Margadarsi Chit Fund(P)Ltd, Hyderabad V. ADDL.CIT, Hyderabad

ITA 1223/HYD/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1318 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-05-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 15-09-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAVINDRA SAI
• Assessee Lawyers: V SIVA KUMAR
• Keywords: Reopening of assessment; Period of limitation; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 143(3); 147; 148; 144; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO. 1223/HYD/2010 ASSESSMENT YEAR 2002-03 M/S. MARGADARSI CHIT FUND (P) LD., HYDERABAD PAN: AABCM4751G VS. THE ADDL. CIT RANGE-16 HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SRI V. SIVAKUMAR RESPONDENT BY: SRI RAVINDRA SAI DATE OF HEARING: 22.01.2013 DATE OF PRONOUNCEMENT: 22.02.2013 O R D E R O R D E R O R D E R O R D E R PER CHANDRA POOJARI, AM: PER CHANDRA POOJARI, AM: PER CHANDRA POOJARI, AM: PER CHANDRA POOJARI, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT(A)-V, HYDERABAD DATED 09.07.2010 FOR ASSESS MENT YEAR 2002-03. 2. THE ONLY ISSUE IN THIS APPEAL IS WITH REGARD TO REO PENING OF ASSESSMENT. 3. BRIEF FACTS OF THE ISSUE ARE THAT WHILE COMPLETING THE ASSESSMENTS FOR A.YS. 1995-96 TO 2001-02, THE ASSES SING OFFICER NOTICED THAT THE AMOUNT COLLECTED BY THE ASSESSEE COMPANY F ROM ITS CHIT FUND SUBSCRIBERS IN THE FORM OF THE PENALTY FOR LATE PAY MENT, DIVIDEND FORFEITED, ETC., HAD NOT BEEN SHOWN AS INCOME. ADDITIONS ON T HE ABOVE ACCOUNT WERE MADE IN THE RELEVANT ASSESSMENT YEARS WHICH WERE TH EN CONFIRMED BY THE THEN CIT(APPEALS). THE TRIBUNAL VIDE ITS ORDER IN I TA NOS. 912/H/98, 693/H/99, 733 TO 736/H/02 & 1134/H/03 DATED 21.06.2 007 ALLOWED THE APPEAL OF THE ASSESSEE DELETING THE ADDITIONS M ADE IN ALL THESE YEARS. THE ASSESSING OFFICER STATED THAT THE TRIBUNAL HAD GIVEN A FINDING THAT THE INCOME IN QUESTION HAD ACCRUED TO THE ASSESSEE ONLY IN THE A.Y. 2002-03, WHEN THE RIGHT TO RECEIVE THESE AMOUNTS HAD FRUCTIF IED. ON THIS BASIS, THE IT A NO. 1223/HYD/2010 M/S. MARGADARSI CHIT FUND (P) LTD. ========================= 2 ASSESSING OFFICER REOPENED THE ASSESSMENT FOR A.Y. 2002-03 BY ISSUING NOTICE U/S. 148 OF THE ACT DATED 22.7.2008. 4. ON REOPENING OF THE ASSESSMENT, THE ASSESSEE WENT I N APPEAL BEFORE THE CIT(A). THE CIT(A) PLACED RELIAN CE ON THE ORDER OF THE TRIBUNAL IN THE CASE OF MODEL CHIT CORPORATI ON IN ITA NO. 562/HYD/2004 DATED 30.1.2007 HELD THAT THE RECEIPTS IN QUESTION WERE TO BE TAXED ONLY IN THE ASSESSMENT YEAR WHEN T HE RIGHT TO RECEIVE WAS DETERMINED. WHATEVER WAS RECEIVED EARL IER TO THAT TIME WAS NOT TO BE TAXED IN THE EARLIER ASSESSMENT YEAR BUT WAS TO BE TREATED AS A PROVISIONAL RECEIPT IN THE HANDS OF THE ASSESS EE AS A CUSTODIAN OF THE AMOUNT. THE TRIBUNAL HELD THAT THE FACTS IN THE PRE SENT CASE ARE IDENTICAL. IN OTHER WORDS, THE AMOUNTS RECEIVED BY THE ASSESSE E ON ACCOUNT OF PENALTIES FOR LATE PAYMENT, DIVIDEND FORFEITED, SUB SCRIPTION FORFEITED, ETC., ARE TO BE TAXED IN THE YEAR IN WHICH THE RIGHT TO R ECEIVE THESE AMOUNTS IS FINALLY DETERMINED IN THE HANDS OF THE ASSESSEE. TH ESE RECEIPTS ARE THUS TO BE TAXED IN THAT YEAR AND NOT IN THE EARLIER YEARS WHEN THEY WERE RECEIVED I.E., AY 1995-96 TO 2001-02. IN VIEW OF THESE REAS ONS, THE TRIBUNAL DELETED THE ADDITIONS MADE IN THE ASSESSMENT YEARS 1995-96 TO 2001-02. THE REASON WAS NOT THAT THESE AMOUNTS WERE NOT TAXA BLE. RATHER THEY WERE TAXABLE IN THE YEAR WHEN THE RIGHT TO RECEIVE WAS ESTABLISHED. IN THE CASE OF THE ASSESSEE THIS RIGHT WAS ESTABLISHED IN THE CURRENT ASSESSMENT YEAR I.E. AY 2002-03. IN THE LIGHT OF THE ORDER, I T IS CLEAR THAT PROVISIONS OF SECTION 150(1) OF THE ACT WERE CLEARLY ATTRACTED AS A RESULT OF THE OBSERVATIONS MADE BY THE TRIBUNAL IN ITS ORDER REFE RRED TO ABOVE. THEREFORE, THE ASSESSING OFFICER WAS DEFINITELY WIT HIN HIS RIGHTS TO ISSUE NOTICE UNDER SECTION 148 OF THE ACT AND REOPEN THE ASSESSMENT. