TMI Blog2023 (1) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... be good enough for the authority to clutch the jurisdiction for commencement of reassessment proceedings. However, the sufficiency or correctness of the material would not be in the realm of consideration at this stage. Where the AO has reason to believe and there is prima facie material for commencement of re-assessment proceeding, sufficiency or correctness of the material is not a thing to be considered at that stage and the correctness or otherwise of the reasoning recorded for re-opening of the assessment would not be in the realm of adjudication by going into merits of the said reasoning. If such reasons are not perverse and there being not mere change of opinion and there being sufficient material or reason to believe there is escapement of income to tax it would suffice for the authorities to proceed to re-open the assessment subject to other prescribed criteria also being satisfied. The borrowed opinion also being conspicuously absent in the instant case subsequent events also disclosing certain transactions attributable to the assessee having been unearthed during the course of search proceedings and the statement of the assessee himself disclosing the admission wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is discharged. - R/SPECIAL CIVIL APPLICATION NO. 22815 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 22818 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 19274 of 2018 - - - Dated:- 2-1-2023 - HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI MR BRIHAN R MADHAV(10412) FOR THE PETITIONER(S) NO. 1 DS AFF.NOT FILED (N) FOR THE RESPONDENT(S) NO. 1,2,3 JUDGMENT ( PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR ) 1. These three Special Civil Applications are filed by same assessee and on account of issue involved being common these Special Civil Applications are taken up together for consideration and disposed of by this common judgment by narrating the facts of each case chronologically hereinbelow. 2. Petitioner seeks to challenge the legality of re- opening of the assessment in all these petitions by issuance of impugned notices and passing of the impugned orders raising several contentions. RE: SCA No. 19274 OF 2018 3. Petitioner is a Director / Partner in various firms and derives income from various sources. For the Assessment Year 2011-12, petitioner filed the return of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself, the Assessing Officer has recorded that both the lands bearing Block No.438 and 439 paiki 2, have been purchased by M/s. R.P. Associates of which the petitioner was a partner. It was further pointed out that, insofar as the Block No. 706 at Dumas is concerned, the Assessing Officer has recorded that the petitioner s firm, M/s. A.R. Enterprise, has paid Rs.18 Crores (rounded off) out of the books, which can be treated as unaccounted investment of the petitioner s firm, M/s. A.R. Enterprise, for the financial year 2013- 14. It was submitted that, therefore, even according to the Assessing Officer land of Block No.438 and 439 paiki 2 had been purchased by M/s. R. P. Associates, and land bearing Block No. 706 at Dumas was purchased by M/s. A.R. Enterprise. It was submitted that when the purchases were made by the firm, the Assessing Officer is not justified in seeking to reopen the assessment of the petitioner. It was submitted that, on the reasons recorded, the Assessing Officer could not have formed the belief that income chargeable to tax as escaped assessment in the case of the petitioner. 2. Having regard to the submissions advanced by the learned advocate for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unexplained. 6. During the search of the residence of Mr. Piyush Modi, a sauda chitthi made between assessee as a seller and Mr. Dilip C. Sojitra as purchaser was also found and as a consequence of said search, a survey came to be conducted at the office and factory premises of the assessee. On being confronted with said sauda chitthi (Annexure-A2) dated 23.10.2010, the assessee admitted the same and identified the signature and explained that land Block No.706, situated at Dumas, admeasuring 15972 square yards was decided to be sold to Mr. Dilip Sojitra at the rate of Rs.10,602 per yard and admitted to have received Rs.11,00,000/- as advance. He also admitted that land pertains to navi sharat and agreed that it cannot be sold without altering into juni sharat. He stated that the deal was cancelled and once again the assessee decided to sell his land at the rate of Rs.14,589 per square yard for which Rs.51,00,000/- was advanced by Mr. Dilip Sojitra and stated that his firm M/s. A.R. Enterprise owned the said land. Hence, the Assessing Officer was of the view that the land was purchased by assessee in the name of A.R. Enterprise at an amount of Rs.5,12,83,200/- and was being sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal Commissioner of Income Tax and thereafter the proceedings have been initiated and order passed rejecting the objection raised by the assessee. RE: SCA No. 22818 of 2019 and SCA No. 22815 of 2019 7. For the Assessment Year 2012-13 and 2013-14, assessee filed the return of income. Notice dated 30.3.2019 came to be issued by the authorities to assess / re-assess the income / loss for the respective assessment years and directed the petitioner to file his return of income in the prescribed form. Pursuant to the same, the return of income came to be filed and reiterated that original return of income filed be treated as one filed pursuant to notice. Petitioner also sought for reasons for re-opening of the assessment and thereafter respondent No.3 by way of a letter dated 8.5.2019 provided the reasons for re-opening which is similar and identical to the reasons assigned for the Assessment Year 2011-12. Hence, learned advocates appearing for the parties have reiterated the contentions and pleas advanced in Special Civil Application No.19274 of 2018 being similar and identical to the present Special Civil Applications. 