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2015 (6) TMI 28 - ITAT DELHI

2015 (6) TMI 28 - ITAT DELHI - TMI - Reopening of assessment - Held that:- An addition which has already been considered u/s 158BC, the same cannot be made subject matter of addition by again invoking the provisions of Section 148. The reasons recorded by A.O. itself do not point out to the fact that some income had escaped assessment. It has been mentioned in the reasons recorded that the reassessment is being proposed in view of the fact that ITAT had quashed the order u/s 158BC. The reasons r .....

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e revenue is not empowered to tax the same income by taking another route. - Decided in favour of assesse. - I.T.A. No.1255 /Del/2012 - Dated:- 31-3-2015 - Shri G. C. Gupta And Shri T. S. Kapoor,JJ. For the Appellant : Shri Sanat Kapoor, Adv. For the Respondent : Shri P Dam Kanunjha, Sr. DR ORDER Per T. S. Kapoor, AM: This is an appeal filed by assessee against the order of Ld. CIT(A) dated 13.01.2012. The assessee has raised various grounds of appeal challenging the validity of assessment made .....

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d against the principle of natural justice. 2. That in view of the facts and circumstances of the case and in law the Ld. CIT(A) has erred in ignoring the fact that AO has already included the reassessed income in the block assessment order and notice U/s 148 cannot be issued to again assess I reassess the income that has already been assessed and taxed by the AO previously . 3. That in view of the facts and circumstances of the case and in law the Ld. CIT(A) has erred in not appreciating the fa .....

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s illegal, bad in law and contrary to well established principles of law. 5. That in view of the facts and circumstances of the case and in law the Ld. CIT(A) has erred in not appreciating the fact that the assessee had disclosed all facts truly and fully for assessment of income during the course of assessment proceedings, hence the notice Vis 148 is illegal, bad in law and without jurisdiction. 6. That in view of the facts and circumstances of the case and in law the Ld. CIT(A) has erred in no .....

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ddition of ₹ 27,60,000/- made is illegal, bad in law and made on irrelevant grounds and based on surmises and conjectures and mere guesswork. 9. That the additions made are illegal, unjust and bad in law and are based on mere surmises and conjunctures and the same cannot be justified by any material on record. 10. That the various observations made by the AO and CIT(A) are illegal, bad in law and contrary to facts on record , without any material on record and on basis of surmises and conj .....

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ous grounds of appeal has challenged the assessment completed u/s 148 on various legal issues. The brief facts of the case are that the notice u/s 148 was issued on 15.03.2004 and the assessee was asked to file return of income for the Assessment Year 1998-99 on 13.04.2004. After serving the notice u/s 143(2), the A.O. show cause the assessee that as to why addition of ₹ 27,60,000/- be not made to the income of the assessee. However, the assessee did not reply and, therefore, the A.O. made .....

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t the addition made by A.O. and confirmed by Ld. CIT(A) were already assessed to tax by order dated 29.05.2001 u/s 158BC of the Act. Ld. A.R. further submitted that ITAT had quashed the said order u/s 158BC on the basis that the assessment was time barred and, therefore, the Revenue went in for appeal before Hon'ble High Court and Hon'ble High Court had also admitted the substantial question of law and in this respect, Ld. A.R. invited our attention to order dated 24.03.2008 of Hon'b .....

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assessed to tax. Ld. A.R. further submitted that the original assessment was made u/s 143(3) and reassessment u/s 148 was made after the completion of four years and there was no failure on the part of assessee as the assessee had declared fully and truly all material facts necessary for assessment. Ld. A.R. further submitted that in Assessment Year 1999-2000 in the case of assessee itself under similar circumstances, notice u/s 148 was issued and assessment was completed u/s 148 and Ld. CIT(A) .....

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in this respect, our attention was invited to paper book pages 10-11 where a copy of reasons recorded was placed. Ld. A.R. submitted that the proceedings in Assessment Year 1999-2000 has attained finality and no appeal has been preferred by Revenue and, therefore, following the above, the appeal of assessee in the year under consideration be also allowed. 4. Ld. D.R. on the other hand heavily placed his reliance on the orders of authorities below and submitted that ITAT had allowed relief to th .....

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al had allowed relief holding that the order passed u/s 158BC was time barred. The appeal filed by Revenue is pending before Hon'ble High Court. However, the question has been admitted vide Hon'ble Delhi High Court order dated 24.03.2008. From the reasons recorded and placed at paper book page 333, we find that the A.O. proposed to reassess the income of the assessee by holding that since ITAT had quashed the block assessment order, and standing counsel had advised for reopening of case. .....

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income in the order U/S 158BC made on 29-05-2001. This order though squashed by ITAT has not become final. Department has appealed against the said order which is pending before the High Court. To that extent, it is obvious that the income which is being assessed under 148 has already been assessed to tax U/S 158BC. Thus to take a view that the said income has escaped assessment may be contrary to the existing facts. Whether an income which could have been validly assessed to tax u/s 158BC and w .....

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under the Act. It is pertinent to note that in case Hon'ble High Court upholds revenue's appeal against ITA T's order squashing order u/s I58BC the present assessment made u/s 148 could amount to double taxation of the same income. In such scenario the assessee would be put to great hardship. When the department has not accepted the order of IT A T, I am of the view that, the AO cannot treat the income duly assessed u/s I58BC as escaped income U/S 147 merely because the order under .....

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of issuing notice U/S 148. 3.1.8 It is also relevant to examine the provision of sec. 158BA which is a charging section for income unearthed due to search u/s 132 of ITAT Act. Section 158BA begins with a non obstante clause and states that the undisclosed income resulting from action u/s 132 and 132A shall be assessed only in accordance with the provisions of chapter XIV -B. (Special procedure for assessment of search cases). Sec. 158BA(2) provides for taxing the undisclosed income at the rate s .....

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