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TMI Blog2022 (12) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case, the Ld. CIT has erred in initiating and passing the order u/s.263 of the Income Tax Act, 1961. 2) That on the facts and in the circumstances of the case, the Ld. CIT has erred in setting aside the order passed u/s. 143(3) of the Income Tax Act, 1961 by the Ld. A.O. 3) That, on the facts and in the circumstances of the case, the Ld. CIT has erred in directing to examine the applicability of section 115BBE to discourse made during the survey. 4) That the order passed by the Ld. CIT u/s.263 of the I.T. Act, 1961 was arbitrary, bad in law and unjust. 5) That the assessee craves leave to urge such other ground or grounds before or at the time of hearing of appeal." 3. The brief facts of the case are that the assessee filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he counsel for the assessee drew our attention to show cause notice dated 26-12-2019 issued by the AO seeking a specific explanation from the assessee as to why in the instant set of facts, since during the course of survey, excess cash was discovered amounting to Rs. 8,02,110/- and further, additions were made to the tune of Rs. 72,48,619/- being bogus expenses, why the provisions of section 69A and 69C should not be invoked and why income of the assessee should not be taxed under section 115 BBE of the Act. In response to the above show cause notice, the assessee filed reply dated 26-12-2019 as to why in the instant set of facts the provisions of section 69A and 69C are not attracted and hence the assessee is not liable to be taxed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see also filed a detailed reply in response to the aforesaid show cause notice and upon consideration of the same, the reply of the assessee was accepted by the AO. Further, we observe that the Indore ITAT in the case of DCIT v. Punjab Retail private Ltd in ITA number 677/Ind/2019 has held that since applicability of section 115BBE of the Act of the Act was amended with effect from 15-12-2016, it will not apply to search/survey conducted prior to 15-12-2016. Further, the Gauhati Tribunal in the case of Abdul Hamid v. ITO 83 ITD 711 (2020) held that assessment order could not be held to be erroneous and prejudicial to the interest of the revenue on account of non-invocation of section 115BBE of the Act. In the case of Balvinder Singh v. PCIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the jurisdiction. 6.1 In the case of Gandhi Ram v. Principal CIT in ITA number 121/Chd/2021 [2022] (145 taxmann.com 109 (Chandigarh - Trib.), the ITAT Chandigarh held that where PCIT invoked his revisionary jurisdiction under section 263 on ground that income surrendered by assessee was covered as per provision of sections 68, 69, 69A, 69B, 69C and 69D read with section 115BBE, since PCIT himself was not clear about applicability of relevant provisions, assessment order passed by Assessing Officer after due application of mind and after duly examining all evidences on record assessing surrendered income as business income could not be held to be erroneous and unsustainable in eyes of law. While passing the order, ITAT observed as below: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly shooting in the dark which cannot be sustained in the eyes of law and the order so passed therefore cannot be held as erroneous in the eyes of law. 6.2 Keeping in view of the above discussion, in our considered view, the order passed by the AO is not erroneous and prejudicial to the interests of the Revenue. The issue which was the subject matter of 263 proceedings has been specifically discussed by the AO during the course of assessment and therefore it is not a case where there has been no enquiry which has been made by the AO on the applicability of provisions of section 115 BBE of the Act in the instant facts or that there has been a non-application of mind by the AO during the course of assessment proceedings. Further, it is obser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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