SUBIR KUMAR GHOSH,NEW TOWN vs. ITO, WARD 42(1),, MURSHIDABAD

It was submission that, at the outset, the assessee had purchased the property for Rs.70,00,000/- including the registration charges of approximately Rs.4,00,000/- was paid subsequently. It was submission that in the reasons recorded the AO has mentioned that the assessee has sold property, reasons recorded are on the presumption that the assessee has sold the property. It was submission that the very foundation of the reasons is erroneous. It was further submitted that in the last paragraph the AO mentioned that the 4 years have lapsed from the end of the relevant assessment year under consideration. It was submission that the impugned assessment year is 2017-18 and the reasons are recorded before 31st March 2021 and, therefore, 4 years have not lapsed. Ld.AR further drew my attention to the first line of the first page of the reasons recorded wherein it is mentioned that where is the return has filed by the assessee and the period of 4 years have not expired from the end of the assessment year. It was submission that this clearly shows that there is non-application mind by the AO.

The Ld.AR also drew my attention to the last line of the reasons recorded where it is mentioned that sanctioned for issue of notice is requested separately from the PCIT, Kolkata-14 as per the provision of section 151 of the Act.

The Ld.AR drew my attention to the approval u/s.151 of the Act which is by the Ld.JCIT, Range-40, Kolkata. It was the submission that the reason recorded are on wrong presumptions and non-application of mind. It was submission that the said reasons are liable to be quashed.

In reply, the Ld.Sr. DR submitted that the assessment orders says in para 2 that the notice u/s. 143(2) of the Act has been issued to the assessee along with the reasons for reopening of the assessment on 14/09/2021. It was submission that the assessee has not objected to these reasons recorded before the AO. It was submission that the assessee should not be permitted to raise these issues now in appeal before the Tribunal.

The Ld.AR then placed before me the copy of letter dated 14/03/2022 received by the assessee from the AO wherein it mentions of providing the copy of the reasons recorded for the issue of notice u/s.148 of the Act, the same reads as follows:-

It was submission that the reasons recorded had been provided to the assessee only on 14/03/2022 and the assessment order has been passed 17/03/2022. It was submission that even otherwise this being a legal issue it can be raised on any point of time.

I have considered the rival submissions. A perusal of the facts in the present case clearly shows that the reasons recorded by the AO is on wrong presumptions and initially itself insofar as the AO is of the presumption that the assessee has sold properties whereas the fact remains that the assessee has purchased a property. The AO is also on presumption that 4 years of have lapsed from the end of the relevant assessment year which is also wrong. It is also surprising that even the approval has been given by the JCIT on such reasons will also make the approval questionable insofar as there is clear non-application of mind much less consideration of the facts. The fact that the AO has also mentioned in the assessment order that the reasons recorded have been given to the assessee on 14/09/2021 whereas the same has been provided only on 14/03/2022 clearly shows the haphazard nature in which even the assessment order has been passed. As it is noticed that the reasons recorded are on the basis of the wrong facts and on account of the non- application of mind, the reasons are found to be invalid and same stands quashed. Consequently, the impugned assessment order and the consequential the notice issued u/s.148 of the Act also stands quashed.