9911796707
TMI Blog2022 (7) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... LAVA, ADVOCATE FOR THE RESPONDENT : SHRI. K.V. ARAVIND, ADVOCATE JUDGMENT This appeal by the assessee has been admitted to consider the following questions of law: i) Whether the Tribunal failed to appreciate that the learned Commissioner of Income Tax (Appeals) has erred in not holding that the mandatory conditions for assuming jurisdiction under Section 148 of the Income Tax Act, 1961 ('Act' for short) were not complied and consequently the reassessment proceedings are bad in law on the facts and circumstances of the case? ii) Whether the Tribunal is justified in law in holding that the capital gains is chargeable to tax for the Assessment Year 2008-09 and not Assessment Year 2009-10 and consequently passing a perverse order on the facts and circumstances of the case? iii) Whether the Tribunal is justified in law in holding that there was a transfer under Section 2(47)(ii) of the Act and there was I.T.A No.12/2015 no transfer under Section 2(47)(v) of the Act and consequently passing a perverse order on the facts and circumstances of the case? iv) Whether the Tribunal is justified in not adjudicating the issue of levy of interest under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal was also dismissed. Hence, this appeal. 7. Shri. Shankar, for the assessee submitted that: the assessee had made a request to the Assessing Officer to provide a copy of the reasons recorded before issuing the notice under Section 148 of the Act. Assessing Officer replied Vide communication dated October 30, 2012 , that assessee had received a sum of Rs.30,00,000/- from Mr.Rohan Monteiro, but he had not filed the return of income. Except that, the Assessing Officer has not recorded his satisfaction as regards the nature of income and the taxability thereof. Thus, the Assessing Officer did not have any 'reason to believe', but had only 'reason to suspect'; Section 147 of the Act requires that the Assessing Officer should have 'reason to believe' and such belief should not be a product of imagination and speculation; The Assessing Officer, the First Appellate Authority and the ITAT have erred in holding that the Assessing Officer had 'reasons to believe' that the income had escaped assessment; The ITAT has failed to appreciate that the actual date of withdrawal of the suits was not forthcoming in the MOU and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (1981) 130 ITR 1 (SC) para to contend that the Assessing Officer must have reasons to believe escapement; (2) Chhugamal Rajpal Vs. S.P. Chaliha (1971)79 ITR 603(SC) to contend that unless requirement of Clause (a) or Clause (b) of Section 147 are satisfied, the Income Tax Officer has no jurisdiction to issue notice under Section 148. (3) Indian Oil Corporation Vs. Income-tax Officer (1986)159 ITR 956 (SC) (para 11) , to contend that the 'reason to believe' is not the same as 'reason to suspect'. (4) Hindustan Lever Ltd., Vs. R.B. Wadkar (2004)268 ITR 332 (Bombay) (para 19) to contend that the Assessing Officer has to speak through his reasons and the reasons recorded cannot be supplemented by filing Affidavit or oral submission. (5) Income-tax Officer Vs. Lakhmani Mewal Das (1976)103 ITR 437 (SC) to contend that there must be legally sound basis for reopening the assessment; (6) Commissioner of Income-tax Vs. Dr. N. Thippa Setty (2010)322 ITR 525 (KAR) to contend that the reasons recorded should disclose prima facie case with regard to escaped assessment. (7) Commissioner of Income-tax Vs. Orient Craft Ltd (201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return of income for the AY.2011-12. 3. Analysis of information received From the analysis of information as per NMS date and ITS details, it is seen that during the F.Y 2010-11, the assessee has entered into contract of Rs.18,82,26,100/- in the commodities exchange, however, no return of income has been filed for A.Y. 2011-12. As such, profit/gain on commodity exchange remains unexplained and also the source of investment in these transactions remains unexplained. 4. Enquiries made as sequel to information received, A letter for verification of above information was issued to assessee requesting to comply. However, there is no response received from the assessee. As per information received from the system, it is seen that the assessee has not filed his return of income. As such, from the above information, Profit/Loss earned from Commodity transactions of Rs.18,82,26,100/- remains unexplained. As such, the income exceeding Rs.1 Lakh or more has escaped assessment. 5. Findings Analysis of information received and the enquiries made revealed that:- (I). Theassessee has transacted in Commodities Marketat Rs.18,82,26,100/-during the A.Y.under considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: 1) In pursuance of the aforesaid understanding the Second Party has paid to the First Party a sum of Rs.2,00,00/- (Rupees two lakhs only) by cheque No.009754 dated 01-07-2006 drawn on Karnataka Bank, Dongerkery branch, Mangalore, towards the advance consideration with regard to his claim on the Schedule properties, receipt of which sum the First Party acknowledges herewith. 2) It is agreed between the parties that the balance consideration of Rs.2,30,00,000/- (Rupees two crore thirty lakhs only) shall be paid by the Second Party to the First party within one year form this date, subject to withdrawal of the suit in O.S. No.100/2004 by the First Party and the Second Party shall obtain proper receipt from the First Party as and when the payment is made. 3) That in pursuance of the aforesaid understanding the First Party has agreed to withdraw the Suit in O.S.No.100/2004 which is pending before the II Addl. Civil Judge (Sr.division), Mangalore. 4) That the First Party hereby assures and declares that he will not make any claim of whatsoever nature in the schedule property or against the aforesaid previous owners with whom he had entered into Agreement f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
