9911796707
TMI Blog2020 (10) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... emitted the issue to Ld.CIT(A), for fresh decision by considering judgment of Hon'ble High Court in case of CIT vs Lancy Constructions (supra), with specific direction to verify, whether, there was incriminating material found during course of search, for assuming jurisdiction under section 153A of the Act. Against this order of Tribunal, revenue preferred appeal before Hon'ble Karnataka High Court. 3. On perusal of order passed Hon'ble Karnataka High Court, we not that following substantial questions of law were framed: " i. Whether on facts and in circumstances of the case and in law the Tribunal was correct in law in holding that incriminating material is necessary condition for proceedings under section 153A of the Act by following j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em it just and necessary that the matter be remanded to the tribunal for fresh consideration in accordance with law based on the aforesaid observations. The Tribunal is entitled to consider the appropriate law on the issue, including other judgements not considered." Hon'ble Court, allowing the appeal filed by revenue, remanded the appeal to this Tribunal for fresh consideration in accordance with law 6. Ld.AR once again placed his arguments challenging validity of proceedings under section 153A raised in Ground No.1. 7. On the contrary, Ld.CIT.DR submitted that even if there is no incriminating material that was seized leading to undisclosed income, proceedings under section 153A could be invoked on an issue that has been subject matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 263 against original assessment is order. 8.4. Before us, decision of Hon'ble Bombay High Court in case of CIT vs Continental Warehousing Corporation (Nhava Sheva) Ltd reported in 374 ITR 645 has been referred to by Ld.AR, wherein, on identical issue, Hon'ble Court discussed in great detail decision by Hon'ble Karnataka High Court in case of Canara housing (supra). Hon'ble Bombay High Court noted that, in case of Canara Housing (supra), Hon'ble Karnataka High Court allowed appeal of assessee and set aside order passed by CIT under section 263. Referring to para 11 of decision by Hon'ble Karnataka High Court in case of Canara housing (supra), Hon'ble Bombay High Court in Para 37, rejected argument advanced by revenue, similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o tax." From the above para, reproduced from order of Ld.CIT(A), it comes out that, he proceeded on the basis that, if search has taken place, section 153A is triggered, and finding of incriminating material in search is not relevant. 8.7. In our opinion, there is no categorical observation by Ld.CIT(A) regarding any incriminating material that was unearthed and seized leading to undisclosed income that was not considered. Even Ld.CIT.DR could not point out any categorical observation by authorities below wherein this issue has been addressed. 8.8. In our opinion unless there is a factual observation regarding availability of incriminating material seized during course of search leading to undisclosed income in the hands of assessee for ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
