TMI Blog2017 (2) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... correct facts necessary for the assessment. It is required to be noted that the case of the assessee from the very beginning was that the aforesaid HUF sold the ancestral property in F.Y 2005-2006. It was never the case of the assessee that the said HUF sold the property in F.Y2008-2009. Necessary documents of Shri Rajivram R Choudhry [HUF] to show that the ancestral properties were sold in F.Y 2005-2006 were already produced on record at the time of scrutiny assessment under Section 143 [3] of the Act. Even a certificate issued by DDIT [Inv.], Panipat was issued with respect to altogether another property for which the sale proceeds were not received in FY 2008-2009. That, the property which was sold in FY 2005-2006 by HUF and others were altogether different properties for which the sale deeds were produced on the record. Under the circumstances, formation of opinion by the Assessing Officer doubting genuineness of the claim of the assessee with respect to the loans taken from the aforesaid three persons is on the wrong premise and the facts. So far as the second reason to reopen the assessment which is based on the Valuation Report of D.V.O, it is required to be noted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or A.Y 2009-2010 has escaped assessment within the meaning of Section 147 of the I.T Act. 4. The facts leading to the present Special Civil Application in nutshell are as under : 4.1 That the assessee filed return of income for A.Y 2009-2010 on 30th September 2009 declaring total income at Rs. NIL. While submitting the return of income, the assessee disclosed that he had taken loans from the following family members : [a] Shree Rajivram R Chouhry-HUF ₹ 1,43,96,000/= [b] Shree Karan R. Choudhry ₹ 10,00,000/= [c] Shree Urmila R Choudhry ₹ 19,00,000/= ₹ 1,72,96,000/= 4.2 The original assessment was taken in scrutiny. That thereafter, the Assessing Officer framed scrutiny assessment under Section 143 (3) of the Act on 29th December 2011 accepting the return of income; including the case on behalf of the petitioner that he had taken loans from the aforesaid family members. That thereafter, beyond the period of four years, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come to the extent of ₹ 1,72,96,000/= during the year. These facts are came to the knowledge of the Revenue after completing the scrutiny assessment of A.Y 2009-2010 as a result of survey. During the assessment proceedings of the A.Y 2009-2010, the A.O has referred the matter of the hospital building to the Valuation Officer to assess the actual cost of construction. At that time, time barring date for completing scrutiny assessment was 31.12.2011 and the A.O has completed the scrutiny assessment of the A.Y 2009-2010 on 29.12.2011. The Valuation Report of the DVO was received after completion of the scrutiny assessment on 30.11.2012. Hence, no cognizance of the said valuation report was given by the A.O at that point of time. However, as per valuation report of the Departmental Valuer, the assessee has suppressed the investment in the construction of the Hospital Building to the extent of ₹ 9,21,148 [Rs. 2,84,15,071 ₹ 2,74,93,923/=] during the year under reference. Hence, the assessee has also concealed the investment to the extent of ₹ 9,21,148/= during the year. From the above discussion, it is clear that the assessee has not disclosed fully and tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Financial Year 2008-2009 was absolutely misplaced. It was submitted that from the very beginning, it was the case of the assessee that the aforesaid assessee-Dr. Rajivram R Choudhry [HUF] sold ancestral property in the financial year 2005-2006 and from the amount available with HUF, loan was given to the assessee. It was submitted that if the DDIT [Invs.], Panipat made inquiry with respect to F.Y 2008-2009 observing that there was no sale transaction by the said HUF in the F.Y 2008-2009, and therefore, the claim of the assessee that he received loan from Dr. Rajivram R. Choudhry [HUF] from the balance amount from the property sold by the said HUF is not believable. 4.4 Now so far as the second reason given by the Assessing Officer to reopen the assessment ie ., difference in the amount of investment in the construction of hospital building, it was submitted that there is difference of only three percent . It was submitted that according to the assessee, investment in the construction of hospital building was to the extent of ₹ 2,74,93,923/=, however, as per the investigation report, it was ₹ 2,84,15,071/=. It is submitted that therefore, as per the catena of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessment, the Assessing Officer is not justified to reopen the assessment beyond the period of four years. 8. It is submitted that in the present case, at the time of scrutiny assessment under Section 147 [3] of the Act and at the time of filing the return of income, the assessee specifically claimed that he had taken loans from the aforesaid family members during the year under consideration. Alongwith the return of income/computation of income, it appears that the assessee also placed reliance upon materials such as return filed by Dr. Rajivram R Choudhry [HUF] stating that the said HUF sold ancestral property at Panipat in the FY 2005-2006. That thereafter, the Assessing Officer framed scrutiny assessment under Section 143 [3] of the Act and accepted the case of the assessee that he had taken loans from the aforesaid three persons and did not make any amount towards undisclosed cash investment. Under the circumstances, the entire issue as such was gone into by the Assessing Officer while framing the scrutiny assessment under Section 143 [3] of the I.T Act. Under the circumstances, as such it cannot be said that there was any failure on the part of the assessee in no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... December 2011, there was no DVO's report. Even in the reasons recorded, it is specifically mentioned that the valuation report of DVO was received after completion of scrutiny assessment on 30th November 2012. The claim of the assessee with respect to the investment in construction of Hospital building of ₹ 2,74,,93,923/= came to be accepted by the Assessing Officer while framing the scrutiny assessment under Section 143 [3] of the I.T Act. Even otherwise, it is required to be noted that there is hardly a difference of ₹ 9,21,148/= ie. , approximately of 3% of the total investment in construction of hospital building. As per the catena of decisions, DVO's valuation report can be said to be its opinion and there might be some variation in the calculation. In any case, it cannot be said that there was any failure on the part of the assessee in not disclosing true and correct facts necessary for assessment which warrants reopening beyond the period of four years. 10. In view of the above and for the reasons recorded hereinabove, the petition succeeds. The impugned Notice of reopening of the assessment for A.Y 2009- 2010n dated 29th March 2016, which is issu ..... 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