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TMI Blog2017 (11) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of Hon’ble Bombay High court in the case of Jet Airways (I) Ltd. (supra) and this being a jurisdictional high court decision, respectfully, following the same, we quash the reassessment proceedings and allow the appeal of the assessee. - ITA No. 1008/Mum/2015 - - - Dated:- 16-11-2017 - SRI MAHAVIR SINGH, JM AND SRI N.K. PRADHAN, AM For The Assessee : Rajesh P. Shah, AR For The Revenue : Rajesh Kumar Yadav, DR ORDER PER MAHAVIR SINGH, JM: This appeal by the Assessee is arising out of the order of Commissioner of Income Tax (Appeals)-5, Mumbai, [in short CIT(A)] in appeal No. IT-914/13-14/228/14-15 dated 14.11.2014. The Assessment was framed by the Deputy Commissioner of Income Tax, Circle 3(1), Mumbai (in short DCIT) for the assessment year 2006-07 vide order dated 31-01-2014 under section 143(3) read with section 147 of the Income Tax Act, 1961(hereinafter the Act ). 2. The first legal issue raised by assessee is as regards to the order of CIT(A) confirming the reopening of assessment by the AO under section 147 read with section 148 of the Act, even though there was no escapement of income by the assessee and reopening is beyond four yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by the assessing officer during assessment proceedings. Therefore this has resulted into escapement of income to the tune of ₹ 27,93,947/- involving short levy of tax. 3. Further, it is seen from the depreciation schedule as per Income Tax act that the rate of depreciation has been applied at 30% on the Office Equipments whereas it should have been 15%. The assessee has claimed depreciation to the tune of ₹ 17,960/- on the office equipments. However, it should have been ₹ 8,980/-. Thereby, the assessee has excessively claimed sum of ₹8,980/- from the total income in the year under consideration. The assessee ought not to have suo moto claimed ₹8,980/- from total income. Therefore, this has resulted into escapement of income to the tune of ₹ 8,980/- involving short levy of tax. 4. Explanation 1 to first proviso of Sec.147 is very clear in this regard, which reads as under: - Production before the Assessing officer of account books or other evidence from which material evidence could with due diligence have been discovered by the assessing officer will not necessarily amount to disclosure within the meaning of the foregoing p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following two propositions (i) that the action of the AO making other additions which were not part of reasons recorded for reassessment, reassessment is bad in law. Second, the assessee s case falls under the proviso to section 147 of the Act as clear from the reasons recorded that there is no whisper of any failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for the relevant assessment year and original assessment was completed under section 143(3) of the Act. But the CIT(A) confirmed the action of the AO vide Para 4.1. 4.1 Ground Nos (1) (2): Through these grounds the assessee has challenged the reopening of the assessment under section 147 on the pea that there was no escapement of income and the additions were made on the items which are different from that given in the reasons recorded for reopening . The written submissions made in this context finds place at Para 3 of this order. The basic plea of the assessee is that the additions were made on two items [disallowance u/s 40(a)(ia) and taxing the income on sale of its property as short term capital gain instead of tong term capital gain], which are differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed. Aggrieved against the action of the CIT(A), assessee is in appeal before Tribunal. 6. We have gone through the facts and circumstances of the case. We find that the issue is squarely covered in the given facts of the case by the decision of Hon ble Bombay High court in the case of CIT vs. Jet Airways (I) Ltd. (2011) 331 ITR 236 (Bom.) on the proposition of that the AO could not assess the income chargeable to tax which has come to his notice subsequently, in the course of proceedings under section 147 of the Act, even though the same was not the basis for reopening under section 147 of the Act. The learned CIT DR relied on the decision of Hon ble Punjab and High court decision in the case of CIT vs. Mehak Finvest Pvt. Ltd. (2014) 52 taxmann.com 51 (P H). We find that Hon ble Bombay High Court in the case of Jet Airways (I) Ltd. (supra) held as under:- 17. We have approached the issue of interpretation that has arisen for decision in these appeals, both as a matter of first principle, based on the language used in section 147(1) and on the basis of the precedent on the subject. We agree with the submission which has been urged on behalf of the assessee that secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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