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2022 (5) TMI 1157 - AT - Income TaxEligibility of Reopening of assessment u/s 147 - eligibility of addition on other issues which did not found part on the reasons recorded - no addition with respect to the ground on the basis of which the notice u/s 148 of the Act was issued - assessee had sold an immovable property at Village Jonawas which is situated within 5 K.M. from the municipality’s limit of Rewari/Dharuhera Municipality and thus was covered in the definition of Capital Assets - HELD THAT:- The perusal of the reasons recorded for re-opening the assessment as intimated to assessee vide reasons reveals that the reopening was initiated for the reason that assessee had sold an immovable property value in Village Jonawas which is situated within the 5 K.M. from the municipality’s limit and thus was a Capital Asset and therefore the assessee should have offered the Capital gains to tax The assessment order reveals that the additions has been made on a different ground, being addition u/s 68 of the Act on account of unexplained deposits in the Bank. We find that Hon’ble Bombay High Court in the case of Jet Airways (I) Ltd. . [2010 (4) TMI 431 - HIGH COURT OF BOMBAY] has held that if upon the issuance of notice u/s 148 of the Act, the AO does not assess or reassess the income which was the basis of the notice, it would not be open to assess income under some other issue independently. It has further held that if AO intends to assess some other income, which did not initially formed part of the reason to believe that income has escaped assessment, then a fresh notice u/s 148 of the Act would be necessary. In the present case, it is Ld. A.R.’s contention that no new notice u/s 148 of the Act was issued for the issues on which the additions that have been made in the assessment framed u/s 143(3) r.w.s. 147 of the Act. The aforesaid submissions of the Ld. A.R. has not been controverted by Revenue. Hon’ble Gujarat High Court in the case of CIT vs. Mohmed Juned Dadani [2013 (2) TMI 292 - GUJARAT HIGH COURT]after considering the effect of explanation 3 to Section 147 of the Act has held that if the assessing officer does not make any addition with respect to the ground on the basis of which the notice u/s 148 of the Act was issued, then he cannot make addition on other issues which did not found part on the reasons recorded. Thus in the present case, assessment framed by the AO is on other issues which is not part of the reasons recorded for reopening the assessment. In such a situation, the assessment order is not sustainable in the eye of law. We accordingly set aside the assessment. - Decided in favour of assessee.
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