VIJAY BATHLA,DELHI vs. ITO WARD 44(1), NEW DELHI

ORDER PER R.K. PANDA, AM, This appeal filed by the assessee is directed against the order dated 28.07.2018 of the learned CIT(A)-15, New Delhi, relating to Assessment Year 2009-10.

3. Although, a number of grounds have been raised by the assessee, however, these all relate to the order of the ld. CIT(A) in dismissing the appeal filed by the assessee challenging the validity of reassessment proceedings and the addition of Rs.44,09,836/- made by the AO on account of Long Term Capital Gain.

Bathla resident of 1045, Sector-37, Noida, Dist. Gautam Budh Nagar, U.P. GPA of Gen. V.K. Singh S/o- S.N. Singh and Smt.

Meena Singh R/o-21, Akbar Road New Delhi. Subsequently, the AO issued notice u/s 148 dated 15.11.2016 to E-46, College Line. P.O. Bengali Market, New Delhi 110001 fixing the case for 23.11.2016. On 23.11.2016, the ld. Counsel for the assessee filed a letter raising objection to the issuance of notice u/s 148 for the following reasons:-

1. This is the first notice that the assessee has received and no notice prior to notice dated 15.11.2016 has been received by him.

2. That the notice is bad in law as notice is without jurisdiction. 3. That he is filing his regular return of income in Delhi and he has filed his return of income in Delhi and he has filed his return for the A.Y.2009-10 at Delhi. 4. That the notice u/s 148 is out of jurisdiction. 5. That he has not purchased any property for a consideration of Rs.55,00,000/- 5. Thereafter, the AO asked the assessee to cooperate in the assessment proceedings and file his return of income in response to notice u/s 148 of the Act and that in absence of the same Rs.55,00,000/- would be treated as income from capital gain. The assessee, in response to the said notice, again raised certain objections. The AO thereafter issued another letter to the assessee to furnish the requisite details. In absence of any cooperation from the side of the assessee, the AO made addition of Rs.55,00,000/- after deducting the indexed cost of acquisition of rs.10,90,164/-.

6. Before the ld. CIT(A), the assessee apart from challenging the addition on merit, challenged the validity of the reassessment proceedings. However, the ld. CIT(A) was also not satisfied with the arguments advanced by the assessee and upheld the validity of the reassessment proceedings. Similarly, he also upheld the addition made by the AO on merit. So far as the validity of reassessment proceedings are concerned, the ld. CIT(A) decided the issue against the assessee by observing as under:-

