9911796707
TMI Blog2017 (3) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... ther assessee nor even the purchasers Shri Popatbhai Kakadia were signatory, the formation of the opinion by the AO that the assessee has sold the land at 8,92,77,830/-( 4601 per yard multiply by 14397.328 sq yard = 8,92,77,830/-) is only on surmises and conjectures and for which, there is no tangible material available with the AO. Thus AO has materially erred in forming the opinion that assessee had received the sale consideration of 8,92,77,830/-and thereby has wrongly considered the difference of 8,62,68,330/-as undisclosed income and thereby has materially erred in holding that any income chargeable to tax has escaped assessable for AY 2009-10. There is no other tangible material with the AO, by which, it can prima facie be considered that 8,92,77,830/-has been received by the assesseesellers as sale consideration. The transfer of land has been taken place on 27.03.2008 when the sale deed has been executed. Therefore, it can be said that income has arisen in the AY 2008-09 and therefore, if at all any income has escaped assessment, the same can be said to be in AY 2008-09. By impugned notice, assessment for AY 2009-10 is sought to be reopened on the ground that income chargeab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ramed under Section 143(3) of the Act vide order dated 8.11.2011 without any any alternation in the return of income. 2.3. That thereafter, after a period of four years from the end of relevant assessment year, AO has issued the impugned notice dated 23.03.2016 under Section 148 of the Act for reopening of the assessment for AY 2009-10 alleging inter alia that income chargeable to tax has escaped assessment for the year under consideration i.e. AY 2009-10. 2.4. That the petitioner-assessee requested the AO to treat the original return of income filed on 30.09.2009 as return filed in response to the impugned notice issued under Section 148 of the Act and further requested to supply the reasons for reopening. That the AO has supplied the copy of the reasons for reopening vide letter dated 2.6.2016. The reasons recorded for reopening, read as under: "As per sale / purchase deeds of specific land at village Vankala, Block No. 49 A, Dist. Surat., wherein it was found that Shri Prakash Vallabhbhai Sutariya, PAN AKGPS9462A, Shri Chintanbhai Jadavbhai Patel and Shri Rajendrakumar Kantilal Patel and Shri Paraskumar Natwarlal Patel have sold land situated at Vankala, Block No. 49 A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was also submitted that even from the statement of Shri Rajesh Vaghani dated 30.06.2014 also it cannot be said that the assessee has received any amount towards on money in cash. It was also submitted that as such the transaction was with the assessee and one Shri Popat Kakadia and no addition by way of undisclosed investment has been made in the account of Shri Popat Kakadiapurchasers. It was also submitted that as such sale deed executed by the assessee was in AY 2008-09 and even short term capital gain on sale of land in question claimed by the assessee in AY 2008-09 and the notice under Section 148 of the Act has been issued alleging inter alia that on sale of land in question the undisclosed income has arisen in the 2009-10. Therefore, it was submitted that no income had arisen on sale of the land much less undisclosed income the year 2009-10. Therefore, it was requested to drop the notice. That by order dated 26.07.2016 the AO has not accepted the objection raised by the assessee and has disposed of the same. Hence, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India challenging the impugned notice under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conclusion that any on money in cash was received by the assessee, more particularly, ₹ 8,92,77,830/-received by the asssessee as a sale consideration. 3.4. It is vehemently submitted by Shri Hemani, learned counsel for the petitioners assessee that if the sale has taken place between the petitioners-sellers and Popatbhai Kakadia on 27.03.2008, how can Shri Alpesh Kotadia and Shri Vinod Ravani entered into a sauda chittihi on 12.03.2008 to Sharda Kakadia and Rajesh Vaghani of the land which Shri Alpesh Kakadia and Shri Vinod Ravani were not owning and in that case how can unaccounted capital gain arise in case of two of real sellers of the land i.e. Shri Rajendra Patel and Shri Parasbhai. 3.5. It is submitted that therefore, there is no tangible material available with the AO to form a reasonable belief that the income chargeable to tax in the year 2009-10 has escaped assessment within the meaning of Section 147 of the Act. Making above submissions and relying upon the above decision, it is requested to allow the present petitions and to quash and set aside the impugned notices and reassessment proceeding for AY 2009-10. 4.0. Present petition is opposed by Ms. Maun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee and Shri Sharad P Kakadia acted on behalf of Shri Popat H Kakadia and amount mentioned in said sauda chittihi was ultimately transferred to the assessee. It is submitted that therefore, the AO is justified in forming belief that income chargeable to tax has escaped assessment for the AY 2009-10. Making above submissions, it is requested to dismiss the present petitions. 5.0. Heard the learned counsel for the respective parties at length. We have perused and considered the reasons recorded to reopen the assessment for AY 2009-10. We have also perused and considered the statement of Shri Rajesh Vaghani, on the basis of which, the AO has formed an opinion that in the case of assessee the income chargeable to tax for AY 2009-10 has escaped assessment. 5.1. From the reasons recorded to reopen the assessment for AY 2009-10, it appears that on the basis of one "sauda chittihi" dated 12.03.2008, seized during the search of the premises of one Shri Rajesh Vaghani, to which, one Shri Sharad Kakadia was the signatory, the assessee has sold the land having area of 14397.328 sq yard for total sale consideration of ₹ 8,92,77,830/-( ₹ 4601 per yard multiply by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner filed return of income for the AY 2008-09, he claimed the short term capital gain of ₹ 26,12,040/-on sale of the aforesaid land in question, which was duly reflected in books of account and income tax return for AY 2008-09. Therefore, the transfer had taken place in AY 2008-09. Thus, the the transfer of land has been taken place on 27.03.2008 when the sale deed has been executed. Therefore, it can be said that income has arisen in the AY 2008-09 and therefore, if at all any income has escaped assessment, the same can be said to be in AY 2008-09. By impugned notice, assessment for AY 2009-10 is sought to be reopened on the ground that income chargeable to tax has escaped assessment in 2009-10. When, it was pointed out to AO that the transfer had taken place on 27.03.2008 and therefore, it can be said that the income has arisen in the year 2008-09 and therefore, there cannot be any escapement of income in the year 2009-10, while disposing of the objection raised by the assessee against the reasons recorded, the AO has overruled the said objection by observing that as the document has been executed only on 11.07.2008 and therefore, the transaction pertains to AY ..... X X X X Extracts X X X X X X X X Extracts X X X X
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