TMI Blog2020 (10) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... ailability of incriminating material seized during course of search leading to undisclosed income in the hands of assessee for year under consideration, issue cannot be answered in accordance with law. Remand this issue back to Ld.CIT(A) to discern from assessment records of their being any incriminating material seized during course of search. Appeal of assessee allowed for statistical purposes. - ITA No.1917/Bang/2016 - - - Dated:- 9-9-2020 - Shri. A.K Garodia, Accountant Member And Smt. Beena Pillai, Judicial Member For the Appellant : Shri Sunil Jain, C.A For the Respondent : Shri T Roumuan Paite, CIT (DR) ORDER PER BEENA PILLAI, JUDICIAL MEMBER Present appeal has been restored back to this Tribunal by H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A of the Act? 4. Hon ble High Court observed that, decision by coordinate bench of Hon ble Karnataka High Court in case of Canara Housing Development Company vs. DCIT reported in 62 taxmann.com 250, was not considered in Lancy constructions case(supra), and also that, Lancy constructions case was dismissed at the stage of admission without notice to assessee as, no substantial question of law arose for consideration therein. Hon ble High Court expressed its view that the judgment reported in Lancy s case cannot be said to be applicable in law or that it is binding for any reason whatsoever. 5. On this background Hon ble Court answered first question as under: 8. Under the circumstances, when the Tribunal has relied on the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 153A to be invoked. 8.2. We have perused decision of Hon ble Karnataka High Court in case of Canara Housing Development Co. (supra). We note that, para 2 of the judgment record the facts wherein it has been categorically observed by Hon ble High Court that, in course of search, incriminating material leading to undisclosed income was seized. We also note that, question raised before Hon ble Karnataka High Court in case of Canara Housing Development Co. (supra) was that: Whether once proceedings under section 153A of the Act is initiated, whether the Commissioner of income tax can invoke the power under Section 263 of the Act to review the order of assessment passed by the Assessing Authority? 8.3. Further, we also note that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.4 that no incriminating materials were found during course of search. For sake of convenience, Ground no.4 raised by assessee is reproduced as under: 4. The assessing officer failed to appreciate and ought to have held that in the present case, no incriminating material has been found which requires real examination/review of any of the items which were subject matter of examination in course of original assessment proceedings, in the proceedings under section 153A r.w.s 143 (3) of the Income tax Act, 1961. 8.6. On this ground, Ld.CIT(A) recorded its findings in para 6.1 and observed as under: Therefore, it is clear that the Hon ble Jurisdictional High Court has held that the undisclosed income or incriminating material is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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