2010 (10) TMI 104 - HC - Income Tax

Income from house property - brokerage and commission and expenses relating to building and property - mixed income arising out of profit and gains of business and real estate as well as income from house property both - Held that - Commissioner of Income Tax (Appeal) has taken an examining profit and loss account attached to the returns and has found that the brokerage commission and administrative expenses is allowable deduction as such granted relief - on the same fact and point on earlier occasion without there being any change of position of law decides the matter there cannot be different decision in the subsequent year for the same assessee - judgment and order of the learned Tribunal is not sustainable and the judgment of the commissioner of Income Tax (Appeal) is restored on file - appeal is disposed of

Issues Involved:
1. Legality of proceedings under Section 147 read with Section 148 of the Income Tax Act.
2. Reassessment based on a mere change of opinion.
3. Jurisdictional error by the Tribunal in reversing the CIT (Appeals) order and restoring the Assessing Officer's order.

Issue-wise Detailed Analysis:

1. Legality of Proceedings under Section 147 read with Section 148 of the Income Tax Act:

The appellant contended that the proceedings under Section 147 read with Section 148 were illegal, invalid, and without jurisdiction. The appellant argued that the return was not assessed under Section 143(3) but only an intimation was made under Section 143(1), hence there could not be any escapement of income. The appellant cited Supreme Court decisions to support their contention that the reassessment proceedings were invalid. However, the Court noted that the appellant had not raised this issue before the Assessing Officer, CIT (Appeals), or the Tribunal. The Court held that the appellant waived this point by not raising it earlier, and thus, legally estopped from raising it at this stage. The Court referred to the Supreme Court's interpretation in Assistant Commissioner of Income Tax v. Rajesh Jhavery Stock Brokers Pvt. Ltd., which clarified that the Assessing Officer could initiate reassessment proceedings even when only an intimation under Section 143(1) had been issued. Therefore, the Court refrained from answering the first two questions regarding the legality of the proceedings under Sections 147 and 148.

2. Reassessment Based on Mere Change of Opinion:

The appellant argued that the reassessment was based on a mere change of opinion, which is not permissible. The Court, however, noted that the Assessing Officer had reason to believe that income had escaped assessment, which is sufficient to confer jurisdiction to reopen the assessment under Section 147. The Court cited the Supreme Court's decision in Rajesh Jhavery Stock Brokers Pvt. Ltd., which stated that at the stage of issuing notice, the only question is whether there was relevant material on which a reasonable person could have formed the requisite belief. The Court concluded that the reassessment proceedings were valid as the Assessing Officer had the requisite belief that income had escaped assessment.

3. Jurisdictional Error by the Tribunal:

The appellant contended that the Tribunal committed a jurisdictional error by reversing the CIT (Appeals) order and restoring the Assessing Officer's order, which reassessed the entire income. The Court noted that the CIT (Appeals) had allowed 50% of the administrative expenses as deductible, following the decision of the earlier assessment year 1998-99. The Court emphasized that while the principle of res judicata does not apply to tax assessments, quasi-judicial discipline demands consistency in decisions on identical facts and law. The Court found that the Tribunal's approach was erroneous as it failed to consider that the appellant's income was derived from both real estate business and house property. The Court restored the CIT (Appeals) order, which had granted relief to the appellant, and directed the Assessing Officer to act in accordance with this judgment.

Conclusion:

The Court concluded that the questions regarding the legality of the proceedings under Sections 147 and 148 did not require an answer as they were not raised at earlier stages. The Court upheld the validity of the reassessment proceedings and restored the CIT (Appeals) order, allowing the appellant's deductions. The appeal was disposed of without any order as to costs.

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