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TMI Blog2025 (3) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was disposed off by expecting assessee to present his case on merits. Assessment proceedings concluded by making addition of Rs. 15,25,00,000/- being sales consideration and computed total income Rs. 15,40,97,280/-. Aggrieved by the same, the assessee preferred an appeal before the Ld. CIT(A), partly allowed the appeal by deleting the said addition of Rs. 15.25 crore on account of sale consideration vide impugned order dated 31.05.2007. By deleting the additions, as hereinabove, Revenue preferred this appeal by raising following ground: "3. The impugned reopening action made u/s 147/148 of the 1961 Act (unamended law) is without jurisdiction and make in violation of mandatory jurisdictional conditions stipulated under the 1961 Act and so consequential asst. order founded on invalid reopening action is also invalid and illegal and so order of Ld. CIT(A) confirming reopening action is also not legally sustainable. 3. In the course of hearing, the Ld. AR raised ground (related with jurisdictional issue) by filing application under Rule 27 of the ITAT rules. 4. By raising above jurisdictional ground, the Ld. AR submitted that the impugned reopening action u/s 147/ 148 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of revenue and validity of reopening has to be judged strictly on basis of stated in reasons recorded without any improvisation and vehemently submitted that approval u/s 151(2) is itself contingent and conditional in nature and also raised same objection before the Ld. CIT(A). 8. From perusal of the impugned order passed by the Ld. CIT(A), during the first appellate hearing, the Ld. AR submitted written submission before the CIT(A), which were sent to the Ld. AO for his comment and as per the Ld. CIT(A) no comment/ report was received and thereafter the Ld. AR further submitted letter dated 01.05.2017, which was also sent to the Ld. AO, but no report from the Ld. AO was received or sent to the Ld. CIT(A). While deciding the ground raised by the assessee regarding validity and maintainability of the notice u/s 148 of the Act, it is strange that without receiving any desired information form the Ld. AO, the Ld. CIT(A) observed that reasons recorded on 29.03.2014 were forwarded by the Ld. AO for seeking approval on 29.03.2014, and the approval was granted on 29.03.2014 itself and the Ld. CIT(A) also observed that the date mentioned in the approval letter is just typographical mista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed by respondent no. 2 simply contains the endorsement 'approved. 37. In our view, the sanction-order passed by respondent no.2 presents, metaphorically speaking, 'the inscrutable face of sphinx (See: Breen v. Amalgamated Engineering Union [1971] 2 QB 17500; Also see: State of H.P. v. Sardara Singh, (2008) 9 SCC 392). In our view, the satisfaction arrived at by the concerned officer should be discernible from the sanction-order passed under Section 151 of the Act. In this context, the observations made by the Supreme Court in Chhugamal Rajpal vs. S.P. Chaliha. (1971) 1 SCC 453 being apposite are extracted hereafter: Further the report submitted by him under Section 151(2) does not mention any reason for coming to the conclusion that it is a fit case for the issue of a notice under Section 148. We are also of the opinion that the Commissioner has mechanically accorded permission. He did not himself record that he was satisfied that this was a fit case for the issue of a notice under Section 148. To Question & in the report which reads "whether the Commissioner is satisfied that it is a fit case for the issue of notice under Section 148", he just noted the word "y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersession of each officer does not amount to "reasons for the proposed supersession". The most that could be said for the stock reason is that it is a general description of the process adopted in arriving at a conclusion. 28. If that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. (emphasis supplied) This is completely absent in the present case. Thus, we find force in the contention of learned Counsel for the Appellant that there has not been [a] proper application of mind by the Board and if a proper application had taken place, there would have been no reason to re-open the closed chapter in view of what we are setting out hereinafter." [Emphasis is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cussion about the sale of the land. Nothing is coming out from these documents as to how Mis Achievers Sudarshan became the owner of the said land wherein the ist party is the assessee company and the other individuals and 2nd part is