TMI Blog2017 (1) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid transaction is more than ₹ 30 lakh, as per the relevant Rules, in the return of income itself the same was required to be disclosed, which even considering the manual return filed by the assessee it appears that the petitioner assessee has not disclosed sale transaction. Shri Soparkar, learned advocate appearing on behalf of the assessee has submitted that so far as the assessee is concerned, the sale consideration qua him will be ₹ 21,50,000/which is less than ₹ 30 lakh and therefore, the said Rule shall not be applicable. The aforesaid cannot be accepted. What is required to be considered is the total consideration of the transaction which admittedly is about ₹ 43 lakh. Therefore, it is the case of non-failure on the part of the assessee to disclose truly and fully the aforesaid transaction. Therefore, all the requirement under Section 147 of the IT Act to reopen the assessment have been satisfied. - Decided against assessee. - SPECIAL CIVIL APPLICATION NO. 18778 of 2016 - - - Dated:- 29-12-2016 - MR. M.R. SHAH AND MR. B.N. KARIA, JJ. FOR THE PETITIONER : MR B S SOPARKAR, ADVOCATE FOR THE RESPONDENT : MR SUDHIR M MEHTA, ADVOCATE C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akh during the FY 200809. The assessee was also requested to furnish the proof with respect to the aforesaid transaction clearly articulating the date, mode and sources of such investment / payments. The assessee was also called upon to confirm whether the above transaction has been reflected in the return of income for AY 200910 or otherwise. The assessee was called upon to submit the copy of the return of income and all details pertaining to the aforesaid transaction with copy of the bank statements within 7 days of the receipt of the said letter. In response to the same, the assessee vide letter dated 29.01.2016 requested to give 3 weeks time for compliance. However, till the impugned notice under Section 148 of the IT Act, the assessee did not comply the letter dated 28.12.2015 and did not furnish any particulars including the return of income. That only thereafter the Assessing Officer had issued the impugned notice. [2.3] On receipt of the reasons recorded for reopening the assessment for AY 200910, the assessee raised the objections vide communication dated 19.07.2016 and requested to drop the reassessment proceedings on the consideration of the objections raised. Along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn of income for the AY 200910, the AO ought to have dropped the reopening proceedings. [3.1] It is further submitted by Shri Soparkar, learned advocate appearing on behalf of the petitioner that even otherwise impugned notice is liable to be quashed and set aside on the ground that there is no failure on the part of the assessee who disclosed truly and fully all the material facts. It is submitted that during the assessment year 200910, the assessee alongwith his wife purchased the agricultural land for a total consideration of ₹ 43 lakh. It is submitted that the books of account of the assessee alongwith the bank statement and cash book for AY 200910 duly reflect the payment made towards consideration for purchase of the aforesaid land produced along with the objections raised against reopening of the assessment. It is submitted that therefore while disposing of the objections, the Assessing Officer was required to consider the same. It is submitted that therefore, there was neither any escapement of income nor any failure on the part of the assessee to disclose truly and fully all the material facts. [3.2] Shri Soparkar, learned advocate appearing on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the Assessing Officer ought to have dropped the reopening proceedings. Making above submissions, it is requested to allow the present petition. [4.0] Present petition is vehemently opposed by Shri Sudhir Mehta, learned advocate appearing on behalf of the Revenue. It is submitted that in the facts and circumstances of the case, it cannot be said that the impugned notice and/or reopening is bad in law and/or the contrary to the provisions of Section 147 of the IT Act. [4.1] It is further submitted by Shri Mehta, learned advocate appearing on behalf of the Revenue that in the present case on the basis of the AIR information gathered from the ITD System it was revealed / found that the assessee has purchased immovable property valued at ₹ 43 lakh during AY 200910. At the relevant time on verification of the return details on ITD System, it was observed that the assessee had not filed return of income for the said year. It is submitted that therefore the assessee was called upon to furnish the proof of the aforesaid financial transaction, clearly articulating the date, mode and sources of such investment / payments. It is submitted that the assessee was also ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is observed that since in the return itself size of the land was not disclosed, even if in said attached valuation report size of the land is mentioned, it would not be proper disclosure of information about size of plot on which housing project is constructed. It is submitted that therefore it was held that Revenue was justified in reopening the assessment. Shri Mehta, learned advocate appearing on behalf of the Revenue has relied upon another decision of the Hon ble Supreme Court in the case of Assistant Commissioner of Incometax vs. Rajesh Jhaveri Stock Brokers Private Limited reported in 291 ITR 500 in support of his submission that assessment under Section 143(1) and/or intimation under Section 143(1) of the IT Act cannot be treated to be an order of assessment and while sending intimation under Section 143(1) of the IT Act, it cannot be said that the Assessing Officer had scrutinized and/or considered in detail the return. It is submitted that in the aforesaid decision it is further held that there being no assessment under Section 143(1)(a) of the IT Act, the question of change of opinion does not arise. Shri Mehta, learned advocate appearing on behalf of the Revenue h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It appears that on verification of the return details on ITD System, at that time it was observed that the assessee had not filed return of income for AY 200910. Therefore, vide communication dated 28.12.2015, the assessee was called upon to furnish the proof of the aforesaid financial transaction, clearly articulating the date, mode and the sources of such investment / payments. The assessee was called upon to confirm whether the above transactions have been reflected in the return of income for AY 200910 or otherwise. The assessee was also called upon to furnish the copy of the return of income and all details pertaining to the aforesaid transaction with the copy of the bank statements. However, till the impugned notice under Section 148 of the IT Act was issued with the reasons recorded, the assessee did not furnish any particulars as called for vide communication dated 28.12.2015. Only thereafter the Assessing Officer issued the impugned notice with the reasons recorded to reopen the assessment for AY 200910 are already reproduced hereinabove. Therefore, in the aforesaid facts and circumstances of the case and when though the assessee was called upon to furnish the details with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that out of ₹ 43 lakh towards sale consideration, ₹ 23 lakh are alleged to have been paid by cash. It is required to be noted that it is the case on behalf of the petitioner that in earlier year he sold the property worth ₹ 67 lakh (approximately) and therefore, he was having the cash. However, it is required to be noted that in the objections the assessee has not come out with the said case. It is required to be noted that sale consideration with respect to the aforesaid transaction is more than ₹ 30 lakh, as per the relevant Rules, in the return of income itself the same was required to be disclosed, which even considering the manual return filed by the assessee it appears that the petitioner assessee has not disclosed sale transaction. Shri Soparkar, learned advocate appearing on behalf of the assessee has submitted that so far as the assessee is concerned, the sale consideration qua him will be ₹ 21,50,000/which is less than ₹ 30 lakh and therefore, the said Rule shall not be applicable. The aforesaid cannot be accepted. What is required to be considered is the total consideration of the transaction which admittedly is about ₹ 43 la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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