TMI Blog2011 (5) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... o the issue of notice under section 148 of the income tax act for reopening the assessment did not exist. 2. Without prejudice to the above, and on the facts and in the circumstances of the case and in law, the learned C IT(A) has erred in sustaining the disallowance of ₹ 3,23,63 5/- made by the Assessing Officer under section 80 RR of the Income Tax Act on the alleged ground that the assessee did not exercise profession in earning US $ 10,000 equivalent to ₹ 4,31,500/- from Superstar Promotions, 1625 South Bush, Fresno, USA merely because the show was not performed although the remittance was received in course of carrying out professional duties of your appellant. Your appellant therefore prays that the claim of Rs . 3,2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said notice u/s 148 of the Income Tax Act are not at all applicable in my case . Notwithstanding the above contention, I request you to treat the original return of income as a return of income dee med to be filed in response to notice u/s 148 of the Act. 4. Subsequently notice u/s 142(1) was issued by the Assessing Officer and in response to the same, learned AR of the assessee attended and filed details. 5. As regards cash payments of ₹ 20,00,000/-, the assessee was asked to explain why the said cash payment of ₹ 2 0,00,000/- was not accounted in the books, and in reply, the AR of the assessee desired to cross examine the person representing Tips Films Pvt. Ltd., in order to disprove the said allegation. On cross e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer. 6. Before us, the learned counsel for the assessee has submitted that the Assessing Officer has reopened the assessment u/s 148 on the ground that the income chargeable to tax of ₹ 20,00,000/- had escaped assessment. It is submitted that on examination of the issue, the Assessing Officer came to know that the amount received by the assessee is pertaining to the AY 1999-2000, therefore, the same was not considered for assessment. The learned counsel pointed out that the income, on which the assessee has reopened the assessment has not escaped assessment, therefore, the reopening of assessment by the u/s 148 is not valid as Assessing Officer made the addition on some other issue u/s 80RR. The learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the assessment was sought to be reopened on the ground that income had escaped assessment on a certain issue, the Assessing Officer could not make an assessment or reassessment on another issue which came to his not ice during the proceedings. This interpretation will no longer hold the filed after the insertion of Explanation 3 by the Finance Act (No.2) of 2009. However, Explanation 3 does not and cannot override the necessity of fulfilling conditions set out in the substantive part of section 147. An Explanation to a statutory provision is intended to explain its contents and cannot be construed to override it or render the substance and core nugatory. Section 147 has this effect that the Assessing Officer has to assess or reassess t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gument raised by the learned DR based on the escaped income as recorded in the reasons added in the assessment year 1999-2000, we find no merit in the same keeping in view that the unit of assessment is assessment year and every assessment year is different. The validity of the reopening each assessment year has to be decided on the basis of the facts of that year including the reasons recorded by the AO for reopening of assessment of t hat year. The above judgement of the Hon ble Jurisdictional High Court in the case of Jet Airways (I) Ltd. (supra) is squarely applies to the facts of the assessee s case. We, therefore, respectfully following the said judgment of the Hon ble Jurisdictional High Court, hold that the addition made by the AO i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
