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2017 (1) TMI 1148 - HC - Income TaxValidity of reopening of assessment - receipt of on money - whether as the information received by the Assessing Officer required to be investigated and for that reason, the reopening notice was validly issued? - Held that:- Admittedly the assessment order passed on 23rd December, 2009 was under Section 143(3) r/w 153A of the Act on the respondent assessee. This assessment was a result of the search on respondent assessee in March, 2008 inter alia in respect of suppression of sale consideration. In fact, the three buyers i.e. Mrs. Asha Katariya, Mr. Satish Parakh (Individual) and Mr. Satish Parekh (HUF) had all in their statements recorded on 10th March, 2008 u/s 131 had stated that they did not pay any consideration in excess of that recorded in the agreement. Therefore, this itself is evidence of the 'onmoney' in respect of the three flats was subject to enquiry leading to order dated 23rd December, 2009. Further, we find that the Assessing Officer has proceeded on the basis of the documents obtained during the course of the search on third parties were documents to which the presumption under Section 132(4A) of the Act would apply to the assessment of respondent assessee. This cannot be as the documents were recovered during a search made on third party and not on the respondent assessee. Therefore, such a presumption can be applied only in respect of assessment of third party on whom the search was made. It cannot be the basis to form a reasonable belief that income chargeable to tax has escaped assessment in case of respondent assessee. Thus, in the above view the finding of the Tribunal that the Assessing Officer had no reason to believe that income chargeable to tax has escaped assessment is a possible view in the facts of the present case. - Decided in favour of assessee
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