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2024 (2) TMI 843 - HC - Income TaxValidity of reopening of assessment u/s 147/148A - tangible matter to issue notice under Section 148A or Section 148 - reasons to believe - unaccounted income, which included on-money (cash) receipts on sale of certain flats/units by different entities - only basis on which an allegation is made that Petitioner has paid cash is a statement of somebody from Lucina that it received cash from Petitioner HELD THAT:- There is nothing on record to indicate that Petitioner has paid the entire amount. Further, in the order, it is stated that the income of source for purchase of immovable property remained unexplained and therefore, it would fall within the meaning of “assets” as per Explanation-1 of Section 149 of the Act. There is no explanation as to when it is the AO’s case that the market value of the flat itself was only Rs. 51,55,000/-, how could the property be valued at Rs. 64,94,200/-. This has been done, in our view, simply to get over the fetters placed u/s 149(1)(b) of the Act. AO has not explained any of these factors. Even in the assessment order, it is stated “therefore, during the assessment proceedings, the source of payments alongwith on-money payment towards the purchase of flat have been asked to assessee. However, assessee has failed to provide the justified reply in regard to the complete source of payments, which have been made during the Assessment Year under consideration for purchase of flat.” During the assessment year, only a payment of Rs. 10,00,000/- has been paid and there is nothing that the AO has produced to show that any amount in excess of Rs. 50,00,000/- has been paid during the assessment year. The entire basis is the letter received from Lucina. In our view, that alone is not enough, particularly when assessee has denied having paid any cash to Lucina. The onus is on the Revenue to show evidence that assessee has in fact paid cash and purchased immovable property of Rs. 64,94,200/-. Simply relying on a letter allegedly from Lucina is not enough. In our view, there is no tangible matter to issue notice under Section 148A or Section 148 of the Act. We also note from the assessment order that in any case this amount of Rs. 20,91,200/- has been offered by Lucina to tax before the Settlement Commission. If that is the case, we wonder how can the amount be taxed again in the hands of Petitioner. Thus the impugned order passed u/s 148A(d) has to be quashed and set aside. Decided in favour of assessee.
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