Smt K Saritha Mahi, Secunderabad V. ACIT., Central Circle-1, Hyderabad

ITA 1349/HYD/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1851 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 25-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D SRINIVAS
• Assessee Lawyers: C KAMESHWAR RAO
• Keywords: Reopening of assessment; Search and seizure; Opportunity of being heard; Revised return
• Section: 143(3); 153A; 147; 148; 132

Judgement Text

/ IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NOS. 1348 & 1349/HYD/2014 ASSESSMENT YEARS: 2008-09 & 2009-10 K. SARITHA MAHI, HYDERABAD PAN AOJPK3844B VS. ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 1, HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI C. KAMESHWAR RAO REVENUE BY : SHRI D. SRINIVAS DATE OF HEARING : 28-07-2015 DATE OF PRONOUNCEMENT : 05-08-2015 O R D E R PER SAKTIJIT DEY, J.M.: THESE APPEALS BY ASSESSEE ARE DIRECTED AGAINST A C OMMON ORDER DATED 02/05/2014 OF LD. CIT(A) I, HYDERABAD FOR THE AYS 2005- 06, 2008-09 & 2009-10. HOWEVER, THE PRESENT APPEALS ARE PERTAINING TO AYS 2008-09 AND 2009-10. 2. THE ONLY COMMON ISSUE ARISING FOR CONSIDERATION IN THE AFORESAID APPEALS RELATES TO ASSESSMENT OF LEASE RE NTAL INCOME AT RS. 15,30,000 FOR BOTH THE ASSESSMENT YEARS. 3. BRIEFLY THE FACTS, WHICH ARE MORE OR LESS COMMON FOR BOTH THE AYS UNDER APPEAL, ARE ASSESSEE AN INDIVIDUAL DERIVE S INCOME UNDER THE HEAD BUSINESS THROUGH HER PROPRIETARY CONCERN M /S AVJ TRANSPORT AS WELL AS RENTAL INCOME. BESIDES, ASSESSEE AND HER HUSBAND ARE THE FOUNDER TRUSTEES OF M/S SREE EDUCATIONAL SOCIETY, W HICH IS RUNNING 2 ITA NOS. 1348 & 1349 /HYD/2014 K. SARITHA MAHI, HYD. ENGINEERING COLLEGE. A SEARCH AND SEIZURE OPERATIO N U/S 132 OF THE ACT WAS CONDUCTED IN CASE OF SOCIETY AS WELL AS THE TRUSTEES ON 10/09/09. ORIGINALLY, ASSESSEE HAD FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 25,58,349 INCLUDING LAND LEASE RENT OF RS. 15,30,000. THE SAID RETURN OF INCOME WAS PROCESSED U/S 143(1) ON 21/06/09 ACCEPTING THE INCOME RETURNED. SUBSEQUENTL Y, IN RESPONSE TO THE NOTICE ISSUED U/S 153A OF THE ACT, CONSEQUENT UPON SEARCH, ASSESSEE FILED HER RETURN OF INCOME ON 29/09/10 DEC LARING TOTAL INCOME OF RS. 12,57,850. DURING THE ASSESSMENT PROC EEDING, AO WHILE EXAMINING THE ORIGINAL RETURN AS WELL AS RETU RN FILED IN RESPONSE TO THE NOTICE ISSUED U/S 153A OF THE ACT, NOTICED T HAT WHILE IN THE ORIGINAL RETURN ASSESSEE HAS SHOWN LAND LEASE RENT RECEIVED FROM M/S SREE EDUCATIONAL SOCIETY AT RS. 15,30,000, HOWEVER, IN THE RETURN FILED IN RESPONSE TO THE NOTICE ISSUED U/S 153A OF THE ACT, ASSESSEE HAS SHOWN LAND LEASE RENT FROM M/S SREE EDUCATIONAL