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2024 (3) TMI 35 - AT - Income TaxValidity of proceedings initiated u/s 147 - tangible material for ‘reason to believe’ that income has escaped assessment - primary reason to believe escapement of income is alleged non filing of return for AY 2010-11 by the assessee - HELD THAT:- As the purported ‘reasons to believe’ are based on the allegation that the assessee did not file her return of income, whereas, as a matter of fact the return of income was filed by the assessee. Evidence of filing e-return by the assessee on 29.10.2010 for AY 2010-11 and processing thereof on 21.02.2011 under section 143(1) of the Act appears at page 1 and 1A of the Paper Book. In proforma for obtaining approval of Ld. PCIT against column 8(a) also the information given by the Ld. AO is in negative to the question ‘whether any voluntary return had already been filed’. It is, therefore, obvious that the primary reason to believe escapement of income is alleged non filing of return for AY 2010-11 by the assessee which is contrary to the facts on record. The factum of non-consideration of ITR filed by the assessee on the part of the Ld. AO has been accepted by the Ld. CIT(A). Co-ordinate Bench of Delhi Tribunal [2019 (11) TMI 1002 - ITAT DELHI] relied upon the decision Braham Prakash Lakra [2019 (11) TMI 1002 - ITAT DELHI] AND Indo Arab Air Services [2015 (10) TMI 2383 - DELHI HIGH COURT] wherein the Hon’ble Court observed that while law does not require AO to form definite opinion by conducting any detailed investigation regarding escapement of income from assessment, it certainly did require to form prima facie opinion based on tangible material which provide nexus or link to having reason to believe that income escaped assessment. Following the decisions (supra) and applying their ratio to the facts of the assessee’s case we sustain CO No. 2 of the assessee which is sufficient to hold that the notice u/s 148 issued to the assessee is bad in law and deserves to be quashed. Taxability of enhanced compensation u/s 45(5) - year of assessment - HELD THAT:- CIT(A) was perfectly justified in deleting the impugned addition. CIT(A) recorded the finding that as per the given facts the enhanced compensation by way of the 550 sq. Meter plot was received on 12.06.2007 which implies AY 2008-09 and not AY 2010-11. Thus, the capital gain to be taxed under section 45(5)(b) of the Act should have been brought to tax in AY 2008-09 as per law and also as held by the Hon’ble Supreme Court in the case of CIT vs. Ghanshyam (HUF) [2009 (7) TMI 12 - SUPREME COURT] This finding of the Ld. CIT(A) is fully in consonance with the principle of law laid down by the Hon’ble Supreme Court in the decision (supra) Thus no material with the Ld. AO on the basis of which it could be established that enhanced compensation was received during the FY 2009- 10 relevant to AY 2010-11 under consideration. Decided in favour of assessee.
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