KUNWAR AYUB ALI,GHAZIABAD vs. ITO, WARD- 1(3), GHAZIABAD

Further aggrieved, the assessee preferred appeal before the Tribunal.

We have carefully considered the rival submissions on the point in issue and perused the assessment order as well as the first appellate order. We have also perused the material referred to and relied upon in the course of hearing as per Rule 18(6) of Income Tax (Appellate Tribunal) Rule, 1963.

As per the grounds of appeal, the assessee has questioned the validity of assumption of jurisdiction together with correctness of addition on merits. The issue of jurisdiction goes to the very root of the matter and thus assumes primacy for adjudication purposes. We shall thus delve the validity of assumption to begin with.

The reasons recorded under Section 148(2) which is the bedrock for assumption of jurisdiction under Section 147 is reproduced herein for ready reference:

With reference to the reasons recorded as noted above, the ld. counsel for the assessee submits at the outset that the belief towards escapement has been entertained by the Assessing Officer on the basis that the assessee has not filed the return of income for Assessment Year 2009-10 which is grossly contrary to facts on record. The assessee had duly filed return of income on 31.03.2009 thereby the most basic reason itself is wholly incorrect and not existed and noticeably PAN of the assessee was duly mentioned in sale deed. Secondly, the sale consideration of Rs.98,76,000/- was giving rise to allegation of escapement towards the sale consideration for the purposes of escapement of capital gain whereas actual share of sale consideration relatable to the assessee stands at Rs.24,69,000/- only and therefore, the basic information is yet again wrong and mentioned in reasons without application of mind.

We find that the issue is squarely covered in favour of the assessee by the judgments rendered in the case of Mumtaz Hazi Mohmad Menon (2018) 408 ITR 268 (Guj). As per the ratio of the judgment, the assumption of jurisdiction on the basis of wholly incorrect facts cannot be conferred in law. In this case also, the reasons cited were that the assessee did not file return and the capital gain on sale consideration was not brought to tax which reasons were found to be factually incorrect. The assessee had return of income which was not noticed by the Assessing Officer. Consequently, the notice issued under Section 148 for reopening the assessment was quashed for assumption of jurisdiction on factually incorrect premise. In the similar fact situation, the Hon’ble Gujarat High Court also quashed the re-assessment proceedings in Sagar Enterprises vs. ACIT, (2001) 257 ITR 335 (Guj.) where reasons were recorded dehors the fact, i.e., return not filed when the return was actually filed. Similarly, Hon’ble Delhi High Court in Dr. Ajit Gupta vs. ACIT, 383 ITR 361 (Del) has observed that reason for reopening of assessment based on mistaken factual premise is unsustainable in law.

In the light of the aforesaid judgments declaring the position of law, we find merit in the plea of the assessee towards inherent lack of jurisdiction under Section 147 of the Act. In the instant case also, the assessee had filed return of income and declared the transaction arising on sale of property which fact was not taken cognizance by the Assessing Officer while reopening the assessment.

The reopening proceedings itself being not permissible on the basis of inherently wrong facts, we do not consider it necessary to delve the merits of the addition. We thus set aside the action of the CIT(A) and quash the re-assessment proceedings giving rise to the present appeal.

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