| The Tax Publishers2021 TaxPub(DT) 0627 (Mum-Trib) INCOME TAX ACT, 1961
Section 148
Where issue raised under section 147 was already examined by AO while completing the assessment under section 143(3) and it was not open to the revenue to reopen the case on the same issue which was examined earlier while completing the assessment under section 143(3), since all the material facts had already been disclosed by assessee and assessee had furnished the reply also and after the satisfaction the matter of controversy was decided, therefore, the reopening was also bad in law.
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Reassessment - Validity - Issue raised under section 147 already examined by AO while completing assessment under section 143(3) -
Assessment was completed under section 143(3) by AO determining total income. Later, assessment was reopened under section 147 by issuance of notice under section 148 after the approval of the Principal Chief CIT. Reasons for reopening of assessment were that on examination of records it was seen that assessee had received rent income from property. Property was jointly owned by the assessee and her husband. Deposit amount received was found to be disproportionately high as compared to tent offered for taxation. Benefit derived by assessee from this deposit has to be considered for determining fair rental value. This fact was not disclosed by assessee during original assessment. Thus, AO had reason to believe that income chargeable to tax for determining fair rental value on the property had escaped assessment for assessment year 2010-11 by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. Held: The issue raised under section 147 was already examined by AO while completing the assessment under section 143(3). It was not open to the revenue to reopen the case on the same issue which was examined earlier while completing the assessment under section 143(3). All the material facts have already been disclosed by assessee. Moreover, after the issuance of notice, assessee had furnished the reply also and after the satisfaction the matter of controversy was decided. Since the assessee had not failed to disclose all the material facts necessary for assessment, therefore, reopening was also bad in law.
Followed:Phool Chand Bajrang Lal & Anr. v. ITO & Anr. (1993) 203 ITR 456, 477 (SC) : 1993 TaxPub(DT) 1453 (SC), ALA Firm v. CIT (1991) 189 ITR 285, 298 (SC) : 1991 TaxPub(DT) 1170 (SC), Indian And Eastern Newspaper Society v. CIT (1979) 119 ITR 996 (SC) : 1979 TaxPub(DT) 1081 (SC) and ITO, I Ward, Distt. VI, Calcutta, & Ors. v. Lakhmani Mewal Das (1976) 103 ITR 437, 445 (SC) : 1976 TaxPub(DT) 742 (SC).
REFERRED :
FAVOUR : In assessee's favour.
A.Y. : 2010-11
IN THE ITAT, MUMBAI BENCH
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