TMI Blog2023 (9) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... es which were the subject matter of the reasons recorded u/s 148(2) of the Act were not added to the income of the assessee. We note that the Coordinate Bench has followed the decision of Hon'ble Calcutta High Court in the case of CIT Vs. M/S Infinity Infotech Parks Ltd [ 2014 (9) TMI 1142 - CALCUTTA HIGH COURT] on the same issue. The Coordinate Bench has also followed the decision of Hon'ble Bombay High Court in the case of CIT Vs. Jet Airways (I) Ltd.[ 2010 (4) TMI 431 - HIGH COURT OF BOMBAY] and Ranbaxy Laboratories Ltd. [ 2011 (6) TMI 4 - DELHI HIGH COURT] Therefore, respectfully following the ratio laid down by the Hon'ble Courts we are hereby quash the assessment framed by the AO u/s 143(3) r.w.s. 147 of the Act and accordingly, the additional ground raised by the assessee is allowed. - Sri Rajesh Kumar, Accountant Member And Sonjoy Sarma, Judicial Member For the Assessee : Sh. Miraj D. Shah, A/R. For the Department : Sh. Gautam Patra, Addl. CIT, D/R. ORDER PER RAJESH KUMAR, ACCOUNTANT MEMBER: Both these appeals preferred by the assessee are against separate orders of Learned Commissioner of Income-tax (Appeals)- NFAC, Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cases of National Thermal Power Co. Ltd. (supra) and Jute Corporation of India Ltd. (supra). In the case of National Thermal Power Co. Ltd. (supra) Hon'ble Court has held as under: Under section 254, the Tribunal may after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The power of the Tribunal in dealing with appeals is, thus, expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. If, for example, as a result of a judicial decision given while the appeal is pending before the Tribunal, it is found that a non-taxable item is taxed or a permissible deduction is denied, there is no reason why the assessee should be prevented from raising that question before the Tribunal for the first time, so long as the relevant facts are on record in respect of that item. There is no reason to restrict the power of the Tribunal under section 254 only to decide the grounds which arise from the order of the Commissioner (Appeals). Both the assessee as well as the Department have a right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to consider that question in order to correctly assess the tax liability of an assessee. The reframed question, therefore, is answered in the affirmative, i.e. the Tribunal has jurisdiction to examine a question of law which arises from the facts as found by the authorities below and having a bearing on the tax liability of the assessee. We remand the proceedings to the Tribunal for consideration of the new grounds raised by the assessee on the merits. 6. We also find merit in the submission of the assessee that the additional ground if not taken in the appeal memorandum or before the lower authorities the appellate authority has jurisdiction to entertain and alternatively be raised during the course of hearing which is in consonance with the ratio laid down by the Hon'ble Apex Court in the case of CIT Vs. Mahalakshmi Textile Mills Ltd. [1967] 66 ITR 710 (SC) wherein the Hon'ble Court has held as under: There is nothing in the Income-tax Act which restricts the Tribunal to the determination of questions raised before the departmental authorities. All questions whether of law or of fact which relate to the assessment of the assessee may be raised before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ened u/s 147 of the Act by issuing notice u/s 148 of the Act dated 26.03.2019. We observe from the reasons recorded u/s 148(2) of the Act that the AO has re-opened the assessment on the ground that Rs. 6 Lakh has escaped assessment within the meaning of Section 147 of the Act as the assessee has not disclosed the full and true particulars necessary for the assessment. The AO noted that Sh. Mohan Kumar Roy has purchased a property (a piece of land measuring 02 cottah 08 chittack, 41 sq.feet) for a consideration of Rs. 18 Lakh with two partners namely Mrs. Archana Roy and Mr. Mukesh Roy and the deed of conveyance was registered on 23.09.2011 in the office of ADSR Alipore, South 24 Parganas. According to the AO the assessee s share in the said investment is Rs. 6 lakh which has not shown as addition to his assets. For the sake of ready reference, the reasons are reproduced as under: During the course of scrutiny proceedings, which were reopened u/s 147, for the AY 2013-14 of Smt Archana Roy (PAN- AUAPR9308J), (who is wife of the assessee Sri Mukesh Roy-another partner in project), it was revealed that the assessee Sri Mohan kumar Roy, in the financial year 2011-12 has purchased a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e addition in respect of loans as discussed above of Rs. 17,92,521/-. In our opinion, the AO has no jurisdiction to make any other addition when the issues which were subject matter of the reasons recorded of Section 148(2) of the Act were not added in the assessment order. The case of the assessee is supported by the decision of Coordinate Bench in the case of Shree Prakash Chhawchharia (HUF) Vs. ITO (supra) wherein the Hon'ble Coordinate Bench has held that the AO has no jurisdiction to make the addition in respect of any other item which were not the subject matter of the reasons recorded when the issues which were the subject matter of the reasons recorded u/s 148(2) of the Act were not added to the income of the assessee. We note that the Coordinate Bench has followed the decision of Hon'ble Calcutta High Court in the case of CIT Vs. M/S Infinity Infotech Parks Ltd (supra) on the same issue. The Coordinate Bench has also followed the decision of Hon'ble Bombay High Court in the case of CIT Vs. Jet Airways (I) Ltd. reported in [2011] 331 ITR 236 (Bombay) and Ranbaxy Laboratories Ltd. Vs. CIT [2011] 336 ITR 136 (Delhi). 12. Therefore, respectfully following the ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not been disclosed. Ld. A/R submitted that there was total non-application of mind by the AO. Ld. A/R also referred to the original assessment framed a copy of which is placed at page 56 to 63 of the paper book and stated that the issue has been discussed by the AO during the course of assessment proceedings by calling upon to furnish the necessary details from the assessee and a complete para has been devoted in the assessment order on the said issue. Ld. A/R submitted that since the issue has been examined by the AO in the assessment proceedings which culminated in framing of assessment u/s 143(3) of the Act dated 19.02.2016 and thereafter, the re-opening is merely on the issue which has been examined by the AO during the original assessment proceedings as stated herein above that too beyond a period of four years is not permissible under the Act in terms of the proviso to Section 147 of the Act. Ld. A/R submitted that the said proviso provides that the re-opening after a period of four years can only be made if the escapement of income has resulted from the non-disclosure of any material fact either in the return of income or in the assessment proceedings. Ld. A/R stated in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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