SOCIETY AT RS. 2,29,500. WHEN AO CALLED UPON ASSESSEE TO EXPLAIN T HE DIFFERENCE, ASSESSEE STATED THAT AS PER THE LEASE DEED MODIFICA TION AGREEMENT DATED 29/08/06, SOCIETY HAS INCREASED MONTHLY RENT OF RS. 1,000 PER ACRE TO RS. 3,750 PER ACRE. AS ASSESSEE ISOWNER OF 5.094 ACRES, LEASE RENT WORKED OUT TO RS. 2,29,500. AO HOWEVER D ID NOT FIND MERIT IN THE EXPLANATION OF ASSESSEE. AO OBSERVED, PROCEE DING INITIATED U/S 153A IS CONSEQUENT TO SEARCH OPERATION U/S 132 AND AS A NATURAL COROLLARY ENTAILS FILING OF RETURN HAVING A BEARING ON FINDING OF SEARCH, HENCE, SECTION 153A CANNOT BE USED AS A TOOL BY ASS ESSEE TO REVISE INCOME WHICH OTHERWISE HAS NOT BEEN DETECTED AS A R ESULT OF SEARCH. AO RELYING UPON A DECISION OF HONBLE SUPREME COURT IN CASE OF M/S SUN ENGINEERING WORKS P. LTD., [1992] 198 ITR 297 H ELD THAT IN A REASSESSMENT PROCEEDING, IT IS NOT OPEN TO ASSESSEE TO SEEK A REVIEW OF THE ISSUES WHICH STAND CONCLUDED AND WHICH IS UN CONNECTED WITH THE ESCAPEMENT OF INCOME. ACCORDINGLY, HE PROCEEDED TO COMPUTE INCOME OF ASSESSEE BY ASSESSING LEASE RENTAL INCOME AT RS. 15,30,000. SIMILARLY, IN AY 2009-10, THOUGH, ASSESS EE ORIGINALLY DID NOT FILE RETURN OF INCOME AND ONLY IN PURSUANCE TO THE NOTICE ISSUED 3 ITA NOS. 1348 & 1349 /HYD/2014 K. SARITHA MAHI, HYD. U/S 153A, ASSESSEE FILED RETURN OF INCOME DISCLOSIN G THEREIN LAND LEASE RENTAL INCOME AT RS. 2,29,500, BUT, AO FOLLOW ING HIS REASONING FOR AY 2008-09, ADOPTED LEASE RENTAL INCOME AT RS. 15,30,000 AND COMPLETED ASSESSMENT ACCORDINGLY. BEING AGGRIEVED O F THE ASSESSMENT ORDERS SO PASSED FOR THE AYS UNDER CONSI DERATION, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A). 4. IN COURSE OF HEARING OF APPEAL, IT WAS SUBMITTED BY ASSESSEE THAT DUE TO A MISTAKE LESSEE HAS ISSUED TDS CERTIFI CATE TO ASSESSEE MENTIONING THE LEASE RENT FOR THE AY 2008-09 AS RS. 15,30,000 AND DEDUCTING TDS OF RS. 2,60,024. HOWEVER, THE MISTAKE WAS RECTIFIED IN THE SUBSEQUENT AY BY REVERSING EXCESS RENT OF RS. 1 3,00,500 SHOWN FOR THE AY 2008-09. FURTHER, IT WAS SUBMITTED BY AS SESSEE THAT IN THE ORIGINAL RETURN, ASSESSEE HAD DECLARED RENT AT RS. 15,30,000 BASED ON THE TDS CERTIFICATE, HOWEVER, AFTER RECEIVING THE N OTICE U/S 153A, ASSESSEE NOTICED THE MISTAKE AND DECLARED CORRECT L EASE RENT INCOME OF RS. 2,29,500 IN THE RETURN FILED IN PURSUANCE TO THE NOTICE ISSUED U/S 153A. ASSESSEE FURTHER SUBMITTED THAT FOR AY 20 08-09, ORIGINAL RETURN FILED BY ASSESSEE WAS PROCESSED U/S 143(1) O F THE ACT, HENCE, IT CANNOT BE CONSIDERED TO BE AN ASSESSMENT ORDER S O AS TO CONCLUDE THAT ASSESSMENT OF A PARTICULAR ITEM OF INCOME IN C ASE OF ASSESSEE HAVING BEEN CONCLUDED, ASSESSEE