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2023 (12) TMI 344 - HC - Income TaxReopening of assessment u/s 147 - reassessment order was quashed, concerns the applicability of the third proviso appended to Section 147 - HELD THAT:- A careful perusal of the third proviso appended to Section 147 of the Act reveals that the AO is free to assess or reassess such income which is chargeable to tax, provided he has reason to believe that income has escaped assessment, other than income which is the subject matter of any appeal, reference or revision. Therefore, in order to appreciate as to which is the income that the AO cannot subject to assessment or reassessment, one would have to examine the grounds incorporated in the appeal [i.e., for AY 2010-11] which the appellant/revenue had preferred with the Tribunal. We may note that identical grounds were raised qua AY 2011-12, except for the difference in the amount that was added to the respondent’s/assessee’s income u/s 68 of the Act. Clearly, a perusal of the grounds of appeal would show that the appellant/revenue had directed its appeal towards the additions made under Section 68 of the Act. The reassessment proceedings, concededly, also dealt with the additions made under Section 68 of the Act. According to us, while the appeals preferred were pending adjudication with the Tribunal, the AO could not have triggered reassessment proceedings against the additions which were the subject matter of the appeal. The dicta of the two judgments cited by Mr Aggarwal [i.e., Commissioner of Income Tax, New Delhi (Central) vs. Edward Keventer (Successors) P. Ltd. [1979 (11) TMI 73 - DELHI HIGH COURT] and Alcatel Lucent France vs. ADIT [2016 (6) TMI 301 - DELHI HIGH COURT]] is squarely applicable. Both judgments enunciate the principle that for zeroing down on matters which the AO cannot subject to assessment or reassessment proceedings under the third proviso to Section 147 of the Act the best way would be to examine the grounds of appeal.
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