TMI Blog2015 (9) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... rvations of the ld. CIT(A) and the claim of the ld. DR that the AO had applied his mind independently, is not correct. The AO has simply found that there is credit balance in the account of two parties during the financial year, relevant to AY 2002-03. The credit balance itself cannot be a ground to arrive at the conclusion of escapement of income. In view of above, in our opinion, the decision of M/s Tejaskiran Pharmachem Industries Pvt. Ltd. (2015 (3) TMI 985 - BOMBAY HIGH COURT ) and M.B. Traders (2009 (7) TMI 1097 - ITAT NAGPUR ) would be squarely applicable to the facts of the assessee’s case. Respectfully following the same, we hold that the impugned reopening of assessment was not valid. - Decided in favour of assessee. - ITA no. 50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; - M.B. Traders Vs. ACIT (ITA no. 188/Nag/2008 dated 14-7-2009 (ITAT - Nagpur); and - M/s Hotel Hero Vs. DCIT (IT(SS)A no. 45-46/Ahd/2008 -dated 16- 12-2010 (ITAT Ahmedabad); 4. The ld. DR, on the other hand, relied on the orders of the authorities below and stated that the AO, after considering the observations of the CIT(A) for AY 2003-04, has applied his mind independently and the allegation of the assessee s counsel that AO reopened the case without any independent application of mind, is incorrect. In this regard he referred the relevant portion of the reasons recorded for reopening of assessment. 5. We have carefully considered the arguments of both the sides and perused the material placed before us. We find that the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct for the purposes of reopening of assessment, the condition stipulated for invoking jurisdiction under Section 147/148 of the Act has to be satisfied. 11. In view of the above, we see no reason to entertain the present appeal as the Tribunal by the impugned order has correctly held that the notice for reopening dated 10 February 2003 was without jurisdiction. 5.1. The ITAT Nagpur Bench in the case of M.B. Traders (supra) held as under: Section 19 deals as quoted above with regard to time limit for notice. Sec. 150 deals with regard to provision for cases where assessment is in pursuance of an order on appeal. In our considered view there is no bar for issuing notice under s. 148 by the AO on the direction of the first appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of CIT(A) in appeal No. CAB/III-226/2002-03 dated 24-03-2004 that CIT(A) has specifically observed, However, it was further observed that on merits of the case the appellant has not fully discharge its onus as much as that the identity of the persons were established and confirmations from the persons mainly partners was furnished, moreover, creditworthiness of these partners and the immediate source of money in order to contribute the capital. This issue may be examined in the regular assessment proceedings. We find from the above observations that it is a matter which could have been considered in regular assessment proceedings. We find from the above reasons recorded, wherein the Assessing Officer used the words therefore in the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for A. Y.2002-03 - Regarding. Please refer to your letter dated 04-02-2008 on the subject cited above. 2. In the appellate order passed by the Ld. CIT (Appeals), Muzaffarnagar dated 05-10-2006 for A.Y.2003-04 the Ld. Appellate authority while deleting the addition made at ₹ 5.40,475/- observed that since liabilities are brought forwarded from earlier years for which the appellant has already filed return of income, no addition required in this year, However, remedial action should be taken by the A0 in the respective years where liabilities have been created for the first time in the hooks of the assessee appellant. In the case of Bansal Polyvin (P) Ltd. Samana and M/s Ek Onkar Foundry, Harayana liability totaling to ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of Hon ble Bombay High Court in the case of M/s Tejaskiran Pharmachem Industries Pvt. Ltd. (supra); order of ITAT Nagpur Bench in the case of M.B. Traders (supra); and order of ITAT Ahmedabad Bench in the case of M/s Hotel Hero (supra), would be squarely applicable to the facts of the assessee s case. Respectfully following the same, we hold that the impugned reopening of assessment was not valid. Accordingly, we quash the issue of notice u/s 148 and consequently the assessment order passed in pursuance to such notice is also quashed. 6. In the other grounds of appeal, the assessee has challenged the addition made in the reopened assessment. Since we have already quashed the assessment order, the other grounds in the assessee s ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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