Smt. Monika Rani, Pehowa V. ITO, W-2, Kurukshetra

ITA 582/CHANDI/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2461 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 29-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND SUDERSHAN JCIT DR
• Assessee Lawyers: K R CHHABRA
• Keywords: Reopening of assessment; Bogus purchase; Gift; Reason to believe; Set aside
• Section: 143(3); 142(1); 143(1); 201; 2(A); 148

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCHES, SMC CHANDIGARH .., ! BEFORE: SHRI. N.K.SAINI, VICE PRESIDENT ITA NO.582/CHD/2019 ASSESSMENT YEAR : 2010-11 SMT. MONIKA RANI W/O SHRI ASHOK KUMAR S/O SH. BABU RAM, H.O. 64, WARD NO. 24, TILAK COLONY, PEHOWA, KURUKSHETRA THE ITO WARD-2, KURUKSHETRA PAN NO: AEYPC6712R APPELLANT RESPONDENT !' ASSESSEE BY : SHRI SUDHIR SEHGAL & SHRI K.R. CHHA BRA #!' REVENUE BY : SHRI ARVIND SUDERSHAN, (JCIT DR) $ %! & DATE OF HEARING : 27/01/2020 '()*! & DATE OF PRONOUNCEMENT : 28/02/2020 '#/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 06/02/2019 OF LD. CIT(A), KARNAL. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L: 1. ORDER PASSED BY LD. ITO AND CIT (APPEAL) ARE ILLEGA L, ARBITRARY AND BAD IN LAW. 2. ON FACTS AND IN CIRCUMSTANCES OF THE CASE LD. ITO W AS NOT JUSTIFIED IN ISSUING NOTICE U/S 147/148 OF THE I T ACT ON THE BA SIS OF IRRELEVANT GROUND AND THE REASONS WHICH ARE NONEXISTENT AND THE NOTICE U/S 14 7/148 WERE ILLEGAL, ARBITRARY AND BAD IN LAW. 3. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD.IT O WAS NOT JUSTIFIED IN ISSUING NOTICE U/S 147/148 OF THE I T ACT WHEN ALL MATERIAL FACTS HAVE ALREADY BEEN DISCLOSED IN THE RETURN OF INCOME AND THE ASSE SSMENT HAS ALREADY BEEN COMPLETED AND IT HAS BECOME FINAL. 4. ON FACTS AND IN CIRCUMSTANCES OF THE CASE LD.ITO WA S NOT JUSTIFIED IN MAKING ADDITION OF RS. 15,00,000/- ON ACCOUNT OF GI FT MADE BY HER SON SUMIT CHHABRA. 5. ON FACTS AND IN CIRCUMSTANCES OF THE CASE LD ITO WA S NOT JUSTIFIED IN MAKING ADDITION OF 15,00,000/- ON ACCOUNT OF GIFT M ADE BY SH ASHOK KUMAR HUSBAND OF THE ASSESSEE. 2 6. ON FACTS AND IN CIRCUMSTANCES OF THE CASE LD ITO WA S NOT JUSTIFIED IN MAKING ADDITION OF 10,00,000/- ON ACCOUNT OF GIFT M ADE BY SH ASHOK KUMAR HUF AND HUSBAND OF THE ASSESSEE. 7. ON FACTS AND IN CIRCUMSTANCES OF THE CASE LD ITO WA S NOT JUSTIFIED IN MAKING ADDITION OF 6,00,000/- ON ACCOUNT OF GIFT MA DE BY SH BABU RAM FATHER IN LAW OF THE ASSESSEE. 3. VIDE GROUND NO. 2 & 3 OF THIS APPEAL THE ASSESSE E CHALLENGED THE JURISDICTION OF THE A.O. IN ISSUING THE NOTICE UNDE R SECTION 148 R.W.S 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS A CT) FOR REOPENING THE ASSESSMENT. 4. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE E-FILED HER RETURN OF INCOME ON 30/03/2011 DECLARING AN INCOME OF RS. 2,0 6,465/-. THEREAFTER, THE A.O. REOPENED THE ASSESSMENT UNDER SECTION 147 OF T HE ACT, BY ISSUING THE NOTICE UNDER SECTION 148 OF THE ACT ON 27/03/2017. THE A.O. ALSO ISSUED THE NOTICE UNDER SECTION 142(1) OF THE ACT ON 25/07/201 7. IN RESPONSE THE ASSESSEE SUBMITTED THAT THE RETURN OF INCOME ALREAD Y FILED ON 30/03/2011 MAY BE TREATED AS FILED IN RESPONSE TO THE NOTICE U NDER SECTION 148 OF THE ACT. 5. THE ASSESSEE DURING THE COURSE OF ASSESSMENT PRO CEEDING FILED THE OBJECTION AGAINST THE PROCEEDINGS INITIATED UNDER S ECTION 147 R.W.S 148 OF THE ACT WHICH READ AS UNDER: RESPECTFULLY KINDLY REFER TO YOUR OFFICE NOTICE ON THE ABOVE SUBJECT. 