9911796707
TMI Blog2018 (9) TMI 1776X X X X Extracts X X X X X X X X Extracts X X X X ..... . The A.O. noted that during the year under consideration, the assessee has sold land and received consideration of Rs. 20 lakhs. The circle value of the land was Rs. 45,84,000/-. The assessee was required to explain as to why capital gain of Rs. 45,89,000/- may not be added to his income. The assessee furnished a written reply along with copy of the Certificate issued by Tehsildar, Dadri, Dated 02.02.2006 in which it was reported that Khasra No.326, Gram Kot is distance 13 KM from Kot Gram Nagar Palika Parishad, Dadri. The A.O. however, did not accept the contention of assessee and noted that the property under sale is capital asset which would fall within the Municipal limit i.e., 1 KM on either side of Dadri-Noida Road and Dadri-Bulandshar Road. Therefore, it was within 8 KM from Municipal limits of Dadri Nagar Palika Parishad. The A.O. accordingly taken sale consideration under section 50C at Rs. 45,84,000/- and after excluding cost of acquisition and stamp duty, computed the short term capital gain of Rs. 37,91,000/-. 3. The assessee challenged the reopening of the assessment as well as above addition on merit before Ld. CIT(A). However, the appeal of the assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be determined with reference to the reasons recorded under section 147/148 of the I.T. Act. The assessee has filed copy of the reasons recorded under section 148 of the I.T. Act at page- 2 of the paper book which reads as under : "Name & Address of the Assessee : Shri Jagat Singh III-E-119, Nehru Nagar Ghaziabad. PAN : Assessment Year : 2008-2009 Reasons for issue u/s 148 of the IT. Act 1961 As per AIR information received in the system, during the financial year 2007-08 Sh.Jagat Singh, III-E-119, Nehru Nagar, Ghaziabad has sold. immovable property for sale consideration of Rs. 65,84,000/ on 02,11.21107. An enquiry letter was issued to the assessee on 17/09/2014, In response to the letter, the assessee has not filed written reply in this office. In the interest of natural justice another letters was issued to the assessee on 13.10.2014, 17/12/2014 & 09/01/2015 requiring the assessee to submit his explanation either personally or through authorized representative. In spite of opportunities given, the assessee has not filed any reply of the notice. In this case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed assessment. The A.O. did not verify the AIR information before taking any action against the assessee because the assessee did not sold the property for a total sale consideration of Rs. 65,84,000/- as noted in the reasons. It is the case of non-application of mind by the A.O. to the AIR information and that the A.O. recorded incorrect facts in the reasons for reopening of the assessment. Since the A.O. did not apply his independent mind to the AIR information received which was also incorrect, therefore, the very basic requirement for reopening of the assessment is not satisfied. In the instant case, the crucial link between the information made available to the A.O. and the formation of belief was absent. The reasons to believe recorded were incorrect and mere conclusion of the A.O. based on incorrect and non-existing facts. There were no basis to record reasons for reopening of the assessment. The reasons recorded failed to demonstrate the link between the tangible material and the formation of the reason to believe that income chargeable to tax has escaped assessment. The A.O. had not independently considered and verified the AIR information which formed the basis for the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken by the Assessing Officer, who had deprived himself of that opportunity by proceeding on the erroneous premise that the assessee had not filed a return for the assessment year, 2004-05, when in fact it had. In his assessment order, the Assessing Officer had, instead of adding a sum of Rs. 78 lakhs, even going by the reasons for reopening of the assessment, added a sum of Rs. 1.13 crores and the basis for such addition had not been explained. No error was committed by the Appellate Tribunal in holding that reopening of the assessment under section 147 was bad in law. No question of law arose." 7.3. The Hon'ble Gujarat High Court in the case of Vijay Harishchandra Patel vs. ITO (2018) 400 ITR 167 (Guj.) (HC) held as under : Held, allowing the petition, that the very basis for reopening of the assessment was unjustified and the assumption of jurisdiction under section 147 by the Assessing Officer by issuing a notice under section 148 was without authority of law and could not be sustained. The Assessing Officer had sought to reopen the assessment to once again examine the very aspect which had been gone into by his predecessor-Assessing Officer in the first ro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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