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TMI Blog2022 (9) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the assessee was reopened mainly on the basis of information acquired in the case of Hiranandani group case wherein the director and promotor of the company had agreed that they have received on-money from the purchasers of the flat. In the case of assessee it is fact on record that the assessment was reopened after the expiry of four years and completed assessment u/s. 143(3) r.w.s. 153A. Considered the facts on record and facts in the said case Anil Jaggi [ 2018 (2) TMI 51 - ITAT MUMBAI] are exactly similar and the conclusion reached therein by the Coordinate Bench are respectfully followed and accordingly, the assessment made u/s. 147 r.w.s. 143(3) of the Act is bad in law. Following the above facts on record we allow the appeal filed by the assessee. - ITA. No. 7520/MUM/2019 And ITA. No. 7519/MUM/2019 - - - Dated:- 25-8-2022 - Shri Amit Shukla, Hon'ble Judicial Member And Shri S. Rifaur Rahman, Hon'ble Accountant Member For the Assessee : Shri Snehal Shah For the Department : Shri Niraj Rajan Samal ORDER PER S. RIFAUR RAHMAN (AM) 1. These appeals are filed by different assessees of same family, against different orders of Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... going discussion, I am satisfied that it is a fit case for re-opening of assessment u/s. 147 of the Act as the income chargeable to tax has escaped assessment for A.Y. 2007-08. 4. In response to the notices u/s. 143(2) and 142(1) of the Act, AR of the assessee attended and submitted relevant information as called for. Assessee asked for the copy of reasons for reopening and the same was submitted to him. In response assessee submitted the details of flat purchased from M/s. Crescendo Associates a concern of Hiranandani Group. As per the agreement for sale, the assessee has purchased the following flats jointly owned by the assessee and his spouse Dr. Pushpa S. Singh and the details of the flats are as under: - (1) Flat No. 2202/A, 22nd Floor, Glen Ridge, Hiranandani Gardens Mumbai. (2) Flat No. 2202/B, 22nd Floor, Glen Ridge, Hiranandani Gardens Mumbai. (3) Flat No. 2202/C, 22nd Floor, Glen Ridge, Hiranandani Gardens Mumbai. 5. Assessee submitted that total consideration of the above said flats is ₹.2.20 crores and categorically stated that he has not paid any on-money to purchase these flats from M/s. Crescendo Associates. Therefore, he objected to mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iranandani who in their sworn statements u/s. 132(4) of the Act dated 14.03.2014 confirmed that such transactions had taken place and on-money receipts from various purchasers was not offered to tax, which they have offered during the course of search in the respective years. Further, Assessing Officer observed that the details of transactions of on-money carried out by Hiranandani Group contained in the pendrive contains the details of the assessee which is as under: - Date of Payment Name of the buyer Flat No. Amount of On-money paid 19.10.2006 Shailendra Singh 2202 Rs. 22,00,000/- 28.10.2006 Shailendra Singh 2202 Rs. 10,00,000/- 01.11.2006 Shailendra Singh 2202 Rs. 13,00,000/- 27.11.2006 Shailendra Singh 2202 Rs. 10,00,000/- 28.11.2006 Shailendra Singh 2202 Rs. 20,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the notice issued u/s 148 of the Act. 2. The grounds of appeal are without prejudice to the other. 3. The appellant reserves the right to amend, alter or add to the grounds of appeal. 10. At the time of hearing Ld. AR of the assessee submitted that a search was conducted on Hiranandani Group builders and developers on 11.03.2014 and certain documents relating to purchase of three flats were recovered and it was alleged that assessee has paid on-money. In this regard, he brought to our notice Page No. 22 of the Paper Book which is Assessment Order for the A.Y. 2007-08 in the case of original Assessment Order passed u/s. 143 r.w.s. 153A of the Act and submitted that search was conducted in the case of the assessee, assessee has filed all the relevant information. Further, he brought to our notice Page No. 40 of the Paper Book which is the notice issued u/s. 148 of the Act dated 30.03.2014. He submitted that the above notice was issued without proper approval of any authority. Further, he brought to our notice Page No. 41 of the Paper Book in which assessee has asked through the authorized representative the reasons for reopening in writing and the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the expiry of four years and completed assessment u/s. 143(3) r.w.s. 153A of the Act. On exactly similar facts on record the Coordinate Bench of this Tribunal in the case of Anil Jaggi v. ACIT (supra) held as under: - 13. We shall now advert to the validity of the reopening of the concluded assessment of the assessee after a period of four years from the end of the assessment year. We find that the A.O taking recourse to the first proviso of Sec. 147 had initiated reassessment proceedings, for the reason that the income of the assessee chargeable to tax had escaped assessment because of failure on the part of the assessee to truly and fully disclose all the material facts necessary for his assessment. The ld. A.R had assailed before us the validity of the reassessment proceedings for the reason that the reasons recorded by the A.O for reopening the case of the assessee does not make any mention of escapement of the income of the assessee for failure on his part to fully and truly disclose all material facts necessary for his assessment. We have perused the copy of the reasons to believe on the basis of which the case of the assessee was reopened by the A.O (Page 31 of AP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of the Hon ble High Court of Bombay in the case of Nirmal Bang Securities (P) Ltd. Vs. ACIT (2016) 382 ITR 93 (Bom), wherein the Hon ble High Court taking cognizance of the fact that there was no allegation in the reasons recorded that there was any failure on the part of the assessee to disclose fully and truly all material facts necessary for framing of assessment in the hands of the assessee, had quashed the reassessment proceedings by observing as under:- 24. In view of the aforesaid well settled legal position and there admittedly being not even an allegation in the reasons recorded that there was any failure on the part of the Petitioner to disclose truly and fully any material fact necessary for assessment, let alone the details thereof, the impugned notice dated 30th March, 2007 and the impugned order dated 5th December 2007 are liable to be quashed and set aside on this ground alone . We thus in the backdrop of the facts involved in the present case read with the settled position of law as had been deliberated at length hereinabove, being of the considered view that now when there is no allegation in the reasons recorded as regards the failure on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property under consideration. We find that the information as emerges from the print out of the pen drive falls short of certain material facts, viz. date and mode of receipt of on money , who had paid the money, to whom the money was paid, date of agreement and who had prepared the details, as a result whereof the adverse inferences as regards payment of on money by the assessee for purchase of the property under consideration remain uncorroborated. We further find that what was the source from where the information was received in the pen drive also remains a mystery till date. We find that Sh. Niranjan Hiranandani in the course of his cross-examination had clearly stated that neither he was aware of the person who had made the entry in the pen drive, nor had with him any evidence that the assessee had paid any cash towards purchase of flat. We have deliberated on the fact that Sh. Niranjan Hiranandani in his statement recorded on oath in the course of the Search seizure proceedings had confirmed that the amounts aggregating to Rs. 475.60 crore recorded in the pen drive were the on-money received on sale of flats, which was offered as additional income under Sec. 132(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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