Late Smt. Magan Devi Choudhary,L/H Shri Laxmi Kant Choudhary , Jaipur V. ITO, WARD-2-1, AJMER

ITA 540/JPR/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2096 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 16-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition; Reason to believe; Reassessment proceedings; Capital Gains
• Section: 50C; 244A; 191; 48; 13; 147; 131; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 540/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 LATE SMT. MAGAN DEVI CHOUDHARY L/H SHRI LAXMI KANT CHOUDHARY RATAN BUILDING, 388/10, OPP. PATEL MAIDAN, JAIPUR ROAD, AJMER. CUKE VS. THE ITO, WARD-2(1), AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AIUPC3153A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : MISS CHANCHAL MEENA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 17/02/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 28/04/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), AJMER DATED 14.03.2017 FOR THE ASSESSMENT Y EAR 2008-09 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: - 1.1 THE VERY ACTION TAKEN U/S 147 R/W 148 IS BAD I N LAW WITHOUT JURISDICTION AND BEING VOID AB-INITIO, THE SAME KIN DLY BE QUASHED. CONSEQUENTLY THE IMPUGNED ASSESSMENT FRAMED U/S 143 (3)/147 DATED 14.03.2017 ALSO KINDLY BE QUASHED. ITA NO. 540/JP/2017 LATE SMT. MAGAN DEVI CHOUDHARY VS. ITO 2 1.2 THE IMPUGNED ORDER U/S 143(3)/147 DATED 14.03. 2017 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICT ION AND VARIOUS OTHER REASONS AND HENCE THE SAME KINDLY BE QUASHED. 1.3 THE LD.CIT(A) SERIOUSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN HOLDING THE VALIDITY OF NOTICE ISSUED U/S 1 48 OF THE ACT EVEN THOUGH THE SAME WAS INVALID IN THE EYES OF LAW HAVI NG BEEN ISSUED IN THE NAME OF DECEASED ASSESSEE U/S 148 R/W 159 OF THE ACT. THE CONFIRMATION OF THE VALIDITY OF THE IMPUGNED NOTICE BEING TOTALLY CONTRARY TO THE PROVISION OF LAW AND FACTS BE QUASH ED AND CONSEQUENTLY THE IMPUGNED ASSESSMENT FRAMED U/S 143(3)/147 ALSO KINDLY BE QUASHED. 2. ALTERNATIVELY , THE LD. CIT(A) FURTHER ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN NOT DIRECTING THE AO TO REFER THE MATTER TO THE DVO DESPITE THE ASSESSEE HAVING OBJECTED TO THE HIGHER VALUATION MADE BY THE DVO U/S 50C(2) OF THE ACT, KINDLY BE DELETED IN FULL. 3. THE LD. AO FURTHER ERRED IN LAW AS WELL AS ON TH E FACTS OF THE CASE IN CHARGING INTEREST U/S 234A, 234B, 234C & 234D OF TH E ACT AND AS ALSO IN WITHDRAWING INTEREST U/S 244A OF THE ACT. THE AP PELLANT TOTALLY DENIES ITS LIABILITY OF CHARGING AND WITHDRAWAL OF ANY SUC H INTEREST SO CHARGED/WITHDRAWN, BEING CONTRARY TO THE PROVISION OF LAW AND FACTS, KINDLY BE DELETED IN FULL. