Itxa/428/2010 Of The Commissioner Of Income Tax - 13, Mumbai v. Shri. Mukesh J. Upadhyaya

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.428 OF 2010 The Commissioner of Income Tax-13,)Having his office at Aayakar Bhavan, M.K.)Road, Churchgate, Mumbai - 400 020.) ..Appellant. V/s. Shri Mukesh J. Upadhyaya)4th Floor, Bhaweshwar Darshan Apartment,)M.G. Road, Ghatkopar (E), Mumbai-400 077.)..Respondent. Mr. Suresh Kumar for the appellant. Mr. P.J. Pardiwalla, senior Advocate with A.K. Jasani for the respondent. CORAM : J.P. DEVADHAR AND MRS. R.P.SONDURBALDOTA, JJ. DATED : 13TH JUNE, 2011 ORAL JUDGMENT (PER J.P. DEVEDHAR, J.) 1.Whether the ITAT was justified in setting aside the order passed by the CIT under Section 263 of the I.T. Act is the question raised in this appeal. 2.In the present case, based on the documents seized from the premises of Vishwas R. Bhoir, addition of Rs.90 lakhs were made in the hands of the respondent-assessee as undisclosed income in the block assessment order dated 31/12/2002. The said additions were confirmed by CIT(A). On further appeal filed by the assessee, the ITAT has deleted the addition made by the assessing officer. Challenging the order of the ITAT, the revenue has filed appeal under Section 260A of the Income Tax Act, 1961 (T.A. No.195 of 2010) and the same has been admitted by us today i.e. 13/6/2011. 3.In the meantime, the CIT by invoking jurisdiction under Section 263 of the Act had passed an order on 16/3/2005 thereby directing the assessing officer to consider the tax implication of the seized page No.10 of Bundle No.5 and page Nos.1 to 13 of Bundle No.12, seized from the residence of Vishwas R. Bhoir. 4.The ITAT set aside the order of CIT (see para 24) on the ground that the addition of Rs.90 lakhs was made after due consideration of both the documents referred to by the CIT. The Tribunal has recorded a finding of fact that the two documents cannot be read independent of each other. The Tribunal has further recorded a finding of fact that once the taxability under both the documents have been considered by the assessing officer and also by the CIT(A), it is not open to the CIT to invoke the jurisdiction under Section 263 of the Act and direct the assessing officer to consider the taxability under those two documents once again. There is nothing on record to suggest and no argument has been canvassed before us to show that the taxability under the two documents referred to by the CIT have not been considered by the assessing officer in the block assessment order and subsequently by the CIT (A). In other words, once the taxability under the seized documents have been considered by CIT(A), the CIT under Section 263 of the Act cannot seek to consider the taxability under the very same documents once again. 5.In these circumstances, in our opinion, no fault can be found with the decision of the Tribunal in setting aside the order of CIT under Section 263 of the Act. 6.Accordingly, we see no merit in the appeal and the same is hereby dismissed. (MRS. R.P.SONDURBALDOTA , J.) (J.P. DEVADHAR, J.)