9911796707
TMI Blog2025 (4) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. 2. Brief facts of the case are that, the assessee is a non-resident and has filed his original return of income for assessment year 2015-2016 on 22.12.2015 declaring total income of Rs. 17,230/-. As per the 50C information disseminated by the I&CI-Wing, it is seen that the assessee had sold an immovable property vide sale deed dated 11.03.2014 for a total consideration of Rs. 58,48,000/- and the SRO value was at Rs. 58,48,000/-. The Assessing Officer has recorded reasons and after taking approval from the prescribed component authorities, notice under section 148 of the Act dated 28.03.2021 was issued and served on the assessee. The assessee vide his reply dated 06.05.2021 submitted that he is a non-resident individual and has filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee is now in appeal before the Tribunal. 5. CA KC Devdas, Learned Counsel for the Assessee, referring to the petition filed by assessee for filing additional grounds of appeal submitted that, the assessee has taken additional grounds challenging validity of initiation of reopening proceeding under section 148 of the Act in light of reasons recorded by the Assessing Officer and such ground is purely a legal ground which may be taken at any point of time including proceedings before the Tribunal and, therefore, in view of decision of Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. vs., CIT [1998] 229 ITR 383 (SC), the additional grounds of appeal filed by the assessee may be admitted. 6. Shri B. Bala Krishna, learned CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n wrong assumption of facts that, the assessee an NRI, had not filed his return of income for the year under consideration, but, the fact remains that, the assessee has filed his return of income for the year under consideration disclosing relevant capital gains arising out of transfer of immovable property. Therefore, he submitted that, there is no valid reasons for reopening of the assessment and consequently issue of notice under section 148 of the Act dated 29.03.2021 and consequential assessment order passed by the Assessing Officer is illegal and liable to be quashed. In this regard, he relied upon decision of Hon'ble High court of Gujarat in the case of Vijay Harishchandra Patel vs. ITO [2018] 400 ITR 167 (Guj.) and also decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reasons recorded for reopening of the assessment, the Assessing Officer proceeded to record reasons for initiation of proceedings under section 147 of the Act on the ground that, the assessee is a non-filer and had sold immovable property, but the capital gain derived on the same is not offered to tax. From the reasons recorded by the Assessing Officer for reopening of the assessment and the facts brought on record by the Assessing Officer, we find that the very basis for reopening of the assessment is that, the assessee has not filed any return of income disclosing the capital gains arising from sale of immovable property, whereas, the assessee has submitted before the Assessing Officer that, he has fired his return of income on 22.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice under section 148 of the Act, the petitioner had, in fact, filed return on income disclosing the sale of such immovable property, and the Assessing Officer after duly applying his mind to the issue had accepted the return of income. Considering the fact that a return of income had been filed disclosing sale of the immovable property, the very foundation on which the reopening is based in the reasons recorded by the Assessing Officer for reopening the assessment, collapses. Therefore, on the reasons recorded, the Assessing Officer could not have formed the belief that income had escaped assessment, inasmuch as such belief had been formed on a factually incorrect premise. It is settled legal position, that the reopening of the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case, going by the facts available on record, it is undisputedly clear that, the Assessing Officer based his reopening on the sole premise that, assessee has not filed his return of income and disclosed relevant capital gain arising out of transfer of immovable property, whereas, the fact remains that, the assessee had already filed his return of income and disclosed the relevant capital gains arising out of transfer of property. Therefore, we are of the considered view that, there is no application of mind by the Assessing Officer to the relevant material before arriving at a conclusion that, there is escapement of income as per the provisions of section 147 of the Act. Therefore we are of the considered view that, the reopening of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
