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TMI Blog2022 (11) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Ward 1(3), Chennai for the assessment year 2011-12 u/s.143(3) r.w.s. 147 of the Act vide order dated 18.12.2018. 2. At the outset, it is noticed that this appeal is delayed by 285 days. This appeal was filed before Tribunal only on 02.03.2022 and as per Form 36, the order of CIT(A) was received on 29.03.2021. The assessee has filed condonation petition stating that the delay was due to the spread of Covid-19 pandemic and nationwide lockdown imposed by the Government from 25.03.2020. The assessee has also stated that the Hon'ble Supreme Court in Miscellaneous Application No.665 of 2021 vide order dated 23.03.2020 has given directions that the delay are to be condoned during this period 15.03.2020 to 14.03.2021 and they have condoned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come that escaped the assessment which comes to the notice of the assessing officer not in respect of any other item. 4. The PCIT failed to note that revision under section 263 of the Act cannot be invoked for assessing income, which could not have been assessed by the assessing officer himself. The assessing officer's jurisdiction to assess any other income chargeable to tax which has escaped the assessment and which comes to his notice during the course of the reassessment arises only if he assesses income in respect of which he had reason to believe and not otherwise. The PCIT cannot consider, the order to be erroneous, when the assessing officer did not have any belief of escapement of income in respect of cost of improvement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... response to notice u/s.148 of the Act at Rs.20.56 lakhs. 5. The PCIT issued a show cause notice u/s.263 of the Act dated 20.11.2020 and assessee was asked to show cause as to why the assessment order passed u/s.143(3) r.w.s 147 of the Act be not held as erroneous and prejudicial to the interest of Revenue for the reason that as per the revised computation of income, schedule 2, the assessee has claimed Rs.34.64 lakhs as cost of improvement during the financial year 2004-05 while arriving at the long term capital gain and the cost of improvement was also indexed. The nature of expenditure as well as the details regarding the improvement was not produced. The assessee explained the cost of improvement incurred during financial year 2004-05 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of expenditure as well as the details regarding the improvement was not produced." 6.1 The ld.counsel for the assessee in view of the above stated that the issue is squarely covered by the decision of the Delhi Bench of this Tribunal in the case of Dholadhar Investment Pvt. Ltd., vs. CIT in ITA No.628/Del/2010 vide order dated 31.10.2011. He also relied on the decision of Hon'ble Supreme Court in the case of CIT vs. Alagendran Finance Ltd., (2007) 293 ITR 1, wherein the Hon'ble Supreme Court has considered the Explanation 'C' to section 263(1) of the Act and noted that the Explanation 'C' deals with the powers of CIT in revision, which is clear and unambiguous, as in terms thereof, the doctrine of merger applies only in respect of spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because the same had not been considered and decided in the appeal filed by the assessee. This is sufficient to answer the question which has been referred." We, therefore, are clearly of the opinion that in a case of this nature, the doctrine of merger will have no application. 14. The Madras High Court in A.K. Thanga Pillai (supra), in our opinion, has rightly considered the matter albeit under Section 17 of the Wealth Tax Act, 1957 which is in pari materia with the provisions of the Act. Relying on Sun Engineering Works P. Ltd (supra), it was held: "Under section 17 of the Wealth-tax Act, 1957, even as it is under section 147 of the Income-tax Act, proceedings for reassessment can be initiated when what is assessable to tax has es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in view the facts and circumstances of this case and, in particular, having regard to the fact that the Commissioner of Income Tax exercising its revisional jurisdiction reopened the order of assessment only in relation to lease equalization fund which being not the subject of the reassessment proceedings, the period of limitation provided for under Sub-section (2) of Section 263 of the Act would begin to run from the date of the order of assessment and not from the order of reassessment. The revisional jurisdiction having, thus, been invoked by the Commissioner of Income Tax beyond the period of limitation, it was wholly without jurisdiction rendering the entire proceeding a nullity. 7. On the other hand, the ld.CIT-DR relied on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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