Case Law Details
ACIT Vs. Shri Rajendra Bhararia (ITAT Visakhapatnam)
The assessee has received the remuneration from M/s Sampath Vinayaka Steels (P) Ltd and A.S.Steel City Chits (India) Pvt. Ltd. and offered the same as income from other sources. The assessee was admitting the said remuneration as income from other sources regularly. As observed from the order of the Ld. CIT(A) in the earlier year as well as in the subsequent year also, the assessee had admitted the remuneration received from the company as income from other sources, which was accepted by the department and the head of income was not changed in the subsequent years even after completion of reassessment also, which shows that the department has accepted the contention of the assessee. Since the assessee has admitted remuneration under the head ‘income from other sources’ and the AO completed the original assessment accepting the income admitted by the assessee, it cannot be said that the AO has not examined the issue with regard to taxability of income whether the same to be brought to tax as salary income or income from other sources. The entire material with regard to receipt of remuneration, admission of income under the head ‘income from other sources’ was placed before the AO at the time of original assessment. Though the rule of res judicata does not apply to the Income Tax assessments, rule of consistency does apply to income tax proceedings. The AO is not permitted to take different stand in different assessment years of the same assessee, on same set of facts, which leads to inconsistency. Therefore, as rightly observed by the Ld.CIT(A), following the rule of consistency, in the assessee’s own case, the income required to be taxed under the head ‘income from other sources’ and we are of the considered opinion that having accepted the income as income from other sources u/s 143(3), the AO has taken a conscious decision to assess the income under the head ‘income from other sources’.
Therefore, reopening of assessment to assess the remuneration under the head ‘income from salary’ instead of ‘income from other sources’ constitutes difference of opinion and the AO is not permitted to reopen the assessment on difference of opinion.
Therefore, we do not find any reason to interfere with the order of the Ld.CIT(A) and accordingly, we uphold the order of the Ld.CIT(A) and dismiss the appeal of the revenue.
Having accepted the income as ‘income from other sources’ under section 143(3), the Assessing Officer had taken a conscious decision to assess the income under the head ‘income from other sources’. Therefore, reopening of assessment to assess the remuneration under the head ‘income from salary’ instead of ‘income from other sources’ constituted difference of opinion and the Assessing Officer was not permitted to reopen the assessment on difference of opinion.
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