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TMI Blog2024 (6) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... is not in dispute that the notice u/s 148 has been issued by speed post in the address of the property which has already been sold. Hence the notice u/s 148 of the Act could not be served at all on the assessee. Though the ld AO had stated that the said notice was duly served on the assessee, the same is factually incorrect. In view of the fact that the address mentioned in the notice is the very same property address which had already been sold even according to the ld AO. But the crucial fact remain is that the land never belonged to the firm and it was owned and belonged to the partners. In fact, the notice issued u/s 148 of the Act has been returned unserved. The remark very clearly shows that the assessee firm existed in the said addre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntire facts recorded by the AO and the reasons recorded for reopening the assessment and the assessment order are factually incorrect. Since, the reopening has been made on incorrect assumption of facts by the ld. AO, we have no hesitation in quashing the entire re-assessment proceedings. Decided in favour of assessee. - Shri Amit Shukla, Judicial Member And Shri M. Balaganesh, Accountant Member For the Assessee : Shri C. S. Anand, Adv For the Revenue : Shri Vivek Kumar Upadhyay, Sr. DR ORDER PER M. BALAGANESH, A. M.: 1. The appeal in ITA No.2314/Del/2023 for AY 2011-12, arises out of the order of the National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as ld. CIT(A) , in short] in Appeal No. ITBA/NFAC/S/250/2023-24/1053 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot issued and served on the appellant. 3. The assessee is a partnership firm and had not filed its return of income for AY 2011-12. The assessee firm was formed on 26.11.2009 with five partners. The firm was formed for the purpose of manufacturing and trading of stone grits, corsand, etc. The firm never got permission/ consent to operate from the UP Pollution Control Board and therefore operations of the firm never commenced. Serious disputes arose between the partners and the partners sold their individual properties which was purchased by them in earlier years. As per the sale deed, 7212 sq mtr of land owned by the partners in their individual capacity was sold as land with machinery of stone crusher and building situated at Mahmoodpur Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sher Vill. Mahmoodpur Nagli Must PO. Raipur Paragana, Faizabad had sold immovable property during F.Y. 2010-11 of Rs. 60,00,000/put as per section 50C the value was of Rs. 91,74,000/-. 3. Analysis of Information collected/received: To verify the transaction, a query letter dated 06.03.2018 for dated 14.03.2018 has been issued and served upon the assessee by registered post but no reply has been received. 4. Enquiries made by the AO as sequel to information collected/received: As the assessee has no Permanent Account No. and no details regarding filing of income Tax Return, a PAN query has been made through ITD Application through General Query criteria but no PAN has been traced out. 5. Finding of the AO: From the information in possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeded to treat the sale consideration of land and building and machinery at ₹ 91,74,000/- as short-term capital gain in the hands of the assessee firm. 5. Before the ld CIT(A), the assessee furnished documents such as sale deed of land, bank account of individual partners showing receipt of sale consideration in their hands. These documents were filed as additional evidences before the ld CIT(A) by the assessee. The ld CIT(A) observed that though the assessee has filed additional evidence as stated above, no petition has been filed in terms of Rule 46A(1) of the Income Tax Rules and accordingly ld CIT(A) proceeded not to admit these additional evidence and upheld the action of the ld AO ultimately. 6. From the perusal of the reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew individuals who are partners in the firm. This fact was duly brought on record by the assessee before the ld AO himself vide reply dated 10.12.2018 in response to show cause notice dated 04.12.2018, which have been completely ignored by the ld AO. In fact, from the perusal of the order of the ld CIT(A) in pages 7 to 9 , the details of name of the persons who owned the property, together with the area owned by him, date of purchase of the property by that individual, value of purchase of property by that individual and the details of sale made by those individuals to third-party were duly tabulated by the ld CIT(A). All these facts very clearly goes to prove that the property was never owned by the firm and that it was owned only by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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