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Income Tax Appellate Tribunal, CHANDIGARH
Before: SMT. DIVA SINGH, JM
आयकर अपील�य अ�धकरण,च�डीगढ़ �यायपीठ “एकल सद�यीय’, च�डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH ‘SMC’ CHANDIGARH �ीमती �दवा �संह, �या�यक सद�य BEFORE: SMT. DIVA SINGH, JM आयकर अपील सं./ ITA No. 49/CHD/2020 �नधा�रण वष� / Assessment Year : 2008-09 M/s Fateh Resorts Pvt. Ltd., The ITO, बनाम H.No. 2144, Sector 15-C, Ward 1(4), VS Chandigarh. Chandigarh. �थायी लेखा सं./PAN No: AABCF0764C अपीलाथ�/Appellant ��यथ�/Respondent
�नधा�रती क� ओर से/Assessee by : Shri Parikshit Aggarwal, C.A. राज�व क� ओर से/ Revenue by : Smt. Meenakshi Vohra, Addl. CIT : 10.06.2021 सुनवाई क� तार�ख/Date of Hearing उदघोषणा क� तार�ख/Date of Pronouncement : 16.06.2021
Hearing conducted via Webex आदेश/ORDER
The present appeal has been filed by the assessee wherein the correctness of the order dated 31.10.2019 of CIT(A)-I Chandigarh pertaining to 2008-09 assessment year is assailed by the assessee on various grounds.
However, at the time of hearing, the parties argued only on ground No. 2 as the jurisdictional challenge raised by the assessee thereon stood concluded in assessee's favour. It needs be referred that consistently over a period of time, ld. AR had been requesting for adjournment on the ground that the ITAT is seized of a similar ground on same set of facts and circumstances
ITA 49/CHD/2020 A.Y. 2008-09 Page 2 of 5
as in the present case in a connected appeal. The order was
stated to be awaited. Copy of this order is now available. Copy of
that order dated 24.05.2021 in ITA No. 54, 55 and 57/CHD/2020
in the case of M/s Fateh Softech Pvt. Ltd. , Chandigarh has been
filed and is available at Paper Book page 43 to 59. Accordingly,
time had been given to the department to consider whether
ground No.2 stated to be covered in assessee's favour can be said
to be covered by this order of the ITAT. In this background, the
appeal came up for hearing on the next date.
The ld. AR invited attention to copy of the reasons recorded
in the case of the assessee which is placed at Paper Book page
36.
3.1 Referring to the copy of the order of the ITAT, attention was
invited to the fact that while considering the appeal in a
connected case pertaining to the year under consideration itself
in the case of M/s Fateh Softech Pvt. Ltd. (supra), identical
reasons have been extracted in the order in para 4 (internal page
4 of the order, Paper Book page 46). These very facts on
identical reasons recorded, it was submitted, have been
considered by the ITAT in para 5 (internal page 5 of the aforesaid
order and Paper Book page 47). Accordingly, it was his
submission that the issue is identical and the assessment order
following this order, it was his prayer may be quashed. It was
ITA 49/CHD/2020 A.Y. 2008-09 Page 3 of 5
submitted that even on merits the facts are identical and the
issue can be decided in favour of the assessee.
The ld. Sr.DR was heard. On a consideration of the reasons
recorded in the year under consideration, which are available at
Paper Book page 36, it was agreed that the very same reasons
have been considered in para 4 and 5 by the ITAT in the
aforesaid order wherein the assumption of jurisdiction has been
quashed. In the circumstances, apart from relying upon the
orders, it was submitted that she would have nothing further to
state.
I have heard the submissions and perused the material on
record. In the peculiar facts and circumstances of the case,
admittedly the reasons for re-opening the assessment by
issuance of notice u/s 147/148 are as under :
Reason for re-opening the case u/s 147/148 of the Income Tax Act, 1961 An information was received from the Deputy Director of Income Tax (Investigation)-II, Chandigarh vide his office letter No. 3575 dated 02.03.2015 that above noted assessee had been evading rental income from House Property.
On perusal of return of the said assessee company for A.Y. 2008-09, it is observed that fixed assets have been shown at Rs. 5,45,40,085/- but no income under any head has been shown except agriculture income of Rs. 1,69,000/- Therefore, I have reason to believe that the rental income from the house property has escaped assessment within the meaning of section 147/148 of IT Act, 1961 for A.Y. 2008-09. Sd/- (Ankit Jain) Income Tax Officer Ward-1(4), Chandigarh
ITA 49/CHD/2020 A.Y. 2008-09 Page 4 of 5
It is seen that in connected case of M/s Fateh Softech P.Ltd.
(supra), this very issue came up for consideration before the ITAT
where vide paras 4 & 5 re-opening has been quashed holding as
under :
“4. I have heard the rival submissions and perused the material available on record. The Assessing Officer ( in short ‘AO’) recorded the following reasons for re-opening of the assessment : Reason for r eopening the case u/s 147/ 148 of the Income Tax Act. 1961 An information was received from the Deputy Director of-. Income- Tax (Investigation)-II, Chandigarh vide his office letter No. 3578 dated 02.03.2015 that above noted assessee had been evading rental income from House Property.
On perusal of return of the said assessee company for A.Y. 2008-09j it is observed that fixed assets have been shown at Rs.36,29,120/-but no income under any head has been shown except agriculture income of Rs.l,2G.GQM-
Therefore, I have reason to believe that the rental income from the-house property has escaped assessment within the meaning of section 147(a) of IT Act, 1961 for A.Y. 2008-09.
A perusal of the above reasons reveal that the AO observed that the assessee had shown fixed assets of Rs. 36.29 lacs but he had not offered any income from the said property except agriculture income of Rs. 1,20,00,000/-. This, in my view is a vague reason. Merely possession of a fixed asset does not mean that the assessee might have earned any income from the said asset which would have escaped assessment. Admittedly the assessee owns agricultural land where upon certain construction has been made by the assessee. It has been used for its own purposes. The reasons recorded by the Assessing Officer do not disclose that the assessee has used any of his assets for any business or rental purposes. The formation of belief by the AO in this case regarding the escapement of income of the assessee, in my view is based on just assumptions and presumptions and there was no reliable material available with the AO to form the belief that the income of the assessee had escaped assessment. In this view, re- opening of the assessment in this case, in my view is bad in law and the same is therefore quashed.”
ITA 49/CHD/2020 A.Y. 2008-09 Page 5 of 5
In the peculiar facts and circumstances in the absence of
any change in fact or argument following the order of the ITAT,
ground No. 2 raised by the assessee is allowed and the
assessment order is quashed.
Though the ld. AR sought to argue the appeal on merits
stating that it is also fully covered by the aforesaid order,
however, since the assessment is quashed, the discussion of the
issue on merits becomes redundant. Accordingly, ground No. 2
of the assessee is allowed. Said order was pronounced at the time
of virtual hearing itself in the presence of the parties via Webex.
In the result, appeal of the assessee is allowed to the above
extent.
Order pronounced on 16th June,2021.
Sd/- (�दवा �संह ) (DIVA SINGH) �या�यक सद�य/Judicial Member
“पूनम” आदेश क� �ितिलिप अ�ेिषत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकर आयु�/ CIT 4. आयकर आयु� (अपील)/ The CIT(A) 5. िवभागीय �ितिनिध, आयकर अपीलीय आिधकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड� फाईल/ Guard File आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar