Shri Salim Mohmed Husen Reshamwala, Surat V. The Income Tax Officer, Ward-3(4), Surat

ITA 1479/AHD/2016

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5939 (ITAT-SURAT)
• Duration Of Justice: 4 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 03-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Assessee Lawyers: SAPNESH SHETH
• Keywords: Sale consideration of property below Jantri Value; Period of limitation; Question of law; Cost of acquisition; Fair market value; Reason to believe; Reassessment proceedings; Capital Gains
• Section: 143(3); 142(1); 143(2); 264; 22; 147; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA NO. 1479/AHD/2016 (ASSESSMENT YEARS: 2011-12) ( VIRTUAL COURT) SHRI SALIM MOH MED HUSEN RESHAMWALA, 5, SHALIMAR SOCIETY, ADAJAN PATIA, RANDER ROAD, SURAT PAN : ABMPR 0343 L VS . INCOME TAX OFFICER, WARD-3(4), SURAT APPELLANT RESPONDEDNT APPELLANT BY SHRI SAPNESH SHETH - CA RESPONDENT BY MS. ANUPAMA SINGLA - SR. DR DATE OF H EARING 21 / 0 9 / 2020 DATE OF PRONOUNCEMENT 29 / 0 9 / 2020 PER PAWAN SINGH, JUDICIAL MEMBER : 1. THIS APPEAL FILED BY THE ASSESSEE, IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-II, SURAT [IN SHORT THE CIT(A)] DATED 29.03.2016 FOR THE ASSESSMENT YEAR (AY) 2011-12. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN REOPENING ASSESSMENT BY ISSUING NOTICE U/S 148 OF THE I. T ACT 1961. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN PARTLY CONFIRMING THE ACTION OF ASSESSING OFFICER IN CONFIRMING ADDITION OF RS. 61,64,0297- OUT OF RS. 75,88,2867- AS INCOME FROM LONG TERM CAPITAL GAIN. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN NOT ALLOWING ANY DEDUCTION ON ACCOUNT OF COST OF ACQUISITION OF IMPUGNED PROPERTY WHILE COMPUTING INCOME FROM CAPITAL GAINS. ITA NO.1479/AHD/2016/AY.2011-12 SALIM MOHMED HUSEN RESHAMWALA 2 4. IT IS THEREFORE PRAYED THAT ABOVE ADDITION MADE BY ASSESSING OFFICER AND CONFIRMED BY COMMISSIONER OF INCOME-TAX (APPEALS) MAY PLEASE BE DELETED. 5. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE COURSE OF HEARING OF THE APPEAL. 3. BRIEF FACTS OF THE CASE THE ASSESSING OFFICER RECEIVED AIR INFORMATION THAT ASSESSEE ALONG WITH OTHER 6 CO-OWNER SOLD PROPERTY FOR 2.35 CRORE, AS PER REGISTRATION RECORD WITH RUB- REGISTRAR-II, UDHANA, SURAT. THE FAIR MARKET VALUE ADOPTED BY STAMP DUTY AUTHORITY WAS REPORTED AT RS.5.31 CRORE. ON THE BASIS OF SUCH INFORMATION, THE ASSESSING OFFICER TOOK HIS VIEW THAT THE INCOME OF ASSESSEE FOR AY 2011-12, HAS ESCAPED ASSESSMENT. THEREFORE, THE ASSESSING