Padmapriya Real Estate, CHENNAI V. ITO, CHENNAI

ITA 2145/CHNY/2011

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9891 (ITAT-CHENNAI)
• Duration Of Justice: 3 year(s) 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 25-05-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 27-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N MADHAVAN
• Assessee Lawyers: T VASUDEVAN
• Keywords: Recovery proceedings; Business income; Opportunity of being heard; Difference of opinion; Change of opinion
• Section: 246; 148; 90

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . . . , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.2145/MDS/2011 ( )( / ASSESSMENT YEAR : 2002-03 M/S PADMAPRIYA REAL ESTATE, ARJAY APEX CENTRE, 51, COLLEGE ROAD, CHENNAI - 600 006. PAN : AAAFP 0659 A V. THE INCOME TAX OFFICER, BUSINESS WARD XV(2), CHENNAI - 600 034 . (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : SHRI T. VASUDEVAN, ADVOCATE -.+, / 0 / RESPONDENT BY : SHRI N. MADHAVAN, JCIT 1 / 2% / DATE OF HEARING : 25.05.2015 3') / 2% / DATE OF PRONOUNCEMENT : 26.06.2015 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-XII, CHENN AI, DATED 19.10.2011 AND PERTAINS TO ASSESSMENT YEAR 2002-03. 2 I.T.A. NO.2145/MDS/11 2. SHRI T. VASUDEVAN, THE LD.COUNSEL FOR THE ASSESS EE, SUBMITTED THAT THE FIRST ISSUE ARISES FOR CONSIDERA TION IS WITH REGARD TO REOPENING OF THE ASSESSMENT. ACCORDING TO THE L D. COUNSEL, THE ASSESSEE FILED THE RETURN OF INCOME ON 2.09.2002 AD MITTING AN INCOME OF ` 35,700/-. THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE A CT'). SUBSEQUENTLY, THE ASSESSING OFFICER REOPENED THE AS SESSMENT BY ISSUING NOTICE UNDER SECTION 148 OF THE ACT ON 30.0 3.2007. ACCORDING TO THE LD. COUNSEL, THE ASSESSING OFFICER REOPENED THE ASSESSMENT DUE TO CHANGE OF OPINION. THE LD.COUNSE L PLACED HIS RELIANCE ON THE JUDGMENT OF THE DELHI HIGH COURT IN CIT V. ORIENT CRAFT LTD. (2013) 354 ITR 536. ACCORDING TO THE LD . COUNSEL, THE ASSESSEE IS A PARTNERSHIP FIRM DEALING IN REAL ESTA TE BUSINESS. THE ASSESSEE IS MANAGING PROPERTIES APART FROM BUYING A ND SELLING OF LANDS AND LEASING/LETTING OUT OF PROPERTIES. THE A SSESSEE CLAIMED RENTAL INCOME FROM THE PROPERTIES AS INCOME FROM BU SINESS. HOWEVER, THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE ASSESSEE. THE CIT(APPEALS) ALSO CONFIRMED THE ORDE R OF THE ASSESSING OFFICER. ACCORDING TO THE LD. COUNSEL, T HE BUSINESS OF THE ASSESSEE IS LETTING OUT OF THE PROPERTIES, THEREFOR E, THE CIT(APPEALS) IS NOT JUSTIFIED IN CONFIRMING THE ORDER OF THE ASS ESSING OFFICER. REFERRING TO THE JUDGMENT OF THE APEX COURT IN CHEN NAI PROPERTIES & 3 I.T.A. NO.2145/MDS/11 INVESTMENTS LTD. V. CIT (2015) (5) TMI 46, THE LD.C OUNSEL SUBMITTED THAT THE OBJECT OF THE ASSESSEE-COMPANY BEFORE THE APEX COURT IS TO ACQUIRE PROPERTIES IN THE CITY OF MADRAS AND LET OU T THOSE