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2023 (8) TMI 20 - AT - Income TaxValidity of Reopening of assessment u/s 147 - not in accordance with the provisions of section 151 - sale of agricultural land - notice u/s 148 issued after the expiry of 4 years - reasons to believe - as argued initial assessment was framed by the AO u/s 143(3) r.w.s. 153A, thus there should be failure on the part of the assessee to disclose fully and truly all the facts necessary for the assessment - HELD THAT:- As no tangible material is placed on record to support the action of the AO warranting reopening of the assessee’s case. AO did not rebut the appellant’s contention that nothing over and above the amount recorded in the registered sale deeds was paid by bringing necessary details. The unsubstantiated material found in the diary in possession of Shri Madan Mohan Gupta [third party] cannot be considered in the hands of the assessee as a conclusive evidence so as to reopen the assessment and make additions towards unexplained investment in purchase of land. Undisputedly, no other material suggesting payment of higher amounts was recovered during the search. It is trite law that burden is on the revenue to prove that the price had been under stated and no addition is possible without any inquiry. In this case, there is no cogent material to support the reopening of the assessment within the meaning of section 147 and that the appellant has actually paid higher amount than that recorded in the registered sale deed and the AO did not conduct any inquiry to bring some material to corroborate the notings found in the diary allegedly contained dealings in respect of certain properties purchased the assessee, except relying on the statement of Shri Madan Mohan Gupta. Therefore, following the earlier order of this Tribunal in the case of Shri Navrattan Kothari [2017 (12) TMI 860 - ITAT JAIPUR] wherein exactly same facts were involved and after considering the various judicial pronouncements on the issue held the issue of notice u/s 147 without jurisdiction, we hold that the reopening of the assessment after four years from the end of the assessment year under consideration and also with reference to the provisions of section 151 is not valid and the same is quashed. Decided in favour of assessee.
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