TMI Blog2015 (4) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... was thoroughly examined during the course of initial assessment, the reopening of assessment on the same issue on a plea that certain requisite conditions for claiming deduction under section 80-IB (10) of the Act was not examined by the Assessing Officer, cannot be called to be a valid reopening, as the claim of deduction under section 80-IB(10) of the Act have been thoroughly examined by the Assessing Officer as well as the appellate authorities. We, therefore, find ourselves in agreement with the order of the ld. CIT(A) and we confirm the same. We accordingly confirm the orders of the ld. CIT(A) in both the assessment years i.e. 2005-06 and 2004-05 and dismiss the appeals of the Revenue. - Decided against the revenue. - ITA Nos. 668 & 669/LKW/2013, C.O. Nos. 43 & 44/LKW/2013) - - - Dated:- 11-3-2015 - Shri Sunil Kumar Yadav And Shri. A. K. Garodia JJ For the Appellant : Shri. P. K. Dey, D.R. For the Respondent : by: None ORDER Per Sunil Kumar Yadav: These appeals are preferred by the Revenue against the respective order of the ld. CIT(A) on common grounds. 2. The assessee has also filed cross objections in support of the orders of the ld. CIT(A). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the ld. CIT(A) in both the assessment years and the ld. CIT(A) has held the reopening to be invalid and illegal in both the assessment years. The detailed order of the ld. CIT(A) was passed in assessment year 2005-06, which was followed by the ld. CIT(A) while disposing of the appeal for assessment year 2004-05. We, therefore, prefer to adjudicate the appeal for assessment year 2005-06 first. I.T.A. No. 669/LKW/2013: A.Y. 2005-06: 6. This appeal came up for hearing on 11.2.2015, but none appeared on behalf of the assessee. An application for adjournment was, however, moved on the ground that due to certain unavoidable personal reasons, the counsel of the assessee was unable to appear. On perusal of record, it is noticed that this appeal was filed on 10.9.2013. Thereafter, it was listed for hearing for about five times. Initially, the ld. counsel for the assessee appeared and sought adjournment, but later on he stopped appearing and adjournment was sought by sending letters either by post or through some Clerk. Every time hearing was adjourned for the reason that on account of unavoidable circumstances the counsel for the assessee could not appear. Despite affording suf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd time of reopening of assessment on the issue of deduction under section 80-IB(10) of the Act. In the initial assessment when the matter has gone upto the Tribunal on the issue of claim of deduction under section 80- IB(10) of the Act, it cannot be assumed that the issue of requisite conditions for claiming deduction under section 80-IB(10) of the Act was not examined by the appellate authorities including the Tribunal. Therefore, once the appellate authorities have applied their mind to a particular issue, the order of the Assessing Officer will merge with the orders of the appellate authorities. We have also carefully examined the second proviso to section 147 of the Act, according to which the Assessing Officer cannot assess or re-assess such income which is subject matter of appeal, reference or revision. Since the claim of deduction under section 80-IB(10) of the Act is sub-judice before the Hon'ble High Court in the Revenue s appeal, the reopening of the same issue is not possible. The ld. CIT(A) has discussed this issue in detail in his order and for the sake of reference, we extract the relevant portion of the order of the ld. CIT(A) as under:- Action u/s.147 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with the:- provisions of this Act, before making any deduction under this Chapter . Hence, in view of. provisions contained in section 40AB and 80B(5) of the IT. Act coupled with the judicial rulings on this point, I have no hesitation in holding that appellant is entitled for deduction u/s.80IB(10) of the I.T. Act on the profits of eligible dwelling units, which is included in the gross total income. In other words, the addition/disallowances made in the assessment and which are directly related to the eligible dwelling units have to be considered as profit derived from such nits, while allowing the deduction u/s.80IB(10) of the I. T. Act. 7. I have considered this issue and facts and circumstances of the case. My predecessor has elaborately discussed the issue and facts and circumstances of the case of appellant which are similar in. this year, There is no reason for disagreeing with the conclusion and order of my predecessor on this issue. Accordingly, Ground No. 2 of appeal is allowed. 8. In view of the above, I direct the AO to rework out the deduction u/s.80IB(10) of the IT. Act on the basis of CIT(A) order for A. Y. 2005-06 and assessment order for A, Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertaken if the income sought to be assessed/reassessed is subject matter of any appeal, reference or revision. Accordingly, the earlier order of the A.O. on the issue of allowable deduction u/s 80IB(10) has merged with the order of the appellate authorities and therefore, the A.O. was precluded from initiating proceedings u/s 147 of the Act on the impugned subject of deduction u/s 80IB(10). In this regard, it will be relevant to quote from the decision the Hon'ble Supreme Court in the case of Hindustan Aeronautics Ltd vs CIT (243 ITR 808) wherein it was observed by their Lordship as under: The order which is the subject matter of an appeal cannot be divided into two parts one which is the subject matter of the appeal and the other which was not in issue in the appeal before the Tribunal. What becomes merged in the order of the Tribunal is the order made by the Appellate Assistant Commissioner in its entirety and not in part. Indeed where the Legislature intended to make a distinction in such circumstances where there will be no merger in such cases it is expressly provided. We may notice that section 263 of the Act where a revision is permissible in cases of orders which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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