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TMI Blog2024 (3) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the facts on record. The factum of non-consideration of ITR filed by the assessee on the part of the Ld. AO has been accepted by the Ld. CIT(A). Co-ordinate Bench of Delhi Tribunal [ 2019 (11) TMI 1002 - ITAT DELHI] relied upon the decision Braham Prakash Lakra [ 2019 (11) TMI 1002 - ITAT DELHI] AND Indo Arab Air Services [ 2015 (10) TMI 2383 - DELHI HIGH COURT] wherein the Hon ble Court observed that while law does not require AO to form definite opinion by conducting any detailed investigation regarding escapement of income from assessment, it certainly did require to form prima facie opinion based on tangible material which provide nexus or link to having reason to believe that income escaped assessment. Following the decisions (supra) and applying their ratio to the facts of the assessee s case we sustain CO No. 2 of the assessee which is sufficient to hold that the notice u/s 148 issued to the assessee is bad in law and deserves to be quashed. Taxability of enhanced compensation u/s 45(5) - year of assessment - HELD THAT:- CIT(A) was perfectly justified in deleting the impugned addition. CIT(A) recorded the finding that as per the given facts the enhanced co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Form No. 36, the order appealed against was communicated on 10-12-2019 and, therefore, the last date to file appeal was 08-02-2020; but the appeal has been filed on 25-02-2020 and thus, the appeal is late by 17 days. 2. The initiation of the proceedings under section 147 of the Income Tax Act, 1961 (hereafter the Act) by the Id. Income Tax Officer, ward 44(4), New Delhi [hereafter the ITO, ward 44(4)], being without satisfying and complying with the pre-requisite mandatory conditions mandated by section 147, 148 and 151 of the Act, which are sine qua non for assumption of valid jurisdiction to initiate the proceedings under section 147 of the Act and without jurisdiction, is bad in law, null and void ab- initio and deserves to be annulled. (1) The purported 'reasons to believe' are based on the allegation that the Assessee did not file her return of income, whereas, as a matter of fact the return of income was filed by the Assessee. (2) The Id. ITO, ward 44(4) had no reason to believe' to initiate the proceedings under section 147 of the Act, the proceedings were initiated on highly misconceived grounds, in the nature of pretence and without any just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi ( AO ) who continued the assessment proceedings. Statutory notice(s) were issued/served upon the assessee. Requisite details furnished were examined on test check basis. During assessment proceedings the assessee was asked to furnish explanation about the receipt of above said cheque dated 14.09.2009 and the assessee filed reply dated 14.11.2017 reproduced in para 4 of Ld. AO s order who summarised the reply of the assessee in para 5 of the order. However, the reply was not found satisfactory and final show cause notice dated 15.11.2017 was issued asking the assessee to explain why her income be not treated under section 45(5)(b) of the Act and added to her income. Assessee filed written reply dated 04.12.2017 which the Ld. AO treated as repetition of earlier submission. According to the Ld. AO, the amount of Rs. 3,21,75,000/- received by the assessee is enhanced compensation taxable as capital gain under section 45(5)(b) of the Act and added the same to her income. Accordingly, he completed the assessment on total income of Rs. 3,22,92,650/- on 07.12.2017 under section 143(3) of the Act. 5. The assessee appealed before the Ld. CIT(A) who dismissed the appeal on the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received Rs. 3,21,75,000/- during the relevant assessment year i.e. AY 2010-11. The AO invoked the provisions of section 45(5)(b) and accordingly treated the entire amount as capital gains after treating the cost of acquisition and cost of improvement as NIL (Explanation (i) to section 45(5)(b)). The appellant has also raised an argument that even if the AO's contention was to be accepted, the capital gains should be charged in the previous in which such amount is received by the assessee. It has also been mentioned that no such liability has been brought out in the hands of her husband Sh. Sukhbir Singh who was also a co-recipient/seller of the residential plot. As per the given facts the enhanced compensation by way of the 550 square meter plot was received on 12.06.2007 which implies assessment year 2008-09 and not AY 2010-11. Thus, the capital gains to be taxed u/s 45(5)(b) should have been brought to tax in the assessment year 2008-09 as per law and also as held by the Hon'ble Supreme Court in case of CIT vs. Ghanshyam (HUF), 2009. 4.7 As regards, the second transaction ie. sale of the 550 square meter plot to Sh. Sanjay Dhawan on 29.10.2009, it is noted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank, Punjab National Bank and also carried out local enquiries though the ITI and then ascertained that the Appellant, alongwith her husband received payments for sale of property to one Sh. Sanjay Dhawan. One such payment was received by Ch no 427071 dated 14.09.2009 drawn at Citi Bank, issued by Concorde Real Estate Pvt. Ltd. which formed the basis of 148 notice and thereafter the AO followed due procedure and made the assessment accordingly. As regards the objection that the AO did not refer to the ITR filed by the A, while this fact cannot be totally negated, but the fact that the AO has clearly stated while recording the reasons, that no ITR has been filed as per information available on record. Even if the AO had referred to the ITR and its computation, it is amply clear that firstly, no such income had been shown and the computation filed raised more questions than answers i.e. details of investment in new property, transfer expenses etc. Hence, this ground is dismissed. 9.2 We have heard the submission of the parties and perused the records. According to the Ld. CIT(A) apart from the receipt of information from the Investigation Wing, the Ld. AO made independent local ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore us. The Co-ordinate Bench of Delhi Tribunal relied upon the decision (supra) of Hon ble Gujarat High Court in its order in Braham Prakash Lakra vs. ITO in ITA No. 7650/Del/2018 decided on 19.11.2019. Reference may also be made to the decision of Hon ble Delhi High Court in CIT vs. Indo Arab Air Services (2016) 283 CTR 92 (Del) wherein the Hon ble Court observed that while law does not require AO to form definite opinion by conducting any detailed investigation regarding escapement of income from assessment, it certainly did require to form prima facie opinion based on tangible material which provide nexus or link to having reason to believe that income escaped assessment. The Ld. AR placed reliance on the decisions of Jaipur Bench of the Tribunal in Narain Dutta Sharma vs. ITO (2018) 91 taxmann.com 463 (Jaipur-Trib) and Hon ble Gujarat High Court in Sagar Enterprises vs. ACIT (2002) 257 ITR 335(Guj) in support of his submissions. Following the decisions (supra) and applying their ratio to the facts of the assessee s case we sustain CO No. 2 of the assessee which is sufficient to hold that the notice under section 148 issued to the assessee is bad in law and deserves to be qua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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