TaxTMI 
TaxTMI 
2020 (2) TMI 991
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.... land, and the same has being already taxed in the hands of DSP Finprint Ltd by the department. And other transfer expenses of Rs.l,0O,OOO/- being expenses related to the sale of Land. The claim of assessee being legal and proper.' deduction for the same requires to be allowed. The appellant craves leave to acid, amend alter or otherwise raise any other d of appeal. 3. Brief facts relating to this issue are that the assessee is an individual earning income from other sources. The return for Assessment Year 2008-09 filed on 24.6.2009 declaring income of Rs. 23,80,135/-. Case selected for scrutiny under and Notices u/s 143(2) and 142(1) of the Act were served upon the assessee. Assessment completed u/s 143(3) of Act at Rs. 63,20,135/- after making addition of Rs. 39,40,000/- on account of long term capital gain to the declared income. Penalty proceedings u/s 271(1(c) for concealment of income was also initiated. The case was reopened by issuance of notice u/s 148 was issued to the assessee. In response to the notice assessee filed return declaring the same income as was declared in the original return of income. The assessment u/s 143(3) r.w.s. 148 of the Act was completed on ....
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.... u/s 143(3) dated 30.12.2010. That when no addition was made in order u/s 143(3)/147 other than the one which was made in order u/s143(3), the order passed u/s 147 is null and void. (c) Further if assessing officer does not assess income for which reasons were recorded u/s 147, he cannot assess other income u/s 147. For this proposition reliance is placed on following decisions:- (i) Hon'ble High Court of Bombay in the case of Commissioner of Income Tax vs. Jet Airways (I) Ltd reported in 78 CCH 0365 Mum HC. (ii) Hon'ble High Court of Delhi in the case of Ranbaxy Laboratories Limited vs. ,Commissioner of Income Tax reported in ITA No. 148/2008 Del HC. (iii) Hon 'ble IT AT Kolkata Bench "B" in the case of Dipti Mehta vs. ITO Ward 43(2) reported in ITA No. 2032/Ko1l2018 Kol Trib. 1.9 That proviso 3 to Section 147 reads as under:- {[Provided also] that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matter of any appeal, reference or revision, which is chargeable to tax and has escaped.} That as per the proviso mentioned above, income which are not the subject matter of the appeal can o....
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..... Counsel for the assessee. 8. We will first take up the legal issue raised in Ground No.1 wherein the assessee has challenged CIT(A) finding rejecting the claim of the assessee regarding wrong reopening of the case u/s 148 of the Act. Ld. Counsel for the assessee relying on the written submission contended that the reopening so made is illegal and wrong and the order so passed requires to be quashed. 9. We observe that the case of the assessee was selected for scrutiny and after serving notices u/s 143(2) of the Act on 21.8.2010 assessment was completed u/s 143(3) of the Act on 30.12.2010 after making addition of Rs. 39,40,000/- on account of denial of claim of cost of acquisition made by the assessee. Assessee has challenged this addition of Rs. 39,40,000/- by way of filing appeal to Ld. CIT(A) which is still pending to be disposed. 10. Subsequently notice u/s 148 of the Act dated 22.2.2011 was served on the assessee recording the reason that the assessee had violated the provisions of Section 54F of the Income Tax Act by way of withdrawing Rs. 26,00,000/- from the amount deposited under the Capital Gain Account Scheme. This amount was withdrawn on 29.9.2010 and it was liable....
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....ssues in respect of which proceedings are initiated but he was not so justified when the reasons for the initiation of those proceedings ceased to survive. Consequently, we answer the first part of question in affirmative in favour of Revenue and the second part of the question against the Revenue." 15. Hon 'ble IT AT Kolkata Bench "B" in the case of Dipti Mehta vs. ITO Ward 43(2) reported in ITA No. 2032/Ko1/2018 KolTrib 'held as under:- "We note that in the present case in hand, the facts on the basis of which the reasons were recorded by AO for invoking jurisdiction for reopening the assessment was that the assessee had taken accommodation entries for loss of Rs. 2,71,5001- from Mahasagar Group of Cases which fact led the AO to the belief that income has escaped assessment. However, in the reassessment order the AO has not made any addition/disallowance on this Issue. So, without making any addition/disallowance on this accommodation entry for loss of Rs. 2,71,500/-, the AO ought not to have proceeded to re-assess the assessee on other incomes like the addition of STCG and disallowance u/s 14A of the Act. The jurisdictional fact which empowered the AO to invoke the ju....