TMI Blog2011 (3) TMI 1430X X X X Extracts X X X X X X X X Extracts X X X X ..... a protective basis without ascertaining the outcome of the addition which was made on a substantive basis Whether the appellate tribunal is right in law in holding that to the entries in the books of account of the assessee, provisions of section 68 are not attracted – Held that:- Tribunal had erred in not appreciating that the entries were self-serving entries purporting to explain the source of cash credit and could not have been treated as explained, Tribunal has not recorded any factual findings and has accepted the claim of the assessee merely on the basis of the entries in the bank accounts of the parties, maintained by the Indian Bank. This Court is of the view that without recording any findings of fact in connection with the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 2nd February, 1986 wherein the undisclosed income was shown at nil. During the course of assessment proceedings, on going through the records, the Assessing Officer found that liability of Rs.33,28,000/- was shown in the name of Food-O-Mec Machinery in financial year 1991-92 and an additional amount of Rs.9,63,596/- was shown as amount given through cheque to the assessee in the financial year 1992-93 by Food-O-Mec Machinery. The Assessing Officer observed that in the assessment order of Patira Food Products Private Limited, Food-O-Mec Machinery was found to be non-existent and considered to be a non-genuine concern, on the grounds stated in paragraph 2.2 of the assessment order. However, the details regarding Food-O-Mec Machinery being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d income. According to the Tribunal, the first item of Rs.9,63,596/- had been added in the regular assessment under section 143(3) for the assessment year 1993-94 and as such, the amount could not be added in view of clause (A) of section 158BB of the Act. The Tribunal, accordingly, held that the Assessing Officer was not justified in making this addition even on protective basis in the block assessment. 7. As regards the addition of Rs.33,28,000/-, the Tribunal observed that the amount was received by the assessee from its sister concern - Patira Food Products Pvt. Ltd. through accounts of Food-O-Mec Machinery. The assessee issued a cheque favouring Patira Food Products Pvt. Ltd. of Rs.33,28,000/- who in turn issued a cheque of Rs.33,2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding that since the amount of Rs.9,63,596/- had been taxed in the regular assessment made under section 143(3) for assessment year 1993-94, it should not be taxed on protective basis in the block assessment. It was submitted that the Tribunal has disregarded the established principle that a protective assessment may be made by the Assessing Officer but the appellate or revisional authority must decide and give a final finding, one way or the other, if necessary, by hearing the appeals of both the concerned sets of persons. It was submitted that in the instant case, the Tribunal could have decided appeals against the order under section 143 and section 158 BC together and if the appeal against order under section 143(3) was pending before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. 10. From the facts noted hereinabove, it is apparent that the Tribunal has deleted the addition of Rs.9,63,596/- which had been made on a protective basis only on the ground that the said amount had been added in the regular assessment under section 143(3) for the assessment year 1993-94. It is an admitted position that against the regular assessment order made under section 143(3), the assessee had preferred appeal. In the circumstances, the Tribunal was not justified in setting aside the addition made on a protective basis without ascertaining the outcome of the addition which was made on a substantive basis. 11. Insofar as the second issue is concerned, a perusal of the findings recorded by the Tribunal indicates that the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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