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TMI Blog2017 (2) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... 48 if satisfied about any escaped income from Radhakrishna Niwas subject to applicable provisions of IT. Act, 1961. - Decided in favour of assessee - ITA No.5602/Mum/2014 - - - Dated:- 23-11-2016 - SHRI R.C.SHARMA, AM AND SHRI RAVISH SOOD, JM For The Revenue : Shri A. Ramachandran For The Assessee : Shri K.Gopal ORDER PER R.C.SHARMA (A.M) : This is an appeal filed by the Revenue against the order of CIT(A) for the assessment year 2005-2006, in the matter of order passed u/s.144 read with Section 147 of the IT Act. 2. In this appeal, Revenue is aggrieved for deleting addition of ₹ 1,07,69,930/- being profit on sale of flats. Revenue has also taken legal ground to the effect that CIT(A) has wrongly quashed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e did not reply. Subsequently, on enquiry from purchasers of said flat at Radhakrishna Niwas, it was revealed that the assessee had sold the said flat as Builder/ Promoter. Hence, further notices U/S 133(6) were issued to other purchasers in Radhakrishna Niwas. On the basis of information received from such buyers of flats, the AO observed that the assessee had made sale of total 9 flats + 2 car parkings, having aggregate agreement value at ₹ 1,21,61,600/- whereas the aggregate stamp duty value of said properties was at Rs.l,68,50,727/- resulting in difference of ₹ 46,89,127/- As the building Radhakrishna Niwas was constructed by demolishing old building, the assessee was considered as a Builder Developer of land during F. Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. In above background, I find merit in the contention of appellant that the right approach of the AO should have been to drop the re-assessment proceedings in respect of Colaba Flat, as it suffers factual validity [360 ITR 427] and initiate fresh re-assessment proceedings in respect of Radhakrishna Niwas, by issue of a fresh notice u/s 148.[362 ITR 530]. Since no such fresh notice u/s 148 has been issued, the additions based on earlier notice u/s 148 at the strength of factually incorrect reasons recorded cannot be sustained. 4.8. I have also gone through the various case laws relied upon by the AO in the remand report, and find that none of them are directly applicable to appellant's case. The ratio of said decisions vis-a-vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of this case are different from appellant's case. (iii) ALA Firm v. CIT 189 ITR 285 (SC): It was held that where an ITO accepts plea of an assessee that a particular receipt is not income liable to tax, but, on further research into law he finds that there was direct decision holding that category of receipt to be an income receipt, reassessment would be valid. The facts of this case are entirely different from appellant's case. (iv) Indian and Eastern Newspaper Society v. CIT 119 ITR 996 (SC): The question under reference was whether view expressed by internal audit party on a point of law could be regarded as information for purposes of initiating proceedings under section 147, which was held in negative. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Jet Airways (I) Ltd., 331 ITR 236 (Bom.), the AO failed on both accounts and hence quashed, and the additions made of ₹ 1,07,69,927/- consequent to such reopening of assessment are deleted without discussing the same' on merits. The AO is however free to issue fresh notice u/s 148 if satisfied about any escaped income from Radhakrishna Niwas subject to applicable provisions of IT. Act, 1961. Therefore, the grounds nos. 1 to 3 of appeal are allowed accordingly. 8. Revenue is in further appeal before us against the above order of CIT(A). 9. We have considered rival contentions and carefully gone through the orders of the authorities below and found from record that no addition was made by AO in respect of inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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