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TMI Blog2012 (11) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... nd which found on record, is dated 17/1/2005, so that the date mentioned has been considered to be on account of a mistake, and read as Rs.17/1/2005 in framing the present order - In the result, the Revenue’s appeal is dismissed. - I.T.A. No.329/Lkw/2011 - - - Dated:- 25-7-2012 - SHRI S. K. YADAV AND SHRI SANJAY ARORA, JJ. Appellant by : Shri V. V. Singh, D.R. Respondent by : Shri S. P. Gupta, Sr. Advocate ORDER PER SANJAY ARORA; A.M.: This is an Appeal by the Revenue, agitating the appellate order u/s 251 of the I.T. Act, 1961 (Rs.Act , hereinafter) by the Commissioner of Income Tax (Appeals)-I, Kanpur (Rs.CIT(A) for short) dated 31/03/2011, partly allowing the assessee s appeal contesting its assessment u/s. 143(3) of the Act dated 22/03/2006. 2. The appeal raises as many as three grounds; ground no. 4 being general in nature, warranting no adjudication. Before we proceed to decide the issues arising for determination and adjudication in the present appeal, it would be necessary to recount the background facts of the case. 3.1 Assessment u/s. 143(3) was in the first instance framed on 01/03/2000, followed by order u/s. 143(3) read with s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined. Their statements had not been recorded, and neither the assessee (i.e., VR) afforded an opportunity to cross-examine them. What was the procedure for deposit and withdrawal of cash in such huge amount as per the banking rules, it wondered ? Accordingly, the assessment was set aside and the Assessing Officer (A.O.) directed to frame it afresh in light of the said directions (vide para 59). In the case of the assessee (in I.T.A. No.834/Luc/2002 dated 17/01/2005/ copy on record at APB pgs. 29-31), the tribunal noted the developments; the respective cases of both the VR and the assesse; and the tribunal s order dated 15/09/1999 in the case of VR (supra). It further noted that the same had since been stayed by the Hon'ble Jurisdictional High Court (in Tax Appeal No.4/2000). So, however, the person to whom the cash of Rs.39 lakhs and odd withdrawn from the assessee s bank belonged to was still a live issue. Accordingly, it directed that this issue be resolved first in the case of VR, and then, and consequently, in the case of the assessee. The Revenue could not proceed against both, except, of course, on protective basis on either. If the Department is of the clear view, as claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A). With regard to merits, which were also challenged by the assessee before the first appellate authority (vide Ground Nos. 8 to 10), the same became infructuous in view of lack of jurisdiction to frame the assessment. The A.O. was required to proceed in terms of the tribunal s order dated 15/09/1999, i.e., if required, after the matter stands decided by the hon'ble high court. 4. Like submissions were made before us; each side relying on the order of the authority below, as favourable to it. 5. We have heard the parties, and perused the material on record. 5.1 We, firstly, find no merit in the plea of the impugned assessment being valid, having been made to prevent it from becoming barred by time, as raised by learned D.R. before us. The provisions of section 153(3)(ii) are clear and specific, and applicable in the instant case. The assessment stood framed in the first instance vide order dated 27/02/2002, and which did not suffer from any limitation as to time. The impugned assessment is framed in consequence of the directions setting aside the said assessment, and would, therefore, be covered by the provision of section 153(3)(ii). In fact, even the A.O. has not raised an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation of the pendency of proceedings in the case of VR is not understandable and, in fact, perplexing. This is as both the assesse and VR share a common counsel, so that the said information would only be at hand. Further, the Revenue being also in appeal before the hon'ble high court, it would only have direct access to the said information, so that it is surprising that this aspect continues to be debated. Income-tax proceedings are not, it may be appreciated, adversarial proceedings. If not pending as on date, the directions by the tribunal shall be subject to their modification by the hon'ble high court, in whose order that by the tribunal merges. That apart, as afore-stated, the Revenue cannot frame the assessment on assessee de hors and inconsistent with the final finding/s in the case of VR, even as it could frame the assessment on the assessee on protective basis, i.e., to safeguard its interest; its order (in the case of VR) being appellable and, thus, liable to modification. Needless to add, no demand shall arise in consequence to the protective assessment, i.e., until the substantive assessment survives. In fact, if the amount was withdrawn by the assessee on 28/11/1996 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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