TMI Blog2021 (4) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... come has escaped assessment. See NARAIN DUTT SHARMA VERSUS INCOME-TAX OFFICER, WARD- 6 (1) , JAIPUR [ 2018 (4) TMI 427 - ITAT JAIPUR] Thus where the very foundation for reopening the case is vitiated given that the assessee has filed her return of income disclosing the transaction of sale of immovable property for the specified consideration and offering the same to tax, there cannot be any reasons to believe that income has escaped assessment for the very same transaction the assumption of jurisdiction u/s. 147 cannot be sustained and the subsequent proceedings are hereby directed to be set-aside. - Decided in favour of assessee. - ITA No. 683/JP/2019 - - - Dated:- 30-3-2021 - Sandeep Gosain, Member (J) And Vikram Singh Yadav, Member (A) For the Appellant : Shrawan Kumar Gupta, C. A. For the Respondents : Monisha Choudhary, ACIT ORDER Per Vikram Singh Yadav , AM This is an appeal filed by the assessee against the order of the ld. CIT(A)-II, Jaipur dated 22.03.2019 relevant to assessment year 2009-10 wherein the assessee has taken the following grounds of appeal:- 1. The impugned order u/s. 143(3) r.w.s. 147 dated 18.11.2016 as well as the action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal before the ld. CIT(A) who has since confirmed the additions and against the said findings, the assessee is in appeal before us. 3. During the course of hearing, the ld. AR taken us through the reasons recorded by the Assessing Officer before issuance of notice U/s. 148 of the Act and the same reads as under:- On the basis of information available for the year under consideration, the assessee has sold an immovable property of ₹ 2475000. Information was called for from the assessee u/s. 133(6) of the Income Tax Act, 1961. Assessee has not furnished any reply/supporting evidence in response to notice u/s. 133(6). Therefore, the assessee failed to disclose truly and fully all material facts required for her/his assessment. Looking to the facts mentioned above, I have the reasons to believe that the income to the extent of ₹ 2475000/- has escaped assessment within the meaning of section 147 of the IT Act, 1961. Therefore, it is a fit case to issue notice u/s. 148 of the I.T. Act, 1961 4. It was submitted by the ld. AR that on perusal of the reasons, it may be noted that the Assessing Officer has stated that the assessee has sold an immoveable prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rused the facts of the case, the assessment order and the submissions of the appellant. The plea taken by the AR of the assessee is regarding validity of the assessment proceedings. The AO reopened the assessee proceedings after recording the due reasons and due satisfaction after following the 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 court has only to see 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 anything to be considered at that stage. The reason to believe would mean cause or justification. If the Assessing Officer has cause or justification to know or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee may not have responded to notice u/s. 133(6), however, where she has already filed her return of income and wherein the said transaction has been duly disclosed, there cannot be any failure on part of the assessee to disclose truly and fully such transaction. Thus, the very basis for reopening the assessment is basis incomplete facts available on record where such transaction has been duly disclosed and offered to tax which shows non-application of mind by the AO while recording the reasons and it cannot be held that there is a nexus between the material available on record and formation of belief that the income has escaped assessment. Similar view has been taken by the Coordinate Bench in case of Shri Narain Dutt Sharma vs. ITO (ITA No. 203/JP/2017 dated 07.02.2018) wherein it was held as under: 13. We have heard the rival contentions and pursued the material available on record. Firstly, it is noted that in the instant case, the notice under section 148 in exercise of powers under section 147 has been issued on 23.03.2014 after the expiry of period of four years from the end of the impugned assessment year i.e., AY 2007-08. In terms of proviso to section 147 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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