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TMI Blog2013 (12) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... .206 determining the loss of Rs.8,66,571/-. On appeal, the ld.CIT(A) partly allowed the appeal of the assessee vide his order dated 6.6.2008. On further appeal by the department, the Rajkot Bench of the Tribunal vide its order dated 30.6.2009 passed in ITA No.496/Rjt/2008 restored the issue relating to unaccounted investment of Rs.3,49,283/- to the file of the AO and upheld the decision of the ld. CIT(A) in rest two grounds set aside the issue to the file of the AO for fresh adjudication. The issues restored for fresh adjudication is as under : "2. Issue of addition of Rs.3,49,283/- made on account of unexplained investment under section 69C regarding the same Hon'ble ITAT has held as under : The ld. CIT(A) has d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eating project advances received for allotment of houses as income in respect of liability shown by the assessee in the balance sheet. According to the AO, this receipts of Rs.21,22,000/- is contract receipt which is not refundable. According against the aforesaid order the assessee preferred an appeal before the ld. CIT(A), wherein, he challenged the initiation of action u/s 147 of the Act. In the impugned order dated 18.5.2012, the ld. CIT(A) quashed the assessment for the detailed reasons given in paragraph 4 of the ld. CIT(A) which is reproduced below: "4. I have gone through the assessment order and submissions of appellant. I find that the notice u/s 148 was issued on 2.2.2010, which is beyond a period of four years from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profit was made by the appellant or not. More importantly, the method of accounting of treating receipts as advance till sale is made, was already disclosed by the appellant and accepted by the AO in assessment year 2002-03. Therefore, concluded assessment cannot be reopened beyond a period of four years as there was no failure on the part of the appellant to disclose fully and truly all material facts necessary for the purpose of assessment. The second reason to reopen the assessment is apparently derived from the audit report where repayment of loan was shown in cash to certain persons. Here again, when the loan is repaid in cash, it is an issue related to default u/s 269T of the IT Act. There may be a corresponding penalty u/s 271E of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case and has not appreciated the order of the AO which was reopened with the due permission from competent authorities and the addition of Rs.21,22,000/- made on account of advance receipt. 2. The ld. CIT(A) has erred in law and on fcs in not appreciating the facts that the sum of Rs.21,22,000/- shown by assessee as liabilities in the Balance sheet being advances received against sale consideration of units. The assessee was required to tax on the advance receipts of Rs.21,22,000/-. Therefore, the entire advance receipt of Rs.21,22,000/- is to be taxed by the AO considering as sale consideration of the year which was misclassified by the assessee as liabilities instead of receipt. Further, the assessee repaid loan of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 147 it is clear that the assessee had not suppressed any material fact and there is no new documents on record from which such opinion was formed. The notice issued u/s 147 for reassessment is based on material which was already available while framing the original assessment on 8.12.2006. On second thought /change of opinion, reopening of assessment u/s 147 is after four years is liable to be quashed as held by the Hon'ble Gujarat High Court in the case of Parixit Industries (P) Ltd V/s ACIT reported in 207 Taxman 140, against this order, SLP has been dismissed by the Hon'ble Supreme Court in the case of ACIT V/s Parixit Industries Pvt Ltd reported in 24 Taxmann.com 301. Continuing his argument the ld. Counsel of the assessee pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sub-section (40) of Section 2 of the Act. While framing the original Assessment, Balance-Sheet as well as Audited Accounts were available on record before the AO. Therefore, it cannot be said that while framing this assessment the AO did not form an opinion in respect of project advances of Rs.21,22,000/- shown by the assessee in the Balance Sheet as liability. The ld. CIT(A) vide paragraph 4 at page 7 of the impugned order made certain observations, which can be summarized as under : "1. the notice was issued on 2.2.2010, which is beyond a period of four years from the end of the assessment year 2003-04. There was already an assessment made u/s 143(3) r.w.s 147 of the Act; 2. the assessee had received project ..... X X X X Extracts X X X X X X X X Extracts X X X X
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