TMI Blog2016 (4) TMI 1245X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the impugned order could not be sustained in law - Decided in favour of assessee. - ITA No. 428/Chd/2015, ITA No. 430/Chd/2015 - - - Dated:- 29-4-2016 - Bhavnesh Saini (Judicial Member) And Annapurna Gupta (Accountant Member) For the Appellant : Sudhir Sehgal For the Respondent : Sushil Kumar, CIT-DR ORDER Bhavnesh Saini (Judicial Member) Both appeals by different assessees are directed against different orders of ld. Principal CIT, Central Ludhiana dated 26.02.2015 for assessment year 2006-07 under section 263 of the Income Tax Act. 2. We have heard ld. Representatives of both the parties, perused the findings of authorities below and considered the material available on record. It is stated that the issue is same in both the appeals and parties have argued mainly in the case of the assessee Shri Parshotam Aggarwal. Therefore, it is stated that order in the case of Shri Parshotam Aggarwal could be followed in the case of other assessee M/s Gopal Castings Pvt. Ltd. ITA 428/2015 ( Shri Parshotam Aggarwal) 3. Briefly the facts of the case are that original return in this case was filed on 30.10.2006 declaring an income of ₹ 9,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NPL were purchased from different persons through banking channel @ 3900/- per share. The document were found from the residence of Shri Surinder Gulati during the course of search and name of the assessee is not mentioned in any document or in the statement of Shri Surinder Gulati. No evidence of any extra consideration paid by assessee was found during the course of search. The Assessing Officer was, however, not satisfied with the reply of the assessee and applied the rate of ₹ 6554/- per share and after reducing the consideration shown by assessee, made the addition of ₹ 30,78,648/- considering the difference in valuation of share at ₹ 2654/- vide assessment order under section 153A/143(3) dated 25.03.2013. 6. The assessment order dated 25.03.2013 whereby addition of ₹ 30,78,640/- was made by Assessing Officer was challenged before ld. CIT(Appeals)-I Ludhiana who vide his order dated 07.11.2013 (PB-46) considering the issue in detail, deleted the addition and allowed appeal of the assessee. 7. The revenue preferred appeal before ITAT against the findings of ld. CIT(Appeals) deleting the above addition, however, the departmental appeal in ITA 128/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings of ld. CIT(Appeals) and proceedings under section 263 of the Act would not be valid in law. He has relied upon order of ITAT Chandigarh in the case of M/s R.P. Import and Export Pvt. Ltd. Vs Pr. CIT, Central, Ludhiana in ITA 421/2015 for assessment year 2007-08 dated 15.01.2016. He has further submitted that even the identical issue on merit have been considered by ITAT Chandigarh in various cases titled as DCIT Vs Ashish Singla Ors. in ITA 129/2014 dated 15.02.2016 and the addition on merit on identical facts was found to be unjustified and departmental appeal have been dismissed. He has, therefore, submitted that there was no justification for passing order under section 263 of the Act. 10(i) On the other hand, ld. DR relied upon impugned order. 11. We have considered rival submissions. The facts noted above and the dates and events have not been disputed by the ld. DR. It is, therefore, clear that the Assessing Officer examined the matter in issue at assessment stage on the basis of the seized material found from the premises of Shri Surinder Gulati. The subject matter of the issue in the assessment proceedings was valuation of shares of PNPL as purchased by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his sub-section shall extend [and shall be deemed always to have extended] to such matters as had not been considered and decided in such appeal.] [(2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed.] (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, [National Tax Tribunal,] the High Court or the Supreme Court. Explanation.-In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded. 9. Section 263(1) Explanation (c) provides that where any order referred to in this sub-section and passed by the Assessing Officer had been subject matter of any appeal filed on or before or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be made in the hands of the assessee but it was not considered by the Assessing Officer while framing the assessment of the assessee. The Tribunal held that the action of the Commissioner was not justified. On appeal: Held, dismissing the appeal, that the Tribunal had adverted to the factual, position in a detailed manner, had appreciated those issues that had been taken up by the Commissioner while exercising jurisdiction under sec: 263 and held that the facets had been dealt with by the Commissioner (Appeals) and, therefore, by virtue of clause (c) of section 263(1) the Commissioner was not competent to assume jurisdiction and direct reassessment. The order of the Tribunal was justified. 