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TMI Blog2011 (1) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... dav, Judicial Member : This appeal is preferred by the revenue against the order of the CIT(A) on various grounds but they all relate to the validity of the re-opening of the assessments. 2. The brief facts borne out from the record on the impugned issue are that the assessee has filed a return of income for the impugned assessment year i.e. 2004-05 on 1.11.2004 disclosing the long term capital gains of Rs. 2,51,640. The return was processed u/s 143(1) vide intimation dated 12.3.2005. Subsequently, the A.O. noticed that while computing the capital gain, the assessee in addition to the cost of land of Rs. 3,11,586 claimed additional expenses towards cost of compound wall of Rs. 6,29,582 cost of development charges of Rs. 9,96,000 and cost of legal charges of Rs. 9,58,800. All these expenses were added to the cost of the purchase in order to arrive at cost of acquisition at Rs. 25,84,382. On the same indexation benefit was claimed and the inflated cost of acquisition was shown at Rs. 69,84,752. However, no corroborative evidence towards the cost of such expenses were furnished along with the return of income. Therefore, the assessing officer had reason to believe that income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital gain at Rs. 32,80,401. The assessee preferred an appeal before the CIT(A) and challenged the re-opening of the assessment on the ground that for the same reasons the assessment cannot be re-opened. The CIT(A) being convinced with the explanations of the assessee held the re-opening to be invalid and annulled the assessment framed consequent thereto. Now the revenue has preferred an appeal before the Tribunal. 6. The Ld. D.R. has contended that in the first round of appeal, the reopening of the assessment was held to be invalid only for the reasons that it was re-opened within the period of one year when there was time limit for issuing a notice u/s 143(2) of the Act. Nowhere the reasons recorded for reopening the assessment was held to be insufficient to form a belief that income chargeable to tax has escaped assessment. Now the re-opening was done after recording the reasons and formation of belief that income chargeable to tax has escaped assessment. Therefore, the finding of the CIT(A) which attained finality would not come in the way for re-opening of the assessment. There is no law which debar the revenue from re-opening the assessment second time if first time re-op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax had escaped assessment on account of incorrect claim of capital gains. Reasons for reopening of the assessment was also communicated to the assessee along with the notice issued u/s 148 of the Act. The assessee objected the reopening of the assessment at second time on the ground that once first reopening was annulled by the CIT(A), the A.O. has no jurisdiction to reopen the assessment again. 9. Now the sole controversy raised before us is whether in such circumstances the revenue has jurisdiction to reopen the assessment second time when the first reopening was quashed on legal issues without giving any finding regarding sufficiency of the reasons recorded to form a belief that income chargeable to tax has escaped assessment. Before dwelling upon the issue we would like to extract the relevant provisions of sections 147 148 which governs the process of reopening of the assessment as under: Section 147. If the [assessing] officer [has reason to believe] that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loss or depreciation allowance or any other allowance under this Act has been computed.] Explanation 3 For the purpose of assessment or reassessment under this section, the Assessing Officer may assess or reassess the income in respect of any issue, which has escaped assessment, and such issue comes to his notice subsequently in the course of the proceedings under this section, notwithstanding that the reasons for such issue have not been included in the reasons recorded under sub-section (2) of section 148.] [Issue of notice where income has escaped assessment. Section 148 [(1)] Before making the assessment, reassessment or recomputation notice requiring him to furnish within such period, as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment, the revenue is debarred forever to reopen the assessment for that particular assessment year. This view was expressed only by the single bench of the Tribunal in the case of R.K. Nagpal v. ACIT 103 TTJ 554. Since the single bench judgment is not binding upon the divisional bench of the Tribunal, we are not strictly required to follow the same. It may however, can be used to support our views but if the divisional bench wish to take a contrary view single member judgments would not come in their way. 11. In the case of Anand Samrat Company v. ITO (supra) the issue was entirely different. In that case the first reassessment was completed following a search notice on merit. The matter went up to the Tribunal and Tribunal allowed the appeal on merit. In that case, the first reassessment proceedings were not knocked down by the appellate authorities on a legal issue. It was rather decided on merit. Therefore, the Hon'ble High Court of Andhra Pradesh have held that once the assessment was reopened and matter was adjudicated on merit the revenue cannot reopen the assessment on second time on similar grounds. But in the instant case the facts are entirely different. In the ..... 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