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Income Tax Appellate Tribunal, HYDERABAD BENCHES “B” : HYDERABAD
Before: SHRI S.S.GODARA & SHRI LAXMI PRASAD SAHU
O R D E R PER S.S.GODARA, J.M. :
This assessee’s appeal for AY.2008-09 arises from the CIT(A)-5, Hyderabad’s order dated 16-09-2015 passed in case No.0148/2014-15/CIT(A)-5, in proceedings u/s.143(3) r.w.s.147 of the Income Tax Act, 1961 [in short, ‘the Act’]. Heard both the parties. Case file perused.
It transpires at the outset that the assessee’s instant appeal suffers from 35 days delay in filing, stated to be attributable to the reason(s) beyond its control as per condonation petition/affidavit.
No rebuttal has come from the departmental side. The impugned delay is condoned therefore.
We straightaway come to the former issue of validity of Section 148/147 proceedings and note that the Assessing Officer had recorded the following re-opening reasons:
2. In this regard the reasons for reopening the assessment for the AY 2008-09 are as under: (i) The assessee has received an amount of Rs.1,20,80,000/- as compensation from HUDA on acquisition of agricultural lands at Kollur Village of Medak District. The assessee claimed that the lands are agricultural lands and purchased by her in the year 2001 and the same was used by her for cultivation. The lands are situated 20Km away from the limits of Hyderabad and Cyberabad limits and hence no capital gains tax arise on these lands. But the assessee has not offered any agricultural income. If these lands are not agricultural lands the compensation would have to be treated as sale proceeds and such income received should be brought to tax under the head income from other sources. (ii) The information submitted that as a distributor of films under the banner M/s. Sari Tirumala Tirupathi Venkateswara Films", the assessee had submitted the invoice of trade transactions with M/s. Warner Bros of Mumbai & Chennai Branch and the assessee's share was the only amount mentioned. No details as to the show timings & collections made have been disclosed, which needs further investigation. (iii) Verification is to be made, whether these lands are agricultural lands or not and also to ascertain if suppression of receipts was resorted to or not”.
The Revenue fails to dispute that the above extracted re- opening reasons nowhere indicate as to whether the assessee’s taxable income liable to be assessed had escaped assessment or not. The Assessing Officer appears to have made a clear cut observation that he needed to verify the facts as to whether the assessee’s lands are agricultural or not. And also to ascertain if she had suppressed her receipts or not (supra). We thus quote hon'ble Bombay high court’s landmark decision in Hindustan Unilever Ltd. Vs. RB Wadkar (2004) 268 ITR 332 (Bom) that re-opening reasons have to be read on stand alone basis without any possibility of addition, deletion or substitution therein at any latter point of time and quash the impugned re-opening itself for having failed to record the appropriate reasons pin pointing escapement of assessee’s taxable income from being assessed. Hon'ble apex court’s recent landmark judgment in Commissioner of Customs Vs. Dilip Kumar (2018) 9 SCC 1 (FB)(SC) also holds that the provisions in the Act have to be strictly construed only. We thus adopt the very principle mutatis mutandis and quash the impugned re-opening/re-assessment in above terms. All other pleadings on merits are rendered infructuous.
This assessee’s appeal is allowed in above terms.