TMI Blog2020 (1) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... rch; circumstances at which this satisfaction could be recorded has also been contemplated by the Hon ble Supreme Court. We allow these Misc. Applications, and recall the impugned order of the Tribunal. We direct the Registry to re-fix the appeals on 2.3.2020 for hearing afresh. Issue notice to both parties. - Misc. Application No.56/Ahd/2016 IN Misc. Application No.138/Ahd/2013 IN ITA No.2404/Ahd/2007 AND Misc.Application No.57 to 60/Ahd/2016 IN Misc. Application Nos.143 to 146/Ahd/2013 IN ITA No.2405, 2406, 2407 and 2408/Ahd/2007 - - - Dated:- 29-1-2020 - Shri Rajpal Yadav, Vice-President And Shri Waseem Ahmed, Accountant Member For the Assessee : Shri Nimesh Vyawala, AR For the Revenue : Shri L.P.Jain, Sr.DR with Shri Sushil Kumar Singh, ITO ORDER PER RAJPAL YADAV, VICE-PRESIDENT: The present Misc. Applications are directed at the instance of the assessee in their respective appeals as mentioned in the title cause. 2. Before adverting to the facts pleaded in the application, we would like to mention that earlier the assessee has filed misc. applications bearing nos.138 and 143 to 146/Ahd/2013 pointing out apparent error in the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was common, therefore, there was no requirement to record any satisfaction for taking cognizance against the assessee. Hence, the Tribunal has not committed any apparent error. 4. We have duly considered rival submissions and gone through the record carefully. At this stage, before we embark upon an inquiry on the facts of the present case, in order to find out whether any apparent error was committed by the Tribunal or not while passing impugned order dated 29.3.2016, we think it appropriate to bear in mind certain basic principles for exercising powers contemplated in section 254(2) of the Income Tax Act. There are series of decisions at the end of the Hon ble Supreme Court as well as Hon ble High Court expounding scope of exercising powers under section 254(2) of the Act. We do not deem it necessary to recite and recapitulate all of them, but suffice to say that core of all these authoritative pronouncements is that power for rectification under section 254(2) of the Act can be exercised only when mistake, which is sought to be rectified, is an obvious and patent mistake, which is apparent from the record and not a mistake, which is required to be established by arguments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Circle, Shri R.V. Patel informed Yakub Ahmed that no satisfaction note is available in the record of Yakub Ahmed Coldrink for issuance of notice under section 153C to Bharat Ginning Pressing Factory. On the strength of these details he submitted that there is no need to adjourn the hearing. 4. We have duly considered contentions of the ld.counsel for the assessee. However, at this stage without getting these details verified from the Revenue, we are not inclined to accept them on its face, because if these details were available, during the appeal hearing, they could have been considered on that time also. In proceedings under section 254(2) our jurisdiction is very limited. Therefore, we grant some more time to the Revenue, and direct the Assessing Officer to remain present on the date of next hearing with relevant record. Copy of this order be supplied to Administrative Commissioner for ensuring the compliance. 5. Matter now stands adjourned to 17th January, 2020. Sd/- Sd/- (AM) (JM) WASEEM AHMED RAJPAL YADAV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deja in ITA Nos. 174, 175 176/Ahd/2009 for A.Y. 03-04, 04- 05 05-06 - wherein Co- ordinate 'B' Bench, Ahmadabad held that proceeding u/s. 153C is held valid. vii. Vishnu Anant Mahajan vs. ACIT, Circle 5, Baroda - wherein salary and interest income of the partner is held business income in the hands of partner. viii. CIT vs. Late J. Chandrasekar (HUF) [2011] 338 ITR 61 (mad) - wherein proceeding u/s. 153C is held invalid as the Revenue do not possess any material to show that materials were available at the hand of the Assessing Officer at the time of issuing notice. Besides above, number of cases have also been referred by the ld. A.R. Therefore, he requested that the proceeding initiated u/s.153C is to be declared null and void. At the outset, ld. CIT D.R. argued that both the lower authorities were right in confirming the action u/s.153C of the IT Act as during the course of search at the residence premises of Shri Yakub A. Colddrink, books of the firm as per Annexure A/11 A/12 were found and seized which were admitted by the partner belonging to the appellant firm in his statement dated 29.08.2003 recorded u/s. 132(4) of the IT Act. Thus, he prayed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roval of JCIT/ACIT is required. Keeping in view of the facts and legal position on this issue, we have considered view that CIT(A) was right in confirming the action of the A.O. u/s.153 of the IT Act. Thus, the first ground of appeal in all the years is dismissed. 6. The Hon ble Supreme Court in the case of CIT Vs. Calcutta Knitwears, reported 362 ITR 673 (SC) has considered procedure required to be followed in assessment order under section 158BD of the Act. The conditions enumerated in section 158BD are identical to section 153C of the Act. In other words, section 153C is successor of section 158BD. In both these sections fundamental requirement is, before taking cognizance of section 153C, a satisfaction note is required to be recorded by the AO of the searched person exhibiting the fact that during the course of search certain incriminating material belonged to the assessee found and seized, who reveals escapement of taxable income. After recording the satisfaction, record would be transmitted to the AO of such other person who has territorial jurisdiction over other person. Hon ble Supreme Court in the case of Calcutta Knitewear (supra) laid down when this satisfaction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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