JAYAGAURI PREMABHAI PATEL,VADODARA vs. ITO, WARD-4(1)(5), VADODARA

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ITA 1021/AHD/2018Status: DisposedITAT Ahmedabad07 January 2022AY 2012-134 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the reasons recorded by the Assessing Officer for reopening the assessment were not based on proper application of mind and lacked specific details. The AO had not cross-verified the information before issuing the notice under Section 148.

What were the facts?

The Assessing Officer initiated reassessment proceedings under Section 148 based on information from the AIR Wing regarding the sale of an immovable property. The assessee challenged the reopening, arguing that the reasons recorded by the AO lacked application of mind and proper verification.

What were the issues?

Whether the reopening of assessment under Section 148 was justified based on the reasons recorded by the Assessing Officer. Whether the Assessing Officer had properly applied his mind to the information before initiating reassessment proceedings.

Which sections of the Income-tax Act were involved?

Section 148,Section 147,Section 143(2),Section 139

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD

Before: SHRI RAJPAL YADAV

For Appellant: Shri Sakar Sharma, AR
Hearing: 04/01/2022Pronounced: 07/01/2022

O R D E R आदेश आदेश आदेश The assessee is in appeal before the Tribunal against the order of learned Commissioner of Income-Tax (Appeals)-4, Vadodara [“CIT(A)” in short] dated 13.02.2018 passed for Assessment Year 2012-13.

2.

The assessee has taken three grounds of appeal. In the first ground of appeal, she has pleaded that no notice was served upon her under Section 143(2) of the Income-tax Act, 1961 (‘the Act’ in short). However, this ground was not pressed; hence the same is rejected being not pressed.

1.

3. In Ground No.2, the assessee has challenged the reopening of assessment by issuance of notice under Section 148 of the Act.

4.

The brief facts of the case are that the assessee has filed her return of income on 24.01.2014 declaring total income at Rs.1,72,894/-. According to the Assessing Officer, an information came to his possession through Annual Information Return (AIR) Wing exhibiting the fact that the assessee has sold an immovable property at Rs.35,00,000/- on 02.11.2011. He issued a notice under Section 148 of the Act on 25.03.2014. Thereafter, the learned Assessing Officer

SMC- JayagauriPremabhai Patel Vs. ITO For AY: 2012-13 2 passed an ex-parte assessment order on 30.03.2015 determining the total income of the assessee at Rs.37,49,290/-. On appeal, learned CIT(A) has upheld the reopening of the assessment.

5.

Before me, learned Counsel for the assessee raised two fold submissions. In the first fold of submissions, he contended that no reasons are assigned by the Assessing Officer for harboring a belief that the income has escaped assessment. For buttressing his contentions, he took me through the paper- book page no.33, wherein the reasons for reopening the assessment have been placed on record.

6.

In his next fold of submissions, he has pointed out number of irregularities in the proceedings. He submitted that, though in the assessment order the learned Assessing Officer has observed that notice under Section 148 of the Act was issued on 25.03.2014, but in fact first notice is dated 05.03.2014 which was served on 13.03.2015; and he filed reply to this notice on 25.03.2015. He also pointed out that the notice under Section 143(2) of the Act dated 26.03.2015 was issued on return furnished under Section 139 of the Act.

7.

On the other hand, learned Departmental Representative relied upon the orders of the Revenue Authorities.

8.

I have duly considered the rival contentions and gone through the record carefully. As far as the second fold of contentions is concerned, I do not want to devote much energy, because there are many missing links. The assessee has alleged that notice under Section 143(2) of the Act was issued on 25.03.2015 on the return filed under Section 139 of the Act. To my mind, it is factually incorrect. This notice was issued on the return furnished in response to notice under Section 148 of the Act, because the assessee has filed a letter pleading therein that the original return filed by her should be treated as the one she filed in response to the notice under Section 148 of the Act. All these

SMC- JayagauriPremabhai Patel Vs. ITO For AY: 2012-13 3 aspects are required to be cross-verified with the original record; and, in the absence of such details, I do not wish to record any specific findings on this second fold of contentions because I am agreeing with the first fold of contentions in the later part of the order.

9.

As far as first fold of contentions, I deem it appropriate to reproduce the reasons for issue of notice under Section 148 of the Act, which read as under:-

Name and address of JAYAGOUROI D PATEL the assessee 8947 164 HOUSING SOC. 1 SAMA VADODAR PAN AEOPP6814R A.Y. 2012-13 i Date 7/3/2014 REASONS FOR ISSUE OF NOTICE U/S 148 OF THE I.T.ACT, 1961 As per the list of Non Filers for F.Y. 2011-12, it is observed that the above assessee has entered into financial transaction amounting to Rs.4500000/- on account of :- 1. Sold Immovable Property Valued Ai Rs.3000000/- Or More 2. In view of the above, I have reason to believe that the income chargeable to tax on the above point has escaped assessment within the meaning of section 147 of the IT Act, 1961 for A.Y. 2011-12 / 2012-13. I, therefore, issue notice u/s 148 of the Act for A.Y, 2011-12/2012-13. Sd/- (PRITA MENON) Income -Tax Officer Ward-7(4), Baroda

Section 147 of the Act would contemplate that if any income chargeable to tax in the case of an assessee has escaped assessment for any assessment year, the Assessing Officer may, subject to the provisions of section 148 to 153, assess or re- assess such income …….……… A perusal of the opening line of this section would reveal that there should be some information possessed by the Assessing Officer which has a live link with the escapement of income chargeable to tax. Such information would justify the Assessing Officer to formulate his belief that the income has escaped assessment and, therefore,

SMC- JayagauriPremabhai Patel Vs. ITO For AY: 2012-13 4 action under Section 148 of the Act is required. A perusal of the above reasons would indicate that the Assessing Officer did not possess any such information. He simply observed that it is a case from the list of non-filers of the Income-Tax Returns. This information is factually incorrect. Thereafter, in the next sentence, he wrote “Sold Immovable Property Valued at Rs.3000000/- or more”. He was not sure about the data and also not sure about what was the property value. The amount of Rs.30,00,000/- must be a threshold value for conducting action, but he should have gone through the sale deed and thereafter should have recorded the reasons. Therefore, I am of the view that there is no mind application on the information, if any, available with him. A cross-verification of the revenue record of the assessee before issuance of notice under Section 148 of the Act could have been made in this case. The re- opening of the assessment is, therefore, not justified. I, therefore, quash the reassessment order and allow the appeal of the assessee.

10.

In the result, the appeal of the assessee is allowed.

Order pronounced in the Court on 7th January, 2022 at Ahmedabad.

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