PROPERTIES. THE ASSESSEE RECEIVED RENTAL INCOME THEREFROM AND S HOWED AS BUSINESS INCOME IN THE RETURN FILED. THE ASSESSING OFFICER, HOWEVER, TREATED THE SAME AS INCOME FROM HOUSE PROP ERTIES. THE COMMISSIONER ALLOWED THE CLAIM OF THE ASSESSEE HOLD ING IT AS ITS BUSINESS INCOME. HOWEVER, TRIBUNAL DECLINED TO INT ERFERE WITH THE ORDER OF THE COMMISSIONER. ON FURTHER APPEAL BY TH E REVENUE, BEFORE THE HIGH COURT, THE HIGH COURT ALLOWED THE A PPEAL OF THE REVENUE HOLDING THAT INCOME DERIVED FROM LETTING OU T OF THE PROPERTIES WOULD NOT BE INCOME FROM BUSINESS BUT WO ULD BE ASSESSED AS INCOME FROM HOUSE PROPERTY. THE APEX C OURT, AFTER CONSIDERING ITS EARLIER JUDGMENT IN KARANPURA DEVEL OPMENT CO. LTD. V. CIT (44 ITR 362), FOUND THAT EACH CASE HAS TO BE DECIDED FROM BUSINESSMANS POINT OF VIEW TO FIND OUT WHETHER LET TING WAS DONE AS A BUSINESS OR EXPLOITATION OF HIS PROPERTY AS OWNER . A COMMERCIAL ASSET IS ONLY AN ASSET USED IN A BUSINESS AND NOTHI NG ELSE. THE APEX COURT FURTHER FOUND THAT THE RENTAL INCOME REC EIVED BY THE ASSESSEE HAS TO BE ASSESSED AS INCOME FROM BUSINESS . THEREFORE, ACCORDING TO THE LD. COUNSEL, EVEN ON MERIT, THE AS SESSEE HAS A CASE. ON A QUERY FROM THE BENCH WHAT IS THE BUSI NESS OF THE 4 I.T.A. NO.2145/MDS/11 ASSESSEE, WHETHER THE PROPERTY WAS LET OUT IN THE C OURSE OF ITS BUSINESS OR IT WAS LET OUT AS AN OWNER? THE LD.COU NSEL SUBMITTED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION. 3. ON THE CONTRARY, SHRI N. MADHAVAN, THE LD. DEPAR TMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE FILED T HE RETURN OF INCOME AND THE SAME WAS PROCESSED UNDER SECTION 143 (1) OF THE ACT. ACCORDING TO THE LD. D.R., THE ASSESSING OFFI CER HAS NOT EXPRESSED ANY VIEW. THEREFORE, IT CANNOT BE SAID T HAT THERE WAS A CHANGE OF OPINION. SINCE THE REOPENING WAS MADE WI THIN A PERIOD OF FOUR YEARS, ACCORDING TO THE LD. D.R., THE ASSES SING OFFICER HAS RIGHTLY REOPENED THE ASSESSMENT. 4. REFERRING TO THE MERIT OF THE APPEAL, THE LD. D. R. SUBMITTED THAT THE ASSESSEE LET OUT THE PROPERTY AS AN OWNER. IT IS NOT A BUSINESS OF THE ASSESSEE TO LET OUT THE PROPERTIES. THEREFORE, ACCORDING TO THE LD. D.R., THE JUDGMENT OF APEX COU RT WOULD NOT BE APPLICABLE TO THE FACTS OF THE CASE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE FIRST ISSUE ARISES FOR CONSIDERATION IS WITH REGARD TO REOPENING OF ASSESS MENT. THE CONTENTION OF THE ASSESSEE BEFORE THIS TRIBUNAL IS THAT THE ASSESSING 5 I.T.A. NO.2145/MDS/11 OFFICER REOPENED THE ASSESSMENT ONLY ON THE BASIS O F THE MATERIAL AVAILABLE ON RECORD. THERE IS NO INFORMATION/MATER IAL CAME TO THE KNOWLEDGE OF THE ASSESSING OFFICER OTHER THAN THE O NE WHICH WAS FILED ALONG WITH THE RETURN OF INCOME. THEREFORE, CONTENTION OF THE LD.COUNSEL IS THAT THERE WAS A CHANGE OF OPINION. THE LD.COUNSEL PLACED HIS RELIANCE ON THE JUDGMENT OF DELHI HIGH C OURT IN THE CASE OF