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TMI Blog2021 (5) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... oper cognizance of the direction of the Hon'ble Supreme Court in case of GKN driveshaft India Ltd versus ITO [ 2002 (11) TMI 7 - SUPREME COURT] . Thus, the assessment becomes a nullity and does not survive as the Assessing Officer has not passed a speaking order of disposal of the objections filed by the assessee. The assessment also becomes void-ab-intio as the reasons recorded are also not in consonance with the actual escapement of the income of the assessee. Thus, the assessment order itself is null and void-ab-intio as the reassessment proceedings becomes invalid. Decided in favour of assessee. - ITA. No. 3395/DEL/2019 ITA. No. 3396/DEL/2019 - - - Dated:- 24-5-2021 - SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER Assessee by : Shri Kapil Goel, Adv. Department by : Ms.Nidhi Srivastava, CIT-DR ORDER PER SUCHITRA KAMBLE, JM : Both these appeals are filed by the assessee against the order dated 10/04/2019 passed by the Commissioner of Income Tax (Appeals) Faridabad, for Assessment Year 2009-10. 2. The common grounds of appeal (except for the amount) are as under :- '1.That on the facts and in the cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itrarily approving the unlawful addition made by Ld AO on account of Share Capital, which is in contravention to a settled legal position that without any incriminating material viz a viz the addition concerned, and without any material that stated share capital is in the nature of accommodated entry and merely on the basis of direction dictates of Investigation Wing addition is made, relying on un confronted appraisal report, which is confidential document never supplied to the assessee. Further, That the Ld Assessing Officer is misdirected himself in approaching the entire issue from incorrect prospective in gross non appreciation of the facts that Post search proceedings cannot be treated / partake the character of incriminating material in the eyes of law. 8. That entire assessment and additions made are contrary to material on record ie a) Search statements recorded u/s 132(4) b) Replies given post search to Investigation wing Faridabad c) Replies given during the course of assessment proceedings. 9. That the Ld Assessing Officer made a serious error in making the additions by violating the principles of audi alterm pattern ie Principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the procedures laid by the Apex Court in the case of GKN Driveshaft 2002 Supp(4) SCR 359. After various submissions to the notices issued and complied with, the Assessing Officer made an addition of ₹ 1,00,00,000/- to the income of the assessee under Section 68 of the Act. 4. Being aggrieved by the Assessment Order, the assessee filed appeal before the CIT(A). The CIT (A) dismissed the appeal of the assessee. 5. The Ld. AR submitted that Ground Nos. 2 and 3 are not pressed. The Ld. AR further submitted that there are three aspects of jurisdictional issues are involved in the present appeal. Firstly, that of non-disposal of objections by separate speaking order, secondly, that of reasons recorded solely based on borrowed satisfaction and thirdly, that of approval of higher authority is arbitrarily and mechanically given. The Ld. AR submitted that these three jurisdictional aspects are fully covered in favour of the assessee by following decisions: i. Smt. Meena Gupta ITA No. 7372/Del/2019 order dated 10.09.2020 (Del.Tri.) ii. Ferrous Infrastructure Pvt. Ltd. (W.P.(C) No. 5229/2014 CM No. 10401/2014 order dated 21.05.2015) iii. Haryana Acrylic 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of hearing, the Ld. AR not pressed Ground Nos. 2 and 3, hence Ground Nos. 2 and 3 are dismissed. Firstly, we are taking the jurisdictional grounds that are Ground Nos. 1, 4 and 5. The reasons recorded on 29.04.2016 by the Assessing Officer are as follows: Reasons for initiation of proceedings under section 147 of the Income Tax Act, 1961:- As per information received from DDIT(Inv.)-I, Faridabad vide his office letter F.No.DDIt/Inv.-I,/FBD/2015-16/4739 dated 28.03.2016 that the assessee has obtained accommodation entry in the form of share capital and share premium from paper companies of Kolkata and Delhi from different concerns for the financial year 2008-09. During the course of enquiry made by the investigation, Faridabad it has been found that a firm M/s Duggal Estate Private Limited Prop. Sh. Sanjay Duggal was engaged in providing accommodation entries in the form of share capital and share premium from paper companies to the tune of ₹ 1 Crore. The assessee has filed his income tax for assessment year 2009-10 to the tune of ₹ 13,26,300/-. On going through the statement of share capital and share premium it has been found that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions to issuance of notice and the Assessing Officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the Assessing Officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years. In so far as the appeals filed against the order of assessment before the Commissioner (Appeals), we direct the appellate authority to dispose of the same, expeditiously. Thus, the assessment becomes a nullity and does not survive as the Assessing Officer has not passed a speaking order of disposal of the objections filed by the assessee. The assessment also becomes void-ab-intio as the reasons recorded are also not in consonance with the actual escapement of the income of the assessee. Thus, the assessment order itself is null and void-ab-intio as the reassessment proceedings becomes invalid. In view of this, there is no need of going into the merits of the case. Hence, we are not adjudicating the rest of the grounds. Ground Nos. 1, 4 and 5 are allowed. 8. As regards to ITA No. 3396/Del/2019, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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