1. IN THIS CONNECTION IT IS SUBMITTED THAT THE ASSE SSEE HAS ALREADY FILED HER RETURN OF INCOME ELECTRONICALLY VIDE E-FILLING ACKN OWLEDGEMENT NO. 210169320300311 ON DATED 30.03.2011. COPY, OF ACKNO WLEDGMENT OF RETURN OF INCOME AND COMPUTATION OF INCOME, PROFIT AND LOSS A CCOUNT BALANCE SHEET HAS ALREADY BEEN SUBMITTED. THAT THE ASSESSEE HAS SUBMI TTED THAT THE RETURN OF INCOME ALREADY FILED VIDE ACKNOWLEDGMENT NO. 210169 320300311 ON DATED 30.03.2011 MAY BE TREATED AGAINST THE NOTICE ISSUED U/S 148 OF THE INCOME TAX ACT, 1961. 2. THAT THE ASSESSEE REQUESTED FOR COPY OF REASON RECO RDED AND YOUR GOOD SELF WAS KIND ENOUGH TO SUPPLY ME COPY OF REASON WHICH A RE AS UNDER:- 'AS PER INFORMATION ON RECORD OF THIS OFFICE, THE A BOVE NOTED PERSON HAS PURCHASED PROPERTY AMOUNTING TO RS. 1,49 ,02,500/- DURING THE FINANCIAL YEAR 2009-10, WHICH AMOUNT IS MUCH MORE THAN THE MAXIMUM EXEMPT LIMIT OF RS. 1,90,000/-PRES CRIBED FOR THE 3 CORRESPONDING ASSESSMENT YEAR 2010-11. HOWEVER, AS PER THE RECORD OF THIS OFFICE, THE ASSESSEE HAS NOT FILED H IS RETURN OF INCOME. I, THEREFORE, HAVE REASON TO BELIEVE THAT THE ASSESSEE'S INCOME CORRESPONDING TO THE AFORESAID PURCHASE OF PROPERTY AMOUNTING TO RS. 1,49,02,500/- HAS ESCAPED ASSESSMENT WITHIN THE MEA NING OF SECTION 147 OF THE INCOME TAX ACT, 1961. IT IS THEREFORE, PROPOSED TO ISSUE A NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2010-1 1. 3. THAT THE PERUSAL OF REASON REVEALED THAT THE NOTICE U/S 147/148 WAS ISSUED WITHOUT APPLICATION OF MIND BY THE A.O. BECAUSE THE ASSESSEE HAS NOT PURCHASED ANY PROPERTY AMOUNTING TO RS. 1,49,02,500/- DURING THE FINANCIAL YEAR 2009-10. IT IS ALSO NOT CORRECT TO SAY THAT THE ASSESSEE HAS NOT F ILED HER RETURN OF INCOME. THE NOTICE IS BASED ON SURMISES AND SUSPICION. ANY NOTI CE ISSUED ON NON EXISTING REASON IS NOT PERMISSIBLE UNDER THE LAW. 4. THE FACT IS THAT THE ASSESSEE HAS PURCHASED 1656/88 09 SHARE IN 440K 9M. THE SHARE OF ASSESSEE COMES TO 10A-2K-16M FOR RS. 49,32 ,000/- AND THE ASSESSEE HAS DECLARED THE PURCHASE OF AGRICULTURE LAND IN HIS RE TURN OF INCOME AND BALANCE SHEET FILED WITH THE DEPARTMENT AND THIS IS THE PAR T OF BALANCE SHEET FILED WITH THE RETURN OF INCOME. COPY OF WHICH HAS ALREADY BEEN FI LED. THE ASSESSMENT HAS BECOME FINAL. IN THE RETURN OF INCOME THE ASSESSEE HAS DECLARED THE SOURCE AND PURCHASE OF AGRICULTURE LAND. THE PURCHASE OF LAND IS PART OF THE BALANCE SHEET FILED WITH THE RETURN OF INCOME. 5. THAT IN ADDITION TO ABOVE PURCHASE OF AGRICULTUR E LAND FOR RS. 49,32,000/- IF YOUR OFFICE HAS ANY OTHER INFORMATION FOR PURCHASE OF PR OPERTY AMOUNTING TO RS. 1,49,02,500/-THE SAME MAY BE SUPPLIED TO US. SO KEEPING IN VIEW THE ABOVE FACTS AND CIRCUMSTANCE S THERE WERE NO REASON TO BELIEVE FOR ISSUANCE OF NOTICE U/S 147/14 8 OF THE INCOME TAX ACT AND NO INCOME HAS ESCAPED ASSESSMENT WITHIN THE MEANING AN D BRING MY OBJECTION ON THE RECORD AND DISPOSE OF THE SAME. ' 5.1 THE A.O. HOWEVER DID NOT FIND MERIT IN THE ABOV E OBJECTIONS RAISED BY THE ASSESSEE BY OBSERVING AS UNDER: 1) FIRSTLY, THIS INFORMATION WAS NON-PAN INFORMATIO N ON THE BASIS OF WHICH THIS CASE WAS REOPENED U/S 148 OF THE INCOME TAX ACT, 1961. O N THE BASIS OF NON-PAN INFORMATION, QUERY LETTER WAS ISSUED ON 08.08.2016 WHICH WAS RECEIVED BACK BY POST AND THEREAFTER, TO MEET THE ENDS OF NATURAL JU STICE, AGAIN QUERY LETTER WAS ISSUED TO THE ASSESSEE ON 10.03.2017 FOR FURNISHING THE FOLLOWING INFORMATION ON 15.03.2017 AND THE SAME WAS DULY SERVED ON 14.03.20 17, THE CONTENTS OF THE QUERY LETTER ARE REPRODUCED AS UNDER, ' IN THIS REGARD, YOU ARE REQUESTED TO KINDLY PROVI DE THE FOLLOWING INFORMATION:- I) ARE YOU ASSESSED TO INCOME TAX? IF YES, PLEASE PROV IDE YOUR PAN AND COPY OF ITR FOR A.Y.2010-11. II) CERTIFICATE COPY OF SALE/PURCHASE DEED. III) SOURCE OF INVESTMENT MADE FOR THE PURCHASE OF PROPERTY WITH DOCUMENTARY EVIDENCE. IV) PLEASE PRODUCE THE COPY OF YOUR BANK STATEMENT FOR FINANCIAL YEAR 2009-10.' 