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TMI Blog2018 (3) TMI 1652X X X X Extracts X X X X X X X X Extracts X X X X ..... tion which has duly been explained by the Hon’ble ITAT while passing the order in the assessee’s own case [2017 (11) TMI 719 - ITAT MUMBAI] - Decided in favor of assessee. - ITA Nos. 1134M/2016,1135/M/2016 & 1136/M/2016 - - - Dated:- 19-3-2018 - Shri R. C. Sharma And Amarjit Singh, JJ. Appellant by Shri Arvind Sonde Respondent by Shri Abhijit Patankar CIT/Shri V. Vidhyadhar (DR) ORDER Amarjit Singh, The above mentioned appeals have been filed by the assessee against the different order passed by the CIT(A)-52, Mumbai [hereinafter referred to as CIT(A) ] relevant to the A.Ys. 2009-10, 2010-11 2011-12. ITA. NO. 1134/M/2016 2. The Assessee has filed the present appeal against the order dated 26.11.2015 passed by the Commissioner of Income Tax (Appeals)-52, Mumbai relevant to the AY. 2009-10. 3. The Assessee has raised the following grounds: - Based on the facts and circumstances of the case, Gigaplex Estate Pvt Ltd ('the Appellant) respectfully submits That the learned Commissioner of Income Tax (Appeals) - 52, Mumbai ('CIT(A)'}, has in his order under section 250 of the Income-tax Act, 1961 {'the Act'} erred on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.Y. 2007-08 and interest to the tune of ₹ 5,88,01,270/- for the A.Y. 2008-09 and interest to the tune of ₹ 1,07,95,192/- for the A.Y. 2009-10 total to the tune of ₹ 8,19,35,541/- was reduced and the total closing stock was valued to the tune of ₹ 1,69,05,74,306/-. The addition to the work in progress for the A.Y. 2008-09 u/s 147 of the Act dated 06.03.2014 to the tune of ₹ 14,56,784/- was also raised. The loss of the assessee was assessed u/s 148 of the Act to the tune of ₹ 73,32,780/-. The assessee was not satisfied and filed an appeal before the CIT(A) who dismissed the appeal of the assessee, therefore, the assessee has filed the present appeal before us. ISSUE NO 1:- 5. Under this issue the assessee has challenged the reopening of the case of the assessee u/s 148 of the Act. At the very outset, the Ld. Representative of the assessee has argued that this issue has been covered and decided in favour of the assessee in the assessee s own case for the A.Y. 2006-07, 2007-08 and 2008-09 in ITA. No.1132, 1133 1137/M/2016 dated 10.11.2017, therefore, accordingly this issue is required to be decided in favour of the assessee in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sundry creditors, however the copies 20 ITA No.1132 and 1133/Mum/2016 of the agreements with M/S OM and WW were not filed before the AO and as a result the AO could not examine the transaction among the trio. Looking the facts in totality, we are of the view that there was failure on the part of assessee to disclose fully and truly all material facts for completion of assessment during the assessment proceedings. The case laws relied upon by the assessee are not applicable to the facts of the case as the necessary agreements qua joint venture, relinquishing the interest in the said land were not furnished before the AO in the course of assessment proceedings and there is a failure on the part of the assessee to disclose the material facts during the course of assessment and hence in our opinion the re-opening is validly done under 1st proviso to section 147 of the Act. We are, therefore, inclined to hold that re-opening of assessment u/s 147 of the Act is valid and accordingly the ground raised by the assessee is dismissed. 6. In view of the said finding of the Hon ble ITAT in the assessee s own case(supra), we decide this issue in favour of the revenue against the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder with relevant annexures to the AO of the assessee. Thereafter the AO also sought the details of the transaction from the assessee vide letter dated 19.05.2010 and re-opened the case of the assessee by issuing notice u/s 148 of the Act on 25.05.2012 after four years from the end of the relevant assessment year. In the first para of the reasons recorded by the AO, he admitted that the assessee vide letter dated 18.10.2008 supplied the details of sundry creditors. Thereafter ,the AO while framing order u/s 143(3) r.w.s. 148 of the Act reduced the inventories of the assessee by ₹ 100.80 Cr on the ground that the transaction was a sham and non genuine despite the fact the same transaction was treated as genuine in the hands of OM and WW the two JV partners to whom the assessee paid ₹ 50.40 Cr each for acquiring the interest in the land. In the case of OM, the receipt from the assessee was treated as capital receipt but the same was treated as revenue re 45 ITA No.1132 and 1133/Mum/2016 143(3) of the Act which was accepted by OM and paid due taxes thereon. In the case of the WW the money received from the assessee was treated as capital receipt and MAT was paid thereon. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the contention of the ld AR. The mere irregularities in the documents as pointed by the ld DR cannot be the basis to draw conclusion as to genuineness of the transaction. So far as the reasonableness of the transaction is concerned, the valuation by the registered valuer and the 47 ITA No.1132 and 1133/Mum/2016 DVO were largely same and cannot be ignored and lost sight of while deciding reasonableness of the transaction. After considering the rival contentions, records, written submissions and case laws filed by both the parties we are of the view that the order of PCIT upholding the order of AO treating the purchase of interest in the land from OM and WW as sham is incorrect and cannot be sustained. The decisions relied by the revenue are also distinguishable on facts and therefore not applicable. In view of the above discussions, we set aside the order of PCIT on this issue and accordingly appeal of the assessee is allowed. AO is directed accordingly. 8. On appraisal of the above mentioned finding, we noticed that the assessee along with JV partners OM and WW got allotted the land measuring 50 acres upon the payment of ₹ 50,58,62,500/- to the MIDC. Thereafter, the JV ..... X X X X Extracts X X X X X X X X Extracts X X X X
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