CIT V. ORIENT CRAFT LTD. (2013) 354 ITR 536. TH E DELHI HIGH COURT, BY PLACING RELIANCE ON THE JUDGMENT OF THE A PEX COURT IN CIT V. KELVINATOR OF INDIA LTD. (2010) 320 ITR 561, FOU ND THAT THE ASSESSING OFFICER CANNOT CHANGE HIS OPINION. THE D ELHI HIGH COURT FURTHER FOUND THAT THE SATISFACTION OF THE ASSESSIN G OFFICER WITH REGARD TO ESCAPEMENT OF INCOME AMOUNTS TO CHANGE OF OPINION EVEN THOUGH THE RETURN WAS SCRUTINIZED UNDER SECTION 143 (1) OF THE ACT. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SE CTION 143(1) OF THE ACT WHICH READS AS FOLLOWS:- (1) WHERE A RETURN HAS BEEN MADE UNDER SECTION 139, OR IN RESPONSE TO A NOTICE UNDER SUB-SECTION (1) OF SECTI ON 142, SUCH RETURN SHALL BE PROCESSED IN THE FOLLOWING MANNER, NAMELY :- (A) THE TOTAL INCOME OR LOSS SHALL BE COMPUTED AFTE R MAKING THE FOLLOWING ADJUSTMENTS, NAMELY :- (I) ANY ARITHMETICAL ERROR IN THE RETURN ; OR (II) AN INCORRECT CLAIM, IF SUCH INCORRECT CLAIM IS APPARENT FROM ANY INFORMATION IN THE RETURN ; (B) THE TAX AND INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF THE TOTAL INCOME COMPUTED UNDER CLAUSE (A) ; (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE ASSESSEE SHALL BE DETERMINED AFTER ADJUSTMENT OF TH E TAX AND INTEREST, IF ANY, COMPUTED UNDER CLAUSE (B) BY ANY TAX DEDUCTED 6 I.T.A. NO.2145/MDS/11 AT SOURCE, ANY TAX COLLECTED AT SOURCE, ANY ADVANCE TAX PAID, ANY RELIEF ALLOWABLE UNDER AN AGREEMENT UNDER SECTI ON 90 OR SECTION 90A, OR ANY RELIEF ALLOWABLE UNDER SECTION 91, ANY REBATE ALLOWABLE UNDER PART A OF CHAPTER VIII, ANY TAX PAI D ON SELF- ASSESSMENT AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST ; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE ASSESSEE SPECIFYING THE SUM DETERMINED TO BE PAYABL E BY, OR THE AMOUNT OF REFUND DUE TO, THE ASSESSEE UNDER CLA USE (C) ; AND (E) THE AMOUNT OF REFUND DUE TO THE ASSESSEE IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHALL BE GRANTED TO THE ASSESSEE : PROVIDED THAT AN INTIMATION SHALL ALSO BE SENT TO THE ASSES SEE IN A CASE WHERE THE LOSS DECLARED IN THE RETURN BY THE A SSESSEE IS ADJUSTED BUT NO TAX OR INTEREST IS PAYABLE BY, OR N O REFUND IS DUE TO, HIM : PROVIDED FURTHER THAT NO INTIMATION UNDER THIS SUB-SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END O F THE FINANCIAL YEAR IN WHICH THE RETURN IS MADE. EXPLANATION FOR THE PURPOSES OF THIS SUB-SECTION,- (A) 'AN INCORRECT CLAIM APPARENT FROM ANY INFORMATI ON IN THE RETURN' SHALL MEAN A CLAIM, ON THE BASIS OF AN ENTRY, IN TH E RETURN,- (I) OF AN ITEM, WHICH IS INCONSISTENT WITH ANOTH ER ENTRY OF THE SAME OR SOME OTHER ITEM IN SUCH RETURN ; (II) IN RESPECT OF WHICH THE INFORMATION REQUIRE D TO BE FURNISHED UNDER THIS ACT TO SUBSTANTIATE SUCH EN TRY HAS NOT BEEN SO FURNISHED ; OR (III) IN RESPECT OF A DEDUCTION, WHERE SUCH DEDU CTION EXCEEDS SPECIFIED STATUTORY LIMIT WHICH MAY HAVE BEEN