9911796707
TMI Blog2025 (3) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... s as under. 3. Facts of the case, in brief, are that the assessee is a Non-Resident Indian and working as Sr. Foreman (Civil Contracts) in Facilities Management Department with M/s. Qatar Energy and filed letter dated 25.08.2022 from his employer. A search and seizure operation under section 132 of the Act was conducted on 22.10.2019 in the case of M/s. Skill Promoters Pvt Ltd, City Centre Mall, 6th Floor, Road No.1, Hyderabad, which is engaged in the business of Construction (Builders). The said company has entered into a Development Agreement with landlords and developed a commercial mall named "Sarath City Capital Mall" at Kondapur, Hyderabad. During the course of search and seizure proceedings, incriminating information(s)/ document(s)/loose sheets/documents pertaining to the assessee viz., Shri Raziulla Syed were found and as per which certain data in the form of excel sheets with respect to sale of commercial space were seized in pen drive. As the information contained in the seized document relates to the assessee, he along with one other had purchased a commercial property for a sale consideration of Rs. 2,56,00,000/- during the year under consideration. Out of the total s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee had submitted copy of sale deed dated 15.06.2019 for a consideration of Rs. 70 lakhs duly mentioning his Axis Bank A/c.xxxxx3124, but, not filed the bank statement. And to prove his Non-Resident status, the assessee has furnished his passport copy, resident permit and a letter dated 25.08.2022 from his employer M/s. Qatar Energy to the effect that he is working as Sr. Foreman (Civil Contracts) in Facilities Management Department as on 25.08.2022 with M/s. Qatar Energy. 3.3. Upon verification of the documents, the Assessing Officer noted that assessee has paid cash over and above the registered value to M/s. Skill Promoters Pvt. Ltd., towards purchase of the commercial property i.e, part of Unit No.1F 031-036 with a built-up area of 2000 sft on the first floor with undivided share of land of 40 sq. yards in the shopping mall and multiplex known as "Sarath City Capital Mall, Kondapur". The Assessing Officer noted that out of the total sale consideration of Rs. 1,28,00,000/-, the assessee has paid an amount of Rs. 1,25,75,000/- as on the date of search, out of which, an amount of Rs. 70 lakhs was paid in cheque and Rs. 55,75,000/- was paid in cash and balance sum of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice issued by the Assessing Officer under old tax regime u/sec.148A(b) dated 23.04.2021 is deemed to be the show cause notice and the subsequent sec.148 notice dated 30.07.2022 is in accordance with law and the jurisdiction of the Assessing Officer in issuing notice u/sec.148 is as per the provisions of the Income Tax Act, 1961. The DRP further rejected the ground of the assessee that sec.69A is not applicable to NRI and confirmed the additions made by the Assessing Officer in absence of any documentary evidences/bank statements vide directions dated 29.02.2024 passed u/sec.144C(5) of the Act. 3.6. Pursuant to the above directions of the DRP dated 29.02.2024, the Assessing Officer passed his final assessment order dated 02.03.2024 u/sec.147 r.w.s.144C(13) of the Act by making additions on account of long term capital gains on sale of equity shares of Rs. 53,200/-; unexplained investment in purchase of equity shares of Rs. 1,09,462/- and unexplained investment u/sec.69A in purchase of property of Rs. 55,75,000/- and determined the total income of the assessee at Rs. 57,37,887/- as against the returned income of Rs. 225 by the assessee. 4. Aggrieved by the final assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c.148 which is mandatory as per the law existing on that prevailing day. He accordingly submitted that since the root of initiation of proceedings u/sec.148 is invalid as there is no prior approval from the specified authority u/sec.151(ii) of the Act. Consequently, the final assessment order dated 02.03.2024 will become invalid. In support of this contention, the Learned Counsel for the Assessee relied on the decision of ITAT Mumbai Bench in the cases of ACIT vs Manish Financial and Manish Jagdish Joshi vs. CIT. 5.2. Learned Counsel for the Assessee, during the course of hearing raised another contention that two assessment proceedings cannot be carried parallelly for the same assessment year on account of issuing notices u/sec.148 dated 23.04.2021 and on 30.07.2022 by relying on the decision of Bharat Kumar Jayantibhai Patel vs. ACIT and decision of ITAT, Hyderabad Bench, Hyderabad in the case of ITO vs. Shri Mirza Rafiullah. 