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TMI Blog2019 (9) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. AR inviting attention to the paper book filed submitted that in the facts the present case the assessee is challenging the jurisdiction of the assessing officer in reopening the case beyond the period of 4 years. Referring to the provisions of law it was his submission that in the facts the present case the reopening has been done beyond the stipulated period of 4 years. In the circumstances, it was submitted that the settled legal position is that the Revenue has to demonstrate the deficiency in the material placed before the assessing officer in the scrutiny proceedings. It was his submission that no such effort has been made by the Revenue. On the contrary, it was submitted full facts were made available to the AO. The AO has specifically raised specific questions on the issue. Replies have been given and considered. Accordingly, it was his submission that in the facts of the present case, the present exercise by the Revenue is merely a case of change of opinion. The fact that change of opinion, it was argued, was also based on an incorrect appreciation of facts and law has been ignored by the CIT(A). Attention was invited to the paper book page No. 20 which is a copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r your interest for the allotment of Unit/Apartment in "The Views" at Mohali Hills. We confirm having received Rs. 4988782/- (RUPES FORTY NINE LAKH EIGHTY EIGHT THOUSAND SEVEN HUNDRED AND EIGHT TWO ONLY) vide cheque no:765011-I drawn on ICICI has been deposited by you towards the same. .............................. (emphasis supplied) 2.3. Specific attention was invited to unnumbered Para two of the above extract so as to emphasize that the application for registration was dated 25/09/2008. It was his submission that the said date is important as it was very much before the due date for filing of the return of income. The due date for filing of the return, which it was submitted, was 30.09.2008. Inviting attention to paper book page 31 it was his submission that the copy of assessee's bank account would show that on the specific date 29/09/2008 the assessee had paid by way of the specific cheque No. 765011-I the specific amount Rs. 4988782/- as mentioned in the aforesaid allotment letter. The said information, it was submitted, was made available to the assessing officer in the scrutiny proceedings which resulted in the passing of the order dated 29/11/2010. Copy of this ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was under challenge before the CIT(A) and in view of the dismissal of assessee's appeal, the challenge still remains. The relevant extract was read out. For the sake of completeness the same is extracted hereunder : The assessee had deposited and purchased FDR o/f Rs. 55,00,000/- with Canara Bank Shimla and source of FDR was sale of Flat at Delhi. It is further stated that the sale proceed was wrongly deposited by hank in SBA ( No. 2677) being maintained by the wife of the assessee jointly. Thus, the sale proceeds had been deposited by him in the form of FDR with the Canara Bank, Shimla. In reply to questionnaire dated 21/06/2010 at Sr. No.8 it was stated that assessee had sold a residential house property, on 25.09.2007 for a consideration of Rs. 55,40,000/- and the same was invested in house properly purchased by him. The copy of allotment letter is annexed. A perusal of allotment letter dated 20.10.2008 issued by elevated livings. The views at Mohali hills revealed that allotment of unit No./Appointment No. F1-F10-1004 in the residential project situated in " the views" at Mohali hills in sector 105, SAS Nagar, District Mohali, Punjab. The allotment of Unit was giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted, was not in conflict with the settled legal position. For the said argument, attention was invited to page 15 of the Paper Book which contains the reference to the legal position thereon as argued before the CIT(A) and is relied upon in the present proceedings also. Reliance, accordingly, yet again was placed on Ajit Vaswanit V. CIT92001)117 Taxman 123 (delhi), CIT Vdr. P.S. Pasricha (2008) 20 SOT 468 (Mum), Ishar Singh Chawla vs. Deputy Commissioner of Income-tax [2010] 130 TTJ 108(MUM.)(UO), J.V. Krishna Rao V/s. Deputy Commissioner of Income-tax, Circle 3(3), Hyderabad IT APPEAL NOs. 1866 & 1867 (HYD.) OF 2011 amongst others. Thus, this fact noticed by the AO, it was submitted, had already been examined in the original proceedings. Even otherwise, it was argued, it in no way detracts the assessee's claim as the assessee was under a legal obligation only to invest the amount in the purchase of the new house and not invest the "same money". It was his submission that the capital gains earned by the assessee can be utilised for other purposes as long as the assessee fulfils the conditions by investing the equivalent amount in the asset qualifying for relief under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponded that the fact that the amounts had been invested from a different bank account was noticed by the assessing officer. He agreed that this fact is not coming out from the order as it has not been discussed by the AO. It was submitted that how the AO writes his order cannot be determined by the assessee. The fact that the order is cryptic, cannot be held against the assessee especially in the face of the questionnaires and the detailed replies alongwith supporting evidences. The Revenue as per law, it was argued, is required to show the insufficiency of material which is not the case. 2.8 Even otherwise, it was argued that if on the basis of the reasons recorded the reopening is considered to be justified, even then in the facts of the present case the Revenue, it was argued, has not demonstrated any shortcoming on the part of the assessee. The other objection on merits which has been taken note of by the tax authorities is the fact that the specific flat was not allotted to the assessee, it was submitted, also is not a valid argument. It was his submission that the fact of allotment or completion of the construction was not in the hands of the assessee and there are various d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or rebuttal/distinguishing fact is offered by the Revenue. In these facts, since the lack of discussion in the original scrutiny assessment order, where the only new fact which could thus be said to come to light in the re assessment proceedings is that on the sale of the specific property, the assessee deposited the sale receipts of Rs. 55 lacs with Canara Bank, Shimla wherein the Saving Bank Account was jointly maintained with his wife and the sale proceeds were converted into FDR. The investment in the specific property at Mohali, accordingly, was made from the assessee's professional income. In these circumstances, the case of the Revenue, as noted, presumably is build on the fact that it is not the very same colour of the specific notes received from the sale of property which is deposited in the acquisition of the new asset. There are plethora of decisions on the issue which hold that the law nowhere requires that there should be a live link between the amount of capital gain and in the purchase of the new asset where the asset is purchased within the stipulated time of filing of return. The law does not require the assessee to hold on to the very same money and demonstr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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