8. Later on, petition has come up for consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdiction. 9.2 Mr. Soparkar, learned Senior Advocate has further submitted that for Survey No. 706, wherein the entire transaction relied upon by the department is based on Sauda Chitthi which is purportedly executed in the year 2010-11 that (i) the land never belong to petitioner, but it is alleged that petitioner wanted to sell the land to one Dilipbhai Sojitra for an amount of Rs.23,30,15,508/-, (ii) that the land was purchased after almost two years by the petitioner along with one M/s. A.R. Enterprise, one partnership firm in the year 2013 i.e. on 28.10.2013 for an amount of Rs.5,12,83,200/- and (iii) it cannot be said that no transaction has taken place in this regard for the year under consideration i.e. 2010-11 when the petitioner in fact has purchased the said portion of land jointly with M/s. A.R. Enterprise only in the year 2013 and controversy appears to have been misconstrued by the petitioner which has led to reopening of assessment and further petitioner is till date the owner of said Survey No. 706 Dumas and there is no question of said Sauda Chitthi being executed in any year. Learned Senior Advocate has further submitted that this was specifically poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing on information to the Assessing Officer of R.P. Associates since the last date of reopening the case for Assessment Year 2011-12 was elapsed and as such, by mere raising inference, proceedings appears to have been initiated, which in the background of these facts is thoroughly impermissible. 9.6 Learned Senior Advocate has vehemently contended that for reopening of assessment under Section 147 of the Income Tax Act the primary condition is that Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any Assessment Year, then he may proceed. This primary basic condition should be available. A perusal of the reasons recorded would indicate that Assessing Officer did not have any reason to believe that income chargeable to tax has escaped assessment for the year under consideration. For formulating the belief the Assessing Officer must have appropriate and cogent material and it cannot be on mere unsupported belief or suspicion. According to learned Senior Advocate before issuance of notice under Section 148 of the Income Tax Act, the aforesaid exercise is must and necessary and same having not been established, impugned notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21741 of 2016 dated 15.02.2017 (paragraph 3, 3.5 and 7.1) and relying upon these decisions, a contention is raised that action sought to be initiated against petitioner is absolutely impermissible. It has been contended that both these transactions even if are of the firm, as how petitioner can be dealt with is not forthcoming. Learned Senior Advocate has submitted that during the process, it appears that two Sauda Chitthi with respect to Survey nos. 706 Dumas appears to have been referred i.e. 23.03.2010 and 09.02.2011, but both the attempts were to sell and not to buy and as such the authority has misconstrued the entire circumstance and thereby, sought to reopen the assessment. Learned Senior Advocate has submitted that every circumstance was explained in detail, but respondent authority has not examined the same and passed an order which is unsustainable. Hence, the relief prayed for deserves to be granted. 10. As against this, Mr. Nikunt Raval, learned advocate appearing on behalf of the Revenue authority has vehemently opposed the petition and has contended at this stage reopening of assessment the authority should be permitted to reopen the assessment instead of interc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stay of further proceedings pursuant to such notice is issued whereby there is no progress in the re-assessment proceeding. The conflict between the assessee and the Revenue for re-opening has been the subject matter of challenge before the constitutional courts by invoking the extraordinary jurisdiction under Article 226 of the Constitution of India read with Article 227 (supervisory jurisdiction). It is trite law that extraordinary jurisdiction is to be sparingly used and until and unless writ applicant is able to establish that either a constitutional right has been infringed or there has been violation of principles of natural justice or there being challenge to the vires of the Act or the Rules, this Court would refrain from exercising the extraordinary jurisdiction. It would be apt and appropriate to notice that where a challenge is laid to the re-opening of the assessment, such matters are required to be taken up by this Court on priority basis and disposed of at the threshold instead of keeping the said matters pending and/or allowing it to be languishing before this Court for years to come