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE NOTI CE U/S 148 OF THE ACT DATED 27.03.2015 WAS ISSUED IN THE NAME OF THE SMT MAGAN DEVI THROUGH LEGAL HEIR, SHRI LAXMI KANT CHOUDHARY BY ITO WARD-2 (1), AJMER AND THE CONTENTS OF THE REASONS SO RECORDED BEFORE ISSUANCE OF NOTICE U/S 148 READ AS UNDER: ITA NO. 540/JP/2017 LATE SMT. MAGAN DEVI CHOUDHARY VS. ITO 3 3. SUBSEQUENTLY, SHRI LAXMI KANT CHOUDHARY WAS ISSU ED SUMMONS U/S 131 OF THE ACT AND HIS STATEMENT WAS RECORDED BY TH E ASSESSING OFFICER. IN HIS STATEMENT, HE SUBMITTED THAT HIS MOTHER, LATE S MT. MAGAN DEVI CHOUDHARY HAS SINCE EXPIRED ON 28.02.2011 AND BEFOR E HER EXPIRY, SHE HAD FILED HER RETURN OF INCOME FOR A.Y. 2008-09 WHEREIN SHE HAD DECLARED THE TRANSACTIONS RELATING TO SALE OF THE PROPERTY WHICH IS SUBJECT MATTER OF REASONS SO RECORDED FOR REOPENING THE MATTER. FURTHER, A LE TTER WAS FILED ON 11.01.2016 WHEREIN IT WAS SUBMITTED THAT THE RETURN ORIGINALLY FILED BE TAKEN AS RETURN FILED IN PURSUANCE TO NOTICE U/S 148 OF T HE ACT. DURING THE COURSE OF PROCEEDINGS, SHOW CAUSE WAS ALSO ISSUED AS TO WHY T HE VALUE OF THE PROPERTIES NOT BE CONSIDERED AS PER THE PROVISIONS OF SECTION 50C OF THE ACT. THE ASSESSING OFFICER, THEREAFTER TAKING THE SAID S TATEMENT AND THE RETURN OF INCOME SO FILED BY THE DECEASED ASSESSEE INTO CONSI DERATION, BESIDES OTHER INFORMATION/DOCUMENTS SO CALLED DURING THE PROCEEDI NGS, INVOKED THE PROVISIONS OF SECTION 50C HOLDING THAT THE SAME WAS NOT OBJECTED TO AND WORKED OUT LONG TERM CAPITAL GAINS IN RESPECT OF TH E AFORESAID PROPERTY SOLD ON 27.12.2007 FOR RS. 60,00,000/- WHICH WAS VALUED ADOPTED BY THE SUB- REGISTRAR AT RS. 2,36,92,362/- AND ADOPTED AS DEEME D VALUE OF CONSIDERATION U/S 50C AND ALLOWING THE COST OF ACQUISITION AFTER INDEXATION AS CLAIMED BY THE ASSESSEE IN THE RETURN OF INCOME. FURTHER, ANOTHER PROPERTY WHICH WAS SOLD ON 10.01.2008 FOR RS. 10,00,000/- WAS ALSO BROUGHT TO TAX BY CONSIDERING THE DEEMED SALES CONSIDERATION OF RS 40,12,800/- AS PER VALUE DETERMINED BY THE SUB-REGISTRAR AFTER ALLOWING INDEXATION AS PER RETU RN OF INCOME. ACCORDINGLY, LONG TERM CAPITAL GAINS AMOUNTING TO RS. 29,54,242/ - WAS DETERMINED BY THE AO AS AGAINST LOSS OF RS 1,77,50,920/- AS PER ORIGI NAL RETURN FILED BY THE ASSESSEE. BEING AGGRIEVED, THE MATTER WAS CARRIED IN APPEAL BEFORE THE LD. CIT(A) WHO HAS SINCE CONFIRMED THE SAID ADDITION AN D AGAINST THE SAID FINDINGS, THE ASSESSEE IS IN APPEAL BEFORE US. ITA NO. 540/JP/2017 LATE SMT. MAGAN DEVI CHOUDHARY VS. ITO 4 4. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THE ASSESSEE HAD SINCE EXPIRED ON 28.01.2011 AND THE NOTICE U/S 148 HAS BEEN ISSUED IN THE NAME OF SMT. MAGAN DEVI THROUGH LEGAL HEIR, SHR I LAXMI KANT CHOUDHARY AND NOT IN THE NAME OF LATE SMT. MAGAN DEVI THROUGH ALL THE LEGAL HEIRS. IT WAS SUBMITTED THAT THE DETAILS OF THE LEGAL HEIRS W ERE ALSO AVAILABLE IN THE REGISTERED SALE DEED BASED ON WHICH REASONS U/S 148 WERE RECORDED. IT WAS FURTHER SUBMITTED THAT THE ASSESSMENT WAS ALSO FRAM ED IN THE NAME OF LATE SMT. MAGAN DEVI THROUGH LEGAL HEIR, SHRI LAXMI KANT CHOUDHARY WITHOUT IMPLEADING ALL THE LEGAL HEIRS. IT WAS FURTHER SUB MITTED THAT MERELY BECAUSE ONE OF THE L/HS ATTENDED THE PROCEEDINGS DOES NOT M AKE THE DEFECT CURABLE U/S 292BB, PARTICULARLY WHEN HE WAS SUMMONED U/S 13 1 AND CALLED UPON TO ATTEND. NON-COMPLIANCE WOULD HAVE ENTAILED PENALTY HENCE HIS PARTICIPATION WAS UNDER PRESSURE ONLY BUT NOT VOLUNTARILY. MOREOV ER, THE OFFICER TAKING STATEMENT ADVISED