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TMI Blog2019 (10) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... r the following reliefs :- "(A). Issue a writ of certiorari and/or a writ of mandamus and/or any other writ, direction or order to quash and set aside the notice dated 30.3.2018 under section 148 of the Income-tax Act, 1961 annexed hereto at Annexure-C along with objection rejection order dated 20.8.2018 annexed hereto at Annexure-F for proceeding and completing Reassessment proceedings." 2.00. The case of the writ applicant in his own words as pleaded in the writ application is as under :- "(2). The petitioner is an individual being regularly assessed to tax by the Income Tax Officer at Ahmedabad. Search under section 132 was conducted in the case of Kalol Prajapati Group on 6.11.2012. Warrant u/s. 132 was issued in the case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commence reassessment proceedings. However, vide order dated 20.8.2018, the respondent rejected objections of the petitioner. (5). In the light of the aforesaid facts and circumstances and legal background, being seriously aggrieved by reopening proceedings of the objections rejection order dated 20.8.2018, the petitioner respectfully has approached this Hon'ble Court and the facts and submissions as reflected from the records and annexures are appended to this petition." 3.00. The main ground of challenge to the impugned notice of reassessment under section 148 of the Income-tax Act, 1961 (for short "the Act") is as under :- "The petitioner respectfully submits that the addition of Rs. 7.10 lakh sought to be made by the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances, the assessment which is sought to be reopened could be said to have merged with the order of Commissioner (Appeals). 6.00. In the aforesaid context, we may refer to a decision of this Court in the case of Radhawami Salt Works Versus Asst. Commissioner of Income Tax and another, rendered in Special Civil Application No.16644 of 2012 decided on 14/06/2017 wherein this Court observed as under :- "14. Yet another reason on which we cannot permit reopening on the grounds stated in the reasons is that the assessee carried the issue in appeal before the Appellate Commissioner and canvassed that to tax the income as capital gain was wrong. The Commissioner having dismissed the appeal, the issue is pending before the Tribunal in asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "15. In the facts of the present case, insofar as unexplained cash payment of Rs. 3,00,000/- made to M/s J.P. Iscon Pvt. Ltd. as revealed during the course of search in the case of M/s J.P. Iscon Pvt. Ltd. is concerned, the very same Rs. 3,00,000/- was subject matter of the earlier proceedings under section 143(3) read with section 153A of the Act, wherein on the basis of the material seized during the course of search on the premises of the petitioner, it was found that the petitioner had paid Rs. 3,00,000/- in cash for the assessment year under consideration to M/s J.P. Iscon Pvt. Ltd. Upon conclusion of those proceedings, an assessment was framed under section 143(3) read with section 153A of the Act, whereby the amount of Rs. 3,00,000 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 3,00,000/- made under section 69 of the Act is concerned. Thus, the order of the Assessing Officer insofar as the issue in respect of which the assessment is sought to be reopened, has merged with the order passed by the Commissioner (Appeals). The third proviso to section 147 of the Act postulates that the Assessing Officer may assess or re-assess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax or escaped assessment. Thus, the third proviso to section 147 of the Act permits the Assessing Officer to assess or re-assess only such income which was not subject matter of appeal, reference or revision. In the present case, the Assessing Of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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