“Before the Grounds of appeal are taken up for adjudication, it is appropriate to discuss the brief background of the case of appellant and the circumstances under which the reopening of the assessment was done by ITO, Ward 2(5), Noida, by issuing notice u/s 148. 5.1. ITO, Ward 2(5), Noida received an information from the CIB wing of the department that Sh. Vijay Bathla (the appelant) has entered into a non-PAN transaction, has sold a property in Rs. 55,00,000/- on 28.04.2009. This transaction was not containing any PAN number of the appellant, Sh. Vijay Bathla, solely due to the fact that the appellant, while registering the sale deed of property with the concerned registering authority, had himself not provided any PAN number of himself to the registering authority, accordingly the CIB wing also could not communicated the PAN number of the appellant to the ITO, Ward 2(5), Noida. CIB wing could only communicate the name and the address of the appellant, as provided by appellant himself in the document registered with the registering Authorities in respect of property deal. Besides, the name and address, other information such as the amount of transaction and the date of transaction was also communicatea by CIB wing to AO. As stated above that at the time of registering authority providing information to CIB wing and in turn CIB wing providing information to ITO, Ward 2(5), Noida, the PAN number of the appellant was not available with any of these authorities. 5.2. At this stage, before the specific facts involved in the case of appellant are presented and analysed, it is appropriate to discuss the methodology and functioning of CIB wing of department and the further action which the concerened AO can possibly take in humanly possible manner, within the constraint placed on him, on account of fact that the appellant himself does not provide the relevant information to statutory authorities, which otherwise the appellant is duty bound to provide. 5.2.1. The CIB wing of the department collects such information from the offices of Sub Registrars, regarding sale/purchase of immovable properties. There are numerous cases where the transactions of very high value are entered into between various parties, the first group of persons being the sellers and the second group of persons being the purchasers, but many times these persons do not provide their PAN numbers before the registering authorities. Subsequently such information, which is devoid of PAN numbers of these persons, is forwarded by CIB wing to respective jurisdictional Assessing officers, jurisdiction being decided based upon the address provided by such persons before the registering authorities. 5.2.2. Therefore, in such circumstances, AO to whom such an information has been forwarded has absolutely no way of ascertaining the PAN number of these persons. Even the address of these persons, available with, the AO to whom such an information has been forwarded, is the same address as forwarded by CIB wing to AO, which in turn has been received by the CIB wing from the registering authorities, which in turn has been provided by the parties themselves who are involved in making transactions of sale/purchase of immovable properties. 5.2.3. It is in the background of such constrained placed on AO to whom such an information has been forwarded by CIB wing, that the AO is required to examine whether the property transaction entered into by a particular person, as per information forwarded to him by another wing of department, has been declared in ITR or not and whether the correct amount of income earned by such persons on such property transactions has been declared in ITR or not. 5.2.4. In order to undertake such examination, the very first step such an AO takes is issuing a query letter to such a person and ask him/her, whether the reported transaction has infact been undertaken by him or not. Here comes the question, where/on what address, the AO is capable of sending such a query letter. Since at this stage, AO does not even have PAN number of the person and as far as address is concerned, the only address available in the records of the AO is that which has been made available by the person himself to the registering authority, which in turn has been made available to CIB wing, which in turn has been made available to AO, he has no option but to send the query letter to such a person at the address available to him in his records. Once such an step is taken, only after that, depending upon the reply submitted by such a person before the AO, the AO can take the next step. 5.2.5. First situation is that the person responds to the queries of AO and accepts the jurisdiction of the AO, then AO may easily proceed further. Second situation is that the person responds to the queries of AO with necessary documentary support that AO who issued the query letter is not the jurisdictional AO as the person claim himself to be the resident of some other area, other than the area on which the present AO has jurisdiction, the present AO may then transfer the case of appellant to the jurisdictional AO. Third situation is that the query letter issued by the AO is not responded at all. In such a situation, AO has absolutely no other way other than making a prima facie belief that income of such a person has escaped assessment and also that he is the jurisdictional AO. 5.3. Having discussed the above methodology and working of the various wings of department, I now proceed to discuss, as to under which of the above stated three situations, the case of the appellant is failing. 5.3.1. In the instant case of the appellant, initially AO received information from CIB wing that one Sh. Vijay Bathla had sold a property in total sale consideration amounting to Rs. 55,00,000/- on 28.04.2009, CIB wing provided the same address of Sh. Vijay Bathla to the AO, as was made available by Sh. Vijay Bathla himself to the registering authority as per transfer deal, since the same address was communicated to CIB wing by registering authority. Besides, CIB wing did not possess the PAN number of Sh. Vijay Bathla as no PAN number of Sh. Vijay Bathla was communicated to CIB wing by registering authority. This information was forwarded by CIB wing to ITO, Ward 2(5), Noida since Sh. Vijay Bathla had provided his address before registering authority, as communicated to CIB wing, as "Vijay Bathla S/O Shri P.O. Bathla R/0. 1045,Sector-37, NOIDA, Distt. Gautam Budh Nagar, U.P ". 5.3.2. Thereafter, in order to examine whether Sh. Vijay Bathla had correctly reflected such transaction in his ITR or not, issued various query letters u/s 133(6) at the address "Vijay Bathla S/O Shri P.D. Bathla R/0. 1045,Sector-37, NOIDA, Distt. GautamBudh Nagar, U.P. GPA of Gen. V.K. Singh S/o S.N. Singh and Smt. Meena Singh R/o 21, Akbar Road New Delhi". He, in fact issued not one but two query letters. These notices did not come back unserved in the office of AO, which means these notices were served on the address at which they were sent. However no reply was furnished by Sh. Vijay Bathla in compliance to both these notices. 5.3.3. Under the above stated circumstances, ITO, Ward 2(5), Noida made prima facie belief that income has escaped assessment and recorded the reasons prior to issue of notice u/s 148. "An AIR information regarding sale of immovable property amount to Rs. 55,00,000/- on 28.04.2009 has been received from CIB for examining of non-pan financial transactions. To verify the transaction an Information has been called u/s 133(6) vide letters dated 15.05.2016 & 05.02.2016. No reply has been filed by the assessee. In view of the above facts and in the absence of documentary evidence, I have reason to believe that the income of capital gain on sale amount of Rs. 55,00,000/- which Is chargeable to tax, has escaped assessment for the A.Y. 2009-10 within the meaning of sedition 147 of the I.T. Act. 1961" 5.3.4. The notice u/s 148 was sent at the same address as was available at that time in the records of ITO, Ward 2(5), Noida ie. as provided by CIB wing to ITO, Ward 2(5), Noida. However this notice remained uncomplied with. 5.3.5. Subsequently, AO,ITO, Ward 2(5), Noida came into possession of another address of the appellant and a letter dated 15.11.2016 was sent at this new address at E-46, College Line. P.O. Bengali Market, New Delhi 110001. This turned out to be the correct address of the appellant and the appellant responded to this letter by raising following objections before ITO, Ward 2(5), Noida.