4 BUT IN RESPONSE TO THIS, THE ASSESSEE HAS NEITHER F ILED ANY REPLY NOR ANY OBJECTION LETTER AT THAT TIME. AS THE CASE WAS GOING TO BE BA RRED BY TIME LIMITATION, HENCE THE ASSESSING OFFICER WAS LEFT WITH NO CHOICE THAN TO REOPEN THE CASE U/S 148 OF THE INCOME TAX ACT, 1961. 2) SECONDLY, IN THIS CASE, INFORMATION IS REGARDING PURCHASE OF PROPERTY FOR RS. 1,49,02,500/- JOINTLY BY THE ASSESSEE AND OTHERS. A S PER SALE DEED, THE SHARE OF THE ASEESEE IN PURCHASE OF LAND IS 1656/8809. 5.2 THE A.O. ALSO NOTICED THAT THE ASSESSEE HAD REC EIVED GIFTS OF RS. 46,00,000/- FROM THE FOLLOWING FOUR PERSONS: SR.NO NAME & ADDRESS OF THE PERSONS FROM WHOM GIFTS RAISED. PAN AMOUNT OF GIFT 1. SH. SUMIT CHHABRA S/O SH. ASHOK KUMAR, (SON) H.NO.64, WARD NO. 24, TILAK COLONY, PEHOWA DISTT. KURUKSHETRA AHRPC9884C RS. 15,00,000 - 2. SH. ASHOK KUMAR S/O SH. BABU RAM, (HUSBAND) H.NO.64, WARD NO. 24, TILAK COLONY, PEHOWA DISTT. KURUKSHETRA AAHPC1869N RS. 15,00,000/- 2. SH. ASHOK KUMAR S/O SH. BABU RAM,(HUSBAND HUF) H.NO.64, WARD NO. 24, TILAK COLONY, PEHOWA DISTT. KURUKSHETRA AAIHA4797C RS. 10,00,000/- 4. SH. BABU RAM (FATHER-IN-LAW), H.NO.64, WARD NO. 24, TILAK COLONY, PEHOWA DISTT. KURUKSHETRA AETPR7038E RS.6,00,000/- 5.3 THE A.O. DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE FOR JUSTIFICATION OF THE GIFTS BY OBSERVING THAT THE ASSESSEE FAILED TO PROVE THE CAPACITY OF GIVING GIFTS AND GENUINENESS OF THE FUNDS FOR MAKIN G GIFTS BY DONOR TO THE ASSESSEE, HE MADE THE ADDITION OF RS. 46,00,000/-. 6. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND CHALLENGED THE VALIDITY OF THE REOPENING OF ASSESSM ENT AND SUBMITTED AS UNDER: 'A) THAT THE ASSESSEE FILED HER RETURN OF INCOME EL ECTRONICALLY VIDE E-FILING ACKNOWLEDGEMENT NO. 210169320300311 ON DATED 30.03. 2011 DECLARING THE INCOME OF RS. 2,06,465/-. COPY OF ACKNOWLEDGEMENT O F RETURN OF INCOME IS ENCLOSED. THE CASE WAS PROCESSED U/S 143(1) OF THE I.T. ACT AND THE ASSESSMENT HAS BECOME FINAL. B) THAT A NOTICE DATED 27.03.2017 ISSUED U/S 148 OF THE I.T. ACT WAS SERVED UPON THE ASSESSEE AND IN RESPONSE TO NOTICE THE ASS ESSEE SUBMITTED THAT THE ASSESSEE HAS ALREADY FILED HER RETURN OF INCOME ELE CTRONICALLY VIDE E-FILING ACKNOWLEDGEMENT NO. 210169320300311 ON DATED 30.03. 2011 AND THE ASSESSMENT HAVE BECOME FINAL. IT WAS FURTHER SUBMIT TED THAT RETURN OF INCOME ALREADY FILED MAY BE TREATED AGAINST THE NOTICE ISS UED U/S 148 OF THE I.T. ACT. 5 COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME ALONG W ITH PROFIT AND LOSS ACCOUNT, CAPITAL ACCOUNT AND BALANCE SHEET WERE FUR NISHED TO THE A.O, NOW ENCLOSED HEREWITH. THE ASSESSEE FURTHER REQUESTED T HE AO FOR SUPPLY OF COPY OF REASONS RECORDED FOR ISSUE OF NOTICE U/S 147/148 OF THE I.T. ACT. C) THE A.O. SUPPLIED COPY OF REASON RECORDED FOR IS SUE OF NOTICE U/S 148 OF THE I.T. ACT WHICH READ AS UNDER :- 'AS PER INFORMATION ON RECORD OF THIS OFFICE, THE A BOVE NOTED PERSON HAS PURCHASE OF PROPERTY AMOUNTING TO RS. 1,49,02,500 /- DURING THE F. Y. 2009-10, WHICH AMOUNT IS MUCH MORE THAN THE MAXIMUM EXEMPT LIMIT O F RS. 1,90,000/-PRESCRIBED FOR THE CORRESPONDING A.Y. 2010-11. HOWEVER, AS PER THE RECORD OF THIS OFFICE, THE ASSESSEE HAS NOT FILED HIS RETURN OF INCOME. I, THEREFORE, HAVE REASON TO BELIEVE THAT THE ASSES SEE'S INCOME CORRESPONDING TO THE AFORE-SAID PURCHASE OF PROPERTY AMOUNTING TO RS . 