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES, THE ISS UE IS DECIDED IN FAVOUR OF REVENUE. AGAINST THIS THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LEARNED AR SUBMITTED THAT THE FINDINGS OF THE T RIBUNAL IN THE CASE OF THE ASSESSEE IN ITA NO. 912/HYD/98 AND OTHERS FOR A.Y. 1995-96 AND OTHERS VIDE ORDER DATED 21.6.2007 IS LIMITED TO THOSE ASSESSMENT YEARS INVOLVED IN THOSE APPEALS AN D IT CANNOT BE BORROWED FOR THE ASSESSMENT YEAR UNDER CONSIDERATIO N. THE IT A NO. 1223/HYD/2010 M/S. MARGADARSI CHIT FUND (P) LTD. ========================= 3 ASSESSMENT YEAR UNDER CONSIDERATION HAS NOTHING TO DO WITH THE FINDINGS IN THIS ORDER. HE SUBMITTED THAT THE ASSE SSING OFFICER CANNOT IMPORT THE FINDINGS IN THE ORDER OF THE TRIB UNAL CITED SUPRA IN ASSESSEES OWN CASE FOR REOPENING OF THE ASSESSM ENT FOR A.Y. 2002-03. HE SUBMITTED THAT 'FINDING' WITHIN THE ME ANING OF SECTION 153(3)(II) MUST BE A FINDING NECESSARY FOR THE DISPOSAL OF THE PARTICULAR CASE IN RESPECT OF THE PARTICULAR AS SESSEE AND IN RELATION TO THE PARTICULAR ASSESSMENT YEAR. THE 'D IRECTION' FROM THE VIEW POINT OF SECTION 153(3)(II) MUST BE AN EXP RESS DIRECTION NECESSARY FOR DISPOSAL OF THE CASE BEFORE THE ASSES SING OFFICER. ACCORDING TO THE AR THERE IS NO EXPRESS DIRECTION I N THE ITAT ORDER CITED SUPRA FOR THE EARLIER ASSESSMENT YEAR. BEING SO, THE ASSESSING OFFICER IS PRECLUDED IN REOPENING THE ASS ESSMENT. HE RELIED ON THE JUDGEMENT OF THE SUPREME COURT IN THE CASE OF RAJENDER NATH V. CIT (120 ITR 14), P.J. UDANI V. CI T (63 ITR 766) AND ACIT VS. PARIDHAN EXPORTS (115 ITD 87) (CHENNAI ). 6. THE LEARNED AR DREW OUR ATTENTION TO THE PROVISO TO SECTION 147 OF THE IT ACT WHICH READS AS UNDER: 'PROVIDED THAT WHERE AN ASSESSMENT UNDER SUB-SECTIO N (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR TH E RELEVANT ASSESSMENT YEAR, NO ACTION SHALL BE TAKEN UNDER THIS SECTION AFTER THE EXPIRY OF FOUR YEARS FROM TH E END OF RELEVANT ASSESSMENT YEAR, UNLESS ANY INCOME CHARGEA BLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE T O MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB-SECTION (1) OF SECTION 142 OR SECTION 148 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSA RY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. ' 7. THE AR SUBMITTED THAT AS COULD BE SEEN FROM THE ABO VE PROVISO WHERE AN ASSESSMENT WAS ALREADY COMPLETED U/S 143(3 ) SUCH ASSESSMENT CANNOT BE REOPENED AFTER THE EXPIRY OF F OUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IN WHICH THE ASSESS MENT WAS COMPLETED. THEREFORE, IN THE ASSESSEE'S CASE, SINCE ITS ASSESS MENT WAS COMPLETED U/S 143(3) ON 18.3.2005 THE SAME CANNOT BE REOPENED AFTER FOUR YEARS OF IT A NO. 1223/HYD/2010 M/S. MARGADARSI CHIT FUND (P) LTD. ========================= 4 THE RELEVANT ASSESSMENT YEAR IN WHICH THE ASSESSMEN T WAS COMPLETED I.E., THE ASSESSMENT CANNOT BE REOPENED BEYOND 31.3.2007 UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON THE PART OF THE AS SESSEE IN DISCLOSING FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR COMPLETI ON OF ASSESSMENT FOR THAT ASSESSMENT YEAR. THE AR SUBMITTED THAT SINCE THE NO TICE U/S. 148 WAS ISSUED AFTER FOUR YEARS OF COMPLETION OF ORIGINAL A SSESSMENT, THE REOPENING OF ASSESSMENT FOR THE ASSESSMENT YEAR 2002-2003 IS BAD IN LAW. 8. IN THIS CONNECTION THE AR RELIED ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT V. FORAMER FRANCE [264 ITR 566] FOR THE PROPOSITION THAT 'WHERE AN ASSESSMENT WAS ALREADY C OMPLETED U/S. 143(3) SUCH ASSESSMENT CANNOT BE REOPENED AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IN WHICH TH E ASSESSMENT WAS COMPLETED' WHEN THERE IS NO FAILURE TO FILE RETURN OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS. THE AR ALSO RELIED ON THE DECISION OF ANDHRA PRADESH HIGH COURT IN THE CASE OF MAHALAKSHMI MOTOR S LTD. V. DCIT [265 ITR 53] WHEREIN IT WAS HELD THAT ISSUE OF NOTICE U/ S. 148 IS NOT VALID WHEN ALL THE MATERIAL FACTS FOR COMPLETION OF ASSESSMENT ARE FILED BY THE ASSESSEE. THE AR ALSO RELIED ON THE FOLLOWING DECI SIONS FOR THE PROPOSITION THAT REOPENING OF THE ASSESSMENT COMPLETED U/S. 143 (3) BEYOND FOUR YEARS IS NOT PERMISSIBLE WHEN THERE IS NO FAILURE O N THE PART OF THE ASSESSEE TO DISCLOSE ALL THE MATERIALS: 1. AMIYA SALES & INDUSTRIES V. DCIT (274 ITR 25) (CAL) 2. FENNER- INDIA