TMI Blog2016 (7) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... st confirmation of those additions, meaning thereby that those issues have become final. They cannot be deleted by quashing the assessment order on the ground of reopening. In other words revenue cannot be put in more disadvantageous situation except dismissal of its appeal. In the appeal of revenue, respondent assessee can not get positive relief. He can only get the appeal dismissed on the ground that CIT(A) has erred in appreciating the issue of re-opening. On merits also we are of the view that ld. CIT(A) has rightly observed that the difference between purchase figures as per audited financial statements and as per consolidated monthly details furnished by assessee during assessment proceedings, pertained only to the adjustment of cenvat credit, discount on purchases, adjustment on account of octroi and paid on purchases and all these adjustments were duly given effect in the books of account maintained by assessee and there is no other evidence brought on record by the ld. Assessing Officer to prove that there was any unaccounted purchases. - Decided in favour of assessee - ITA No. 2260/Ahd/2011 - - - Dated:- 1-6-2016 - Shri Rajpal Yadav, JM And Shri Manish Borad, AM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Less Cenvat Credit availed on purchases 37,80,262 Discount on purchases/goods return 18,32,374 2,78,21,355 Add Octroi on purchases 5,93,532 Freight on purchases 2,59,308 Total amount of purchases debited to P L a/c 2,86,74,195 However, ld. Assessing Officer was not convinced with the reply of assessee and made addition of ₹ 47,59,796/- towards unaccounted purchases and added the same to the total income of ₹ 14,00,227/- (post giving effect to the Tribunal s order dated 15.1.2010) and also allowed deduction of ₹ 8,27,127/- on account of loss due to fire which was wrongly denied during assessment proceedings u/s 143(3) r.w.s. 153A of the Act. Income of the assessee was assessed at ₹ 53,32,896/-. 3. Aggrieved, assessee went in appeal before ld. CIT(A) on two grounds firstly against issuance of notice u/s 148 of the Act and challenging the validity of re-assessment proceedings u/s 143(3) r.w.s. 147 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent of 47,59,796/- was not passed through the books of accounts of the assessee. 4. These facts clearly shows that the assessee has merely tried to cover up the mistake made during the course of earlier assessment and the purchase of colour chemicals to the extent of 47,59,796/- should be treated as unaccounted investment in the hands of the assessee. 7. On the other hand, ld. AR raised an alternate plea and challenged the order of ld. CIT(A) observing that the reopening of assessment proceedings are valid in law. The ld. AR submitted that, this alternate plea can be raised under Rule 27 of the ITAT Rules, 1963 even without filing Cross Objection or appeal against the impugned order. Ld. AR further submitted that as per rule 27 of the ITAT Rules, the respondent that he may not have appeal may support the order appealed against on any of the grounds decided against him . The ld. AR further submitted that original assessment u/s 143(3) r.w.s. 153A of the Act for Asst. Year 2004-05 was completed on 29.12.2006. Thereafter on the basis of audit query the said original assessment was reopened by issuing notice u/s 148 of the Act on 28.8.2009 i.e. after the expiry of period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. 132 of the Act was carried out in. the case of the assessee on 30.08.04. AS such, a notice u/s. 153A(a) of the Act was issued on 13.12.04, in response to which, the assesses filed its return of income for the year under consideration on 30.03,05, declaring a total income of Rs.. 5,72,100/-. Assessment in the case was completed u/s. 143(3) r.w.s 153A of the Act on 29.12.06. determining the total income of the assessee company at Rs, 1,83,40,094/-. On appeal, the ld. CIT(A) reduced the total income of the assessee to ₹ 16,29,829/-. 2. The assessee company is engaged in the business of dyeing and printing of fabrics on job work basis. It is seen from the office records that during the course of assessment proceedings, .the Assessing Officer had called for details in respect of month wise purchase of colour chemicals. The same is seen to have been furnished by the assessee company vide its authorized representatives' written submission, dtd. 19.07.06. Details in this respect was furnished by the ld. Authorised Representative of the assessee company at point no.18 of the said submission, featuring at page no.8. On going through the said details, it is seen that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment year: Provided further that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. Explanation 1.-Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso. Explanation 2.-For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely :- (a) where no return of income has been furnished by the assessee although his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to incometax ; (b) where a return of income has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the income or has claimed ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular course of assessment proceedings u/s 143(3) r.w.s. 153A of the Act and they were very much available before the ld. Assessing Officer who has thereafter framed the assessment order. Certainly there was no failure on the part of the assessee company to disclose fully and truly all the material facts necessary for assessment and as there being no new or fresh material before the Assessing Officer, mere change of opinion cannot form the basis of reopening the assessment. Therefore, appeal of the department can be dismissed on this ground. With the help of rule 27 of ITAT Rules, respondent can raise an argument qua an issue which has been decided against him in the impugned order. The respondent may not get further positive relief. For example the ld. CIT(A) has decided certain additions against the assessee and assessee did not file appeal against confirmation of those additions, meaning thereby that those issues have become final. They cannot be deleted by quashing the assessment order on the ground of reopening. In other words revenue cannot be put in more disadvantageous situation except dismissal of its appeal. In the appeal of revenue, respondent assessee can not get positiv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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