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TMI Blog2020 (11) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... inding that due to non disclosure of transaction of joint development agreement entered into by the assessee with M/s Godrej Properties Ltd. on 22.01.2004, towards transfer of land, the income has escaped assessment. AO has recorded reasons for arriving at the conclusion that income has escaped assessment. Once the Assessing Officer records the reasons that he has reason to believe that income has escaped assessment, it confers jurisdiction to re open the assessment. However, the tribunal in a cryptic and cavalier manner without adverting to the reasons assigned by the Assessing Officer held that AO has not mentioned therein anywhere that the assessee has failed to disclose truly and fully all material facts necessary for computing its i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unts to disclosure, when the crucial fact regarding handing over of possession which would amount to transfer under Section 2(47) of the Act liable for capital gains was not disclosed by the assessee and recorded a perverse finding? 2. Facts leading to filing of this appeal briefly stated are that the assessee is a company engaged in the manufacture and sale of automotive batteries. The assessee filed its return of income for the Assessment Year 2004-05. The Assessing Officer by an order dated 22.12.2006 completed the assessment under Section 143(3) of the Act. The Assessing Officer noticed that the assessee had entered into a joint development agreement and in consideration, the assessee was to receive 28% of the saleable constructed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he revenue submitted that the assessee had not declared / disclosed the factum of handing over the possession through joint development agreement, which would constitute failure to disclose fully and truly all material facts necessary for assessment of income and the same is reflected in the reasons recorded by the Assessing Officer. It is further submitted that notes to return only reflects receipts of advance of ₹ 180 Crores and not handing over the possession / enjoyment of property in terms of Section 2(47)(V) and Section 2(47)(VI) of the Act and therefore, it is a case of non disclosure. 5. It is also argued that the reasons recorded by the Assessing Officer prima facie establish a statement of tax and at the stage of recordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no delivery of possession under Section 53A of the Transfer of Property Act, 1881 and the development Agreement is not a registered document. It is also submitted that the assessee gave Power of Attorney to the developer on 07.03.2006 i.e., beyond the accounting period and the possession was not handed over. It is also urged that there is no material on record to show that the possession of the property in question was handed over and the re opening of the assessment is beyond four years, which is not permissible in law. In support of aforesaid submissions, reliance has been placed on decision of the Supreme Court in 'COMMISSIONER OF INCOME TAX VS. BALBIR SINGH MAINI', 398 ITR 531 (SC) and decision of this court in 'VENKATESH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure agreement is entered into and possession of land is handed over for construction i.e., for the assessment year 2004-05. As the assessee company failed to disclose fully the contents of the JVA entered into with M/s Godrej Properties Ltd. which took place on 22.01.2004 relevant to the Assessment Year 2004-05, capital gain income, which exceeds more than One Lakh Rupees, arising on account of consideration received towards transfer of land, has escaped assessment within the meaning of Section 147 of the I.T.Act. In view of the above, I am satisfied that it is a fit case for issue of notice under Section 148 of the Act for the Assessment Year 2004 05. 8. Thus, from perusal of the above relevant extract, it is evident that the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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