TMI Blog2011 (4) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... of convenience. 2. The assessee raised the following grounds in its appeal: 1. The CIT(A) erred while confirming the assessment order passed by the ACIT, Hyderabad in respect of the assessee Sujana Metal Products Ltd. For the assessment year 1997-98 wherein the total income of the assessee has been assessed amounting to Rs.1,25,77,089/- against the income returned by the assessee amounting to Rs.NIL Rs.2,22,01,742/- as against the return income of Rs.78,25,463/- for the assessment year 1998-99. 2. Sujana Metal Products Ltd., is engaged in the business of steels and metals. For the assessment year 1997-98 the assessee has filed its return of income on 18.4.2001 declaring a total income of Rs.NIL. 3. The ACIT has erred while dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. Subsequently, a notice u/s 148 was issued on 10.9.2001 and the assessment u/s 143(3) r.w.s. 147 was completed on 28.3.2002. 3.1. During the assessment proceedings, it was seen that the assessee had declared net profit in its return at Rs.87,94,578/- as against the net profit of Rs.7,65,52,895/- shown in the profit and loss account filed before the ROC. On being required to explain, the assessee submitted before the Assessing Officer that there was a mistake in taking the depreciation as per the IT Act. A letter dated 28.3.2002, working out the correct taxable income at Rs.1,02,99,658/- was also furnished. 3.2. Meanwhile, in consequence of the search and seizure operation, block assessment proceedings u/s 158BC for the block period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the block assessment. They further observed that if law permits, the Assessing Officer may consider all these incomes in the regular assessments. 3.5. In view of the said findings of the Hon ble ITAT, the Assessing Officer issued a notice u/s 148 on 9.7.2007, to give effect to the findings and directions in the said order of the Tribunal in ITA(SS) No.17/H/2003 dt. 29.3.2006 in respect of the block assessment. 3.6. In response to the said notice, however, the assessee did not file any return of income. Even in response to the notice u/s 142(1) issued later, the Learned Authorized Representative of the assessee only submitted a copy of the audit report u/s 44 AB for the relevant assessment year. The Assessing Officer therefore, issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time limit will apply for reopening of the regular assessment. Besides, he relied on the judgement in the case of Ajay Verma Vs. CIT (304 ITR 30) (Allahabad HC) wherein it was held that a reassessment can be validly initiated during the pendency of an appeal before the High Court. Against the above orders of the CIT(A), the assessee is in appeal before us. 5. We have heard both the parties and perused the materials available on record. The learned counsel for the assessee relied on the judgement of the Hon ble Supreme Court in the case of Om Textiles Ltd. And Union of India Others (204 ITR 508) and CIT Vs. Green Holdings Corporation (314 ITR 81). We have carefully gone through the order of the Tribunal dated 29.3.2006 for the block pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er requiring positive compliance. When it is left to the option and discretion of the ITO whether or not to take action, it cannot be described as a direction. A mere observation by the appellate authority, in this case ITAT that if law permits the assessing officer may consider all these incomes in the regular assessments cannot be construed as a findings or direction u/s 153(3) (ii) of the Act. This is a mere observation by the Tribunal that the assessing officer is free to take action to assess the deleted income in the block assessment in the regular assessment and cannot be described as a direction. We place reliance in the judgement of the Hon ble SC in the case of Rajender Vs. CIT 120 ITR 14 (SC) wherein it was held that: When ..... X X X X Extracts X X X X X X X X Extracts X X X X
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