TMI Blog2013 (11) TMI 1483X X X X Extracts X X X X X X X X Extracts X X X X ..... see could not improve its case before the Tribunal for establishing genuineness of the claimed purchases except producing one bill – The CIT(A) was justified in adding this - The AO has not addressed the submission of the assessee regarding allowing adjustment of the loss on account of rejection from debtor - The same cannot be done at the appellate stage as the assessee never claimed this amount in its return of income – The issue was restored for fresh adjudication. - ITA No. 2555/Del/2013 - - - Dated:- 22-11-2013 - Shri I. C. Sudhir And Shri B. C. Meena,JJ. For the Appellant : Shri Ashwani Tanaeja, Advocate For the Respondent : Smt. Renuka Jain Gupta, Sr. DR ORDER Per I. C. Sudhir, Judicial Member The first appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment order framed by Ld. AO without complying with mandatory condition as envisaged u/s 147 to 151 of Income Tax Act, 1961." 2. At the outset of hearing the Ld. AR submitted that he did not wish to press ground Nos. 1 2 only. We thus reject the remaining grounds as not pressed. 3. Raising a preliminary objection the Ld. Sr. DR opposed the appeal relating to the addition of Rs. 7,42,680/- questioned in ground No. 2 of the appeal on the basis that this ground was not raised in the first appeal preferred by the assessee against the original assessment order and the same was not pressed before the Ld. CIT(A) in second round against the assessment order framed in compliance of the order of the Tribunal, hence the ground No. 2 cannot be ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order will be treated as defective including the action of the AO in making several additions in the original assessment order. 6. To find the answer to the above issue, we raise a question to ourselves as to whether a defective order can be enforced against the assessee for the recovery of the additions made therein by the AO ? Answer would be in the negative especially in the present case where after supplying the reasons recorded for the initiation of the reopening proceedings to the assessee to remove the defect in the original assessment order the AO has to follow the subsequent procedure by inviting objection thereto, if any, from the assessee and to consider the same before proceeding further. Thus application of mind is required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that after removal of the defect the AO will frame the assessment denovo on merits also on the other ground raised before the Tribunal affording adequate opportunity of being heard to the assessee. "2.1 In this appeal apart from merits, the assessee has also challenged the validity of re-opening for the reason that conditions mentioned u/s 147/148 with regard thereto were not complied with. 2.3. The learned DR, on the other hand submitted that it was a curable defect, hence the matter could be restored to the file of the Assessing Officer to furnish the reasons to the assessee and deal with the objections, if any, raised by the assessee thereupon, before passing the order on merit again. Accordingly, we restore all the issues raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed this amount in its return of income. The Ld. AR referred page No. 56 of the paper book i.e. copy of the assessment order u/s 143(3) for the assessment year 2007-08 wherein the AO has allowed the offered addition of old creditors pertains to earlier years amounting to Rs. 7,40,969/- against the current year loss on account of sale rejection. The Ld. AR also referred page No. 34, 37 and 40 of the paper book which are copies of the submission dated 27.12.2010 and 8.12.2010 before the AO for the assessment year under consideration, and furnishing of further information as desired by the AO respectively. 8. The Ld. Sr. DR on the other hand placed reliance on the orders of the authorities below, discussed above. 9. Considering the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ground No. 2 to the extent of the above claimed adjustment is thus allowed for statistical purposes. 10. In support of ground No. 1 the Ld. AR reiterated the submissions of the assessee made before the authorities below. Ld. DR on the other hand tried to justify the addition made by the AO. 11. On perusal of orders of the authorities below we find that the AO made addition of Rs. 1,28,857/- on account of unexplained cash payment by the assessee. The list of sundry creditors as on 31.3.2003 given by the assessee included the following persons :- S.No. Name of the Party Cr. Balance 1. Pashupati Auto Ltd. 20,000 2. Ribber Chemicals 42,300 3. Saraswati Chemi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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