5.3. Learned Counsel for the Assessee further submitted that the Assessing Officer was erred in initiating the proceedings u/sec.147 of the Act instead of 153C. He submitted that where there is a search u/sec.132 of the Act and found any incriminating mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mant Manukhal Pandya [2018] 100 taxmann.com 280. He submitted that the impugned addition of Rs. 55,75,000/- was made by the Assessing Officer on the basis of loose sheets which are un-authenticated, unsigned and unreliable material and they are 'dumb' documents. He submitted that the purchase consideration in respect of the impugned property is of Rs. 70 lakhs which is final and no cash payment was made by the assessee. In support of this contention, the Learned Counsel for the Assessee relied on the decision of ITAT, Hyderabad Bench in the case of Zainab Investments Private Limited. 5.5. The Learned Counsel for the Assessee drew the attention of the Bench with respect to making addition of Rs. 53,200/- on account of long term capital gains on sale of equity shares and submitted that the Assessing Officer had not provided cost of acquisition of shares while calculating the long term capital gains. He submitted that the purchase value of the shares was at Rs. 51,379.32 and the Assessing Officer without considering the purchase value of the shares, proposed the impugned addition on selling value of shares of Rs. 52,718.54ps and the long term capital gains in the case of assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act by issuance of notice u/sec.148 of the Act dated 23.04.2021 and by virtue of the order of Hon'ble Supreme Court in the case of Union of India vs. Ashish Agarwal reported in 2022- SC-Online-SC-543, re-assessment notice issued has been treated as notice issued u/sec.148A of the Act and after due procedure final notice u/sec.148 of the Act dated 30.07.2022 was issued. The assessee contends that any re-assessment notice issued u/sec.148 of the Act after 1st April, 2021 falls under New Scheme of re-assessment proceedings and as per sec.151, the approval of the Specified Authority as specified therein should be obtained. According to the assessee, under New Scheme of re-assessment proceedings, the Specified Authority u/sec. 151(ii) of the Act, in case an assessment is reopened after a period of three years from the end of the relevant assessment year, the Principal Chief Commissioner or Principal Director General are the Specified Authority(ies). Since in the present case, the Assessing Officer has issued notice u/sec.148 of the Act dated 30.07.2022 after approval from Principal Commissioner of Income Tax-1, Hyderabad, the said approval is not in accordance with provision of sec.151( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2022 is not in accordance with the provisions of sec.151(ii) of the Act and consequently, the re-assessment order passed by the Assessing Officer u/sec.147 r.w.s.144C(13) of the Act is illegal, void ab initio and liable to be quashed. 7.2. The assessee has relied upon the decision of ITAT, Mumbai in the case of ACIT vs. Manish Financial ITA.No.5055/Mum./2024 wherein the Tribunal after considering the relevant provisions of law and also by following decision of Hon'ble Supreme Court in the case of Union of India vs., Rajeev Bansal (supra) held as under : "In assessee's case from the perusal of para 3 of the notice issued under section 148 for AY 2016-17 we notice that the same is issued with the prior approval of Pr.CIT-19 Mumbai accorded on 29.07.2022 vide reference No.Pr.CIT-19/148/2022-23 and this fact is not contravened by the ld DR. For AY 2016-17, the period of three years have elapsed as of 31.03.2020 and the notice is issued beyond three years on 30.07.2022. Therefore as per the decision of the Hon'ble Supreme Court, the approval should have been obtained under the amended provisions of section 151(ii) of the Act i.e. the approval should have been obtained from t ..... 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