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2023 (6) TMI 274 - ITAT MUMBAIValidity of reopening of assessment - taxability of the receipts from the transfer of the development rights - validity of second assessment order - HELD THAT:- The assessee in its appeal against the first assessment order passed u/s 147 r.w.s. 143(3) had challenged the taxability of the receipts from the transfer of the development rights before the learned CIT(A). Assessee also challenged the reference to DVO to determine the actual sale consideration of properties. Therefore, the second assessment order passed under section 147 r.w.s. 143(3) is clearly in contravention of the provisions of the aforesaid proviso 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 in the present appeal.
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