TMI Blog2023 (2) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the reasons recorded, it is not justifiable as to what information was received by the assessing Officer and what was that issue or material that had not been considered by the assessing Officer during the scrutiny assessment proceedings. As between the date of Order of assessment, which is sought to be reopened and the date of forming of the opinion, in the present case, nothing new had happened. It is clear that there is neither a new information received nor has reference been made to any new material on record. It is an absence of an agreement between the Petitioner, Goel Ganga Developers Pvt Ltd and M/s Nancy Builders and Developers Ltd that the assessing Officer formed a basis for reopening the assessment. It is nobody s case that there existed any such agreement, which ought to have been produced but was not produced. Rather AO intends to imply that in the absence of any such agreement, the benefit ought not to have been granted to the Petitioner in the scrutiny assessment. There cannot be any failure to disclose fully and truly, if there was no such document as such. This, in our opinion, is nothing but a change of opinion, which does not satisfy the jurisdictional f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elopers. There is not agreement between the assessee and the original owner for transfer of the development rights. (4) Inquiries made by AO as a sequel to information collected/received: On perusal of the records it is seen that the assessee has not entered into MOU to acquire the development rights directly with the original party i.e. M/s Goel Ganga Developers Private Limited, but with M/s Nancy Builders and Developers. (5) Findings of the AO: On perusal of the records it is noticed that M/s Goel Ganga Developers Private Limited, the original party was not a party of the MOU between M/s Nancy Builders and Developers Private Limited and M/s Konark Lifespaces. The original owner M/s Goel Ganga Developers Private Limited has not consented to the said transfer. Considering the above facts, it is established that the MOU is only a colourable device to transfer the money to M/s Nancy Builders. Further there is no agreement between the assessee and the original owner for transfer of the said development rights. Hence the transaction of Rs.17,76,08,505/- remains unexplained. (6) Basis for forming reason to believe and details of escapement of income: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that even though assessee has produced books of account, annual report, audited P/L account, balance sheet or other evidence as mentioned above, the requisite material facts as noted above in the reason for reopening were embedded in such a manner that material evidence could not be discovered by the AO and could have been discovered by due diligence, attracting provisions of section 147 of the Act. It is evident from the above discussion that in this case, the issues under consideration were never examined by the AO during the course of regular assessment/reassessment. This fact is corroborated from the contents of notices issued by the AO u/s 143(2)/142(1) during the 143(3) proceedings. It is important to highlight here that material facts relevant for the assessment on the issue under consideration were not fled during the course of assessment proceeding and the same may be embedded in annual report, audited P L a/c, balance sheet and books of account in such a manner that it would require due diligence by the AO to extract these information. For aforesaid reasons, it is not a case of change of opinion by the AO. In this case, more than 4 years have elapsed from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lders Developers Pvt. Ltd. since these payments will have to be adjusted against total purchase price at the time of final transactions. Copy of their Ledger Extract in our books for the period 01-04- 2012 to 31-03-2015 is enclosed. It will be seen there from that after 29-12-2012, we have not paid any amount on account of this transactions. 4. Finally, the order of assessment dated 29th December, 2017 came to be passed. The main ground of challenge in the present petition is that the initiation of reassessment proceedings is nothing but a change of opinion and there was no omission on the part of the Petitioner to make disclosure of the material facts in the present case. In the response fled by the Respondents, this stand of the revenue as was urged by Mr. Kumar, learned Counsel for the Respondents is that there was no proper disclosure of the material facts before the A.O. during scrutiny proceedings, on the ground that M/s Goel Ganga Developers(India) Pvt. Ltd. was not a party to the MOU between the Petitioner and M/s Nancy Builders Developers Pvt. Ltd. and that M/s Goel Ganga Developers(India) Pvt. Ltd. had not consented to the said transfer and, therefore, an amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot accept submission of Mr. Jolly to the effect that only because in the assessment order, detailed reasons have not been recorded on analysis of the materials on the record by itself may justify the Assessing Officer to initiate a proceeding under section 147 of the Act. The said submission is fallacious. An order of assessment can be passed either in terms of sub-section (1) of Section 143 or Sub-section (3) of Section 143. When a regular order of assessment is passed in terms of the said sub-section (3) of section 143 a presumption can be raised that such an order has been passed on application of mind. It is well known that a presumption can also be raised to the effect that in terms of clause (e) of section 114 of the Indian Evidence Act the judicial and official acts have been regularly performed. If it be held that an order which has been passed purportedly without anything further, the same would amount to giving premium to an authority exercising quasi- judicial function to take benefit of its own wrong. In Jindal Photo Films Ltd. Vs. Deputy Commissioner of Income Tax [1998] 234 ITR 170 (Delhi), the Court, in the light of the facts before it and in the backgroun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the Order under Section 143(3) of the Act. 9. In the present case from the record, and specifically from the reasons recorded, it is not justifiable as to what information was received by the assessing Officer and what was that issue or material that had not been considered by the assessing Officer during the scrutiny assessment proceedings. As between the date of Order of assessment, which is sought to be reopened and the date of forming of the opinion, in the present case, nothing new had happened. It is clear that there is neither a new information received nor has reference been made to any new material on record. It is an absence of an agreement between the Petitioner, Goel Ganga Developers Pvt Ltd and M/s Nancy Builders and Developers Ltd that the assessing Officer formed a basis for reopening the assessment. It is nobody s case that there existed any such agreement, which ought to have been produced but was not produced. Rather the assessing Officer intends to imply that in the absence of any such agreement, the benefit ought not to have been granted to the Petitioner in the scrutiny assessment. There cannot be any failure to disclose fully and truly, if there was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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