LTD. V. DCIT (241 ITR 672) (MAD) 3. MCDERMOTT INTERNATIONAL INC. V. ACIT (259 ITR 138) (UTTARAKHAND) 4. SITA WORLD TRAVEL (INDIA) LTD. V. CIT (274 ITR 186) (DELHI) 5. GRINDWELL NORTON LTD. V. ACIT (267 ITR 673) (BOM) 6. DULICHAND SINGHANIA V. ACIT (269 ITR 192) (P&H) 7. SIMPLEX CONCRETE PILES (INDIA) LTD. V. DCIT (262 IT R 605) (CAL) 8. PARIKH PETROL CHEMICAL AGENCIES V. ACIT (266 ITR 19 6) (BOM) 9. THE AR SUBMITTED THAT SINCE ALL THE INFORMATION REL ATING TO AMOUNTS RECEIVED TOWARDS PENALTIES FOR LATE PAYMENTS, DIVID ENDS FORFEITED, SUBSCRIPTIONS FORFEITED, INTEREST ON DELAYED SUBSCR IPTIONS, CHARGES FOR DUPLICATE PASS BOOKS ETC., WAS AVAILABLE BEFORE THE THEN ASSESSING OFFICER AT THE STAGE OF ORIGINAL ASSESSMENT, THERE WAS NO F AILURE ON THE PART OF THE IT A NO. 1223/HYD/2010 M/S. MARGADARSI CHIT FUND (P) LTD. ========================= 5 ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL F ACTS NECESSARY FOR COMPLETION OF THE ASSESSMENT. THEREFORE, THE AR SUB MITTED THAT NO NEW MATERIAL WHICH WAS NOT FURNISHED BY THE ASSESSEE AT THE TIME OF ORIGINAL ASSESSMENT WITH REGARD TO THE ABOVE ISSUES HAS COME ON RECORD AFTER THE ASSESSMENT IS COMPLETED AND, THEREFORE, REOPENING O F ASSESSMENT IS ONLY DUE TO MERE CHANGE OF OPINION AND THAT TOO BEYOND T HE TIME LIMIT AS SPECIFIED IN THE PROVISO TO SECTION 147 OF THE ACT WHICH IS BAD IN LAW. THE AR RELIED ON THE FOLLOWING CASES FOR THE PROPOSITIO N THAT 'ASSESSMENT CANNOT BE REOPENED U/S. 147 OF THE ACT ON CHANGE OF OPINION OF THE ASSESSING OFFICER WHEN THE ASSESSEE HAS ALREADY DIS CLOSED ALL THE INFORMATION NECESSARY FOR COMPLETION OF ORIGINAL AS SESSMENT'. 1. CIT V. BHAVJI LAVJI [79 ITR 582 (SC)] 2. CIT V. KELVINATOR OF INDIA LTD. [256 ITR 1 (DELHI)( FB)] 3. JCIT V. GEORGE WILLIAMSON (ASSAM) LTD. [258 ITR 126 (GAUHATI)] 4. CIT V. RAJASTHAN PATRIKA LTD. [258 ITR 300 (RAJ)] 5. JINDAL PHOTO FILMS LTD. V. DCIT [234 ITR 170 (DELHI )] 6. GARDEN SILK MILLS (P) LTD. V. DCIT [237 ITR 668 (GU J)] 7. GENERAL MRIGENDRA SHUM SHER JUNG BAHADUR RANA V. IT O [123 ITR 329,335 (DELHI)] 8. INDIAN & EASTERN NEWSPAPER SOCIETY V. CIT [119 ITR 966 (SC)] 9. RAM KISHAN OIL MILLS V. CIT [56 ITR 186 (MP)] 10. ADD.CIT V. GANESHILAL LAL CHAND [154 ITR 274 (RAJ)] 11. CWT V. SHIVRAM SINGH [163 ITR 773 (PAT)] 12. CIT V. KALAPPA [167 ITR 22 (KAR)] 13. TANTIA CONSTRUCTION CO. LTD. V. DCIT [257 ITR 84 (C AL)] 10. THE AR FURTHER SUBMITTED THAT THE ASSESSING OFFICER BY LETTER DATED 18.11.2009 REQUIRED THE ASSESSEE TO EXPLAIN AS TO W HY AN AMOUNT OF RS. 22,87,14,965/- SHOULD NOT BE ADDED TO INCOME FOR TH E ASSESSMENT YEAR 2002-03 STATING AS UNDER: '2. IN THIS CONNECTION, YOUR ATTENTION IS DRAWN TO THE ORDER OF THE HON'BLE ITAT, HYDERABAD IN ITA NO. 912/H/98, 693/H/99, 733 TO 736/H/2002 AND 1134/H/2003 DATED 21.06.07 WHEREIN THE HON'BLE ITAT HAS GIVEN A FINDI NG THAT THE INCOME UNDER QUESTION IS ACCRUED TO THE ASSESSE E IN THE A.Y. 2002-03. BASING ON THE FINDING OF THE HON'BLE ITAT, THE ASSESSMENT WAS RE-OPENED BY INVOKING THE PROVISIONS UNDER SECTION 150(1) OF THE IT ACT. AS SUCH, THE RE- OPEN ING OF THE ASSESSMENT IS CORRECT IN LAW. 3. YOU ARE ONCE AGAIN GIVEN AN OPPORTUNITY TO EXPLA IN WHY THE AMOUNT OF RS. 22,87,14,965 SHOULD NOT BE ADDED TO THE IT A NO. 1223/HYD/2010 M/S. MARGADARSI CHIT FUND (P) LTD. ========================= 6 INCOME FOR THE A.Y. 2002-03. FOR FILING OF REPLY TO THE ABOVE, YOUR CASE IS POSTED FOR HEARING ON 25.11.2009 AT 11 .00 A.M.' 11. IN THIS CONNECTION THE AR SUBMITTED THAT THE OBSERV ATION IN THE LETTER THAT THE 'ITAT HAS GIVEN A FINDING THAT THE INCOME UNDER QUESTION IS ACCRUED TO THE ASSESSEE IN THE A.Y. 2002-03' IS NOT CORRECT. THE AR INVITED OUR ATTENTION TO THE ITAT ORDER AT PAGE 5 AFTER EXT RACT OF THE DECISION WHEREIN IT WAS HELD AS UNDER. 'IN THE ABSENCE OF ANY DISTINGUISHABLE FEATURE OR C ONTRARY DECISION BROUGHT ON RECORD BY THE REVENUE, WE RESPE CTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL, HOLD THAT THE ID. