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Income Tax Appellate Tribunal, JAIPUR BENCH ’B’, JAIPUR
Before: SHRI RAMESH C. SHARMA, AM & SHRI VIJAY PAL RAO, JM vk;dj vihy la-@ITA No. 5/JP/2017
This appeal by the assessee is directed against the order dated 27.10.2016 of ld. CIT (A), Ajmer for the assessment year 2008-09. The assessee has raised the following grounds :-
“ 1. The impugned addition made in the order u/s 143(3)/147 of the Act dated 27.01.2016 is bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same kindly be deleted.
2.1. The very action taken u/s 147 r/w 148 of the Act is bad in law without jurisdiction and being void ab-initio, the same kindly be quashed. Consequently the impugned assessment framed u/s 143(3)/147 of the Act dated 27.01.2016 also kindly be quashed.
2.2. The ld. CIT (A) further erred in law as well as on the facts of the case in confirming the action of the AO which is in contravention to the proviso to Sec. 147 of the Act because there was no failure on the part of the appellant to fully & truly disclose all material facts necessary for the assessment nor there was any such allegation and hence the very initiation of Sec. 147 of the Act and the confirmation thereof by the ld. CIT (A) being contrary to the provisions of law and facts, kindly be quashed & the consequent assessment order dated 27.01.2016 u/s 143(3)/147 of the Act also be quashed.
3. Rs. 4,00,000/-: The ld. CIT (A) further erred in law as well as on the facts of the case in confirming the disallowance made by the AO of the expenditure of Rs. 4,00,000/- claimed as development expenditure. The disallowance so made and confirmed by the ld. CIT (A) being contrary to the provisions of law and facts, kindly be deleted in full.
The AO erred in law as well as on the facts of the case in charging interest u/s 134A, 234B & 234C of the Act. The appellant totally denies it liability of charging of any such interest. The interest so charged, being contrary to the provisions of law and facts, kindly be deleted in full.
5. The appellant prays your honour indulgences to add, amend or alter of or any of the grounds of the appeal on or before the date of hearing.
Ground nos. 1 to 2.2 are regarding validity of reopening of the assessment.
Since this issue was not raised by the assessee before the authorities below, therefore, the assessee has also filed an application for admission of additional ground.
We have heard the ld. A/R as well as the ld. D/R on admission of additional ground. We find that in the additional ground raised by the assessee the question of pure law is involved and for adjudication of the same no new facts or material are required to be verified or investigated. Therefore, when the issue raised in the additional ground can be adjudicated on the basis of the facts and material already on record, then in view of the decision of the Hon’ble Supreme Court in case of CIT vs. NTPC, 229 ITR 383 (SC), the additional grounds raised by the assessee raising the issue of validity of reopening are admitted for adjudication on merits.
4. The ld. A/R of the assessee has submitted that the assessee filed her original return of income on 29.09.2008 declaring total income of Rs. 106,030/-. The assessment was completed under section 143(3) on 24.12.2010 at the total income of Rs. 1,34,030/-. Subsequently, the AO issued a notice under section 148 on 16th March, 2015 to assess the income from the properties sold by the assessee. The ld. A/R has submitted that the notice issued by the AO is after the expiry of four years from the assessment year under consideration and, therefore, when there is no failure on the part of the assessee to disclose fully and truly all the material facts necessary for the assessment, the reopening of the assessment completed under section 143(3) is not valid as hit by the proviso to section 147 of the IT Act. The ld. A/R has further submitted that the AO has also not stated in the reasons recorded that the assessee has failed to disclose fully and truly all the material facts necessary for the assessment. Hence the reopening is not sustainable in law. In support of his contention, he has relied upon the decision of Hon’ble Bombay High Court in case of Sound Casting Pvt. Ltd. vs. DCIT, 250 CTR 119 (Mum.) and submitted that when there is no allegation in the reasons which have been disclosed to the assessee that there was any failure on his part to fully and truly disclose material facts necessary for assessment, then the reopening beyond four years is not valid. He has also relied upon the decision of Hon’ble Delhi High Court in case of Haryana Acrylic Manufacturing Co. vs. CIT, 308 ITR 38 (Del.) as well as the decision of Hon’ble Jurisdictional High Court in case of Banswara Syntex Ltd. vs. ACIT, 272 ITR 154 (Raj.) and submitted that when the reasons recorded by the AO do not show satisfaction of the AO that escapement of the income chargeable to tax is on account of failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment, then the notice issued under section 148 after expiry of four years is not sustainable in view of the proviso to section 147 of the Act. He has contended that the assessee has already made full and true disclosure of all the primary facts which were necessary for the assessment and therefore in the absence of any allegation in the reasons that the escapement of income assessable to tax is due to the reason of failure on the part of the assessee to disclose fully and truly all the material facts necessary for assessment, the reopening is not valid. The ld. A/R has referred to the return of income as well as Balance Sheet as on 31st March, 2007 and as on 31st March, 2008 and submitted that the assessee has shown these lands in the balance sheet and also shown the income from sale of the lands in the return of income. Thus it is not a case of failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment.
