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TMI Blog2017 (2) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... h of this Tribunal in Emgeeyar Pictures Pvt. Ltd. (2016 (6) TMI 418 - ITAT CHENNAI ), on a majority opinion, this Tribunal found that when the assessment was barred by limitation, the Revenue cannot reopen the assessments by virtue of opinion expressed by higher forum at a later stage. This Tribunal is of the considered opinion that reopening of assessments under Section 147 for assessment years 2002-03 and 2003-04 are barred by limitation. Estimation of cost of construction - Held that:- State Government has prescribed a rate for construction of building in the State. Central Government has also prescribed rate for construction of building. When there was a variation in the cost of construction between the State PWD and Central PWD, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the assessment year 2004-05, the assessee is challenging the impugned order on merit. 3. Referring to assessment years 2002-03 and 2003-04, the Ld. representative for the assessee submitted that the assessments were reopened beyond the period of limitation. According to the Ld. representative, the original assessments were completed under Section 143(3) of the Act on 31.03.2003. When the Revenue challenged the order of the CIT(Appeals) for the assessment year 2004-05, this Tribunal found that spreading of unaccounted investments over the period of construction of the property is not beyond the powers of the CIT(Appeals) and the order of the CIT(Appeals) was set aide and the matter was remitted back to the file of the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation. The Ld. representative has also placed reliance on the judgment of Madras High Court in Goldmine Investments v. DCIT (2010) 237 CTR 196. 5. On the contrary, Shri V. Nandakumar, the Ld. Departmental Representative, submitted that the assessment for the assessment year 2004-05 was completed by the Assessing Officer by an order dated 29.12.2006. The assessee carried the matter before the CIT(Appeals). The CIT(Appeals) found that 20% deduction has to be given from the value of the construction to arrive at State PWD value. The CIT(Appeals) further found that the property was constructed over a period of three years, namely, assessment years 2002-03, 2003-04 and 2004-05 and accordingly, he apportioned the cost of construction bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s remitted back to the file of the Assessing Officer for reconsideration in accordance with law. There is no specific direction from this Tribunal for reopening the assessments for assessment year 2002-03 and 2003-04. Moreover, the appeals for the assessment years 2002-03 and 2003-04 were not available before this Tribunal when the appeal of the Revenue for assessment year 2004-05 was disposed of. In the absence of records relating to assessment years 2002-03 and 2003-04, this Tribunal is of the considered opinion that this Tribunal cannot issue any direction for the assessment years 2002-03 and 2003-04. In other words, this Tribunal has to confine itself only to the assessment year for which the appeal is filed either by the assessee or by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... virtue of an opinion expressed by any higher forum at a later date i.e. subsequent to the date of limitation period. In fact, the judgments of the Apex Court are also on the same lines. Having regard to the circumstances of the case, I am of the view that the reopening of assessment is bad in law since the proceedings u/s 148 of the Act are sought to be initiated by issuing a 59 I.T.A. No.992/Mds/15 notice after the period of limitation. In the light of the above findings, the reframed questions are answered as follows: (1) The notice issued u/s 148 r.w.s 150(1) of the Act, cannot be said to be based on any finding or direction issued by the ITAT in I.T.A.Nos.327 328/Mds/2010. (2) Even otherwise the notice issued u/s 148 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r side and perused the relevant material available on record. State Government has prescribed a rate for construction of building in the State. Central Government has also prescribed rate for construction of building. When there was a variation in the cost of construction between the State PWD and Central PWD, this Tribunal is of the considered opinion that the State PWD rate would be more relevant rather than Central PWD rate. The Central PWD rate might have been fixed by taking the cost of material available at the Headquarters, namely, New Delhi. The State PWD rate may be fixed on the basis of rate prevailing in a particular State. Adopting State PWD rate for construction may be preferable rather than Central PWD rate. Therefore, the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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