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDERS OF THE AO IN TREATING THE CONTINGENT RECEIPTS AS INCOME OF THE A SSESSEE FOR ALL THE YEARS UNDER CONSIDERATION AND ACCORDING LY THE IMPUGNED ADDITIONS MADE BY THE AO AND SUSTAINED BY THE ID. CIT(A) IN ALL THE IMPUGNED ASST. YEARS ARE HERE BY DELETED. THE COMMON GROUND TAKEN BY THE ASSESSEE, IS THEREFO RE ALLOWED. NO OTHER GROUND WAS PRESSED.' 12. THE AR SUBMITTED THAT AS COULD BE SEEN FROM THE ABO VE, THE HON'BLE ITAT HELD THAT THE CIT (APPEALS) IS NOT JUS TIFIED IN UPHOLDING THE ORDERS OF THE ASSESSING OFFICER IN TREATING THE CON TINGENT RECEIPTS AS INCOME OF THE ASSESSEE FOR VARIOUS ASSESSMENT YEARS UNDER CONSIDERATION BEFORE IT. THE TRIBUNAL DID NOT HOLD THAT THE CONTI NGENT RECEIPTS ACCRUED TO THE ASSESSEE FOR THE ASSESSMENT YEAR 2002-03. THER EFORE, IN THE ABSENCE OF ANY SUCH FINDING BY THE ITAT, REOPENING THE ASSE SSMENT AND ASSESSING THE CONTINGENT RECEIPTS OF RS. 22,87,14,965 IN THE ASSESSMENT YEAR 2002- 03 BY THE ASSESSING OFFICER IS NOT JUSTIFIED. 13. THE DR SUBMITTED THAT A PLAIN READING OF THE ABOVE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE CLEARLY SHOWS THAT THE TRIBUNAL HAS RELIED UPON THE DECISION OF ITSELF IN THE CASE OF ACIT V. MODEL CHIT CORPORATION CITED SUPRA, WHEREIN IT WAS CATEGORICALLY HELD THAT THE RECEIPTS IN QUESTION WERE TO BE TAXED ONLY IN THE ASSESSMENT YEAR WHEN R IGHT TO RECEIVE WAS DETERMINED. WHATEVER WAS RECEIVED EARLIER TO THAT T IME WAS NOT TO BE TAXED IN THE EARLIER ASSESSMENT YEAR BUT WAS TO BE TREATED AS A PROVISIONAL RECEIPT IN THE HANDS OF THE ASSESSEE AS A CUSTODIAN OF THE AMOUNT. THE ITAT HELD THAT THE FACTS IN THE PRESENT CASE ARE ID ENTICAL. IN OTHER WORDS, IT A NO. 1223/HYD/2010 M/S. MARGADARSI CHIT FUND (P) LTD. ========================= 7 THE AMOUNTS RECEIVED BY THE ASSESSEE ON ACCOUNT OF PENALTIES FOR LATE PAYMENT, DIVIDEND FORFEITED, SUBSCRIPTION FORFEITED , ETC. ARE TO BE TAXED IN THE YEAR IN WHICH THE RIGHT TO RECEIVE THESE AMOUNT S IS FINALLY DETERMINED IN THE HANDS OF THE ASSESSEE . THESE RECEIPTS ARE T HUS TO BE TAXED IN THAT YEAR AND NOT IN THE EARLIER YEARS WHEN THEY WERE RE CEIVED I.E. A.YS. 1995- 96 TO 2001-02. IN VIEW OF THESE REASONS, THE ITAT DELETED THE ADDITIONS MADE IN THE ASSESSMENT YEARS 1995-96 TO 2001-02. T HE REASON WAS NOT THAT THESE AMOUNTS WERE NOT TAXABLE. RATHER THEY WE RE TAXABLE IN THE YEAR WHEN THE RIGHT TO RECEIVE WAS ESTABLISHED. IN THE CASE OF THE ASSESSEE THIS RIGHT WAS ESTABLISHED IN THE CURRENT ASSESSMENT YEA R I.E., A.Y. 2002-03. 14. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. WE HAVE CAREFULLY GONE THROUGH THE EARLIER ORDER OF THE TRIBUNAL DATED 21.6.2007 IN ASSESSEES OWN CASE IN ITA NO. 912/ HYD/1998, 693/HYD/1999, 733 TO 736/HYD/2002 AND 113 4/ HYD/2003 FOR THE A.YS. 1995-96, 1996-97, 1997-98 TO 2001-02. THERE WAS FINDING BY THE TRIBUNAL IN ITS ORDER IN P ARA 6 AS FOLLOWS: '6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS O F RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE FACTS ARE NOT IN DISPUTE. WE FURT HER FIND THAT IT IS ALSO NOT IN DISPUTE THAT THE FACTS OF TH E ASES CASE ARE SIMILAR TO THE FACTS OF THE CASE DECIDED BY THE TRIBUNAL IN THE CASE OF ACIT VS. MODEL CHIT CORPN. LIMITED (SUP RA) WHEREIN THE TRIBUNAL AFTER CONSIDERING THE DECISION S OF HONBLE SUPREME COURT AND BOMBAY HIGH COURT IN KCP LTD. VS. CIT (2000) 245 ITR 421 (SC), CIT VS. SHARADA SU GAR INDUSTRIES LTD. (2003) 239 ITR 393 (BOM) AND CIT VS . WALCHAND NAGAR INDUSTRIES LTD. (2003) 262 ITR 212 ( BOM) HAS HELD VIDE PARA 12 OF ITS ORDER AS UNDER:- 'IN THE PRESENT CASE, DURING THE PENDENCY OF THE WR IT PETITION BEFORE THE A.P. HIGH COURT, THE ASSESSEE W AS DIRECTED NOT ONLY TO MAINTAIN THE ACCOUNTS OF THE INDIVIDUAL SUBSCRIBERS BUT ALSO TO PAY INTEREST AT THE RATE OF 16% IN THE EVENT THE APPEAL FILED BY THE ASSESSE E FAILS. THUS, IN EFFECT, THE ASSESSEE WAS PERMITTED TO COLLECT THE CHARGES PENDING DISPOSAL OF THE WRIT AP PEAL IN ORDER TO SAFEGUARD ITS INTEREST AND IN ORDER TO SAF EGUARD THE INTERESTS OF THE SUBSCRIBERS. THE ASSESSEE WAS DIRECTED TO PAY INTEREST THEREON IF THE ASSESSEE'S APPEAL FAILS. THE ASSESSEE'S APPEAL WAS SUBSEQUENTLY DECID ED IN ITS FAVOUR AND IT WAS HELD TO BE ENTITLED TO COLLEC T THE AMOUNT. HENCE, WHATEVER THE ASSESSEE RECEIVED WAS IT A NO. 