TMI Blog2013 (12) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... essment year under consideration - This is the factual finding given by the CIT(A), against which no contrary evidence is produced before the Tribunal. Reopening of assessment u/s 147 - Held that:- In view of proviso to Explanation 3 to S.147 inserted by the Finance (No.2) Act, 2009, with effect from 1.4.1989 - The AO can go into other aspects which have not been recorded in the reasons for reopening the assessment and which only came to notice during the reassessment proceedings - The provision is applicable to all the pending proceedings. Preliminary expenses - Salaries, travelling and office maintenance expenses - Held that:- Following Pohoomal Bros V/s. CIT [1958 (3) TMI 55 - BOMBAY HIGH COURT] - The expenditure to be allowable sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re than 12 months after the month of filing of the return. The assessment proceedings and the assessment order flowing from it are both invalid. Without prejudice to the above grounds 3. On the facts and circumstances of the case, the ld CIT(A) has erred in holding that the business was not set up. 4. The learned CIT(A) has erred in holding that any other income not specified in the reasons recorded u/s. 1438(2) can be brought tot ax in the reassessment proceedings. The explanation 3 u/s. 147 was not existing at the time of assessment on 24.11.2008. 5. The learned CIT(A) is not justified in holding that the expenditure other than the depreciation incurred such as towards salaries, travelling and office maintenanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that section does not come to the rescue of the Department. We are afraid, such a plea cannot be accepted, for the reason that the provision of S.292BB is only a procedural one, and as such, it applies to all the pending proceedings, irrespective of the assessment years, to which they relate, as held by the Punjab and Haryana High Court in the case of Om Sons International V/s. CIT(2011) 60 DTR (P H) 393, wherein it was held- .The provision has been made effective from 1st April, 2008 and therefore, shall apply to all pending proceedings. The CBDT issued Circular No.1 of 2009 dt 27th March, 2009 ((2009) 222 CTR (St) 69);(2009)310 ITR (ST) 42) giving explanatory notes on the provisions relating to direct taxes contained in Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment of other items of income, which have not been stated to have escaped assessment in the notice sent by the assessing officer for reopening the assessment under S.147 of the Act. 8. We have considered the rival submissions on this issue. It is the contention of the assessee that the assessing officer has reopened the assessment only to consider the disallowance of depreciation, and as such the assessing officer cannot go into other issues and make additions/disallowances in relation to the same. We find no merit in this contention of the assessee, in view of proviso to Explanation 3 to S.147. The said provision inserted by the Finance (No.2) Act, 2009, with effect from 1.4.1989, reads as follows- Explanation 3- For the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery existence of the assessee company. 10. We have considered the rival submissions and perused the orders of the lower authorities. We find that the CIT(A), after taking note of the case-law on the point, viz. of the Bombay High Court in Dinesh Kumar Gulabchand Agrawal V/s. CIT(267 ITR 768); and Pohoomal Bros V/s. CIT(34 ITR 64); of the Allahabad High Court in Sherwani Bros V/s. CIT(23 ITR 51), held the view that the expenditure to be allowable should have been incurred for the business being carried on, and since, in the instant case, the assessee was yet to commence the business, the expenditure claimed is not allowable. He however, directed the assessing officer to consider the amortization of the expenses claimed under S.35B of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