and thereby resulting in prejudice to both the parties. We say so, for the reason t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment proceedings. Section 148 of the Act enables the authority to issue a notice where income has escaped assessment viz. before making the assessment, re-assessment or re-computation under Section 147; the Assessing Officer is required to issue notice to the assessee along with copy of the order passed. The Hon ble Apex Court in the case of GKN Driveshafts (India) Ltd. vs. ITO, [2003] 259 ITR 19 (SC) has held that when a notice under Section 148 is issued, the proper course of action for the noticee is to file a return and if he so desires, seek reasons for issuing the notice and the Assessing Officer would be bound to furnish reasons within a reasonable time. It is further held that on receipt of reasons, the noticee is entitled to file objections to issuance of said notice of reopening and the Assessing Officer would be bound to dispose of the same by passing a speaking order. 14. The expression reason to believe which was occurring in Section 147 of the Act prior to the substitution of the said provision has received the attention of the Hon ble Apex Court in the case of Assistant Commissioner of Income-tax vs. Rajesh Jhaveri Stock Brokers (P) Ltd., [2007] 161 Taxman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any opinion and the principle of change of opinion would not apply. It has been further held that: 13. One thing further to be noticed is that intimation under section 143(1)(a) is given without prejudice to the provisions of section 143(2). Though technically the intimation issued was deemed to be a demand notice issued under section 156, that did not per se preclude the right of the Assessing Officer to proceed under section 143(2). That right is preserved and is not taken away. Between the period from April 1, 1989 to March 31, 1998, the second proviso to section 143(1)(a), required that where adjustments were made under the first proviso to section 143(1)(a), an intimation had to be sent to the assessee notwithstanding that no tax or refund was due from him after making such adjustments. With effect from April 1, 1998, the second proviso to section 143(1)(a) was substituted by the Finance Act, 1997, which was operative till June 1, 1999. The requirement was that an intimation was to be sent to the assessee whether or not any adjustment had been made under the first proviso to section 143(1) and notwithstanding that no tax or interest was found due from the assessee concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order has been dispensed with and instead an intimation is required to be sent. Various circulars sent by the Central Board of Direct Taxes spell out the intent of the Legislature, i.e., to minimize the departmental work to scrutinize each and every return and to concentrate on selective scrutiny of returns. These aspects were highlighted by one of us (D. K. Jain J) in Apogee International Limited v. Union of India [(1996) 220 ITR 248]. It may be noted above that under the first proviso to the newly substituted section 143(1), with effect from June 1, 1999, except as provided in the provision itself, the acknowledgment of the return shall be deemed to be an intimation under section 143(1) where (a) either no sum is payable by the assessee, or (b) no refund is due to him. It is significant that the acknowledgment is not done by any Assessing Officer, but mostly by ministerial staff. Can it be said that any assessment is done by them? The reply is an emphatic no. The intimation under section 143(1)(a) was deemed to be a notice of demand under section 156, for the apparent purpose of making machinery provisions relating to recovery of tax applicable. By such application only recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessment; to conclude that he has reason to believe that the income has escaped assessment. In other words, the income which has escaped assessment, the material on which such assessment or re-assessment is being made, not being available at the earlier stage would be the live link for such re-assessment. The tangible material which forms the basis for the belief that income has escaped assessment if evident from reading of the reasons, it would suffice to sustain such re-opening of the assessment. Correctness or otherwise of the tangible material and its evaluation cannot be gone into by this Court in exercise of jurisdiction under Article 226 or 227 of the Constitution of India. 18. The expression reason to believe then occurring in Section 147 cannot be interpreted to mean the Assessing Officer is having absolute power to re-open the assessment of such income declared in the return of income having escaped the assessment. It is in this background the aforesaid expression reason to believe assumes significance inasmuch as change of opinion cannot be the basis or per se reason to re-open the assessment already made. In order to assume jurisdiction under Section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e remedies. It has been further held: 11. It is now settled law that if a litigant has concurrent remedies against the selfsame order, it can avail of the both without prejudice to his rights and contentions made therein unless there is a specific bar created by statute in the matter of availing both the remedies. For instance, under the Code of Civil Procedure, against a judgment and decree, a party can file an application for review before the selfsame court on limited grounds and also file regular appeal before the higher forum the scope of which is much wider. However, the law provides that once the appeal is filed, thereafter, the application for review cannot be filed, whereas during the pendency of the application for review, if the appeal is subsequently filed, for that reason, the review application filed before filing of the appeal does not become infructuous. However, if the appeal is disposed of on merit before disposal of the application for review, the application for review will become infructuous. 