OFFICER ON THE BASIS OF AFORESAID INFORMATION HAD A REASON TO BELIEVE THAT INCOME OF THE ASSESSEE ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE INCOME TAX ACT. THE ASSESSING OFFICER OBTAINED NECESSARY APPROVAL FOR REOPENING OF THE CASE FROM ADDITIONAL COMMISSIONER INCOME TAX. NOTICE UNDER SECTION 148 DATED 26 MARCH 2013 WAS SERVED UPON THE ASSESSEE. IN RESPONSE TO THE NOTICE UNDER SECTION 148 NEITHER THE ASSESSEE MADE COMPLIANCE OF THE IN FILING RETURN OF INCOME NOR ATTENDED THE PROCEEDING BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER AFTER SERVING NOTICE UNDER SECTION 142(1) DATED 13.06.2013 FOR FIXED HEARING ON 27.06.2013 AND DIRECTED THE ASSESSEE TO FURNISH BOOKS OF ACCOUNTS. NO COMPLIANCE WAS MADE BY THE ASSESSEE TO THIS NOTICE AS WELL. THE ASSESSING OFFICER NOTED THAT ON ONE OCCASION MR. NAZIR GODIT A TAX CONSULTANT APPEARED AND COPY OF SALE DEED OF LAND, RETURN OF INCOME FOR AY 2010 11 & 2011- ITA NO.1479/AHD/2016/AY.2011-12 SALIM MOHMED HUSEN RESHAMWALA 3 12, COMPUTATION SHEET, INCOME AND EXPENDITURE ACCOUNT, CAPITAL ACCOUNTS AND BALANCE SHEET IN CASE OF ASSESSEE WAS FILED. THE ASSESSING OFFICER RECORDED THAT AFTER APPEARANCE OF NAZIR GODIT NOBODY APPEARED ON BEHALF OF ASSESSEE. THE ASSESSING OFFICER AFTER SERVING FINAL SHOW CAUSE NOTICE PROCEEDED TO COMPLETE THE ASSESSMENT. BEFORE COMPLETING THE ASSESSMENT THE ASSESSING OFFICER ALSO ISSUED SHOW CAUSE NOTICE AS TO WHY PENALTY UNDER SECTION 271(1)(B) FOR NOT COMPLYING THE NOTICES OF THE ASSESSING OFFICER, MAY NOT BE IMPOSED UPON THE ASSESSEE. THE ASSESSING OFFICER RECORDED THAT THE SHOW CAUSES NOTICE WAS ISSUED RECEIVED BY THE HUSBAND OF ASSESSEE BUT NO COMPLIANCE WAS MADE. THE ASSESSING OFFICER ON THE BASIS OF INFORMATION RECEIVED FROM SUB-REGISTRAR OFFICE MADE ADDITION OF LONG-TERM CAPITAL GAIN (LTGC) OF 75,88,286/- (BEING 1/ 7 TH PART OF SALE PROCEEDS) IN THE ASSESSMENT ORDER DATED 21.03.2014 PASSED UNDER SECTION 147 READ WITH SECTION 143(3). AGGRIEVED BY THE ADDITIONS IN THE ASSESSMENT ORDER THE ASSESSEE FILED APPEAL BEFORE LEARNED COMMISSIONER (APPEALS), CHALLENGING THE VALIDITY OF REOPENING AS WELL AS THE ADDITION OF LONG TERM CAPITAL GAIN (LTCG). 