1,49,02,500/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE INCOME-TAX ACT, 1961. IT IS THEREFORE, PROPOSED TO ISSUE A NOTICE UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2010-11.' S/D (B.B. SHARMA) INCOME TAX OFFICER WARD-2, KURUKSHETRA D) THAT THE ASSESSEE RAISED OBJECTION AGAINST THE N OTICE U/S 147/148 OF THE IT ACT. IN THE SAID OBJECTION IT WAS SUBMITTED THAT NO TICE U/S 147/148 WAS ISSUED WITHOUT APPLICATION OF MIND BECAUSE THE ASSESSEE HA S NOT PURCHASED ANY PROPERTY AMOUNTING TO RS. 1,49,02,500/- DURING THE F.Y 2009-10. COPY OF OBJECTION AGAINST THE NOTICE IS ENCLOSED. IT WAS FURTHER SUBM ITTED THAT IN CASE THE DEPARTMENT IS HAVING ANY INFORMATION ABOUT THE PURC HASE OF PROPERTY BY THE ASSESSEE AT RS. 1,49,02,500/- THE SAME MAY BE SUPPL IED TO THE ASSESSEE. IT WAS ALSO SUBMITTED THAT IT IS IN CORRECT TO SAY THAT TH E ASSESSEE HAS NOT FILED HER RETURN OF INCOME BECAUSE THE ASSESSEE HAS ALREADY FILED HE R RETURN OF INCOME ELECTRONICALLY VIDE E-FILING ACKNOWLEDGEMENT NO. 21 016932O3OO311 ON DATED 30.03.2011 IN WHICH THE PURCHASE OF AGRICULTURE LAN D FOR RS.49,32,000/- + STAMP DUTY WAS DECLARED ALONG WITH SOURCE. BUT THE COPY O F REASON RECORDED REVEALS THAT THE NOTICE U/S 148 WAS ISSUED IN RESPECT OF PU RCHASE OF PROPERTY FOR RS. 1,49,02,500/-. IT SHOWS THAT NOTICE U/S 147/148 WAS ISSUED WITHOUT APPLICATION OF MIND BY THE A.O, BECAUSE THE ASSESSEE HAS NOT PURCH ASED ANY PROPERTY AMOUNTING TO RS.1,49,02,500/-DURING THE F.Y 2009-10 . IT IS ALSO NOT CORRECT TO SAY THAT THE ASSESSEE HAS NOT FILED HER RETURN OF INCOM E. THE NOTICE HAS BEEN ISSUED ON IRRELEVANT GROUND AND ON NON EXISTING REASONS. T HE NOTICE IS BASED ON SURMISES AND SUSPICION. ANY NOTICE ISSUED ON NON EXISTING RE ASON IS NOT PERMISSIBLE UNDER THE LAW. E) THE FACT IS THAT THE ASSESSEE HAS PURCHASED 1656 /8809 SHARE IN 440K 9M. THE SHARE OF ASSESSEE COMES TO 10A-2K-16M FOR RS.49 ,32,000/- PLUS STAMP DUTY EXPENSES AND THE ASSESSEE HAS DECLARED THE PURCHASE OF AGRICULTURE LAND AT RS. 52,20,000/- IN HER RETURN OF INCOME AND BALANCE SHE ET FILED WITH THE DEPARTMENT AND THIS IS THE PART OF BALANCE SHEET FILED WITH TH E RETURN OF INCOME. COPY OF WHICH HAS ALREADY BEEN FILED. THE ASSESSMENT HAS BE COME FINAL. IN THE RETURN OF INCOME THE ASSESSEE HAS DECLARED THE SOURCE OF PURC HASE OF AGRICULTURE LAND. THE PURCHASE OF LAND IS PART OF THE BALANCE SHEET F ILED WITH THE RETURN OF INCOME. F) THAT IN ADDITION TO ABOVE PURCHASE OF AGRICULTUR E LAND FOR RS. 49,32,000/- PLUS STAMP DUTY EXPENSES, IT WAS SUBMITTED BEFORE T HE A.O. THAT IF OFFICE HAS ANY 6 OTHER INFORMATION FOR PURCHASE OF PROPERTY AMOUNTIN G TO RS. 1,49,02,500/- THE SAME MAY BE SUPPLIED TO THE ASSESSEE BUT NO SUCH IN FORMATION WAS SUPPLIED BY THE DEPARTMENT BECAUSE THERE WAS NO SUCH PURCHASE O F PROPERTY. G) THAT THE PERUSAL OF REASON RECORDED SHOWS THAT R EASON FOR FORMATION OF BELIEF FOR ISSUE OF NOTICE IS EXPLANATION 2(A) TO S ECTION 147 AND THE AO HAS MENTIONED THAT THE ASSESSMENT PROPOSED TO BE MADE I S FOR 1ST TIME AND NO VOLUNTARY RETURN HAS ALREADY BEEN FILED. THE FACTS NARRATED IN THE REASON ARE ABSOLUTELY FALSE. NOTICE U/S 148 WAS ISSUED FOR PUR CHASE OF PROPERTY AMOUNTING TO RS. 1,49,02,500/- WHICH IS ALSO FALSE AND THE REASO N RECORDED ARE NONEXISTENT. THE FACT IS THAT THE ASSESSEE IS A REGULAR ASSESSEE OF INCOME TAX SINCE PRIOR TO A.Y 2003-04 AND HAS FILED HER RETURN OF INCOME FOR THIS PARTICULAR