On the other hand, the ld. D/R has submitted that the assessee is not maintaining any books of account as far as the activity of purchase and sale of real estate. Further, only in the reassessment proceedings the assessee has submitted that trading account prepared after the reopening of the assessment. In the return of income the assessee has shown the business income only from petrol pump and no business income was shown from the purchase and sale of plots of land.
Subsequently, the AO received information from DDIT Investigation Udaipur vide assessee during the year under consideration. The AO has duly recorded the reasons for reopening of the assessment that in the return of income and other documents submitted during the scrutiny assessment the assessee has not disclosed these transactions. Therefore, the AO has specifically stated in the reasons recorded that assessee has not disclosed these transactions and income in the return of income as well as in the other documents submitted during the scrutiny assessment. Thus the reasons recorded clearly manifest failure on the part of the assessee to disclose the very transactions and hence this is a case of failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. He has relied upon the orders of the authorities below.
We have considered the rival submissions as well as the relevant material on record. The assessee is an individual and earning income from running of petrol pump in the name and style of M/s. Bajrang Service Station, rent and interest. The assessee filed her return of income under section 139(1) of the IT Act on 29th September, 2008 and also furnished the audit report under section 44AB in respect of M/s. Bajrang Service Station. The assessment was completed under section 143(3) on 24.12.2010. After perusal of the relevant record as well as the assessment record, we noted that the assessee has admitted the fact that she has not maintained any books of account in respect of the activity of purchase and sale of plots of land, though the assessee has shown the income under the head Income from capital gains in the return of income to the extent of Rs. 2,90,796/-. However, in the absence of books of account as well as other relevant documents maintained by the assessee and produced before the AO during the scrutiny assessment, it is not clear whether the short term capital gain shown in the return of income is arising from the purchase and sale of plots of land which are recorded by the AO in the reasons for reopening of the assessment. Even otherwise, when the assessee has disclosed only short term capital gain and books of accounts are not maintained in respect of the transactions of purchase and sale of plots of land, then the said disclosure of short term capital gain would not constitute the disclosure of income from the business activity of real estate. As regards the contention of the ld. A/R of the assessee that the AO has not alleged that the escapement of income is due to failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment, we find it relevant to reproduce the reasons recorded by the AO as under :-
“ Name& address of the assessee : Smt. Neeta Garg W/o Sh. Pradeep Garg, 617/4/A, Vinayakam, Opp. SBBJ, Lohagal Road, Ajmer.
Permanent Account No. : ABMPG 5419 Q Status : Individual District/Circle/Range : ITO, Ward 2(1), Ajmer. Assessment Year : 2008-09.
Return of income for AY 2008-09 was E-filed on 29.09.2008 vide acknowledgement No. 42821970290908 declaring Rs. 1,06,030/- as total income besides Rs. 25,000/- was shown as Agricultural Income.
As per information received from the DDIT (Inv.)-1 Udaipur vide letter no. 638 dated 25.03.2014 the assessee has sold following properties details of which are not available in the case record :
S.No. Purchaser’s Name and Property’s Date of Sale price Sale price adopted address address Sale by the stamping authorities. 1. Ms Archna Bakliwal Plot No. 09, vill 21.01.2008 1,00,000 2,39,174 Nausar, Ajmer. 2. Sh. Fakruddin Plot No. 09, vill 20.02.2008 1,00,000 1,91,060 Nausar, Ajmer.
