2020 (7) TMI 681 - AT - Income Tax

Reassessment proceedings u/s 147/148 - notice issued in the name of husband of the assessee - HELD THAT - A fatal mistake cannot be cured u/s 292B and therefore, for this reason alone, notice u/s 148 and subsequent proceedings should be quashed. Re-assessment proceedings were initiated to assess the escaped income of ₹ 2,89,000/- on account of unexplained investments. No addition has been made by the Assessing Officer towards any unexplained investment. Therefore, the very reason for which re-assessment proceedings were initiated were found satisfactorily explained and no addition has been made, than in such a scenario, any other addition made by the Assessing Officer by way of disallowance of the cost of construction cannot be sustained. Addition under the head income from the head capital gains whereby denied the deduction towards the cost of construction - HELD THAT - We find that the valuer has stated the year of construction as 2008 and has applied the PWD rates for valuation of cost of construction as relevant for year 2008. Therefore, where there is no construction carried out during the financial year 2009-10 relevant to impugned assessment year, there is no question of any investment made in such property during the year and question of any unexplained investment made during the year under consideration, as so stated in the reasons so recorded, thus, doesn t arise for consideration. Where the very basis for which reassessment proceedings were initiated doesn t survive, there is no basis for making the impugned addition towards failure to substantiate the cost of construction so claimed by the assessee. We find that the cost of construction is supported by the Valuer report which has determined the cost of constriction applying the PWD rates at ₹ 713,150/- as against cost of construction claimed by the assessee amounting to ₹ 639,000/-. In the result, the addition made is hereby deleted and the matter is decided in favour of the assessee.

Summary

Issues Involved:
1. Validity of reassessment proceedings initiated under sections 147/148 of the Income Tax Act.
2. Addition of ?6,17,720/- under the head "income from capital gains" by disallowing the cost of construction.

Detailed Analysis:

1. Validity of Reassessment Proceedings:

Ground 1(a): The assessee contended that the reassessment proceedings initiated under sections 147/148 were based on reasons recorded in the case of her husband, which was a typographical mistake. The CIT(A) confirmed the action of the AO, stating that such a mistake could be rectified under section 292B of the Act. The assessee argued that this mistake was not cured even after being pointed out, rendering the assessment order bad in law.

Ground 1(b): The assessee argued that the typographical mistake was not corrected under section 292B, and the assessment was finalized without curing the omission. The CIT(A) overlooked this ground, leading to an unreasoned order.

Ground 1(c): The assessee claimed that the reassessment proceedings were not valid as the AO did not make any addition towards the unexplained investment, which was the basis for initiating the proceedings. The addition made by the AO was unrelated to the reasons for which the reassessment was initiated.

Tribunal's Findings: The Tribunal noted that the notice under section 148 mentioned the income escaping assessment as ?2,89,000/- due to unexplained investment. However, no addition was made for this unexplained investment. The Tribunal found that the reassessment proceedings were initiated on incorrect grounds, and the very basis for the reassessment did not survive. Therefore, the reassessment proceedings were invalid.

2. Addition of ?6,17,720/- under "Income from Capital Gains":

Ground 2(a): The assessee challenged the addition of ?6,17,720/- made by the AO by disallowing the cost of construction. The assessee argued that the property was purchased in 2007, construction was carried out in 2008, and the property was sold in 2010. The assessee submitted a valuation report supporting the cost of construction, which was ignored by the AO and CIT(A).

Ground 2(b): The assessee contended that the CIT(A) deviated from the AO's findings without providing an opportunity for the assessee to respond. The CIT(A) sustained the addition under section 69 without considering the sources of investment, including a bank loan and amounts received from her husband and father-in-law.

Tribunal's Findings: The Tribunal observed that the cost of construction was supported by a valuation report, which determined the cost using PWD rates relevant for 2008. The Tribunal noted that there was no construction carried out during the financial year 2009-10, and thus, no unexplained investment during the year under consideration. The Tribunal found that the addition made by the AO and confirmed by the CIT(A) was not justified as the investment was satisfactorily explained.

Conclusion: The Tribunal allowed the appeal, holding that the reassessment proceedings were invalid, and the addition of ?6,17,720/- was deleted. The matter was decided in favor of the assessee and against the Revenue. The order was pronounced in the open Court on 20/07/2020.