TMI Blog2017 (12) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer for reopening the assessment, collapses. Therefore, on the reasons recorded, the Assessing Officer could not have formed the belief that income had escaped assessment, inasmuch as such belief had been formed on a factually incorrect premise. It is settled legal position, that the reopening of the assessment has to be maintainable on the reasons recorded for reopening the same, and that such reasons cannot be substituted. In the facts of the present case, when the original ground for reopening the assessment does not survive, the Assessing Officer seeks to proceed further with the assessment on totally different grounds, which is impermissible in law. - Decided in favour of assessee. - Special Civil Application No.16171 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the F.Y. 200910. Accordingly, capital gain chargeable on the sale transaction made by the assessee for the concerned A.Y. remains unexplained. The sale consideration received by the assessee is required to be treated as income of the assessee from undisclosed source as assessee has not filed the return of income and not shown transaction to the department. It is clear that income of the assessee has escaped assessment to the tune of ₹ 40,00,000/. In view of the above I have, therefore, reasons to believe that the income / gain chargeable to tax has/have escaped the assessment within the meaning of section 14 of the I.T. Act, 1961. Total escapement of income is to the extent of ₹ 40,00,000/. The above income / gai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned advocate for the petitioner assailed the impugned notice by submitting that the assessment of the petitioner had already been reopened earlier and that on the same reasons, the assessment of the petitioner is sought to be reopened for the second time. It was submitted that initially, pursuant to the application made by the petitioner under section 273A of the Act, notice under section 148 of the Act had been issued to the petitioner and the petitioner had filed return of income in response thereto, disclosing the sale of the immovable property valued at ₹ 40,00,000/which came to be accepted by the Assessing Officer. 3.1 Referring to the reasons recorded, it was submitted that in the aforesaid backdrop, the reasons recorded indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings had been instituted under section 147 of the Act by issuance of notice under section 148 of the Act and the return filed by the petitioner in response thereto had been accepted. 6. A perusal of the documents annexed along with the petition reveals that during the course of the earlier proceedings under section 143(3) read with section 147 of the Act, the Assessing Officer had issued a notice dated 17.04.2014 to the petitioner under section 142(1) of the Act, calling upon him to furnish various details, including copy of purchase deed and sale deed of bungalow sold during the year and details of bank account maintained by him as well as copy of the bank statement for the year under consideration, which came to be furnished by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same had been duly accepted by the then Assessing Officer. However, the respondent Assessing Officer, instead of dropping the assessment proceedings, by the order rejecting the objections, seeks to proceed with the reassessment proceedings on a fresh ground which does not find place in the reasons recorded, viz. that on perusal of copy of the assessment u/s 143(3) read with section 147 and computation of income, satisfaction of the AO while recording satisfaction is found based on fact as genuinity of deduction availed u/s 54 and discharge of liability of LTCG in the case is not found any reflection through the assessment order . 8. In the case of GKN Driveshafts (India) Ltd. v. ITO , (2003) 1 SCC 72 , the Supreme Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pening the assessment is that the petitioner had not filed any return of income disclosing such sale of the immovable property valued at ₹ 40,00,000/. The record of the case shows that earlier, pursuant to a notice under section 148 of the Act, the petitioner had, in fact, filed return on income disclosing the sale of such immovable property, and the Assessing Officer after duly applying his mind to the issue had accepted the return of income. Considering the fact that a return of income had been filed disclosing sale of the immovable property, the very foundation on which the reopening is based in the reasons recorded by the Assessing Officer for reopening the assessment, collapses. Therefore, on the reasons recorded, the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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