4. BEFORE LEARNED COMMISSIONER (APPEALS) THE ASSESSEE FILED DETAILED WRITTEN SUBMISSION, WHICH HAS BEEN RECORDED BY HIM IN PARAGRAPH 5 OF THE IMPUGNED ORDER. IN THE WRITTEN SUBMISSION THE ASSESSEE CONTENDED THAT NOTICE UNDER SECTION 148 DATED 26 MARCH 2013 IS INVALID. IT WAS FURTHER CONTENDED THE ASSESSEE FILED RETURN OF INCOME ON 9 TH MARCH 2013 AND THE NOTICE UNDER SECTION 143(2) COULD BE ITA NO.1479/AHD/2016/AY.2011-12 SALIM MOHMED HUSEN RESHAMWALA 4 ISSUED TILL 30.09.2013 FOR REGULAR ASSESSMENT. AS THE TIME PERIOD FOR SERVING NOTICE UNDER SECTION 143(2) HAS NOT EXPIRED, NO NOTICE UNDER SECTION 148 COULD HAVE BEEN ISSUED. THE ASSESSEE ALSO RELIED ON VARIOUS CASE LAWS. IT WAS ALSO STATED BY THE ASSESSEE THAT HE WAS IN FINANCIAL CRISIS AND DUE TO THE FINAL CRISIS THEY HAVE SOLD THE PROPERTY IN A DISTRESS SALE. IN ALTERNATIVE SUBMISSION THE ASSESSEE ALSO CLAIMED DEDUCTION ON ACCOUNT OF COST OF ACQUISITION OF THE PROPERTY. 5. THE LEARNED COMMISSIONER (APPEALS) AFTER CONSIDERING THE SUBMISSION OF LEGAL HEIRS OF THE ASSESSEE AS RECORDED IN PARA 5 OF THE IMPUGNED ORDER, AFFIRMED THE ACTION OF ASSESSING OFFICER IN THE REOPENING OF THE CASE UNDER SECTION 147, HOWEVER, THE ASSESSEE WAS ALLOWED PARTIAL RELIEF ON THE ADDITION OF LTCG. THE LEARNED COMMISSIONER (APPEALS) WHILE AFFIRMING THE ACTION OF ASSESSING OFFICER CONCLUDED THAT IN COMPLIANCE OF NOTICE UNDER SECTION 148, NO ONE ATTENDED THE HEARING NOR ANY RETURN OF INCOME WAS FILED. THE ASSESSEE NOT FILE ANY RETURN OF INCOME IN COMPLIANCE OF NOTICE UNDER SECTION 148 AND THE OBJECTION THAT TIME LIMIT FOR ISSUANCE OF NOTICE UNDER SECTION 143(2) WAS AVAILABLE IS ALSO HELD AS MISPLACED AS NO OBJECTION WAS RAISED BY THE ASSESSEE DURING ASSESSMENT. AND THAT THE PROVISIONS OF SECTION 292 BB OF THE ACT ARE APPLICABLE. AND FINALLY CONCLUDED THAT THERE IS NOTHING IN SECTION 143, WHICH MAY SUGGEST THAT RECOURSE TO SECTION147 CAN BE HAD ONLY WHEN THE PERIOD OF LIMITATION TO COMPLETE ASSESSMENT PROCEEDINGS HAS EXPIRED OR THAT THE ASSESSING OFFICER SHOULD WAIT TO EXPIRY OF THE SAID PERIOD. ITA NO.1479/AHD/2016/AY.2011-12 SALIM MOHMED HUSEN RESHAMWALA 5 6. THE ALTERNATIVE PLEA OF THE ASSESSEE FOR GRANTING DEDUCTION OF COST OF ACQUISITION OF THE PROPERTY WAS ALSO REJECTED BY LEARNED COMMISSIONER (APPEALS) BY TAKING VIEW THAT ASSESSEE HAS NOT FILE ANY RETURN OF INCOME NOR OFFERED THE CAPITAL GAIN FOR TAXATION. IT WAS NOTED THAT DURING THE APPELLATE PROCEEDING THE ASSESSEE SUBMITTED THAT PROPERTY COULD NOT FETCH A HIGHER PRICE DUE TO VARIOUS REASONS. ON THE CONTENTIONS OF THE ASSESSEE THE LEARNED COMMISSIONER (APPEALS) DIRECTED THE ASSESSING OFFICER TO OBTAIN A REPORT OF DISTRICT VALUATION OFFICER (DVO) UNDER SECTION 50C(2). THE DVO OF IN HIS REPORT HAS ASSESSED THE VALUE OF THE PROPERTY AT RS.4.31 CRORE AGAINST THE VALUE DECLARED BY LEGAL HEADS OF THE ASSESSEE OF RS. 2.35 CRORE. THE COPY OF THE REPORT