3. Smt. Bhanwar Kanwar Plot No. 07, Vill 20.02.2008 1,00,000 2,02,534 Nausar, Ajmer.
4. Smt. Santosh Tewari Plot No. 08, vill 6.9.2007 80,000 1,51,800 Nausar, Ajmer. 5. Smt. Kanchan devi Plot No. 06, vill 6.9.2007 1,00,000 2,00,475 Nausar, Ajmer. 6. Sh. Shiv Dayal Verma Plot No. 05, vill 6.9.2007 1,00,000 1,94,288 Nausar, Ajmer. Total : 11,79,331
The case for the A.Y. 2008-09 was completed u/s 143(3) on 14.12.2010. On perusal of the return of the assessee and other documents submitted during the scrutiny assessment it is clear that the assessee has not disclosed the transaction.
Looking to the facts mentioned above, I have reason to believe that the income to the extent of Rs. 11,79,331/- has escaped assessment within the meaning of section 147/148 of the IT Act, 1961.
Dated : 12.02.2015. Sd/- ( Sukumar Jain ) Income-tax Officer, Ward-2(1), Ajmer.”
From the reasons recorded by the AO for reopening of the assessment, it is clear that the AO has received the information regarding the sale of six plots of land by the assessee during the year under consideration and the said fact of sale is not in dispute. It is also not in dispute that the assessee has not disclosed any business income from the sale of these plots of land though some short term capital gain was disclosed in the return of income filed under section 139(1) of the IT Act. The assessee has also claimed that the sales of these plots of land in question are the business transactions of the assessee. The AO has specifically made a statement that on perusal of return of income of the assessee and other documents submitted during the scrutiny assessment, it is clear that the assessee has not disclosed the transactions. Once the assessee has not at all disclosed these transactions and also not maintained books of account in respect of the purchase and sale of plots of land, then the statement of the AO in the reasons recorded clearly made out the case that there is a failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. It is also pertinent to note that the assessee has not shown these plots of land in the Balance Sheet as stock-in-trade but these are shown under the head ‘Assets’. Therefore, it is a case of suppression of the very fact of sale transactions and income arising from the sale of plots of land. Hence the decisions relied upon by the assessee are not applicable in the facts of the present case as the issue involved in the reasons for reopening is purely of fact and not based on any difference of opinion or possibility of two opinion. Accordingly, we do not find any merit or substance in the additional ground raised by the assessee.
Ground No. 3 is regarding the addition of Rs. 4,00,000/- by disallowing the claim of development expenditure.
The ld. A/R of the assessee has submitted that the assessee sold plot Nos. 4 to 9 during the year under consideration and declared profit of Rs. 2,90,796/-. The computation of profit has been shown in the trading account produced during the reassessment proceedings. The assessee has claimed development expenditure incurred in respect of the remaining plots which was disallowed by the AO. Thus the ld. A/R has submitted that the expenditure incurred towards the development only in respect of the remaining plots of land and not in respect of the plots sold during the year.
On the other hand, the ld. D/R has relied on the orders of the authorities below.
We have considered the rival submissions as well as the relevant material on record. It is clear from the record that the assessee is not maintaining any books of account regarding transactions of purchase and sale of plots of land. Further, the expenditure of Rs. 4,00,000/- as claimed by the assessee in the trading account produced during the reassessment proceedings is not supported by any vouchers or bills. Therefore, once the assessee has failed to substantiate the claim of expenditure by producing any supporting evidence or even showing the said expenditure recorded in the books of account, then such a claim made only at the time of reassessment is not allowable. Even otherwise, the reopening of assessment cannot be used for the benefit of the assessee in view of the decision of Hon’ble Supreme Court in case of CIT vs. Sun Engineering Works Pvt. Ltd. 198 ITR 297 (SC).
In the case in hand, the assessee is claiming the development expenditure in respect of unsold plots of land whereas the AO has proposed to assess the income in the reassessment proceedings only in respect of the plots of land sold during the year under consideration. Therefore, the said claim of expenditure which was not specifically claimed in the original return of income cannot be claimed in the reassessment proceedings. Accordingly, we do not find any error or illegality in the orders of the authorities below qua this issue.
In the result, appeal of the assessee is dismissed.
Order is pronounced in the open court on 21/06/2019.