TMI Blog2016 (12) TMI 1710X X X X Extracts X X X X X X X X Extracts X X X X ..... m for which the whole of property at 48, Friends Colony East, New Delhi might reasonably be accepted to be let out was at ₹ 41,69,718/-. Therefore, the AO himself was not sure about the presumptive let out value. Noting has been brought on record that the assessee had received the rent of ₹ 11,77,528/- as worked out by the AO and not ₹ 1,80,000/- which was offered for taxation - AO reopened the assessment only on the basis of the presumption which is not tenable in the eyes of law - Decided in favour of assessee - ITA No. 4235/Del/2015 - - - Dated:- 16-12-2016 - Sh. N. K. Saini, Accountant Member Assessee by : Sh. Sashi Tulsiyan, Adv. Revenue by : Sh. F. R. Meena, Sr. DR ORDER This is an appeal by the assessee against the order dated 11.02.2015 of ld. CIT(A)-30, New Delhi. 2. Following grounds have been raised in this appeal: 1. That the CIT (Appeals) erred on facts and in law in upholding the impugned assessment order passed under sections 147 of the Income Tax Act, 1961 which is without jurisdiction, illegal and bad in law since the prerequisite conditions for initiating proceedings under section 147 of the Act were not fulfil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as discussed above. 1177528 Less:-Ded. Of 30%;- 353258__824270 Total 1894301 Income r/o: ₹ 1894300/- 5. Being aggrieved the assessee carried the matter to the ld. CIT(A) and submitted as under: The brief fact of the present case is that re-assessment has been framed by opening/ initiating the proceedings U/s 148. The reasons for opening the proceedings U/s 148 is that Ld. A O has got some information received during search assessment proceedings of Today group of cases. On the very basis as provided above AO has initiated the reassessment proceedings on assessee company by issuing notice U/s 148. The notice issued is totally invalid and liable to be quashed under the following circumstances:- First, that as per provisions of Sec 147. If AO has REASONS TO BELIEVE that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of Sec 148 to 153 assess or reassess such income- That at page-1, para 2.1 last line in the reasons for re-opening supplied to us, AO says. the assessee has shown its income from house properly at Rs NIL in its return of income for AY 2000-06. In view of above, I have reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , who is below the rank of ACIT/DCIT, unless the JCIT is satisfied on the reasons recorded by such AO that it is a fit case for issue of such notice- ----- .. That at the time of approval the senior officer must apply his mind and to check that whether it is to be a fit case for reopening the proceedings or not. It should not be the case to sign the satisfaction note of AO without looking into the merits and facts of the case. In the present case the approval has been obtained and provided in a very tailor made fashion by senior authorities and no facts might have been seen while giving approval by senior authorities concerned. The complete facts was evident from records which can be seen even from naked eyes which does not demand re-assessment u/s 48 and even than the proceedings had been initiated u/s 148 just to make assessee liable for tax. UNITED ELECTRICAL COMPANY (P) LTD VS. CIT ORS 258ITR 317 (DEL) MOHINDER SINGH MALIK 2671TR 716 (P H). FOUR, FURTHER WITHOUT PREJUDICE, the impugned proceedings has been reopened by issue of notice U/s. 148. It has been mentioned in the Asst. Order that approval has been taken form Addl. CIT Central Range - 6. New Delhi. Now, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the copy of reasons recorded by the AO for reopening the case u/s 147 r.w.s. 148 of the Act and submitted that the AO himself admitted that the whole property might reasonably be accepted to be let out but he was not sure that the property was actually let out. On the contrary, the assessee had shown the rent of a portion which was let out at ₹ 1,80,000/- and after claiming deduction for repairs etc. @ 30% i.e. ₹ 54,000/- the remaining amount of ₹ 1,26,000/- was offered for taxation as income from house property. Therefore, the reopening only on the basis of presumption was not valid. 8. In his rival submissions the ld. DR strongly supported the order of the ld. CIT(A) and reiterated the observation made in the said order. 9. I have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is relevant to discuss the reasons recorded for reopening the assessment u/s 147 r.w.s. 148 of the Act, copy of which is placed at page nos. 14 15 of the assessee s paper book and read as under: 1. The assessee filed its return of income for the AY 2005-06 at an income of ₹ 10,70,031/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the meaning of section 147 of the Act. Issue notice u/s 148 of the Income Tax Act, 1961. 10. From the above reasons recorded, it is clear that the AO on the basis of the search seizure operation which took place on 26.11.2009 was of the view that the property of the assessee at 48, Friends Colony East, New Delhi was being used by Gambhirs for their residence and not by the assessee company for the purpose of its own business or profession. On the contrary, the assessee furnished the documents which established that the assessee was having its office in the said property and the AO himself issued the notice u/s 148 of the Act to the assessee on the address of the property in question i.e. 48, Friends Colony East, New Delhi, which is evident from the copy of the notice issued u/s 148 of the Act copy of which is placed at page no. 13 of the assessee s paper book. It is also noticed that the assessee filed its return of income by mentioning the address of the said property which has been accepted by the AO. Therefore, it cannot be said that the assessee was not conducting its business from the property in question. The assessee disclosed the rental income for the let out porti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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