Asstt. Comm. Of Income Tax Circle 2, Margao V. M/S. Cabral & Company (AOP), Goa

ITA 73/PAN/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 66821 (ITAT-PANAJI)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 16-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIT RAJ SINGH
• Assessee Lawyers: D E ROBINSON
• Keywords: Depreciation; Deemed dividend; Reason to believe
• Section: 143(3); 80IB; 147; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P.K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO. 73/PNJ/2013 : (ASST. YEAR : 2005 - 06) ASST. COMMISSIONER OF INCOME - TAX, CIRCLE - 2, MARGAO, GOA. (APPELLANT) VS. M/S. CABRAL & COMPANY (AOP) 1 ST FLOOR, TILAK COMMERCIAL COMPLEX, F.L. GOMES ROAD, VASCO - DA - GAMA, GOA. (RESPONDENT) PAN AAAAC0632P CO NO. 13/PNJ/2013 (IN ITA NO. 73/PNJ/2013) : (ASST. YEAR : 2005 - 06) M/S. CABRAL & COMPANY (AOP) 1 ST FLOOR, TILAK COMMERCIAL COMPLEX, F.L. GOMES ROAD, VASCO - DA - GAMA, GOA (CROSS OBJECTOR) PAN AAAAC0632P VS. ASST. COMMISSIONER OF INCOME - TAX, CIRCLE - 2, MARGAO, GOA. (RESPONDENT) REVENUE BY : AMRIT RAJ SINGH, DR ASSESSEE BY : D.E. ROBINSON, ADV. DATE OF HEARING : 25/06/2013 DATE OF PRONOUNCEMENT : 26 / 07 /2013 O R D E R PER P.K. BANSAL : 1. THE APPEAL AS WELL AS THE CROSS OBJECTION HAVE BEEN FILED AGAINST THE ORDER OF CIT(A) DT.26.2.2013. IN THE APPEAL FILED BY THE REVENUE, THE REVENUE HAS TAKEN THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL : 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS OPPOSED TO LAW AND FACTS OF THE CASE. 2 ITA NO. 73/PNJ/2013 & CO NO. 13/PNJ/2013 (ASST. YEAR : 2005 - 06) 2. THE LD. CIT(A ) HAS ERRED IN ALLOWING THE DEPRECIATION ON A BARGE NAMED M.V. OSRICCAB - III OF RS.36,25,000/ - AT THE RATE OF 25% FOR LESS THAN 180 DAYS EVEN WHEN THE BARGE WAS NOT PUT TO USE FOR THE PURPOSE OF ASSESSEES BUSINESS & PROFESSION ON OR BEFORE 31.03.2005. 3. T HE LD. CIT(A) HAS ERRED IN IGNORING THE BILL RAISED BY THE ASSESSEE ON SALGAOCAR SHIPPING CO. PVT. LTD. DATED 12.04.2005 WHICH ITSELF INDICATES THAT THE TRIP MADE BY THE SAID BARGE WAS CONDUCTED ON 01.04.2005 & 04.04.2005 I.E. AFTER THE COMPLETION OF THE P REVIOUS YEAR 2004 - 05. 4. THE LD. CIT(A) HAS ERRED IN CONSIDERING A COPY OF TRIP SHEET IN THE NAME OF THE ASSESSEES SISTER CONCERN CABRAL & CO. PVT. LTD. AS A HARD EVIDENCE WHEN THE SAID TRIP WAS NOT UNDER TAKEN FOR BUSINESS PURPOSE AS THE SAME IS PROVED B Y THE ABSENCE OF ANY INVOICE RAISED AGAINST THE SAME. 5. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DEEMED DIVIDEND OF RS.2,75,000/ - U/S 2(22)(E) OF THE IT ACT. 6. THE LD. CIT(A) HAS ERRED INIGNORING THE FACT THAT THE ASSESSEE HAS FAILED TO PRODUCE ANY INVOICE OR BILL RAISED IN SUPPORT OF THE REPAIR WORKS FOR WHICH THE ADVANCES WAS RECEIVED. WHILE IN THE CROSS OBJECTION FILED BY THE ASSESSEE, THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND : 1. THE LE ARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN REJECTING THE SUBMISSION OF THE RESPONDENT THAT THE ASSESSING OFFICER HAD NO JURISDICTION TO MAKE THE IMPUGNED RE - ASSESSMENT. 2. SINCE THE GROUND TAKEN IN THE CROSS OBJECTION FILED BY THE ASSESSEE RELATE TO THE VALIDITY OF THE ASSESSMENT AS IN THE OPINION OF THE ASSESSEE, THE AO HAS NO JURISDICTION TO MAKE THE IMPUGNED RE - ASSESSMENT. WE, THEREFORE, TAKE THIS GROUND FIRST. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ORIGINAL ASSESSMENT IN THIS CAS E WAS COMPLETED BY PROCESSING THE RETURN U/S 143(1) AT AN INCOME OF RS.3 7 ,76,140/ - ALLOWING DEDUCTION U/S 80IB AMOUNTING TO RS.29,78,588/ - ON 22.11.2005. SUBSEQUENTLY, NOTICE U/S 148 DT. 5.5.2008 WAS SERVED ON THE ASSESSEE ON 8.5.2008 BY RECORDING THE FOL LOWING REASONS : 3 ITA NO. 73/PNJ/2013 & CO NO. 13/PNJ/2013 (ASST. YEAR : 2005 - 06) THE ASSESSEE HAS FILED RETURN OF INCOME ON 31.10.2005 DECLARING INCOME OF RS.37,76,140/ - . THE SAME HAS BEEN PROCESSED ON 22.11.2005. IT IS SEEN FROM THE DEPRECIATION SCHEDULE ANNEXED TO THE RETURN OF INCOME THAT ASSESSEE HAS CLAIMED EXCESS DEPRECIATION ON CERTAIN ITEMS THAN THAT ALLOWABLE UNDER THE INCOME TAX ACT. THE ITEMS ON WHICH THE ASSESSEE HAS CLAIMED EXCESS DEPRECIATION ARE SHOWN BELOW. ITEM WDV DEPRECIATION RATE DEPRECIATION DIFFERENCE CLAIMED ALLOWABLE CLAIMED ALLOWABLE WORKSHOP 24750 12.5% 5% 3093 1237 1856 SLIPWAY 636771 25% 10% 159200 63680 95520 CONCRETE BLOCK 14597 25% 10% 3649 1460 2189 JETTY 586256 25% 10% 146564 58625 87939 WORKSHOP 355097 25% 10% 123224 49289 73935 435730 174291 261439 THE ITEMS SHOWN IN THE TABLE FALLS UNDER THE CATEGORY OF BUILDING FOR THE PURPOSE OF DEPRECIATION. THE TERM BUILDINGS INCLUDE ROAD, BRIDGES, CULVERT, WELLS AND TUBE WELLS. SO THE ASSESSEE IS ENTITLED TO DEPRECIATION APPLICABLE TO BUILDINGS ON THE ABOVE ITEMS I.E. 10%. BECAUSE OF THIS CLAIM OF DEPRECIATION AT HIGHER RATE, INCOME TO THE EXTENT OF RS. 2,61,439/ - HAS ESCAPED THE ASSESSMENT. FURTHER THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80 - IB . BUT IN THE 3CD REPORT AT POINT NO. 26 ANNEXED TO RETURN OF INCOME, IT IS SEEN THAT THE ASSESSEE HAS SHOWN AS DEDUCTION UNDER CHAPTER VIA AS NIL. IN FORM NO. 1OCCB, AT POINT NO. 22, THE AMOUNT OF DEDUCTION ADMISSIBLE U/S 80 - IB IS LEFT BLANK. SO THER E IS REASON TO BELIEVE THAT DEDUCTION CLAIMED U/S 80 - IB TO THE TUNE OF RS.29,78,588/ - IS EXCESS. HENCE, I HAVE REASONS TO BELIEVE THAT INCOME OF RS. 2,61,439/ - ON ACCOUNT OF EXCESS DEPRECIATION CLAIM AND RS. 