CANNOT MODIFY SUCH INCOME IN THE RETURN FILED IN RESPONSE TO THE NOTICE ISSUED U/S 1 53A. AS FAR AS AY 2009-10 IS CONCERNED, IT WAS SUBMITTED BY ASSESSEE THAT FOR AY 2009-10, ASSESSEE IN RESPONSE TO THE NOTICE ISSUED U/S 153A HAS FILED RETURN OF INCOME SHOWING LEASE RENTAL INCOME OF RS. 2,29,500. THE TDS CERTIFICATE ISSUED BY LESSEE MENTIONS LEASE REN TAL INCOME OF RS. 2,29,500. THEREFORE, SINCE ASSESSEE HAS NOT RECEIVE D EXCESS RENT AT RS. 13,00,500, AO WAS TOTALLY WRONG IN ADDING THAT AMOUNT TO THE LEASE RENTAL INCOME. 5. LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE IN THE CONTEXT OF FACTS AND MATERIALS ON RECORD, OBSERVED THAT FOR AY 2008- 09, ASSESSEE FILED ORIGINAL RETURN OF INCOME ON 30/ 09/08 AND SEARCH 4 ITA NOS. 1348 & 1349 /HYD/2014 K. SARITHA MAHI, HYD. TOOK PLACE ON 10/09/09. SHE ALSO OBSERVED THAT RETU RN IN RESPONSE TO THE NOTICE ISSUED U/S 153A WAS FILED ON 29/09/10. T HEREFORE, IF AT ALL THERE WAS A LEASE DEED MODIFICATION AGREEMENT BETWE EN ASSESSEE AND THE SOCIETY ON 28/09/06, IT WOULD BE LOGICAL AN D REASONABLE TO ACCEPT THAT IN THE ORIGINAL RETURN OF INCOME ITSELF , ASSESSEE SHOULD HAVE TAKEN THE LEASE RENT AS PER THE MODIFIED AGREE MENT. SHE FURTHER OBSERVED, SOCIETY HAS ALSO SHOWN THE AMOUNT OF RS. 15,30,000 AS LEASE RENT IN ITS BOOKS OF ACCOUNT AND ACCORDINGLY HAS ALSO ISSUED A TDS CERTIFICATE SHOWING THE SAID AMOUNT AND HAS ALS O DEDUCTED TAX. SHE THEREFORE OBSERVED THAT THE SUBSEQUENT REVERSAL OF ENTRIES IN THE BOOKS OF ACCOUNT CANNOT BE TAKEN SERIOUSLY AS IT IS IN THE NATURE OF SELF-SERVING DOCUMENT AS BOTH ARE RELATED PARTIES. LD. CIT(A) REFERRING TO CERTAIN DECISIONS OF ITAT AS WELL AS DECISION OF HONBLE SUPREME COURT IN CASE OF CIT VS. M/S SUN ENGINEERING WORKS P. LTD. (SUPRA), HELD THAT THE PROVISIONS OF SECTION 153A ARE TO ASS ESS OR REASSESS THE INCOME OF ASSESSEE FOR THE PRECEDING SIX ASSESSMENT YEARS ON THE BASIS OF SEARCH OPERATION, HENCE, SUCH ASSESSMENT P ROCEEDING IS FOR THE BENEFIT OF REVENUE, THEREFORE, ASSESSEE CANNOT TAKE RECOURSE TO PROCEEDING U/S 153A FOR HER BENEFIT BY REDUCING THE INCOME DECLARED IN THE ORIGINAL RETURN. SHE OBSERVED, ASSESSEE HAV ING SHOWN LEASE RENTAL INCOME IN THE ORIGINAL RETURN AT A HIGHER FI GURE AND THE DEDUCTOR HAVING DEDUCTED TAX ON SUCH LEASE RENTAL AND REMITT ED IT TO THE GOVT. ACCOUNT, ASSESSEE CANNOT REDUCE HER INCOME BY RELYI NG UPON UNREGISTERED MODIFICATION AGREEMENT OR ENTRIES MADE IN THE BOOKS OF ACCOUNT SUBSEQUENTLY WHICH ARE NOT BONAFIDE. ACCORD INGLY, LD. CIT(A) SUSTAINED THE ADDITION MADE BY AO ON ACCOUNT OF LEA SE RENTALS. 