Facts available in search and seizure finding recorded in regular assessment could not be given effect to

IT : Where in course of regular proceedings, Tribunal deleted addition of capital gain holding that assessee's claim was genuine but, subsequently, pursuant to search proceedings, Tribunal held that amount of capital gain earned by assessee was taxable as 'income from other sources', rectification application filed by assessee could not be dismissed at threshold on ground that in view of certain further facts available in search and seizure finding recorded in regular assessment could not be given effect to
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[2014] 49 taxmann.com 512 (Bombay)
HIGH COURT OF BOMBAY
Arvind M Kariya
v.
Commissioner of Income-tax*
M.S. SANKLECHA AND G.S. KULKARNI, JJ.
WRIT PETITION NO. 126 OF 2014
JUNE  24, 2014
Section 254 of the Income-tax Act, 1961 - Appellate Tribunal - Powers of (Power of rectification) - Assessment year 2004-05 - In course of regular proceedings, Tribunal deleted addition of capital gain holding that assessee's claim was genuine - Subsequently, a search was carried out in case of assessee and matter finally reached Tribunal - In said proceedings, Tribunal held that amount of capital gain earned by assessee was taxable as 'income from other sources' - Assessee's rectification application under section 254(2) was rejected - Whether even though Tribunal came to finding that in view of certain further facts available in search and seizure appeal, finding recorded in regular assessment could not be given effect to, that by itself could not shut out order passed in regular assessment at threshold - Held, yes - Whether, therefore, impugned order was to be set aside and Tribunal was to be directed to fix appeal for final hearing - Held, yes [Paras 9 and 10] [Matter remanded]