TMI Blog2022 (4) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... i Jamlappa D Battull, Accountant Member For the Assessee : Shri Vijay Chandak, CA For the Revenue : Shri Pradeep Hedaoo, CIT-DR ORDER PER RAVISH SOOD, JM: The present appeal filed by the assessee is directed against the order passed u/s 263 of the Income-tax Act, 1961 (for short the Act ), dated 27.09.2018 by the Pr. Commissioner of Income Tax (Central), Nagpur (for short Pr. CIT ), which in turn arises from the order passed by the A.O dated 28.11.2016 under Sec. 153A r.w.s 143(3) of the Act, for assessment year 2014-15. Before us the assessee has assailed the impugned order on the following grounds of appeal : 1. That the order u/s.263 is erroneous and bad in law and therefore, it is liable to be cancelled. 2. That the Original Asst Order was passed on 21.12.2014 and again u/s.143(2) r.w.s153A was passed on 28.11.2016. Thus, the order u/s.163 is without jurisdiction as out of time limit with reference to order dt.21.12.2014 and issue u/s.263 could not be the matter u/s.143(3) read with 153A. 3. That the order u/s.263 is vitiated in law in as much as there is no payment effected in Asst. year 2014-15 and full payment was effected in Asst. Year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder with a direction to the Assessing Officer to frame a fresh assessment after affording a reasonable opportunity of being heard to the assessee. 5. Aggrieved, the assessee has assailed the impugned order passed by the Pr. CIT u/s.263 of the Act, dated 27.09.2018 before us. 6. We have heard the Ld. Authorized Representatives of both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by them to drive home their respective contentions. Controversy involved in the present appeal lies in a narrow compass, i.e, as to whether or not the Pr. CIT had validly assumed jurisdiction u/s.263 of the Act and, therein, set-aside the assessment order passed by the Assessing Officer u/s.153A r.w.s.143(3), dated 28.11.2016. 7. Shorn of unnecessary details, search and seizure proceedings u/s. 132 of the Act were conducted on Rander Group of cases on 12.02.2015. As stated by the Ld. Authorized Representative (for short AR ), no incriminating material pertaining to the assessee were found during the course of the search proceedings. Backed by the aforesaid facts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudicial to the interest of the revenue u/s 263 of the Act. 9. After deliberating at length on the issue in hand, we are of the considered view, that as stated by the Ld. AR, and rightly so, the Pr. CIT had clearly exceeded the jurisdiction that was vested with him u/s.263 of the Act. Admittedly, no incriminating material belonging to the assessee was found during the course of search proceedings that were conducted u/s.132 of the Act on 12.02.2015. Also, the fact that the assessment in the case of the assessee was unabated on the aforesaid date of initiation of search, i.e, on 12.02.2015 had not been controverted by the ld. Departmental Representative ( D.R , for short). As per the settled position of law, no addition can be made in respect of an unabated assessment of an assessee which had become final if no incriminating material was found during the course of the search proceedings. Our aforesaid view is fortified by the judgment of the Hon ble High Court of Bombay in the case of CIT Vs. Continental Warehousing Corporation (Nhava Sheva) Ltd., ITA No.523 of 2013, dated 21.04.2015. In the aforesaid case following substantial questions of law were, inter alia, raised for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment year relevant to the previous year in which such search is conducted or requisition is made. The first proviso mandates that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years. The second proviso, according to Mr. Dastur, is important because the assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in sub-section (1) pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate. Equally, subsection (2) of section 153A deals with a situation where any proceeding initiated or any order of assessment or reassessment is made under sub-section (1) but that has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub-section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner. Further, proviso t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Pr. CIT u/s.263 of the Act. We, thus, finding no infirmity in the view taken by the Assessing Officer, which as observed by us hereinabove falls within the four corners of the aforesaid judgment of the Hon ble Jurisdictional High Court in the case of Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra), therefore, set-aside the order passed by the Pr. CIT u/s.263 of the Act, dated 27.09.2018 and restore the order passed by the Assessing Officer u/s.153A r.w.s. 143(3) of the Act, dated 28.11.2016. Thus, the Grounds of Appeal No(s). 1 2 are allowed in terms of our aforesaid observations. 10. As we have quashed the order passed by the Pr. CIT u/s.263 of the Act, therefore, we refrain from adverting to and therein adjudicating the other contentions raised by the Ld. AR as regards the sustainability of order passed u/s.263 of the Act which, thus, are left open. Thus, the Grounds of appeal No(s). 3 and 4 are accordingly disposed off in terms of our aforesaid observations. 11. Ground of appeal No.5 being general in nature is dismissed as not pressed. 12. In the result, appeal of the assessee is allowed in terms of our aforesaid observations. Order pronounced in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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