ASSESSMENT YEAR ELECTRONICALLY VIDE ACKNOWLEDGEMENT NO- 21016932030 0311 ON DATED 30.03.2011. IN RESPONSE TO NOTICE U/S 147/148 THE ASSESSEE HAS SUBMITTED THE ABOVE FACTS BEFORE THE AO. THIS NOTICE WAS ISSUED ON DATED 27.0 3.2017. EVEN THE ASSESSMENT FOR A. Y 2014-15 WAS COMPLETED U/S 143(3) OF THE IT ACT IN THE MONTH OF NOVEMBER 2016. THEREFORE THE NOTICE WAS ISSUED MECHANICALLY AND THE AO HAS NOT APPLIED HIS MIND IN JUDICIAL MANNER. THE ASSESSMENT PROCEED INGS INITIATED ARE BASED ON THE FACT WHICH ARE NONEXISTENT. THEREFORE THE PROCEEDING ARE HIGHLY PERVERSE, WRONG, ILLEGAL AND BAD IN LAW. THE AO HAS NOT BOTHERED TO CHECK THE ASSESSMENT PARTICULARS ON THE SYSTEM OF THE DEPARTM ENT. THE REASON RECORDED ARE BASED UPON MERE SUSPICION AND ARE VAGUE AND ARE CON TRARY TO THE FACTS OF THE CASE HENCE NOT VALID. H) THAT SECTION 147/148 OF THE INCOME TAX ACT CONTA INS THE PRE REQUISITE CONDITION TO BE FULFILLED FOR INVITING THE JURISDIC TION TO RE-OPEN THE ASSESSMENT. THE GENERAL PRINCIPLE IS THAT ONCE AN ASSESSMENT IS COM PLETED IT BECOMES FINAL AND NO ACTION CAN BE INITIATED U/S 147 AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR UNLESS THE INCOME CHARGEAB LE TO TAX HAS ESCAPED THE ASSESSMENT BY REASON OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT. I) THAT THE COURT HAS CONSISTENTLY WARNED THE DEPAR TMENT NOT TO HARASS THE TAX PAYERS BY RE-OPENING THE ASSESSMENT IN MECHANIC AL AND CASUAL MANNER. YOUR KIND ATTENTION IN THIS REGARD IS INVITED TO THE DIR ECTIONS OF HON'BLE SUPREME COURT OF INDIA IN THE CASE LAW OF GKN DRIVE SHAFT (INDIA) PVT LTD VS ITO (2003) 259 ITR 19 (SC). J) THAT THE BASIC REQUIREMENT OF SECTION 147 IS THA T THE ASSESSING OFFICER MUST HAVE REASON TO BELIEVE THAT ANY INCOME CHARGEABLE T O TAX HAS ESCAPED ASSESSMENT AND SUCH BELIEF MUST BE BELIEF OF JURISD ICTIONAL ASSESSING OFFICER NOT ANY OTHER ASSESSING OFFICER OR AUTHORITY OR DEPARTM ENT. THEREFORE THE JURISDICTION OF AO TO RE-OPEN AN ASSESSMENT UNDER SECTION 147 DEPEN DS UPON ISSUANCE OF VALID NOTICE AND IN THE ABSENCE OF THE SAME ENTIRE PROCEE DINGS TAKEN BY HIM WOULD BECOME VOID FOR WANT OF JURISDICTION. K) IN THE CASE OF PCIT VS MANZIL DINESH KUMAR SHAH (2018)95 TAXMANN.COM 46 PAGE (GUJ) HC, THE COURT HAS HELD THAT EVEN THE ASSESSMENT WHICH IS COMPLETED U/S 143(1) CANNOT BE RE OPENED WITHOUT PR OPER 'REASON TO BELIEVE '. THE AO IS NOT ALLOWED TO RE OPEN A CASE FOR MAKING A FISHING OR ROVING ENQUIRY WITHOUT PROPER REASON TO BELIEVE, WHICH IS NOT PE RMISSIBLE. THAT NO REASSESSMENT JUST TO MAKE A ENQUIRY OR VERI FICATION OR MAKING FISHING ENQUIRY CAN BE MADE KEEPING IN VIEW THE FOL LOWING CASE LAWS :- 7 I) BHOR INDUSTRIES LIMITED VS ACIT (2004)267 ITR (1 61 BOMBAY) II) HINDUSTAN LEVER LTD VS R.B WADKAR, ACIT (2 004) 268 ITR 332 (BOM) III) BHOGWATI SAHAKARI SAKHAR KARKHANA LTD VS D Y. CIT (2004) 268 ITR 186 (BOM) IV) AJANTA PHARMA LTD VS ACIT (2004) 267 ITR 200 (B OM) V) PR.CIT VS G & G PHARMA INDIA LTD (2017) 383 ITR 147 (DELHI)(HC) THEREFORE KEEPING IN VIEW THE ABOVE FACTS AND CIRCU MSTANCES THE COMPLETION OF ASSESSMENT U/S 143(3) ON THE BASIS OF INITIATION OF PROCEEDINGS ARE NOT TENABLE. HENCE THE ASSESSMENT ORDER PASSED IS L IABLE TO BE QUASHED AND THERE IS NO CASE FOR MAKING ADDITION OF RS. 46,00,0 00/- WHEN ALL MATERIAL FACTS WERE DECLARED IN THE ITR INCOME FILED.' 6.1 LD. CIT(A) HOWEVER DID NOT FIND MERIT IN THE SU BMISSIONS OF THE ASSESSEE BY OBSERVING THAT NON-PAN INFORMATION WAS RECEIVED THEREFORE THE PROCEEDINGS IN THIS CASE WERE LEGAL. 7. NOW THE ASSESSEE IS IN APPEAL. 8. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBM ISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT FR OM THE REASONS RECORDED BY THE A.O. MENTIONED IN PAGE NO. 2 OF THE ASSESSME NT ORDER, IT IS ABUNDANTLY CLEAR THAT THE SO CALLED REASONS RECORDED WERE NO R EASONS IN THE EYES OF LAW. 8.1 IT WAS POINTED OUT THAT THE A.O. HAD STATED IN THE REASONS RECORDED THAT THE ASSESSEE HAD NOT FILED HER RETURN OF INCOM E FOR THE YEAR UNDER CONSIDERATION WHERE AS THE ASSESSEE DULY E-FILED RE TURN OF INCOME ON 30/03/2011, COPY OF WHICH IS PLACED AT PAGE NO. 1 O F THE ASSESSEES PAPER BOOK. 8.2 IT WAS FURTHER SUBMITTED THAT THE ASSESSMENT OF THE ASSESSEE FOR THE A.Y. 2014-15 WAS FRAMED UNDER SECTION 143(3) OF THE ACT IN THE MONTH OF NOVEMBER 2016 WHEREAS THE REASONS WERE RECORDED IN THE MONTH OF MARCH 2017 WHICH REVEALED THAT WHEN THE A.O. ISSUED THE N OTICE UNDER SECTION 148 OF THE ACT, HE WAS HAVING THE KNOWLEDGE THAT THE AS SESSEE WAS REGULARLY FILING HER RETURN OF INCOME. 8.3 IT WAS FURTHER SUBMITTED THAT THE A.O. IN THE R EASONS RECORDED STATED THAT THE ASSESSEE HAD PURCHASED THE PROPERTY FOR AN AMOUNT OF RS. 8 1,49,02,500/- WHERE AS THE ASSESSEES SHARE WAS OF RS. 49,32,000/- AND AFTER INCLUDING THE REGISTRATION CHARGES THE VALUE OF THE AGRICULTURAL LAND WAS AT RS. 52,20,000/- WHICH HAD BEEN DULY SHOWN BY THE ASSESS EE IN HER BALANCE SHEET FURNISHED ALONGWITH RETURN OF INCOME FILED ONLINE W ELL IN TIME, THEREFORE, THE ASSUMPTION OF JURISDICTION BY RELYING ON THE WRONG FACTS WAS VOID-AB-INITIO AND THE PROCEEDINGS FOR REASSESSMENT DESERVES TO BE SET ASIDE. THE RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS: SAGAR ENTERPRISES VS. ACIT (2002) 257 ITR 335 (GUJ) KMV COLLEGIATE SR. SEC. SCHOOL VS. ITO (2017) 163 I TR 653 (ASR.) (TRIB.) BABA KARTAR SINGH DUKKI EDUCATIONAL TRUST VS. ITO ( 2016) 158 ITR 965 (CHD.) (TRIB.) VAN OORD DREDGING AND MARINE CONTRACTORS BV VS. ADI T-ITA NO. 495, 496/MUM/2016 (MUM)(TRIB.) DT. 28/02/2018 SHRI RAM MOHAN RAWAT VS. ITO IN ITA NO. 1014/JP/201 8 ORDER DT. 10/10/2019(JAIPOUR) SHRI ALLEN DE NORONHA VS. ACIT IN ITA NO. 338/LKW/2 015 ORDER DT. 07/05/2018(LUCKNOW BENCH) SHRI MANISH JAIN VS ITO IN ITA NO. 755/CHD/2012 DAT ED 16.04.2013 (CHD. ITAT) M/S RAJ HANS TOWERS PVT LTD. VS ITO IN ITA NO. 1570 /DEL/2013 ORDER DATED 14.08.2015 (DEL ITAT) SHRI SATNAM SINGH VS DCIT IN ITA NO. 144/CHD/2016 O RDER DATED 26.09.2016 (CHD ITAT) SHRI HARAKCHAND K. GADA (HUF) V. ITO ITANO.2800/MUM/2014, DATE:09/12/2015 (MUM.) (TRIB.) MUMTAZ HAJI MOHMAD MEMON VS ITO IN ITA NO. 21030/20 17 DATED 21.03.2018 (GUJ) NIRMALA AGGARWAL VS ACIT ITA NO. 995-996/JP/2016 DA TED 11.04.2018 (JAIPUR TRIB) RAJENDER PRASAD CHOUDHARY VS ACIT IN ITA NO. 1495-1 496/JP/2018 ORDER DATED 12.06.2019 (JAIPUR TRIB) 9. IN HIS RIVAL SUBMISSIONS THE LD. DR REITERATED T HE OBSERVATIONS MADE BY THE AUTHORITIES BELOW AND STRONGLY SUPPORTED THE IM PUGNED ORDER. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAD NOT GIVEN A NY INFORMATION AND ALSO DID NOT FILE ANY REPLY WHEN THE A.O. SPECIFICALLY A SKED THE ASSESSEE ABOUT THE INVESTMENT IN PROPERTY BY ISSUING THE NOTICE UNDER SECTION 148 OF THE ACT, REFERENCE WAS MADE TO PARA NO. 3 OF THE ASSESSMENT ORDER. IT WAS FURTHER STATED THAT WHEN THE ASSESSEE DID NOT FURNISHED THE REQUISITE INFORMATIONS, THE A.O. WAS JUSTIFIED IN REOPENING THE ASSESSMENT BY I SSUING THE NOTICE UNDER SECTION 148 OF THE ACT. 10. