9911796707
TMI Blog2024 (4) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... not. Thus, it is evident, the Assessing Officer has reopened the assessment on wrongful assumption of facts. This, in our view, vitiates the initiation of proceedings under section 147 of the Act, which ultimately culminated in passing of the assessment order under section 147/144 of the Act. Thus proceedings initiated for reopening of assessment under section 147 of the Act are invalid. Decided in favour of assessee. - Shri Saktijit Dey, Vice-President And Shri M. Balaganesh, Accountant Member For the Assessee : Dr. Rakesh Gupta, Advocate, Sh. Somil Agarwal, Advocate For the Department : Sh. Anuj Garg, Sr. DR ORDER PER SAKTIJIT DEY, VICE-PRESIDENT This is an appeal by the assessee against order dated 15.10.2019 of learned Commissioner of Income Tax (Appeals), Ghaziabad, for the assessment year 2010-11. 2. In ground no. 1 and 2, the assessee has challenged the validity of the assessment order passed under section 147/144 of the Income-tax Act, 1961 (in short the Act ). Since, the issue raised in these two grounds are purely legal and jurisdictional issue going to the root of the matter, we proceed to decide them at the very outset. 2. Briefly the facts are, the assessee is a res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee had not filed return of income is a minor mistake, hence, will not vitiate the proceedings. 5. We have considered rival submissions and perused the materials on record. On going through the reasons recorded for reopening of assessment under section 147 of the Act, it is observed that the assessment has been reopened based on the fact that in the year under consideration the assessee has deposited cash amounting to Rs. 46,34,231/- in his savings bank. The Assessing Officer has further observed that the assessee has not furnished the Income Tax Return for assessment year 2010- 11. Whereas, facts on record clearly reveal that the assessee, indeed, has furnished his return of income under section 139(1) of the Act for the assessment year under dispute. Thus, it is established on record that while recording the reasons for reopening of assessment, the Assessing Officer has not thoroughly examined the materials available in his own record. 6. It is further observed that the return of income for the impugned assessment year was filed by the assessee before the very same Assessing Officer. Had he examined the assessment record properly certainly, he could have verified t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closed in page 13 of the paper book. In response to the said letter, the assessee's representative had vide letter dated 03/08/2015 had addressed to the Id. AO stating that assessee is a senior citizen aged about 83 years old and had filed his income tax returns from A.Y. 2011-12 onwards and had enclosed the copy of ITR acknowledgement thereon. This letter is enclosed in page 14 of the paper book. We find that the Id. AO had referred to the aforesaid two letters in the reasons recorded stating the same as the reason to conclude that assessee had not filed return of income for A.Y. 2011-12. This fact is evident from the reasons recorded reproduced supra. Factually, the notice dated 25/07/2015 was issued by the Id. AO for A.Y. 2010-11 calling for income tax return from the assessee. The reply letter dated 03/08/2015 from the assessee to the Id. AO clearly states that assessee is a senior citizen aged about 83 years and had filed his income tax returns from A.Y. 2011-12 onwards. The Id. AO goes by the incorrect 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 file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn of income was only processed under Section 143(1) of the Act. In view of the above, provisions of clause (b) of explanation 2 to section 147 are applicable to facts of this case and the assessment year under consideration is deemed to be a case where income chargeable to tax has escaped assessment . 5. The fact is the return of income for A.Y. 2012-13 filed by petitioner on 24th September, 2012 has been assessed under Section 143(3) of the Act and the Assessment Order dated 31st March, 2015 has been passed. Therefore, the Assessing Officer has proceeded on erroneous factual basis that the return of income was only processed under Section 143(1) of the Act. That displays total non application of mind. In fact, petitioner's allegations that Respondent No.1 has sought to re-open the assessment on incorrect factual position that the return of income was only processed under Section 143(1) of the Act has not even been denied in the affidavit in reply which is filed by the same Assessing Officer. In paragraph no.2 of the affidavit in reply which is in response to paragraph no.1 and 2 of the Purti Parab 3/4 420-WP-3224-2019.doc petition, Respondent No.1 simply says that these ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o occasion to consider the similar issue wherein it was observed as under:- 5.2. As far as the other aspect is concerned, in our view, since the proof put in place by the petitioner-assessee with regard to the acknowledgment of return filed for the assessment year 2011-12 has not been disputed by the Revenue, as noticed above, the challenge to the impugned notice and the impugned order will have to be sustained. 61 Therefore, for the foregoing reasons, we are inclined to quash the impugned notice dated March 27, 2018 as also the impugned order dated September 28, 2018. It is ordered accordingly. 3.4. Similar view was taken by the Hon'ble Gujarat High Court in the case of Mumtaz Haji Mohamad Menon vs ITO reported in 408 ITR 268 wherein it was held as under:- In this context, we have noted that the reasons proceeded on two fundamental grounds. One, that the property in question was sold for a sum of Rs. 1,18,95,000; and two, that the assessee had not filed the return and that therefore his 1/3rd share out of the sale proceeds was not offered to tax. Both these factual grounds are totally incorrect as is now virtually admitted by the Revenue. It is undisputed that the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also left open since the re-assessment has been quashed. 4. In the result, appeal of the Revenue is dismissed and Cross objection of the assessee is dismissed as infructuous. 9. Respectfully following the same, we have no hesitation to quash the reassessment by holding that assumption of jurisdiction u/s 147 of the Act in the instant case is based on incorrect facts recorded thereon. Accordingly, ground Nos. 1 and 2 raised by the assessee on the legal issue are allowed. Since, relief is granted on the legal issues by quashing the reassessment, adjudication of other grounds raised by the assessee on merits would become academic in nature. No opinion is rendered thereon and they are left open. 8. In view of the aforesaid, we have no hesitation in holding that the proceedings initiated for reopening of assessment under section 147 of the Act are invalid. Consequently, the assessment order passed in pursuance thereof has to be declared as invalid. Accordingly, we do so by quashing assessment order. The impugned order of learned first appellate authority is hereby set aside. 9. Since, we have decided the legal issue raised in ground nos. 1 2 in favour of the assessee, the grounds on m ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
