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Shri Shivlal Versus The Income Tax Officer, Non-Corporate Ward 6 (3) , Chennai

2017 (2) TMI 322 - ITAT CHENNAI

Reopening of assessment - spreading of unaccounted investments over the period of construction of the property - period of limitation - Held that:- This Tribunal has to confine itself only to the assessment year for which the appeal is filed either by the assessee or by the Revenue relates to. Since the appeals relating to assessment years 2002-03 and 2003-04 are not pending before this Tribunal, this Tribunal is of the considered opinion that even a casual reference made by ITAT with regard to .....

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Section 147 for assessment years 2002-03 and 2003-04 are barred by limitation. - Estimation of cost of construction - Held that:- State Government has prescribed a rate for construction of building in the State. Central Government has also prescribed rate for construction of building. When there was a variation in the cost of construction between the State PWD and Central PWD, this Tribunal is of the considered opinion that the State PWD rate would be more relevant rather than Central PWD ra .....

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/Mds/2016 - Dated:- 31-1-2017 - Shri N.R.S. Ganesan, Judicial Member And Shri D. S. Sunder Singh, Accountant Member Appellant by : Sh. T. Banusekar, CA Respondent by : Sh. V. Nandakumar, JCIT ORDER Per N. R. S. Ganesan, Judicial Member All the three appeals of the assessee are directed against the respective orders of the Commissioner of Income Tax (Appeals)-5, Chennai, pertaining to assessment years 2002-03, 2003-04 and 2004-05. Since common issue arises for consideration in all these appeals, .....

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. representative for the assessee submitted that the assessments were reopened beyond the period of limitation. According to the Ld. representative, the original assessments were completed under Section 143(3) of the Act on 31.03.2003. When the Revenue challenged the order of the CIT(Appeals) for the assessment year 2004-05, this Tribunal found that spreading of unaccounted investments over the period of construction of the property is not beyond the powers of the CIT(Appeals) and the order of t .....

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The records pertaining to assessment years 2002-03 and 2003-04 were not available before the Tribunal. The Tribunal confined its order only to the assessment year 2004- 05. According to the Ld. representative, of course, in the course of disposing of the appeal, the Tribunal made some observations regarding assessment of income. Referring to the order of this Tribunal in Emgeeyar Pictures Pvt. Ltd. v. DCIT (2016) 6 TMI 418, a copy of which is available at page 6 of the paper-book, the Ld. repres .....

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the assessee in furnishing the particulars required for completion of assessment, are barred by limitation. The Ld. representative has also placed reliance on the judgment of Madras High Court in Goldmine Investments v. DCIT (2010) 237 CTR 196. 5. On the contrary, Shri V. Nandakumar, the Ld. Departmental Representative, submitted that the assessment for the assessment year 2004-05 was completed by the Assessing Officer by an order dated 29.12.2006. The assessee carried the matter before the CIT( .....

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und that spreading over of the investments over a period of construction was not beyond the powers of the CIT(Appeals). Accordingly, the matter was remitted back to the file of the Assessing Officer for reconsideration in accordance with law. Therefore, the Assessing Officer has no other alternative to apportion the cost of construction for all the years under consideration. In order to give effect to the order of the ITAT to apportion the cost of construction, the Assessing Officer has no other .....

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r side and perused the relevant material available on record. When the appeal of the Revenue was considered by this Tribunal, this Tribunal by an order dated 11.10.2012, found that spreading of unaccounted investments over the period of construction of the property was not beyond the powers of the CIT(Appeals). Accordingly, the matter was remitted back to the file of the Assessing Officer for reconsideration in accordance with law. There is no specific direction from this Tribunal for reopening .....

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lf only to the assessment year for which the appeal is filed either by the assessee or by the Revenue relates to. Since the appeals relating to assessment years 2002-03 and 2003-04 are not pending before this Tribunal, this Tribunal is of the considered opinion that even a casual reference made by ITAT with regard to assessment years of construction cannot be treated as direction or finding. When this issue came before another co-ordinate Bench of this Tribunal in Emgeeyar Pictures Pvt. Ltd. (su .....

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n was made to deal with the issue before them as to whether the capital gains is attracted in assessment year 2003-04 and 2004-05; but there is no specific finding or direction that it is assessable to tax in assessment year 2001-02. Even if it is assumed that there is a finding or direction, in my humble opinion, the Hon'ble Madras High Court, in the case of M/s Goldmine Investments (supra), has considered an identical issue wherein it was held that in respect of any assessment year wherein .....

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the period of limitation. In the light of the above findings, the reframed questions are answered as follows: (1) The notice issued u/s 148 r.w.s 150(1) of the Act, cannot be said to be based on any finding or direction issued by the ITAT in I.T.A.Nos.327 & 328/Mds/2010. (2) Even otherwise the notice issued u/s 148 of the Act is barred by limitation. In view of the above, this Tribunal is of the considered opinion that reopening of assessments under Section 147 of the Act for assessment yea .....

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