2020 (9) TMI 280

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....bearing No.183/Ahd/2019 in ITA No.1410/Ahd/2015 for the Asstt.Year 2005-06. In this MA, it was contended by the assessee that in ground no.2 and 3, the assessee has challenged reopening of the assessment, and these two grounds were not adjudicated by the Tribunal. The Tribunal after hearing, allowed the MA of the assessee vide order dated 20.8.2019. The finding of the Tribunal reads as under: "2. The case of the assessee is this that the ground adjudicated before us by way of original application in respect of the validity of the notice u/s 148 of the Income Tax Act, 1961 dated 11.01.2013 and confirming re-assessment passed u/s 143(3) r.w.s. 147 of the Act dated 21.03.2013 has not been adjudicated on merit. Hence, the prayer has beenmade ....

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....and they read as under:  "Sub: Re-assessment u/s.1247 for A.Y.2005-06 Ref: Your letter dated 17/01/2013 2. I am in receipt of your letter dated 17/01/2013 received from your Authorized Representative. 3. Reasons for re-opening assessment u/s.147 of the LT.Act, 1961 in your case for A.Y. 2005-06 as recorded are: "Section 36(i)(va) of the I.T Act, , 1961 provides that any sum received by way of contributions from employees towards PF.ESIC, etc. will be treated as income u/s 2(24)(x) of the Act unless the said sum is credited to the relevant fund on or before the due date prescribed. Assessee was engaged in the manufacture of TV fluids, syringe, etc., it filed its return of income on 31.10.2005 declaring loss of Rs. 12,35,64....

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....he ld.counsel for the assessee, reassessment order is unsustainable in the eyes of law. He placed on record the following judgments: i) Kanak Fabrics Vs.ITO, 359 ITR 447 ii) Calcutta Discount Co. Ltd. Vs.ITO, 41 ITR 191 iii) Austin Engineering Co.Ltd. Vs.JCIT, 312 ITR 70 5. He further contended that the AO sought to disallow late payment to employees' contribution to the respective PF account with aid of section 36(1)(va) r.w.s. 2(24)(x) of the Act. But when he has issued notice, at that point of time judgment of Hon'ble Gujarat High Court in the case of Gujarat State Road Transport Corporation Ltd., 366 ITR 170 was not pronounced, therefore, he has to demonstrate that the assessee has failed to disclose all material facts fully a....