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TMI Blog2013 (6) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... olidated order of CIT(A)-IV, New Delhi dated 13.06.2012 for AYs 2004-05 to 2006-07. Common grounds are raised in these appeals which read as under:- 1. The learned CIT(A) erred on facts and in law in annulling the assessment u/s 148 of the Income Tax Act, without appreciating that reopening proceedings u/s 147 was valid and as per law for assessment year. 2. The learned CIT(A) erred on facts and in law without appreciating the fact that ld.CIT(A) has failed to give decision on substantive issue of addition of treatment under the income of other source by the AD as against income from house property as offer by assessee. 3. The appellant craves leave for reserving the right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal. 2. We have heard rival arguments of both the parties and carefully considered the record placed before us. 3. From the reassessment order, we observe that the case was reopened u/s 147/148 of the Income Tax Act (for short the Act) after recording reasons for reopening the case as follows:- "The return of income was filed on 18.10.2004 for the A. Y. 2004-05 declaring an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the head Business or Profession. Further reliance may be placed in the case of M.K. Dar vs Commissioner of Income Tax (1982) 138 ITR 801(All) and Commissioner of Income Tax vs D.L. Kanhere (1973) 92 ITR 535 (Bom) wherein it was held that where Cinema building along with furniture is let out, then the income form such lease is to be assessed as income from other sources and not as income from house property. Thus even if the contention of the assessee is to be accepted that it had let out a Cinema building along with the Plant, Machinery and other infrastructure, then also the income-thereon is not assessable under the head "Income from House Property but Income under the head "Other Sources. Thus by showing .93,45,000/- of income as "income from house property "instead of "income from other sources" or "Business income" of it and consequently claiming the 30% deduction as per section 24 of the I. T. Act. 30% of .Rs.93,45,000/- i.e. Rs..28,03,500/- has been escaped assessment which would have been otherwise chargeable to tax, making it the case of under assessment as per explanation 2 (c) (i) of section 147 of the I.T. Act, 1961. Therefore, I have reason to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to tax. By recording above reasons, as mentioned hereinabove, the Assessing Officer reopened the assessment and issued a notice to the assessee u/s 148 of the Act which is reasonable and just in the factual matrix of the case. The DR further submitted that the Commissioner of Income Tax(A) wrongly held that it was a change of opinion because this very fact was important to the Assessing Officer that the assessee has wrongly claimed depreciation and has also wrongly shown its income as income from house property instead of income from other sources or business income. The DR submitted that the impugned order may be set aside by restoring that of the Assessing Officer on the issue of reopening of assessment. 8. Replying to the above, ld. counsel of the assessee placed his reliance on the judgment of Hon ble Jurisdictional High Court of Delhi in the case of Commissioner of Income Tax vs Raj Kumar Mahajan (2012) 340 ITR 570 (Del), Ranbaxy Laboratories Ltd. vs DCIT (2013) 30 Taxmann.com 410 (Del) and the decision in the case of DCIT vs Pasupati Spinning Weaving Mills Ltd.(2012) 20 Taxmann.com 160 (Del) and submitted that when the original assessment proceedings have been completed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) was asked specific questions about taxability of the amount received from PVR ltd. as per agreement dated 18.05.2000 and after verifying the agreement in all the three assessment years, the claim of the appellant for taxing this income as "income from house property" was accepted by the AO. Considering the facts and circumstances of the case and the settled judicial position as cited supra, I find that the ld. AR's contention that - the issuance of notice under section 148 of Act in all the three years after completing the assessment under section 143(3) wherein particular SCN was issued on the issue raised under section 148 of Act is nothing but a "change of opinion" and hence the proceedings initiated under section 148 of Act are bad in law - cannot be rejected. 4.7 Further, it is submitted by the ld. AR that for A.Y 2004-05 the assessment had originally been completed u/s 143(3) and the notice u/s 148 of Act was issued on 31.03.2010, i.e. after lapse of four years from the end of the relevant assessment year. Therefore, the condition provided in first proviso to section 147 of Act needs to be satisfied. The first proviso to section 147 stipulates that no action u/s 147 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of I. T. Act. Under income from house property it is statutory on the part of AO to allow the claim of deduction u/s 24(1) @30% which comes to Rs. 25,12,732/- and hence therefore it has been rightly allowed by the Assessing Officer during the course of Assessment. In view of above explanation the objection raised is not acceptable and may dropped under the intimation to this office. Yours faithfully (Vijay Kumar Jaiswal) Deputy Commissioner of Income-tax Central Circle-8, New Delhi. I find that on similar facts, it was held by the Hon'ble ITAT Delhi in Dy. CIT v. Pasupati Spinning Weaving Mills Ltd. [2010] 6 ITR (Trib.) 689 that where Assessing Officer who was very much satisfied with details, documents and explanation furnished by assessee and framed original assessment, but due to audit objection he was forced to change opinion, although he himself did not agree with objection raised by audit team, reassessment was not justified. 4.9 In view of the discussion as above and respectfully following the judicial decisions cited supra, I find that the reassessment proceedings for the years under consideration cannot be factually and legally sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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