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2021 (12) TMI 637 - ITAT MUMBAIReopening of assessment u/s 147 - genuinety of claim of the assessee that income can not be taxed twice as has been done in the present case - Profit of the project offered to tax in the earlier year on the basis percentage completion method followed by the assessee - HELD THAT:- As the order of Ld. CIT(A) suffers from serious infirmities as he has not considered the issue of double taxation and also the fact that return filed in response to notice under section 148 of the Act has been acknowledged by the AO in the assessment order and only the reassessment proceeding has to be done on the basis of return filed in response to notice under section 148 of the act. In our opinion, the department should not be allowed to take the advantage of any mistake committed by the assessee which may result prejudice to the assessee in double taxation of the same income. In the present case, ₹ 1,74,76,000/- has been assessed from A.Y. 2009-10 to A.Y. 2012-13 and therefore to tax the income again on the plea that assessee has wrongly returned the income on the original return of income and not giving effect to the rectification filed by the assessee is totally wrong and against the principle of natural justice. In our opinion, this income needs to be reduced from the return of income of the assessee as there is no provision in the income tax law to assess the same income twice. Even otherwise, the stand of the AO is not acceptable as in the reopened proceedings the issue which was subject matter of reopening i.e. non deduction of tax on certain expenses amounting to ₹ 38,00,500/- has not been added in the reassessment order and once the item proposed in the reasons recorded under section 148(2) did not find place in the assessment order, no other addition can be made and income returned as per return in response to notice under section 148 of ₹ 3,22,254/- has to be accepted. The case of the assessee finds support from the decision of the jurisdictional High Court in the case of CIT vs. Jet Airways (India) Ltd.2014 (5) TMI 1215 - BOMBAY HIGH COURT] - direct the AO to reduce ₹ 1,74,76,000/- from the income of the assessee. Accordingly, the appeal of the assessee is allowed.
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