M/s. Achievers Builders. Even the Joint Venture Agreement dated 2.5.2006 does not talk about the ownership of the lands in the hands of the partnership concern Merely because assessee company was willing to contribute for the development & construction of Real Estate project. never means that the land has been transferred or sold out Clause 8 of the Joint Venture agreement talks about the Scheduled land in Joint Venture relating to the first party agreed upon rate of Rs 1,50,00,000/- per acre, total amounting to Rs 60 crores. but in any case it does not prove that the land has been transferred in the Joint venture, and there is any documents for transfer of any such title deed in the name of the Joint Venture or the Partnership firm Even as per Clause 15 and 16 of the Joint Venture Agreement defines only that taxes, levies charges, duties etc etc shall be borne by the first party till date of agreement, and thereafter these shall be meet out from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 to develop the entire land admeasuring 30.268 acres was obtained from the office of Directorate General of Town and Country Planning (DGTCP), Haryana and Chandigarh in the collective names of first party i e. four individuals and the assessee company, and the name of second party ie. of M/s RPS Infrastructure Limited was added to said License as Developer vide DTCP letter dated 6 10 2008. In case, the land would have been transferred by the assessee in the year 2006 itself to the Partnership Firm or to the Joint Venture, they would have applied for the License in their name and the License would not have been granted in the name of the owner of the land ie the four individuals and the assessee company These all evidences confirm that the impugned land was not transferred in the year 2006 After a deep examination of the Supplementary Memorandum of Settlement dated 28th February, 2013, I find that out of 30.268 Acres of Land for which the License was granted by the DGTCP, only 16.925 Acres of land was sold by these parties in favour of M/s RPS Infrastructure Limited. The Balance 13.343 Acres of Licensed land remained under the ownership and possession of the four individuals an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Therefore, in the absence of any documentary evidences merely inclusion of the para in the MOU cannot be considered that land was brought into stock of the partnership firm and it is a case of sale/transfer/ relinquishment or extinguishment of any right in the property. The AO relied upon the judgment of the Hon'ble Apex Court in the case of Alapati Venkataramiah Vs CIT 57 ITR 185. The AO himself has mentioned that as per this judgment until and unless the title of properties passed to the purchaser there cannot s sale or transfer of immovable property u/s 2 (47) of the Act. Since there was no transfer of land by the owners of the land through any registered documents, with due regard I am of the opinion that the ratio of this judgment does not apply to the case of the appellant assessee. Vide reply submitted dated 30.05.2017 Ld. AR further brought to my notice that similar reopening of the cases were made in respect of the above four persons i.e. Shri Chhidda Singh S/o Shri Tola Ram. Shri Suraj Pal Singh Slo Shri Chhidda Singh, Shri Bharat Pal Singh S/o Shri Chhidda Singh, Shri Kiran Pal Singh S/o Shri Chhidda Singh, all residents of Rio House No. 411, Sector-17. Farida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord including the Paper Book filed by the assessee. It is seen from the sale deed executed on 30.05.2011, the entire consideration were being made through cheque payments. However, as it can been seen from the other co-owners assessment orders, the Income Tax Department has accepted the returned income filed by the respective assessee and has not adopted section 50C valuation for the other co-owners namely Smt. Hiraben Shantilal and Smt. Indiraben Shantilal as can been seen from the reassessment orders passed u/s. 143(3) r.w.s. 147 dated 30.12.2019. There cannot be two different yardsticks for the same set of sale transaction made by five co-owners. In this connection, we draw support from Rulings of the Hon'ble Madras High Court in the case of Kumarani Smt. Meenakshi Achi (supra) where it has been held as follows: "4.2 That apart, the Tribunal, while passing the order under appeal, had also taken into consideration the order of the Commissioner of Income-tax initiated under section 263 of the Income-tax Act, in and by which, the proposal to revise the assessment in the case of other co-owner was dropped, finding that there was no justification to reject the value adopted by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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