TMI Blog2018 (12) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... he legal issue with respect to revisiting an issue in the subsequent proceedings under section 153A read with section 143(3) of the Act which was already adjudicated in the scrutiny assessment proceedings earlier under section 143(3) read with sections 147 and 148 of the Act in favour of the assessee and were on the same issue proceedings under section 263 of the Act was initiated and dropped, we restrain ourselves from adjudicating the issue with respect to deduction under section 54F of the Act on the merits - Decided in favour of assessee. - I. T. A. No. 366/Chennai/2018 - - - Dated:- 16-10-2018 - A. Mohan Alankamony (Accountant Member) And Duvvuru RL Reddy (Judicial Member) For the Assessee : C. A. Jharna B. Harilal, Fellow Chartered Accountant For the Department : S. Bharath, Commissioner of Income-tax ORDER A. MOHAN ALANKAMONY (ACCOUNTANT MEMBER).- 1. This appeal by the assessee is directed against the order passed by the learned Commissioner of Income-tax (Appeals)-19, Chennai dated January 5, 2018 in I. T. A No. 95/16-17 for the assessment year 2008-09 passed under section 250(6) read with section 143(3) of the Act. 2. The assessee has raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anate from the search proceedings. While doing so the learned Commissioner of Income-tax (Appeals) relied on the following decisions of the higher judiciary : (i) The Supreme Court in the case of CST v. Modi Sugar Mills Ltd. 12 STC 182 (SC) ; AIR 1961 SC 1047 observed as under (page 190 of 12 STC) : 10 . . . In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed that it cannot imply anything which is not expressed, it cannot import provisions in the statutes as to supply any assumed deficiency. (ii) In the case of Goodyear India Ltd. v. State of Haryana [1991] 188 ITR 402 (SC) ; [1990] 2 SCC 71 (page 424 of 188 ITR) : It has been said on numerous occasions that fiscal laws must be strictly construed, words must say what these mean, nothing should be presumed or implied, these must say so. The true test must always be the language used. (iii In the case of Union of India v. Dharamendra Textile Processors [200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and with out conducting necessary enquiries. (v) Subsequently consequent to search action initiated under section 132 of the Act, the Commissioner of Income-tax (Appeals) dropped the proceedings under section 263 of the Act on February 18, 2014 on the ground that the proceedings under section 153A of the Act has overtaken the proceedings under section 263 of the Act. (vi) Thereafter the learned Assessing Officer passed order under section 143(3) read with section 153A of the Act vide order dated March 31, 2016 disallowing the claim of deduction under section 54F of the Act to the extent of ₹ 46,19,92,974. (vii) On appeal, the learned Commissioner of Income-tax (Appeals) vide his order dated January 5, 2018 confirmed the order of the learned Assessing Officer by upholding the view that, (a) The learned Commis sioner of Income-tax had rightly dropped the proceedings under section 263 of the Act as infructuous since proceedings under section 153A of the Act was initiated, (b) The learned Assessing Officer in his order dated March 31, 2016 under section 153A read with section 143(3) of the Act has judicially adjudicated the issue with respect to the claim of deduction u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, 2010 wherein it was held that once an issue is settled in the assessment prior to search, the same issue cannot be revisited in the assessment proceedings under section 153A of the Act because only a pending assessment shall abate on initiation of search and not the concluded assessment. It was further submitted that a similar view was also endorsed in the case Asst. CIT v. Mrs. Uttara S. Shorewala (2011) in I. T. A. Nos. 5506 and 5507/Mum/2009. Reliance was also placed in the decision of the hon'ble Karnataka High Court in the case of Canara Housing Development Company v. CIT (2014) in I. T. A. No. 38 of 2014 . It was therefore pleaded that the addition made by the learned Assessing Officer in his order passed under section 143(3) of the Act read with section 153A of the Act dated March 31, 2016 by disallowing the claim of deduction under section 54 of the Act which was further confirmed by the learned Commissioner of Income-tax may be deleted. The learned Departmental representative on the other hand relied on the orders of the learned Revenue authorities and argued in support of the same. 6. We have heard the rival submissions and carefully perused the materials on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 54F of the Income-tax Act, 1961. The authorised representative of the assessee also mentioned that the assessee has many case law in support of the claim made. The authorised representative of the assessee has quoted the following case laws : (a) The decision of the Income-tax Appellate Tribunal, Delhi incase of Addl. CIT v. Narendra Mohan Uniyal [2009] 34 SOT 151 (Delhi). (b) The decision of the High Court of Madras in the case of CIT v. Smt. M. Kalpagam [1997] 227 ITR 733 (Mad) ; [1997] 93 Taxman 283 (Mad) On a perusal of the above cases, specially the decision of the honourable Income-tax Appellate Tribunal, Delhi, the assessee can claim any extent of land appurtenant to building as long as it is continuous stretch of land. In the present case also the whole area of 43.56 acres of the land is continuous and claim of the assessee has to be accepted inspite of large area of the land based on the above case laws mentioned by the assessee. Hence, the assessment for the assessment year 2008-09 is completed by accepting the return of income submitted by the asses see. Thereafter the learned Commissioner initiated proceedings under section 263 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax has passed on the baton to the Assessing Officer who had jurisdiction under section 153A of the Act. This action of the learned Revenue author ities is not appropriate. What proceedings are to be completed under section 263 of the Act cannot be passed on to the proceedings initiated under section 153A of the Act subsequently because proceeding under section 263 of the Act cannot be abated in such situation. Moreover in the case of the assessee even the proceedings initiated under section 263 of the Act is debatable considering the decision rendered in the case of CIT v. Kelvinator of India Ltd. cited supra wherein it was held that revisiting an issue decided in an scrutiny assessment proceedings under section 143(3) of the Act amount to change of opinion and the decision rendered by the hon'ble jurisdictional High Court in the case CIT v. Smt. M. Kalpagam reported in [1997] 227 ITR 733 (Mad) on the merits. Further the Act does not sanction an issue to be revisited on scrutiny again and again invoking various provisions of the Act over a prolonged extended period of time which will frustrate the period of limitation provided under the various provisions of the Act. Hence we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of land is appurtenant to the building. On considering the facts arising in this case and after looking into the plan of the building, the Tribunal came to the conclusion that the entire extent of ten grounds and 29 square feet was used by the owner of the property by way of residence, pathway, sit-outs, servants quarters, cowsheds etc. There fore, on reappraising the fact, the court would not disturb the finding arrived at by the Tribunal on this aspect. It must also be remembered that this case is concerned with the assessment made in the assess ment year 1975-76 which is about 20 years ago. Therefore, looking at the standard of living prevalent during those times, it cannot be said that a person living in a house situated with an area of ten grounds and 29 square ft. that too far away from the city, cannot be considered in the same standard in which one is looking at the extent of the property in the modern days. Thus, there is no infirmity in the order passed by the Tribunal in treating the entire extent of land of ten grounds and 29 square feet as appurtenant to the main building.- CIT v. Zaibunnisa Begum [1985] 151 ITR 320 (AP) ; [1985] 46 CTR 48 (AP) ; TC 22R 289, Larsen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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