10(i) The aforesaid judgement has been confirmed by Hon'ble Supreme Court by dismissing the SLP of the department reported in 322 ITR (Statutes)-14 in the name of CIT Vs Shalimar Housing Finance Ltd. 11. Considering the facts of the case in the light of the provisions contained under section 263(1) Explanation (c) of the Income Tax Act and the judgement above, it is clear that ld. Principal CIT has exceeded his jurisdiction under section 263 of the Act. Since the same s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the assessee even in respect of the balance land of 44 Bigha as is noted in the impugned order. The Assessing Officer, at the assessment stage has examined the issue in detail and assessee also filed detailed reply before Assessing Officer in respect of the entire property so purchased and also made a detailed reply on the seized paper, therefore, it can not be said that Assessing Officer has not examined the issue in detail. Therefore, when prior to the initiation of the proceedings under section 263 of the Act, matter in issue has been examined by the appellate authorities i.e. ld. CIT(Appeals) and ITAT Chandigarh Bench on the basis of the seized document, therefore, Principal CIT was not competent to assume jurisdiction under section 263 of the Act and direct the re-assessment in the matter. The decision in the case of Shalimar Housing Finance Ltd. (supra) squarely apply in favour of the assessee. 14. The CIT was swayed by the copy of the seized document which, according to him was received from independent sources. It would, therefore, clearly show that the copy of the said agreement which is referred to by ld. Principal CIT was not seized during the course of sear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependent sources, as stated by the ld. Principal CIT would not make any difference in favour of the revenue. 16. Considering the above discussion, we are of the view the proceedings under section 263 of the Act are clearly beyond the competence of ld. Principal CIT and whole proceedings are unjustified and unreasonable. Therefore, the impugned order could not be sustained in law. We, accordingly, set aside the impugned order under section 263 of the Act and quash the same. 17. In the result, appeal of the assessee is allowed. 12. Considering the facts of the case in the light of the above order, it is clear that when matter in issue has been considered in appeal and decided by the appellate authority, same would not be subject matter of proceedings under section 263 of the Act. All the original seized material have already been considered by the Assessing Officer and the ld. CIT(Appeals), there was no justification to initiate the proceedings under section 263 after passing of the assessment order and the appellate order. Further, no evidence was found against assessee to connect with the addition on merit. Therefore, the issue is covered in favour of the assessee by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, all the above material on record i.e. statement of Shri Surinder Gulati and the seized paper did not make any allegation against the assessee of purchase of shares at ₹ 6554/-. It was a presumption of the Assessing Officer that when one of the transactions is conducted by Shri Surinder Gulati for a sum of ₹ 6554/- then presumption would be that other shares have also been transferred at the same value. However, it is well settled law that presumption, what-so-ever may be strong but same cannot take place of proof. It is also admitted fact that assessee did not have any transaction with Shri Surinder Gulati or any of his family members. The assessee had purchased shares from Chadha family and even in search in the case of Chadha family, no material or document was found making any allegation against the assessee. 10(i) It is interesting to note that when addition is made by the Assessing Officer in the case of Shri Surinder Gulati based on the same seized material by taking the same value of the share at ₹ 6554/-, Shri Surinder Gulati preferred appeal before ld. CIT(Appeals), Central, Gurgaon and the entire addition, on the basis of the same seized m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upport the findings of the ld. CIT(Appeals) that addition was made merely on presumption and without any basis. Since no document or material was found during the search against the assessee to prove that assessee paid any amount over and above what is paid through the banking channel, would clearly indicate that Assessing Officer, without any justification made the addition against the assessee. The ld. DR, however, relied upon decision of the Hon'ble Punjab Haryana High Court in the case of Joginder Lal (supra). In this case, the assessee purchased a plot vide registered Sale Deed for consideration of ₹ 3.70 lacs and during the survey conducted under section 133A, vendors declared sale consideration of the said plot at ₹ 38 lacs. In the case of Hiren Vasant Lal Shah (supra) pursuant to the search at the assessee's premises, certain documents were found and one of the said document contained working of interest @ 3% on the total sum of ₹ 3 lacs. However, in the case of the assessee, no document or material was found during the course of search against the assessee when the search was conducted in the case of Shri Surinder Gulati or in the case of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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