HIM TO BE PRESUMED THE ONLY L/H A ND SOUGHT HIS CONSENT, VIDE Q 6, WHICH IS A LEADING Q. BUT THEN HIS ANSWER DOES NOT SUGGEST ANY CATEGORICAL ADMISSION FOR OTHER LEGAL HEIRS, HENCE, THE CONTENTION OF THE LD. CIT(A) THAT SHRI LAXMI KANT HAD NO OBJECTION IF OTH ER L/HS WERE NOT BROUGHT IS ALSO IMMATERIAL. IN FACT, THE OTHER L/HS NEVER KNEW OF THE FACT OF THE ISSUANCE OF NOTICE AND THE FACT THAT SOME ASSESSMENT PROCEED INGS WERE GOING ON IN THE NAME OF THE DECEASED THEN HOW THEY COULD HAVE BEEN EXPECTED TO RAISE THE OBJECTIONS AND ONE OF THE L/HS NAMELY SHRI LAXMI KA NT COULD NOT HAVE GIVEN CONSENT/WAIVE THE OBJECTION ON BEHALF OF THE OTHER L/HS WITHOUT ANY AUTHORITY TO HIM. IT WAS ACCORDINGLY SUBMITTED THAT THE ASSES SMENT SO FRAMED WITHOUT IMPLEADING ALL THE LEGAL HEIRS IS THE NULLITY IN TH E EYE OF LAW AND THE SAME SHOULD BE ACCORDINGLY QUASHED. IN SUPPORT, RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS:- LATE SMT. GULAB DEVI SHARMA VS. ITO (2016) 56 TAXWO RLD 99 (JP) ACIT VS. MANGI LAL (2004) 83 TTJ 590 (JODH). ITO VS. UMEDRAM (1995) 54 ITD 191 (JP) ITA NO. 540/JP/2017 LATE SMT. MAGAN DEVI CHOUDHARY VS. ITO 5 SHANTA KAPOOR VS. ACIT (2018) 93 TAXMANN.COM 226 (A GRA). ALAMELU VEERAPPAN VS. ITO (2018) 95 TAXMANN.COM 155 (MAD) VIPIN WALIA VS. ITO (2016) 382 ITR 19 (DEL). 5. IT WAS FURTHER SUBMITTED THAT NOTICE U/S 148 OF THE ACT WAS ISSUED BY ITO, WARD-2(1), AJMER WHO WAS NOT HOLDING A CORRECT AND VALID JURISDICTION OVER THE ASSESSEE AS THE ASSESSEE HAD FILED HER RET URN OF INCOME FOR THE SUBJECT ASSESSMENT YEAR WITH ITO 15(1)(4), MUMBAI W HEREIN SHE HAD DISCLOSED CAPITAL GAINS ARISING FROM SALE OF THE SU BJECT PROPERTY. IT WAS FURTHER SUBMITTED THAT THE RETURN SO FILED WAS WITH THE SAM E PAN AS MENTIONED BY THE ITO, AJMER WHILE ISSUING NOTICE U/S 148 OF THE ACT. IT WAS SUBMITTED THAT WHERE THE ITO, MUMBAI HAS ALREADY ADMITTED THE RETU RN AND EVEN ASSESSED THE SAID RETURN, THE ITO, AJMER HAD NO JURISDICTION TO ISSUE THE SUBJECT NOTICE. IT WAS FURTHER SUBMITTED THAT MERELY BECAUSE THE AD DRESS OF THE ASSESSEE IN THE PAN DATABASE CONTAINS THE AJMER ADDRESS DOES NO T AUTHORISE HIM TO EXERCISE JURISDICTION OVER THE ASSESSEE WHICH DEPEN DS UPON RESIDENCE OF THE ASSESSEE AS PER SECTION 124 OF THE ACT. 6. IT WAS FURTHER SUBMITTED THAT THE AO HAD INITIAT ED THE PROCEEDINGS U/S 147 FOR THE REASONS THAT THE ASSESSEE HAD SOLD THE PIECE OF LAND FOR A CONSIDERATION OF RS. 60,00,000/- AND THE STAMP VALU E AUTHORITY HAS DETERMINED THE VALUE AT RS. 2,36,92,262/- AND SINCE THE ASSESSEE HAS NOT FILED ANY RETURN FOR THE ASSESSMENT YEAR UNDER CONS IDERATION, THE INCOME FROM THE SALE OF PROPERTY HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT. IN THIS REGARD IT WAS SUBMITTED THA T THE ASSESSEE HAD ALREADY FILED HER RETURN OF INCOME FOR THE SUBJECT ASSESSME NT YEAR I.E A.Y. 2008-09 ON 25.09.2009 DECLARING THE TOTAL INCOME (LOSS) OF RS. 1,77,50,920/- WHEREIN THE ASSESSEE HERSELF HAD DISCLOSED THE INCOME FROM THE SALE OF THE SUBJECTED LAND. COPY OF ACKNOWLEDGMENT EVEN CONTAINS THE STAMP OF I NCOME TAX OFFICER SHOWING THAT THE SAID RETURN