V.N. KARBHATKAR,MUMBAI vs. ITO 19(3)(4), MUMBAI

PER SANDEEP GOSAIN,J.M:

The present appeal filed by the assessee is directed against the

order of the learned CIT (A)-30, Mumbai dated 26-05-2014 passed in

appeal No.CIT (A)-30/ITO 19/IT-173/12-13 for assessment year 2005-06.

elaborate grounds but, the moot question involved therein is whether

confirmation of reopening of the assessment u/s 147 read with 148 of the

Income Tax Act, 1961, by the learned CIT (A) is valid or not. Hence, the

Bench preferred to hear the case only on the main ground i.e. ground

No.1 which is reproduced herein for the sake of reference:-

“1. The Commissioner of Income Tax (Appeals) [hereinafter called the CIT (A)] erred in confirming that the reopening of assessment u/s 147 read with 148 of the Income Tax Act, 1961 (the AC) is valid.”

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year under consideration was originally completed u/s 143(3) of the IT Act

vide order dated 18-12-2007 determining the total income of the assessee

at Rs.2,29,133/- as against the returned income of Rs.1,61,470/-. During

the course of assessment proceedings for the assessment year 2006-07

in assessee’s own case it was seen that the assessee has shown Rs.65

lacs in the balance sheet of his proprietary concern M/s. Venus

Confectioners as ‘sundry creditors for others”. The narration to the said

entry was given as “advance received against transfer of tenancy rights

from M/s. Streamline Builders”. From the details submitted by the

assessee during the assessment proceedings for assessment year 2006-

07, it was ascertained by the AO that the assessee had transferred its

tenancy rights at the ground floor, first floor of Villa Maria, Plot No.54, CTS

No.B/337, Revello Road, Bandra (West), Mumbai -50 vide an agreement

executed on 27-05-2004. The total consideration was agreed at Rs.65

lacs along with additional consideration in favour of shop No.5, Chapel

Avenue, CTS No.240 & 241, Chapel Road, Bandra (West), Mumbai-50. In

view of that agreement dated 27-05-2004 the assessee had received

payment. Therefore, while applying the provisions of section 2 (47) of the

IT Act read with section 53A of the Transfer of Property Act, it was held by

the AO that transfer of capital asset in question was completed on 27-05-

2004 i. e. on the date of sale agreement was executed/registered.

Considering the above view and after recording reasons for reopening, the assessment was reopened and notice u/s 148 of the Act dated 28th

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March, 2012 was issued and served upon the assessee on 30-03-2012

and after considering the reply of the assessee, the AO rejected the

objections raised by the assessee, passed the re-assessment order u/s

143 (3) read with section 147 of the Act on 17-12-2012. Aggrieved by this

order of the AO, the assessee carried the matter in appeal before the

learned CIT (A), who in turn, granted part relief to the assessee while

upholding the order of reassessment. Aggrieved by this order of the

learned CIT (A), the assessee is now in appeal before us mainly

challenging the validity of confirmation of the reassessment order passed

u/s 147 of the Act.

at the very outset submitted before us that initially assessment in this case

was completed u/s 143 (3) of the Act on 18-12-2007 and the notice for

reopening of the assessment was issued on 28-03-2012 which clearly

goes to show that the process for reopening the assessment started after

expiry of four years. Proceeding further with his arguments, the learned

AR submitted that the appellant/assessee is carrying on proprietary

business under the name and style of M/s. Venus Confectioners. It was

argued by the learned AR that the assessee furnished his return of

income for assessment year 2005-06 on 31-10-2005 declaring total

income at Rs.1,61,470/- and the regular assessment was completed on

18-12-2007 thereby assessing the income of the assessee at

Rs.2,29,130/-. The return of income was accompanied with various

documents such as audited balance sheet forming part of Audited Final

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Accounts submitted along with Original Return of Income on 31-03-2005.

