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TMI Blog2015 (9) TMI 1603X X X X Extracts X X X X X X X X Extracts X X X X ..... ano Jain, JJ Appellant by: S/Shri Atul Goel Aman Parti Respondent by: Shri Jitender Kumar ORDER Bhavnesh Saini, This appeal by assessee is directed against the order of ld. CIT(Appeals) Chandigarh dated 01.10.2013 for assessment year 2008-09. 2. Briefly the facts of the case are that original assessment in this case was completed under section 143(3) of the Income Tax Act dated 06.12.2010 at an income of ₹ 9,63,820/- against the returned income shown by the assessee at ₹ 7,92,320/- vide return filed on 30.09.2008 and return was processed under section 143(1) on 19.11.2009. The assessee is running a proprietory concern under the name and style of M/s Malhotra Company and the nature of the business and profession is wholesale and retail trade of refrigeration equipments and repairs thereof during the period under consideration. The assessee has shown income from house property, income from short term capital gain and also short term capital gain. Subsequently, the Assessing Officer noticed that income has escaped assessment and reopened the case for recording the reasons under section 147 of the Income Tax Act as under : Office of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,02,96,333/- Less: Indexed Cost Purchase Price (1/3rd in 50% share) Rs. 40,85,888/- (AS per stamp papers cost of purchase ₹ 1,03,00,000/-) F.Y. 2003-04 2568700/463 * 551 Long Term Capital Gain ₹ 1,62,10,445/- Thus, the income is short assessed by ₹ 1,31,53,526/-. (1,62,10,445 - 30,56,919) Therefore, I have reasons to believe that income has escaped assessment to the tune of ₹ 1,31,53,526/. 2. Further the assessee paid rent of Rs. 1,49,440/- but no evidence of TDS on rent of Rs. 1,49,440/- is available on record. Hence there appears violation of section 40(a)(ia) which needs verification. In the absence of any documentary evidence regarding deduction of TDS on rent, 1 have also reason to believe that there is under-assessment to the tune of 1,49,440/-. Keeping in view the above facts provisions of the Income Tax Act, notice under section 148 is being issued. Sd/- 23.09.2011 ( Poonam Sharma ) Asstt. Commissioner of Income Tax Circle 4(1), Chandigarh. 2(i) Therefore, the Assessing Officer issued notice under section 148 of the Act on 19.09.2011 requiring the assessee to file his return within 30 days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence the assessee could not attend the business and tax affairs during the said period and could not contact his counsel. The assessee has filed medical certificate in support of the contention in which it was stated that assessee suffered from permanent disabling disease such as multiple sclerosis, neuropathy alongwith diabetes and hypertension. Same was supported by case summary of the assessee and prescriptions provided. The affidavit of assessee in support of the request for condonation is also filed in which also same facts have been averred. It was also explained in the affidavit that assessee has been suffering from chronic irreversible disease such as demyelination, diabetes, hypertension, paraplegia- paralysis of legs, neurogenic bladder and neuropathy and is under regular treatment. It is also stated in the affidavit that for the daily routine activities also, assessee is partially dependent on others. 5. On consideration of rival submissions and material on record, we are satisfied that assessee was prevented by sufficient cause from filing the appeal within the period of limitation, therefore, delay in filing appeal is condoned. 6. The assessee in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer on the same facts, earlier dropped the proceedings under section 154 of the Act which are also recorded in the reasons for re- opening of the assessment and that the Assessing Officer issued the notice under section 148 of the Act without recording reasons prior to issue of the notice. On the other hand, ld. DR relied upon orders of the authorities below and produced the assessment record for our perusal and also filed copies of the order-sheet recorded by the Assessing Officer, notice under section 148 of the Act, reasons recorded for re-opening of the assessment, notice issued under section 154/155 of the Act and reply of the assessee to notice under section 154 of the Act. 10. The ld. DR submitted that even if notice has been issued on 19.09.2011 but it was served upon assessee on 23.09.2011. Therefore, it may be typographical error in issuing notice under section 148 of the Act. 11. After considering rival submissions, we do not find any justification to sustain the impugned orders regarding re-opening of the assessment under section 147/148 of the Act. Hon'ble full Bench of Delhi High Court in the case of Kelvinator of India Ltd. 256 ITR 1 by f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct an incorrect assessment made earlier unless the mistake in the assessment so made is the result of a failure of the assessee to fully and truly disclose all materials facts necessary for assessment . There is a difference between a wrong claim made by an assessee after disclosing all the true and material facts and a wrong claim made by the assessee by withholding the material facts fully and truly. It is only in the latter case that the Assessing Officer would be entitled to proceed under Section 147. Held, allowing the petition, that the Assessing Officer had not recorded the failure on the part of the petitioner to fully and truly disclose all material facts necessary for the assessment year 1997-98. What was recorded was that the petitioner had wrongly claimed certain deductions which he was not entitled to. The reassessment proceedings initiated in the year 2004 were not valid. 12. It is not in dispute that earlier the original assessment was completed under section 143(3) on 06.12.2010. The assessee in the computation of income disclosed long term capital gain on account of sale of property in question i.e. SCO 6, Sector 26, Chandigarh and has disclosed the long ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l order passed by the Assessing Officer in the original assessment proceedings. Therefore, we are of the view that the Assessing Officer has reopened the assessment merely on change of opinion and as such the order of the Assessing Officer is liable to be set aside and quashed. 12. We may also note here that the Assessing Officer on the same matter in issue issued a notice under section 154/155 of the Act dated 01.09.2011 giving the same details of long term capital gain in respect of the property in question and noted that the income is short assessed by ₹ 1,31,53,526/- and that the amount of ₹ 1,49,440/- is required to be added back under section 40(a)(ia) of the Act. On comparison of the reasons recorded under section 148 of the Act with notice under section 154/155 of the Act, it is clear that same facts and reasons are recorded in notice under section 148 of the Act as well as notice under section 154 of the Act. The assessee filed a reply dated 19.09.2011 in response to the notice under section 154 of the Act and explained that the property in question is disputed property since its purchase. The assessee and other co-owners cannot get the full property r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and was liable to be quashed. 15. Considering the above discussion, it is clear that reasons u/s 148 have been recorded virtually on the same reasons for which rectification proceedings under section 154 had earlier been initiated but dropped. The Assessing Officer had not disclosed any new material for re-opening of the assessment, therefore, Assessing Officer cannot be allowed to hold two parallel proceedings on the same issue. Both the above judgements clearly apply to the facts of the case and as such on this reason also, the re- assessment could not survive in this case. On this reason also, the re-assessment order is liable to be set aside and quashed. 16. In this case, it is admitted fact that Assessing Officer issued notice under section 148 of the Act dated 19.09.2011, however the Assessing Officer recorded the reasons for re-opening of the assessment under section 148 of the Act on 23.09.2011. Section 148(2) of the Act provides that the Assessing Officer shall, before issuing any notice under this Section, record his reasons for doing the same. However, in the present case, Assessing Officer issued the notice under section 148 of the Act dated 19.09.2011 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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