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TMI Blog2024 (8) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... uguese Civil Code. Section 5A does not deal with the division of assets. Hence, the question of stating that the original petitioner was governed by the provisions of Section 5A of the IT Act does not arise. In our view, therefore, the original petitioner could not be governed by the provisions of Section 5A of the IT Act. We find that the substantive rights of the original petitioner were governed by the provisions of the Portuguese Civil Code. The fact that the original petitioner is governed by the Portuguese Civil Code has been duly brought before the respondents. In our opinion, mere non-mention of the same in the return of income would not give rise to a situation where the tax on the sale of property beyond the share of the original petitioner could be taxed in her hands. The respondents do not appear to have disputed that the original petitioner was indeed governed by the provisions of the Portuguese Civil Code and this was already on record of the Revenue (Exhibit E/97). Moreover, the petitioner's husband had passed away way back in the year 1986 and the share of her husband had devolved from the date of his demise equally on his children. This position was also known ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons Resorts Pvt. Ltd., the actual payment made by M/s. Adwalpalkar Constructions Resorts Pvt. Ltd. to the petitioners was ₹3,59,50,000/-. According to the Assessing Officer, the petitioner has not disclosed the amount of ₹64,43,000/- (₹3,59,50,000/- - ₹2,95,07,000/-) in her ROI dated 31.03.2017. Thus, it is the case of the Revenue that the petitioner had failed to disclose fully and truly all material facts in her ROI dated 31.03.2017. 6. A notice under Section 148 was issued on 28.05.2019. Since there was no response from the petitioner to the above notice under Section 148 of the IT Act, the respondent issued notice under Section 142 (1) of the IT Act requesting the petitioner to furnish ITR in response to the notice under Section 148 of the IT Act. In compliance to the notice dated 28.05.2019, the petitioner filed ROI on 08.02.2021, almost after two years. 7. Thereafter, respondents issued notice under Section 143 (2) read with Section 147 of the IT Act dated 24.02.2021 giving reasons for reopening the assessment as under: The petitioner filed a return of income (ROI) dated 31.03.2017 declaring a total income of ₹17,57,684/-. The petitioner has disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India (2015) 375 ITR 308 (Bom.). (ii) Ankita A. Choksey V/s. ITO Ors. (2019) 411 ITR 207 (Bom.) (iii) Smt. Nirupa Udhav Pawar Anr. V/s. ACIT Ors. WP No.1145 of 2017 decided on 06.10.202. 10. On the other hand, Ms Susan Linhares learned counsel for the respondents argued in support of the impugned notices and proceedings while opposing the petition. It is submitted that from the material it is clear that the petitioner did not disclose the amount of in ₹64,43,000/- her ROI. Thus, the petitioner had failed to disclose truly and fully all material facts in her return of income. Further, it is submitted that the petitioner did not declare capital gain on the ground that the capital asset was agricultural land. However, no documentary evidence in support of the contention that the capital land was agricultural was furnished by the petitioner. The order rejecting the objection dated 16.07.2021 is passed as the petitioner did not make available the Sale Deed wherein she claims half share in the properties. 11. Heard learned Counsel for the parties. Before dealing with the submissions, we find it apposite to refer to the legal position laid down in the decisions placed by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d stand or fall based on the reasons recorded at the time of issuing notice for reopening of assessment. This Court has held that the reasons are required to be read as recorded by the assessing officer and the same cannot be improved upon either by substitution, addition, or deletion. This Court held that the reasons recorded by the assessing officer cannot be supplemented by filing an affidavit or making any oral submission, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches the Court, on the strength of the affidavit or oral submissions. Thus, the legal position is quite clear that the validity of notice for reopening of an assessment is to be examined based on the reasons recorded at the time of issuing the notice and the impugned notice cannot be supported by any additional material which does not find a place in the reasons recorded while issuing the notice. 14. From the materials on record and the submissions made, the total sale consideration disclosed by the original petitioner in the return of income admitted by the Revenue in the recorded reasons at page 261 of the paperbook is ₹2,95,07,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the aforesaid jurisdictional error. So far as the reason cited by the respondents for rejecting the explanation, In the return of income, the original petitioner had not stated that she was governed by the provisions of Section 5A of the income Tax Act , it is the submission of the learned Counsel for the respondent that such reasoning is ex-facie incorrect and untenable in law. We find force in this submission. 17. Let us consider the submissions in the context of Section 5A of the IT Act which reads as under: 5A. Apportionment of income between spouses governed by Portuguese Civil Code. (1) Where the husband and wife are governed by the system of community of property (known under the Portuguese Civil Code of 1860 as COMMUNIAO DOS BENS ) in force in the State of Goa and in the Union territories of Dadra and Nagar Haveli and Daman and Diu, the income of the husband and of the wife under any head of income shall not be assessed as that of such community of property (whether treated as an association of persons or a body of individuals), but such income of the husband and of the wife under each head of income (other than under the head Salaries ) shall be apportioned equally betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy on record. In such a case if the respondents fail to take note of the document which was available for transmission to the respondents from the Sub-Registrar's office, in our view, the assumption of jurisdiction will have to be regarded as erroneous. In any case, we find that at the time of passing of the order dated 16.07.2021, the Sale Deeds (which were available) ought to have been taken into consideration. 20. For the reasons aforesaid, we are satisfied that in view of the aforesaid jurisdictional errors, the notice dated 28.05.2019 and the order dated 16.07.2021 deserve to be quashed and set aside. The petition is allowed in terms of prayer clause (a) which reads as: (a) This Hon'ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India calling for the records of the petitioner's case and after examining the legality and validity thereof quash and set aside the notice dated 28.05.2019 (Exhibit A) issued by respondents under Section 148 of the Act seeking to reopen the assessment for the assessment year 2015-16 and order rejecting object ..... X X X X Extracts X X X X X X X X Extracts X X X X
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