Item No.16 of Schedule VII shows that advance of Rs.20 lacs was

received from M/s. Streamline Builders against release of tenancy rights

are still unadjusted in the relevant assessment year 2005-06. It was

further submitted that the final accounts were filed along with the return of

income as show-caused by the AO. Apart from the above, the learned AR

also submitted the details of sundry creditors before the AO on 26-05-

2007. The details of advance received from M/s. Streamline Builders read

as “the assessee received during 2003-04 Rs.20 lacs towards

relinquishing tenancy rights. The assessee had received this payment in

terms of the agreement dated 12-08-2002 and 27-05-2004. It was further

submitted that the AO in the case of the assessee has issued notice u/s

147 of the Act for the reasons given in the said notice to the effect that the

materials as stated had come to the knowledge of the AO for assessment

year 2005-06. As per the submission of the learned AR the Schedule of

Account was as per the agreement dated 27-05-2004 and that as per this

agreement out of Rs.65 lacs, Rs.20 lacs was received during the financial

year 2003-04 relevant to assessment year 2004-05 and Rs.45 lacs was

received during the financial year 2005-06 relevant to assessment year

2006-07. These amounts have already been shown as advance against

relinquishing tenancy rights as on 31-03-2005 and 31-03-2006

respectively. It was also argued on behalf of the assessee that pursuant

to clause 4 of the agreement dated 30-12-2006, the developer had

transferred shop No.5 and the shares pertaining to the said shop in

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ownership basis which goes to show that the possession of the said

premises was handed over on 30-12-2006 which is not falling under

assessment year 2006-07 which is not relevant assessment year. Lastly,

it was submitted that the assessee offered capital gains in the

assessment year 2007-08 when transfer of the tenanted property was

hand over to the tenant. The assessee paid Rs.17,13,600/- on account of

advance tax, TDS and self assessment tax and the said amount of tax is

entirely on the capital gains which are offered to tax. As per the facts of

the case since no event took place during the assessment year 2005-06

i.e. the year under consideration, therefore, the AO has wrongly assessed

the said capital gains during the assessment year 2005-06 based on the

unregistered agreement vide paragraphs 5 to 8 of the impugned order

passed by the AO. It was further submitted by the learned CIT (A) that

the appeal of the assessee be accepted on this preliminary ground and

the reassessment order was sought to be set aside.

orders of the Revenue authorities.

materials on record along with the orders passed by the Revenue

authorities. After considering the facts and circumstances of the case and

the arguments of both the learned Counsels we have noticed that the original regular assessment order was passed in the present case on 18th

