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TMI Blog2022 (4) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT(A) in upholding the validity of reassessment proceedings and the addition on merit in absence of any contrary material brought to my notice. Accordingly, the order of the ld. CIT(A) is upheld and the grounds raised by the assessee is dismissed. - ITA No.3064/DEL/2019 - - - Dated:- 11-4-2022 - Shri R. K. Panda, Accountant Member For the Assessee : None For the Revenue : Sh. Om Prakash Sr. DR ORDER PER R.K. PANDA, AM, This appeal filed by the assessee is directed against the order dated 28.07.2018 of the learned CIT(A)-15, New Delhi, relating to Assessment Year 2009-10. 2. None appeared on behalf of the assessee despite service of notice. A perusal of the order-sheet entries show that this appeal is getting adjournment from time to time due to non-appearance of the assessee. Therefore, this appeal is being decided on the basis of material available on record and after hearing the ld. DR. 3. Although, a number of grounds have been raised by the assessee, however, these all relate to the order of the ld. CIT(A) in dismissing the appeal filed by the assessee challenging the validity of reassessment proceedings and the addition of ₹ 44,09,8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee apart from challenging the addition on merit, challenged the validity of the reassessment proceedings. However, the ld. CIT(A) was also not satisfied with the arguments advanced by the assessee and upheld the validity of the reassessment proceedings. Similarly, he also upheld the addition made by the AO on merit. So far as the validity of reassessment proceedings are concerned, the ld. CIT(A) decided the issue against the assessee by observing as under:- Before the Grounds of appeal are taken up for adjudication, it is appropriate to discuss the brief background of the case of appellant and the circumstances under which the reopening of the assessment was done by ITO, Ward 2(5), Noida, by issuing notice u/s 148. 5.1. ITO, Ward 2(5), Noida received an information from the CIB wing of the department that Sh. Vijay Bathla (the appelant) has entered into a non-PAN transaction, has sold a property in ₹ 55,00,000/- on 28.04.2009. This transaction was not containing any PAN number of the appellant, Sh. Vijay Bathla, solely due to the fact that the appellant, while registering the sale deed of property with the concerned registering authority, had himself not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, which in turn has been provided by the parties themselves who are involved in making transactions of sale/purchase of immovable properties. 5.2.3. It is in the background of such constrained placed on AO to whom such an information has been forwarded by CIB wing, that the AO is required to examine whether the property transaction entered into by a particular person, as per information forwarded to him by another wing of department, has been declared in ITR or not and whether the correct amount of income earned by such persons on such property transactions has been declared in ITR or not. 5.2.4. In order to undertake such examination, the very first step such an AO takes is issuing a query letter to such a person and ask him/her, whether the reported transaction has infact been undertaken by him or not. Here comes the question, where/on what address, the AO is capable of sending such a query letter. Since at this stage, AO does not even have PAN number of the person and as far as address is concerned, the only address available in the records of the AO is that which has been made available by the person himself to the registering authority, which in turn has been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33(6) at the address Vijay Bathla S/O Shri P.D. Bathla R/0. 1045,Sector-37, NOIDA, Distt. GautamBudh Nagar, U.P. GPA of Gen. V.K. Singh S/o S.N. Singh and Smt. Meena Singh R/o 21, Akbar Road New Delhi . He, in fact issued not one but two query letters. These notices did not come back unserved in the office of AO, which means these notices were served on the address at which they were sent. However no reply was furnished by Sh. Vijay Bathla in compliance to both these notices. 5.3.3. Under the above stated circumstances, ITO, Ward 2(5), Noida made prima facie belief that income has escaped assessment and recorded the reasons prior to issue of notice u/s 148. An AIR information regarding sale of immovable property amount to ₹ 55,00,000/- on 28.04.2009 has been received from CIB for examining of non-pan financial transactions. To verify the transaction an Information has been called u/s 133(6) vide letters dated 15.05.2016 05.02.2016. No reply has been filed by the assessee. In view of the above facts and in the absence of documentary evidence, I have reason to believe that the income of capital gain on sale amount of ₹ 55,00,000/- which Is chargeable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty and c) Property was purchased by Mrs. Vanita Bathla and not by my client. 5.3.7. It is at this stage that since the assessee had stated that his address is that of VikasPuri and he is being assessed with Ward 44(1), New Delhi, the ITO Ward 2(5), NOIDA transferred the case to the jurisdictional AO of Sh. Vijay Bathlaie. AO, ITO Ward 44(1), New Delhi. 