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TMI Blog2018 (9) TMI 1617X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. AO is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the reassessment proceedings being illegal and without any basis. (b) In the facts and circumstances of the case and in law the ld. CIT (A) has erred in not adjudicating the issue of validity of reassessment proceedings raised during appellate proceedings. The action of ld. CIT (A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the reassessment proceedings being illegal and without any basis. 2. In the facts and circumstances of the case and in law the ld. CIT (A) has erred in confirming the action of the ld. AO erred in making addition of Rs. 10,18,358/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of the communication dated 23rd September, 2011 by the ld. CIT (A) in case of M/s. Rasal Builders & Developers Pvt. Ltd. and, therefore, the reopening is based on the borrowed satisfaction and not the AO's own satisfaction of forming belief that the income assessable to tax has escaped assessment. The ld. A/R has relied upon the decision of Hon'ble Delhi High Court in case of SKY View Consultants Pvt. Ltd. vs. ITO, 397 ITR 673 (Delhi) and submitted that the AO has failed to satisfy the reasons to believe that the income has escaped assessment as the assessment was reopened on the basis of the subsequent development in case of M/s. Rasal Builders & Developers Pvt. Ltd. and as per the letter dated 23rd September, 2011 the ld. CIT (A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return of income on 28.12.2005 declaring total income of Rs. Nil. The return of income was processed u/s 143(1) of the IT Act, 1961 on 26.07.2006 at the returned income. Later on assessment for the A.Y. 2005-06 was completed u/s 143(3) on 28.12.2007 in the case of M/s. Rasal Builders and Developers Pvt. Ltd., Jaipur by making addition u/s 68 of the IT Act, 1961 of Rs. 15,80,000/- on account of unexplained credits in the name of unsecured loan received from M/s. Orbit Polytech Pvt. Ltd. in the books of the assessee company. Further in the case of M/s. Rasal Builders and Developers Pvt. Ltd., Jaipur for the A.Y. 2005-06 the Hon'ble ITAT, Jaipur Bench, Jaipur had set aside the assessment vide its order dated 24.04.2009. The set aside asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above mentioned case." Thus it is clear that the reopening is based as per the order of ld. CIT (A) in case of M/s. Rasal Builders and Developers Pvt. Ltd. who has shown the loan from the assessee of Rs. 15,80,000/-. The AO disallowed the said amount of Rs. 15,80,000/- while completing the assessment in case of M/s. Rasal Builders and Developers Pvt. Ltd. The matter was carried to this Tribunal by M/s. Rasal Builders and Developers Pvt. Ltd. in ITA No. 1500/JP/2008 and the Tribunal vide order dated 24th April, 2009 set aside the matter to the record of the AO for further examination and verification of correctness of the claim and then to decide the same afresh after affording an opportunity of being heard to the assessee. In the set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector of the assessee, the AO proposed to reopen the assessment. Therefore, it is a clear case of forming the opinion on borrowed satisfaction as evident from the letter dated 23rd September, 2011 as well as the reasons recorded by the AO. We further note that the AO in the assessment proceedings of M/s. Rasal Builders and Developers Pvt. Ltd. disallowed the claim of loan of Rs. 15,80,000/- taken from the assessee on the reason that the total sale of the assessee for the last two years was Rs. 11,51,805/- only and, therefore, the AO did not accept the claim of loan for want of the source of the said credit in the hands of the assessee. The AO further noted that the cash was deposited in the bank account of the creditor just before giving t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs in the case of M/s. Rasal Builders and Developers Pvt. Ltd. was the letter issued by ld. CIT (A) dated 23rd September, 2011. Therefore, when the same AO repeated the addition of cash credit in the set aside proceedings in case of M/s. Rasal Builders and Developers Pvt. Ltd. vide order dated 06.12.2010, the reopening after the order of ld. CIT (A) is nothing but based on the satisfaction of the ld. CIT (A). Therefore, the AO reaffirming its stand in the case of M/s. Rasal Builders and Developers Pvt. Ltd. in two rounds of proceedings cannot be allowed to resort to provisions of section 148 of the Act when his stand was reversed by the ld. CIT (A) in the second round of litigation. What the AO failed to do on his own cannot be done on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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