9911796707
TMI Blog2022 (10) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... nding over possession pursuant to agreement to sell. It is well settled that the Assessing Officer must have reason to believe that income chargeable to tax has escaped assessment. In the present case, there is no escapement of any income chargeable to tax due to failure on part of the assessee to disclose truly and fully all material facts as all the relevant records were produced on record. In absence of any escapement of income chargeable to tax, it is not open for the department to reopen the case of the present assessee. Thus impugned notices u/s148 are not tenable in law and are accordingly quashed and set aside and consequently the orders disposing of the objections raised by the petitioners against the notice for reopening are also quashed and set aside. Assessee appeal allowed. - HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE BHARGAV D. KARIA MR TUSHAR HEMANI, SENIOR ADVOCATE WITH MS VAIBHAVI K PARIKH(3238) FOR THE PETITIONER(S) NO. 1 MR NIKUNT RAVAL FOR MRS KALPANAK RAVAL(1046) FOR THE RESPONDENT(S) NO. 1 NOTICE SERVED FOR THE RESPONDENT(S) NO. 2 JUDGMENT ( PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA ) 1. Heard learned Senior Mr. Tushar Hemani assisted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l to information collected/ received: On analyzing of the information based on the documentary evidences it is noticed that the assessee entered into agreement to sell four immovable properties to proposed purchaser Shri Kiritbhal Vrajlal Makadiya. However the assessee after receiving initial amount of Rs. 5,53,53,053/- in cash ran away from the deal cheated the purchasers. The assessee did not accounted huge amount of Rs. 5,53,53,053/- nor did he show the same in his ROI for the year. 5 6 Findings of the AO:/Basis of forming reason to believe and details of escapement of Income: In view of the above, transaction amounting to Rs. 5,53,53,053/-lead to definite conclusion that of escapement of income, therefore, there is income escaping assessment as per explanation 2(a) of the section 147 of the Incometax Act, 1981. In view of the above facts and material, I have reason to believe that the income chargeable to tax to the extent of Rs. 5,53,53,053/- accruing to the credit of the assessee has escaped for the AY 2014-15. Therefore, this is a fit case for invoking the provisions of section 147 of the Income-tax Act, 1961. 7. Seventh paragraph will include escapement of income chargeable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .5,53,53,053/- to the petitioner and other co-owners. The immovable properties in question have not been sold by the petitioner and other co-owners to Shri Kiritkumar V. Makadiya till date by execution of the sale deed. Even as on date, the immovable properties in question are registered in the name of the petitioner and the other co-owners. Even possession of properties in question is with the petitioner and other co-owners. 8.2) It was submitted that as per section 2(47) of the Act, transfer of an immovable property takes place upon execution of sale deed or handing over possession pursuant to ATS. It was submitted that in the present case, neither the sale deed has been executed nor possession has been given pursuant to ATS. Thus, no transfer has taken place on account of the transaction referred to in reasons for reopening and even if any advance is claimed to have been paid to petitioner, then also the same cannot be brought to tax since there is no transfer of any capital asset. 8.3) It was submitted that the reasons recorded for reopening are absolutely vague, scanty and non-specific. No escapement of income chargeable to tax emanates from reasons for reopening and hence, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis by the Assessing officer for reopening the case of an assessee. Mere endorsement of the view taken by the concerned Assessing Officer would not meet the requirement of the provisions of section 151 of the Act. It was submitted that in the present case, reopening is beyond a period of four years from the end of the relevant assessment year and hence, sanction of Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner is to be mandatorily obtained. However, there is no application of mind at the end of the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner while sanctioning the issuance of notice under section 148 of the Act and rather, reopening has been sanctioned merely in a mechanical manner which is not permissible in the eye of law. 8.7) It was submitted the respondent has acted illegally and without jurisdiction in issuing the impugned notice. Statutory notice under section 148 can be issued if and only if an Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment. It implies that an Assessing Officer himself must be satisfied that some income charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the notice was erroneous at the time of assessment proceedings. 9.3) It was submitted that the approval of the specified authority has been obtained before proceeding with the assessment and therefore, reopening of the assessment by the Assessing Officer is after following the due procedure and application of mind, which requires no interference by this Court. 10. Considering the submissions made by the learned advocates on both the sides, it appears that the impugned notice under section 148 of the Act is issued only on the ground that the assessee did not account an amount of Rs.5,53,53,053/- nor did he show the same in his ROI for the year and therefore, there is escapement of income chargeable to tax. 11. It appears that the case of the petitioner has been reopened on the basis of Tax Evasion Petition filed by one Shri Kirtikumar V. Makadiya. Shri Kirtikumar V. Makadiya had made a bogus sauda chitthi dated 12.03.2014 against the purchase of an immovable property situated at Surat wherein he has claimed to have paid an amount of Rs. 5,53,53,053/- as advance to Asefa Zoher Malampattiwala (petitioner of SCA No.4648/2022), Naseem Zuzar Haji (petitioner of SCA No.5853/2022) ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
