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TMI Blog2024 (6) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... : Shri Mehul Shah, CA For the Respondent : Shri Vinod Kumar, Sr-DR ORDER PER DR. A. L. SAINI, ACCOUNTANT MEMBER: Captioned appeal filed by the assessee, pertaining to assessment year 2012-13, is directed against the order passed by the National Faceless Appeal Centre, Delhi, [ NFAC/Ld.CIT(A) for short] dated 26.07.2023, which in turn arises out of an assessment order passed by the Assessing Officer under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (in short the Act ), dated 17.12.2019. 2. The grounds of appeal raised by assessee are as follows: 1. On the facts and the circumstances of the case as well on the subject, the learned CIT(A) has erred in confirming the action of Assessing Officer in reopening assessment u/s 147 of the Act by issuing notice u/s 148 of the IT Act 1961. 2. On the facts and the circumstances of the case and as well in law on the subject, the learned CIT(A) has erred in confirming the action of Assessing Officer in passing the assessment order u/s 147 r.w.s. 143(3) as the same is bad in law and liable to be quashed and the same is in violation to sec. 142(3) as assessee was not given the copy of the material available with the department on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch comes to Rs. 65,40,750/-. As such the differential amount of Rs. 65,40,750/- was paid by the assessee out of her books of accounts and the same is escaped from assessment. After recording reasons for reopening of the case and obtaining prior approval by the Competent Authority, the case was reopened under section 147 of the Act. The notice u/s 148 was issued on 26.03.2019 and duly served upon the assessee. In response to notice u/s 148 of the Act, the assessee has filed the return of income for the year under consideration on 01.04.2019, declaring total income at Rs. 6,46,870/-. Subsequently reasons recorded for reopening of the case was provided to the assessee, vide letter dated 04.04.2019. The notice u/s 143(2) was issued on 14.12.2019. The assessee, vide letter dated 10.04.2019, has filed the objections against the reopening of the case under u/s 148 of the Act. Objections raised by the assessee were duly disposed off by passing speaking order on 16.05.2019 and the same was duly served upon the assessee. 5. On perusal of the ITS data of the assessee for the year under consideration, it was noticed by Assessing Officer that during the year under consideration, the assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, the share of the assessee @ 12.5% in the said property worked out to Rs. 65,40,750/- [12.5% of Rs. 5,23,26,000/-] which remained unexplained in the hands of the assessee and should be treated as unexplained investment u/s 69 of the Act. 7. Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before NFAC/Ld. CIT(A), who has confirmed the addition made by Assessing Officer. The ld CIT(A) noted that in the assessee`s case, the assessee has not filed any explanation of the source for the investment detected by the department. Assessee failed to reply to the show-cause notice issued by the Assessing Officer, except demanding for the copy of the satakhat, though the registering authority valued the property at Rs. 6.32 crores for stamp duty purpose for registration. In view of the above, the ld CIT(A) confirmed the addition of Rs. 65,40,750/- made under section 69 of the Income Tax Act. 8. Aggrieved by the order of Ld. CIT(A), the assessee is in appeal before us. 9. Learned Counsel for the assessee, argued that reasons recorded in re- assessment is bad-in-law, as there is no tangible material coming from the record for assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 21.10.2011 [copy of the registered purchase deed is examined]. During the enquiries, in spite of issue of summons to the sellers, nobody turned out or filed any details / explanation in this regard. As per the satakhat, Shri Shankar Chaganlal Shah has made payment of Rs. 1,01,00,.000/- as token amount for the land and final consideration was Rs. 6,28,26,000/-, however, the difference of Rs. 5,23,26,000/- was not recorded in the books of accounts. the assessee was a 12.5% shareholder in the property referred above and Rs. 65,40,750/- was unexplained investment of the assessee in the property. 3. The information available with this office is perused. On perusal of the ITD, it is noticed that the assessee has filed here return of income for A.Y 2012-13 declaring total income at Rs. 6,46,870/- and agricultural income of Rs. 2,14,440/- on 30.09.2012 in the ITR 3. On perusal of the ITR 3 filed by the assessee and considering the returned income for the A.Y 2012-13, the huge investment during the year could not be verified by this office/ the genuineness of the investment could not be ascertained. Hence, the investment to the tune of Rs. 65,40,750/- [as discussed above which was worke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2012-13. Therefore, reasons recorded by the assessing officer, for the impugned assessment year 2012-13, based on the Satakhat, which was executed on 16.08.2010, is not sustainable in law. For that reliance can be placed on the judgment of the Hon ble Jurisdictional High Court, in the case of Chintan Jadavbhai Patel Vs. Income-tax Officer [2017] 79 taxmann.com 302 (Guj)[2017] wherein it was held as follows: 5. Heard the learned counsel for the respective parties at length. We have perused and considered the reasons recorded to reopen the assessment for AY 2009-10. We have also perused and considered the statement of Shri Rajesh Vaghani, on the basis of which, the AO has formed an opinion that in the case of assessee the income chargeable to tax for AY 2009-10 has escaped assessment. 5.1 From the reasons recorded to reopen the assessment for AY 2009-10, it appears that on the basis of one sauda chittihi dated 12.03.2008, seized during the search of the premises of one Shri Rajesh Vaghani, to which, one Shri Sharad Kakadia was the signatory, the assessee has sold the land having area of 14397.328 sq yard for total sale consideration of Rs. 8,92,77,830/- (Rs. 4601 per yard multip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain of Rs. 26,12,040/- on sale of the aforesaid land in question, which was duly reflected in books of account and income tax return for AY 2008-09. Therefore, the transfer had taken place in AY 2008-09. Thus, the transfer of land has been taken place on 27.03.2008 when the sale deed has been executed. Therefore, it can be said that income has arisen in the AY 2008-09 and therefore, if at all any income has escaped assessment, the same can be said to be in AY 2008-09. By impugned notice, assessment for AY 2009-10 is sought to be reopened on the ground that income chargeable to tax has escaped assessment in 2009-10. When, it was pointed out to AO that the transfer had taken place on 27.03.2008 and therefore, it can be said that the income has arisen in the year 2008-09 and therefore, there cannot be any escapement of income in the year 2009-10, while disposing of the objection raised by the assessee against the reasons recorded, the AO has overruled the said objection by observing that as the document has been executed only on 11.07.2008 and therefore, the transaction pertains to AY 2009-10 and therefore, the date of execution of the document as 11.07.2008 relevant to AY 2009-10 an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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