29,78,588/ - ON ACCOUNT OF CLAIM UNDER 80 - IB ESC APED TAXATION FOR A. Y. 2005 - 06. HENCE, I AM RE - OPENING THE CASE U/S 147 FOR A. Y. 2005 - 06 TO BRING THE ABOVE AMOUNT TO TAX. ISSUE NOTICE U/S 148. SD/ - (MOHAN REDDY R.) ASST. COMMISSIONER OF INCOME - TAX, CIRCLE - 2, MARGAO 4 ITA NO. 73/PNJ/2013 & CO NO. 13/PNJ/2013 (ASST. YEAR : 2005 - 06) FROM THE REASONS RECORDED, IT IS APPARENT THAT THE ACTION U/S 147 WAS INITIATED ON TWO ISSUES I.E. HIGHER RATE OF DEPRECIATION CLAIMED ON WORKSHOP, SLIPWAY, CONCRETE BLOCK AND JETTY AND EXCESS CLAIM OF DEDUCTION U/S 80IB. IN RESPONSE TO THE NOTICE ISSUED U/S 148, THE ASSESSEE FILED RETURN OF INCOME ON 26.6.2008 DECLARING INCOME OF RS.36,76,140/ - . THE ASSESSEE ASKED FOR THE COPY OF THE REASONS WHICH WERE SERVED ON 9.7.2008. THE ASSESSEE OBJECTED FOR THE PROPOSED RE - ASSESSMENT VIDE HIS LETTER DT. 14.7.2008 . AFTER DISPOSING OFF THE OBJECTIONS AND AFTER ISSUING NOTICE U/S 143(2), THE AO PROCEEDED WITH THE ASSESSMENT. WHILE MAKING THE ASSESSMENT, THE AO DISALLOWED DEPRECIATION TO THE ASSESSEE ON THE BARGE PURCHASED BY THE ASSESSEE AMOUNTING TO RS.36,25,000/ - AND SIMILARLY TREATED THE SUM OF RS.2,75,000/ - TO BE THE DEEMED DIVIDEND AND ADDED IT IN THE INCOME OF THE ASSESSEE U/S 2(22)(E). THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A) , THE ASSESSEE CHALLENGED THE RE - OPENING AND ALSO TOOK GROU ND THAT THE RE - ASSESSMENT MADE IS INVALID IN LAW. IN ADDITION TO THIS, THE ASSESSEE HAS ALSO TAKEN THE GROUND RELATING TO THE DISALLOWANCE OF DEPRECIATION OF BARGE AS WELL AS TREATING THE SUM OF RS.2,75,000/ - AS DEEMED DIVIDEND U/S 2(22)( E). THE CIT(A) UP HELD THE RE - ASSESSMENT. 3.1 BEFORE US, THE LD. AR VEHEMENTLY CONTENDED THAT U/S 147 THE AO CAN ASSESS OR RE - ASSESS ANY INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR WITH RESPECT TO WHICH HE HAD A REASON TO BELIEVE. THEN ON LY IN ADDITION, HE CAN ALSO CHARGE TO TAX THE OTHER INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH HAS COME TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS U/S 147. THE LD. AR INVITED OUR ATTENTION TOWARDS THE PROVISIONS OF SE C. 147. HE POINTED OUT THAT IN CASE OF THE ASSESSEE, RE - OPENING HAS BEEN MADE BY THE AO ON THE BASIS OF THE EXCESS DEPRECIATION ALLOWED ON WORKSHOP, SLIPWAY, CONCRETE BLOCK AND JETTY AND ALSO EXCESS DEDUCTION ALLOWED U/S 80IB. THE AO WHILE COMPLETING THE ASSESSMENT U/S 5 ITA NO. 73/PNJ/2013 & CO NO. 13/PNJ/2013 (ASST. YEAR : 2005 - 06) 143(3) R/W SEC. 147 DID NOT MAKE ANY ADDITION IN RESPECT OF THESE TWO ISSUES. ACCORDING TO HIM, UNTIL AND UNLESS THE ADDITION IS MADE IN RESPECT OF THE ISSUES ON THE BASIS OF WHICH THE AO HAS RE - OPENED THE ASSESSMENT, NO OTHER INCOME