12. Similarly, against an exparte decree, an aggrieved defendant can prefer both regular appeal under Section 96 and an application for setting aside exparte de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason assigned for re-opening of the assessment or re-assessment. 23. Petitioner has challenged the impugned order as well as notice of reopening on the ground that same are highhanded arbitrary, capricious and impermissible, respondent No.3 authority had no justification to initiate proceeding under Section 142 of the Income Tax Act while passing impugned order dated 26.11.2018 and has contended further that land bearing Survey Nos.438 and 439 Paiki-2 has never been purchased by petitioner, but is purchased by Mr. Jashwantbhai Mohanbhai Patel as a partner of M/s. R.P. Associates from owners of the aforesaid survey numbers and said transaction has been effected in the account of partnership for the assessment year 2013-14 and has further submitted that with respect to Sauda-chitthi, as has been relied upon can never be utilized for initiating impugned action and there is no failure on the part of petitioner to disclose any material fact for assessment. Petitioner till date is owner of the land bearing Survey No.706 Dumas and as such there is no question of Sauda-chitthi being executed in any year. For the purpose of reopening the assessment, according to petitioner, no imaginary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings, crucial information having been unearthed, on account of which steps were contemplated against the petitioner. On the basis of such material, authority has arrived at a conclusion that there was lapse on the part of the petitioner in disclosing the relevant particulars and certain issues were not allowed to be unearthed and same having come to its notice, steps have been in contemplated to reopen the account by way of impugned notice and order. 26. At this stage, post search inquiry and seized material has revealed certain circumstances which has constrained the authority to initiate steps against the petitioner and while arriving at a conclusion that Saudachitthi was never cancelled and it has been found from the premises of Shri Ramesh Bhadani, as one of the grounds for reopening. Said conclusion is based upon thorough analysis of the material and we found from the order itself that even petitioner has also admitted in his statement that unaccounted cash has been paid for the purchase of both the above said plots but was not disclosed on account of fear of consequences and has also submitted that he would reveal after consultation with other partners. During course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is clear that the Ramesh R: Bhadani has sold the land to Pawan Tulsiani total amount for Rs.32,24,89,000/-. The unaccountable transactions were recorded in the above sauda chithi, so Ramesh R. Bhadam is not disclosing actual fact regarding transactions in respect of th36 land. He is trying to mislead the department by saying that the sauda chithi has been cancelled but when he was asked that whether you have any cancellation deed of sauda chithi. In reply, he stated that he does not have any cancelled sauda chithi. Further, during the course of search, no cancelled sauda chithi has been found from the premises of Ramesh R. Bhadani or any other places. If the sauda chithi has been cancelled, then it must have been found during the course of search along with the huge unaccounted transactions related documents. Ramesh R. Bhadani is stating the incorrect fact about the cancellation of the above sauda chithi only to evade the tax liability of himself and to save the purchaser of the land Pawan K. Tulsiani. Had this sauda chithi been cancelled then property of House No.3, Union Point, Ghod Dod Road, Surat would not been registered in the name of MB Systems (connected to Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings, a statement of Shri Pawan K. Tulsiani, was recorded u/s.131 of the Act. The same sauda chithi at Page No.20 of Annexure A-1 was shown to him during the course of proceedings. On perusal of the indenture contained in sauda chithi. Pawan Tulsiani stated that the facts mentioned in the sauda chithi are true, but he has not signed in the sauda chithi. The signature appearing in the sauda chithi is not done by him. He also stated that his signature has been done by one of his partner, Paresh M. Mavani on behalf of him after confirmation with him on telephone. However he confirmed that the indenture of the sauda chhithi and details of transactions have been conveyed to him on telephone, which were duly confirmed by him. Thus, he admitted that he was well aware about entire deal and the same was finalized after taking his consent on telephone. Since, Pawan Tulsiani was not available in Surat, so his