EXPRESSED AS MONETARY AMOUNT OR PERCENTAGE OR RA TIO OR FRACTION ; (B) THE ACKNOWLEDGMENT OF THE RETURN SHALL BE DEEME D TO BE THE INTIMATION IN A CASE WHERE NO SUM IS PAYABLE BY, OR REFUNDABLE TO, THE ASSESSEE UNDER CLAUSE (C), AND WHERE NO ADJUSTM ENT HAS BEEN MADE UNDER CLAUSE (A). WHILE PROCESSING THE RETURN UNDER SECTION 143(1) OF THE ACT, THE ASSESSING OFFICER IS EMPOWERED TO CORRECT ARITHMETI C ERROR IN THE RETURN OR ADJUSTMENT OF AN INCORRECT CLAIM WHICH IS APPARENT ON THE INFORMATION GIVEN IN THE RETURN. THE ASSESSING OFF ICER IS NOT 7 I.T.A. NO.2145/MDS/11 EXPECTED TO DECIDE IN RESPECT OF THE ISSUE WHICH RE QUIRES A DISCUSSION AND EXAMINATION. THEREFORE, THE ASSESSI NG OFFICER IS MAKING A CORRECTION OF ARITHMETIC ERROR AND THE CLA IM WHICH IS APPARENT FROM THE INFORMATION AVAILABLE IN THE RETU RN. IN THE NEW SCHEME OF INTIMATION UNDER SECTION 143(1) OF THE AC T, THE ASSESSING OFFICER IS NOT EXPECTED TO EXPRESS ANY OPINION ON T HE ISSUE RAISED BY THE ASSESSEE. IN OTHER WORDS, THE ASSESSING OFF ICER CANNOT EXPRESS ANY OPINION WHILE PROCESSING THE RETURN UND ER SECTION 143(1) OF THE ACT. THIS IS A RADICAL CHANGE MADE B Y THE PARLIAMENT WITH EFFECT FROM 1.4.1989. SINCE THE ASSESSING OFF ICER CANNOT MAKE ANY ADJUSTMENT WITH REGARD TO AN ISSUE WHICH IS DEB ATABLE IN NATURE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER CANNOT EXPRESS ANY OPINION IN A PROCEEDING UNDER SE CTION 143(1) OF THE ACT. THEREFORE, THE JUDGMENT OF THE APEX COURT IN KELVINATOR OF INDIA LTD. (SUPRA) AND THE JUDGMENT OF THE DELHI HI GH COURT IN ORIENT KRAFT LTD. (SUPRA) ARE NOT APPLICABLE TO THE FACTS OF THE CASE. IN FACT, THE APEX COURT IN ACIT V. RAJESH JHAVERI STOCK BROK ERS P. LTD. (2007) 291 ITR 500 EXAMINED THE VERY SAME ISSUE IN ELABORATE AND OBSERVED AS FOLLOWS:- 13. ONE THING FURTHER TO BE NOTICED IS THAT INTIMATI ON UNDER SECTION 143(1)(A) IS GIVEN WITHOUT PREJUDICE TO THE PROVISIONS OF SECTION 143(2). THOUGH TECHNICALLY THE INTIMATION ISSUED WAS DEEMED TO BE A DEMAND NOTICE ISSUED UNDER SECTION 156, THAT DID NOT PER SE PRECLUD E THE 8 I.T.A. NO.2145/MDS/11 RIGHT OF THE ASSESSING OFFICER TO PROCEED UNDER SEC TION 143(2). THAT RIGHT IS PRESERVED AND IS NOT TAKEN AWAY. BETWEEN THE PERIOD FROM APRIL 1, 1989, AND MARCH 31, 1998, THE SECOND PROVISO TO SECTION 143(1)(A), REQUIRED THAT WHERE ADJUSTMENTS WERE MADE UNDER THE FIRST PROVISO TO SECTION 143(1)(A), AN INTIMATION HAD TO BE SENT TO THE ASSESSEE NOTWITHSTANDING THAT NO TAX OR REFUN D WAS DUE FROM HIM AFTER MAKING SUCH ADJUSTMENTS. WIT H EFFECT FROM APRIL 1, 1998, THE SECOND PROVISO TO SECTI ON 143(1)(A) WAS SUBSTITUTED BY THE FINANCE ACT, 1997, WHIC H WAS OPERATIVE TILL JUNE 1, 1999. THE REQUIREMENT WAS T HAT AN INTIMATION WAS TO BE SENT TO THE ASSESSEE WHETHE R OR NOT ANY ADJUSTMENT HAD BEEN MADE UNDER THE FIRST PROVISO TO SECTION 143(1) AND NOTWITHSTANDING THAT