TaxTMI 
TaxTMI 
TaxTMI 
2023 (2) TMI 1019
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.... to have given an advance of Rs.5,85,00,000/- for purchase of property which was claimed as application of income in that assessment year. AO noted that in A.Y. 2008-09, the amount of property advance was received back but the amount that was received back was not included as income in the year under consideration. Accordingly, the reasons were recorded and notice u/s 148 of the Act was issued on 26.08.2014 and served on the assessee. Thereafter, the case of the assessee was taken up for scrutiny and consequently, the assessment was framed u/s 147/143(3) of the Act vide order dated 31.03.2016 and the total income of the assessee was determined at Rs.4,94,76,236/-. 4. Aggrieved by the order of AO, assessee carried the matter before CIT(A) who vide order dated 17.08.2018 in Appeal No.268/2016-17 granted substantial relief to the assessee. Aggrieved by the order of CIT(A), Revenue is now in appeal and has raised the following grounds: "1. Whether on the facts of the case and in law the CIT(A) has erred in directing to allow the claim u/s 11(2) of the I.T. Act which was only made during proceedings initiated u/s 148 of the I.T. Act. 2. Whether the CIT(A) has erred in ignoring the ....
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....upported the order of AO. 7. Learned AR on the other hand reiterated the submissions made before the AO and CIT(A) and placed reliance on the decision of Hon'ble Delhi High Court in the case of Association of Corporation and Apex Societies Handlooms vs. ADIT and the decision of Hon'ble Apex Court in the case of CIT vs. Nagpur Hotels Associations (2001) 247 ITR 201. He took us through the findings of CIT(A) and supported the order of CIT(A). 8. We have heard the rival submissions and perused the material available on record. We find that the issue has been decided by CIT(A) by observing as under: "4.2.3 I have considered the impugned order and the submissions of the appellant. It is not in dispute that the amount of Rs, 5,85,00,000/-, which was the reason on the basis of which notice under section 148 was issued, was offered as income in the return filed in response to notice under section 148. The provisions of section 148(1), inter alia, provide that a provisions of the Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139. Further, it is to be noted that section 2(5) defines assessment to include reassessment....
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....benefit of Section 11 of the said Act. 4. On the other hand, the learned counsel for the assessee/appellant submitted that assessment included reassessment as was evident from Section 2(8) of the said Act. Therefore, whether the assessment was an original assessment or as a part of a re-assessment, it would not make any difference and that the assessee would be entitled to file the said Form-10 in either of the two proceedings and the revenue would have to take the said form that into account. 5. Having considered the arguments advanced by the counsel for the parties on this aspect of the matter we feel that it would be necessary to set out the reasoning adopted by the Supreme Court in Nagpur Hotel Owners Association (supra). The Supreme Court held as under- "It is abundantly clear from the wording of sub-section (2) of section 11 that it is mandatory for the person claiming the benefit of section 11 to intimate to the assessing authority the particulars required, under rule 17 in Form No. 10 of the Rules. If during the assessment proceedings, the Assessing Officer does not have the necessary information, question of excluding such income from assessment does not arise at all....
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.... benefit of such exclusion. Furthermore, once the assessment is so completed it would be futile to find fault with the assessing authority for having included such income in the assessable income of the assessee. The Supreme Court held categorically that without the particulars of this income as given in Form-10, the assessing authority cannot entertain the claim of the assessee under section 11 of the Act and therefore, compliance with the requirement of the Act will have to be at any time before the assessment proceedings are completed. The Supreme Court also observed that any claim for giving the benefit of section 11 on the basis of information supplied subsequent to the completion of assessment would mean that the assessment order will have to be reopened. The Supreme Court noticed that the Act did not contemplate such re-opening of the assessment. 6. The learned counsel for the revenue relied on this portion of the finding of the Supreme Court to contend that during re-assessment proceedings, the said Form-10 could not be furnished by an assessee. However, we have to keep in mind the fact that while reopening of an assessment cannot be asked for by the assessee on the groun....