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TMI Blog2015 (10) TMI 1468X X X X Extracts X X X X X X X X Extracts X X X X ..... , whereas during the immediately preceding previous year i.e. A. Y. 2010-11, the fixed assets were shown at Rs. 14,39,283/-. This fact, shows that 'A' has sold fixed assets to the tune of Rs. 111,07,712/- during the relevant year. No Capital gains has been shown in the Return of Income. Therefore, I have reason to believe that Capital gains on sale of fixed assets has escaped assessment or the 'A' has concealed the particulars of his income. Proceedings under section 147 initiated and notice under section 148 issued.' There is no addition on this count in assessment order hence present assessment is an invalid assessment in the eye of law. (2) The Ld. C. I. T. (Appeal) erred on facts and in law in confirming the additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attention was also invited to various judicial pronouncements in which it has been held that where the issue on which assessment was reopened was itself dropped in the assessment order, the Assessing Officer exceeded his jurisdiction in reopening the assessment on the said issue. Reliance was placed upon the following orders/judgments:- 1. SC Enviro Agro India Ltd. vs. DCIT, 143 ITD 195. 2. CIT vs. Jet Airways (I) Ltd., 239 CTR 183 (Bombay). 3. CIT vs. Mohd. Juned Dadani, 85 DTR 12 (Guj.). 4. Ranbaxy Laboratories Ltd. vs. CIT, 336 ITR 136 (Delhi). 5. CIT vs. Banwari Lal Banshidhar, 229 ITR 229 (Alld.). 6. R.V. Constructions, Kanpur vs. Income Tax Officer, Kanpur in I.T.A. No. 834/LKW/2014 (Lucknow Bench). 7. CIT vs. Gobind Ram, 48 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in the course of the assessment proceedings. Their Lordships have further explained that explanation (3) of Section 147 of the Act, however, by no stretch of imagination, can be construed as to provide that if the reason on which the assessment is reopened fails, the Assessing Officer still can proceed to assess some other income which according to him had escaped assessment and which came to his light during the course of the assessment. Their Lordships have further clarified that the explanation was meant to be clarificatory in nature and to put the issue beyond any legal controversy. Explanation 3 to Section 147 of the Act thus does not in any manner, even purport to expand the powers of the Assessing Officer under Section 147 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s failed to make an addition on an issue on which assessment was reopened, he cannot assess or reassess other income which escaped assessment and came to his notice during the course of hearing. In the instant case, undisputedly no income was assessed on the capital gain which was considered to be escaped assessment while reopening the assessment. Therefore, addition made on other issues on which assessment was not reopened is not sustainable in the eyes of law. Accordingly we set aside the order of the ld. CIT(A) and delete the additions made on other issues.
9. In the result, appeal of the assessee is allowed.
Order was pronounced in the open court on the date mentioned on the captioned page. X X X X Extracts X X X X X X X X Extracts X X X X
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