TMI Blog2012 (11) TMI 1315X X X X Extracts X X X X X X X X Extracts X X X X ..... in appreciating assessee's plea that order deserves to be cancelled as reasons were served after six years whereas law requires issue of notice u/s 148 within six years and not the service of reasons which is a different matter altogether not involving any statutory limitation line whatsoever. 3. Whether in the facts and circumstances of the case, the Ld. Commissioner of Income tax (Appeals) has erred in law and facts in deleting the addition of Rs..6,00,000/- made by the AO on account of non confirmation of credit entry despite the fact that the assessee has failed to prove that the accommodation entries in respect of advance receivable from all the angles and even the identity of the entry provider remained unproved and unexplained. 4. Whether in the facts and circumstances of the case, the Ld. Commissioner of Income tax (Appeals) was justified in fact and circumstances of the case in deleting the balance credit entry of Rs..4,00,650/- in spite of the fact that assessee failed to rebut the revenue's claim of having received the same amount. Even the bank statement as asked by the A.O was not furnished by the assessee and thus, the burden of proving the credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19.11.2001 - ₹ 3,00,000/- Pyare Lal 22.03.2002 - ₹ 4,00,650/- Kuldeep Textiles (P) Ltd. 2.2 In reply, the assessee submitted that the cheques of ₹ 3 lacs each on 07.11.2001 and 19th November, 2001, were received from M/s Yadav and Company, a share broker from whom sum of ₹ 10,16,490/- was receivable on 31.03.2001. The assessee also furnished a copy of bank statement in support of its contention in respect of amount received on 07.11.2001 and 19.11.2001. With regard to entry from Kuldeep Textile (P) Ltd., it was submitted that no such amount of ₹ 4,00,650/- was received. However, the assessee did not submit bank statement for the month of March, 2002. Since the assessee failed to submit confirmation from Yadav Company that the entries received from him were on account of amount due to the assessee, the AO added the amount of ₹ 6 lacs besides an amount of ₹ 4,00,650/- on account of entries from Kuldeep Textiles (P) Ltd. for want of any evidence. 3. On appeal, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As regards merit of the addition, the ld. CIT(A) concluded as under:- iic. I have considered the findings of the AO as well as the submissions of the AR. I have also gone through the balance sheet and the details of allotment of shares during the year. I did not find any entry of that amount in the details of creditors, unsecured depositors and/or Form No.2 for allotment of shares in the name of M/s Kuldeep Textiles (P) Ltd. I have also considered the submissions of the appellant that in case it was doubted that the appellant intentionally was not providing bank statement, the AO could have obtained the bank statement of the appellant for the month of March, 2002 directly from the bank of the appellant. I have also considered that there is nothing on record in the form of instrument nos. and other details in support of receipt of entries/payments from the named persons in order to support the receipts by the appellant. The submissions of the appellant regarding receipt of two different drafts of ₹ 2,99,250/- (net) (gross amount being ₹ 3,00,000/- each) against amount receivable from share broker M/s Yadav Co., seem to be acceptable. In view of facts on records, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the Assessing Officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the Assessing Officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years. 6.1 In a subsequent decision in the case of Garden Finance Ltd. v. CIT (Asst.) [2004] 268 ITR 48 (Guj), the effect of the Supreme Court decision in the case of GKN Driveshafts [2003] 259 ITR 19 came up for consideration and by a majority opinion it was laid down by the Hon ble Court: What the Supreme Court has now done in the GKN Driveshafts (India) Ltd.'s case [2003] 259 ITR 19 is not to whittle down the principle laid down by the Constitution Bench of the apex court in Calcutta Discount Co. Ltd. case [1961] 41 ITR 191 but to require the assessee first to lodge preliminary objection before the Assessing Officer who is bound to decide the preliminary objections to issuance of the reassessment notice by passing a speaking order an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposing of the preliminary objections raised by the petitioner, cannot be sustained. Accordingly, the reassessment order dated December 16, 2008 is hereby quashed and set aside and the respondent authority shall dispose of the preliminary objections by passing a speaking order and only thereafter proceed with the reassessment proceedings in accordance with law. Considering the fact that the normal period of limitation, for framing reassessment pursuant to notice dated March 3, 2008, issued under section 148 of the Act, has already expired on December 31, 2008, in the peculiar facts and circumstances of the case it would serve the ends of justice if the respondent authority is directed to abide by the following schedule : (i) The respondent authority shall dispose of the preliminary objections raised by the petitioner within a period of 4 (four) weeks from by passing a speaking order in accordance with law; (ii) Thereafter, the respondent authority shall undertake reassessment proceedings, if necessary, and shall complete the same within a period of 4 (four) weeks thereafter, i.e., the date of disposal of the preliminary objections; (iii) No extension of time sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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