N O TAX OR INTEREST WAS FOUND DUE FROM THE ASSESSEE CONCERN ED. BETWEEN APRIL 1, 1998, AND MAY 31, 1999, SENDING OF AN INTIMATION UNDER SECTION 143(1)(A) WAS MANDATORY. THU S, THE LEGISLATIVE INTENT IS VERY CLEAR FROM THE USE O F THE WORD 'INTIMATION' AS SUBSTITUTED FOR 'ASSESSMENT' T HAT TWO DIFFERENT CONCEPTS EMERGED. WHILE MAKING AN ASSESSMENT, THE ASSESSING OFFICER IS FREE TO MAKE A NY ADDITION AFTER GRANT OF OPPORTUNITY TO THE ASSESSEE . BY MAKING ADJUSTMENTS UNDER THE FIRST PROVISO TO SECTI ON 143(1)(A), NO ADDITION WHICH IS IMPERMISSIBLE BY THE INFORMATION GIVEN IN THE RETURN COULD BE MADE BY TH E ASSESSING OFFICER. THE REASON IS THAT UNDER SECTION 143(1)(A) NO OPPORTUNITY IS GRANTED TO THE ASSESSEE A ND THE ASSESSING OFFICER PROCEEDS ON HIS OPINION ON TH E BASIS OF THE RETURN FILED BY THE ASSESSEE. THE VERY FACT THAT NO OPPORTUNITY OF BEING HEARD IS GIVEN UNDER S ECTION 143(1)(A) INDICATES THAT THE ASSESSING OFFICER HAS TO PROCEED ACCEPTING THE RETURN AND MAKING THE PERMISS IBLE ADJUSTMENTS ONLY. AS A RESULT OF INSERTION OF THE EXPLANATION TO SECTION 143 BY THE FINANCE (NO. 2) ACT OF 1991 WITH EFFECT FROM OCTOBER 1, 1991, AND SUBSEQUENTLY WITH EFFECT FROM JUNE 1, 1994, BY THE FINANCE ACT, 1994, AND ULTIMATELY OMITTED WITH EFFECT FROM JUNE 1, 1999, BY THE EXPLANATION AS INTRODUCED BY THE FINANCE (NO. 2) ACT OF 1991 AN INTIMATION SENT TO THE ASSESSEE UNDER SECT ION 143(1)(A) WAS DEEMED TO BE AN ORDER FOR THE PURPOSES OF SECTION 246 BETWEEN JUNE 1, 1994 AND MAY 31, 1999, AND UNDER SECTION 264 BETWEEN OCTOBER 1, 1991, AND MAY 31, 1999. IT IS TO BE NOTED THAT THE EXPRESSIONS 'INTIMATIO N' 9 I.T.A. NO.2145/MDS/11 AND 'ASSESSMENT ORDER' HAVE BEEN USED AT DIFFERENT PLACES. THE CONTEXTUAL DIFFERENCE BETWEEN THE TWO EXPRESSIONS HAS TO BE UNDERSTOOD IN THE CONTEXT THE EXPRESSIONS ARE USED. ASSESSMENT IS USED AS MEANING SOMETIMES 'THE COMPUTATION OF INCOME', SOMETIMES 'T HE DETERMINATION OF THE AMOUNT OF TAX PAYABLE' AND SOMETIMES 'THE WHOLE PROCEDURE LAID DOWN IN THE ACT FOR IMPOSING LIABILITY UPON THE TAX PAYER'. IN THE SCHEM E OF THINGS, AS NOTED ABOVE, THE INTIMATION UNDER SECTIO N 143(1)(A) CANNOT BE TREATED TO BE AN ORDER OF ASSESSM ENT. THE DISTINCTION IS ALSO WELL BROUGHT OUT BY THE STA TUTORY PROVISIONS AS THEY STOOD AT DIFFERENT POINTS OF TIM E. UNDER SECTION 143(1)(A) AS IT STOOD PRIOR TO APRIL 1, 1989, THE ASSESSING OFFICER HAD TO PASS AN ASSESSMENT ORD ER IF HE DECIDED TO ACCEPT THE RETURN, BUT UNDER THE AMEN DED PROVISION, THE REQUIREMENT OF PASSING OF AN ASSESSM ENT ORDER HAS BEEN DISPENSED WITH AND INSTEAD AN INTIMA TION IS REQUIRED TO BE SENT. VARIOUS CIRCULARS SENT BY T HE CENTRAL BOARD OF DIRECT TAXES SPELL OUT THE INTENT OF THE LEGISLATURE, I.E., TO MINIMIZE THE DEPARTMENTAL WOR K TO SCRUTINIZE EACH AND EVERY RETURN AND TO CONCENTRATE ON SELECTIVE SCRUTINY OF RETURNS. THESE ASPECTS WERE