TMI Blog2011 (4) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee over which he paid tax. Set aside the order passed by the Tribunal and direct AO to give effect to the principle of set-off on account of intangible additions after considering the final reassessment of the previous two assessment years, viz., 1995-96 and 1996-97 - in favour of assessee. - 319 of 2003 - - - Dated:- 19-4-2011 - BHASKAR BHATTACHARYA, SAMBUDDHA CHAKRABARTI, JJ. JUDGMENT Bhaskar Bhattacharya J.- This appeal under section 260A of the Income-tax Act, 1961 is at the instance of an assessee and is directed against an order dated July 21, 2003 passed by the Income-tax Appellate Tribunal, "D" Bench, Kolkata, in Income-tax Appeal No. 132/Calcutta/2001 relating to the assessment year 1997-98 thereby conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer applied the gross profit rate of 5.25 per cent thereon and made an intangible addition amounting to Rs. 1,43,688. (b) Being dissatisfied with the said order of the assessment, the assessee preferred an appeal before the Commissioner of Income-tax (Appeals) objecting to the addition of Rs. 1,43,688 made by the Assessing Officer as gross profit rate. The Commissioner of Income-tax (Appeals), however, confirmed the said order of addition. (c) Being dissatisfied, the assessee preferred an appeal before the Income-tax Appellate Tribunal and the said Tribunal has dismissed the appeal confirming the order of the Commissioner of Income-tax (Appeals). (d) Similarly, in respect of the assessment year 1996-97, the Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring on behalf of the appellant, has taken a pure question of law regarding non-consideration of set-off of intangible additions made in the past on account of the suppressed sales with the excess stock detected at the time of survey. According to Mr. Bharaddwaj, in this case, for the survey in the office of the assessee, there being reopening of the assessment for the previous assessment years 1995-96 and 1996-97 and the Assessing Officer having imposed tax and penalty for the alleged undisclosed income, those undisclosed incomes became lawful property of the assessee in view of payment of tax and as such, it was the duty of the Assessing Officer and the authorities below to allow deduction of the amount on account of intangible additions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be reopened. 7. After hearing the learned counsel for the parties and after going through the materials on record, we find that undisputedly in the previous two assessment years, viz., 1995-96 and 1996-97, there was reassessment and the undisclosed income of the assessee was disclosed and the assessee made payment of tax on those undisclosed incomes. Once such fact is established and is not in dispute, we find substance in the contention of Mr. Bharaddwaj, the learned advocate appearing on behalf of the assessee, that while considering the assessment for the year 1997-98, it was the duty of the Assessing Officer to consider the question of set-off on account of intangible additions made in the past against unexplained income of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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