TMI Blog2010 (7) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... edings, the assessment proceedings in respect of same disputed issue cannot be permitted to go on whether the Assessing Officer can proceed with the assessment proceedings relating to the issue in respect of serious dispute pending adjudication before the appellate authority - As rightly argued by the learned counsel for the petitioner any adjudication rendered in the appeal by the appellate authority on the same issue will have greater bearing on the present assessment proceedings for the subsequent years - Decided in the favour of the assessee by way of remand - 2937 to 2939 of 2010 - - - Dated:- 2-7-2010 - Ms. JUSTICE K.B.K.VASUKI, J. For Petitioner : Mr. R.L.Raman Senior Counsel for B.Raveendran For Respondent : Mr.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted for the assessment years 2001-2002 to 2005-2006 were reopened on the basis of two Judgments rendered by Patna High Court, to the effect that entrance fee received was to be treated as revenue, and not capital. After the assessment, reassessment was completed and reassessment orders were passed against which the petitioner preferred appeals before the Commissioner of Income Tax (Appeals)-III). Thus, totally five individual appeals were filed against individual assessment order. According to the petitioner, the appeal relating to assessment year 2005-2006 is treated as Appeal No.272/2007-2008 and other appeals relating to the other assessment years 2001-2002 to 2004-2005 are though received not taken up on file. It is not in dispute that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment within the meaning of Section 147 of the Income Tax Act and therefore, the Assessing Officer proposed to reassess the income for the said assessment years. The petitioner is hence, directed to submit the returns, in the prescribed form, of the income in respect of which, the petitioner is assessable for the particular assessment year. The notice contains reasons on the basis of which, the Assessing Officer proposed to reassess the returns as if the assessee has received life membership fee for the particular assessment years, which is not refundable to the members after the termination of the life period of the members and can neither be treated as liability nor can be treated as capital receipts as per the Judgment reported in P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to the assessee to treat it as deemed assessment and the assessment returns filed by the assessee for the years in question was only processed and though the expression used in the impugned notices is reassessment, it is not actually reassessment but only original assessment of the returns, after scrutiny of the records as contemplated under Section 147 of the Act. The learned counsel for the petitioner and learned standing counsel for the department has also in support of their respective contentions, cited the following Judgments respectively. 1. Division Bench Judgment of our High Court reported in (2010) 321 ITR 474 Madras in Commissioner of Income Tax v. K.K.Palanisamy. 2. Judgment of the Apex Court reported in (2007) 291 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment. Further, the reading of the provisions under Section 147 would also disclose that the petitioner's returns are covered under explanation 2(b) of Section 147 of the Income Tax Act, wherein though the income return is furnished by the assessee, but no assessment was made and it is noticed by the Assessing Officer that the assessee has either understated the income or claimed excessive, deduction, allowance or relief in the return. Hence, impugned notices for the reasons stated above can only be treated as the notices issued for assessment under Section 147 read with Section 143. 7. Next aspect to be considered is as to whether the Assessing Officer can proceed with the assessment proceedings relating to the issue in respect of seri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to go ahead with the assessment but the final order shall not be given effect to pending disposal of the appeal. In all these cases, the observation is so made only by following the earlier Division Bench Judgment of this Court made in M/S.Tecumseh Products India Limited in W.P. No.22769 of 2003. Though such observations are made in the matters arising out of Commercial Tax, the same logic and the reasoning can be easily applied to the assessment proceedings under Income Tax Act. 8. That being the legal position, this Court is following the earlier Division Bench Judgment inclined to dispose of these writ petitions by permitting the respondents to proceed with the assessment proceedings in pursuance of the impugned notices for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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