of hearing. 4.1 The main contention of the learned AR of the assessee is that while making the addition under Section 143(3), the Assessing Officer has not verified and examined the alleged inflation of expenditure and has not given a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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