TMI Blog2023 (4) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... essee in respect of return of income would differ. Petitioner assessee showed all facts and details in the return of income. Neither there existed foundational facts, nor it could be said that any tangible material was available with the assessing officer to justify exercise of power. It could be said that the basis for reopening was absent. When the foundation was missing, there could not have been erection of ground to seek reopening of assessment. It could not be said, in the facts of the case, that the assessing officer could have harboured a reason to believe acceptable in eye of law to seek reopening. Decided in favour of assessee. - R/SPECIAL CIVIL APPLICATION NO. 16884 of 2018 - - - Dated:- 17-4-2023 - HONOURABLE MR. JUSTI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tune of Rs. 3,95,497/- and net income to the tune of Rs. 41,500/- were declared after showing the relevant calculations of income and other relevant details. 3.1 The said return of income came to be processed by the competent authority. The ground for seeking to reopen the assessment as available from the reasons for re-opening of the assessment supplied to the petitioner on 30.08.2018 reads as under, As per information available with this office the assessee has sold immovable property for sale consideration of Rs. 9,00,00,000/- jointly with other. Further on verification of return of income filed on 20.7.2011 declaring total income at Rs. 41,500/- by the assessee, the assessee has not declared capital gain on transfer of capi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled return of income for AY 2011-2012 declaring the total income at Rs. 41,500/- only. Therefore, there was reason to believe that you have not offered the capital gain for tax on sale of immovable property. (ii) In the reasons recorded, the AO has reason to believe that income chargeable to tax had escaped assessment. Reason to believe refers to the prima facie or tentative belief which the Assessing Officer is required to form at the time of recording the reasons and issuing the notice u/s. 148 of the Act. If there would be concrete belief of material, the Assessing Officer should have to invoke the provisions of Income Tax Act and add the income which is believed to be chargeable to tax has escaped from assessment and in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was only for the net income, it was submitted of Rs. 41,500/-. 4.2 According to the contention of the respondent, the petitioner had not declared the capital gains and there was escapment of income. It was also contended that other co-owner assessed total capital gain at Rs. 1,27,94,856/-. Learned advocate for the respondent relied on the decision of the supreme Court in Assistant Commissioner of Income-Tax vs. Rajesh Jhaveri Stock Brokers Pvt. Ltd. [(2007) 291 ITR (SC)]. 5. In light of the factual scenario emerging as above, when the reasons for reopening are to be looked at, the assessing officer stated that there was a sale of immovable property for a consideration of Rs. 9 crore jointly with others and that in the return of inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reopening was without any basis, could successfully relied on a decision of this court in Mumtaz Haji Mohmad Memon vs. Income Tax Officer being Special Civil Application No. 21030 of 2017 decided on 21.3.2018 where the facts of the case were akin to one on hand. 6. What surfaced from the facts and contentions is that the notice for reopening and the grounds on which it was rested, were without supported by any foundational facts. When the return of income was filed and all the relevant details including the share in the sale proceeds, the basis of the details of exemption claimed under section 54EC, the index cost etc. were shown, there was nothing to doubt the said details which figured in the return of income, which was processed. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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