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TMI Blog2014 (4) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... addition made in the year 2002-03 is not justifiable and the same cannot be the basis for having recourse to section 150 of the Act by holding it as ‘finding or direction’. The observation of the Tribunal does not require compliance by the authorities so far as the assessment year 2000-01 is concerned, taking recourse to section 150 of the Act by holding the same as ‘finding’ of the Tribunal is not legally tenable – Relying upon Rakesh N. Dutt Vs. ACIT [2007 (10) TMI 285 - BOMBAY HIGH COURT] - once section 150 of the Act is not applicable to the case of the assessee, the reopening of the assessment beyond the period of six years from the end of the relevant assessment year would be time barred - thus, CIT(A) is not justified in confirmin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income on 27.09.2007 declaring a total income at Rs.35,32,927/- with remarks filed under protest . The assessee also filed the objections to reasons recorded for issue of notice u/s 148 which were rejected by the AO by his letter dated 15.11.2007. According to the assessee, the order of the Tribunal aforementioned had not given any finding or direction enabling the AO to seek recourse to section 150 for reopening beyond six years. On appeal, the Ld.CIT(A) had confirmed the action of the AO and held that recourse by the AO to provisions of section 150 read with section 148 for reopening the assessment was valid. Aggrieved by the impugned decision, the assessee has raised these grounds in the appeal before us. 2.2 Before us, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee, the Tribunal, vide its order dated 28.03.2007 has deleted the impugned addition made/confirmed by the AO/CIT(A). The Tribunal, in para 4 of the said order, has observed as follows: In this case the dispute essentially pertains to the year of assessability of capital gains arising to the assessee on transfer of a part of this proprietary rights over the building known as Rita in Khar (W) .. From a bare reading of the provisions of Section 45(1) it is apparent to us that it is the year in which transfer took place that is relevant and the year in which the value of consideration is received by the transferor is not relevant. In para 6 of the said order, the Tribunal has further observed as follows: We therefore hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the AO is however free to take action in assessment year 1997-98 could not be construed as a direction to the AO to initiate reassessment proceedings for assessment year 1997- 98 and therefore, the said notice u/s 148 for the assessment year 1997 issued on 16th November, 2004 is time barred. Moreover, in the case of CIT Vs. Green World Corporation (supra), the Hon ble Apex Court has held that the provisions of section 150, although appears to be of a very vide amplitude, but would not mean that recourse to the reopening of the proceedings in terms of 147 and 148 can be initiated at any point of time whatsoever. Such proceeding can be initiated only within the period of limitation prescribed as contained in section 149. Section 150(1) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra). 2.3.2 After considering the legal position aforementioned, it is pertinent to mention that the decision of the Tribunal on the basis of which the assessment for year under consideration reopened is related to the assessment year 2002-03. The observation of the Tribunal for the purpose of deleting the addition in respect of the assessment year 2002-03 cannot be treated to be a finding for reopening the AY 2001-02 as the appeal for said assessment year has not been before the Tribunal for adjudication. The observation of the Tribunal that the case of the assessee is to be brought to tax for assessment year 2000-01 and not assessment 2002-03 as done by the assessing officer is incidental for holding the addition made in the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee has agitated the action of the Ld.CIT(A) in confirming the adoption of the value of the two flats based on DVO s report by the AO for the purpose of calculating the capital gains. In view of the fact that the said issue arises out of the reopening of the assessment/reassessment order which has been quashed in the adjudication of the preceding grounds of appeal, the adjudication of the issue raised in Grounds No 4, 5 6 is not required. 4. In Ground No. 7, the assessee has agitated the action of the levying of interest u/s 234A, 234B and 234C of the Act which is also consequential and the same also does not require any adjudication. 5. In the result, the appeal filed by the Assessee is treated as allowed. Order pronounced i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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