VASUDEV DEWANI,JAIPUR vs. ITO, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR Jh HkkxpUn] ys[kk lnL; ds le{k BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER vk;dj vihy la-@ITA No. 765/JP/2016 fu/kZkj.k o"kZ@Assessment Year : 2009-10 cuke M/s. Vasudev Dewani The ITO Vs. B-17, Sansar Chand Road Ward- 3(4) Outside Chandpole Bazar, Jaipur Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABRPD 4077 E vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by: Shri Sandeep Jhanwar, CA jktLo dh vksj ls@ Revenue by :Smt. Poonam Rai, DCIT-. DR lquokbZ dh rkjh[k@ Date of Hearing : 12/04/2017 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 13 /04/2017 vkns'k@ ORDER PER BHAGCHAND, AM The assessee has filed an appeal against the order of the ld. CIT(A)-1, Jaipur dated 01-03-2016 for the assessment year 2009-1- raising therein following grounds:- ‘’1. Under the facts and circumstances of the case, the ld. CIT(A) has erred in not quashing the reopening proceedings u/s 147/148 of the I.T. Act, 1961. The said reopening proceedings u/s 147/148 is bad in law and deserves to be quashed.

2 ITA No.765/JP/2016 Shri Vasudev Dewani vs. ITO, Ward- 3(4), Jaipur . 2. Under the facts and circumstances of the case, the ld. CIT(A) has erred in upholding the action of and confirming the following additions made by AO by applying the provision of Section 69/69B.

(i) Addition of Rs. 11,00,000/- in respect of alleged unexplained investments for purchase of immovable property.

(ii) Addition of Rs. 1,48,380/-in respect of alleged unexplained registry expenses of land.

2.1 Apropos Ground No. 1 of the assessee, I have heard the rival

contentions and perused the materials available on record. It is noted that

original assessment in this case u/s 143(3) of the Act was finalized by the

AO vide his order dated 27-12-2011. It is further noted that the AO while

recording reasons for issue of notice u/s 148 of the Act in the case of the

assessee observed as under:-

‘’As seen from the assessment records/documents obtained and available on record that during the year under consideration, the assessee has purchased a residential plot namely B-107 situated at Sunder Nagar, Badanpura, Gopalpura Bye-pass Road, Jaipur for a sale consideration of Rs. 15,51,000/- through registered sale deed dated 28-11- 2008. As per sale deed dated 28-11-2008, the assessee has made payment for purchase of above residential plot as under:- 1. Rs. 11,00,000/- paid in cash before execute of sale deed dated 28-11-2008.

3 ITA No.765/JP/2016 Shri Vasudev Dewani vs. ITO, Ward- 3(4), Jaipur . 3. Rs. 1,00,000/-paid in cash on the date of executing sale deed dated 28-11-2008.

During the course of hearing, the ld. AR of the assessee drew the

attention of the Bench to the effect that this issue was considered by the

AO while making original assessment order dated 27-12-2011. The ld.

AR further drew the attention of the Bench as to the reply submitted by

the assessee on 4-10-2011 to the AO (APB page 1) wherein the copy of

the sale deed was enclosed and it is placed at pages 2 to 9 of the

assessee's paper book. The letter of Addl. Collector (Stamps), Jaipur

dated 4-05-2010 which is placed at APB pages 10 and 11, the copy of

RAAJI NAMA between Shri Dinesh Sharma and Vasudev Dewani which

is placed at APB page 13, copy of statement recorded u/s 131 of the Act

of Shri Vasudev Dewani on 14-12-2011 which are placed at APB page 13

to 19, copy of statement recorded u/s 131 of the Act of Shri Dinesh

Sharma on 15-12-2011 which are placed at APB page 20 to 22, Copy of

the affidavit submitted by Shri Vasudev Dewani which are placed at APB

pages 23 to 24. It is also noted that all the documents placed from pages 1

to 24 of the paper book were before the AO prior to finalisation of the

assessment order dated 27-12-2011 u/s 143(3) of the Act. Thus it is

amply clear that the AO has made the assessment order after considering

all these documents in his mind and the AO issued the notice on the basis

4 ITA No.765/JP/2016 Shri Vasudev Dewani vs. ITO, Ward- 3(4), Jaipur . of these documents only. Therefore, this is a clear case of change of

opinion and the AO has no power to issue notice u/s 148 of the Act on the

basis of change of opinion. During the course of hearing, the ld. AR of

the assessee relied on following case laws to this effect.

5 ITA No.765/JP/2016 Shri Vasudev Dewani vs. ITO, Ward- 3(4), Jaipur . 11. Epcos India (P) Ltd. vs. ACIT, 72 Taxmann.com 66 (ITAT Kolkata Bench)

2.2 The ld. DR during the course of hearing relied on the orders of the

lower authorities.

2.3 Considering all these facts and case laws, I hold that the assessee

has submitted all the relevant materials and facts on record during the

course of original assessment proceedings with regard to the payment of

Rs. 11.00 lacs for purchase of land. The AO accepted the assessee's

contention without any adverse findings in this regard. There was no new

information before the AO. Thus on the basis of the same facts of the

case, the AO’s action amounts to change of opinion as has been held in

various cases by Hon'ble High Courts and Hon'ble Supreme Court

(supra). Therefore, the decision of reopening of the assessment by the

AO on the basis of change of opinion is not lawful. Once the assessee has

made full disclosure of all relevant facts and the AO has accepted the

same and later on by re-appreciation of the same material available on

record which was submitted during original scrutiny assessment before

the AO shall definitely amount to change of opinion which is patently

not legal. Therefore, I allow this ground of appeal of the assessee.

6 ITA No.765/JP/2016 Shri Vasudev Dewani vs. ITO, Ward- 3(4), Jaipur . 3.1 As regards the Ground No. 2 of the assessee, it is noted that since the reopening of the assessment proceedings u/s 147/148 is quashed therefore, there is no need to adjudicate upon the Ground No. 2 of the assessee. 4.0 In the result, the appeal of the assessee is allowed as indicated above. Order pronounced in the open court on 13/04/2017. Sd/- ¼HkkxpUn½ (Bhagchand) ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 13 /04/ 2017 *Mishra आदेश की प्रतिलिपि अग्रेषित@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- Shri Vasudev Dewani, Jaipur 1. 2. izR;FkhZ@ The Respondent- The ITO, Ward- 3(4), Jaipur vk;dj vk;qDr¼vihy½@ CIT(A). 3. 4. vk;dj vk;qDr@ CIT, विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 765/JP/2016 ) 6. vkns'kkuqlkj@ By order,

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