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2024 (8) TMI 1081

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....pugned notice is without jurisdiction, without complying with the preconditions required for initiating proceedings under Section 148 of the IT Act and that the same have been initiated without any material on record. 4. The facts in brief are that the petitioner filed a Return of Income (ROI) on 31.03.2017 declaring a total income of Rs.17,57,864/-. The petitioner disclosed a sale consideration of Rs.2,95,07,000/- and arrived at a capital gain of Rs.16,54,200/- after reducing cost of acquisition with indexation at Rs.2,78,52,800/-. 5. On 14.08.2018, survey action under Section 133A of the IT Act was carried out in the case of M/s. Adwalpalkar Constructions & Resorts Pvt. Ltd. In the post-survey proceedings, it was found that by a Sale Deed cum exchange executed on 20.01.2015 between the petitioners and M/s. Adwalpalkar Constructions & Resorts Pvt. Ltd., the actual payment made by M/s. Adwalpalkar Constructions & Resorts Pvt. Ltd. to the petitioners was Rs.3,59,50,000/-. According to the Assessing Officer, the petitioner has not disclosed the amount of Rs.64,43,000/- (Rs.3,59,50,000/- - Rs.2,95,07,000/-) in her ROI dated 31.03.2017. Thus, it is the case of the Revenue that the pe....

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....plicable to the residents of Goa. (b) Ignoring the registered sale deeds which are available in the public domain and information regarding which would have been clearly transmitted to the Income Tax Department, clearly show that the original petitioner was only a 50% owner of the properties. (c) Ignoring the fact that sale consideration corresponding to her share of 50% had been duly offered in the Return of Income and hence there was no escapement of income. (d) Comparison of Rs.3,59,50,000/- (total sale consideration as per Section 50C for property no. II) with Rs.2,95,07,000/- (original petitioner's share in sale consideration of all three properties) is an erroneous comparison. In support of his submissions, learned counsel relied upon the following decisions: (i) Nivi Trading Ltd. V/s. Union of India (2015) 375 ITR 308 (Bom.). (ii) Ankita A. Choksey V/s. ITO & Ors. (2019) 411 ITR 207 (Bom.) (iii) Smt. Nirupa Udhav Pawar & Anr. V/s. ACIT & Ors. WP No.1145 of 2017 decided on 06.10.202. 10. On the other hand, Ms Susan Linhares learned counsel for the respondents argued in support of the impugned notices and proceedings while opposing the petition. It is s....

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.... income chargeable to tax has escaped Assessment must be on correct facts. If the facts, as recorded in the reasons are not correct and the assessee points out the same in its objections, then the order on objection must deal with it and prima facie, establish that the facts stated by it in its reasons as recorded are correct. In the absence of the order of objections dealing with the assertion of the assessee that the correct facts are not as recorded in the reason, it would be safe to draw an adverse inference against the Revenue." 13. In Smt Nirupa Udhav Pawar & Anr. V/s. The Assistant Commissioner of Income Tax & Ors. (supra), this Court in para 23 held as under: "23. This Court, in a catena of decisions beginning from Hindustan Lever Ltd. v. R.B. Wadkar, Asstt. CIT (No. 2) - 268 ITR 332 has held that the notice for reopening of assessment would stand or fall based on the reasons recorded at the time of issuing notice for reopening of assessment. This Court has held that the reasons are required to be read as recorded by the assessing officer and the same cannot be improved upon either by substitution, addition, or deletion. This Court held that the reasons recorded by the a....

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....no income chargeable to tax has escaped assessment: i. Ignoring that the original petitioner only had 50% share in the Properties since the original petitioner and her late husband were governed by the Portuguese Civil Code applicable to residents of Goa. ii. Ignoring the sale deeds which are available on record clearly show that the original petitioner was only a 50% owner of the Properties. iii Ignoring the fact that sale consideration corresponding to her share of 50% had been duly offered in the Return of Income (Pg. 236 to 238) and hence, there was no escapement of income. iv. Comparison of Rs.3,59,50,000/-(Total sale consideration as per sec. 50C for Property No. II) with Rs.2,95,07,000/- (Orig. Petitioner's share in sale consideration of all 3 Properties) is an erroneous comparison. 16. Learned Counsel for the petitioner submitted that the order dated 16.07.2021 suffers from the aforesaid jurisdictional error. So far as the reason cited by the respondents for rejecting the explanation, "In the return of income, the original petitioner had not stated that she was governed by the provisions of Section 5A of the income Tax Act", it is the submission of the lear....