9911796707
TMI Blog2023 (11) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... ved on behalf of the appellant/revenue, seeking condonation of delay in re-filing the appeal. 1.1 According to the appellant/ revenue, there is a delay of 290 days in refiling the appeal. 2. Mr Rohit Jain, learned counsel, who appears on behalf of the respondent/assessee, says that he does not oppose the prayer made in the application. 3. Accordingly, the prayer made in the application is allowed. 4. The application is disposed of. ITA 239/2019 5. This appeal concerns Assessment Year (AY) 2006-07. 6. Via the instant appeal, the appellant/revenue seeks to assail the order dated 01.11.2017 passed by the Income Tax Appellate Tribunal [in short, "Tribunal"]. 7. The Tribunal via the impugned order set aside the order dated 01.03.2016 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding under Section 263 of the Act was triggered by the PCIT against the respondent/assessee. 10. A Show Cause Notice (SCN) dated 06.01.2016 was issued by the PCIT under Section 263 of the Act. This time around, the basis of triggering the said proceedings was the cash withdrawals amounting to Rs. 35.70 crores. The PCIT was of the view that the cash withdrawn was utilised to purchase inventory and was thus, "directly hit by the provisions of Section 40A(3) of the Act". 11. As per the PCIT, there was non-application of mind by the AO since he had not noticed the provisions of Section 40A(3) of the Act. Thus, the PCIT concluded that the twin conditions for bringing the matter under the ambit of Section 263 of the Act were fulfilled i.e., th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the judgment rendered in Martech Peripherals Pvt. Ltd. v. Deputy Commissioner of Income Tax and Another [2017] 394 ITR 733 (Mad) by one of us i.e., Rajiv Shakdher, J. when sitting in the Madras High Court. The following observations being apposite are extracted hereafter: "20 The petitioner-assessee, however, challenges this action of the respondents-Revenue, on the ground that it was not permissible for the respondents-Revenue to tax the forfeited share application money, by taking recourse to provisions of section 147 read with section 148 of the Act, unless it assesses to tax that income with reference to which the Assessing Officer had formed reason to believe (within the meaning of section 147), that it had escaped assessment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment proceedings another aspect was discovered, the reassessment order would be valid, only if, the aspect, which led to the reopening of assessment continues to form part of the reassessed income. 23 This view, as has been correctly submitted by the learned counsel for the petitioner-assessee, has found resonance with at least three (3) High Courts, is, the Bombay High Court, the Gujarat High Court and the Delhi High Court in the following cases: (i) CIT v. Jet Airways (1) Ltd. (2011) 331 ITR 236 (Bom); (ii) CIT v. Mohmed Juned Dadani [2013] 355 ITR 172 (Guj); Manu/GJ/0061/2013 (iii) Oriental Bank of Commerce v. Addl. CIT Manu/DE/1935/2014 23.1. The only High Court, which has taken a contrary view, as it were, is the Pun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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