CAN B E ADDED BY THE AO. IF THE RE - ASSESSMENT IS SO MADE, THAT WILL BE INVALID. RELIANCE WAS PLACED IN THIS REGARD ON THE DECISION OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. DR. DEVENDRA GUPTA , 336 ITR 59. RELIANCE WAS ALSO PLACED ON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF RANBAXY LABORATORIES LTD. VS. CIT, 336 ITR 136 (DEL). RELIANCE WAS ALSO PLACED ON THE DECISION OF THE JURISDICTION HIGH COURT IN THE CASE OF CIT VS. JET AIRWAYS (I) LTD., 331 ITR 236 (BOM). 3.2 THE LD. DR, ON TH E OTHER HAND, RELIED ON THE ORDER OF CIT(A). 3.3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME. WE HAVE ALSO GONE THROUGH THE PROVISIONS OF SEC. 147. WE NOTED THAT SEC. 147 READS AS UNDER : 147 . IF THE [ASSESSING] OFFICER [HAS REASON TO BELIEVE] THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR, HE MAY, SUBJECT TO THE PROVISIONS OF SECTIONS 148 TO 153 , ASSESS OR REASSESS SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PRO CEEDINGS UNDER THIS SECTION, OR RECOMPUTE THE LOSS OR THE DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE, AS THE CASE MAY BE, FOR THE ASSESSMENT YEAR CONCERNED (HEREAFTER IN THIS SECTION AND IN SECTIONS 148 TO 153 REFERRED TO AS THE RELEVANT ASSESSMENT YEAR) : PROVIDED THAT WHERE AN ASSESSMENT UNDER SUB - SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR, NO ACTION SHALL BE T AKEN UNDER THIS SECTION AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN U NDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UN DER SUB - SECTION (1) OF SECTION 142 OR SECTION 148 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESS ARY FOR HIS ASSESSMENT, FOR THAT ASSESSMENT YEAR: [ PROVIDED FURTHER THAT NOTHING CONTAINED IN THE FIRST PROVISO SHALL APPLY IN A CASE WHERE ANY INCOME IN RELATION TO ANY ASSET (INCLUDING FINANCIAL INTEREST IN ANY 6 ITA NO. 73/PNJ/2013 & CO NO. 13/PNJ/2013 (ASST. YEAR : 2005 - 06) ENTITY) LOCATED OUTSIDE INDIA, CHARGEABLE T O TAX, HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR:] [ PROVIDED [ ALSO ] THAT THE ASSESSING OFFICER MAY ASSESS OR REASSESS SUCH INCOME, OTHER THAN THE INCOME INVOLVING MATTERS WHICH ARE THE SUBJECT MATTERS OF ANY APPEAL, REFERENCE OR REVISION, WHICH IS CHA RGEABLE TO TAX AND HAS ESCAPED ASSESSMENT.] FROM THE READING OF THE SAID SECTION, IT IS APPARENT THAT THE AO, IF HE HAS REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR, HE CAN ASSESS OR RE - ASSESS SUCH INC OME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS. THE WORD USED BETWEEN SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX IS AND . THIS POSTULATES THAT UNTIL AND UNLESS THE INCOME IN RESPECT OF WHICH THE AO HAS REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT IS ASSESSED TO TAX, IN OUR OPINION, ANY OTHER INCOME CANNOT BE ASSESSED TO TAX WHILE FRAMING THE ASSES SMENT UNDER THE PROVISIONS OF SEC. 143(3) R.W SEC. 147 . WE HAVE ALSO GONE THROUGH THE VARIOUS DECISIONS AS RELIED ON BY THE LD. AR. WE NOTED THAT THE CASE OF THE ASSESSEE IS DULY COVERED BY THE DECISION OF THE JURISDICTION HIGH COURT IN CIT VS. JET AIRWA YS (I) LTD. (BOM) 331 ITR 236 ( SUPRA ) IN WHICH THE JURISDICTION HIGH COURT HAS HELD AS UNDER : EXPLANATION 3 TO SECTION 147 OF THE INCOME - TAX ACT, 1961, WAS INSERTED BY THE FINANCE (NO. 2) ACT OF 2009, WITH EFFECT FROM APRIL 1, 1989. THE EFFECT OF THE EX PLANATION IS THAT EVEN THOUGH THE NOTICE THAT HAS BEEN ISSUED UNDER SECTION 148 CONTAINING THE REASONS FOR REOPENING THE ASSESSMENT DOES NOT CONTAIN A REFERENCE TO A PARTICULAR ISSUE WITH REFERENCE TO WHICH INCOME HAS ESCAPED ASSESSMENT, THE ASSESSING OFFI CER MAY ASSESS OR REASSESS THE INCOME IN RESPECT OF ANY ISSUE WHICH HAS ESCAPED ASSESSMENT, WHEN SUCH ISSUE COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS. PARLIAMENT HAVING USED THE WORDS ASSESS OR REASSESS SUCH INCOME AND ALSO ANY OTH ER INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT, THE WORDS AND ALSO CANNOT BE READ AS BEING IN THE ALTERNATIVE. ON THE CONTRARY, THE CORRECT INTERPRETATION WOULD BE TO REGARD THOSE WORDS AS BEING CONJUNCTIVE AND CUMULATIVE. IT IS OF SOME SIGNIF ICANCE THAT PARLIAMENT HAS NOT USED THE WORD OR. THE LEGISLATURE DID NOT REST CONTENT BY MERELY USING THE WORD AND. THE WORDS AND AS WELL AS ALSO HAVE BEEN USED TOGETHER AND IN 7 ITA NO. 73/PNJ/2013 & CO NO. 13/PNJ/2013 (ASST. YEAR : 2005 - 06) CONJUNCTION. EVIDENTLY, WHAT PARLIAMENT INTENDS BY USE OF THE WORDS A ND ALSO IS THAT THE ASSESSING OFFICER, UPON THE FORMATION OF A REASON TO BELIEVE UNDER SECTION 147 AND THE ISSUANCE OF A NOTICE UNDER SECTION 148(2) MUST ASSESS OR REASSESS (I) SUCH INCOME ; AND ALSO (II) ANY OTHER INCOME CHARGEABLE TO TAX WHICH HAS ESCAP ED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS UNDER THE SECTION. EXPLANATION 3 DOES NOT AND CANNOT OVERRIDE THE NECESSITY OF FULFILLING THE CONDITIONS SET OUT IN THE SUBSTANTIVE PART OF SECTION 147. AN EXPLANATIO N TO A STATUTORY PROVISION IS INTENDED TO EXPLAIN ITS CONTENTS AND CANNOT BE CONSTRUED TO OVERRIDE IT OR RENDER THE SUBSTANCE AND CORE NUGATORY. SECTION 147 HAS THIS EFFECT THAT THE ASSESSING OFFICER HAS TO ASSESS OR REASSESS THE INCOME (SUCH INCOME) WHI CH ESCAPED ASSESSMENT AND WHICH WAS THE BASIS OF THE FORMATION OF BELIEF AND IF HE DOES SO, HE CAN ALSO ASSESS OR REASSESS ANY OTHER INCOME WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE DURING THE COURSE OF THE PROCEEDINGS. HOWEVER, IF