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2021 (5) TMI 953 - AT - Income TaxReopening of assessment u/s 147 - transaction of sale of immovable property for the specified consideration - as argued notice issued U/s 148 of the Act was without jurisdiction and bad in law - HELD THAT:- From perusal of the record, we noticed that in the present case, the A.O. had recorded the reasons for reopening of assessment by mentioning that “the assessee has not field its return of income. Later on, it was noticed that the assessee has sold a property of Jaipur to Smt. Meena Sharma during the F.Y. 2008-09 for sale consideration of ₹ 18,75,000/-, however of the Sub-Registrar had adopted final face value of such property at ₹ 16,37,653/- for the purpose of charging of stamp duty. But on verification of the department portal it was noticed that the assessee had not shown capital gain. We have a reason to believe that the income to the extent of ₹ 18,75,000/- has escaped assessment with in meaning u/s 147/- of the IT Act.” After having gone through the facts of the present case, we noticed that the A.O. had recorded the reasons for reopening of assessment in the case of assessee on wrong facts as according to records put forth before us, it is reflected that the assessee was regularly income tax assessee and filing here return of income as well as for the year under consideration also. As the assessee had filled her return of income and disclosed the said transaction and despite the material available on record which had not been taken in to consideration before recording the reasons by the A.O. which shows that the notice has been issued by the A.O. only on factually incorrect facts and on the presumption, assumption and suspicion and without any material on record. Therefore, we are of the view that the very basis of reopening of assessment is based on incomplete or wrong facts available on record as the said transaction of sale of the property has already been duly disclosed by the assessee in her return of income and the assessee had also filed her return of income. All these facts reflect non-application of mind by the A.O. while recording the reasons and it cannot be held that there is the nexus between the material available on record and formation of belief that the income has escaped assessment. where the very foundation for reopening the case is vitiated given that the assessee has filed her return of income disclosing the transaction of sale of immovable property for the specified consideration and offering the same to tax, therefore, there cannot be any reason to believe that income has escaped assessment for the very same transaction. The assumption or jurisdiction u/s 147 of the Act cannot be sustained and thus, the subsequent proceedings are also liable to be set-aside and is therefore, set aside - Decided in favour of assessee.
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