TMI Blog2019 (5) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... cash amount to M/s. Sabh Infrastructure Ltd., on account of purchase of any property. Therefore, in the absence of any tangible material and in the absence of any legally enforceable agreement found during the course of search, it is difficult to believe that assessee has paid any amount in cash to M/s. Sabh Infrastructure Ltd., as is mentioned in the reasons. No reason for the A.O. to record that there is an income escaped assessment on account of the fact mentioned in the agreement to sell. Also See SHRI KRISHAN GOPAL, PROP. M/S. KAY PEE LOCK INDUSTRIES VERSUS ITO WARD-39 (1) NEW DELHI [ 2017 (5) TMI 836 - ITAT DELHI] Considering the totality of the facts and circumstances of the case, we are of the view that there was no justification for the A.O. to record reasons for reopening of the assessment and there was no justification for the A.O. to record his belief that income chargeable to tax has escaped assessment in the matter. In view of the above discussion, we set aside the Orders of the authorities below and quash the reopening of the assessment u/s 147/148. Resultantly, the entire additions shall stand deleted. Appeal of Assessee is allowed. - ITA.No.1948/Del./2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the assessee. He has further submitted that assessment in the case of M/s. Sabh Infrastructure Ltd., for the same A.Y. 2010-2011 was also reopened under section 147/148 of the I.T. Act and the A.O. after examining the details, accepted the returned income vide Order dated 29.12.2017 under section 147 r.w.s. 143(3) of the I.T. Act [PB-175]. He has, therefore, submitted that there is no reason to believe that income chargeable to tax has escaped assessment. He has submitted that issue is covered by the Order of ITAT, Delhi Bench in the case of Shri Krishan Gopal, New Delhi vs. ITO, Ward-39(1), New Delhi in ITA.No.3249/Del./2015, Dated 16.05.2017 [PB-108]. He has, therefore, submitted that reopening of the assessment may be quashed and entire addition may be deleted which is without any basis. 4. On the other hand, Ld. D.R. relied upon the Orders of the authorities below and submitted that agreement to sell though unsigned found during the course of search was electronic evidence and as such same is admissible IN evidence against the assessee. 5. We have considered the rival submissions. The department has provided copy of the reasons to the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 (A.Y: 2010-11). The assessee had field return of income for A.Y. 2010-11 on 25-09-2010 declaring income of ₹ 14,17,760/-. Hence, as per the agreement to sell of the said property, the assessee has given ₹ 1 crore in cash in A. Y. 2010-11 for purchase of the aforesaid property at E-108, Greater Kailash Part-II, New Della. With this I have reason to believe that the income of the assessee has escaped assessment within the meaning contained in section 147 of the Act for A. Y 2010-11. 5.1. It is well settled Law that validity of the reassessment proceedings shall have to be judged with reference to the reasons recorded for reopening of the assessment. The A.O. after going through the agreement to sell as was intimated by the Investigation Wing also noted in the reasons that the said agreement to sell was found from the residential premises of Shri Naresh Gupta, a deed writer/Advocate. According to the agreement to sell found from third party, assessee has given ₹ 1 crore in cash to M/s. Sabh Infrastructure Ltd., on account of purchase of property at E-108, Greater Kailash Part-II, New Delhi. The A.O, therefore, believed that asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell a property bearing No. 65/59, New Rohtak Road for a consideration of ₹ 40,00,000/- whereas the sale deed for the said property was executed for ₹ 6,00,000/- therefore there is an escapement of capital gain of ₹ 34,00,000/- for the assessment year 2005-06. This capital gain has been calculated with reference to ₹ 6,00,000/- as sale price instead of agreement value of ₹ 40,00,000/- is taken in the return of the assessee for the A.Y. 2005-06. Therefore, I have reason to belief that the assessee has escapement of capital gain amounting to ₹ 34,00,000/- which has not been disclosed in the turn of income and the provisions of section 147 of the Act are attracted in this case. In the light of the above facts, proposal is sent to the JCIT, Range 39, New Delhi for according approval for issue of notice under section 148 of the I.T. Act, 1961 in this case. Sd/- (Sobhana Rajan) Income-tax Officer, Ward 39 (1), New Delhi. 5. The AO in the reasons merely mentioned that information has been received that assessee entered into an agreement to sale of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e receipt before recording reasons and it is not clarified as to where is the original receipt and no persons mentioned in the photocopy receipt have been examined. Thus before recording the reasons for the reassessment, the AO did not verify the information so received for the purpose of reopening of the assessment. In absence of existence of any primary evidence, there is no question of considering the photo copy as secondary evidence. Thus the AO has not applied his mind to the photo copy of the receipt which has little evidentiary value. The AO therefore acted in haste and in mechanical manner to reopen the assessment. The reasons should have live link between the material placed on record and conclusion drawn by the AO before issuing the notice u/s 148 of the Act. The AO is not competent person to compare the signature from the photocopy copy with the original signature on the sale deed. Thus it was a mere suspicion on the part of the AO that assessee received higher sale consideration. Therefore there cannot be a reason to believe with the AO to reopen assessment in the matter on vague information considering inadmissible document for forming ..... X X X X Extracts X X X X X X X X Extracts X X X X
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