TMI Blog2022 (9) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... sued u/s.119 of the Income tax Act, 1961 Normally, when the Board issues any specific direction u/s.119, it is mentioned that such a direction of circular/order or notification is issued u/s.119. Thus, on this ground itself, the order passed u/s.263 is liable to annulled and we do so. Assessment order passed u/s.143(3) for the impugned assessment year has been subject matter of appeal before the ld CIT(A - In the order of the ld CIT(A), the issue of the stock valuation has already been considered. The ld CIT(A) has also taken cognizance of the fact that pages 2 to 37 of the assessment order is nothing but extract of the appraisal report. This being so, in view of the provisions of Explanation -1 (c) of Section 263 (1), as the order passed by the AO had been the subject matter of appeal filed after the 1st day of June, 1988, the powers of the Pr. CIT u/s.263(1) could extend only to such matters as had not been considered and decided in the appellate order. Both the issues proposed by the pr. CIT was subject matter and has been under the consideration of the ld CIT(A) and the Pr. CIT has also recognized that the ld CIT(A) has adjudicated the appeal and he has also passed his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was the submission that the assessment was subject matter of appeal before the ld CIT(A)-1, Bhubaneswar and the ld CIT(A) had given relief to the assessee to the extent of Rs.4,06,82,567/-. Thus, as against the loss of Rs.25,37,276/-, after giving effect to the order of the ld CIT(A), the loss was determined at Rs.2,08,586/-. It was the submission that the Revenue has filed appeal before the ITAT against the said order of the ld CIT(A). It was the submission that the Pr. CIT, Hyderabad issued a show cause notice on 27.2.2020 u/s.263 of the Act for revising the assessment order passed u/s.143(3). The assessee had replied to the Pr. CIT vide letter dated 16.3.2020 submitting that the AO in the course of assessment has considered all the issues. The Pr. CIT, Hyderabad on the ground that there was a difference between the admitted income and the income estimated by the Investigation Wing and income disclosed in the return of income, observed that the difference should have been sorted out by conducting joint meeting between the Investigation Wing and the AO as per the procedure laid down in the CBDT Instruction No.F.286/161/2006-IT(Inv.II) dated 22.12.2006. The Pr. CIT has extracted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 page 2 that the appraisal report is extracted. Upto page 37 of the assessment order, admittedly it is an extract of the appraisal report. Further, the Revenue has not been able to show as to which portion of the appraisal report, the Assessing officer has not complied with. Mere allegation that the AO has not followed the appraisal report would not hold water. 7. Coming to the clause (c) of the Explanation 2 to Section 263, the order or direction or instruction, which is referred therein, are those issued by the CBDT u/s.119. A perusal of the said instruction shows that this is practically a search and seizure manual notification. It is an internal communication being guidelines for the notice of the Commissioner of Income tax, Range Head and the AO handling the assessment of search and seizure cases. This notification is not one which has been issued u/s.119 of the Income tax Act, 1961. For the purpose of brevity, the first page of the Notification as also the last page of the Notification is being extracted alongwith this order, as under: Page-1 APPNEDIX - V 155 ANNEXURE 92 Date of Issue: 22.12.2006 Subject: Search and Seizure Assessments F. No. 286/161 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntification of the seized material which can be released to the assessee. 4.3 On completion of assessment proceedings, immediate action should be taken for retention of books, as per law, where considered necessary. Books of accounts not used in assessment and having no investigation ramification can be considered for release with the approval of the CIT. While sending recommendations for release of books/documents the following must be ensured: i. Audit (Internal Revenue) of the cases are completed. ii. No action u/s 263/145/154 is pending. iii. No set aside assessment is pending. iv. No external agency like CBI/ED/DRI etc. has requisitioned the seized material. If there is a likelihood of such requisition in future, it must be indicated whether a reference has been made to them. v. Prosecution has not been launched nor is it proposed. 4.4 Often seized assets are released against a bank guarantee furnished by the assessee. The bank guarantee has limited validity and needs to be renewed from time to time. A register should be maintained for the purpose, indicating the validity of the bank guarantee, to ensure proper renewal. 4.5 Cash deposited in the PD Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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