AFTER I SSUING A NOTICE UNDER SECTION 148, HE ACCEPTS THE CONTENTION OF THE ASSESSEE AND HOLDS THAT THE INCOME WHICH HE HAS INITIALLY FORMED A REASON TO BELIEVE HAD ESCAPED ASSESSMENT, HAS AS A MATTER OF FACT NOT ESCAPED ASSESSMENT, IT IS NOT OPEN TO HIM INDEPENDE NTLY TO ASSESS SOME OTHER INCOME. IF HE INTENDS TO DO SO, A NOTICE UNDER SECTION 148 WOULD BE NECESSARY IN THE EVENT OF CHALLENGE BY THE ASSESSEE. THE EFFECT OF SECTION 147 AS IT NOW STANDS AFTER THE AMENDMENT OF 2009 CAN THEREFORE, BE SUMMARISED AS FOLLO WS : (I) THE ASSESSING OFFICER MUST HAVE REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR; (II) UPON THE FORMATION OF THAT BELIEF AND BEFORE HE PROCEEDS TO MAKE AN ASSESSMENT, REASSESSMENT OR RECOMPUTATION, THE ASSESSING OFFICER HAS TO SERVE ON THE ASSESSEE A NOTICE UNDER SUB - SECTION (1) OF SECTION 148; (III) THE ASSESSING OFFICER MAY ASSESS OR REASSESS SUCH INCOME, WHICH HE HAS REASON TO BELIEVE, HAS ESCAPED ASSESSMENT AND ALSO ANY OTHER INCOME, CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS UNDER THE SECTION ; AND (IV) THOUGH THE NOTICE UNDER SECTION 148(2) DOES NOT INCLUDE A PARTICULAR ISSUE WITH RESPECT TO WHICH INCOME HAS ESCAPED ASSESSMENT, HE MAY NONE THE LESS, ASSESS OR REASSESS THE INCOME IN RESPECT OF ANY ISSUE WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS UNDER THE SECTION. THE DECISION OF THE JURISDICTION HIGH COURT IS BINDING ON US. EVEN THE HON'BLE RAJASTHAN HIGH COURT AS WELL AS THE HON'BLE DELHI HIGH COURT HAS ALSO TAKEN A SIMILAR VIEW. IN VIEW OF THE DECISION OF THE JURISDICTION HIGH COURT, WE SET ASIDE THE ORDER OF C IT(A) AND QUASH THE RE - ASSESSMENT AS BOTH ADDITIONS REGARDING DEPRECIATION ON BARGES AS WELL AS DEEMED DIVIDEND HAS BEEN MADE BY THE AO IN THE ASSESSMENT FRAMED U/S 143(3) R/W SEC. 147 ON THE ISSUES WHICH DO 8 ITA NO. 73/PNJ/2013 & CO NO. 13/PNJ/2013 (ASST. YEAR : 2005 - 06) NOT FORM PART OF THE REASONS TO BELIEVE ON THE BASIS OF WHICH THE ASSESSMENT HAS BEEN RE - OPENED. THUS, THE CROSS OBJECTION OF THE ASSESSEE IS ALLOWED. 4. SINCE WE HAVE ALREADY QUASHED THE RE - ASSESSMENT, THEREFORE, IN OUR OPINION, THE GROUNDS TAKEN BY THE REVENUE HAVE BECOME INFRUCTUOUS AND DO NOT REQUIRE ANY ADJUDICATION. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED WHILE THE CROSS OBJECTION FILED BY THE ASSESSEE IS ALLOWED. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 26 /07/2013. SD/ - (D.T.GARASIA) JUDICIAL MEMBER SD/ - (P.K. BANSAL) ACCOUNTANT MEMBER PLACE : PANAJI / GOA DATED : 26 /07/ 2013 *SSL* COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT, PANAJI (4) CIT(A), PANAJI (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER SR. P RIVATE S ECRETARY ITAT, PANAJI, GOA