TMI Blog2023 (10) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... t order will make it null and void. AO cannot make an addition on any other income chargeable to tax without making an addition on the grounds for which the reopening was done. In the present case in hand, the ld. A.O. in the last paragraph of the reasons for reopening has belief that income has escaped assessment amounting to Rs. 86.00 crores in the form of cessation of liability along with any other income and the said amount being the loan taken from ADB by the assessee for which the repayment was not made resulting in cessation of liability. As observed that assessee has given the list of Sundry Creditors as on 31.03.2009 and onetime settlement offer given by the assessee to ADB had stated that the outstanding due - It is also evident from OTS offer that the assessee has paid interest and other charges to ADB as per the letter dated 28.09.2011 and has also undertaken to make payment subsequently. Both the A.O. as well as the first appellate authority has failed to elaborate as how they have arrived at the impugned addition - Hence, it is evident that the ld. A.O. has not made addition for the reason for which the reopening was made but had only made addition on the out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng vide notice dated 30.03.2017 issued u/s. 148(1) of the Act to be time barred and also on the ground that the A.O. has not made addition relating to the issue that was mentioned in the reasons recorded for reopening. As the additional ground goes to the very root of the case, we deem it fit to admit the said ground as per the proposition laid down by the Hon'ble Apex Court in the case of National Thermal Power Co. Ltd. vs. CIT 229 ITR 383 (SC). It is also pertinent to decide the additional ground first before getting into the other grounds of appeal raised by the assessee. 6. The learned Authorised Representative (ld. AR for short) for the assessee contended that the notice u/s. 148(1) of the Act dated 30.03.2017 was issued beyond four years from the end of the relevant assessment year and, hence, the same was void-abinitio as per the proviso to section 147 of the Act. The ld. AR for the assessee further contended that the reopening was a mere change of opinion by the A.O. and was to reconsider the assessment order passed u/s. 143(3) of the Act. The ld. AR further stated that the addition was not made with respect to the reasons stated for reopening the assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ADB attempted to assist Minestone in the recovery of the export bills by asking to sign a Deed of Assignment of Debt in favour ADB for the Exports made through Direct Bill. This would help ADB to file suits abroad against the Deed and on the contrary it was indicated to ADB that payments from abroad could still be organized if the ADB would agree to a one time settlement (OTS) at a substantially lower amount than the repayment due. When confronted with ADB s remark on how Mine stone would show the realization of exports when RBI would follow up on unpaid export bills, it was stated that one of the Bank is taken out of picture, either through OTS or otherwise, it would get these export bills set off or written off in the RBI records. Based on these elements, it raises suspicion as to existence of some sort of complicity between the seller and the buyer. The above assessee has shown secured loan in the range of Rs. 148 to 169 crores and has shown sundry creditors in the range of Rs. 86 to 107 crroes, in its return of income for the A.Y. 2010-11 to 2015-16. Further, the partner s capital of M/s. Mine stone has been as negative i.e., Rs.(-)72 crores for A.Ys. 2014-15 2015-16. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the reason that the assessee has not filed any reply or submission in rebuttal of the reopening proceeding. The ld. A.O. has also stated that the summons u/s. 131 of the Act could not be served on ADB for the reason that the bank had closed its operation at the specific address and that the current address was not accessible due to the reason that ADB must have closed its operation at Mumbai and for this reason cross examination to the assessee could not be availed. The ld. A.O. relied on the report of the Investigation Wing that the assessee has not repaid the said loan and had also not initiated any legal proceeding to recover its dues from the defaulting buyers nor has the assessee requisitioned for extension of the period of realization of the export bills. The ld. A.O. had also stated that M/s. Rolling Stone one of the buyers of the assessee was only pass through entity through whom diamonds have been shifted to Turkey, UAE and Russia. The ld. A.O. had also noted that the assessee refused to sign the deed of assignment of debt favoring ADB for the exports made through direct bill which further corroborated the fact that the assessee does not intend to repay the said loa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me which he has reason to believe had escaped assessment, and also any other income chargeable to tax. The words and also cannot be ignored. The interpretation which the court places on the provision should not result in diluting the effect of these words or rendering any part of the language used by Parliament otiose. Parliament having used the words assess or reassess such income and also any other income chargeable to tax which has escaped assessment , the words and also cannot be read as being in the alternative. On the contrary, the correct interpretation would be to regard those words as being conjunctive and cumulative. It is of some significance that Parliament has not used the word or . The Legislature did not rest content by merely using the word and . The words and as well as also have been used together and in conjunction. The Shorter Oxford Dictionary defines the expression also to mean further, in addition besides, too. The word has been treated as being relative and conjunctive. Evidently therefore, what Parliament intends by use of the words and also is that the Assessing Officer, upon the formation of a reason to believe under section 147 and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e repayment was not made resulting in cessation of liability. It is also observed that at pg. no. 106 of paper book no. 2, the assessee has given the list of Sundry Creditors as on 31.03.2009 and at pg. no. 727 of paper book no. 4, the onetime settlement offer given by the assessee to ADB had stated that the outstanding due was Rs. 142 crores. It is also evident from OTS offer that the assessee has paid interest and other charges to ADB as per the letter dated 28.09.2011 and has also undertaken to make payment subsequently. Both the A.O. as well as the first appellate authority has failed to elaborate as how they have arrived at the impugned addition of Rs. 107,53,11,047/-. Hence, it is evident that the ld. A.O. has not made addition for the reason for which the reopening was made but had only made addition on the outstanding sundry creditor declared by the assessee. 12. From the above observation and by respectfully following the proposition laid down by the Hon'ble Apex Court in Jet Airways (supra), we hereby hold the assessment order to be null and void. 13. As we have held the assessment order to be invalid, the other grounds of appeal raised by the assessee becomes a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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