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2019 (3) TMI 813 - HC - Income TaxReopening of assessment - Reason to belief- Addition u/s 69 was made in assessment u/s 143(3) r.w.s 153A - Addition deleted by CIT(A) - no appeal filed before ITAT - Notice for 148 was issued based on same material found in search - HELD THAT:- An income has been held to be income chargeable to tax in the proceedings u/s 143(3) r.w.s 153A of the Act and has been added to the income of the petitioner under section 69 of the Act, the very same income thereafter cannot be said to be income which has escaped assessment, inasmuch as such income has already been assessed. Therefore, on the reasons recorded, the Assessing Officer could not have formed the belief that income chargeable to tax has escaped assessment, inasmuch as such income has already been assessed u/s 143(3) r.w.s 153A of the Act. The assumption of jurisdiction under section 147 of the Act on the part of the Assessing Officer therefore, lacks validity and hence, cannot be sustained. Earlier an assessment order u/s 143(3) r.w.s 153A of the Act had been made making an addition under section 69 of the Act. Against the said order, the petitioner went in appeal before the Commissioner (Appeals), who by an order dated 11.8.2017, held in favour of the petitioner insofar as the addition made under section 69 of the Act is concerned. Thus, the order of the Assessing Officer insofar as the issue in respect of which the assessment is sought to be reopened, has merged with the order passed by the Commissioner (Appeals). The third proviso to section 147 postulates that the AO may assess or re-assess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax or escaped assessment. Thus, the third proviso to section 147 of the Act permits the Assessing Officer to assess or re-assess only such income which was not subject matter of appeal, reference or revision. In the present case, the Assessing Officer seeks to reopen the assessment in respect of income involving a matter which was subject matter of appeal before the Commissioner (Appeals). The reopening of assessment by the impugned notice under section 148 of the Act is, therefore, also hit by the third proviso to section 147 of the Act and is not permissible in law. - Decided in favour of assessee.
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