December, 2007 and the notice for reopening assessment was issued by

6 ITA No.4797/Mum/2014 the AO on 17th December, 2012 both these facts are not disputed.

Therefore, as per the facts of the case, the notice regarding reopening of

the assessment has been issued after expiry of the prescribed time limit

provided under Clause 1 of Section 147 of the Act wherein it has been

categorically mentioned that when assessment u/s 143 (3) of the Act has

been made for the relevant assessment year, no action shall be taken

under the provisions of this section after expiry of four years from the end

of the relevant assessment year unless any income chargeable to tax has

escaped assessment for which there has been by reason of the failure on

the part of the assessee to make return u/s 139 of the Act or notice issued

u/s 148 of the Act or to disclose “fully or truly all material facts” necessary

for that assessment year. In this regard, our attention was drawn by the

learned AR to paper book page 19 i.e. reasons for reopening of the

assessment wherein it has been stated by the AO that it was seen that

the assessee has shown a sum of Rs.65 lacs in the balance sheet of his

proprietary concern M/s. Venus Confectioners as “sundry creditor for

others” for assessment year 2006-07. Further, our attention was also

drawn to paper book page 22 Para 3 (b) Item No.7 of letter dated 26-05-

2007 and that item 3 i.e. letter dated 15-11-2007 specifically mentioning

the advance given to M/s. Streamline Builders that the assessee had

received on account of payment during financial year 2003-04 Rs.20 lacs

towards relinquishing the tenancy rights of the Bakery premises at Bandra

in favour of the builder/Developer M/s. Streamline Builders. The assessee

had received this payment under the terms of agreement dated 27-05-

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2004 and the assessee was holding this advance receipt till completion of all the formalities of handing over the possession of the bakery premises at Bandra which had been completed during the financial year 2006-07. We have also noticed that before recording the reasons for reopening, the income has already stood offered to tax for assessment year 2007-08. We have also noticed from the analysis of the records that no payment was received by the assessee during the assessment year under consideration as the amount of Rs.20 lacs was paid in the financial year 2003-04 i. e. relevant assessment year 2004-05 and the amount of Rs.45 lacs was paid during financial year 2005-06 relevant assessment year 2006-07 and thus the amount has been shown as liability as on 31st March, 2005. Since as per the agreement of relinquishment it is clearly mentioned that apart from making payment of Rs.65 lacs as per clause 4 & 5 of the agreement dated 27-05-2004 the developer was to transfer the shop No.5 to the assessee and the said transfer of possession took place vide agreement dated 30th December, 2006 and as per clause 4 of the agreement dated 30th December, 2006 the developer handed over possession of the shop to the assessee after completion the formalities. Since pursuant to clause 4 and 6 of the agreement dated 27th May, 2004 the assessee handed over the vacant possession not in the assessment year 2005-06 and the relinquishment of ownership took place on completion of formalities in all respect in the financial year 2006-07 in terms of both the agreements. As per the factual position and the facts derived by us from the documents as referred to by the learned AR the

8 ITA No.4797/Mum/2014

assessee did not handover possession of the shop in question during any

time before December, 2006 which has no relevance with the year under

consideration since the amount received by the assessee i.e. Rs.20 lacs

during assessment year 2003-04 and Rs.45 lacs during the assessment

year 2006-07 which also goes to show that no part of amount was ever

paid during the year under consideration. Therefore, as per the factual

position the conditions specified u/s 53A of the Property Act were fulfilled

only in the financial year 2006-07 which is relevant assessment year

2007-08. Therefore, application of the provisions of section 53 of the

Property Act in the case of the assessee in the year under consideration

is wrong. In view of the above, we are of the considered view that the

assessee has already disclosed fully and truly all material facts before the

AO during the assessment proceedings. It may further be mentioned here

that even the AO has nowhere mentioned in black and white as to what

fact has not been disclosed by the assessee wholly or truly before him,

while recording the reasons for reopening. Therefore, once the very

important element is missing, then the AO is not expected to believe that

any income for that particular year has escaped assessment and to opt

for reopening the assessment. In this regard we find support from the

decision in the case of Hindustan Lever Ltd. [268 ITR 332]. Further, we

also find support from the decision rendered by the Hon’ble Allahabad

High Court in the case of Naresh Chandra Bhargava Vs ITO reported in

1974 TAX L. R. 7 wherein it has been held as under:-

“3. A notice under Section 148 of the Act presupposes the existence of circumstances leading to the belief that some income has

9 ITA No.4797/Mum/2014

escaped assessment. At the present moment it cannot be said that there is any material for such a belief. The income which was said to have escaped assessment and was sought to be assessed in pursuance of the impugned notice has already been brought to tax. In the circumstances the impugned notice cannot be sustained.”

From co-joint reading of the aforesaid facts and circumstances before us,

we are of the considered view that the assessee has fully and truly

disclosed all the materials necessary for the AO during the assessment

proceedings and there remained nothing to be disclosed. Moreover, the

assessee’s income was sought to be assessed by way of reopening the

original assessment, though the assessee had already offered income

and paid taxes thereon in assessment year 2007-08, even before

recording of reasons for reopening. Therefore, in our view, there was no

basis for initiation of proceedings u/s 147 and issuance of notice u/s 148

of the Act for reopening of the assessment for assessment year 2005-06.

Hence, in these facts and circumstances, we are of the considered

opinion that reopening of the assessment is bad in law and is thus set

aside and the original assessment order is hereby is restored.

was decided to be heard by the Bench, we feel no need for adjudication of

the other grounds raised in this appeal on merits.

Sd/- Sd/-

(JASON P. BOAZ) (SANDEEP GOSAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER

Mumbai, Dated 11.05.2016

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Lakshmikanta Deka/Sr.PS Lakshmikanta Deka/Sr.PS Lakshmikanta Deka/Sr.PS Lakshmikanta Deka/Sr.PS Copy of the Order forwarded to : The Appellant 1. The Respondent. 2. The CIT (A), Mumbai. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. 6. //True Copy//

BY ORDER,

Assistant Registrar ITAT, MUMBAI