6. REITERATING WHAT WAS SUBMITTED BEFORE LD. CIT(A) , LD. AR SUBMITTED, THOUGH, ACTUALLY ASSESSEE FOR AY 2008-09 AS WELL AS 2009- 10 HAD RECEIVED LEASE RENTAL OF RS. 2,29,500, BUT, BY MISTAKE SOCIETY HAD MENTIONED THE LEASE RENTAL OF RS. 15,30,000 IN ITS BOOKS OF ACCOUNT ON THE BASIS OF WHICH SOCIETY NOT ONLY ISSU ED TDS CERTIFICATE IN FAVOUR OF ASSESSEE, BUT, ALSO DEDUCTED TAX ACCOR DINGLY. HOWEVER, 5 ITA NOS. 1348 & 1349 /HYD/2014 K. SARITHA MAHI, HYD. AT THE TIME OF SUBMISSION OF RETURN IN RESPONSE TO THE NOTICE ISSUED U/S 153A, ASSESSEE HAVING NOTICED THE MISTAKE, ADOP TED CORRECT LEASE RENTAL FIGURE IN THE RETURN FILED. LD. AR SUBMITTED , SINCE INTIMATION U/S 143(1) IS NOT ASSESSMENT, AO WAS NOT CORRECT IN OBS ERVING THAT AN ITEM OF INCOME WHICH HAS ALREADY BEEN CONSIDERED IN CONCLUDED ASSESSMENT, CANNOT BE SUBJECT MATTER OF ASSESSMENT U/S 153A. FOR SUCH PROPOSITION, HE RELIED ON THE DECISION OF HON BLE SUPREME COURT IN CASE OF ACIT VS. RAJESH JHAVERI STOCK BROKERS PV T. LTD., (APPEAL (CIVIL) NO. 2830 OF 2007, DATED 23/05/07). FURTHER, DISTINGUISHING THE DECISION IN CASE OF CIT VS. M/S SUN ENGINEERING WOR KS P. LTD. (SUPRA), LD. AR SUBMITTED, THE PRINCIPLE LAID DOWN THEREIN IS IN THE CONTEXT OF REOPENING OF ASSESSMENT U/S 147 OF THE A CT, HENCE, WILL NOT APPLY TO THE ASSESSMENT PROCEEDING U/S 153A. LD. AR REFERRING TO THE VERIFICATION PROVIDED IN THE RETURN OF INCOME AS WE LL AS THE SCOPE OF TOTAL INCOME AS PROVIDED IN SECTION 5 OF IT ACT, SU BMITTED THAT ASSESSEE IS REQUIRED TO GIVE TRUE AND CORRECT POSIT ION OF HIS INCOME FOR A PARTICULAR AY. HE SUBMITTED, SINCE THE AMOUNT OF RS. 15,30,000 IS NEITHER THE RENT RECEIVABLE NOR RECEIVED IN VIEW OF THE MODIFIED AGREEMENT, THE SAME CANNOT BE BROUGHT TO TAX. HE, F URTHER SUBMITTED, EVEN THE SOCIETY NOTICING THE MISTAKE HAD REVERSED THE EXCESS RENT PAID IN ITS BOOKS OF ACCOUNT IN THE NEXT FY. THUS, IT WAS SUBMITTED BY LD. AR, ASSESSEE HAVING NOT RECEIVED LEASE RENTAL O F RS. 15,30,000, BUT, HAVING ACTUALLY RECEIVED THE AMOUNT OF RS. 2,2 9,500, IT IS ENTITLED TO REVISE THE SAME IN THE RETURN FILED IN RESPONSE TO THE NOTICE ISSUED U/S 153A. AS FAR AS AY 2009-10 IS CONCERNED, LD. AR SUBMITTED, ASSESSEE IN THIS AY HAS FILED ONLY ONE RETURN OF IN COME IN RESPONSE TO THE NOTICE ISSUED U/S 153A BY SHOWING LEASE RENTAL INCOME OF RS. 2,29,500. TDS CERTIFICATE ISSUED BY SOCIETY ALSO ME NTIONS LEASE RENTAL INCOME AT RS. 2,29,500. THAT BEING THE CASE, AO CAN NOT ASSESS LEASE RENTAL AT RS. 15,30,000. HE SUBMITTED, UNDER MISCON CEPTION, AO TREATED THE REVERSAL OF ENTRY OF EXCESS LEASE RENTA L OF RS. 13,05,000 AS RENT RECEIVED BY ASSESSEE. IN SUM AND SUBSTANCE , LD. AR 6 ITA NOS. 1348 & 1349 /HYD/2014 K. SARITHA MAHI, HYD. SUBMITTED, LEASE RENTAL SHOWN BY ASSESSEE FOR BOTH THE AYS AT RS. 2,29,000 SHOULD BE ACCEPTED. 