HIGHLIGHTED BY ONE OF US (D. K. JAIN J.) IN APOGEE INTERNATIONAL LIMITED V. UNION OF INDIA [1996] 220 ITR 248 (DELHI). IT MAY BE NOTED ABOVE THAT UNDER THE FIRS T PROVISO TO THE NEWLY SUBSTITUTED SECTION 143(1), WITH EFFECT FROM JUNE 1, 1999, EXCEPT AS PROVIDED IN THE PROVISION ITSELF, THE ACKNOWLEDGMENT OF THE RETURN SHALL BE DEEMED TO BE AN INTIMATION UNDER SECTION 143(1) WH ERE (A) EITHER NO SUM IS PAYABLE BY THE ASSESSEE, OR (B ) NO REFUND IS DUE TO HIM. IT IS SIGNIFICANT THAT THE ACKNOWLEDGMENT IS NOT DONE BY ANY ASSESSING OFFICER , BUT MOSTLY BY MINISTERIAL STAFF. CAN IT BE SAID THAT AN Y 'ASSESSMENT' IS DONE BY THEM ? THE REPLY IS AN EMPH ATIC 'NO'. THE INTIMATION UNDER SECTION 143(1)(A) WAS DEEM ED TO BE A NOTICE OF DEMAND UNDER SECTION 156, FOR THE APPARENT PURPOSE OF MAKING MACHINERY PROVISIONS REL ATING TO RECOVERY OF TAX APPLICABLE. BY SUCH APPLICATION O NLY RECOVERY INDICATED TO BE PAYABLE IN THE INTIMATION BECAME PERMISSIBLE. AND NOTHING MORE CAN BE INFERRED FROM THE DEEMING PROVISION. THEREFORE, THERE BEING NO ASSESS MENT UNDER SECTION 143(1)(A), THE QUESTION OF CHANGE OF OP INION, AS CONTENDED, DOES NOT ARISE. 10 I.T.A. NO.2145/MDS/11 THIS OBSERVATION OF THE APEX COURT WAS NOT BROUGHT TO THE NOTICE OF THE DELHI HIGH COURT. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS RIGHTLY REOP ENED THE ASSESSMENT BY ISSUING A NOTICE UNDER SECTION 148 OF THE ACT. 6. NOW COMING TO THE MERIT OF THE CASE, THE ASSESSE E CLAIMS THAT THE BUSINESS OF THE ASSESSEE IS LETTING OUT OF THE PROPERTIES. NO MATERIAL IS AVAILABLE ON RECORD TO SUGGEST THAT THE ASSESSEE IS CARRYING ON THE BUSINESS OF LETTING OUT OF THE PROP ERTIES NOR ANY MATERIAL AVAILABLE ON RECORD WITH REGARD TO NATURE OF PROPERTY WHICH WAS LET OUT BY THE ASSESSEE AND THE PURPOSE FOR WHI CH IT WAS LET OUT. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THE MATTER NEEDS TO BE RECONSIDERED BY THE ASSESSING OFFICER I N THE LIGHT OF THE JUDGMENT OF THE APEX COURT IN CHENNAI PROPERTIES & INVESTMENTS LTD. (SUPRA). ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ISSUE OF LETTING OUT OF PROPERTY IS R EMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFIC ER SHALL RE- EXAMINE THE MATTER AFRESH IN THE LIGHT OF THE MATER IAL AVAILABLE ON RECORD AND DECIDE THE SAME AFRESH IN ACCORDANCE WIT H LAW AFTER CONSIDERING THE JUDGMENT OF THE APEX COURT IN CHENN AI PROPERTIES & INVESTMENTS LTD. (SUPRA). 11 I.T.A. NO.2145/MDS/11 7. WITH THE ABOVE OBSERVATION, THE APPEAL OF THE AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 26 TH JUNE, 2015 AT CHENNAI. SD/- SD/- (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) (. !'# ! ) ( . . . ) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 26 TH JUNE, 2015. KRI. / -267 87)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 92 () /CIT(A)-XII, CHENNAI-34 4. 1 92 /CIT-X, CHENNAI 5. 7: -2 /DR 6. ( ; /GF.