TMI Blog2013 (7) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... pect to A.Y. 2005-06, considering the aforesaid fact and observing that no incriminating material was found with respect to A.Y. 2005-06 and during the assessment, the Assessing Officer did not find any defect in the books of accounts maintained by the assessee and considering the fact that even no any material was found during the search relating to assessment year - Assessing Officer can reopen and/or reassess the return with respect to six preceding years. However, there must be some incriminating material available with the assessing officer with respect to the sale transactions in the particular assessment year - Decided against Revenue. - Tax Appeal No. 914 of 2012 - - - Dated:- 2-7-2013 - M. R. Shah And Sonia Gokani,JJ. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utshell are as under :- 2.01. The dispute is with respect of the A.Y. 2005-06. That the Assessing Officer done regular assessment under section 143 under section 143(3) of the Income Tax Act (hereinafter referred to as the Act ) with respect to A.Y. 2005- 06. 2.02. It appears that a search action under section 132 of the Act was carried out at the premises of the son of the assessee Mr.Sanjay R. Sorathiya on 11/10/2006. During the course of search, various documents pertaining to the assessee were found. Therefore, a notice under section 153C of the Act dtd. 14/10/20087 was issued and served upon the assessee. It also appears that during the course of search, one diary containing noting in regard to the sale of the plots of land in M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.03. Being aggrieved by the order of assessment in making addition of Rs.36,94,955/- in the total income of the assessee with respect to the A.Y. 2005-06, appellant preferred appeal before the CIT(A) and by speaking and well reasoned order, the CIT(A) partly allowed the said appeal and deleting addition of Rs.36,94,955/- in the total income of the assessee with respect to the A.Y. 2005-06. 2.04. Feeling aggrieved by the order passed by the CIT(A) in deleting addition of Rs.36,94,955/- made by the Assessing Officer, the revenue preferred further appeal before the ITAT and the ITAT by the impugned judgement and order has dismissed the said appeal. 2.05. Feeling aggrieved by the impugned judgement and order passed by the ITAT in dismissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h High Court in the aforesaid decision. 4.00. At the outset, it is required to be noted that on the basis of search carried out in the premises of the son of the assessee and diary seized and on the basis of noting in the said diary, the assessee made disclosure of Rs.65 Lacs for the A.Y. 2006-07 with respect to the sale transactions which took place during the A.Y. 2006-07 and applying same ratio and ratio relating to A.Y. 2006-07 and A.Y. 2007-08, the Assessing Officer determined the income for the A.Y. 2005-06 and considering the fact that the regular assessment was framed under section 143(3) and there was no any seized material with respect to A.Y. 2005-06, considering the aforesaid fact and observing that no incriminating material w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were commanded by the assessee in the AY 2006-07 and 2007-08, it cannot be valid basis to say that the same prices was commanded by assessee in AY 2005-06 also without any incriminating material or corroborating material. This should also be kept in mind that the present year is the first year of the project and subsequent years are second and third year of the project, the project commands extra price in the market and therefore, it may be possible that in the first year i.e. in the present year, the assessee sold some of the plots on a lower prices as declared by the assessee commanded extra prices and received same in the form of on-money. Hence, in our considered opinion, on the basis of evidences regarding on-money receipt on the subs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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