6. Perusal of the abovementioned facts and circumstances shows that ITO Ward 2(5 j, NOIDA came into knowledge of the jurisdictional AO of the appellant, for the very first time, only when he was informed by the appellant himself vide his letter dated 29.11.2016. Prior to that. ITO Ward 2f5j, NOIDA was having no opportunity /occasion with himself to know about the correct jurisdiction of the appellant in view of the fact that appellant himself had either not provided his correct address in the records of registering authorities or the appellant had deliberately failed to respond to the query letter issued by ITO Ward 2(51, NOIDA at the address provided by the appellant in the records of registering authority. The said query letter was issued by ITO Ward 2(5j, NOIDA in order to verify the details of transaction with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was provided by the appellant to the registering authority. Appellant in his written submissions has pleaded that the address used by AO was incorrect since the property situated at this address was sold and therefore how could AO expect the appellant to reside/occupy the same address which has already been sold. This argument of the appellant does not carry any force since he has himself not provided the requisite complete and correct information before the registering authority. Question is, can appellant be allowed to take shelter of his own wrongdoings. 9. Subsequently, after the case records were transferred to ITO, Ward 44(1), New Delhi, who happened to be jurisdictional AO, the first step AO took was to dispose off various objections raised by the appellant vide his letter dated 29.11.2016. The same was done by AO vide his letter dated 02.12.2016, addressed to the appellant, the contents of the letter dated 02.12.2016 have been reproduced by the AO in his order. AO has inadvertently mentioned in this letter that notice u/s 148 dated 29.03.2016 was issued by ITO Ward 2(5), NOIDA to the appellant at the address available in PAN database. This is just a typogr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. So far as the addition on merit is concerned, the Ld. CIT(A) dismissed the same by observing as under:- 14. I have carefully gone through the AO's findings on merits. 14.1. After perusal of entire facts and circumstances of the case of appellant, I am in complete agreement with AO that AO has correctly assessed the long term capital gain in the hands of appellant. 14.2. I am in agreement with AO that the assessee has tried to create a situation to prove that the property in question was purchased not by him but by his wife and accordingly trying to save himself from the liability to pay tax on long term capital gain, trying to prove that the sale was made not by him but by his wife. The facts are clear that the property was sold by the appellant and the entire consideration was also received in the bank account owned by the appellant. The fact that in the transfer deed concerning the sale of property, which was executed by the appellant in favour of Sh. Nalim Monga, the appellant himself has been shown as the GPA holder of Sh. V.K. Singh and not his wife. The AO is also correct in V.K. Singh on agreement to sale basis but later on did not execute any tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised by the AO in the assessment proceedings but instead of submitting any explanation on merits, throughout the assessment proceedings, the appellant has only objected to validity issuance of notice u/s 148. 14.5. The most important aspect is that the entire sale consideration was received by the appellant in his bank account, that the transfer deed was drawn between the appellant and the purchaser Sh. Nalin Monga and the witness to the transfer deed was appellant's wife herself, leaves no doubt that; the long term capital gains were to be assessed only in the hands of the appellant and not his wife. 15. In view of above, the assessment of long term capital gains amounted to ₹ 44,09,836/-, made by the AO in the hands of the appellant are held justified. Accordingly the addition made by the AO is confirmed and the appellant's appeal is dismissed on this ground of appeal. 8. Aggrieved with such order of the Ld. CIT(A), the assessee is in appeal before the Tribunal by raising the following grounds:- 1) That the Hon'ble Commissioner of Income Tax (Appeals) has erred in law as much as on the facts of the case by confirming the addition of ₹ 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to be quashed. 5) That the Hon'ble Commissioner of Income Tax (Appeals) has erred in law as much as on the facts of the case in not appreciating the fact that transfer / sale deed of the impugned property dated 28.04.2008 at the time of sale of the same by the wife of the appellant was signed by the appellant on behalf of the transferor Lt. General V. K. Singh and Smt. Meena Singh as he was the G.P.O. holder on behalf of them and that the impugned property could not be transferred in the name of the wife of the appellant as the impugned property was duly allotted to Lt. General V. K. Singh and Snnt. Meena Singh by Noida Authority through Army Welfare Housing Organization on which transfer in the name of the appellant' wife was not permitted at that time. 6) That the Hon'ble Commissioner of Income Tax (Appeals) has erred in law as much as on the facts of the case by confirming the addition of ₹ 44,09,836/- without appreciating the fact that once the agreement to sell dated 13.12.1993 has been made in the name of the wife of the appellant and this fact has not been challenged either by the learned Assessing Officer or the Commissioner of Income Tax ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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