2. That the notice is bad in low as notice is with jurisdiction.

3. That he Is filing his regular return of Income in Delhi and he has filed his return for the A Y. 2009-10 at Delhi.

4. That the notice u/s 148 is out of jurisdiction.

5. That he has not purchased any property for a consideration of Rs. 55,00,000/-. 5.3.6. Subsequently, ITO Ward 2(5), NOIDA issued a show cause dated 21.11.2016, requesting the assessee to cooperate in the proceedings, file his return in response to notice u/s 148 and that in the absence of the same Rs. 55,00,000/- would be treated as Income from Capital Gain. However, the assessee again raised objection vide letter dated 29.11.2016, which are as follows. That the assessee had not received the notice u/s 148 dated 29.03.2016 i.e. the first notice and that in an affidavit the assessee has also submitted that he has not purchased any property during the A. Y. 2009-10 1. That the property in question was never purchased by Shri Vijay Bath/a.

2. That the property in question was purchased by Mrs. Vanita Bathla W/o Shri Vijay bathla.

4. That the notice is out of jurisdiction.

10. In view of above-stated facts and circumstances of the case, the Ground raised by the appellant is also not acceptable that the notice u/s 148 dated 29.03.2016 was never received by him. The notice was sent by the then jurisdictional AO, ie. ITO, Ward 2(5), Noida, who happened to hold jurisdiction based upon the address of the appellant available in his records, which had been provided by the appellant himself in the records of registering authorities. The appellant had not provided his PAN number in the records of registering authorities, for the reasons best known to him, possibly to avoid the proceedings of department and if caught., later on raise futile objections to the validity of assessment order. The then jurisdictional AO, ie. ITO, Ward 2(5), Noida had sent notice u/s 148 correctly at the address provided by the appellant in the transfer deed, the notice was sent by registered post and this notice never came back unserved. Consequently, this Ground of appeal is dismissed.

is dismissed. In Grounds of appeal no. 1,2,3,6 and 7 read are accordingly disposed off, all these Grounds being dismissed.

