9911796707
TMI Blog2024 (6) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... upposed to decide the objections. If the same are decided against the assessee, the Assessing Officer is supposed not to pass the final assessment order for a period of four weeks from the date of disposal of objections. Though the ld. CIT(A) has been given the power of enhancement and can look into the other issues by giving notice to the assessee during appellate proceedings, however, the power to reopen the assessment exclusively vests with the AO only. It is the AO who has to form the belief of escapement of income of the assessee and it is the Assessing Officer who has to decide the objections against the reopening of the assessment and further to give opportunity to the assessee to seek his legal remedy, if the objections are decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies in the form of bogus bills to various parties in lieu of commission. It was pointed out that the assessee was also one of the beneficiaries and had received accommodation entries to the tune of Rs. 8,53,30,337/- during different financial years including Rs. 4,13,29,247/- in F.Y 2010-11 relevant to A.Y 2011-12. On the basis of the said information, the Assessing Officer noted that he has reasons to believe that the income of the assessee has escaped assessment and he accordingly reopened the assessment of the assessee. The assessee filed objections against the reopening of the assessment pleading that there was no valid reason for the Assessing Officer to reopen the assessment as that the information provided by the Investigation Wing w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT(A) observed that the Assessing Officer since had not disputed the corresponding sales to the aforesaid purchases, therefore, only profit element was required to be added. The ld. CIT(A) therefore estimated the GP margin @10.74% as was recorded for A.Y 2009-10 as against the GP margin declared by the assessee @8.21%. He further observed that since the bogus purchases were good part of the whole purchases, therefore, he applied the GP rate @10.74% on the entire turnover and as a result restricted the additions to Rs. 3142800/- as against the addition of Rs. 4,13,29,247/- made by the Assessing Officer. 4. Being aggrieved by the said order of the CIT(A), the assessee has come in appeal agitating the action of the CIT(A) in confirming the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his respect has placed reliance upon the decision of the Jurisdictional Calcutta High Court in the case of PCIT vs. M/s Sambuddha Tracon Pvt. Ltd. ITAT/90/2022 IA No.GA/2/2022 vide order dated 15.11.2022. Even the ld. counsel for the assessee on merits has contended that no defect has been pointed out by the Assessing Officer or by the CIT(A) in the books of account of the assessee. That the books of account of the assessee have been rejected by merely acting on the report of the investigation wing without any corroborative evidences. That the ld. CIT(A) was not justified in enhancing the gross profit margin of the assessee on the entire turnover. 6. The ld. DR, on the other hand, has contended that the objections of the assessee regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he A.O . However, the ld. CIT(A) thereafter noted that the said violation was not fatal to the assessment but that was only an irregularity. He further observed that it can be taken care of by asking the Assessing Officer to deal with the objections. The ld. CIT(A) thereafter directed the Assessing Officer to deal with the objection and called for remand report. However, the Assessing Officer did not respond to the directions of the CIT(A) to comment on or enquire into the submissions of the assessee before the CIT(A) which inter alia included the objections against the reopening of the assessment. However, the ld. CIT(A) observed that since the powers of the CIT(A) were co-terminus with that of the Assessing Officer, therefore, he himself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer without disposal of objections of the assessee cannot be held to be a valid assessment. The issue is squarely covered by the decision of Jurisdictional Calcutta High Court in the case of PCIT vs. M/s Sambuddha Tracon Pvt. Ltd. (supra), wherein, the Hon ble Calcutta High Court has observed as under: 15. Be it as it may it is absolutely clear that the objections raised by the assessee to the reasons recorded for re-opening and the re-opening itself vide its letter dated 22.11.2017 and 24.11.2017 were not disposed off by the AO. Thus the completion of assessment without disposal of these objections, makes the assessment bad in law as held in the case of Rabo India Finance Ltd. vs. DCIT (2012) 346 ITR 528 (Bombay) and in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
