TMI Blog2020 (5) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... ns so advanced by the ld AR in this regard cannot be accepted. Issue of notice by non-jurisdictional Assessing officer - We agree with the contention of the ld DR that once the assessee has submitted to the jurisdiction of ITO Ward 2(1) Ajmer and has been allotted a PAN number, such jurisdiction continues with the said Assessing officer unless there is a communication and request from the assessee due to change of her residence and thereafter, the PAN is migrated by the tax department to the new Assessing officer having jurisdiction over the new residence of the assessee and cannot be done suo-moto by the assessee. Admittedly, in the instant case, no such request was made by the assessee and in the PAN data base, there continues to be old address of Ajmer where she last resided and therefore, ITO Ajmer had the valid jurisdiction over her tax matters and there is no infirmity in his action of issuing the notice u/s 148. Value of the properties not be considered as per the provisions of section 50C - AO has not disputed the fact that the assessee did file her return of income which was duly acknowledged by the Department and infact, the said return of income has been taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter to the DVO despite the assessee having objected to the higher valuation made by the DVO u/s 50C(2) of the Act, kindly be deleted in full. 3. The ld. AO further erred in law as well as on the facts of the case in charging interest U/s 234A, 234B, 234C 234D of the Act and as also in withdrawing interest U/s 244A of the Act. The appellant totally denies its liability of charging and withdrawal of any such interest so charged/withdrawn, being contrary to the provision of law and facts, kindly be deleted in full. 2. Briefly, the facts of the case are that the notice U/s 148 of the Act dated 27.03.2015 was issued in the name of the Smt Magan Devi through legal heir, Shri laxmi Kant Choudhary by ITO Ward-2(1), Ajmer and the contents of the reasons so recorded before issuance of notice u/s 148 read as under: 3. Subsequently, Shri Laxmi Kant Choudhary was issued summons U/s 131 of the Act and his statement was recorded by the Assessing officer. In his statement, he submitted that his mother, Late Smt. Magan Devi Choudhary has since expired on 28.02.2011 and before her expiry, she had filed her return of income for A.Y. 2008-09 wherein she had declared the transactions r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended the proceedings does not make the defect curable u/s 292BB, particularly when he was summoned u/s 131 and called upon to attend. Non-compliance would have entailed penalty hence his participation was under pressure only but not voluntarily. Moreover, the officer taking statement advised him to be presumed the only L/H and sought his consent, vide Q 6, which is a leading Q. but then his answer does not suggest any categorical admission for other legal heirs, hence, the contention of the ld. CIT(A) that Shri Laxmi Kant had no objection if other L/Hs were not brought is also immaterial. In fact, the other L/Hs never knew of the fact of the issuance of notice and the fact that some assessment proceedings were going on in the name of the deceased then how they could have been expected to raise the objections and one of the L/Hs namely Shri Laxmi Kant could not have given consent/waive the objection on behalf of the other L/Hs without any authority to him. It was accordingly submitted that the assessment so framed without impleading all the legal heirs is the nullity in the eye of law and the same should be accordingly quashed. In support, reliance was placed on the following deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted the copy of return along with the Computation Sheet. Further as per Ques. No. 5 of the Statements of the Laxmi Kant Choudhary (L/H), the AO has himself discussed the very same return filed the assessee in the subjected assessment year. Even in the AO s order at Pg 3, the AO has himself admitted that the return had already been filed before the ITO ward 15(1)(4), Mumbai and the ROI disclosed the sale of the land therein. It was clear from the very facts of the case that there was no escapement of income within the meaning of section 147 as the assessee had already filed the return. The very reason recorded by the AO for reopening the assessment is found non-existent and has become infructuous. Hence, the notice u/s 148 has itself become invalid and therefore, same as well as the reassessment proceedings are liable to be quashed. In support, reliance was placed on the decision of Hon ble Gujarat High Court in case of Sunrise Education Trust vs ITO (Exemption) [2018] 92 taxmann.com 74 (Guj). 7. Per contra, the ld. DR submitted that it is not disputed that the assessee had expired prior to the issuance of notice u/s 148 and that s the reason the notice was issued to the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case, no such request was made by the assessee and in the PAN data base, there continues to be old address of Ajmer where she last resided and therefore, ITO Ajmer had the valid jurisdiction over her tax matters and contention so advanced by the ld AR cannot be accepted. 9. Further, the ld DR submitted that the AO reopened the assessment proceedings after recording the due reasons and due satisfaction after following due process. The case of the assessee was reopened in the light of information/documents to the extent which were available with the AO. The material before the Assessing Officer was relevant and affords a live link or nexus to the formation of the prima facie belief that income chargeable to tax has escaped assessment in the hands of the assessee. The sufficiency and correctness of material need not be looked at the initial stage at the time of reopening of the case. While considering whether commencement of reassessment proceedings was valid, the Courts have held that what has to seen is whether there was prima facie some material on the basis of which the Department could reopen the case. The sufficiency or correctness of the material is not to be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ented by her legal heir Shri Laxmi Kant chaudhary which is clearly in compliance with the requirements of the law. Similarly, we donot find any infirmity in the assessment order where the same has been passed in the name of deceased assessee as represented by her legal heir Shri Laxmi Kant chaudhary. Where during the appellate proceedings, Shri Laxmi Kant chaudhary wishes to contest the said position stating that his statement as so taken was under pressure during the assessment proceedings, the onus is clearly on him to substantiate as to why he has not retracted from such statement at the first available opportunity and further, he has to demonstrate through verifiable and credible documentation that there are other legal heirs to the estate of the deceased assessee which he has failed in the instant case. Therefore, the contentions so advanced by the ld AR in this regard cannot be accepted. 11. Regarding issue of notice by non-jurisdictional Assessing officer, we agree with the contention of the ld DR that once the assessee has submitted to the jurisdiction of ITO Ward 2(1) Ajmer and has been allotted a PAN number, such jurisdiction continues with the said Assessing officer u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elieve that the income to the extent of ₹ 2,36,92,362/- chargeable to tax has escaped assessment within the meaning of section 147/148 of the Act. 13. We therefore find that the information in possession of the Assessing officer was a transaction of sale of piece of land for a consideration of ₹ 60,00,000/- which was valued by the sub-Registrar at ₹ 2,36,92,362/- by the sub-Register and secondly, the said transaction was not disclosed to the Revenue as the assessee has not filed her return of income for the impugned assessment year. Basis the same, the Assessing officer had formed a belief that the income to the extent of ₹ 2,36,92,362/- has escaped assessment. However, we find that the undisputed factually position which is emerging from perusal of records is that the assessee did file her return of income for the impugned assessment year and in the return so filed, she had disclosed the aforesaid transaction of sale of piece of land. Therefore, the very premise that the transaction relating to sale of piece of land has escaped taxation on account of non-disclosure and not filing of return of income is not borne out of records. In this regard, we re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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