7. So far as the addition on merit is concerned, the Ld.

CIT(A) dismissed the same by observing as under:-

“14. I have carefully gone through the AO's findings on merits. 14.1. After perusal of entire facts and circumstances of the case of appellant, I am in complete agreement with AO that AO has correctly assessed the long term capital gain in the hands of appellant. 14.2. I am in agreement with AO that the assessee has tried to create a situation to prove that the property in question was purchased not by him but by his wife and accordingly trying to save himself from the liability to pay tax on long term capital gain, trying to prove that the sale was made not by him but by his wife. The facts are clear that the property was sold by the appellant and the entire consideration was also received in the bank account owned by the appellant. The fact that in the transfer deed concerning the sale of property, which was executed by the appellant in favour of Sh. Nalim Monga, the appellant himself has been shown as the GPA holder of Sh. V.K.

Singh and not his wife. The AO is also correct in V.K. Singh on “agreement to sale” basis but later on did not execute any transfer deed in her favour. Subsequently, when the appellant's family wanted to sale his property, they again approached Sh. V.K. Singh to sign the transfer deed and declared the appellant as GPA holder, instead of the wife. The AO's observation are extremely pertinent, in observing that as per transfer deed between the appellant and Sh. Nalin Monga, one of the witness to the deal is appellant's wife herself. This situation rules out any possibility of appellant's wife being the owner of the property, since, had she been the owner, she would have certainly objected to such transfer and would not have appointed herself as witness to the deal. Accordingly, AO has correctly held that the appellant's wife was never the owner of the property. In addition to it, AO has also referred to the ITRs filed by the appellant and his wife for AY 2009-10. AO has categorically observed that neither the appellant nor his wife has declared any long term capital gains in their respective returns of income. Accordingly, AO's findings are absolutely correct in holding that appellant and his wife were involved in a sort of conspiracy so that both the appellant and his wife could be saved from liability of being assessed to tax for long term capital gains earned on sale of property. 14.3. AO is also correct in observing that appellant and his wife had intentionally tried to evade taxes. While the agreement to sale at the time of purchase of property was executed in favour of the wife of the appellant, the transfer deed at the time of sale of property was executed by the appellant, so that both husband and wife could evade the liability to pay tax on long term capital gain arising from the sale of property. 14.4. On the above-mentioned aspect, it is further observed that appellant has tried to create a situation and twist the facts in such a manner so that both the appellant and his wife could be saved from the liability of tax. No doubt that the property was in existence, that the property was purchased, that the property was sold, that the property was owned by either the appellant or his wife and there was no third person apart from appellant and his wife on whom the liability to pay tax on sale of property could be fixed, under such circumstances, it was onerous duty of the appellant himself to submit the explanations on merits on various queries raised by the AO in the assessment proceedings but instead of submitting any explanation on merits, throughout the assessment proceedings, the appellant has only objected to validity issuance of notice u/s 148. 14.5. The most important aspect is that the entire sale consideration was received by the appellant in his bank account, that the transfer deed was drawn between the appellant and the purchaser Sh. Nalin Monga and the witness to the transfer deed was appellant's wife herself, leaves no doubt that; the long term capital gains were to be assessed only in the hands of the appellant and not his wife.

.”

8. Aggrieved with such order of the Ld. CIT(A), the assessee is in appeal before the Tribunal by raising the following grounds:-

1) That the Hon'ble Commissioner of Income Tax (Appeals) has erred in law as much as on the facts of the case by confirming the addition of Rs.44,09,836/- made by the learned Assessing Officer with regards to the long term capital gain on sale of the House Property No. 1045, Sector-37, Noida, U.P. without appreciating the fact that the same did not belong to the appellant but belonged to his wife Mrs. Vinita Bhatla and therefore, the addition, if any, had to be made in the hands of Mrs. Vinita Bhatla and not the appellant. 2) That the Hon'ble Commissioner of Income Tax (Appeals) has further erred in law as much as on the facts of the case by confirming the aforesaid addition of Rs.44,09,836/- as made by the learned Assessing Officer without appreciating the fact that the learned Assessing Officer did not assume the jurisdiction to complete the assessment proceedings as the initial notice dated 29th

