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TMI Blog2017 (2) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 143 [3] and it cannot be said that there was any failure on the part of the assessee in not disclosing the true and correct facts necessary for the assessment. It is required to be noted that the case of the assessee from the very beginning was that the aforesaid HUF sold the ancestral property in F.Y 2005-2006. It was never the case of the assessee that the said HUF sold the property in F.Y2008-2009. Necessary documents of Shri Rajivram R Choudhry [HUF] to show that the ancestral properties were sold in F.Y 2005-2006 were already produced on record at the time of scrutiny assessment under Section 143 [3] of the Act. Even a certificate issued by DDIT [Inv.], Panipat was issued with respect to altogether another property for which the sale proceeds were not received in FY 2008-2009. That, the property which was sold in FY 2005-2006 by HUF and others were altogether different properties for which the sale deeds were produced on the record. Under the circumstances, formation of opinion by the Assessing Officer doubting genuineness of the claim of the assessee with respect to the loans taken from the aforesaid three persons is on the wrong premise and the facts. So far as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 009-2010 has escaped assessment within the meaning of Section 147 of the I.T Act. 4. The facts leading to the present Special Civil Application in nutshell are as under : 4.1 That the assessee filed return of income for A.Y 2009-2010 on 30th September 2009 declaring total income at Rs. NIL. While submitting the return of income, the assessee disclosed that he had taken loans from the following family members : [a] Shree Rajivram R Chouhry-HUF ₹ 1,43,96,000/= [b] Shree Karan R. Choudhry ₹ 10,00,000/= [c] Shree Urmila R Choudhry ₹ 19,00,000/= ₹ 1,72,96,000/= 4.2 The original assessment was taken in scrutiny. That thereafter, the Assessing Officer framed scrutiny assessment under Section 143 (3) of the Act on 29th December 2011 accepting the return of income; including the case on behalf of the petitioner that he had taken loans from the aforesaid family members. That thereafter, beyond the period of four years, the assessment for A.Y 2009-2010 is sought to be reopened by the Assessing Officer by the impugned notice. At the request of the assessee, the Assessing Officer had supplied the reasons recorded for issuing the Notice under Section 148 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpleted the scrutiny assessment of the A.Y 2009-2010 on 29.12.2011. The Valuation Report of the DVO was received after completion of the scrutiny assessment on 30.11.2012. Hence, no cognizance of the said valuation report was given by the A.O at that point of time. However, as per valuation report of the Departmental Valuer, the assessee has suppressed the investment in the construction of the Hospital Building to the extent of ₹ 9,21,148 [Rs. 2,84,15,071 - ₹ 2,74,93,923/=] during the year under reference. Hence, the assessee has also concealed the investment to the extent of ₹ 9,21,148/= during the year. From the above discussion, it is clear that the assessee has not disclosed fully and truly, all material facts necessary for his assessment for the year under consideration and the assessee has concealed the income to the extent of ₹ 1,82,17,148/= [1,72,96,000 + 9,21,148]. In view of the above, I have reason to believe that the assessee has escaped income to the extent of ₹ 1,82,17,148/= from tax which is an escaped assessment within the meaning of Section 147 of the I.T Act, 1961. Hence, it is a fit case for issuing notice u/s. 148. Issue notice u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore, the claim of the assessee that he received loan from Dr. Rajivram R. Choudhry [HUF] from the balance amount from the property sold by the said HUF is not believable. 4.4 Now so far as the second reason given by the Assessing Officer to reopen the assessment ie., difference in the amount of investment in the construction of hospital building, it was submitted that there is difference of only three percent. It was submitted that according to the assessee, investment in the construction of hospital building was to the extent of ₹ 2,74,93,923/=, however, as per the investigation report, it was ₹ 2,84,15,071/=. It is submitted that therefore, as per the catena of decisions, DVO's report, at the most, can be said to be an opinion on the basis of which alone, re-assessment proceedings is not permissible. 4.5 That thereafter, the Assessing Officer has disposed of the objections and has not agreed with the objections raised by the assessee. Hence, the assessee has preferred the present petition under Article 226 of the Constitution of India, requesting to quash and setaside the impugned notice issued under Section 148 of the Income-tax Act, 1961. 5. Heard l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als such as return filed by Dr. Rajivram R Choudhry [HUF] stating that the said HUF sold ancestral property at Panipat in the FY 2005-2006. That thereafter, the Assessing Officer framed scrutiny assessment under Section 143 [3] of the Act and accepted the case of the assessee that he had taken loans from the aforesaid three persons and did not make any amount towards undisclosed cash investment. Under the circumstances, the entire issue as such was gone into by the Assessing Officer while framing the scrutiny assessment under Section 143 [3] of the I.T Act. Under the circumstances, as such it cannot be said that there was any failure on the part of the assessee in not disclosing the true and correct facts necessary for the assessment. Hence, it can be said that the Assessing Officer has materially erred in assuming jurisdiction to reopen the assessment beyond the period of four years. The conditions precedent to invoke jurisdiction to reopen the assessment beyond the period of four years, as provided in proviso to Section 147 of the I.T Act are not satisfied. 8.1 Even otherwise, considering the material available on record, it appears that the reasons recorded to reopen the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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