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE IT IS NOTICED THAT THE 9 A.O. RECORDED THE REASONS FOR REOPENING THE ASSESSM ENT WHICH ARE MENTIONED IN PARA 3.1(C) OF THE IMPUGNED ORDER AND READ AS UNDER: AS PER INFORMATION ON RECORD OF THIS OFFICE, THE AB OVE NOTED PERSON HAS PURCHASE OF PROPERTY AMOUNTING TO RS. 1,49,02,500/- DURING THE F. Y. 2009-10, WHICH AMOUNT IS MUCH MORE THAN THE MAXIMUM EXEMPT LIMIT OF RS. 1,90,000/-PRESCRIBED FOR THE CORRESPONDING A.Y. 201 0-11. HOWEVER, AS PER THE RECORD OF THIS OFFICE, THE ASSESSEE HAS NOT FILED H IS RETURN OF INCOME. I, THEREFORE, HAVE REASON TO BELIEVE THAT THE ASSES SEE'S INCOME CORRESPONDING TO THE AFORE-SAID PURCHASE OF PROPERTY AMOUNTING TO RS. 1,49,02,500/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 14 7 OF THE INCOME-TAX ACT, 1961. IT IS THEREFORE, PROPOSED TO ISSUE A NOT ICE UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2010-1 1.' S/D (B.B. SHARMA) INCOME TAX OFFICER WARD-2, KURUKSHETRA 10.1 FROM THE AFORESAID REASONS IT IS CLEAR THAT TH E A.O. ISSUED THE NOTICE UNDER SECTION 148 OF THE ACT, FOR THE REASONS THAT THE ASSESSEE HAD NOT FILED HER RETURN OF INCOME AND THAT THE ASSESSEE HAD PURC HASED A PROPERTY AMOUNTING TO RS. 1,49,02,500/- DURING THE F.Y. 2009 -10. HOWEVER, THE SAID REASONS GIVEN BY THE A.O. FOR REOPENING THE ASSESSM ENT ARE NOT CORRECT SINCE THE ASSESSEE HAD FILED THE RETURN OF INCOME ON 30/0 3/2011, COPY OF WHICH IS PLACED AT PAGE NO. 1 OF THE ASSESSEES COMPILATION. THE ASSESSEE HAD ALSO SHOWN THE INVESTMENT IN AGRICULTURAL LAND AMOUNTING TO RS. 52,20,000/- IN HER BALANCE SHEET AS ON 31/03/2010, COPY OF WHICH IS PL ACED AT PAGE NO. 2 OF THE ASSESSEES COMPILATION THEREFORE BOTH THE REASON S GIVEN BY THE A.O. I.E; THE ASSESSE HAD NOT FILED THE RETURN OF INCOME AND INVESTED IN THE PROPERTY AMOUNTING TO RS. 1,49,02,500/- WERE WRONG. 10.2 ON A SIMILAR ISSUE THE HON'BLE GUJARAT HIGH CO URT IN THE CASE OF SAGAR ENTERPRISES VS. ACIT (SUPRA) HELD AS UNDER: THAT IT WAS APPARENT THAT THE FACT OF NON-FILING OF THE RETURN FOR THE ASSESSMENT YEAR 1991-92 HAD WEIGHTED WITH THE RESPONDENT FOR ARRIVI NG AT THE SATISFACTION ABOUT THE FAILURE ON THE PART OF THE ASSESSEE AND ESCAPEMENT OF ASSESSMENT OF INCOME. HOWEVER, THE MATERIAL ON RECORD SHOWED THAT THE RET URN HAD BEEN FILED. IN SUCH CIRCUMSTANCES, IT COULD NOT BE SAID WITH CERTAINTY AS TO WHICH FACT WOULD HAVE WEIGHED WITH THE OFFICER CONCERNED AND ONCE IT WAS SHOWN THAT AN IRRELEVANT FACT 10 HAD BEEN TAKEN INTO CONSIDERATION, TO WHAT EXTENT T HE DECISION WAS VITIATED WOULD BE DIFFICULT TO SAY. MOREOVER THE INCOME-TAX OFFICER H AD STATED THAT THE PAYMENT WHICH WAS STATED TO BE UNDISCLOSED INCOME RELEVANT FOR TH E ASSESSMENT YEAR 1991-92 COULD HAVE BEEN MADE DURING THE FINANCIAL YEAR 1990-91 RE LEVANT TO THE ASSESSMENT YEAR 1991-92 AND HENCE, TO COVER UP THAT PROBABILITY, P ROTECTIVE ADDITION WAS MADE IN THE ASSESSMENT YEAR 1992-93. THE FIRST APPELLATE A UTHORITY DECIDED THE APPEAL FOR THE ASSESSMENT YEAR 1992-93 ON JANUARY, 1996, AND THE R EASON HAD BEEN RECORDED THEREAFTER ON AUGUST 18, 1997. THE NOTICE OF REASSE SSMENT WAS NOT VALID AND WAS LIABLE TO BE QUASHED. 