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Mr.Chhotaroy learned counsel for the revenue mentioned that the profit and loss account of the assessee as furnished by the petitioners would clearly indicate that the Assessing Officer had not applied his mind to the same.
On careful consideration of above contention, we are of the view that there may be a substantive assessment without any protective assessment but there can not be any protective assessment/addition without a substantive assessment/addition, meaning thereby there has to be some substantive assessment/addition first which enables the AO to make a protective assessment/addition.
The power of the assessing Officer under Section 147 of the Act is not in dispute. A challenge made to an order passed on the objections of the assessee would in effect is a challenge made to a notice under Section 148 of the Act. Such an order passed by the assessing officer is only at the stage of process of determination and not a determination by itself. The process of assessment is not required to be challenged before Court of law, as it is a still born child.
It is true that the reasons for initiating re-assessment proceedings do in fact state that there was a failure on the part of the Petitioner to disclose fully and truly all material facts necessary for its assessment.
If no additions made on grounds set for reasons for reassessment, than no addition can be made on other aspects The legal position is fairly well settled on the issue that in a reassessment proceeding, when no additions are made in respect of the income, purportedly escaping the assessment, set out in the reasons for re-opening the assessment, no other additions can be made either.
In the present case the retrospective amendment was introduced after the original assessment. The introduction of the amendment occasioned the re-assessment. The reassessment order gave effect to the amendment.
Recently Delhi High Court has in the case of Acorus Unitech Wireless Pvt. Ltd vs. ACIT held that The law only requires that the information or material on which the AO records his or her satisfaction is communicated to the asseseee, without mandating the disclosure of any specific document.
Explanation 3 will be applicable in case where live issue, which was subsisting at the time of original assessment and if such issue has escaped the determination of the assessing officer, can be a ground for reopening. Any new issue that has cropped up subsequently on new set of facts, the aforesaid Explanation has no application.
Agra ITAT in the case of ACIT Vs. Shri Yogendra Kumar Singhal has held that Quality & lavishness of construction is not incriminating material. Reference cannot be made to the Valuation Officer in the absence of incriminating material/document found during the course of search
Hon’ble ITAT Agra in the case of ACIT V/s. Kalyani Chaturvedi held that Re-appreciation of seized material in subsequent proceedings by the AO is unjustified and quashed the Re-assessment Order. Hon’ble ITAT has held as under