March, 2016 issued by the learned Income Tax Officer, Ward 2(5), Noida was not served upon the appellant till the completion of assessment proceedings and even till date and also without appreciating the facts that the appellant had filed an Affidavit regarding the same before the learned Assessing Officer. In the absence of service of the notice, the reassessment proceedings as initiated by the learned Assessing Officer are liable to be quashed. 3) That the Hon'ble Commissioner of Income Tax (Appeals) has erred in law as much as on the facts of the case by confirming the aforesaid addition made by the learned Assessing Officer without appreciating the fact that the learned Assessing Officer further did not assume the jurisdiction to complete the assessment proceedings as no notice u/sec. 148 of the Act dated 15th Nov., 2.016 alleged to have been issued by the learned Assessing Officer, Ward 2(5), Noida was ever issued and served upon the appellant. 4) That the Hon'ble Commissioner of Income Tax (Appeals) has erred in law as much as on the facts of the case in not appreciating the fact that once the file of the appellant was transferred by the learned Assessing Officer, Ward 2(5), Noida to the correct jurisdictional Officer, Ward 44(1), New Delhi, no fresh notice u/sec. 148 of the Act was issued by the learned Assessing Officer, Ward 44(1), New Delhi and in the absence of the same, he too did not assume the jurisdiction to complete the assessment proceedings and thus, the assessment order passed by him u/sec. 143(3)/148 of the Act and also the reassessment proceedings are liable to be quashed. 5) That the Hon'ble Commissioner of Income Tax (Appeals) has erred in law as much as on the facts of the case in not appreciating the fact that transfer / sale deed of the impugned property dated 28.04.2008 at the time of sale of the same by the wife of the appellant was signed by the appellant on behalf of the transferor Lt. General V. K. Singh and Smt. Meena Singh as he was the G.P.O. holder on behalf of them and that the impugned property could not be transferred in the name of the wife of the appellant as the impugned property was duly allotted to Lt. General V. K. Singh and Snnt. Meena Singh by Noida Authority through Army Welfare Housing Organization on which transfer in the name of the appellant' wife was not permitted at that time. 6) That the Hon'ble Commissioner of Income Tax (Appeals) has erred in law as much as on the facts of the case by confirming the addition of Rs.44,09,836/- without appreciating the fact that once the agreement to sell dated 13.12.1993 has been made in the name of the wife of the appellant and this fact has not been challenged either by the learned Assessing Officer or the Commissioner of Income Tax (Appeals) himself then how could the sale of the same impugned property which have been sold to the appellant's wife be made in the name of the appellant. 7) That the appellant assails his right to amend, revise and submit additional ground(s), if need arises, during the course of hearing of the appeal subject to approval and its admission by the Hon'ble Members of the Bench. It is, therefore, kindly prayed that the impugned addition of Rs.44,09,836/- sustained by the Hon'ble Commissioner of Income Tax (Appeals) may kindly be cancelled after providing an opportunity of being heard to the appellant.”

9. I have heard the ld. DR and perused the record. I find the AO in the instant case, on the basis of information obtained from CIB Wing of the Department that the assessee sold immovable property of Rs.55 lakhs, issued a verification letter u/s 133(6) of the Act to the assessee and in absence of any reply from the side of the assessee, reopened the case u/s 147 of the Act and issued notice u/s 148 of the Act. Since, the assessee neither filed any return in response to notice u/s 148 of the Act nor cooperated during the course of reassessment proceedings, the AO after deducting the indexed cost of acquisition of Rs.10,90,164/- from the sale consideration of Rs.55 lakhs made addition of Rs.44,09,836/- to the returned income of the assessee at Rs.1,86,830/-. I find the ld. CIT(A) dismissed the appeal filed by the assessee on both the counts i.e. validity of reassessment proceedings and the addition on merit. While doing so, he has given justifiable reasons for the same and has passed a very details order considering each and every aspect of the issue, I do not find any infirmity in the detailed order passed by the ld. CIT(A) in upholding the validity of reassessment proceedings and the addition on merit in absence of any contrary material brought to my notice.

Accordingly, the order of the ld. CIT(A) is upheld and the grounds raised by the assessee is dismissed.

Order was pronounced in the open court on 11/04/2022.