10.3 A SIMILAR VIEW HAS BEEN TAKEN BY THE ITAT, CHA NDIGARH SMC BENCH IN THE CASE OF BABA KARTAR SINGH DUKKI EDUCATIONAL TRU ST VS. ITO (SUPRA) WHEREIN IT HAS BEEN HELD AS UNDER: HEAD NOTE: WHERE ASSESSING OFFICER PROCESSED UNDER SECTION 1 43(1) RETURNS OF INCOME FILED BY ASSESSEE FOR ASSESSMENT YEARS 2001-02 TO 2003-04 AN D SUBSEQUENTLY HE REOPENED SAID ASSESSMENTS ON SOLE BASIS THAT ASSESSEE HAD NOT FIL ED RETURNS FOR YEARS PRECEDING TO ASSESSMENT YEAR 2004-05 AND, THEREFORE, ITS INCOME HAVING ESCAPED ASSESSMENT, REOPENING OF ASSESSMENT WAS ON BASIS OF SUSPICION A ND NON-EXISTENT AND INCORRECT FACTS AND IT WAS INVALID 10.4 SIMILARLY THE ITAT L BENCH, MUMBAI QUASHED T HE REOPENING OF THE ASSESSMENT WHICH WAS BASED ON INCORRECT FACTS VIDE ORDER DT. 28/02/2018 IN THE CASE OF VAN OORD DREDGING AND MARINE CONTRACTOR S BV VS. ADIT (SUPRA) BY OBSERVING AS UNDER: IN AY 2005-06, THE A.O. HAS REOPENED THE ASSESSME NT ON INCORRECT FACTS AND FURTHER THE ASSESSING OFFICER HAS FAILED TO DEMONSTRATE THA T THERE WAS FAILURE ON THE PART OF HT ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL F ACTS DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS. HENCE THE REOPENING OF ASSE SSMENT OF AY 2005-06 IS LIABLE TO BE QUASHED ON THESE TWO GROUNDS ALSO. ACCORDINGLY W E SET ASIDE THE ORDER PASSED BY LD. CIT(A) ON THIS ISSUE AND HOLD THAT THE REOPENIN G OF ASSESSMENTS OF BOTH THE YEARS ARE NOT IN ACCORDANCE WITH THE LAW AND ACCORDINGLY QUASH THE ASSESSMENT ORDERS PASSED FOR BOTH THE YEARS UNDER CONSIDERATION. 10.5 SIMILAR VIEW HAS BEEN TAKEN BY THE ITAT JAIPUR BENCH IN CASE OF SHRI RAM MOHAN RAWAT VS. ITO(SUPRA) VIDE ORDER DT. 10/10 /2019 THE RELEVANT FINDINGS GIVEN THEREIN READ AS UNDER: THUS THE REASONS RECORDED BY THE AO FOR FORMATION OF BELIEF THAT INCOME ASSESSABLE TO TAX HAS ESCAPED ASSESSMENT ARE BASED ON TWO COUNTS. ONE, THE ASSESSEE HAS MADE BOGUS PURCHASES AND THE SECOND, T HAT THE PURCHASES ARE NOT VERIFIABLE AS THE ASSESSEE HAS NOT FILED THE RE TURN OF INCOME. THUS THE FORMATION OF BELIEF IS BASED ON THESE TWO FACTUAL A SPECTS THAT THE ASSESSEE HAS MADE BOGUS PURCHASES WHICH ARE NOT VERIFIABLE AS AS SESSEE HAS NOT FILED THE RETURN OF INCOME. THE REASONS FOR NONVERIFIABLE OF THE PURCHASES MADE BY THE ASSESSEE DUE TO NON FILING OF THE RETURN OF INCOME AS STATED BY THE AO IS ABSOLUTELY INCORRECT AND WRONG AND CONTRARY TO THE RECORD WHEN THE ASSESSEE HAS FILED THE RETURN OF INCOME ELECTRONICALLY ON 29 .10.2007. THIS FACT WAS ALSO 11 SUBSEQUENTLY ACCEPTED BY THE AO THAT THE ASSESSEE F ILED THE RETURN OF INCOME UNDER SECTION 139(1). THE SECOND ASPECT OF THE REAS ONS THAT THE ASSESSEE HAS MADE BOGUS PURCHASES IS ALSO NOT BASED ON ANY ENQUI RY OR VERIFICATION OF RECORD BY THE AO BUT THIS IS SIMPLY REPRODUCTION OF INFORMATION RECEIVED FROM THE INVESTIGATION WING. THE SAID INFORMATION IS ALS O INCOMPLETE AS REGARDS THE DETAILS OF THE PURCHASES AND THE PARTIES FROM WHOM SUCH PURCHASES WERE MADE BY THE ASSESSEE. THUS THE REASONS RECORDED BY THE A O MANIFEST THAT THERE IS NO APPLICATION OF MIND AND THE AVERMENTS AS RECORDED I N THE REASONS ARE VERY VAGUE AND GENERAL AND RATHER INCONSISTENT WITH THE FACTS AVAILABLE ON RECORD SO FAR AS THE FILING OF RETURN OF INCOME BY THE ASS ESSEE. THE FORMATION OF BELIEF ON SUCH INCORRECT AND VAGUE REASONS WOULD LEAD THE REO PENING OF THE ASSESSMENT AS INVALID. 10.6 IN THE PRESENT CASE ALSO THE A.O. REOPENED THE ASSESSMENT ON THE BASIS OF WRONG FACTS, SO RESPECTFULLY FOLLOWING THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASES, I AM OF THE VIEW THAT THE REOPEN ING OF THE ASSESSMENT IN THE PRESENT CASE WAS NOT VALID, ACCORDINGLY, THE SA ME IS QUASHED. SINCE THE APPEAL OF THE ASSESSEE IS DECIDED ON THE LEGAL ISSU E, THEREFORE NO FINDINGS ARE BEING GIVEN ON THE MERIT OF THE CASE RELATING T O THE QUANTUM OF ADDITION. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. (ORDER PRONOUNCED IN THE OPEN COURT ON 28/02/2020). SD/- .., ( N.K. SAINI) ! / VICE PRESIDENT AG DATE: 28/02/2020 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE