2019 (1) TMI 937

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ed by this common order. ITA No. 5005/Mum/2017, A.Y 2008-09. 2. We shall first take appeal of the assessee in ITA. No. 5005/Mum/2017 concerning assessment year 2008-09 for adjudication purposes. The grounds of appeal raised by the assessee reads as under: "Reopening of assessment 1. The Ld. CIT(A)-3, Mumbai erred on facts and in law in upholding the reopening of assessment u/s 147 by holding that "The appel lant has not provided out any reasons to not invoke Sec. 147 of the Act. 2. The Ld.CIT(A) erred on facts and in law in not considering the submissions of the appel lant in connection with the reopening of assessment. 3. The Ld. CIT(A) erred in not appreciating that there was no failure on the par....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ssee the income f rom house property at Rs. 155/- as returned by the appel lant. C. General 10. The above Grounds of Appeal are wi thout prejudice to the one another and the appel lant craves leave to add, al ter, amend, delete or modify6 any of the above grounds of appeal". 3. When the matter was called for hearing, the Ld. Authorized Representative for the assessee at the outset submitted that the A.O has wrongly assumed jurisdiction u/s 147 of the Income-tax Act, 1961 ('the Act') without fulfilment of prerequisites of cardinal nature and consequently passed an order u/s 143(3) r.w.s 147 of the Act which is null and void. The Ld. Authorized Representative of the assessee accordingly submitted that he first seek to press incura....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... obvious from the reasons recorded itself that all the relevant facts were placed at the time of the original assessment and the A.O had completed assessment based on such facts. It was inter-alia made known to the A.O that assessee owns two properties at the time of the original assessment. Therefore, the taxability of deemed rental income with reference to one of properties in terms of Sec. 23(1) r.w.s 23(4) of the IT Act was presumably present to the mind of the A.O. Thereafter, the Ld. AR for the assessee submitted that from a bare reading of the reasons recorded, it will be apparent that there is no allegation whatsoever on the part of the A.O as to whether there is any failure on the part of the assessee to disclose material fats full....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... in main provision as well as the first proviso are therefore required to be followed scrupulously to initiate reassessment proceedings. As per the first proviso, no action can be taken u/s 147 of the Act unless there is a failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. The reasons disclosed to the assessee in fact indicates otherwise. From the reasons recorded it appears that the relevant facts were made available to the A.O at the time of the original assessment. Coupled with this, we do not see any allegation from the A.O against the assessee in the reasons recorded under section 148(2) of the Act towards any such failure on the part of the assessee to disclose relevant facts f....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... house property u/s 23(1)(a) of the Act. The Ld. AR for the assessee next referred to various judicial pronouncements including the decision of Hon'ble Bombay High Court in the case of CIT Vs. Tip Top Typography, [2014] 368 ITR 330 (Bombay), wherein it has been held that for determination of ALV, the municipal rentable value can be adopted by the A.O in appropriate circumstances. The Ld. Authorized Representative of the assessee accordingly submitted the action of the lower authorities in enhancing the deemed income by way of substituted ALV is not justified. 12. The Ld. DR, on the other hand, relied upon the orders of the authorities below. 13. We have carefully considered the rival submissions. It is the case of the assessee tha....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....serves to be set aside and the additions made on this score requires to be cancelled. 14. In the result grievance of the on this score is resolved in favour of the assessee. 15. Second ground concerns quantification of long term capital loss on transfer of mutual fund units. 16. As pointed out on behalf of the assessee, certain evidences are alleged to have not been produced to support the revised claim before the lower authorities. In the circumstances we consider it expedient to restore the issue back to the file of the A.O to enable the assessee to avail afresh opportunity for corroboration of the revised loss so claimed and decide the issue in accordance with law denovo. Needless to say, the A.O shall adjudicate the issue after....