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TMI Blog2013 (11) TMI 1449X X X X Extracts X X X X X X X X Extracts X X X X ..... s were processed u/s 143(1) the reopening has been done on the change of opinion which is not permitted under the law - The reopening has been held to be not legal and assessment order has been quashed - Decided in favour of assessee. - I.T.A. No.2933,2935/Del/201 & I.T.A. No. 1763/Del/2012 - - - Dated:- 26-11-2013 - Shri Rajpal Yadav And Shri T. S. Kapoor,JJ. For the Appellant : Shri KVS Gupta, C.A. For the Respondent : Shri Sukhver Charudhary, Sr. DR. ORDER Per TS Kapoor, AM: This is a bunch of three appeals, all directed against the order of Ld CIT(A) dated 15.2.2011, 15.2.2011 and 30.1.2012 respectively. The assessee has taken six grounds of appeals in all the three appeals and they are identical in nature. The first ground in all these appeals is regarding opening of the cases u/s 147/148 of the Act. These appeals were heard together and therefore for the sake of convenience a consolidated order is being passed in respect of these appeals. For the sake of convenience grounds of appeals taken by the assessee in respect of assessment year 2003-04 are reproduced below:- Assessment year 2003-04: 1. The action of the Ld. CIT(A)'s in confirmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penses totaling to ₹ 2,71,473/-, resulting to the Profit before Taxation at Rs,10,735/-. Further, the assessee has claimed the set-off of b/f losses to the tune of ₹ 6,210/-. As a result, the assessee has filed Its return of Income for ₹ 34,530/-. As per the relevant provisions of IT Act, 1961, the rental Income is covered under the head Income from House Property . While computing the income under the head Income from House Property , the permissible deductions are as per the provisions of section 24. From the details reports etc., filed with the above IT return, it is clear that the assessee's only business activity was to earn the rental income. This as discussed above is covered under the head Income from House Property . There is no other activity by the assessee during the relevant period, coverable under the head Business Income . In the case as per the provisions of Income Tax Act, 1961 no expenses is attributable to any income coverable under the head Business Income . Therefore, the business income of the assessee in this case should have been Nil. In the computation of income, the assessee should have re- grouped its rental income u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om House Property''' Income from other sources. From the details reports etc., filed with the above 1.T. Return, it is clear that the assessee's only business activity was to earn the rental income, This as discussed above, is covered under the head Income from House Property . As such, there is no activity coverable under the head Business Income . In this case, as per the provisions of Income Tax Act, 1961, no expense is attributable to any income coverable under the head Business Income . Therefore, the Business Income of the assessee in this case should have been - Nil. The assessee has claimed inadmissible expenses to reduce the taxable' income by ₹ 2,87,958/-. Therefore I have reason to believe that the income, to the extent of ₹ 2,87,958/- has escaped assessment. 5. From the reasons recorded above in respect of these three appeals we observe that Assessing Officer had reopened the cases on the basis of details and reports attached with the return of income. There was no other material from which the Assessing Officer had arrived at the conclusion that income of the assessee had escaped assessment. In the first two years th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality is sought to be disturbed by issuing a notice u/s 148, the proceedings cannot be challenged on the ground of change of opinion . It was not opined by the Supreme Court that the strict requirements of section 147 can b e compromised. On the contrary from the observations (quoted by us earlier) it would appear clear that the court reiterated that so long as the ingredients of sec. 147 are fulfilled an intimation issued u/s 143(1) can be subjected to proceedings for reopening. The court also emphasized that the only requirement for disturbing the finality of an intimation is that the Assessing Officer should have reason to believe that income chargeable to tax has escaped assessment order. In our opinion, the said expression should apply to an intimation in the same manner and subject to the same interpretation as it would have applied to an assessment made u/s 143(3). The argument of the revenue that an intimation cannot be equated to an assessment relying upon certain observations of the Supreme Court in Rajesh Jhaveri (supra) would also appear to be self defeating, because if an intimation is not an assessment then it can never be subjected to sec. 147 proceedings, f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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