TMI Blog2001 (3) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... egating to ₹ 2,89,125 on account of unexplained cash credit raised by the appellant on 19-11-1988 and 25-1-1989 in cash; (b)Rs. 1,50,000 peak of unexplained cash credit in the name of M/s. Bharat Impex, and interest thereon; and (c )Rs. 10,00,000 on the basis of promissory note seized and treating the same as unaccounted loan given to one Shri Raju Doshi and interest thereon. 2.That the Assessing Authority and Appellate Authority both have failed in considering properly the information and explanations filed and material available on record. 3.That in case of Cash Credit the appellant assessee has discharged his full legal burden of proving the genuineness of loan, transaction and identified the parties. 4.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re clearly admissible. The learned counsel further pointed out that in the original grounds of appeal, the assessee had mentioned at ground No. 5 that other grounds of appeal shall be urged at the time of hearing . Thus, it is argued that the assessee is competent to raise the additional grounds of appeal. 4.1 On the other hand, the learned Departmental Representative opposed the admission of additional grounds of appeal. 4.2 After considering the rival submissions and keeping in view the judgment of Hon ble Supreme Court in National Thermal Power Co. Ltd. s case (supra), we are of the opinion that in the interest of substantial justice, the additional ground of appeal is required to be admitted. We, accordingly, admit the additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel filed a copy of the above decision and also pointed out that the learned Judicial Member was a party to the said decision. 5.1 On the other hand, the learned Departmental Representative contended that the issue regarding re-opening of the assessment to circumvent the time-barred assessment was not raised before CIT(A). It was further stated that CIT(A) has no power to cancel or annul the assessment. 5.2 In the rejoinder, the learned counsel contended that even the revised return filed by the assessee was duly considered in the original assessment and hence the proceeding under section 147 were obviously initiated to circumvent the time-barred assessment which was quashed by the CIT(A). It was contended that proceeding un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under section 143(2) were initiated beyond time. The reassessment proceeding under section 147 was ini-tiated by the Assessing Officer and the total income was assessed at ₹ 21,15,040 as was determined in the original assessment. Thus it appears that reassessment proceeding was initiated not because any income had escaped assessment to tax but to circumvent the time-barred assessment. Thus the reassessment proceeding under section 147 amounts to extending the limitation which the Assessing Officer is not empowered to. It is trite law that limitation period under section 143 cannot be extended by an Income-tax authority and it is also quite recognised principle of law that an act, which cannot be done by an authority directly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not been disposed of, the power is hedged in by a condition that there should be a finding that income has been under-stated in the return or the assessee has claimed excessive loss, deduction etc. therein. There is no such finding in the present case. On the other hand, by framing an illegal assessment under section 143(3), which was quashed by CIT(A), it cannot be said that the Assessing Officer has unearthed under-statement of income or excessive claim etc. in the return. In fact, it is not the case of the Assessing Officer that Explanation 2(b) is invoked. In the absence of any such finding, the pendency of the return filed by the assessee places a fetter upon the power of the Assessing Officer to reopen the assessment. We may notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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