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TMI Blog2023 (2) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... nior advocate Mr. Tushar Hemani with learned advocate Mr.Vaibhavi Parikh for the petitioner and learned advocate for respondent authorities. 2. The petitioner has prayed to set aside notice dated 12.03.2019 issued by the Income Tax Officer under section 148 of the Income Tax Act, 1961 stating that he had reasons to believe that the income of the petitioner chargeable to tax for the assessment year 2013-14, had escaped assessment within the meaning of section 147 of the Income Tax Act, 1961 (hereinafter referred to as the "Act"). 3. The facts available from the record of the petition were inter alia that the petitioner had invested Rs.60,00,000/- in a pension policy of Bajaj Allianz. The policy was assigned to one Pragnaben Parekh for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was surrendered and the amount of Rs. 62,04,758/- was received as taxable income by the petitioner. It was alleged that the petitioner had not offered the surrender value of the policy as income in the return of income, as a result of which, the same amount of Rs. 62,04,758/- escaped assessment in the hands of the petitioner for the said assessment year. Petitioner raised objections by letter dated 11.04.2019. The objections were disposed of by the respondent authority on 30.04.2019. 4. Learned senior advocate for the petitioner submitted that resort to Section 147 of the Act for the purpose of reopening of the assessment was permissible provided there was an escapement of income chargeable to tax in the hands of the assessee. It was submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,00,000/- in Bajaj Allianz Pension Pension Policy and had received the surrender value as above. 4.4 Learned advocate for respondent contended that in the conclusion recording assessee's claim that was never claimed deduction under Section 80CCC (1) could be drawn after verifying of the relevant materials and that the assessee's case was never scrutinised under Section 143(3) or Section 147 for the earlier assessment years from 2007-08 to 2013-14 except for assessment year 2011-12. It was thus contended, on the basis of such facts, the assessment was sought to be reopened due to assessee's failure to disclose truly and fully all material facts necessary for assessment year 2013-14. 5. When the reasons which weighed with the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a return of income has been furnished by the assessee, but no assessment has been made and it is noticed by the assessing officer that the assessee has understated the income or has claimed excessive loss, deduction, etc., in the return. 5.2 Reopening of the assessment on the ground that surrender value of the policy was received by the petitioner, which amounts to escapement of income chargeable to tax was expressly unsustainable. It is undisputed that the petitioner did not receive any amount of surrender value of the policy. The policy was already assigned in the previous assessment year in favour of one Pragnaben who had received surrender value of Rs.62,04,758/-. 5.3 The sine qua non for invoking powers under section 147 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee in a fund, referred to in subsection (1) in respect of which a deduction has been allowed under sub-section (1), together with the interest or bonus accrued or credited to the assessee's account, if any, is received by the assessee or his nominee- (a) on account of the surrender of the annuity plan whether in whole or in part, in any previous year, or (b) as pension received from the annuity plan, an amount equal to the whole of the amount referred to in clause (a) or clause (b) shall be deemed to be the income of the assessee or his nominee, as the case may be, in that previous year in which such withdrawal is made or, as the case may be, pension is received, and shall accordingly be chargeable to tax as income of that prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to be taxed by way of reopening, the amount, which was as such received by third party. This was clearly not permissible in law and there existed no ground to reopen assessment under section 147 of the Act. 6.1 The satisfaction of the assessing officer that he had reason to believe that the income in the hands of the petitioner-assessee had escaped assessment, was without any foundation in law. By virtue of provisions of Section 80CCC (1) read with 80CCC(2), the petitioner had never claimed any deduction in respect of amount of pension policy to render the pension policy to attract liability of taxability. 7. For all the above reasons and discussions, the petition of the petitioner is entitled to succeed. The impugned notice dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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