1223/HYD/2010 M/S. MARGADARSI CHIT FUND (P) LTD. ========================= 8 ONLY A PROVISIONAL RECEIPT AS A CUSTODIAN OF THE AM OUNT. IF ULTIMATELY, THE APPEAL WAS DECIDED AGAINST THE ASSESSEE, THE ASSESSEE WAS LIABLE TO PAY THE INTERE ST TO THE SUBSCRIBERS. IT ALL DEPENDED ON THE FINAL VERDI CT OF THE HIGH COURT IN THE WRIT APPEAL. THEREFORE, IT CAN BE SAID THAT IT WAS A CONTINGENT RECEIPT AND WOULD ATTAIN T HE NATURE OF INCOME ONLY WHEN THE ISSUE OF THE RIGHT T O RECEIVE THE AMOUNT IS ADJUDICATED. IN THIS CASE, TH E ISSUE WAS DECIDED IN THE YEAR 2002 AND THEREFORE IN OUR OPINION, IT ACCRUED TO THE ASSESSEE IN 2002-2003 WH EN ITS RIGHT WAS DETERMINED. IT IS TAXABLE IN THE RELE VANT ASSESSMENT YEAR. IN THIS VIEW OF THE MATTER, WE DO NOT SEE ANY REASON TO INTERFERE WITH THE ORDER OF THE C IT(A) AND WE CONFIRM THE SAME.' 15. THE ASSESSING OFFICER TAKEN A CLUE FROM THIS ORDER AND REOPENED THE ASSESSMENT FOR THE A.Y. 2002-03. 16. THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSIN G OFFICER CANNOT REOPEN THE ASSESSMENT ON THE BASIS OF THE AB OVE FINDINGS OF THE TRIBUNAL. THE PRIMARY CONTENTION OF THE AR IS THAT THE REOPENING NOTICE U/S. 148 IS BARRED BY LIMITATION. SECTION 147 DEFINES THE POWER AND JURISDICTION FOR MAKING AN AS SESSMENT OR RE- ASSESSMENT OF SO CALLED INCOME. SECTION 148 PROVID ES FOR ISSUE OF NOTICE FOR OPENING OF AN ASSESSMENT. IT IS AN ACCE PTED POSITION THAT PURSUANT TO THE ORDER OF TRIBUNAL DATED 21.6.2007 I N ITA NO. 912/HYD/98 & OTHERS THE ASSESSING OFFICER HAS ISSUED NOTICE UN DER S. 148 OF THE ACT FOR REOPENING ASSESSMENT FOR THE ASST. YR. 2002-03 IN RESPECT OF INCOME THAT HAD ESCAPED ASSESSMENT. THE PRINCIPAL CONTENTI ON OF THE ASSESSEE THAT THE SAID NOTICE IS BARRED BY LIMITATION IS REQ UIRED TO BE EXAMINED IN THE LIGHT OF THE PROVISIONS OF CHAPTER XIV OF THE A CT, WHICH MAKES PROVISION FOR THE 'PROCEDURE OF ASSESSMENT'. UNDER THE SCHEME OF THE IT ACT, 1961, S. 147 DEFINES THE POWER AND JURISDICTION FOR MAKIN G AN ASSESSMENT OR A REASSESSMENT OF ESCAPED INCOME. IT CATEGORISES THE DIFFERENT CONTINGENCIES AND CIRCUMSTANCES WHERE AN ASSESSMENT OR A REASSESSMENT MAY BE MADE. S. 148 PROVIDES FOR INITI ATION OF REASSESSMENT PROCEEDINGS. SEC. 149 PRESCRIBES THE TIME-LIMIT WIT HIN WHICH A REASSESSMENT NOTICE MAY BE ISSUED BY THE AO ON THE ASSESSEE CONCERNED. SEC. 150 WHICH PROVIDES FOR ISSUANCE OF NOTICE UNDE R S. 148 AT ANY TIME IT A NO. 1223/HYD/2010 M/S. MARGADARSI CHIT FUND (P) LTD. ========================= 9 FOR THE PURPOSE OF MAKING AN ASSESSMENT OR REASSESS MENT OR RE- COMPUTATION IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER PASSED BY ANY AUTHORITY IN AN Y PROCEEDING UNDER THE ACT BY WAY OF APPEAL, REFERENCE OR REVISION, IS BY WAY OF EXCEPTION TO THE RULES OF LIMITATION LAID DOWN IN S. 149. IF A CASE FALLS WITHIN THE CIRCUMSTANCES MENTIONED IN S. 150, THE TIME LIMITS STIPULATED UNDER S. 149 DO NOT HAVE APPLICATION. SEC. 153 OF THE ACT PROVID ES FOR THE TIME-LIMIT FOR COMPLETION OF ASSESSMENTS AND REASSESSMENTS. SUB-S. (1) OF S. 153 PRESCRIBES THE TIME-LIMIT FOR MAKING AN ORDER OF AS SESSMENT UNDER S. 143 AND S. 144 OF THE ACT, AND SUB-S. (2) THEREOF PRESC RIBES THE TIME-LIMIT FOR MAKING AN ORDER OF ASSESSMENT, REASSESSMENT OR RE-C OMPUTATION UNDER S. 147. SUB-S. (3) OF S. 153 WHICH IS BY WAY OF AN EXC EPTION TO SUB-SS. (1) AND (2) OF S. 153 PROVIDES FOR THE CLASSES OF ASSESSMEN TS, REASSESSMENTS AND RE-COMPUTATIONS WHICH MAY, SUBJECT TO THE PROVISION S OF SUB-S. (2A) BE COMPLETED AT ANY TIME. SUCH CLASSES ARE ENUMERATED UNDER CLS. (I) TO (III) THEREUNDER. CLAUSE (II) THEREOF WHICH IS RELEVANT F OR THE PRESENT PURPOSE, PROVIDES FOR ASSESSMENT, REASSESSMENT OR RE-COMPUTA TION IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CO NTAINED IN AN ORDER, UNDER SS. 250, 254, 260, 262, 263 OR 264 OR IN AN ORDER O F ANY COURT IN A PROCEEDING OTHERWISE THAN BY WAY OF APPEAL OR REFER ENCE UNDER THE ACT. 17. IN THE FACTS OF THE PRESENT CASE, IT IS THE CASE OF REVENUE THAT NOTICE UNDER S. 148 HAS BEEN ISSUED FOR THE PURPOSE OF MAKING A REASSESSMENT TO GIVE EFFECT TO THE FINDING CONTAINE D IN THE ORDER OF THE TRIBUNAL CITED SUPRA. HENCE, IN VIEW OF THE PROVIS IONS OF S. 150 R/W S. 153(3) OF THE ACT AND EXPLN. 