7. LD. DR, ON THE OTHER HAND, STRONGLY RELYING UPON OBSERVATIONS/REASONINGS OF LD. CIT(A), SUBMITTED, T HERE IS NO SCOPE FOR ASSESSEE TO REVISE THE LEASE RENTAL INCOME IN A RETURN FILED U/S 153A OF THE ACT. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIE S AND PERUSED THE ORDERS OF REVENUE AUTHORITIES AS WELL AS OTHER MATERIALS ON RECORD. AS COULD BE SEEN, FOR AY 2008-09, ASSESSEE ORIGINAL LY HAD FILED HER RETURN OF INCOME ON 30/09/08 DECLARING LEASE RENTAL INCOME FROM THE SOCIETY AT RS. 15,30,000. IN FACT, AS OBSERVED BY L D. CIT(A), SOCIETY IN ITS BOOKS OF ACCOUNT HAS NOT ONLY SHOWN LEASE RENTA L INCOME PAID TO ASSESSEE AT RS. 15,30,000 BUT HAD ALSO ISSUED TDS C ERTIFICATE SHOWING LEASE RENTAL INCOME AT RS. 15,30,000 AND TA X DEDUCTED THEREON AMOUNTING TO RS. 2,60,024. THE TDS AMOUNT W AS ALSO REMITTED TO THE GOVT. ACCOUNT. THEREAFTER, THERE HA S BEEN NO ATTEMPT ON THE PART OF ASSESSEE TO REVISE THE LEASE RENTAL INCOME AS WAS SHOWN IN THE ORIGINAL RETURN. ONLY IN RESPONSE TO T HE NOTICE ISSUED U/S 153A OF THE ACT, WHEN ASSESSEE FILED HER RETURN OF INCOME ON 29/09/10 IT REVISED ITS LEASE RENTAL INCOME FROM RS . 15,30,000 TO RS. 2,29,500. WHILE REJECTING ASSESSEES CLAIM IN THE R EVISED RETURN, IT IS THE REASONING OF THE DEPARTMENT THAT AS PROCEEDING U/S 153A IS FOR THE ASSESSMENT OF UNDISCLOSED INCOME FOUND AS A RES ULT OF SEARCH AND, THEREFORE, IT IS FOR THE BENEFIT OF DEPARTMENT , ASSESSEE CANNOT TAKE ADVANTAGE OF SUCH SITUATION BY REVISING ITS IN COME ALREADY DECLARED, TO A LESSER FIGURE. LD. AR, ON THE OTHER HAND, HAS SUBMITTED, AS PROCEEDING U/S 153A OF THE ACT IS NOT SIMILAR TO PROCEEDING U/S 147 OF THE ACT, ASSESSEE CAN RECTIFY THE MISTAKE COMMITTED IN THE ORIGINAL RETURN OF INCOME BY FILIN G REVISED RETURN IN RESPONSE TO THE NOTICE ISSUED U/S 153A OF THE ACT. LD. AR HAS SUBMITTED THAT THERE BEING NO ASSESSMENT U/S 143(1) OF THE ACT, IT CANNOT BE HELD THAT AN ITEM OF INCOME HAVING ALREAD Y CONSIDERED IN A 7 ITA NOS. 1348 & 1349 /HYD/2014 K. SARITHA MAHI, HYD. CONCLUDED ASSESSMENT, CANNOT BE SUBJECT MATTER IN P ROCEEDING U/S 153A. 8.1 IN VIEW OF THE AFORESAID RIVAL CONTENTIONS, IT NEEDS TO BE EXAMINED WHETHER ASSESSEE CAN REVISE THE INCOME ALR EADY SHOWN IN THE ORIGINAL RETURN OF INCOME TO A LESSER FIGURE. FOR THIS PURPOSE, IT IS NECESSARY TO LOOK INTO THE PROVISIONS CONTAINED U/S 153A OF THE ACT. ON CAREFUL READING OF THE SAID PROVISION, IT IS VER Y MUCH CLEAR THAT THE SAID PROVISION EMPOWERS THE AO TO ASSESS OR REASSES S THE TOTAL INCOME IN RESPECT OF SIX ASSESSMENT YEARS IMMEDIATE LY PRECEDING AY IN WHICH SEARCH ACTION WAS