TMI Blog2021 (10) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant to A.Y.2011-2012. At the time of initiation of proceedings, the assessee has to draw a prima facie inference and satisfaction that the income has escaped assessment but the AO has not debarred or stopped from granting relief to the assessee by dropping the reassessment proceedings if during the course of reassessment proceedings the assessee exclusively established and substantiate that there was no income chargeable to tax has escaped. Without commenting on merits of the case, we are of view that the initiation of reassessment proceedings and proceedings u/s.147 of the Act by pressing into service clause (b) of Explanation 2 to Section 147 of the Act and issuance of notice u/s.148 of the Act is valid and has been based on sound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirming the action of Assessing Officer in reopening the case and making reassessment under Section 147 of the Act which is prayed to be quashed and held as unwarranted, illegal and bad-in law. 2. On the facts and circumstances of the case and in law the learned CIT(A) erred in confirming the action of Assessing Officer determining total income at ₹ 34,01,150/- as against declared income of ₹ 6,28,040/- which is bad in law and excessive. 3. On the facts and circumstances of the case and in law the learned CIT(A) erred in confirming the action of Assessing Officer in making addition of ₹ 27,73,108/- on account of Hardship Compensation received by treating it revenue receipt instead of capital receipt. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal on the grounds as mentioned above. Ground No.1 5. Learned Assessee s Representative (AR) submitted that the ld. CIT(A) has erred in confirming the action of AO in reopening the case and making reassessment u/s.147 of the Act, which deserves to be quashed being unwarranted, illegal and bad-in-law. Ld. AR also submitted that the ld. First Appellate Authority (FAA) has also erred in confirming the action of the AO in initiating reassessment proceedings u/s.147 of the Act and issuing notice u/s.147 of the Act beyond six years without any legal and justified basis. Therefore, the entire reopening proceedings, notice and all consequent proceedings and orders deserve to be quashed being unsustainable and bad in law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 and flat owners were eligible for a new flat in the newly developed building in lieu of their old flats. The assessee has also received flat of 1536 sq.ft. in lieu of old flat of 645 sq.ft. in addition to said hardship allowance. It has not been controverted that the said agreement was undertaken between the said two parties and assessee was also one of the beneficiary/flat owner in the said society. The ld. AR of the assessee has not pointed out any fact that the assessee has declared the said transaction before the department, therefore, the allegation levelled by the AO that the assessee has not declared fully and truly the income chargeable to tax for A.Y. 2010-2011 relevant to A.Y.2011-2012. We may also point out that at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sprudence and accounting. Drawing our attention to the order of ITAT Mumbai Bench in the case of Jitendra Kumar Soneja Vs. ITO, [2016] 72 taxmann.com 318 (mum-Trib), ld. AR submitted that where the assessee was a flat owner in housing society and he received certain sum from the developer as corpus fund towards hardship caused to flat owners on redevelopment, impugned amount would be in nature of capital receipt simplicitor not includible in income as per section 2(24)(vi) of the Act. Ld. AR also submitted that the ITAT Mumbai Bench in the case of Smt. Delilah Raj Mansukhani Vs. ITO, ITA No.3526/Mum/2017, order dated 29.01.2021 by following the order of coordinate bench of the Tribunal in the case of Shri Devshi Lakhamshi Dedhia vs. ACIT in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the developer and it was hardship compensation, rehabilitation compensation kind of benefit. The orders passed by the ITAT Mumbai Bench in case of Smt. Delilah Raj Mansukhani (supra), Jitendra Kumar Soneja (supra) and Kushal K Bangia(supra) including the order passed by the Mumbai Bench in the case of Shri Devshi Lakhamshi Dedhia (supra), it is amply clear that where the assessee being a flat owner in a housing society receives certain sum from developer as corpus fund towards hardship caused to flat owners on redevelopment, impugned amount has to be treated as capital receipt simplicitor which as per Section 2(24)(vi) of the Act is not taxable as income of the assessee. In this regard, we find it profitable to reproduce para 3.2 of the or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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