2 THERETO, THE NOTICE HAS BEEN ISSUED WITHIN THE PERIOD OF LIMITATION. THE QUESTION THAT, THEREF ORE, ARISES FOR CONSIDERATION IS AS TO WHETHER THE IMPUGNED NOTICE SATISFIES THE REQUIREMENTS OF S. 150 R/W S. 153(3) OF THE ACT. 18. SEC. 150, AS WAS IN FORCE AT THE RELEVANT TIME, REA DS THUS : '(1) NOTWITHSTANDING ANYTHING CONTAINED IN S. 149, THE NOTICE UNDER S. 148 MAY BE ISSUED AT ANY TIME FOR T HE PURPOSE OF MAKING AN ASSESSMENT OR REASSESSMENT OR RE- COMPUTATION IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER PASSED B Y ANY IT A NO. 1223/HYD/2010 M/S. MARGADARSI CHIT FUND (P) LTD. ========================= 10 AUTHORITY IN ANY PROCEEDING UNDER THIS ACT BY WAY O F APPEAL, REFERENCE OR REVISION. (2) THE PROVISIONS OF SUB-S. (1) SHALL NOT APPLY IN ANY CASE WHERE ANY SUCH ASSESSMENT, REASSESSMENT OR RE- COMPUTATION AS IS REFERRED TO IN THAT SUB-SECTION R ELATES TO AN ASSESSMENT YEAR IN RESPECT OF WHICH AN ASSESSMEN T, REASSESSMENT OR RE-COMPUTATION COULD NOT HAVE BEEN MADE AT THE TIME THE ORDER WHICH WAS THE SUBJECT-MATTER OF THE APPEAL, REFERENCE OR REVISION, AS THE CASE MAY BE, WAS MADE BY REASON OF ANY OTHER PROVISION LIMITING THE TIME WITHIN WHICH ANY ACTION FOR ASSESSMENT, REASSESSMEN T OR RE- COMPUTATION MAY BE TAKEN.' 19. ON A PLAIN READING OF THE PROVISIONS OF S. 150, IT IS APPARENT THAT UNDER SUB-S. (1) THEREOF, THE TIME-LIMIT STIPULATED UNDER S. 149 IS REMOVED IN CASE NOTICE FOR REASSESSMENT IS ISSUED IN CONSEQ UENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN ANY ORDER PASSED BY ANY AUTHORITY BY WAY OF APPEAL, REFERENCE OR REVISION. SUB-S. (2) THEREOF MAKES IT CLEAR THAT THE REASSESSMENT PERMISSIBLE UNDER SU B-S. (1) OF S. 150 CANNOT BE MADE BY THE DEPARTMENT, WHERE THE PERIOD OF LIMITATION FOR ASSESSMENT OR REASSESSMENT HAD EXPIRED AT THE TIME WHEN THE ORDER, WHICH WAS THE SUBJECT-MATTER OF APPEAL, ETC., FOR A NOTHER ASSESSMENT YEAR HAD BEEN ORIGINALLY MADE. 20. SEC. 153 PROVIDES FOR TIME-LIMIT FOR COMPLETION OF ASSESSMENTS AND REASSESSMENTS. SUB-S. (1) THEREOF PROVIDES THAT NO ORDER OF ASSESSMENT SHALL BE MADE UNDER S. 143 OR S. 144 AT ANY TIME EX CEPT AS SPECIFIED THEREIN. SUB-S. (2) THEREOF PROVIDES FOR THE PERIOD OF LIMITATION WITHIN WHICH AN ORDER OF ASSESSMENT, REASSESSMENT OR RE-COMPUTAT ION SHALL BE MADE UNDER S. 147. SUB-S. (2A) THEREOF PROVIDES THAT IN RELATION TO THE ASST. YR. 1971-72 AND SUBSEQUENT YEARS, A FRESH ASSESSMENT UN DER S. 146 OR IN PURSUANCE OF AN ORDER UNDER SS. 250, 254, 263 OR 26 4, SETTING ASIDE OR CANCELLING AN ASSESSMENT, MAY BE COMPLETED AT ANY T IME BEFORE THE EXPIRY OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER UNDER S. 146 WAS MADE BY THE ITO OR THE ORDER UNDER S. 250 O R S. 254 IS RECEIVED BY THE CIT, OR THE ORDER UNDER S. 263 OR S. 264 IS PASSED BY THE CIT. SUB-S. (3) OF S. 153, AS IS RELEVANT FOR THE PRESENT PURPO SE, READS THUS : IT A NO. 1223/HYD/2010 M/S. MARGADARSI CHIT FUND (P) LTD. ========================= 11 '(3) THE PROVISIONS OF SUB-SS. (1) AND (2) SHALL NO T APPLY TO THE FOLLOWING CLASSES OF ASSESSMENTS, REASSESSMENTS AND RE-COMPUTATIONS WHICH MAY, SUBJECT TO THE PROVISION S OF SUB- S. (2A), BE COMPLETED AT ANY TIME (I) WHERE A FRESH ASSESSMENT IS MADE UNDER S. 146; (OMITTED BY FINANCE ACT, 2001 W.E.F. 1.6.2001) (II) WHERE THE ASSESSMENT, REASSESSMENT OR RE- COMPUTATION IS MADE ON THE ASSESSEE OR ANY PERSON IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER, UNDER SS. 250, 254 , 260, 262, 263 OR 264 OR IN AN ORDER OF ANY COURT IN A PROCEEDING OTHERWISE THAN BY WAY OF APPEAL OR REFERENCE UNDER THIS ACT; (III) WHERE, IN THE CASE OF A FIRM, AN ASSESSMENT IS MADE ON A PARTNER OF THE FIRM IN CONSEQUENCE OF AN ASSESSMENT MADE ON THE FIRM UNDER S. 147. . . . (IV) EXPLANATION 2.WHERE, BY AN ORDER REFERRED TO IN CL . (II) OF SUB-S. (3), ANY INCOME IS EXCLUDED FROM THE TOTAL INCOME OF THE ASSESSEE FOR AN ASSESSMENT YEAR , THEN, AN ASSESSMENT OF SUCH INCOME FOR ANOTHER ASSESSMENT YEAR SHALL, FOR THE PURPOSES OF S. 150 AND THIS SECTION, BE DEEMED TO BE ONE MADE IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN THE SAID ORDER.' 