TaxTMI 
TaxTMI 
2014 (4) TMI 742
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.... Briefly stated, the Tribunal, vide its order dated 28.03.2011 in the assessee's case in ITA No. 7482/Mum/2005 for Assessment Year 2002-03 observed that since the assessee received consideration in part and the granted developer the right to enter the plot to carry out construction work of additional built up area on 09.02.2000 itself, by virtue of deeming provisions of section 45(1), the capital gain was to be brought to tax for assessment year 2000-01 and the not in the year 2002- 03. On this basis of the said observation of the Tribunal, the AO issued the notice to the assessee on 24.08.2007 u/s 148 read with section 150 and the same was served on the assessee on 27.08.2007 along with copy of the reasons for initiating proceedings u/s 14....
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....of the Hon'ble Apex Court CIT Vs. Green World Corporation 314 ITR 81 (SC) to support the proposition that the observation of the Tribunal in the assessee's case for the Assessment Year 2002-03 is neither a finding nor a direction as regards the AY 2000-01 is concerned for the purpose of section 150 of the Act. On the other hand, the Ld.DR has relied on the decision of the Punjab & Haryana High Court of in the case of Parveen Kumari Vs. CIT and another (1999) 237 ITR 339 (P&H) to support case of the revenue. 2.3 We have heard both the sides and perused the material on these grounds of appeal. It is pertinent to mention that the assessee, in ITA No. 7482/Mum/2005 for the AY 2002-03, has disputed the assessment of long term capital gain amo....
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....ection 150(1) of the Act. 2.3.1 In the case of ITO Vs. Murlidhar Bhagwan Das (supra), the Hon'ble Apex Court has held that the word 'finding' can be only that which is necessary for the disposal of an appeal in respect of an assessment of a particular year and has further been held that the appellate authority may incidentally find that the income belongs to another year, but that is not finding for the disposal of an appeal in respect of the assessment year in question. Similarly, the 'direction' has been construed to mean a direction which the appellate or revisional authority as the case may be is empowered to give under the sections mentioned therein. The Tribunal in the case of Smt. Neelam Gupta Vs. ITO (supra) quashed the notice u/....
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....is not before the authority as held by the various judicial forums. The Hon'ble Bombay High Court in the case of Smt.Sabita Bhagwandas Shah Vs. ITO (1996) 59 ITR 652, while interpreting the sections 31, 34 (1) & (2) of the Income Tax Act 1922, (corresponding to the provisions of sections 148, 153 and 253 of 1961 Act) has held that 'finding' means the finding necessary for giving relief in respect of the assessment year in question and the proviso to section 34(3) of the 1922 Act does not save time prescribed under section 34(1) in respect of escaped assessment of any year other than that which has been the subject matter of appeal or revision. The said decision of the jurisdictional High Court has been rendered after considering the decisio....
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....'ble Bombay High Court in the case of Rakesh N. Dutt Vs. ACIT (supra) has held that once section 150 of the Act is not applicable to the case of the assessee, the reopening of the assessment beyond the period of six years from the end of the relevant assessment year would be time barred. In view of the aforementioned discussion, we do not find force in the arguments of the Ld.DR by placing reliance on the decision of the Punjab & Haryana High Court in the case of Parveen Kumari Vs. CIT (supra). Therefore, we are of the considered view that the Ld.CIT(A) is not justified in confirming the validity of the notice issued u/s 148(1) and hence the impugned notice, the consequent reopening proceedings and the reassessment order stand quashed. Resu....