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TMI Blog2012 (2) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case , the ld. CIT(A) has erred in law as well as in facts in deleting the addition of Rs.82,31,154/- on the basis of accounts, bills, vouchers etc. not pertaining to the accounts attached with original return. i i) The appellant craves leave to add or amend the grounds of appeal before the appeal is heard and disposed off . i i i) It is prayed that the order of ld. CIT(A) be set aside and that of the AO may be restored." 4. The assessee did not appear despite issue of notice, therefore, the appeal is decided on the basis of the submissions made by the assessee as incorporated from page 84 to 90 of the Paper Book and other relevant material available on record. 5. In the first ground of appeal, the assessee contended that the CIT(A) erred in treating the donation of assets by the appellant society to other societies as capital gains. The AO held that the assessee transferred assets valued at Rs.1,05,82,364/- at book value and received consideration by way of book entries. The written down value of these assets is Rs. Nil as the entire cost has already been allowed as application of income in the year of acquisition. Consequently, the AO is of the opinion t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CBDT categorically speaks of the payment of a sum and not transfer of the asset, as misconstrued by the assessee. Therefore, we are in complete agreement with the findings of the ld. CIT(A) and do not find any infirmity in the findings of the CIT(A) and the same are upheld. This ground of appeal of the assessee is dismissed. 7. In Ground No.2, the assessee contended that the CIT(A) erred in holding that the re-assessment proceedings u/s 148 were not bad in law. In this case, the AO invoked the provisions of Section 148 for the reason that the assessee transferred land and other assets of Rs.1,05,82,364/- to another society and such transfer cannot be construed as application of income for charitable purpose. The AO held, after excluding this amount, the income applied for charitable purpose is less than 85% of the receipts, at Rs.77,41,843/-. The assessee challenged the validity of reopening of the assessment proceedings on the ground that the reasons taken by AO for re-opening the assessment are not tenable in view of the Board's instructions No.1132. The AO also intimated the assessee that the case had been reopened on account of transfer of assets and not on account of donation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 11 which is not a tenable reason in law. The counsel has relied on the Board instruction No.1132 dated 05.01.1978 and has also relied on a number of case laws in this regard which have been discussed as part of his written submissions. The counsel further argued that the assessment cannot be reopened on a mere change of opinion and has placed reliance on case laws which have been discussed as part of his written submissions. The AO in reply to the objection raised by the appellant for re-opening of the assessment informed the appellant that the assessment has been reopened on the ground of transfer of assets and not on account of donation to another trust. 5.1 I have carefully considered arguments of the counsel for the appellant and have also considered the case laws relied upon by him. I have carefully perused the assessment order. In the present case, the assessment was reopened by the AO for the reason that the assessee society transferred its land and other assets worth Rs.1,05,82,364/- to another society which is not application of income towards charitable purposes. The AO held that the income applied toward charitable purposes was less than 85% of its receipts b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The findings of the CIT(A), that there is no change of opinion in the context of the factual position of the case, does not suffer from any infirmity. The reasons recorded by the AO have live nexus with the escaped income, chargeable to tax. The AO is not required to establish the factum of escapement at the stage of issuance of notice u/s 148 of the Act as held in a number of decisions by the Hon'ble Supreme Court, particularly in the case of ACIT V Rajesh Jhaveri Stock Brokers Pvt .Ltd. (2007) 291 ITR 500 (S.C) . 11. In view of the above factual and legal discussions, we do not find any merit in the contentions raised by the assessee in this ground of appeal as the findings of the ld. CIT(A) are well reasoned and based on appreciation of the fact situation of the case, case laws and relevant provisions of the Act. Consequently, we do not find any reason to interfere with the findings of the ld. CIT(A) and the same are upheld. The ground of appeal raised by the assessee is dismissed. 12. Ground No.3 raised by the assessee is general in nature and needs no separate adjudication. 13. In the result, appeal of the assessee is dismissed. ITA No. 1077/Chd/2010 (Revenue's appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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