21. ON A PLAIN READING OF SUB-S. (3) OF S. 153 OF THE A CT, IT IS APPARENT THAT THE SAME LIFTS THE BAR OF LIMITATION LAID DOWN UNDER SUB-S. (1) AND SUB- S. (2) THEREOF IN RESPECT OF THE CLASSES OF ASSESSM ENTS, REASSESSMENTS OR RE-COMPUTATIONS ENUMERATED THEREUNDER. THUS, IN THE LIGHT OF THE PROVISIONS OF S. 153(3)(II) THE NORMAL TIME-LIMIT F OR COMPLETION OF ASSESSMENTS OR REASSESSMENTS, AS CONTAINED IN S. 15 3(1) OR S. 153(2), SHALL HAVE NO APPLICATION WHERE THE ASSESSMENT IS M ADE ON THE ASSESSEE OR ANY PERSON IN CONSEQUENCE OF OR TO GIVE EFFECT T O ANY FINDING OR DIRECTION CONTAINED IN AN ORDER UNDER SS. 250, 254, 260, 262, 263 OR 264 OR IN AN ORDER OF ANY COURT IN A PROCEEDING OTHERWISE THAN B Y WAY OF APPEAL OR REFERENCE UNDER THE ACT. 22. THE LANGUAGE EMPLOYED IN EXPLN. 2 TO S. 153 MAKES I T ABUNDANTLY CLEAR THAT UNDER THE SAID PROVISION, WHEN AN ORDER IN APPEAL, REVISION OR REFERENCE IS MADE WHEREBY ANY INCOME IS EXCLUDED FR OM THE TOTAL INCOME OF AN ASSESSEE FOR AN ASSESSMENT YEAR, THEN AN ASSE SSMENT OF SUCH IT A NO. 1223/HYD/2010 M/S. MARGADARSI CHIT FUND (P) LTD. ========================= 12 INCOME FOR ANOTHER ASSESSMENT YEAR SHALL BE DEEMED TO BE ONE MADE IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN THE SAID ORDER FOR THE PURPOSE OF S. 150 OR S. 153. THU S, FOR THE PURPOSE OF RESORTING TO THE EXCEPTION PROVIDED UNDER SUB-S. (3 )(II), IT IS NOT NECESSARY THAT THERE SHOULD BE ANY SPECIFIC FINDING OR DIRECT ION CONTAINED IN THE SAID ORDER WITH REGARD TO ASSESSMENT OF INCOME FOR ANOTH ER ASSESSMENT YEAR IN THE LIGHT OF THE DEEMING PROVISION IN EXPLN. 2 BELO W S. 153 OF THE ACT. THE VERY FACT THAT INCOME HAS BEEN EXCLUDED FROM THE TO TAL INCOME OF THE ASSESSEE FOR AN ASSESSMENT YEAR BY VIRTUE OF AN ORD ER REFERRED TO IN CL. (II) OF SUB-S. (3) WOULD BE SUFFICIENT FOR THE PURPOSE O F MAKING AN ASSESSMENT OF SUCH INCOME IN ANOTHER YEAR AND FOR THE PURPOSE OF S. 150 AND S. 153, THE SAME WOULD BE DEEMED TO HAVE BEEN MADE IN CONSE QUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED I N THE SAID ORDER. 23. IN THE PRESENT CASE, REOPENING WAS MADE IN THE LIGH T OF THE ORDER OF THE TRIBUNAL. ACCORDING TO THE AR THERE I S NO DIRECTION OR FINDINGS IN CONSEQUENCE OF WHICH OR TO GIVE EFFECT TO WHICH THE RE- ASSESSMENT PROCEEDINGS COULD BE SAID TO HAVE BEEN T AKEN SO AS TO ATTRACT THE PROVISIONS OF SECTION 153(3) OF THE ACT . AS SEEN FROM THE ORDER OF THE TRIBUNAL IT WAS CATEGORICALLY HELD THAT THE IMPUGNED RECEIPT IS NOT TAXABLE IN THE ASSESSMENT Y EAR UNDER CONSIDERATION I.E., 1995-96, 1996-97, 1997-98 TO 20 01-02 AND IT IS ALSO ON RECORD THAT IN VIEW OF THE DECISION IN T HE CASE OF MODEL CHIT CORPORATION, IT IS TO BE CONSIDERED AS INCOME FOR THE A.Y. 2002-03 AND IT WAS A CONTINGENT RECEIPT TILL THEN A ND IT WAS ACTUALLY ACCRUED TO THE ASSESSEE IN A.Y. 2002-03. CONSEQUENTLY ADDITION MADE IN EARLIER YEARS WAS DELETED BY THE T RIBUNAL. NOW, THE CONTENTION OF THE ASSESSEE IS THAT THERE IS NO DIRECTION FROM THE TRIBUNAL TO REOPEN THE ASSESSMENT AS ENVISAGED U/S. 150(1) AND 153(3) OF THE ACT. IN OUR OPINION, THE CONTENT ION OF THE ASSESSEE IS MISCONCEIVED. THERE IS A SPECIFIC FIND ING BY THE TRIBUNAL THAT THE INCOME WAS ACCRUED TO THE ASSESSE E IN AY 2002- 03. SO THAT THE TRIBUNAL HAS CONSEQUENTLY LEFT IT OPEN TO THE ASSESSING OFFICER TO BRING THE IMPUGNED RECEIPT TO TAX IN AY 2002- 03. IT A NO. 1223/HYD/2010 M/S. MARGADARSI CHIT FUND (P) LTD. ========================= 13 24. ANOTHER CONTENTION RAISED ON BEHALF OF THE PETITION ER IS THAT A FINDING IN TERMS OF S. 150 OF THE ACT CAN ONLY BE T HAT WHICH IS NECESSARY FOR THE DISPOSAL OF AN APPEAL IN RESPECT OF AN ASSESSME NT OF A PARTICULAR YEAR. THE EXPRESSIONS 'FINDING' AS WELL AS 'DIRECTION' CA N BE ONLY IN THE CONTEXT OF A FINDING NECESSARY FOR GIVING RELIEF IN THE ASSESS MENT OF THE YEAR UNDER CONSIDERATION. THAT AN ORDER MADE IN RELATION TO A PARTICULAR ASSESSMENT YEAR CANNOT BE MADE THE BASIS FOR REOPENING THE CON CLUDED ASSESSMENT OF AN EARLIER ASSESSMENT YEAR. HOWEVER, THE SAID CONTE NTION LOSES SIGHT OF EXPLN. 2 BELOW S. 153 WHICH PROVIDES THAT WHERE, BY AN ORDER REFERRED TO IN CL. (II) OF SUBS. (3), WHERE ANY INCOME IS EXCLUDED FROM THE TOTAL INCOME OF THE ASSESSEE FOR AN ASSESSMENT YEAR, THEN, AN ASSES SMENT OF SUCH INCOME FOR ANOTHER ASSESSMENT YEAR SHALL, FOR THE P URPOSES OF SS. 150 AND 153, BE DEEMED TO BE ONE MADE IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN THE SAID ORDER. 25. ON A COMBINED READING OF SUB-S. (1) OF S. 150 AND S UB-S. (3) OF S. 153, IT IS APPARENT THAT IN CASES FALLING UNDER CL. (II) OF SUB-S. (3) OF S. 153 R/W EXPLN. 2 THEREUNDER, THE PROVISIONS OF SUB-S. ( 1) OF S. 150 WOULD BE APPLICABLE AND THE BAR OF LIMITATION UNDER S. 149 W OULD NOT BE APPLICABLE. WHILE SS. 150(1) AND 153(3) CONTEMPLATE ISSUANCE OF NOTICE UNDER S. 148 AND COMPLETION OF ASSESSMENT, REASSESSMENT AND RE-C OMPUTATION RESPECTIVELY, IN CONSEQUENCE OF OR TO GIVE EFFECT T O ANY FINDING OR DIRECTION CONTAINED IN AN ORDER PASSED BY ANY AUTHORITY IN AN Y PROCEEDING UNDER THE ACT BY WAY OF APPEAL, REFERENCE OR REVISION, EXPLN. 2 TO S. 153(3) CONTAINS A DEEMING PROVISION WHICH PROVIDES THAT WHERE BY AN O RDER REFERRED TO IN CL. (II) OF SUB-S. (3) ANY INCOME IS EXCLUDED FROM THE TOTAL INCOME OF AN ASSESSEE FOR AN ASSESSMENT YEAR, THEN AN ASSESSMENT OF SUCH INCOME FOR ANOTHER ASSESSMENT YEAR SHALL FOR THE PURPOSES OF S . 150 AND SECTION 153 BE DEEMED TO BE ONE MADE IN CONSEQUENCE OF OR TO GI VE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN THE SAID ORDER. 26. IN THE CIRCUMSTANCES, THOUGH THE NOTICE HAS BEEN IS SUED U/S. 148 OF THE ACT, IN THE LIGHT OF THE FINDINGS O F THE TRIBUNAL CONSIDERING THE EXPLANATION 2 TO SECTION 153 IT IS APPARENT THAT IT A NO. 1223/HYD/2010 M/S. MARGADARSI CHIT FUND (P) LTD. ========================= 14 THE VERY FACT THAT THE INCOME HAS BEEN EXCLUDED FRO M THE TOTAL INCOME OF THE ASSESSEE FOR THE EARLIER ASSESSMENT Y EARS AND IT WOULD BE SUFFICIENT FOR THE ASSESSING OFFICER TO MA KE ASSESSMENT OF SUCH INCOME FOR THE ASSESSMENT YEAR UNDER CONSID ERATION, WHICH FOR THE PURPOSE OF SECTION 150 AND 153 WOULD BE DEEMED TO BE ONE MADE IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN THE SAID ORDER PROVIDED SUCH INCOME IS OTHERWISE TAXABLE IN THE SAID YEAR. IN THE CIRCUMS TANCES, EVEN IN THE ABSENCE OF ANY FINDING OR DIRECTION SPECIFICALL Y STATING THAT THE SAID INCOME BE TAXABLE IN THE ASSESSMENT YEAR UNDER CONSIDERATION, IN THE LIGHT OF THE PROVISIONS OF EX PLANATION 2, IT IS PERMISSIBLE FOR THE ASSESSING OFFICER TO ISSUE NOTI CE U/S. 148 OF THE ACT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION FOR THE ASSESSMENT OF SUCH INCOME. WE ALSO CAREFULLY GONE THROUGH THE JUDGEMENT OF SUPREME COURT IN THE CASE OF RAJINDER NATH (SUPRA). IT DOES NOT CARRY THE CASE OF THE ASSESSEE ANY FURT HER INASMUCH AS ON A PLAIN READING OF THE TRIBUNAL ORDER, IT IS APP ARENT THAT FINDING RECORDED BY THE ASSESSEE IS TO THE EFFECT THAT THE IMPUGNED RECEIPT IS NOT TAXABLE IN THOSE ASSESSMENT YEARS AND IT IS TO BE ASSESSABLE IN THE ASSESSMENT YEAR 2002-03. THUS, THE CONTENTI ON THAT THERE IS NO FINDING OR DIRECTION WITHIN THE MEANING OF SE CTION 153(3)(II) OF THE ACT IS CONTRARY TO THE FACTS OF THE CASE. F URTHER, SAME IS THE POSITION IN THE CASE OF OTHER JUDGEMENTS RELIED ON BY THE ASSESSEE COUNSEL. ACCORDINGLY, WE ARE INCLINED TO UPHOLD THE ORDERS OF THE LOWER AUTHORITIES. 27. IN THE RESULT, ASSESSEE'S APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND FEBRUARY, 2013. SD/ SD/ SD/ SD/ - -- - (SAKTIJIT DEY) (SAKTIJIT DEY) (SAKTIJIT DEY) (SAKTIJIT DEY) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER SD/ SD/ SD/ SD/ - -- - (CHANDRA POOJARI) (CHANDRA POOJARI) (CHANDRA POOJARI) (CHANDRA POOJARI) ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED 22 ND FEBRUARY, 2013 TPRAO IT A NO. 1223/HYD/2010 M/S. MARGADARSI CHIT FUND (P) LTD. ========================= 15 COPY FORWARDED TO: 1. M/S. MARGADARSI CHIT FUND (P) LTD., 5 - 10 - 195, FATEH MAIDAN ROAD, HYDERABAD-500 004. 2. THE ADDL. CIT, RANGE - 16, HYDERABAD. 3. THE CIT(A) - V, HYDERABAD. 4. THE CIT - IV, HYDERABAD. 5. THE DR A BENCH, ITAT, HYDERABAD.