WITH ENCLOSURES WAS BE FORE THE INCOME TAX DEPARTMENT. COPIES OF THE SAME WAS EVEN FILED BEFOR E THE AO AND THE CIT(A) ITA NO. 540/JP/2017 LATE SMT. MAGAN DEVI CHOUDHARY VS. ITO 6 DURING THE COURSE OF PRESENT PROCEEDINGS. MOREOVER, THE L/H HAS CLEARLY STATED THIS FACT IN HIS STATEMENT U/S 131 AND HE AL SO SUBMITTED THE COPY OF RETURN ALONG WITH THE COMPUTATION SHEET. FURTHER AS PER QUES. NO. 5 OF THE STATEMENTS OF THE LAXMI KANT CHOUDHARY (L/H), THE A O HAS HIMSELF DISCUSSED THE VERY SAME RETURN FILED THE ASSESSEE IN THE SUBJ ECTED ASSESSMENT YEAR. EVEN IN THE AOS ORDER AT PG 3, THE AO HAS HIMSELF ADMITTED THAT THE RETURN HAD ALREADY BEEN FILED BEFORE THE ITO WARD 15(1)(4) , MUMBAI AND THE ROI DISCLOSED THE SALE OF THE LAND THEREIN. IT WAS CLEA R FROM THE VERY FACTS OF THE CASE THAT THERE WAS NO ESCAPEMENT OF INCOME WITHIN THE MEANING OF SECTION 147 AS THE ASSESSEE HAD ALREADY FILED THE RETURN. T HE VERY REASON RECORDED BY THE AO FOR REOPENING THE ASSESSMENT IS FOUND NON-EX ISTENT AND HAS BECOME INFRUCTUOUS. HENCE, THE NOTICE U/S 148 HAS ITSELF B ECOME INVALID AND THEREFORE, SAME AS WELL AS THE REASSESSMENT PROCEEDINGS ARE LI ABLE TO BE QUASHED. IN SUPPORT, RELIANCE WAS PLACED ON THE DECISION OF HON BLE GUJARAT HIGH COURT IN CASE OF SUNRISE EDUCATION TRUST VS ITO (EXEMPTION) [2018] 92 TAXMANN.COM 74 (GUJ). 7. PER CONTRA, THE LD. DR SUBMITTED THAT IT IS NOT DISPUTED THAT THE ASSESSEE HAD EXPIRED PRIOR TO THE ISSUANCE OF NOTICE U/S 148 AND THATS THE REASON THE NOTICE WAS ISSUED TO THE DECEASED ASSESSEE THROUGH HIS LEGAL HEIR, SHRI LAXMI KANT CHAUDHARY. IT WAS SUBMITTED THAT HE APPEARED BEFORE THE ASSESSING OFFICER AND HIS STATEMENT WAS ALSO RECORDED WHERE H E HAS ADMITTED THAT HE HOLDS A JOINT ACCOUNT WITH HIS DECEASED MOTHER AND HE IS THE LEGAL HEIR OF HIS DECEASED MOTHER. HE HAS NO WHERE STATED THAT THERE ARE OTHER LEGAL HEIRS OF THE DECEASED ASSESSEE. THEREFORE, UNLESS AND UNTIL THE ASSESSING OFFICER IS MADE AWARE OF OTHER LEGAL HEIRS, THE ASSESSING OFFI CER CANNOT IMPLEAD OTHER SIBLINGS OF THE SHRI LAXMI KANT CHAUDHARY, NAMELY H IS FOUR SISTERS. IT WAS FURTHER SUBMITTED THAT ALL ALONG DURING THE ASSESSM ENT AND APPELLATE PROCEEDINGS AND EVEN DURING THE PRESENT PROCEEDINGS , NOTHING HAS BEEN BROUGHT ON RECORD WHICH CLEARLY ESTABLISH THAT WHET HER THE IMPUGNED PROPERTY ITA NO. 540/JP/2017 LATE SMT. MAGAN DEVI CHOUDHARY VS. ITO 7 WAS ANCESTRAL OR SELF-ACQUIRED BY THE DECEASED ASSE SSEE AND WHETHER THE ESTATE OF THE DECEASED ASSESSEE HAS DEVOLVED ON OTH ER MEMBERS OF THE FAMILY OTHER THAN SHRI LAXMI KANT CHAUDHARY AND THEREFORE MERELY BEING THE SIBLINGS, IT CANNOT BE PRESUMED THAT THERE ARE OTHER LEGAL HE IRS TO THE ESTATE OF THE DECEASED ASSESSEE WHO ARE EQUALLY RESPONSIBLE TO DI SCHARGE THE TAX OBLIGATIONS OF THE DECEASED ASSESSEE TO THE EXTENT OF THEIR RESPECTIVE SHARE IN THE ESTATE OF THE DECEASED ASSESSEE. IT WAS ACCORD INGLY SUBMITTED THAT THERE IS NO BASIS IN CONTENTION SO ADVANCED BY THE LD AR THAT THE ASSESSMENT SO FRAMED WITHOUT IMPLEADING ALL THE LEGAL HEIRS IS TH E NULLITY IN THE EYE OF LAW. 8. REGARDING ISSUE OF NOTICE BY