INITIATED. FURTHER, IT I S ALSO EVIDENT THAT THE POWERS CONFERRED U/S 153A IS EXCLUSIVE AND OVERRIDI NG POWER WHICH OVER RIDES SECTIONS 139, 147, 148, 149, 151 AND 153 . IT IS VERY MUCH PERTINENT TO MENTION HERE THAT AS PER SECTION 153A, AO HAS BEEN GIVEN POWER TO REASSESS THE INCOME RELATING TO PREC EDING SIX AYS. WHILE EXERCISING THE POWER TO REASSESS AO CAN ASSES S INCOME WHICH HAS ESCAPED ASSESSMENT BY RESULT OF OMISSION OR FAI LURE ON THE PART OF AO IN THE ORIGINAL ASSESSMENT OR INCOME WHICH HA S BEEN UNEARTHED AS A RESULT OF SEARCH. THUS, IT IS CLEAR FROM SECTI ON 153A, IT EMPOWERS THE AO TO EVEN REASSESS A PARTICULAR INCOME WITHOUT THE STRICT CONDITIONS ATTACHED U/S 147. CONSIDERED IN THE AFOR ESAID CONTEXT, IT IS TO BE HELD THAT PROCEEDING INITIATED U/S 153A OF TH E ACT IS FOR THE BENEFIT OF THE DEPARTMENT, HENCE, ASSESSEE CANNOT T AKE ADVANTAGE OF SUCH PROCEEDING. APPLYING THE AFORESAID PRINCIPLE T O THE FACTS OF THE PRESENT CASE, IT IS TO BE SEEN THAT IN THE ORIGINAL RETURN OF INCOME, ASSESSEE HAS DECLARED LEASE RENTAL INCOME AT RS. 15 ,30,000. ADMITTEDLY, ASSESSEE HAD NOT FILED REVISED RETURN V OLUNTARILY TO RECTIFY THE MISTAKE CLAIMED TO HAVE BEEN COMMITTED IN THE O RIGINAL RETURN. ONLY WHEN THE DEPARTMENT ISSUED NOTICE U/S 153A OF THE ACT CONSEQUENT TO SEARCH OPERATION, ASSESSEE IN THE RET URN FILED IN RESPONSE TO SUCH NOTICE HAD REDUCED LEASE RENTAL IN COME FROM RS. 15,30,000 TO RS. 2,29,500. IN OUR VIEW, IN THE RETU RN FILED U/S 153A OF THE ACT, ASSESSEE CANNOT REVISE THE INCOME IN RESPE CT OF AN ITEM OF 8 ITA NOS. 1348 & 1349 /HYD/2014 K. SARITHA MAHI, HYD. INCOME WHICH HAS ALREADY BEEN DECLARED IN THE ORIGI NAL RETURN OF INCOME AT A HIGHER FIGURE AND WHICH HAS ALSO BEEN P ROCESSED U/S 143(1). THIS IS SIMPLY FOR THE REASON THAT PROCEEDI NG INITIATED U/S 153A IS FOR ASSESSING UNDISCLOSED INCOME UNEARTHED AS A RESULT OF SEARCH OPERATION ALONG WITH OTHER INCOME, WHICH HAV E ESCAPED ASSESSMENT. IN CASE OF CIT VS. M/S SUN ENGG. WORKS P. LTD. (SUPRA), THE HONBLE SUPREME COURT WHILE HOLDING THAT THE PR OVISION OF SECTION 147 IS FOR THE BENEFIT OF DEPARTMENT AND NOT FOR TH E BENEFIT OF ASSESSEE, ALSO HELD THAT A PARTICULAR CLAIM OF ASS ESSEE, IF ALREADY HAS BEEN CONSIDERED AT THE TIME OF ORIGINAL ASSESSM ENT, OR ASSESSEE HAS NOT RAISED THAT CLAIM EITHER IN THE ORIGINAL RE TURN OF INCOME OR DURING THE ORIGINAL ASSESSMENT PROCEEDING, HE CANNO T RAISE THE SAME IN THE RETURN FILED IN RESPONSE TO NOTICE ISSUED U/ S 148. THE PRINCIPLE LAID DOWN CLEARLY APPLIES TO PROCEEDING INITIATED U /S 153A OF THE ACT., AS AO HAS BEEN EMPOWERED U/S 153A TO ALSO REASSESS THE INCOME OF ASSESSEE FOR THE PRECEDING SIX