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2017 (1) TMI 1689 - HC - Income TaxReopening of assessment - Reason to believe that income chargeable to tax has escaped Assessment on the basis of the Assessment Order relating to Assessment Year 2005-06, when he issued the re-opening notice dated 9th March, 2009 - HELD THAT:- In this case, the reasons as recorded for reasonable belief, is only the Assessment Order for Assessment Year 2005-06 and this order had on the issues of re-opening of notice been set aside by the CIT (A) on the date of the issue of the re-opening notice. This order of the CIT (A) not having been stayed by the Tribunal, the Assessing Officer could not rely upon an Assessment Order for Assessment Year 2005-06 which on the issues involved is admittedly set aside. We find that the issue arising for our consideration as raised by the Revenue stands concluded against the Revenue by the decision of this Court in German Remedies Ltd. v. Dy. CIT [2005 (10) TMI 65 - BOMBAY HIGH COURT] wherein AO had issued a notice dated 18th February, 2005, seeking to re-open the Assessment for Assessment Year 1999-2000. This re-opening notice was based upon the Assessment Order for Assessment Year 1996-97 with regard to processing charges. Tribunal had by order dated 1st September, 2004 had set aside the issue of processing charges as reflected in the order for Assessment Year 1996-97. This order of the Tribunal was brought to the notice of the Assessing Officer on 31st January, 2005. Nevertheless, the Assessing Officer on 18th February, 2005 issued the re-opening notice on the basis of the Assessment Order passed for Assessment Year 1996-97. This Court held that Assessing Officer was bound to follow binding decision of the Appellate Authority and if not doing so, the re-opening notice becomes unsustainable. In the present facts also as pointed out above, the Assessing Officer was aware of the order dated 13th January, 2009 of the CIT (A) as he gave effect for Assessment Year 2005-06 to the same by his order dated 5th March, 2009. Therefore, the Assessing Officer could not have reason to believe that income chargeable to tax has escaped Assessment on the basis of the Assessment Order relating to Assessment Year 2005-06, when he issued the re-opening notice dated 9th March, 2009.
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