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TMI Blog2021 (12) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... he Authorities in the orders under appeal. We are of the view that the re-assessment proceedings in the subject assessment year, has been initiated contrary to second proviso to Section 147 (1) of the Act. For the above reasons and expressing full agreement with the the findings recorded by the CIT(Appeals) and Tribunal, we answer the question against Revenue and in favour of the Assessee. Addition on electricity duty and short provision of interest on Government loan made u/s 43B - HELD THAT:- Question No.2 is covered by the judgment of this Court in Kerala State Electricity Board V. Deputy Commissioner of Income Tax [ 2019 (8) TMI 727 - ITAT COCHIN] against the Revenue and in favour of Assessee. - ITA No. 20 of 2020 - - - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 147 whereby excessive relief allowed and excessive loss or any other allowance admitted are deemed to be a case where income chargeable to tax has escaped assessment b) the appeal against order u/s 143(3) was filed on the issue involved and not on the quantum of addition and hence proviso to 148 does not apply. 2) Is the Hon'ble Tribunal right in confirming the decision of the Commissioner of Income Tax(Appeals) and quashing the assessment order dated 30/12/2010, thereby deleting the addition of ₹ 1,39,50,19,000/- on electricity duty and ₹ 15,83,00,000/- short provision of interest on Government loan, made u/s 43B, relying on the jurisdictional High Court's decision in the assessee's own case for earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.1.3 The facts of the case, the grounds of appeal and the arguments of the Appellant have been considered. From the reasons stated for reopening of the assessment, it is evident that there were arithmetical errors in the computation of income in the original assessment order and the assessment was reopened for purely for correcting those arithmetical mistakes. However, while disposing the appeal against the original assessment order, the Ld. CIT(A) has discussed all these issues and decided in the appeal order passed on 26.02.2008. The appeal effect giving order was passed by the Assessing Officer on 31.03.2008 and the contents of the same are as under: Consequent on giving effect to the order of the CIT(A) referred to above the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding that the assessee does not come within the purview of section 115JB of the Income-tax Act. Hence the computation of book profit made in the assessment order stands cancelled. The following grounds are restored back to the Assessing Officer. The assessee is to produce evidence/documents etc to substantiate their claim. Provision for DA arrears 369,000,000 Interest on government loan 158,300,000 Penal interest 1,233,600,000 Incentive payable to power grid corpn. Disallowed in the order of AY 04-05 21,900,000 R.Dolly Deputy Commissioner of Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his assessment, for that assessment year: Provided further that nothing contained in the first proviso shall apply in a case where any income in relation to any asset (including financial interest in any entity) located outside India, chargeable to tax, has escaped assessment for any assessment yea)r: Provided also that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. [Emphasis Supplied] 4.1.5. Therefore, per the second proviso to the section 147 of the Act, the assessment cannot be reopened on issues which are under appeal. Clearly, the reasons recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided also that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment and argues that there was no over-assessment of business loss and in substance what was pending before the CIT(Appeals) was the very same subject matter for which, notice under Section 147 was issued. He argues that the second proviso does not make any distinction between figures and the subject matter. It is not the case of Revenue that the subject matter of the notice under Section 147 was not the subject matter before the Appellate Authority. Therefore, in all fours, the second proviso is attracted t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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