9911796707
TMI Blog2022 (11) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... issued notice u/s 148 without bringing any tangible material on record without considering that assessee purchased property and source of investment in immovable property is unexplained recorded in the reason. 2 Whether on the facts and circumstances of the case and in law, the Ld. CIT (A) had erred in holding that the reason of reopening is based upon non filing return of income ignoring the fact mentioned in para 2 and 3 of the reason recorded. 3 Whether on the facts and circumstances of the case and in law, the Ld. CIT (A) had erred in not deciding the issues on the basis of finding of the assessing officer and without appreciating the fact that assessee failed to explain source of funds of Rs. 10,99.750 used for the purchase of the immovable property. 4 Whether on the facts and circumstances of the case and in law, the Ld. CIT (A) had erred in not deciding the issues on the basis of finding of assessing officer and without appreciating the fact that assessee failed to submit the supporting evidences to prove the long term capital gains of Rs. 1,67,06,394. 5 Whether on the facts and circumstances of the case and in law, the Ld. CIT (A) had erred in not deciding the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a between these two paras is as under- As the case was falling under the category of non- filers, NMS notice dated 25.07.2015 was sent to the assessee for filing the return of income and to explain the sources of the above financial transaction. In response to the notice, vide his AR's letter dated 03.08.2015, has stated that the assessee has filed his return on 21.07.2011. However, he has not given any explanation for the above financial transaction hence the source of the said investment in property remain unexplained. Further your objection vide letter dated 25.10.2017 was reverted vide this office letter dated 27.10.2017 in which I never agreed to all the factual information submitted by the assessee. This office letter dated 27.10.2017 is self-explanatory in nature. There is no need to address the same again." 3.1. The re-assessment was framed by the ld. AO by making certain additions and ultimately the total income was determined at Rs.3,08,51,220/- as against the returned income of Rs.3,95,231/- vide order u/s.143(3)r.w.s. 147 of the Act dated 28/12/2017. The assessee challenged the validity of reopening u/s.147 of the Act before the ld. CIT(A) on the ground that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 does not addressed to the appellant. The AO again vide his letter dated 28.11.2017 informed that appellant has not given any explanations for the purchase of immovable property hence the investment in the said property remains unexplained. Ground of appeal no. 1 is relates to the appellant raised the issues that reopening by the AO is not valid. The arguments of the appellant in this regard are as under- a. The AO has reopened the assessment under the belief that appellant has not filed ROI for A.Y. 2011-12 whereas the appellant vide his letter dated 03.08.2015 has informed the A.O that he has filed his ROI on 21.07.2011. b. The appellant vide his letter dated 30.10.2018 has pointed out various judicial pronouncements as per which the reopening of assessment in this case is invalid as the same has been made without application of mind on the basis of reason to suspect and not on the basis of reason to believe without being any tangible material on record. c. Reopening in this case has been made beyond 4 years without showing any failure on the part of appellant to make full and true disclosure. 5. I have gone through the facts of the case. In this case, the appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assumption of fact that assessee had not filed his income tax return for A.Y.2011-12 that subsequently in the same reasons, he acknowledges the fact that assessee had filed his return of income on 21/07/2011. From the perusal of the entire reasons recorded by the ld.AO for reopening the assessment, we have absolutely no hesitation to hold that the entire reopening had been triggered by the ld. AO based on complete incorrect assumption of fact that no return of income was filed by the assessee for the A.Y. 2011-12, wherein a financial transaction of purchase of property was made. The letter to assessee by the ld. AO calling for income tax return based on report received in the non-filers list was never issued by the ld. AO for A.Y. 2011-12 i.e. the year under consideration before us. Factually it was issued only for A.Y.2010-11 as stated supra. Hence, we hold that the reasons recorded for reopening has been made without application of mind by the ld. AO. Now the moot question that arises for our consideration is as to whether the reopening which is made based on incorrect assumption of fact and non-application of mind by the ld. AO could be held to be valid. This issue has been addr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is in response to paragraph no.1 and 2 of the petition, Respondent No.1 simply says that these are factual in nature and the notice under Section 148 dated 26th March, 2019 and the order disposing the objections and the notice dated 22 nd October, 2019 are issued in pursuance of the objective of completing reassessment in accordance with the procedures laid down. On this ground alone, the notice dated 26th March, 2019 has to be set aside. 6. Moreover, Mr. Gandhi submitted that despite repeated requests for copy of the sanction under Section 151 of the Act, the same has not been provided. The averment to that effect in the petition has not even been denied in the affidavit in reply and respondent, in the affidavit in reply has not even bothered to annex the sanction obtained which gives us a feeling that the said Mr. Ramesh C. Meena who issued notice under Section 148 of the Act containing errors of facts and who has filed affidavit in reply does not wish to produce the same. We have to, therefore draw adverse inference against respondent that if it is disclosed it may be prejudicial to the interest of Revenue. 7. One wonders whether the sanctioning authority under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect as is now virtually admitted by the Revenue. It is undisputed that the assessee had actually filed the return of income for the said assessment year and also offered his share of income of the declared sale consideration to tax as capital gains. The Assessing Officer may have dispute with respect to computation of such capital gains, he cannot simply dispute the fact that the assessee did file the return. Importantly, even the second factual assertion of the Assessing Officer in the reasons recorded is totally incorrect. He has referred to said sum of Rs. 1,18,95,000 as a sale price of the property. The assessee had produced before the Assessing Officer, the sale deed in which, the sale consideration disclosed was Rs. 50 lakhs. The Assessing Officer may be correct in pointing out that when the sale consideration as per the sale deed is Rs. 50 lakhs but the registering authority has valued the property on the date of sale at Rs. 1,18,95,000 for stamp duty calculation, section 50C of the Act would apply, of course, sub- ject to the riders contained therein. However, this is not the cited reason for reopening the assessment. The reasons cited are that the assessee filed no retur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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