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TMI Blog2014 (9) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... on 143(3) read with section 147 of the Act consequent to the order of the ld. CIT(A) passed in appeals filed against the assessment orders framed under section 143(3) of the Act. Therefore, the Tribunal has to adjudicate the appeals filed against the orders of the ld. CIT(A) passed in first round and also in second round. We are, therefore, of the view that the appeals emanating from the original assessment order are to be adjudicated first and we accordingly prefer to deal with the same at the threshold. I.T.A. Nos.412 to 415/LKW/2009 3. The facts in brief are that during the course of assessment proceedings for assessment year 2003-04, the Assessing Officer has received an information from the Central Excise Authority that the assessee-company during the year under consideration has clandestinely cleared the goods of different values in all these four cases and the assessee vide office letter dated 17.3.2006 was asked to show cause as to why the value of goods be not considered as sale out of books. Subsequently, assessee moved a petition before the Hon'ble Settlement Commission, New Delhi and pleaded before the Assessing Officer that no proceedings can be continued till di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006, the assessee company filed detailed reply which was placed on file. On perusal thereof, it is noticed that this reply is copy of reply which was submitted by the assessee company before the Central Excise Authorities against their show cause notices. The reply is dated 12.04 .2005. It was concluded in the reply that no addition may be made because on issue of undisclosed sales, the assessee company is sb-judice before the appropriate authority at New Delhi and the final hearing is fixed for 10.3.2008. It is further submitted that pending proceedings before your honour may please be decided after finalization of excise proceedings pending before excise authorities, New Delhi. The reply of the assessee has been placed on file. It was noticed that facts and figures contained in the reply were earlier submitted to Central Excise Authorities. On going through the reply, it is deduced that the central excise authorities after considering the reply, have determined the value of goods amounting to Rs. 3718578/- clandestinely removed from the factory and levied central excise thereon. Though, it may be fact that the assessee has filed appeal against the order of central excise. The ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch under section 132 - requisition under section 132A not complete, reassessment under section 148 is valid. The relevant direction of the ld. CIT(A) is extracted hereunder for the sake of reference:- "31. Under the circumstances and after considering substantial lack of material facts for the above and also in view of arbitrary and baseless addition made in violation of principle of natural justice, I find that the same deserves to be deleted. The decision of the Hon'ble Bench in the case of Harsingar Gutkha Pvt. Ltd., the relevant part of which is reproduced above, is totally applicable in this case. Accordingly, as per facts and circumstances of the case, for the reasons discussed in detail as above and as per ratio in the cases noted above, particularly in the Hon'ble Tribunal's order ITA No.93/LUC/04 dated 25.8.2004 in the case of Harsingar Gutkha Pvt Ltd., the AO is directed to delete the addition of Rs. 8,53,413/- and Rs. 10,07,362/- for assessment year 2003-04 (Rs.15,59,765/- and Rs. 25,49,617/- for A.Y. 2004-05). However, at the same time it is also observed and held that the AO is free to take action under relevant provisions of Income Tax Law in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Settlement Commission u/s 245D(2C) of the Act, holding the assessee's applications as invalid. 5. That the order of the ld. CIT(A) deserves to be vacated and the assessment order passed by the Assessing Officer be restored. 9. During the course of hearing of the appeal, the ld CIT (DR), Shri. S. K. Nigam has invited our attention to the fact that during the course of assessment proceedings in all these cases, the Assessing Officer has received certain information from the Central Excise Department that the assessee has clandestinely cleared certain goods, therefore, there was suppressed sales outside the books of account. On the basis of that information, the Assessing Officer has issued show cause notice to the assessee to furnish its explanation in this regard. Instead of furnishing explanation in this regard, assessee has claimed that he has approached the Hon'ble Settlement Commission, therefore, till decision of the Hon'ble Settlement Commission, the proceedings be kept in abeyance and accordingly proceedings were kept in abeyance. When the order of the Hon'ble Settlement Commission dated 22.12.2007 was received in the office of the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act by giving an indication that assessment can be reopened under section 147 of the Act, but when the assessment was reopened by the Assessing Officer under section 147 of the Act pursuant to the order of the ld. CIT(A), that re-assessment was also knocked down by the ld. CIT(A) by holding that the reopening was not valid. The ld. CIT (DR) has further contended that the deletion of additions by the ld. CIT(A) was without realizing the fact that the Assessing Officer was not allowed to conduct the assessment proceedings properly and was always stopped from doing necessary enquiries on one reason or the other. Therefore, in the interest of justice, the matter may be restored to the Assessing Officer after setting aside the orders of the ld. CIT(A). 11. The ld. counsel for the assessee, on the other hand, has placed heavy reliance upon the order of the ld. CIT(A). It was further contended that the Assessing Officer without making any enquiry has made the additions in the hands of the assessee on account or suppressed sales. The Assessing Officer ought to have called evidence or the seized material collected by the Excise Authorities before making the additions in the hands of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In this order, the Hon'ble Settlement Commission has made a reference that assessee has informed vide letter dated 17.12.2007 that since the assessment proceedings in the above mentioned case has been finalized by the Income-tax Department, hence no tax on additional income in the above case has been deposited. On the basis of this, the Hon'ble Settlement Commission treated the application moved by the assessee not valid. When the order was received in the office of the Commissioner of Income Tax (Central), Kanpur, the Assessing Officer has also made necessary enquiry from the assessee with regard to the assessment order which was the subject matter before the Hon'ble Settlement Commission and was finalized according to him vide letter dated 14/17.12.2007, but the assessee could not furnish the same either before the Assessing Officer or even before us during the course of hearing of the appeal. Thereafter, the Assessing Officer has further initiated assessment proceedings and again assessee has taken a stand before the Assessing Officer that the assessment proceedings be kept in abeyance till disposal of the appeals pending before the Commissioner, Excise Department ..... X X X X Extracts X X X X X X X X Extracts X X X X
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