9911796707
TMI Blog2018 (1) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Sec.145. 3. That no specific notice of enhancement was given by the Ld. CIT(A) and the requirement noted on the order sheet was duly replied by letter dated 21.05.2014. The Ld. CIT(A) has wrongly held that no objection to enhancement was filed by the Appellant. 4. That the assessment order U/s.143(3) was made on 18.12.2006 and the search was conducted on 16.03.2007 and the order by the Hon'ble Settlement Commission was passed on 26.09.2013 supplementing by order dated 07.03.2014 which covered the assessment year under appeal also i.e. A.Y.2004-05. The order of the Settlement Commission was final and no further addition can lawfully be made. 5. That in any case, all the additions made by the Ld. A.O. and the Ld. CIT(A) are unjust, unlawful and the same are not supported or justified by any material on record. 6. That all the replies filed and the details furnished on record were not properly considered and judicially interpreted and the additions have been wrongly made and the same are also highly excessive." 2. The assessee is engaged in business of processing of clothes (it includes purchase of grey clothes meant for ladies suites, followed by washing, dyeing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the business premises of the sister concerns and the residential premises of its directors/partners and family members wherein some loose documents, unaccounted purchase bills, unaccounted stocks and jewellery etc. were found. 3. The assessee group has gone into settlement before the Settlement Commissioner and ultimately, the undeclared income was settled for all the cases of the group including above appellant company, sister concerns and individual members of the group for various assessment years as per the order passed by the Settlement Commission. The original order was passed on 26.09.2013 which was amended by second order dated 07.03 20T4. Copies of both orders are enclosed for ready reference. 4. That in respect of the appellant company namely Shree Ganpati Synthetics (P) Ltd. the order passed by the Settlement Commission covered the period for A.Y.2001-2002 to 2007-08. 5. In view of the facts and circumstances of the case and the order passed by the settlement commission, it is respectfully submitted that the addition called for A.Y.2004-05, if any, is already made and covered by the orders passed by the Hon'ble Settlement Commission and, therefore, no separ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sive in nature and no further addition can be made for any assessment year which is covered by the order passed by the settlement commission. Further the Ld. AR submitted that without prejudice to the above submissions, even on facts the addition was wrongly made by the Ld. AO by estimating the G.P. rate at 8%. The assessee company was engaged in the business and printing in which grey cloths were purchased and sold after dying and printing process. All sales and purchases are duly vouched and stock tallies are maintained and same were furnished before the Assessing Officer. No defect was found either in purchases or sales or in the stock tallies and the addition was made on the basis of guess work that the declared G.P. Rate of 6.73 was low. The books were wrongly rejected and the addition as well uncalled for. Although, the above facts have been brought to the knowledge of the Ld. CIT(A), however, he has not paid any head to the same and dismissed the appeal of the assessee and if enhanced the G.P. rate from 8% to 9%, therefore, the order passed by the Ld. CIT(A) is not only contrary to the law but also improper in the facts and circumstances of the case and liable to be set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal of the case pending before it, however, this too can be done only if it is in the interest of Revenue and in such case concurrence of the assessee is required. It was further submitted by the ld. D.R. that in the instant case, the assessment relevant for the A.Y. 2004-05 was already completed by passing an assessment order dated 18.12.2006 and the same was challenged by instituting appeal before the Ld. CIT(A) on 12th Jan. 2007 and thereafter, the search was conducted on 16.03.2007 and application for settlement before settlement commission was made only on 29.05.2007 which goes to show that as on the date of filing of the application for settlement, the assessment proceeding has already been completed and even the same was challenged before the Ld. CIT(A), therefore, it cannot be construed that the assessment proceeding was not completed. The Ld. DR further drawn our attention to the clause 65.3, 65.4 & 65.5 of Circular No.7/2003 dated 05.09.2003 which are reproduced herein below and submitted that appeal, revision or rectification proceedings pending on the date of initiation of search u/s 132 or requisition shall not abate and it is also clarified that the assessment or re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard the parties at length and perused the documents available on record and gone through with the facts and circumstances of the case as it is not in controversy that the assessment relevant to the Asst. Year: 2004-05 was made on 18.12.2006 by the Assessing Officer and thereafter, the same was challenged before the Ld. CIT(A) on dated 12th Jan, 2007 and thereafter during the pendency of appeal itself, the search was conducted at the business and residential premises of the assessee and its sister concerns on 16.03.2007 and an application for settlement was filed before Settlement Commission only on 27.05.2007. Before going further let us to peruse the relevant provisions of law which are necessary for proper disposal of the instant appeal. Chapter No.(xix) was introduced by Finance Act w.e.f 1st June 2007 which specifically headed as APPLICATION FOR SETTLEMENT OF CASES . Section 245(C) prescribed the filing of application for settlement:- 245C. (1) An assessee may, at any stage of a case relating to him, make an application in such form and in such manner as may be prescribed, and containing a full and true disclosure of his income which has not been disclosed before the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, save as otherwise provided in this Chapter, be reopened in any proceeding under this Act or under any other law for the time being in force. Further three new sections 153A, 153B and 153C have been inserted in the Income-tax Act to provide for assessment in case of search or making requisition. The new section 153A provides the procedure for completion of assessment where a search is initiated under section 132 or books of account, or other documents or any assets are requisitioned under section 132A after 31st May, 2003. In such cases, the Assessing Officer shall issue notice to such person requiring him to furnish, within such period as may be specified in the notice, return of income in respect of six assessment years immediately preceding the assessment year relevant to the previous year in which the search was conducted under section 132 or requisition was made under section 132A. The Assessing Officer shall assess or reassess the total income of each of these six assessment years. Assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years pending on the date of initiation of the search under section 132 or requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further Sec. 245A prescribes that every order of Settlement Commission passed by the Settlement Commission under sub-section 4 of Sec.245D shall be conclusive as to the matter stated therein and no matter covered by such order shall save as otherwise provided in this chapter be reopened in any proceeding under this Act or under any law for the time being in force, which goes to show that order of settlement to be considered as conclusive and in ordinary circumstances cannot be reopened in any proceeding under the Act and under any other law for the time being in force. Further Sec.245E prescribes powers of Settlement Commission to reopen the completed proceedings which clarifies that in the opinion of the settlement commission (the reasons for such opinion to be recorded by it in writing), that, for the proper disposal of the case pending before it is necessary or expedient to reopen any completed proceeding connected with the case, it may, with the concurrence of the applicant, reopen such proceeding and pass such order thereon as it thinks fit. Further provided certain limitation of nine years in reopening of proceeding and no proceeding shall be reopened by the Settlement Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
