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TMI Blog2013 (9) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... ining the cause of delay. After considering the submissions of the assessee, we are inclined to condone the delay in filing these C.Os and admit them for disposal. All these C.Os have been filed on the following common grounds:- i) The reopening u/s 147 of the IT Act of the assessment originally completed on the same set of facts considered while making assessment u/s 143(3) amounted to change the opinion and therefore invalid. ii) The assessment of any other income alleged to have escaped assessment is invalid in law as the proceedings u/s 147 are invalid and as the income believed to have escaped assessment was actually found not to have escaped assessment. 2. Briefly the facts relating to the issue are the assessee a company is engaged in the business of manufacturing and processing of granite slabs and tiles. The assessee filed its return for the aforesaid assessment year claiming exemption u/s 10B of the Act since the entire sale is through export. The assessments were completed for asst. Year 2003-04 u/s 143(1) of the Act and for the assessment year 2004-05 and 2005-06 u/s 143(3) of the Act by accepting the exemption claimed u/s 10B of the Act. Subsequently, the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al assessment order. However, the Assessing Officer resorted to disallowing the claim of set off of unabsorbed depreciation brought forward from the assessment year 1995-96 and 1996-97. It was submitted that the disallowance of claim of set off of unabsorbed depreciation was not the subject matter of reopening of the assessment as per the reasons recorded. It was further submitted that the Assessing Officer in the reassessment proceedings u/s 147 of the Act cannot assess or reassess an income without assessing of the income which was the subject matter of reopening as per the reasons recorded. In support of such contention, the learned authorised representative for the assessee relied upon the following decisions:- i) CIT vs. Jet Airways (I) Ltd. (331 ITR 336 (Bom.) ii) Ranbaxy Laboratories Ltd. Vs. CIT (336 ITR 136 (Del] iii) CIT vs. Shri Ram Singh (306 ITR 343) (Raj.) 5. The learned Departmental Representative, on the other hand, supporting the orders of the revenue authorities on this issue submitted that even if the reopening is made on one issue, the Assessing Officer is empowered under the Act to assess any other escaped income if it comes to his notice in the course of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent", the words "and also" cannot be read as being in the alternative. On the contrary, the correct interpretation would be to regard those words as being conjunctive and cumulative. It is of some significance that Parliament has not used the word "or". The Legislature did not rest content by merely using the word "and". The words" and" as well as "also" have been used together and in conjunction. The Shorter Oxford Dictionary defines the expression" also" to mean further, in addition besides, too. The word has been treated as being relative and conjunctive. Evidently therefore, what Parliament intends by use of the words "and also" is that the Assessing Officer, upon the formation of a reason to believe under section 147 and the issuance of a notice under section 148(2) must assess or reassess: (i) such income; and also (ii) any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under the section. The words "such income" refer to the income chargeable to tax which has escaped assessment, and in respect of which the Assessing: Officer has formed a reason to believe that it has escaped assessment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rued to override it or render the substance and core nugatory. Section 147 has this effect that the Assessing Officer has to assess or reassess the income (" such income") which escaped assessment and which was the basis of the formation of belief and if he does so, he can also assess or reassess any other income which has escaped assessment and which comes to his notice during the course of the proceedings. However, if after issuing a notice under section 148, he accepted the contention of the assessee and holds that the income which he has initially formed a reason to believe had escaped assessment, has as a matter of fact not escaped assessment, it is not open to him independently to assess some other income. If he intends to do so, a fresh notice under section 148 would be necessary, the legality of which would be tested in the event of a challenge by the assessee. We have approached the issue of interpretation that has arisen for decision in these appeals, both as a matter of first principle, based on the language used in section 147 and on the basis of the precedent on the subject. We agree with the submission which has been urged on behalf of the assessee that section 147 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he would be competent to make assessment of those items. However, the Legislature could not be presumed to have intended to give blanket powers to the Assessing Officer that on assuming escaped income, he would keep on making roving inquiry and thereby including different items of income not connected or related with the reasons to believe, on the basis of which he assumed jurisdiction. For every new issue coming before the Assessing Officer during the course of proceedings of assessment or reassessment of escaped income, and which he intends to take into account, he would be required to issue a fresh notice under section 148." 8. This Bench of the Tribunal also in a recent order passed in the case of M/s Swarnadhara IJMII Integrated Township Development Company, Madhapur, Hyderabad vs. DCIT (ITA No.1803/Hyd/2011 dated 21-6-2013 following the aforesaid ratio has held that the Assessing Officer cannot assess any other income without assessing the income which was the subject matter of reopening. Following the ratio laid down as above, we are of the view that in a proceeding u/s 147 of the Act, the Assessing Officer is empowered to assess any other escaped income which comes to his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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