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TMI Blog2022 (1) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) erred in law and on facts in rejecting the ground of appeal of the assessee that the reopening of assessment u/s 148 of the Act was void ab initio and illegal in view of the detailed submissions furnished by the assessee in the assessment proceedings as well as in the appellate proceedings. 3. The Ld. CIT (A) erred in law and on facts in not considering the reassessment proceedings invalid as the original assessment was completed u/s 143(3) and the assessment was reopened on the basis of the audit objection which was not the opinion of the assessing officer. 4. The Ld. CIT (A) erred in law and on facts in not appreciating that the reopening of the assessment proceedings for the impugned assessment year was merely on the basis of change of opinion which is not permissible under the law and thus was not a valid reopening of a completed assessment. 5. The Ld. CIT (A) erred in law and on facts in confirming the addition made by the assessing officer of Rs. 496,125/-us alleged escaped rental income on conjectures and surmises when the fact is that no rent was recoverable for the month of March 2009 in view of the termination of the rent agreement and the vacation of the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to Rs. 4,96,125/-. ii. The Assessing Officer further recorded that assessee has claimed deduction of Municipal Taxes of Rs. 22,43,956/-. He noted that total Municipal Tax is Rs. 48,76,776/- and assessee's share is 50% which is not correct. According to him, it should32% as against 50% and this has resulted into excess allowance of Municipal Taxes of Rs. 8,77,820/-. Therefore, according to the Assessing Officer he has reasoned to believe that income amounting to Rs. 13,73,945/- has escaped the assessment. 05. Notice under section 148 was issued at 18.03.2014. On 11.04.2014, assessee requested to consider the original return as compliance to the above notice. The learned Assessing Officer provided the reasons to the assessee for reopening of the assessment. Thereafter, the learned Assessing Officer passed an assessment order under section 143(3) read with section 147 of the Act on 13.03.2015 by making addition of Rs. 4,96,125/- as escaped rent and further disallowed Rs. 8,77,820/- on account of excess municipal taxes earlier allowed. Accordingly, the total income was assessed at Rs. 69,49,230/-. 06. The assessee preferred the appeal before the learned CIT(A) challenging the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement was terminated in February 2009. The rent for Nov 2008 to February 209 was also recovered from Security Deposit. Thereafter, there was no rental income for the month of March as property was vacant. Thus, the rent was received only for 11 months. He also took us to page no 35 of the paper book where in assessee received Rental income of Rs. 77,96,250/- for 11 months on which TDS is deducted of Rs. 182618/-. He submitted that all the payments are received through banking channel and are also reflected in form No. 26AS. Accordingly, there is no escapement of rental income. 09. With respect to the claim of municipal taxes, he submitted that the property in No. 101B and 101C is jointly owned by assessee along with his brother. The total property tax was 48,76,776/- . Subsequently, a credit was given for excess property tax of Rs. 7,94,863/- and therefore, expenditure claimed by the assessee was Rs. 20,40,956/- [ being 50 % of 40,81,913/-]. He submitted that assessing officer has wrongly interpreted rent agreement. The learned AO considered the total rent received by all these three parties for all these three properties and thereafter noted that assessee is deriving rental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment which is placed at page No.14 of the paper book clearly shows that when the "records were perused' by the learned Assessing Officer based on that he initiated the reassessment proceedings. Re-appreciation of the same evidence available before Assessing Officer at the time of original assessment does not entitle the Assessing Officer to reopen the assessment proceedings. To reopen a concluded assessment, AO is empowered, provided that there is a tangible material to come to the conclusion that there is an escapement of income. The Assessing Officer is authorized to reassess the income only if the material aspects were not brought his notice during original assessment proceedings. In the present case, we find that the assessee submitted the details of rental income and also the agreement with the tenant. The assessee also submitted the copy of account of the tenant as well as the rent income account. The assessee has also given the details of month wise rent received which shows that assessee received rent only 11 months from April to February. Even the form No.26AS submitted before the Assessing Officer clearly shows that assessee has received rent only for 11 months. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied the same in assumed ratio of total rental income from Prana Studios Pvt Ltd and then stated that assessee should have been allowed deduction of house tax only in proportion of rental income. Thus, he considered total property tax for shop no 101A, 101B and 101C and then applied ratio of rental income received by three owners and was of the view that assessee should also be granted house tax to the extent of only 32.17 % [being assessee's share in rental income assumed by AO]. In fact, assessee has produced rent agreement, property owned by assessee is different i.e. on 101B and 101 C, and he has nothing to do with property 101 a, that the property tax was also for 101B and 101C. For this two premises the assessee claimed deduction of property taxes proportionate to excess amounting to Rs. 22,40,956/-. Thus, there is no error in claim of deduction of house tax by assessee. 12. Even otherwise, the impugned assessment year is Assessment Year 2009-10, which was originally assessed under section 143(3) on 12.12.2011 and reopening was initiated by issuing of notice on 18.03.2014 without having any tangible material in possession of the Assessing Officer. Therefore, as the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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