TMI Blog2012 (7) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... ening and did not make addition under the relevant head. Therefore, he cannot reopen the assessment again for the same reason by simply making changes in the format of the reasons recorded without looking to the fact that the transaction for which he wants to form a belief is the same. Therefore, second reopening was done only on account of change of opinion which is not permissible under the law. Accordingly, the reassessment orders framed consequent to issuance of notice u/s 148 are hereby annulled and additions made therein are also deleted - Decided in favor of assessee - ITA Nos.56/ALLD/2010 ITA Nos.55/ALLD/2010 - - - Dated:- 31-5-2012 - SHRI SUNIL KUMAR YADAV, SHRI S. V. MEHROTRA, JJ. Appellant by: Dr. N. C. Agrawal, C.A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant also. 5. Because the learned CIT (A) failed to appreciate that in the absence of any deficiency being pointed out by the A.O. in the valuation report of the approved valuer submitted by the assessee, the same should have been adopted for calculation of capital gains. 6. Because the learned CIT (A) has erred in law to hold that the case was properly reopened u/s. 147/148 of the Income Tax Act 1961, because in the absence of any capital gain escaping assessment the case could not have been opened to reassessment after more than 5 years u/s 147/148. 7. Because the learned Commissioner of Income Tax (Appeals) has erred in confirming the addition of Rs. 7,50,000/- u/s. 2(22)(e) of the Income Tax Act, 1961. 8. Because the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opened on one ground and the additions were made on different grounds. While cancelling the re-assessment, the ld. CIT(A) observed that the Assessing Officer should have again reopened the case under section 148 of the Act by recording reasons that the income has escaped assessment on account of deemed dividend. Nothing was stated in that order with regard to reopening of assessment on the ground that the assessee has deposited a sum of ₹ 11,55,931 and earned capital gain. This order of the ld. CIT(A) was not objected by the Revenue as no appeal was filed before the Tribunal. 5. The Assessing Officer, however, again reopened the assessment under section 147 of the Act by issuing notice under section 148 of the Act on 11.3.2004. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Similar is the fact in other appeal in the case of Alok Banerjee (ITA No.55/All/d2010) except changes in the date of few orders. 9. The ld. counsel for the assessee, at threshold, has challenged the validity of reopening. We, therefore, prefer to adjudicate this issue at the outset. 10. The ld. counsel for the assessee has submitted that first reopening was done by the Assessing Officer after recording reasons on 27.9.2002 and in that reasons, the Assessing Officer has categorically observed that the assessee has deposited a sum of ₹ 11,55,931 on 18.3.1997 and this deposit was out of advance amount received by him through cheque against sale of land. Meaning thereby, the issue of receipt of sale proceeds on sale of land and earnin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the assessee has placed reliance upon the judgments of the Hon'ble Apex Court in the cases of Indian and Eastern Newspaper Society v. CIT, 119 ITR 996 (SC) and ITO v. Lakhmani Mewal Das, 103 ITR 437 (SC). 12. The ld. D.R., on the other hand, has simply placed reliance upon the orders of the lower authorities. 13. We have given a thoughtful consideration to the rival submissions in the light of material available on record and we find that undisputedly the assessment was reopened on 27.9.2002 on the ground that the assessee has made certain deposits which comes from sale proceeds of plots, but while completing the reassessment, the Assessing Officer did not make any addition either under the head capital gain or under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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