TMI Blog2023 (6) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... to section 147 since it reassesses the income which was the subject matter of the appeal before CIT(A). We find that the Hon ble jurisdictional High Court in ICICI Bank Ltd [ 2011 (11) TMI 304 - BOMBAY HIGH COURT] held that the power to re-open an assessment cannot be exercised to re-open issues that formed the subject matter of an appeal to Commissioner (Appeals). Therefore, we affirm the conclusion reached in the impugned order that the second assessment order dated 31/08/2017, passed under section 147 read with section 143(3) of the Act is null and void ab-initio being contrary to provisions of the Act. As the second assessment order is quashed for this short reason, we see no need to deal with other issues raised by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the AO considered itself in the business of development rights. IV On the facts circumstances of the case, the Ld. CIT(A) erred in holding order dated 31.08.2017 as order passed u/s 147 of the Act whereas the order passed by the AO is in the nature of giving effect to the previous order that was passed u/s 143(3) r.w.s. 147 of the Act dated 19.12.2016. V The appellant craves leave to amend or alter any ground or add a new ground which may be necessary. 3. We have considered the submissions of both sides and perused the material available on record. We, at the outset, find that the learned CIT(A) has very succinctly described the assessment proceedings in the opening paragraph of its findings on page 21 of the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Rs.41,08,20,500, under the head profits and gains of business on the transfer of development rights. In view of the above and on being satisfied, assessee s case for the assessment year 2009-10 was reopened by issuing notice under section 148 of the Act on 31/03/2016, (which was duly served upon the assessee on 30/05/2016), after recording the reasons for reopening the assessment. 5. The assessee requested to treat the original return, as a return filed in response to notice issued under section 148 of the Act. The reasons recorded for reopening the assessment were also provided to the assessee. During the course of reassessment proceedings, the assessee was asked to show cause as to why an amount of Rs.12,32,46,150 (i.e. 30% of 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be considered while taxing the profits of the assessee in respect of the above transactions. 8. Being aggrieved by the aforesaid assessment order dated 19/12/2016, passed under section 147 read with 143(3) of the Act, the assessee e-filed an appeal on 19/01/2017 before the learned CIT(A) vide acknowledgement No. 596518091190117, which forms part of the paper book from pages 119-122. It is evident from Form No. 35 of the aforesaid appeal that the assessee had challenged the taxability of the receipts from the transfer of the development rights. The assessee also challenged the reference to DVO to determine the actual sale consideration of properties. 9. While the aforesaid appeal was pending before the learned CIT(A), the AO pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal, the income of the assessee is not based on the valuation report of the DVO and therefore is contrary to the provisions of section 142A(7) of the Act, which requires the AO to take into account such report while making the assessment or reassessment. Thirdly, the second assessment order dated 31/08/2017 is in respect of the transaction, which was already a subject matter of appeal before the learned CIT(A) and therefore the same is contrary to the second proviso to section 147 of the Act, as it stood at the relevant time. 11. It is pertinent to note that there is no provision in the Act, which authorises the AO to pass multiple assessment orders on its own without any direction from any higher administrative or appellate authority. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143(3) of the Act is clearly in contravention of the provisions of the aforesaid proviso to section 147 of the Act, since it reassesses the income which was the subject matter of the appeal before the learned CIT(A). We find that the Hon ble jurisdictional High Court in ICICI Bank Ltd v/s DCIT, [2012] 204 Taxman 65 (Bombay) held that the power to re-open an assessment cannot be exercised to re-open issues that formed the subject matter of an appeal to Commissioner (Appeals). 14. Therefore, in view of the aforesaid findings, we affirm the conclusion reached in the impugned order that the second assessment order dated 31/08/2017, passed under section 147 read with section 143(3) of the Act is null and void ab-initio being contrary to prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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