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2024 (3) TMI 1080 - HC - Income TaxReopening of assessment u/s 147 consequent to revision proceedings u/s 263 pending - notice u/s 148 issued during the pendency of the assessment proceedings following the directions given by the PCIT - HELD THAT:- Such a reopening notice, in our view, could not have been issued, more particularly, because the notice involved matters which were the subject matter of revision u/s 263 - when the order of assessment u/s 143(3) of the Act has been remanded to the AO to enquire into and make a fresh assessment, the question of entertaining reasonable belief that the income chargeable to tax has escaped assessment does not arise, much less the assessment when the assessment proceedings are still pending. The concept of reason to believe comes in picture if the income chargeable to tax has escaped assessment. So long as the assessment is pending, the assessing authority cannot have any such reason to believe that income chargeable to tax for the assessment year in question has escaped assessment. Income cannot be said to have escaped assessment within the meaning of this section if the assessment proceedings in respect of that income and/or issue are still pending and have not culminated into a final order. The underlying principle is how can an escapement of income from an assessment be predicted before an assessment is complete. Thus, it was not open for the AO to invoke powers u/s 147 and 148 - In our view, so long as the assessment proceeding in respect of certain income subsists, income cannot be said to have escaped assessment. Such proceedings, if initiated, will have to be held as invalid, ab-initio, void and illegal. We find support for this view in Ador Technopack Ltd. v. Dr. Zakir Hussein, Deputy Commissioner [2004 (3) TMI 22 - BOMBAY HIGH COURT] Also sanction granted u/s 151 as held by this Court in J M Financial and Investment Consultancy Services Private Limited [2022 (4) TMI 1446 - BOMBAY HIGH COURT] is invalid. Decided in favour of assessee.
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