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Income Tax Appellate Tribunal, CHANDIGARH BENCHES ‘A’, CHANDIGARH
Before: SHRI SANJAY GARG & Ms. ANNAPURNA GUPTA
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the assessee against the order of the Commissioner of Income Tax (Appeals), [hereinafter referred to as CIT(A)]-43, New Delhi dated 09.01.2017.
The assessee has taken following grounds of appeal:-
The Ld. Assessing officer and worthy CIT(A)’s orders are contrary to law and facts of the case.
The Ld. Assessing officer erred in reopening the case u/s 148 as there was non independent satisfaction of the Assessing officer for forming a reason to believe about the escapement of income & worthy CIT(A) has ignored the submissions of
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the assessee and had wrongly decided the same against the assessee. There was no tangible material available on record to justify reopening of the assessment before the Ld. Assessing officer & worthy CIT(A).
Without prejudice to ground No.2, the Ld. Assessing officer grossly erred in referring the case to Distt. Valuation officer (DVO) to evaluate the value of assets as the assessee had acted upon and shown NIL Capital gain in her return of income based on the valuation report of the registered valuer. Worthy CIT(A) had ignored the assessee submission and decided the matter against the assessee.
The initiation of penalty u/s 271(1)(c) is invalid and bad in law without recording the satisfaction by Assessing officer regarding inaccurate particular or concealment of income.
At the outset, Ld. Counsel for the assessee has submitted that
the assessee apart from challenging of the additions on merits has
also taken a legal issue regarding validity of reopening of the
assessment u/s 147 of the Act. He has further submitted that
reopening in this case was done by the Department on the basis of
valuation report of the DVO in respect of the property sold by the
assessee with other co-owners. He has further relied upon the
decision of the Chandigarh Bench of the Tribunal in the case of ‘ITO
Vs. Ms. Malika Mundrey Saini’, ITA No. 967/Chd/2017 order dated
12.11.2017 wherein in the case of co-owner of the property, who had
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sold his share in the property in question, through the same
transactions. The Tribunal while relying upon the decision in the case
of another co-owner namely ‘Ms.Rajinder Kuar Vs. ACIT’ while
upholding the order of the CIT(A) held that the reopening of the
assessment was bad in law. He has further invited our attention to the
decision of the Tribunal in the case of ‘Ms. Rajinder Kaur Vs. ACIT’
(ITA No. 765/Chd/2015) which has been placed at pages 15 to 34 of
the paper book wherein the Tribunal in the case of Co-owner, while
relying on the decision of the Hon'ble Supreme Court in the case of
‘Dhariya Construction Co.’ 328 ITR 515 (SC) held that the reopening
cannot be made merely on the basis of the valuation report of the
DVO. Since the facts are identical and relating to the same
transaction of the sale of property, hence, respectfully following the
above referred to decisions of the Tribunal in the case of co-owners,
we hold that the reopening in this case was also not sustainable in the
eyes of law and the same is accordingly set aside. Consequently, the
additions made pursuant to the reopening have lost their basis and
accordingly the same are ordered to be deleted.
In the result, the appeal of the assessee is hereby allowed.
Order pronounced in the Open Court
Sd/- Sd/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 28.03.2018 Rkk
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Copy to: 1. The Appellant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR