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TMI Blog2013 (11) TMI 1483X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and circumstances of the case. 2. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in making aggregate addition of Rs. 7,42,680/- (i.e. Rs. 25,810/- + Rs. 26,060/- + Rs. 6,90,810/-), more so when specific submission has been made that the said amount may kindly adjusted against the loss of rejection from debtor as already accepted by Ld. AO himself in AY 2007-08 and the impugned addition has been made by recording incorrect facts and finding and without considering the submissions of the assessee. 3. That in any case and in any view of the matter, impugned addition/disallowance and impugned assessment order are bad in law, illegal, unjustified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that such defect can be cured and thus set aside the matter to the file of the AO to remove the defect and pass a fresh assessment order. 4. Ld. AR submitted that the ground relating to the addition of Rs. 7,42,680/- was raised before the Ld. CIT(A) in the first round of the appeal and submissions of the assessee questioning the addition were also filed before the Ld. CIT(A). Hence it is not correct to say that this ground was not pressed before the first appellate authority in the first round. He submitted further that original assessment order was defective and as such it was set aside by the Tribunal and in setting aside the assessment order the AO has upheld the addition of Rs. 7,42,680/- after application of his mind which has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defer which the Tribunal found curable. Unless and until the defect is removed the whole order will be treated as defective. It also appears from the fresh assessment order that the AO has heard the assessee on the proposed additions and after applying his mind he has found that similar additions were rightly made on the earlier occasion. On perusal of the order dated 4.9.2009 of the Tribunal, relevant para No. 2.3 thereof has been reproduced below, we find that while restoring the matter to the AO to remove the defect " before passing the order on merit again", the concluding sentence is "Thus all the grounds raised by the assessee stand allowed for statistical purposes". In para No. 2.1 of the order, the Tribunal has noted as "In thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee stand allowed for statistical purposes." 7. We thus do not find substance in the preliminary objection of the Ld. DR that after removal of the defect by the AO in compliance of the order of the Tribunal by supplying to the assessee the 'reasons to believe' recorded u/s 147/148, no grievance of the assessee survives and ground No. 2 can not be entertained. The objection is accordingly rejected. Now coming to the merits of the addition questioned in this ground we find that the grievance of the assessee is that the addition of Rs. 7,42,680/- (Rs. 25,810/- + Rs. 26,060/- + Rs. 6,90,810/-) despite specific submission has not been adjusted against the loss of rejection from debtor which was accepted by the AO himself in the assessment year 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee was able to furnish bill No. 11023 dated 16.9.2009 for Rs. 88,475/- of Anil Chemical, Faridabad alongwith reply dated 9.12.2010 before the AO hence this amount should have been allowed. Since the assessee could not improve its case before the Tribunal for establishing genuineness of the claimed purchases worth Rs. 7,42,680/-, we are not inclined to interfere with the first appellate order in this regard. We however find that the AO has not addressed the submission of the assessee regarding allowing adjustment of the loss on account of rejection from debtor. Ld. CIT(A) has also upheld this action of the AO on the basis that the same cannot be done at the appellate stage as the assessee never claimed this amount in its return of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the authorities below remained that no payments have been made by the assessee and there is no justification to accept confirmation of these parties as sacrosanct. It was contended that there was no evidence of any payment having been made by the assessee. Since the assessee could not reconcile the difference in account of sundry creditors appearing in balance sheet and as per sundry creditors the entire amount outstanding was paid in cash, the Ld. CIT(A) has upheld the addition in absence of any evidence by the assessee to substantiate the fact that no payment has been made by it to the sundry creditors. Since the assessee has failed to improve its case even before the Tribunal, we are not inclined to interfere with the first appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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