9911796707
TMI Blog2022 (10) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... be disposed of by this common judgment. 4. Rule returnable forthwith in each petition. Learned advocate Mr. Nikunt Raval waives service of notice of rule for the respondent in each petition. 5. In all these petitions, the petitioners have challenged the impugned notice dated 31.03.2021 issued under section 148 of the Income Tax Act, 1961 (For short "the Act") proposing to reopen the assessment for the Assessment Year 2014-2015. 6. For the sake of convenience, facts are recorded from Special Civil Application No.4648/2022 treating it as a lead matter. 7. Brief facts of the case are that the petitioner is an individual. During the year under consideration, the petitioner earned income being 'profits and gains from business and profession' as well as 'income from other sources'. 7.1) The petitioner filed return of income for the year under consideration on 17.03.2015 declaring total income at Rs.4,57,530/-. 7.2) The respondent issued the impugned notice dated 31.03.2021 under section 148 of the Act seeking to reopen the case of the petitioner. 7.3) In response to the impugned notice, the petitioner filed return of income on 30.04.2021 and further requested the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing us 147 is reason to believe which has been recorded above. It is pertinent to mention here that in this case the assessed has filed the return of income for the year under consideration, but no assessment as stipulated us 2(40) of the Act was made and the return of Income was only processed U/s 143(3) of the Act. In view of the above, the provisions of clause (b) of Explanation 2 to section 147 are applicable to facts of this case and the assessment year under consideration is deemed to be a case where income chargeable to tax has escaped assessment. In this case more than 4 years have lapsed from the end of assessment year under consideration. Hence necessary sanction to issue notice u/s 148 of the Act is being obtained from Principal Commissioner of Income Tax-1. Surat as per the provisions of section 151 of the Act." 7.5) The petitioner, vide letter dated 12.01.2021, raised objections against reopening the assessment. 7.6) The respondent, vide order dated 19.01.2022, disposed of such holding that reopening is justified. 7.7) The petitioner, vide letter dated 16.02.2022, raised further objections against reopening. 7.8) The respondent, vide order dated 22.02.2022, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8.4) It was therefore, submitted that it can be inferred that the case of the petitioner has been reopened in a mechanical manner, there is no independent application of mind at the end of the respondent and there is no prima facie belief as to escapement of income chargeable to tax. 8.5) It was submitted that the jurisdictional requirement for reopening the case of an assessee is that the Assessing Officer concerned must have reason to believe that any income chargeable to tax has escaped assessment. In order to have such reason to believe, it is very much essential that the Assessing Officer concerned must be aware of the very transaction based on which it is sought to be alleged that some income chargeable to tax has escaped assessment. In the present case, the respondent is not aware about the very basic details pertaining to the transactions in question and in absence of such basic details, it is not possible for any person to have reason to believe that income chargeable to tax has escaped assessment. 8.6) Learned Senior Advocate Mr. Hemani submitted that as per section 151 of the Act, no notice shall be issued under section 148 of the Act after the expiry of a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner. The respondent has not at all applied his mind independently so as to reach a conclusion that any income has escaped assessment and in absence of any such exercise at the end of the respondent, it becomes clear that the assessment has been reopened merely based on borrowed satisfaction as against the statutory requirement of independent satisfaction. Therefore, the action of reopening is not justified in the eye of law. 9. On the other hand, learned advocate Mr. Nikunt Raval for the respondent submitted that the information was received that the assessee has entered into an agreement to sale of immovable properties against which the assessee had received an amount of Rs.5,53,53,053/- from the buyer. At the time of recording reasons for re-opening, the Assessing Officer had in his hands sufficient tangible material such as copy of agreement for sale of properties wherein the assessee had also signed the document and copy of FIR filed against the owner of the properties. Further, the assessee had not disclosed the said amount in his return of income. Therefore, the contention of the petitioner that there is no escapement of income chargeable to tax is not true. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diya by execution of sale deed and the immovable properties are registered in the name of the petitioners and also the possession of the properties is with the petitioner and other co-owners. Thus there is no income accrued on account of transfer of a capital asset either by way of sale deed or handing over possession pursuant to agreement to sell. It is well settled that the Assessing Officer must have reason to believe that income chargeable to tax has escaped assessment. In the present case, there is no escapement of any income chargeable to tax due to failure on part of the assessee to disclose truly and fully all material facts as all the relevant records were produced on record. In absence of any escapement of income chargeable to tax, it is not open for the department to reopen the case of the present assessee. 13. In view of foregoing reasons, considering the facts of the case, impugned notices under section 148 of the Act, 1961 dated 31.03.2021 are not tenable in law and are accordingly quashed and set aside and consequently the orders disposing of the objections raised by the petitioners against the notice for reopening are also quashed and set aside. 14. Rule is made a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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