9911796707
TMI Blog2024 (2) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... asers of the flat. HELD THAT:- In the assessment order, there is a discussion with regard to work in progress of assessee. In the letter dated 8th December 2016, assessee has given examples of certain transactions and also copies of those agreements for sale to convince the AO that assessee s role was only that of confirming party and assessee had no right in the sale consideration. Copies of the agreements for sale with regard to the two flats mentioned in the reasons for reopening the assessment are also annexed to the petition. In the affidavit in reply, there is no denial of the facts mentioned in the petition. In the reasons recorded, a statement which is not entirely correct has been made, in as much as, it is stated that copies o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014, declaring total income of Rs. 42,53,440/-. The assessment under Section 143(3) of the Act was completed on 24th December 2016 by accepting the returned income declared by petitioner. 3. Thereafter, petitioner received a notice dated 31st March 2021 issued under Section 148 of the Act, alleging that there was reasons to believe that petitioner s income has escaped assessment within the meaning of Section 147 of the Act. Since the notice has been issued after the expiry of more than 4 years of the relevant assessment year and assessment order under Section 143(3) having been passed, the proviso to Section 147 would apply, in as much as, only if there was failure on the part of assessee to truly and fully disclose all material facts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain the flat including flat no. 1201 and 2002 to the lessees. However, copy of the said agreement has not been provided to the undersigned to examine the said fact. In the absence of such crucial document, it is not ascertainable whether such flats were really allotted to the parties and the assessee was not having any interest in those flats. Therefore, prima facie, it cannot be denied that the assessee was not having any interest in those flats including flat no. 1201 and 2002 and therefore, it cannot also be denied that there was no share of assessee in sale consideration. 5. Basis of forming reason to believe and details of escapement of income: On the basis of the aforesaid tangible material available with me, I have reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther, as per explanation 1 to section 147 of the Act, production of books of account or other evidence from which material evidence could with due diligence have been discovered by the Assessing officer, would not amount disclosure within the meaning of section 147 of the Act. Considering the fact and circumstances of the case, provisions of clause (c) of explanation 2 to section 147 are applicable in the instant case and the assessment year under consideration is deemed to be a case where income chargeable to tax has escaped the assessment. Therefore, assessment for AY 2014-15 needs to be re-opened by issue of notice u/s 148 of the IT Act, 1961. As more than four years have lapsed from the end of assessment year under consideration, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponents for those sale of tenanted flats was the responsibility of assessee under the redevelopment agreement. 6. After considering these facts, an assessment order dated 23rd December 2016 came to be passed. In the assessment order, there is a discussion with regard to work in progress of assessee. In the letter dated 8th December 2016, assessee has given examples of certain transactions and also copies of those agreements for sale to convince the Assessing Officer (AO) that assessee s role was only that of confirming party and assessee had no right in the sale consideration. Copies of the agreements for sale with regard to the two flats mentioned in the reasons for reopening the assessment are also annexed to the petition. In the affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t hand, the AO having raised a query and the petitioner having replied to it, it follows that the query raised was subject of consideration of the AO while passing the assessment order dated 23rd December 2016. In our view, the re-opening of assessment by the impugned notice is merely on the basis of change of opinion of the AO from that held earlier during the course of assessment proceedings and this change of opinion does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment. 8. In the circumstances, petition is allowed in terms of prayer clause (a), which reads as under: (a) That this Hon ble Court may be pleased to issue under Article 226 of the Constitution of India an appro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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