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TMI Blog2017 (1) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... 147 of the IT Act. On receipt of the notice the petitioner asked the reasons recorded for issue of notice under Section 148 of the IT Act, which has been supplied to the petitioner - assessee vide communication dated 08.06.2016. The reasons recorded while reopening the assessment for AY 200910 is as under: "As per the AIR information gathered from the ITD System, the assessee has purchased immovable property valued at Rs. 43,00,000/during the F.Y. 200809 relevant to A.Y. 200910. On verification of return details on ITD system, it is observed that the assessee has not filed return of income for the A.Y. 200910. In this regard a query letter issued to the assessee on 28.12.2015. In response, the assessee vide letter dated 29.01.2016 has requested to give 3 weeks time for compliance. However, till the date of this proposal assessee has not complied the letter issued by this office. Since, the assessee has not filed his return of income for A.Y. 200910, I have reason to believe that Rs. 43,00,000/, being the amount of investment in purchase of immovable property, has not been offered for taxation, resulting into escapement of income within the meaning of section 147 of the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the tune of Rs. 43 lakh has escaped assessment is not correct. Therefore, it was requested to drop the reopening proceedings. That considering the material on record vide communication dated 26.07.2016 the Assessing Officer not accepted the objections raised by the assessee and has disposed of the same by passing the speaking order and the assessee is requested to cooperate in the reopening proceedings. [2.4] Feeling aggrieved and dissatisfied with the impugned reopening of the assessment for AY 200910 and the impugned notice under Section 148 of the IT Act, the assessee has preferred the present petition under Article 226 of the Constitution of India. [3.0] Shri B.S. Soparkar, learned advocate appearing on behalf of the petitioner - assessee has vehemently submitted that the impugned notice under Section 148 of the IT Act has been issued on the wrong premise that the petitioner assessee had not filed the return of income for AY 200910. It is submitted that on the aforesaid premise the AO has formed the opinion that income chargeable to tax has escaped assessment considering explanation 2(a) to Section 147 of the IT Act. It is submitted that as such the assessee had filed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mited vs. Income Tax Officer and Others reported in (2003)1 SCC 72, the Delhi High Court in para 23 has observed that the requirement of recording the reasons, communicating the same to the assessee, enabling the assessee to file objections and the requirement of passing a speaking order are all designed to ensure that the Assessing Officer does not reopen assessments which have been finalized on his mere whim or fancy and that he does so only on the basis of lawful reasons. [3.3] It is further submitted by Shri Soparkar, learned advocate appearing on behalf of the assessee that it might be true that initially the assessee did not respond to the letter dated 28.12.2015 and therefore, it can be said that there was a valid reason to issue the notice under Section 148 of the IT Act and recording of the reasons for such reopening. It is submitted that however thereafter when the assessee raised the objections against the reasons recorded submitting that there is no failure on the part of the assessee in not disclosing true and correct facts and/or that infact the assessee had filed the return of income for AY 200910, thereafter the Assessing Officer was required to consider the same a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord and considering the fact that even alongwith the return of income the assessee had not disclosed the transaction with respect to the purchase of the aforesaid property worth Rs. 43 lakh, which was required as per the relevant Rules as the consideration was more than Rs. 30 lakh. It is submitted that thereafter considering the copy of the sale deed produced and even the ledger account / bank statement when it was found that the sale consideration mentioned in the sale deed do not tally with the statement of the bank account and the assessee even did not produce any material with respect to the payment made by his wife being a copurchaser, by a speaking order the Assessing Officer has disposed of the objections. It is submitted that therefore when there was failure on the part of the assessee in disclosing true and correct facts necessary for the assessment, the Assessing Officer has rightly issued the impugned notice in exercise of powers under Section 147 of the IT Act. [4.3] Shri Mehta, learned advocate appearing on behalf of the Revenue has relied upon the recent decision of the Hon'ble Supreme Court in the case of Girilal & Co. vs. Incometax Officer, Mumbai reported in (20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [4.4] Shri Mehta, learned advocate appearing on behalf of the Revenue has also relied upon the decision of the Hon'ble Supreme Court in the case of Raymond Woollen Mills Ltd. vs. IncomeTax Officer reported in (1999) 236 ITR 34 (SC) in support of his submissions that as held by the Hon'ble Supreme Court in the said decision that at the time when the reopening case has been challenged before the High Court and/or Hon'ble Supreme Court, the Court is not required to give a final decision as to whether there is suppression of material facts by the assessee or not. It is held that at that stage the only thing required to be seen is whether there was prima facie some material on the basis of which the department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. Making above submissions and relying upon above decisions, it is requested to dismiss the present petition. [5.0] Heard learned advocates appearing for respective parties at length. At the outset it is required to be noted that in the present petition the petitioner has challenged the impugned notice under Section 148 of the IT Act for AY 200910. It is required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, it is the case on behalf of the assessee that as the assessee furnished the necessary proof with respect to the payment of sale consideration while submitting the objections against reasons recorded, the Assessing Officer ought to have dropped the assessment proceedings. However, it is required to be noted that while disposing of the objections against reopening of the assessment, the Assessing Officer has passed a speaking order. [5.2] Even considering the material produced before the Assessing Officer produced along with the objections it prima facie cannot be said that the assessee has produced the proof with respect to the payment of entire sale consideration of Rs. 43 lakh. It is the case on behalf of the petitioner that as the petitioner purchased the property worth Rs. 43 lakh jointly with his wife and therefore, he was required to satisfy the Assessing Officer with respect to the sale consideration qua his share. However, it is required to be noted that the assessee was required to furnish the full particulars with respect to the payment of full sale consideration of Rs. 43 lakh. He could not have produced the similar material like return of income, books of account, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o occasion to consider the return in detail and therefore, there is no question of any change of opinion as observed by the Hon'ble Supreme Court in the case of Rajesh Jhaveri Stock Brokers Private Limited (Supra), Phool Chand Bajrang Lal (Supra) and Zuari Estate Development & Investment Company Limited (Supra). At this stage recent decision of the Hon'ble Supreme Court in the case of Girilal & Co. (Supra) is required to be referred to. In the case before the Hon'ble Supreme Court while submitting the return of income the assessee claimed the deduction under Section 80IB( 10) of the IT Act. That during the assessment proceedings the question was raised only about value of the land. However, subsequently, the assessment was reopened under Section 147 of the IT Act to deny the deduction under Section 80IB( 10) of the IT Act on the ground that considering the size of the plot the assessee was not entitled to the said benefit. The reopening was challenged by the assessee on the ground that the assessee had disclosed all the facts fully and truly and even the Assessing Officer was fully aware of the FSI. Not accepting the above, the Hon'ble Supreme Court has observed that the informati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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