WAS PROVIDED TO THE ASSESSEE VIDE OFFICE LETTER DATED 22 ND MARCH 2016 TO MAKE HIS COMMENT. THE LEARNED COMMISSIONER (APPEALS) RECORDED THAT NO RESPONSE WAS RECEIVED FROM THE LEGAL HEIRS OF THE ASSESSEE. THE LEARNED COMMISSIONER (APPEALS) BY REFERRING THE PROVISION OF SECTION 50C(2) READ WITH SECTION 50C(3) CONSIDERED THE VALUE OF PROPERTY AT 4.31 CRORE AND DIRECTED THE ASSESSING OFFICER TO CORRECT THE COMPUTATION OF CAPITAL GAIN ACCORDINGLY. FURTHER AGGRIEVED, THE LEGAL HEIR OF THE ASSESSEE HAS FILED PRESENT APPEAL BEFORE THIS TRIBUNAL. 7. WE HAVE HEARD THE SUBMISSION OF LEARNED AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE AND THE LEARNED SENIOR DEPARTMENT REPRESENTATIVE (DR) FOR THE REVENUE. WE HAVE ALSO GONE THROUGH THE ORDERS OF LOWER AUTHORITIES. AT THE OUTSET OF HEARING THE LD. AR OF THE ITA NO.1479/AHD/2016/AY.2011-12 SALIM MOHMED HUSEN RESHAMWALA 6 ASSESSEE SUBMITS THAT NOTICE UNDER SECTION 148 CANNOT BE ISSUED FOR MAKING RE-ASSESSMENT, WHEN TIME IS AVAILABLE FOR ISSUE OF NOTICE UNDER SECTION 143(2). THE ASSESSEE FILED HIS RETURN OF INCOME ON 09.03.2013 AND TIME LIMIT FOR ISSUING NOTICE UNDER SECTION 143(2) WAS AVAILABLE UPTO 30.09.2013. THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 ON 26.03.2013, WHICH WAS ADMITTEDLY ISSUED WHEN TIME PERIOD FOR ISSUING NOTICE UNDER SECTION 143(2) HAS NOT EXPIRED. IN SUPPORT OF HIS SUBMISSIONS THE LD AR FOR THE ASSESSEE RELIED ON THE FOLLOWING DECISION; CIT VS TCP LTD -323 ITR 346 (MADRAS), CIT VS K.M.PACHAYAPPAN -304 ITR264 (MADRAS), CIT VS QATALYS SOFTWARE TECHNOLOGY LTD -308 ITR 249 (MADRAS), KLM ROYALS DUTCH AIRLINES VS ADIT- 292 ITR 49 (DELHI) AND TRUSTEE OF H.E.H THE NIZAM SUPPLEMENTAL FAMILY TRUST VS CIT -242 ITR 381 (SC). 8. ON THE OTHER HAND THE LD SR DR FOR THE REVENUE THE REVENUE SUBMITS THAT LEARNED COMMISSIONER (APPEALS) IN PARA 6.2.2 TO 6.3.2 OF HIS ORDER HAS CLEARLY HELD THE ASSESSEE FAILED TO UNDERTAKE LEGAL OBLIGATION EITHER IN FILING RETURN OF INCOME OR TO RAISED SUCH OBJECTION BEFORE ASSESSING OFFICER. THE ASSESSEE FOR THE FIRST TIME RAISED THE OBJECTION DURING THE FIRST APPELLATE STAGE. THE LD DR FOR THE REVENUE INVITED OUR ATTENTION TO SECTION 143 AND WOULD SUBMIT THAT THERE IS NOTHING IN THIS SECTION, WHICH MAY SUGGEST THAT RECOURSE TO SECTION 147 CAN BE HAD ONLY WHEN THE PERIOD OF LIMITATION TO COMPLETE ASSESSMENT PROCEEDINGS HAS EXPIRED. THERE IS NO ILLEGALITY IN ISSUING ITA NO.1479/AHD/2016/AY.2011-12 SALIM MOHMED HUSEN RESHAMWALA 7 NOTICE UNDER SECTION148. THE LD. DR FOR THE REVENUE THUS SUPPORTED THE ORDER OF THE LEARNED COMMISSIONER (APPEALS). 