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TMI Blog2012 (2) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case, the ld. CIT(A) erred in treating the donation of assets by the appellant society to other societies as capital gains. 2. On the facts and circumstances of the case, the ld. CIT(A) erred in holding that the re-assessment proceedings u/s 148 were not bad in law. 3. The assessee reserves the right to amend, alter, add or delete any of the grounds of appeal . 3. In revenue s appeal (ITA No. 1077/Chd/2010), revenue has raised the following grounds of appeal : i) Whether on the facts and in the circumstances of the case , the ld. CIT(A) has erred in law as well as in facts in deleting the addition of Rs.82,31,154/- on the basis of accounts, bills, vouchers etc. not pertaining to the accounts attached with original return. i i) The appellant craves leave to add or amend the grounds of appeal before the appeal is heard and disposed off . i i i) It is prayed that the order of ld. CIT(A) be set aside and that of the AO may be restored. 4. The assessee did not appear despite issue of notice, therefore, the appeal is decided on the basis of the submissions made by the assessee as incorporated from page 84 to 90 of the Paper Book and other relevant mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the submissions made by the assessee before the CIT(A) as also before the Tribunal. The assessee has placed reliance on the Instructions No.1132 issued by the CBDT. However, the interpretation of the said instruction issued by CBDT was not accepted by the CIT(A) who upheld the findings of the AO. The ld. CIT(A) categorically held that in the present case, there is a transfer of assets for consideration, which has been received by way of book entries and hence the transfer is not donation. The impugned instructions issued by the CBDT categorically speaks of the payment of a sum and not transfer of the asset, as misconstrued by the assessee. Therefore, we are in complete agreement with the findings of the ld. CIT(A) and do not find any infirmity in the findings of the CIT(A) and the same are upheld. This ground of appeal of the assessee is dismissed. 7. In Ground No.2, the assessee contended that the CIT(A) erred in holding that the re-assessment proceedings u/s 148 were not bad in law. In this case, the AO invoked the provisions of Section 148 for the reason that the assessee transferred land and other assets of Rs.1,05,82,364/- to another society and such transfer cannot be cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment was challenged before the AO for two reasons. Firstly for the reason that the transfer of assets by way of donation to another educational society is proper application of income and makes no difference how the donation is treated by the donee and secondly that it is a case of change of opinion on the same facts on which the original assessment was framed earlier. The counsel argued that the reason given for re-opening the assessment is that a donation to another charitable trust is not application of income within the meaning of Section 11 which is not a tenable reason in law. The counsel has relied on the Board instruction No.1132 dated 05.01.1978 and has also relied on a number of case laws in this regard which have been discussed as part of his written submissions. The counsel further argued that the assessment cannot be reopened on a mere change of opinion and has placed reliance on case laws which have been discussed as part of his written submissions. The AO in reply to the objection raised by the appellant for re-opening of the assessment informed the appellant that the assessment has been reopened on the ground of transfer of assets and not on account of donation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessment are rejected. The case laws relied on by the counsel are not applicable to the facts of the present case and do not help the appellant. The AO has validly reopened the assessment by issuing notice u/s 148 of the IT Act. The additional ground of appeal is rejected. 10. The reasons recorded by the AO constitute the foundational material or facts, which led to invocation of provisions of Section 148 of the Act. The reasons recorded by the AO are specific and squarely fall within the contemplation of Section 147 of the Act. The findings of the CIT(A), that there is no change of opinion in the context of the factual position of the case, does not suffer from any infirmity. The reasons recorded by the AO have live nexus with the escaped income, chargeable to tax. The AO is not required to establish the factum of escapement at the stage of issuance of notice u/s 148 of the Act as held in a number of decisions by the Hon'ble Supreme Court, particularly in the case of ACIT V Rajesh Jhaveri Stock Brokers Pvt .Ltd. (2007) 291 ITR 500 (S.C) . 11. In view of the above factual and legal discussions, we do not find any merit in the contentions raised by the assessee in this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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