signature was done his partner. As Pawan Tulsiani was claiming that he was out of Surat at the time of preparation of sauda chithi so he was asked to produce the evidence regarding his claim to be out of station. But he could not produce such type of evidence for his claim during the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not registered in the favor of Ramesh R. Bhadani. So Ramesh R. Bhadani has directed Vindobhai Lavri, who was actual owner of the land to register the document of the land on behalf of Pawan K. Tulsiani. Further, Pawan Tulsiani was asked about the transaction which were written on sauda chithi of the land Block No. 438, 439 / Paiki 2, situated at Dumas. As per the above sauda chithi, both the land having admeasuring area 22870 sq. yards were sold to him at the rate of Rs. 14,101/- per sq. yard. Thus, the deal of the land was finalized for total amount of Rs. 32,24,89,870/-, whereas the purchase deeds of both the above lands had been registered for an amount of Rs.3,24,14,400/-vide sale deed No8377 dated 30.5.2012 for land at Block No.438, Dumas and Rs 3,57,00,000/- vide sale deed No.8376 dated 30.5.2012. for land at Block No.439/2, Dumas. Hence it is clear that the differential amount of Rs. 25,43,75,470/- (Rs. 32,24,89,870 Rs. 6,81,14,400) was paid in cash in the form of on money. The relevant part of statement recorded given are as under: PARAGRAPHS ARE IN HINDI On perusal of the Annexure-A/21, page No. 3, it is noticed that Pawan Tulsiani has made payment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inalized as per the terms and conditions as specified in the sauda chithi for both the land. Each conditions including payment schedule have been fulfilled by the purchaser and seller of the land. 28. It may be for this exercise to be undertaken, reopening is sought to be undertaken after a period of about 6 years and more, but for initiating such action, as has been revealed, appropriate sanction has been obtained and thereafter, competent authority is proceeding ahead. Hence, we are of the clear of the opinion that on the basis of such analysis and conclusion of an authority, this is not a fit case to exercise extraordinary jurisdiction. 29. In addition to this, it is clearly visible from the notice impugned in the petition dated 30.3.2018 at Annexure-D, same has been issued after obtaining necessary sanction from the higher authority as required under the Statute and as such notice impugned cannot be assumed to be without jurisdiction. At this stage of proceedings and peculiar background of these facts, we may clarify that petitioner can agitate the issue of even jurisdiction before competent authority who is to proceed and adjudicate further and as such we are of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has filed its return of income for A.Y. 2011-12 on 29.03.2013 declaring total income at Rs.1,00,85.160/-. The same was processed u/s 14301) of the Act on 17.08.2013. 2. In this case, an information has been received from the DCIT, Central Circle 2. Surat related to unexplained investment made by the assessee Shri Pawan Kishanchand Tulsiyani The DCIT, Central Circle- 2, Surat has reported that a search action was carried out u/s 132 of the 1. T. Act, 1961 on 18.02.2014. During the search proceedings in the case of Shri of Shri (illegible) the books of accounts and documents are maintained with his accountant Shri Piyush G. Moch Subsequently search action was carried out at the residence of Piyush G. Modi at 14. Alkapuri Society, Sumul Dairy Road, Surat. During the course of search proceedings various documents were found and seized, relevant information as derived from them is discussed herewith. 2.1. Selling of Land Block No.438, 439/ Paiki 2. by Ramesh R. Bhadani to Pawan Tulsiyani:- As per this sauda chitti seized during the search, land of Block No.438, 439/ Paiki 2, at Dumas admeasuring area 22870 sq. yards was sold to Pawan Tulsiyani at The rate of Rs.141 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ource of the sand cash payment amounting to Rs.6,11,00,000/- made by Shri Pawan K. Tulstani in lieu of purchase of the said two land during the FY 2010- relevant to A.Y 2011-12 remains unexplained 2.2. Selling of Land Block No.706, at Dumas: Page No.2 10, of Annexure-A2 seized during the search from the residence of Piyush Modi pertains to saudu chithi made between Pawan Tulstani as seller and Dilip C Sojitra as purchaser for the land at Block No.06. Dumas. In consequences of search, conducted on 18.02.2014 at the premises of Piyush Modi, at 14. Alkapuri Society, Sumul Dairy Road, Surat, a survey was also conducted on 15.05.2014 at the office and factory premises of Pawan Tulsiyanı to investigate transactions occurred in land Block No.706, situated at Dumas Page No 2 10, of Annexure A-2, seized during the search from the residence of Piyush Modi The above suuda chithi was shown to Shri Pawan Tulsiyani during the survey proceedings and was asked to explain in detail content of this page. On perusal of the page no.2 of Annexure A-2 dated 23.10.2010 as shown to Pawan Tulsiyani he confirmed that the sauda chithi in question was prepared with consent of him an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of Rs 23.30.15.508/ It is a general trend in the land transactions that the registered document were made only at jantri price decided by the Government of Gujarat for stamp duty purpose, which is much below the actual sale consideration. The