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TMI Blog2019 (10) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... lving matters which are subject matters of any appeal, reference or revision has expressly been taken out of the purview of the said section. In the circumstances, insofar as the income stated to have escaped assessment under the second ground is concerned, the same having been subject matter of appeal would not fall within the ambit of section 147 and as such the Assessing Officer lacks jurisdiction to reopen the assessment on the said ground. See NATIONAL DAIRY DEVELOPMENT BOARD VERSUS DCIT [ 2011 (3) TMI 1391 - GUJARAT HIGH COURT] - Decided in favour of assessee. - R/SPECIAL CIVIL APPLICATION NO. 15208 of 2018 - - - Dated:- 6-8-2019 - MR J. B. PARDIWALA AND MR A. C. RAO, JJ. For The Petitioner (s) : MR DARSHAN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015. One of the major additions was in respect of ₹ 56,45,000/- under section 69 towards investment in flat No.G-301 at Iscon Platinum in respect of which booking letter dated 20/06/2011 was also issued by J.P. Iscon Ltd. The petitioner challenged order of assessment before the CIT (Appeals), who examined the issue at length and deleted the addition vide order dated 10.8.2017. The revenue preferred further appeal to the Tribunal which is pending adjudication. ( 3). Suddenly notice u/s. 148 dated 30.3.2018 is issued to the petitioner. The respondent provided reasons for reopening vide letter dated 25.4.2018 and on examination of the same, it is seen that the respondent is of the view that ₹ 7.10 lakh ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reopening proceedings are not tenable in light of the principles of merger as explained in the provisions of section 147 itself by the third proviso to section 147 of the Act since the income sought to be reassessed is already assessed and was subject matter of appeal before the CIT (Appeals), which is already adjudicated upon by the learned Commissioner. Even otherwise and without prejudice to the aforesaid ground, the petitioner respectfully submits that in absence of reasoned sanction under section 151 of the Income Tax Act, 1961 to invoke jurisdiction under section 147/148, the entire proceedings are bad in law as even assuming, mechanical sanction is obtained by the respondent, the settled position of law is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue is pending before the Tribunal in assessee s appeal. Section 147 of the Act as is well known, empowers the Assessing Officer to reopen the assessment, subject to certain conditions. 3rd proviso to section 147 however provides that the Assessing Officer may assess or reassess such income other than the income involving the matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. When the subject matter viz. The receipt of transfer of rights in land and the income relatable to such matter was the subject matter of appeal and thereafter second appeal, the principle of merger would apply. There cannot be two separate considerations to the same subject matter rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was framed under section 143(3) read with section 153A of the Act, whereby the amount of ₹ 3,00,000 had been added under section 69 of the Act. Therefore, the very same ₹ 3,00,000/- in respect of which the Assessing Officer seeks to reopen the assessment for the year under consideration, has already been taxed under the order dated 18.3.2015 made under section 143(3) read with section 153A of the Act. Therefore, ₹ 3,00,000/- has been held to be income chargeable to tax in the proceedings under section 143(3) read with section 153A of the Act and has been added to the income of the petitioner under section 69 of the Act, the very same income thereafter cannot be said to be income which has escaped assessment, inasmuch as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o assess or re-assess only such income which was not subject matter of appeal, reference or revision. In the present case, the Assessing Officer seeks to reopen the assessment in respect of income involving a matter which was subject matter of appeal before the Commissioner (Appeals). The reopening of assessment by the impugned notice under section 148 of the Act is, therefore, also hit by the third proviso to section 147 of the Act and is not permissible in law. 17. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned notice dated 30.3.2018 issued under section 148 of the Income Tax Act, 1961 seeking to reopen the assessment of the petitioner for assessment year 2011-12, is hereby qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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