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TMI Blog2013 (11) TMI 1511X X X X Extracts X X X X X X X X Extracts X X X X ..... s barred by limitation by one day. The revenue has filed a petition requesting the bench to condone the delay. We heard the parties on this preliminary issue. Having regard to the submissions made in the petition, we condone the delay and admit the appeal for hearing. 2. The facts relating to the issue under consideration are stated in brief. The assessee filed its return of income for the year under consideration on 23.12.2004. The assessment was completed u/s 143(3) of the Act on 22.12.2006. Subsequently, the assessment was reopened by issuing notice u/s 148 of the Act on 27.3.2009 and the reopened assessment was completed on 15.12.2009. At the time of filing return of income in response to the notice issued u/s 148 of the Act, the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the record also did not contain any objection letter filed by the assessee. Before Ld CIT(A), the assessee also submitted that the AO had issued a notice u/s 154 of the Act for rectification of the assessment order by making disallowances u/s 40(a)(i) and sec. 40A(3) of the Act. However, he dropped the said proceedings and thereafter reopened the assessment on the very same reason. The assessee contended before Ld CIT(A) that the AO is debarred from reopening of assessment on the very same ground for which rectification proceedings were initiated and in this regard, it placed reliance on the decision of Hon'ble Calcutta High Court in the case of Berger Paints India Ltd Vs. ACIT (322 ITR 369). The ld CIT(A), vide his order dated 31.8.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t were communicated to the assessee on 18-08-2011. The assessee has not objected to the reopening the assessment. Subsequently a notice u/s 143(2) was served on 27-09-2011. In response to this notice, the authorized representative of the assessee Shri Raju Thomas, FCA appeared on various dates mentioned above and the case was heard.." It is pertinent to note the AO had reopened the assessments on both the occasions only to make disallowances u/s 40(a)(i) and u/s 40A(3) of the Act. 5. Before Ld CIT(A), the assessee challenged the validity of reopening on more than one reasons. The Ld CIT(A) again quashed the reassessment proceeding. Hence, the revenue has filed this appeal before us. 6. We have heard the rival contentions and carefully pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reads as under, is required to be satisfied by the AO for initiating the reassessment proceedings:- "Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to the notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year." Thus, the AO has to sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment against the said order by which reassessment made by the Assessing Officer was annulled, no notice u/s. 148 could be issued subsequently. iii) The Assessing Officer initiated proceedings u/s. 154 earlier and then after dropping them, issued notice u/s. 148. The CIT(A) in his order dated 31.8.2010 has held that the notice u/s. 148 issued after dropping of rectification proceedings was invalid and liable to be quashed, therefore, the notice u/s. 148 issued to the appellant on 23.3.2011 was also legally not sustainable. iv) The appellant filed objections against reopening of assessment on 25.8.2011 and without passing a speaking order on the said objections, the Assessing Officer passed the assessment order which is not valid in la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to non residents outside India are made without deduction TDS. Hence are to be disallowed u/s. 409a)(ia): Rs.36,61,541/- Rs. 5,56,370/- Rs. 48,975/- Rs. 9,40,050/-" 10.2 Further, it is seen from the order sheet that the Assessing officer has recorded under mentioned reasons vide order sheet entry dated 17.3.2011 (signed on 18.3.2011) "17.3.2011 The 'a' has paid Rs.16,89,440 in cash, 20% of the same was to be disallowed u/s. 40A(3) but only Rs.42,828/- was disallowed. The payments made by the 'a' to NRIs are made without deducting TDS in the following payments which are to be disallowed u/s. 40a(i): Business promotion expenses Rs.36,61,541/- Payment made to Biju George Rs. 5,56,270/- and Rs. 48,975/- Payment made to Savy Mathew Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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