remaining amount in excess of the document price and the actual market price will be paid in cash by the purchaser. But, in the saudu chithi the actual sale price of the land will be written, since it is a informal document between the purchaser and seller, Further, between the period of 2010 to 2013, the land prices in Surat have been increased substantially in Dumas area. If we consider the sale price of the above land as per the sauda chithi dated 9.2.2011, the actual sale consideration in 2013, which is the most conservative price for the above land then also it is proved that Pawan Tulsion had paid substantial amount on purchase of the above land. Therefore, Pawan Tulsiyani's firm M/s A.R. Enterprise has paid Rs.18,17,32,308/-(23,30,15.508 5,12,83,200) out of books, which can be treated as unaccounted investment of Pawan- Tulsiyani's firm M/s. A.R. Enterprise's for the FY 2013-14 The unaccounted investment of Pawan Tul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k no 706 at Dumas, pertains to FY 2010-11 relevant to A.Y 2011- 12, remains unexplained and required to be added in the total income of the assessee. 5. From the above, it is clear that the assessee has made paid on money in the form of cash to the tune of Rs.6,11,00,000/- for the purchase of land block no. 428, 439/Paiki 2, source of the said cash is unexplained also the assessee has paid investment of Rs.4,54,33,077/- for the purchase of land block no. 706 at Dumas, source of the said investment is also unexplained and the same requires to be brought within the ambit of taxation. 6. In view of the above, I have reason to believe that income of Rs.10,65.33.077/- has escaped assessment within the meaning of section 147 of the IT Act, 1962. It is therefore, necessary to initiate action u/s. 147 of the IT. Act, 1961, in the case of the assessee for A.Y 2011-12. 7. In this case, return of income was filed for the year under consideration and no assessment u/s 143(3)/ 147 was made and the only requirement to initiate proceedings u/s 147 is reason to believe which has been recorded above (refer paragraphs to 6). It is pertinent to mention here that in this case the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 of the lease-cum-sale agreement gives discretion to the BDA to take action against the lessee in the event of a default in payment of rent or committing breach of the conditions of the lease-cum-sale agreement or the provisions of law.[8] This will, of course, require a notice being given to the alleged defaulter followed by a hearing and then a decision in the matter. By taking over the functions of the BDA in this regard, the High Court has given a complete go-bye to the procedural requirements and has mandated a particular course of action to be taken by the BDA. It is quite possible that if the BDA is allowed to exercise its discretion it may not necessarily direct forfeiture of the lease but that was sought to be pre- empted by the direction given by the High Court which, in our opinion, acted beyond its jurisdiction in this regard. 43. To this we may add that if a court is of the opinion that a statutory authority cannot take an independent or impartial decision due to some external or internal pressure, it must give its reasons for coming to that conclusion. The reasons given by the court for disabling the statutory authority from taking a decision can always be test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there being sufficient material or reason to believe there is escapement of income to tax it would suffice for the authorities to proceed to re-open the assessment subject to other prescribed criteria also being satisfied. The borrowed opinion also being conspicuously absent in the instant case subsequent events also disclosing certain transactions attributable to the assessee having been unearthed during the course of search proceedings and the statement of the assessee himself disclosing the admission with regard to the said transaction, it cannot be gainsaid by the petitioner / assessee that such commencement of re-assessment proceeding is without jurisdiction or jurisdictional error having been committed by the authorities. 33. At this stage, it cannot be assumed either way who is right or wrong on the basis of this crucial disputed questions of fact. In catena of decisions, Hon ble the Apex Court has propounded that extraordinary jurisdiction may not be exercised when disputed questions of fact are involved though there are line of judgments but with a view to avoid overburdening the present order, we propose to extract the relevant observations contained in paragraph 26 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n paragraph 64, we deem it proper to quote hereunder:- 64. The Court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact-situation of the decision on which reliance is placed, as it has to be ascertained by analysing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision. A judgment of the Court is not to be read as a statute, as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper. (Vide MCD v. Gurnam Kaur, Govt. of Karnataka v. Gowramma and State of Haryana v. Dharam Singh) 37. Hence, we are of the view that decisions in the case of Commissioner of Income Tax v. Balbir Singh Maini reported in [2017] 298 ITR 351 (SC), in the case of Ami Ashish Shah v. Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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