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES AND HAVE CAREFULLY GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES. WE HAVE ALSO DELIBERATED ON THE VARIOUS CASE LAWS RELIED BY LD. AR FOR THE ASSESSEE AND THE DECISIONS REFERRED AND RELIED BY LEARNED COMMISSIONER (APPEALS) IN THE IMPUGNED ORDER. THERE IS NO DISPUTE OF THE FACT THAT ASSESSEE FILED HIS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 09.03.2013. THIS FACT IS DULY RECORDED BY ASSESSING OFFICER IN PARA -1 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION148 DATED 26.03.2013. ADMITTEDLY, NOTICE UNDER SECTION 148 WAS ISSUED BEFORE EXPIRY OF PERIOD FOR ISSUING NOTICE UNDER SECTION 143(2), WHICH WAS AVAILABLE TO THE ASSESSING OFFICER UNTIL 30.092013. 10. THE HONBLE MADRAS HIGH COURT IN CIT VS TCP LTD (SUPRA) WHILE CONSIDERING THE QUESTION OF LAW 'WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS RIGHT IN HOLDING THAT NOTICE UNDER SECTION 148 OF THE ACT CANNOT BE ISSUED FOR MAKING AN ASSESSMENT UNDER SECTION 147 OF THE ACT, WHEN TIME LIMIT IS AVAILABLE FOR ISSUE OF NOTICE UNDER SECTION 143(2) OF THE ACT FOR MAKING AN ASSESSMENT UNDER SECTION 143(3) OF THE ACT. THE HONBLE COURT HELD NOTICE UNDER SECTION148 CANNOT BE ISSUED FOR MAKING REASSESSMENT, WHEN TIME IS AVAILABLE FOR ISSUE OF NOTICE UNDER ITA NO.1479/AHD/2016/AY.2011-12 SALIM MOHMED HUSEN RESHAMWALA 8 SECTION 143(2) FOR MAKING ASSESSMENT UNDER SECTION 143(3). THE RELEVANT PART OF THE DECISION IS EXTRACTED BELOW; 3. WE HEARD LEARNED COUNSEL FOR THE REVENUE, WHO FAIRLY SUBMITTED THAT THE ISSUE IS COVERED BY THE DECISION IN THE CASE OF TRUSTEES OF H.E.H. THE NIZAM'S SUPPLEMENTAL FAMILY TRUST V. CIT [2000] 242 ITR 381 IN WHICH CASE, THE SUPREME COURT CONSIDERED THE SCOPE OF REOPENING OF THE ASSESSMENT AND HELD AS FOLLOWS (PAGE 387) : 'IT IS SETTLED LAW THAT UNLESS THE RETURN OF INCOME ALREADY FILED IS DISPOSED OF, NOTICE FOR REASSESSMENT UNDER SECTION 148 CANNOT BE ISSUED, I.E., NO REASSESSMENT PROCEEDINGS CAN BE INITIATED SO LONG AS ASSESSMENT PROCEEDINGS PENDING ON THE BASIS OF THE RETURN ALREADY FILED ARE NOT TERMINATED. ACCORDING TO THE REVENUE, IT IS IMMATERIAL WHETHER THE ORDER IS COMMUNICATED OR NOT AND THE ONLY BAR TO THE REASSESSMENT PROCEEDINGS IS THAT PROCEEDINGS ON THE RETURN ALREADY FILED SHOULD HAVE BEEN TERMINATED . . . A MERE GLANCE AT THE NOTE OF THE INCOME-TAX OFFICER WOULD SHOW THAT IT COULD NOT BE SAID THAT THE INCOME-TAX OFFICER GAVE FINALITY TO THE REFUND SINCE