AYS. IN CASE OF CIT VS. ANIL KUMAR BHATIA, 352 ITR 493, THE HONBLE DELHI HIGH COURT W HILE EXAMINING THE POWER CONFERRED ON AO U/S 153A OF THE ACT, HELD AS UNDER: UNDER SECTION L53A, HOWEVER, THE AO HAS BEEN GIVE N THE POWER TO ASSESS OR REASSESS THE TOTAL INCOME OF TH E SIX ASSESSMENT YEARS IN QUESTION IN SEPARATE ASSESSMEN T ORDERS. THIS MEANS THAT THERE CAN BE ONLY ONE ASSESSMENT O RDER IN RESPECT OF EACH OF THE SIX ASSESSMENT YEARS, IN WH ICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROU GHT TO TAX. A QUESTION MAY ARISE AS TO HOW THIS IS SOUGHT TO B E ACHIEVED WHERE AN ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESSMENT YEARS, EITHE R UNDER SECTION 143(1)(A) OR SECTION 143(3) OF THE ACT. IF SUCH AN ORDER IS ALREADY IN EXISTENCE, HAVING OBVIOUSLY BEEN PASSED PRIOR TO THE INITIATION OF THE SEARCH/REQUISITION, THE AO IS EM POWERED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL IN COME, TAKING NOTE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH. FOR THIS PURPOSE, THE FETTERS IMPOSED UPON THE AO BY THE STRICT PROCEDURE TO ASSUME JURISDICTION TO REO PEN THE ASSESSMENT UNDER SECTIONS 147 AND 148, HAVE BEEN R EMOVED BY THE NON OBSTANTE CLAUSE WITH WHICH SUB-SECTION (1) OF SECTION OPENS. THE TIME LIMIT WITHIN WHICH THE NOTICE UNDE R SECTION 148 CAN BE ISSUED, AS PROVIDED IN SECTION 149 HAS ALSO BEEN MADE INAPPLICABLE BY THE NON OBSTANTE CLAUSE. SECTION 1 51 WHICH 9 ITA NOS. 1348 & 1349 /HYD/2014 K. SARITHA MAHI, HYD. REQUIRES SANCTION TO BE OBTAINED BY THE AO BY ISSU E OF NOTICE TO REOPEN THE ASSESSMENT UNDER SECTION 148 HAS ALSO B EEN EXCLUDED IN A CASE COVERED BY SECTION L53A. THE TI ME-LIMIT PRESCRIBED FOR COMPLETION OF AN ASSESSMENT OR REAS SESSMENT BY SECTION 153 HAS ALSO BEEN DONE AWAY WITH IN A CASE COVERED BY SECTION 153A. WITH ALL THE STOPS HAVING BEEN PULLE D OUT, THE AO UNDER SECTION 153A HAS BEEN ENTRUSTED WITH THE DUT Y OF BRINGING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHOSE CASE IS COVERED BY SECTION 153A B EVEN MAKING REASSESSMENTS WITHOU T ANY FETTERS, IF NEED BE. IN THE AFORESAID VIEW OF THE MATTER, WE HOLD THAT A SSESSEE HAVING ALREADY DECLARED LEASE RENTAL INCOME AT RS. 15,30,0 00, IN THE ORIGINAL RETURN OF INCOME, SHE CANNOT REVISE IT TO RS. 2,29, 500 IN RETURN FILED IN RESPONSE TO NOTICE ISSUED U/S 153A OF THE ACT AS AS SESSEE CANNOT TURN THE PROCEEDING U/S 153A TO HER ADVANTAGE. IN T HE AFORESAID VIEW OF THE MATTER, WE UPHOLD THE ORDER OF LD. CIT(A) IN SO FAR AS AY 2008- 09 IS CONCERNED. 