TMI Blog2006 (8) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... ained sundry advances received from the customers. The facts of the case are that the Assessing Officer noticed sundry creditors amounting to Rs. 18,98,265 in the head office and Rs. 18,08,437 in the branch office. On being asked to furnish complete names and addresses of these creditors, the assessee stated that books of account for the current year had been lost. A copy of FIR and affidavit of one of the partners was also filed. However, subsequently the assessee supplied a list of all sundry creditors along with their addresses. The Assessing Officer sent enquiry letters at the addresses supplied by the assessee. But these were received back with the remarks that the addresses mentioned on the letters were either incomplete or such perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferring to appellate order of CIT(A) for the assessment year 1992-93 and taking into account the fact that in the subsequent assessment year 1993-94, such balance was accepted by the Assessing Officer under section 143(3) deleted the impugned additions. The Revenue is aggrieved with the order of the CIT(A). Hence, this appeal before the Bench. 4. The learned Departmental Representative heavily relied on the order of the Assessing Officer. It was submitted before us that the assessee failed to discharge the onus in proving the source and genuineness of the credit by establishing the identity of the creditors, creditworthiness of the creditors and genuineness of transactions. It was also submitted that during the course of assessment proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the objection raised by the assessee on the ground that no such plea was taken before the CIT(A). The learned Departmental Representative also filed written submissions vide his letter dated 5th May, 2006 stating therein that the assessee filed the return for the assessment year 1991-92 on 13-12-1993 which was beyond the time prescribed under section 139(1) and even under section 139(4) of the Act. Therefore, such belated return was non est and as such the Assessing Officer had issued notice under section 148 to regularize the return filed on 13-12-1993. Thus, he submitted that the assessment completed by the Assessing Officer by issue of notice under section 148 was within time and had not become time-barred. 7. The learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b Sons Agency ( supra ) where it was held that the power of the Tribunal to permit any party to the appeal to raise the question of jurisdiction which goes to the root of the matter and did not involve further investigation into facts, can be raised under rule 11 of the ITAT Rules, 1963. Therefore, the objection raised by the assessee is allowed. 9. Coming to the merits of the case, we call for the assessment records of the assessee. A perusal of the order-sheet entries made on 7-10-1994 read as under : "7-10-1994 Return of income declaring loss of Rs. 30,380 has been filed by the assessee firm on 13-12-1993. This is belated return as the same has been filed after one year from the end of the assessment year. Issue notice under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (1) of section 142. Admittedly, in this case, notice under sections 142(1) and 143(2) have been issued on the basis of return filed on 13-12-1993 which was a non est return. No notice under section 143(2) could have been issued on the basis of such non est return. Now section 147 enables the Assessing Officer to issue notice under section 148 in a case where income has escaped assessment within the meaning of section 147 after recording the reasons for the same. Sub-section (1) of section 148 further provides that the assessee shall furnish the return in response to notice issued under section 148 in the prescribed form and verified in the prescribed manner along with other particulars as may be prescribed; and the provisions of this Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been set aside after quashing the assessment, we do not consider it necessary to record any finding in respect of the same. 11. However, before parting with this issue, we wish to mention that the appeal for the subsequent assessment year 1992-93 was decided by the Tribunal on 14-7-2006, in ITA No. 130/Asr/1996, where the order of the CIT(A) was set aside and that of the Assessing Officer restored. However, during the course of arguments of that appeal, the learned counsel had submitted that if the addition for the assessment year 1991-92 was sustained by the Tribunal, the assessee would be entitled to the benefit of set-off of such addition against the addition maintained for the assessment year 1992-93. The Tribunal had therefore, re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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