NO REFUND WAS GRANTED EITHER IN THE HANDS OF THE TRUST OR IN THE HANDS OF THE BENEFICIARIES. IT WAS AN INCONCLUSIVE NOTE WHERE THE INCOME-TAX OFFICER LEFT THE MATTER AT THE STAGE OF CONSIDERATION EVEN WITH REGARD TO REFUND IN THE HANDS OF THE BENEFICIARIES. THIS NOTE WAS ALSO NOT COMMUNICATED TO THE TRUSTEES. NOTHING FLOWED FROM THE NOTE DATED NOVEMBER 10, 1965, ON THE FILE OF 1963-64 AS WELL. IN ANY CASE IF IT WAS AN ORDER, IT WOULD BE APPEALABLE UNDER SECTION 249 OF THE ACT. SINCE THE PERIOD OF LIMITATION STARTS FROM THE DATE OF INTIMATION OF SUCH AN ORDER, IT WAS IMPERATIVE THAT SUCH AN ORDER BE COMMUNICATED TO THE ASSESSEE. HAD THE INCOME-TAX OFFICER PASSED ANY FINAL ORDER, IT WOULD HAVE BEEN COMMUNICATED TO THE ASSESSEE WITHIN A REASONABLE PERIOD. IN ANY CASE, THE NOTE DATED NOVEMBER 10, 1965, WAS MERELY AN INTERNAL ENDORSEMENT ON THE FILE WITHOUT THERE BEING AN INDICATION IF THE REFUND APPLICATION HAD BEEN FINALLY REJECTED. BY MERELY RECORDING THAT IN HIS OPINION, NO CREDIT FOR TAX DEDUCTED AT SOURCE WAS TO BE ALLOWED, THE INCOME-TAX OFFICER COULD NOT BE SAID TO HAVE CLOSED THE PROCEEDINGS FINALLY. DURING THE PENDENCY OF THE RETURN FILED UNDER SECTION 139 OF THE ACT ALONG WITH THE REFUND APPLICATION UNDER SECTION 237 OF THE ACT, ACTION COULD NOT HAVE BEEN TAKEN UNDER SECTION 147/148 OF THE ACT (HEADNOTE).' ITA NO.1479/AHD/2016/AY.2011-12 SALIM MOHMED HUSEN RESHAMWALA 9 4. FOLLOWING THE ABOVESAID JUDGMENT, A DIVISION BENCH OF THIS COURT IN THE CASE OF CIT V. K.M. PACHAYAPPAN [2008] 304 ITR 264 AND THE SUBSEQUENT DIVISION BENCH OF THIS COURT, IN WHICH ONE OF US IS A PARTY (RAVIRAJA PANDIAN J.) IN THE CASE OF CIT V. QATALYS SOFTWARE TECHNOLOGIES LTD. [2009] 308 ITR 249 , HAS HELD THE ISSUE AGAINST THE REVENUE, BY ALSO RELYING UPON THE DECISION IN THE CASE OF KLM ROYAL DUTCH AIRLINES V. ASST. DIT [2007] 292 ITR 49 , IN WHICH THE DELHI HIGH COURT, FOLLOWING THE SUPREME COURT JUDGMENTS CITED SUPRA, CONSIDERED THE SCOPE OF THE PROVISION OF SECTIONS 139 AND 147 OF THE ACT AND HELD AS FOLLOWS (PAGE 63) : 'APPLYING THIS LINE OF DECISIONS TO THE FACTS OF THE PRESENT CASE, THE INESCAPABLE CONCLUSION THAT WOULD HAVE TO BE REACHED IS THAT WHILE ASSESSMENT PROCEEDINGS REMAIN INCHOATE, NO 'FRESH EVIDENCE OR MATERIAL' COULD POSSIBLY BE UNEARTHED. IF ANY SUCH MATERIAL OR EVIDENCE IS AVAILABLE, THERE WOULD BE NO RESTRICTIONS OR CONSTRAINTS ON ITS BEING TAKEN INTO CONSIDERATION BY THE ASSESSING OFFICER FOR FRAMING THE THEN CURRENT ASSESSMENT. IF THE ASSESSMENT IS NOT FRAMED BEFORE THE EXPIRY