9. HOWEVER, AS FAR AS AY 2009-10 IS CONCERNED, THE SITUATION IS DIFFERENT. AS COULD BE SEEN, FOR THIS AY ASSESSEE D ID NOT FILE ANY RETURN OF INCOME ORIGINALLY. SUBSEQUENTLY, IN RESPO NSE TO THE NOTICE ISSUED U/S 153A OF THE ACT, ASSESSEE HAS FILED HER RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 12,64,704 WHICH INCLU DED LEASE RENTAL INCOME AT RS. 2,29,500. TDS CERTIFICATE ISSUED BY S OCIETY FOR THIS AY ALSO SHOWS LEASE RENTAL INCOME PAID TO ASSESSEE AT RS. 2,29,500. AO IN THE ASSESSMENT ORDER, OBSERVED THAT AS PER THE E NTRIES IN THE BOOKS OF ACCOUNT OF SOCIETY, AMOUNT SHOWN AS LEASE RENTAL IS RS. 15,30,000. CONTESTING THE AFORESAID FINDING OF AO, LD. AR HAS STATED BEFORE US THAT SOCIETY HAS NEVER SHOWN THE LEASE RENTAL AT RS . 15,30,000 FOR AY 2009-10, RATHER, THERE IS AN ENTRY IN THE BOOKS OF SOCIETY REVERSING THE EXCESS RENT OF RS. 13,05,000 SHOWN IN THE NAME OF ASSESSEE FOR AY 2008-09. THUS, IT WAS SUBMITTED BY AO ON AN INC ORRECT APPRECIATION OF FACT, AO HAS ADDED AN AMOUNT OF RS. 13,00,500. AFTER CONSIDERING THE SUBMISSIONS OF AR AND PERUSING THE MATERIALS ON RECORD, WE ARE OF THE VIEW THAT ASSESSEES CONTENTI ON FOR AY 2009-10 REQUIRES EXAMINATION. THOUGH, AO HAS ALLEGED THAT S OCIETY IN ITS 10 ITA NOS. 1348 & 1349 /HYD/2014 K. SARITHA MAHI, HYD. BOOKS OF ACCOUNT HAS SHOWN LEASE RENTAL AT RS. 15,3 0,000, HOWEVER, THE LEDGER ACCOUNT OF ASSESSEE IN THE BOOKS OF ACCO UNT OF SOCIETY, A COPY OF WHICH HAS BEEN SUBMITTED BEFORE US, DOES IN DICATE THAT IT IS ONLY A REVERSAL ENTRY OF EXCESS RENT PAID. THEREFOR E, CONSIDERING THE FACT THAT IN AY 2009-10, LEASE RENTAL INCOME SHOWN BY ASSESSEE IN RETURN MATCHES WITH THE TDS CERTIFICATE ISSUED BY T HE DEDUCTOR, WE DIRECT AO TO EXAMINE THE ISSUE AFRESH AND DECIDE IT ACCORDINGLY AFTER DUE OPPORTUNITY OF BEING HEARD TO ASSESSEE. 10. IN THE RESULT, ASSESSEES APPEAL FOR AY 2008-09 IN ITA NO. 1348/HYD/14 IS DISMISSED AND APPEAL FOR AY 2009-10 IN ITA NO. 1349/HYD/14 IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 5 TH AUGUST, 2015. SD/- SD/- (P.M. JAGTAP) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED: 5 TH AUGUST, 2015 KV COPY TO:- 1) SMT. K. SARITHA MAHI, C/O C. KAMESHWAR RAO, PART NER, RAMANATHAM & RAO, CAS, FLAT NO. 302, KALA MANSI ON, SAROJINI DEVI ROAD, SECUNDERABAD. 500 003 2 ACIT, CENTRAL CIRCLE 1, HYDERABAD 3 CIT(A) I, HYDERABAD 4) CIT (CENTRAL), HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDE RABAD. 11 ITA NOS. 1348 & 1349 /HYD/2014 K. SARITHA MAHI, HYD. DESCRIPTION DATE INTLS 1. DRAFT DICTATED ON SR.P.S. 2. DRAFT PLACED BEFORE AUTHOR SR.P.S 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER VP 5 APPROVED DRAFT COMES TO THE SR.P.S./PS SR.P.S. 6. KEPT FOR PRONOUNCEMENT ON SR.P S. 7. FILE SENT TO THE BENCH CLERK SR.P.S. 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER