TMI Blog2020 (1) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... ct by the Finance Act, 2015, w.e.f. 1.6.2015, the assessment order is deemed to be erroneous in so far as it is prejudicial to the interest of Revenue. Present case is squarely covered by the decision of Surya Jyoti Software Pvt. Ltd. vs. Pr. CIT [ 2017 (11) TMI 1588 - ITAT DELHI] which was passed on identical set of facts. We further note that the present case is also covered against the assessee by the judgment of the Hon'ble Supreme Court of India in the case of Deniel Merchants Pvt. Ltd. vs. ITO [ 2017 (12) TMI 476 - SUPREME COURT] wherein dismissed the SLPs in cases where the AO did not make any proper inquiry while making the assessment and accepted the explanation(s) of the assessee(s) insofar as receipt of share application money was concerned. We hold that the Ld. Pr. CIT has rightly exercised his jurisdiction under section 263 of the Act in setting aside the order of the Assessing Officer being erroneous in so far it is prejudicial to the interest of the Revenue. Accordingly, we confirm the order of the Ld. Pr. CIT and dismiss the grounds raised by the assessee before us. Appeal of the assessee stands dismissed. - ITA No. 2975/Del/2017 - - - Dated:- 30-12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seized material relating to the assessee were not given to the assessee. It was the contention of the assessee before the Ld. Pr. CIT that the assessee had not received any fresh share application money or share capital during the year and that the AO had also examined this issue during the proceedings u/s 148 of the Act and had found nothing wrong. 2.2 However, the Ld. PR. CIT was of the opinion that the assessee was shown as a beneficiary in the documents seized from Shri Surender Jain and Shri Virender Jain group of cases as was evident from seized material annexure A-62 page 17 wherein, along with the name of the assessee company, the name of Shri Y.K. Gupta was mentioned. The Ld. Pr. CIT also noted that the cheque number mentioned in the seized material was found to be credited in the bank account of the assessee company. The Ld. Pr. CIT also noted that the evidence of cash deposits of ₹ 4,90,000/- against the name of Shri Y.K. Gupta was mentioned at Annexure A-113 page 20. The Ld. Pr. CIT noted that in view of this, the order passed by the AO was passed without considering the relevant seized material which showed that the cheques had been issued i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, therefore, no addition was made by the AO. The Ld. AR also submitted that Shri Y.K. Gupta was not known to the assessee and, therefore, his name could not be linked to the assessee. The Ld. AR submitted that, on the facts of the case, the order passed u/s 263 deserved to be quashed. 4.0 In response, the Ld. CIT (DR) submitted that the bench had directed the department on an earlier occasion to file a counter affidavit in response to the affidavit filed by the assessee and the same has been received. It was submitted that it has been submitted by the AO in the counter affidavit that there was nothing in the order sheet entries, the questionnaire issued in the reassessment proceedings or even in the assessee s replies filed during the re-assessement proceedings which would indicate that the AO had confronted the assessee with any of the seized material. It was submitted that it has been averred in the counter affidavit that the contention of the assessee that the AO had showed himself some seized papers had no basis at all and was misleading. The Ld. CIT (DR) also submitted that the submissions of the assessee had not credibility and was not acceptable to the depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheques issued by such concerns seized from the premises of Shri S.K. Jain during the course of search which indicated accommodation entry pertaining to assessee also. The Ld. Pr. CIT further noted that an appraisal report along with scanned copy of seized material was sent by the Investigation Wing to all the Assessing Officers through their respective CITs, which has neither been looked into by the Assessing Officer nor has been examined by him during the course of re-assessment proceedings. Accordingly, the Ld. Pr. CIT issued a show cause notice under section 263 of the Act, the contents of which have been incorporated by him at pages 2 and 3 of the impugned order, wherein he has specifically brought out that the Assessing Officer had failed to consider the relevant seized material pertaining to the assessee-company, which was evident from 'Annexure A-62, page 17 of the seized material, wherein there is a categorical mention that an amount of ₹ 4,90,000/- was taken by the through cheque No. 066964 dated 17/10/2006 through Shri Y.K. Gupta which was found to be credited in the bank account of the assessee and was also appearing in Annexure A-113, page 20. It is seen tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding the genuineness of the transactions and as to whether cheque was issued in lieu of cash or not as was appearing in the seized material. From the perusal of the case records of the assessee for the relevant assessment year, there is nothing on record to show that the Assessing Officer has ever confronted the assessee on such seized documents and had the Assessing Officer examined the seized material, he should have made some noting either in the order sheet or in the questionnaire issued to the assessee or any kind of reference would have been made in the submissions made by the assessee before the Assessing Officer. Accordingly, it is our considered view that the Ld. Pr. CIT has rightly set aside the re-assessment order on the ground that the Assessing Officer has not made any proper verification/enquiries and, therefore, the said assessment order is deemed to be erroneous and insofar as prejudicial to the interest of the Revenue in terms of amended provisions inserted in section 263 of the Act by way of Explanation 2. The Pr. CIT has amply demonstrated in his impugned order that this issue was neither enquired into nor was verified by the Assessing Officer once the informati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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