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TMI Blog2013 (4) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal on other grounds. Accordingly, the appeal of the assessee stands allowed. - Decided in favour of assesse. - I.T.A. No.34/Lkw/2013 - - - Dated:- 25-4-2013 - SHRI SUNIL KUMAR YADAV AND SHRI J. SUDHAKAR REDDY, JJ. For the Appellant : Shri. Rakesh Garg, Advocate For the Respondent : Shri Alok Mitra, Sr. D. R. ORDER Sunil Kumar Yadav (Judicial Member) .- This appeal is preferred on behalf of the assessee against the order of the Commissioner of Income-tax (Appeals) on various grounds, which are as under : 1. Because the Commissioner of Income-tax (Appeals) has erred in law and on facts in deciding the appeal ex parte without adequate opportunity of being heard and without appreciating the facts of the case. 2. Because the Commissioner of Income-tax (Appeals) has erred in law and on facts in dismissing the assessee's appeal without considering the facts as enumerated in statement of facts filed at the time of filing the appeal. 3. Because the order of the Commissioner of Income-tax (Appeals) being a non-speaking order, without adjudication in facts and circumstances of the case is contrary to the facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admit the same and prefer to dispose of at the threshold. 4. Learned counsel for the assessee has invited our attention to the copy of the reasons recorded for reopening the assessment, according to which, during the course of survey conducted under section 133A of the Act in the case of Regency Hospital Ltd., Kanpur, on March 11, 2010, it was noticed from the details of the register that the Regency Hospital Ltd. has paid cash commission on different dates to Dr. Anil Kumar Jain in lieu of references made by the doctor without deducting tax at source on the said payment of commission. The Assessing Officer further noted that a sum of ₹ 22,450 has been paid by Regency Hospital Ltd. to the assessee, which has escaped assessment. Thus, he has reason to believe that the amount of commission receipt chargeable to tax has escaped assessment for the assessment year 2008-09 and accordingly assessment was reopened under section 147 of the Act by issuing a notice under section 148 of the Act. While framing the assessment, the Assessing Officer has not made any addition with regard to the commission receipt from Regency Hospital Ltd. Learned counsel for the assessee has strongly arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, 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 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 will be tested in the event of challenge by the assessee. Relying upon this judgment, the hon'ble Delhi High Court in the case of Ranbaxy Laboratories Ltd. v. CIT reported in [2011] 336 ITR 136 (Delhi) has held that the Legislature could not be presumed to have intended to give blanket power to the Assessing Officer that on assuming jurisdiction under section 147 regarding assessment or reassessment of 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. The relevant observations of the hon'ble Delhi High Court in paragraphs 18 to 20 are extracted hereunder (page 147) : 18. We are in complete agreement with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 80-I and accordingly reduced the claim on these accounts. 20. The very basis of initiation of proceedings for which reasons to believe were recorded were income escaping assessment in respect of items of club fees, gifts and presents, etc., but the same having not been done, the Assessing Officer proceeded to reduce the claim of deduction under sections 80HH and 80-I which as per our discussion was not permissible. Had the Assessing Officer proceeded not to make disallowance in respect of the items of club fees, gifts and presents, etc., then in view of our discussion as above, he would have been justified as per Explanation 3 to reduce the claim of deduction under sections 80HH and 80-I as well. 7. Similar views were expressed by the hon'ble Delhi High Court in the case of CIT v. Software Consultants in I. T. A. No. 914 of 2010 [2012] 341 ITR 240 (Delhi), copies of which are placed on record. In this judgment also the hon'ble Delhi High Court has examined the impugned issue in the light of the judgments of the hon'ble Supreme Court in the cases of Jaganmohan Rao v. CIT/EPT [1970] 75 ITR 373 (SC) and CIT v. Sun Engineering Works P. Ltd. [1992] 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not permissible. Had the Assessing Officer proceeded to make disallowance in respect of the items of club fees, gifts and presents, etc., then in view of our discussion as above, he would 'have been justified as per Explanation 3 to reduce the claim of deduction under sections 80HH and 80-I as well'. 8. Turning to the facts of the case, it is abundantly clear that the Assessing Officer has not made any addition with respect to receipt of commission from Regency Hospital Ltd. on which the assessment was reopened by the Assessing Officer. The Assessing Officer has made addition on other issues which were not part of the reasons recorded for reopening the assessment. Therefore, in the light of aforesaid judgments, the assessment framed by the Assessing Officer on other issues is not sustainable in the eyes of law. We accordingly set aside the assessment framed on other issues. Since the entire assessment is quashed, we find no justification to adjudicate the appeal on other grounds. Accordingly, the appeal of the assessee stands allowed. 9. In the result, the appeal of the assessee is allowed. The order pronounced in the open court on April 25, 2013. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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