NON-JURISDICTIONAL ASSESSING OFFICER, IT WAS SUBMITTED BY THE LD DR THAT ONCE THE ASSESSEE HAS S UBMITTED TO THE JURISDICTION OF THE ASSESSING OFFICER BASIS HER RES IDENCE WHICH IS IN THE PRESENT CASE IS ITO WARD 2(1) AJMER AND HAS BEEN ALLOTTED A PAN NUMBER, SUCH JURISDICTION CONTINUES WITH THE SAID ASSESSING OFFI CER UNLESS THERE IS A COMMUNICATION AND REQUEST FROM THE ASSESSEE DUE TO CHANGE OF HER RESIDENCE AND ONCE SUCH REQUEST IS MADE, THE SAME IS EXAMINED AND THEREAFTER, WHERE THE SAME IS FOUND TO BE IN ORDER, THE PAN IS MIGRAT ED TO THE NEW ASSESSING OFFICER HAVING JURISDICTION OVER THE NEW RESIDENCE OF THE ASSESSEE. IN OTHER WORDS, IT WAS SUBMITTED THAT THE CHANGE OF JURISDIC TION CANNOT BE A SUO-MOTO ACT OF THE ASSESSEE MERELY DUE TO CHANGE OF HER RES IDENCE, HOWEVER, THE SAME HAS TO BE EFFECTED BY THE DEPARTMENT ON REQUES T BEING MADE BY THE ASSESSEE. IT WAS SUBMITTED THAT IN THE INSTANT CAS E, NO SUCH REQUEST WAS MADE BY THE ASSESSEE AND IN THE PAN DATA BASE, THER E CONTINUES TO BE OLD ADDRESS OF AJMER WHERE SHE LAST RESIDED AND THEREFO RE, ITO AJMER HAD THE VALID JURISDICTION OVER HER TAX MATTERS AND CONTENT ION SO ADVANCED BY THE LD AR CANNOT BE ACCEPTED. 9. FURTHER, THE LD DR SUBMITTED THAT THE AO REOPEN ED THE ASSESSMENT PROCEEDINGS AFTER RECORDING THE DUE REASONS AND DUE SATISFACTION AFTER FOLLOWING DUE PROCESS. THE CASE OF THE ASSESSEE WAS REOPENED IN THE LIGHT OF ITA NO. 540/JP/2017 LATE SMT. MAGAN DEVI CHOUDHARY VS. ITO 8 INFORMATION/DOCUMENTS TO THE EXTENT WHICH WERE AVAI LABLE WITH THE AO. THE MATERIAL BEFORE THE ASSESSING OFFICER WAS RELEVANT AND AFFORDS A LIVE LINK OR NEXUS TO THE FORMATION OF THE PRIMA FACIE BELIEF TH AT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT IN THE HANDS OF THE ASSESSEE . THE SUFFICIENCY AND CORRECTNESS OF MATERIAL NEED NOT BE LOOKED AT THE I NITIAL STAGE AT THE TIME OF REOPENING OF THE CASE. WHILE CONSIDERING WHETHER CO MMENCEMENT OF REASSESSMENT PROCEEDINGS WAS VALID, THE COURTS HAVE HELD THAT WHAT HAS TO SEEN IS WHETHER THERE WAS PRIMA FACIE SOME MATERIAL ON THE BASIS OF WHICH THE DEPARTMENT COULD REOPEN THE CASE. THE SUFFICIEN CY OR CORRECTNESS OF THE MATERIAL IS NOT TO BE CONSIDERED AT THAT STAGE. THE REASONS TO BELIEVE WOULD MEAN CAUSE OR JUSTIFICATION. IF THE ASSESSING OFFIC ER HAS CAUSE OR JUSTIFICATION TO KNOW OR SUPPOSE THAT INCOME HAD ESCAPED ASSESSME NT, HE CAN BE SAID TO HAVE REASON TO BELIEVE THAT AN INCOME HAD ESCAPED A SSESSMENT. THE EXPRESSION CANNOT BE READ TO MEAN THAT THE ASSESSIN G OFFICER SHOULD HAVE FINALLY ASCERTAINED THE FACT BY LEGAL EVIDENCE OR C ONCLUSION AND WHAT IS REQUIRED IS REASONS TO BELIEVE BUT NOT THE ESTABL ISHED FACT OF ESCAPEMENT OF INCOME. AT THE STAGE OF ISSUE OF NOTICE, THE ONLY Q UESTION IS WHETHER THERE WAS RELEVANT MATERIAL ON WHICH A REASONABLE PERSON COULD HAVE FORMED A REQUISITE BELIEF. IT WAS ACCORDINGLY SUBMITTED THAT THERE IS NO INFIRMITY IN THE ASSUMPTION OF JURISDICTION BY THE AO U/S 147 IN THE PRESENT CASE AND THERE IS NO MERIT IN THE CONTENTION SO ADVANCED BY THE LD AR . FURTHER, THE LD DR RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 10. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. WE AGREE WITH THE CONTENTIONS OF THE LD DR THAT IN ABSENCE OF ANYTHING BROUGHT ON RECORD WHICH CLEARLY ESTABLISHES THAT THE IMPUGNED PROPERTY WAS ANCESTRAL OR SELF-ACQUIRED BY THE DECEASED ASSESSEE AND IN ABSENCE OF ANY WILL OR OTHER TESTAMENT OR A COURT ORDER WHICH ESTABLISHES AS TO HOW THE ESTATE OF THE DECEASED AS SESSEE HAS DEVOLVED ON OTHER MEMBERS OF THE FAMILY OTHER THAN SHRI LAXMI K ANT CHAUDHARY, MERELY ITA NO. 540/JP/2017 LATE SMT. MAGAN DEVI CHOUDHARY VS. ITO 9 BEING THE DAUGHTERS OF THE DECEASED ASSESSEE, IT CA NNOT BE DETERMINED THAT THEY ARE ALSO THE LEGAL HEIRS TO THE ESTATE OF THE DECEASED ASSESSEE WHO ARE EQUALLY RESPONSIBLE TO DISCHARGE THE TAX OBLIGATION S OF THE DECEASED ASSESSEE. WHERE SHRI LAXMI KANT CHAUDHARY, THE ONLY SON OF TH E DECEASED ASSESSEE HAD ATTENDED TO THE PROCEEDINGS INITIATED U/S 147 BEFOR E THE ASSESSING OFFICER AND HAS SUBMITTED IN HIS STATEMENT THAT HE HOLDS A JOIN T ACCOUNT WITH HER DECEASED MOTHER AND IS ALSO HER LEGAL HEIR, WE DONO T FIND ANY ILLEGALITY IN THE ACTION OF THE ASSESSING OFFICER WHERE HE HAS ISSUED THE NOTICE U/S 148 BY IMPLEADING SHRI LAXMI KANT CHAUDHARY AS THE LEGAL H EIR OF THE DECEASED ASSESSEE. IT IS NOT A CASE WHERE THE NOTICE HAS BE EN ISSUED IN THE NAME OF THE DECEASED ASSESSEE WHICH IS CLEARLY A NULLITY IN THE EYES OF LAW AS HELD IN VARIOUS DECISIONS RELIED UPON BY THE LD AR. IT IS A CASE WHERE THE NOTICE HAS BEEN ISSUED IN THE NAME OF DECEASED ASSESSEE AS REP RESENTED BY HER LEGAL HEIR SHRI LAXMI KANT CHAUDHARY WHICH IS CLEARLY IN COMPLIANCE WITH THE REQUIREMENTS OF THE LAW. SIMILARLY, WE DONOT FIND ANY INFIRMITY IN THE ASSESSMENT ORDER WHERE THE SAME HAS BEEN PASSED IN THE NAME OF DECEASED ASSESSEE AS REPRESENTED BY HER LEGAL HEIR SHRI LAXM I KANT CHAUDHARY. WHERE DURING THE APPELLATE PROCEEDINGS, SHRI LAXMI KANT C HAUDHARY WISHES TO CONTEST THE SAID POSITION STATING THAT HIS STATEMEN T AS SO TAKEN WAS UNDER PRESSURE DURING THE ASSESSMENT PROCEEDINGS, THE ONU S IS CLEARLY ON HIM TO SUBSTANTIATE AS TO WHY HE HAS NOT RETRACTED FROM SU CH STATEMENT AT THE FIRST AVAILABLE OPPORTUNITY AND FURTHER, HE HAS TO DEMONS TRATE THROUGH VERIFIABLE AND CREDIBLE DOCUMENTATION THAT THERE ARE OTHER LEG AL HEIRS TO THE ESTATE OF THE DECEASED ASSESSEE WHICH HE HAS FAILED IN THE IN STANT CASE. THEREFORE, THE CONTENTIONS SO ADVANCED BY THE LD AR IN THIS REGARD CANNOT BE ACCEPTED. 11. REGARDING ISSUE OF NOTICE BY NON-JURISDICTIONA L ASSESSING OFFICER, WE AGREE WITH THE CONTENTION OF THE LD DR THAT ONCE TH E ASSESSEE HAS SUBMITTED TO THE JURISDICTION OF ITO WARD 2(1) AJMER AND HAS BEEN ALLOTTED A PAN NUMBER, SUCH JURISDICTION CONTINUES WITH THE SAID A SSESSING OFFICER UNLESS ITA NO. 540/JP/2017 LATE SMT. MAGAN DEVI CHOUDHARY VS. ITO 10 THERE IS A COMMUNICATION AND REQUEST FROM THE ASSES SEE DUE TO CHANGE OF HER RESIDENCE AND THEREAFTER, THE PAN IS MIGRATED BY TH E TAX DEPARTMENT TO THE NEW ASSESSING OFFICER HAVING JURISDICTION OVER THE NEW RESIDENCE OF THE ASSESSEE AND CANNOT BE DONE SUO-MOTO BY THE ASSESSE E. ADMITTEDLY, IN THE INSTANT CASE, NO SUCH REQUEST WAS MADE BY THE ASSES SEE AND IN THE PAN DATA BASE, THERE CONTINUES TO BE OLD ADDRESS OF AJMER WH ERE SHE LAST RESIDED AND THEREFORE, ITO AJMER HAD THE VALID JURISDICTION OVE R HER TAX MATTERS AND THERE IS NO INFIRMITY IN HIS ACTION OF ISSUING THE NOTICE U/S 148 OF THE ACT. THEREFORE, THE CONTENTIONS SO ADVANCED BY THE LD AR IN THIS RE GARD CANNOT BE ACCEPTED. 12. NOW, COMING TO THE LAST CONTENTION RAISED BY TH E LD AR. FOR ASSUMPTION OF JURISDICTION U/S 147, IT IS A SETTLED LEGAL PROPOSITION THAT THE ASSESSING OFFICER MUST FORM A PRIMA FACIE OPINION O N THE BASIS OF MATERIAL THAT THERE IS AN ESCAPEMENT OF INCOME, THE OPINION FORME D MAY BE SUBJECTIVE BUT THE REASONS RECORDED OR THE INFORMATION AVAILABLE O N RECORD MUST SHOW THAT THE OPINION IS NOT A MERE SUSPICION, THE REASONS RE CORDED AND/OR THE DOCUMENTS AVAILABLE ON RECORD MUST SHOW A NEXUS AND RELEVANCY TO THE OPINION FORMED BY THE ASSESSING OFFICER REGARDING E SCAPEMENT OF INCOME. IT IS ALSO HELD BY THE COURTS FROM TIME TO TIME THAT THE REASONS ARE REQUIRED TO BE READ AS THEY WERE RECORDED BY THE ASSESSING OFFICER , NO SUBSTITUTION OR DELETION IS PERMISSIBLE. NO ADDITIONS CAN BE MADE T O THOSE REASONS. NO INFERENCE CAN BE ALLOWED TO BE DRAWN ON THE BASIS O F REASONS NOT RECORDED. IT IS FOR THE ASSESSING OFFICER TO DISCLOSE AND OPEN H IS MIND THROUGH THE REASONS RECORDED BY HIM AND HE HAS TO SPEAK THROUGH THE REA SONS. IN THE PRESENT CASE, THE REASONS RECORDED BY THE ASSESSING OFFICER BEFORE ISSUANCE OF NOTICE U/S 148 READ AS UNDER: AS PER INFORMATION RECEIVED FROM THE DDIT(INV)-1, UDAIPUR VIDE LETTER NO.638 DATED 25.03.2014 THE ASSESSEE HAS SOL D A PIECE OF LAND SITUATED AT 387/10(PART OF PLOT), OPP. PATEL MAIDAN ADMEASURING 646.69 SQ YARDS SOLD ON 27.12.2007 FOR A CONSIDERAT ION OF RS.60 LACS ITA NO. 540/JP/2017 LATE SMT. MAGAN DEVI CHOUDHARY VS. ITO 11 VALUE OF WHICH ADOPTED AT RS.2,36,92,362/- BY THE S UB-REGISTRAR. SINCE THE ASSESSEE HAS NOT FILED ANY RETURN FOR THE ASSESSMENT YEAR UNDER CONSIDERATION THE INCOME FROM THE SALE OF THE PROPERTY HAS ESCAPED ASSESSMENT. LOOKING TO THE FACTS MENTIONED ABOVE, I HAVE REASO N TO BELIEVE THAT THE INCOME TO THE EXTENT OF RS 2,36,92,362/- CHARGE ABLE TO TAX HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 14 7/148 OF THE ACT. 13. WE THEREFORE FIND THAT THE INFORMATION IN POSSE SSION OF THE ASSESSING OFFICER WAS A TRANSACTION OF SALE OF PIECE OF LAND FOR A CONSIDERATION OF RS.60,00,000/- WHICH WAS VALUED BY THE SUB-REGISTRA R AT RS.2,36,92,362/- BY THE SUB-REGISTER AND SECONDLY, THE SAID TRANSACTION WAS NOT DISCLOSED TO THE REVENUE AS THE ASSESSEE HAS NOT FILED HER RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR. BASIS THE SAME, THE ASSESSING OFF ICER HAD FORMED A BELIEF THAT THE INCOME TO THE EXTENT OF RS 2,36,92,362/- H AS ESCAPED ASSESSMENT. HOWEVER, WE FIND THAT THE UNDISPUTED FACTUALLY POSI TION WHICH IS EMERGING FROM PERUSAL OF RECORDS IS THAT THE ASSESSEE DID FI LE HER RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR AND IN THE RETURN SO F ILED, SHE HAD DISCLOSED THE AFORESAID TRANSACTION OF SALE OF PIECE OF LAND. THEREFORE, THE VERY PREMISE THAT THE TRANSACTION RELATING TO SALE OF PIECE OF L AND HAS ESCAPED TAXATION ON ACCOUNT OF NON-DISCLOSURE AND NOT FILING OF RETURN OF INCOME IS NOT BORNE OUT OF RECORDS. IN THIS REGARD, WE REFER TO THE DECISI ON OF HONBLE GUJARAT HIGH COURT IN CASE OF SUNRISE EDUCATION TRUST VS ITO (SU PRA) WHEREIN IT WAS HELD AS UNDER: 5. HAVING HEARD LEARNED COUNSEL FOR THE PARTIES AN D HAVING PERUSED THE DOCUMENTS ON RECORD, IT COULD BE STRAIGHTWAY SE EN THAT THE ASSESSING OFFICER IN THE REASONS RECORDED, PROCEEDE D ON THE ERRONEOUS FOOTING THAT THE ASSESSEE HAD NOT FILED RETURN AT A LL. THE FIRST PREMISE ITA NO. 540/JP/2017 LATE SMT. MAGAN DEVI CHOUDHARY VS. ITO 12 FOR ISSUING THE NOTICE WAS THUS FACTUALLY INCORRECT . IT IS NOW NOT DISPUTED BY THE REVENUE THAT THE ASSESSEE DID FILE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WHICH WAS DULY ACKNOWLEDGED BY THE DEPARTMENT. THE ENTIRE REASONING THUS PROCEEDED ON THE WRONG PR EMISE THAT THE ASSESSEE HAD NEVER FILED THE RETURN. THIS ITSELF WO ULD BE SUFFICIENT TO ANNUL THE NOTICE OF REOPENING THE ASSESSMENT. 14. IN THE INSTANT CASE AS WELL, THE ASSESSING OFFI CER HAS NOT DISPUTED THE FACT THAT THE ASSESSEE DID FILE HER RETURN OF INCOM E WHICH WAS DULY ACKNOWLEDGED BY THE DEPARTMENT AND INFACT, THE SAID RETURN OF INCOME HAS BEEN TAKEN INTO CONSIDERATION AND EXCEPT FOR SUBSTI TUTING THE SALE CONSIDERATION FOR THE DEEMED SALES CONSIDERATION U/ S 50C AS PER VALUE ADOPTED BY THE SUB-REGISTRAR, THE ASSESSING OFFICER HAS ACCEPTED THE COST OF ACQUISITION AS PER THE APPROVED VALUER ENCLOSED WIT H THE SAID RETURN OF INCOME AND ALLOWED THE NECESSARY INDEXATION BENEFIT AS CLA IMED IN THE RETURN OF INCOME. THEREFORE, WHERE THE TRANSACTION HAS BEEN DULY REFLECTED IN THE ORIGINAL RETURN SO FILED, THERE IS NO LEGAL BASIS F OR THE ASSESSING OFFICER TO HAVE ANY REASON TO BELIEVE THAT INCOME OF THE ASSESSEE H AS ESCAPED ASSESSMENT. 15. IN LIGHT OF AFORESAID DISCUSSIONS AND RESPECTFU LLY FOLLOWING THE DECISION REFERRED SUPRA, WE ARE OF THE VIEW THAT IN THE INST ANT CASE, THE ASSESSING OFFICER DOESNT HAVE THE LEGAL BASIS TO ACQUIRE JUR ISDICTION FOR REASSESSMENT AND THUS, THE NOTICE ISSUED UNDER SECTION 148 AND C ONSEQUENT REASSESSMENT PROCEEDINGS ARE QUASHED AND SET-ASIDE. IN THE RESU LT, GROUND NO. 1 OF ASSESSEES APPEAL IS ALLOWED. 16. GROUND NO. 2 RAISED ON MERITS OF THE ADDITIONS HAS THEREFORE BECOME ACADEMIC AND WE DO NOT PROPOSE TO ADJUDICATE THEM A ND THE SAME IS DISMISSED AS INFRUCTIOUS. GROUND NO. 3 IS CONSEQUE NTIAL IN NATURE AND DOESNT REQUIRE ANY ADJUDICATION. ITA NO. 540/JP/2017 LATE SMT. MAGAN DEVI CHOUDHARY VS. ITO 13 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 28/04/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 28/04/2020. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- LATE SMT. MAGAN DEVI CHOUDHARY, AJME R. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-2(1), AJMER. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 540/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR