TMI Blog2022 (4) TMI 1312X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the transfer of case u/s 127 was within the knowledge of the assessee during the course of assessment proceedings and still the assessee had chosen not to participate in the matter of jurisdiction of the Assessing Officer to whom the case has been transferred. The assessee cannot be allowed latter to challenge the jurisdiction of the Assessing Officer as held by the Hon ble Supreme Court in the case of Pannalal Binjraj vs. Union of India [ 1956 (12) TMI 1 - SUPREME COURT] AND SHIVABHAI KHODABHAI PATEL VERSUS COMMISSIONER OF INCOME-TAX [ 1999 (12) TMI 31 - GUJARAT HIGH COURT] - the objection raised by the assessee challenging the transfer of jurisdiction of the case does not stand the test of the law. Thus, this contention is devoid of any merit and, accordingly, we dismiss the same. Assessment u/s 153A - contention raised by the appellant that the information received from the Investigation Wing of the Department does not form part of the incriminating material, therefore, non-consideration of such incriminating material at the time of framing the assessment u/s 143(3) does not give jurisdiction to the Commissioner to exercise the power of revision, this contention ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to reconcile share transaction vis a vis information received from the investigation wing. 5. The Appellant prays that order passed under section 263 of the Act to be struck down as null and void-ab-initio. 6. The above grounds of appeal are without prejudice and notwithstanding each other. 7. Any consequential relief, to which the Appellant may be entitled under the law in pursuance of the aforesaid grounds of appeal, or otherwise, may be thus granted. 8. The Appellant craves leave to add to or alter, by deletion, substitution or otherwise, any or all of the above grounds of appeal and the factual and legal arguments against the addition by the Ld. CIT(A) / Ld. AO at the time or before the course of appellate proceedings in interest of natural justice. 5. Briefly, the facts of the case are that the appellant is an individual engaged in the business of trading in shares and also investments. There was a search and seizure operations were conducted on the Kotecha Group of cases of Jalgaon on 09.08.2011 by the DDIT (Inv.), Jalgaon. As a part of such search action, certain incriminating material is stated to have been impounded. Subsequently, a notice u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led for the details pertaining to the transactions. The appellant had filed the requisite details to the satisfaction of the Assessing Officer. The Assessing Officer, on being satisfied himself with the explanation offered by the appellant, had chosen not to make any addition. Therefore, it was pleaded by the assessee that since the Assessing Officer had enquired into the genuineness of the transactions, the revision proceedings u/s 263 were not maintainable. 7. However, the ld. CIT (Central) observed that the Assessing Officer had failed to verify the transactions with M/s. Religare Securities Ltd., in the light of the incriminating material received from the Investigation Wing of the Department placing reliance on the decision of the Hon ble Supreme Court in the case of Rampyari Devi Saraogi vs. CIT, 67 ITR 84 (SC), the ld. CIT (Central) held that when the assessment was completed by the Assessing Officer without holding necessary enquiry rendered the assessment is erroneous . Accordingly, the ld. CIT (Central) set-aside the assessment to the file of the Assessing Officer for de-novo assessment after making proper enquiry and after affording reasonable opportunity of being he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer had not called for the details of said transactions nor examined the genuineness of the transactions in the light of the incriminating information received from Investigation Wing of the Department. There is an abatement of regular assessment proceedings pursuant to the assessment proceedings u/s 153A of the Act. Therefore, ld. CIT-DR submitted that if any information or material which is received during the course of assessment proceedings, the same should be considered by the Assessing Officer, in the assessment proceedings, non-consideration of such material/information and not making proper enquiry into such information would render the assessment order erroneous and prejudicial to the interests of the Revenue. Thus, ld. CIT-DR submitted that the ld. CIT (Central) was justified in exercise of jurisdiction u/s 263 of the Act. In this connection, the ld. CIT-DR placed reliance on the following decisions :- (i) Malabar Industrial Co. Ltd. vs. CIT, 243 ITR 83 (SC). (ii) Rajmandir Estates (P.) Ltd. vs. PCIT, 386 ITR 162 (Cal.). (iii) Rajmandir Estates (P.) Ltd. vs. PCIT, 77 taxmann.com 285 (SC). (iv) Swarup Vegetable Products vs. CIT, 187 ITR 412 (All.). ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at ₹ 92.81 lakhs. This inference is not justified. Mere using the word allowed does not mean examination and enquiry before allowing deduction under Section 90 HHC of the Act. The words due verification would include within its ambit not only inadequate inquiry/verification but also no enquiry/verification. However, in case the respondent-assessee was of the view that the claim has been examined by the Assessing Officer before allowing it, then respondent-assessee ought to have the statement of case modified/amended so as to bring the aforesaid facts on record, as held by the Apex Court in the case of Calcutta Agency Ltd. (supra). This not being done and now to draw far fetched inference cannot be accepted. It is now settled in view of Malabar Industries (supra) that non- enquiry before allowing the claim would make the order of the Assessing Officer amenable to jurisdiction under Section 263 of the Act. The non-enquiry by the Assessing Officer gives jurisdiction under Section 263 of the Act. Merely because the issue is debatable, it does not absolve the Assessing Officer from examining the issue and taking a view on the claim after examination. Similarly because the tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not available before him as it was rendered on 19.05.1995. 13. In the present case, we are unable to discern from the record that the Assessing Officer had subjected to the claim of the appellant for exemption u/s 10(38) and took a plausible view nor could the appellant demonstrate with evidence before us. Therefore, in the present case non-examination of the claim by the Assessing Officer renders the assessment order erroneous and prejudicial to the interests of the Revenue. Accordingly, we uphold the order of revision passed by the ld. CIT (Central) u/s 263 of the Act. Thus, we do not find any merit in the grounds of appeal no.1 to 8 raised by the assessee herein. 14. As regard to the other contention of the appellant that the Assessing Officer had no jurisdiction to pass the assessment order, as no opportunity was offered by the Commissioner of Income Tax- II, Nashik while passing the order u/s 127 of the Act, we are of the considered opinion that this issue cannot be agitated in the revision proceedings, as revision proceedings are only prejudicial to an assessee and the issues concluded in the assessment proceedings cannot be re-agitated by an assessee in the revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Halsbury s Laws of England, Vol. II, 3rd Ed., page 140, Pr. 265 and also the case in O.A.O.K. Lakshmanan Chettiar v. Commissioner, Corporation of Madras AIR 1927 Mad. 130, which are referred to in the decision in the case of Pannalal Binjraj v. Union of India [1957] 31 ITR 565 (SC). 21. In the case of Pannalal Binjraj (supra), which is a Constitution Bench decision, the Supreme Court lays down the law to the effect that, if an assessee has acquiesced in the jurisdiction of the Income-tax Officer to whom a case has been transferred, he cannot subsequently object to the jurisdiction of the officer and seek to get the order of transfer quashed by invoking the jurisdiction of the Court under article 226 of the Constitution . 22. This being the law in respect of cases where the assessee has acquiesced to the jurisdiction of the transferee Court, the submissions made by Shri Bajla have no application in this case. The writ petition is, therefore, dismissed. 16. In the light of above legal position, the objection raised by the assessee challenging the transfer of jurisdiction of the case does not stand the test of the law. Thus, this contention is devoid of any merit and, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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