OF THE PERIOD OF LIMITATION FOR A PARTICULAR ASSESSMENT YEAR, IT WOULD HAVE TO BE ASSUMED THAT SINCE PROCEEDINGS HAD NOT BEEN OPENED UNDER SECTION 143(2), THE RETURN HAD BEEN ACCEPTED AS CORRECT. IT MAY BE ARGUED THAT THEREAFTER RECOURSE COULD BE TAKEN TO SECTION 147, PROVIDED FRESH MATERIAL HAD BEEN RECEIVED BY THE ASSESSING OFFICER AFTER THE EXPIRY OF LIMITATION FIXED FOR FRAMING THE ORIGINAL ASSESSMENT. SO FAR AS THE PRESENT CASE IS CONCERNED, WE ARE OF THE VIEW THAT IT IS EVIDENT THAT, FACED WITH SEVERE PAUCITY OF TIME, THE ASSESSING OFFICER HAD ATTEMPTED TO TRAVEL THE PATH OF SECTION 147 IN THE VAIN ATTEMPT TO ENLARGE THE TIME AVAILABLE FOR FRAMING THE ASSESSMENT. THIS IS NOT PERMISSIBLE IN LAW.' 5. IN THE LIGHT OF THE DECISIONS CITED SUPRA AND ON THE FACTS OF THIS CASE, WE ARE OF THE VIEW THAT THE ORDER OF TRIBUNAL IS NOT AGAINST ANY STATUTORY PROVISION OR THE LAW DECLARED BY THE SUPREME COURT. THE TAX CASE APPEAL STANDS DISMISSED. ITA NO.1479/AHD/2016/AY.2011-12 SALIM MOHMED HUSEN RESHAMWALA 10 11. CONSIDERING THE AFORESAID LEGAL POSITION THAT NO REASSESSMENT PROCEEDINGS CAN BE INITIATED SO LONG AS ASSESSMENT PROCEEDINGS PENDING ON THE BASIS OF THE RETURN ALREADY FILED ARE NOT TERMINATED, WE ARE OF THE VIEW THAT ISSUANCE OF NOTICE DATED 26.03.2013 WAS NOT VALID AND THE SUBSEQUENT ACTION INITIATED BY ASSESSING OFFICER IS VOID AD INITIO . 12. THE OBSERVATION OF LEARNED COMMISSIONER (APPEALS) AND THE SUBMISSIONS OF LD DR FOR THE REVENUE THAT THERE IS NOTHING IN SECTION 143, WHICH MAY SUGGEST THAT RECOURSE TO SECTION 147 CAN BE HAD ONLY WHEN THE PERIOD OF LIMITATION TO COMPLETE ASSESSMENT PROCEEDINGS HAS EXPIRED, IS NOT SUSTAINABLE IN VIEW OF THE LAW LAID DOWN BY HONBLE APEX COURT IN TRUSTEES OF H.E.H. THE NIZAM'S SUPPLEMENTAL FAMILY TRUST V. CIT (SUPRA). HENCE, THE ASSESSEE SUCCEED ON GROUND NO.1 OF THE APPEAL. 13. KEEPING IN VIEW THAT WE HAVE ALLOWED THE GROUND NO.1 OF THE APPEAL AND HELD THAT THE ACTIONS OF THE ASSESSING OFFICER ARE VIOD AB INITO , THEREFORE, THE DISCUSSIONS OF OTHER GROUNDS OF APPEAL HAVE BECOME ACADEMIC. 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. 15. ORDER PRONOUNCED ON 29/09/2020, AS PER RULE 34 OF INCOME TAX APPELLATE TRIBUNAL, RULE 1963. SD/- SD/- (DR. ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER SURAT, DATED: 29/09/2020 SAMANTA, PS ITA NO.1479/AHD/2016/AY.2011-12 SALIM MOHMED HUSEN RESHAMWALA 11 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR // TRUE COPY // /TRUE COPY/ BY ORDER ASSISTANT REGISTRAR/SR. PS/PS ITAT, SURAT