TaxTMI 
TaxTMI 
2017 (3) TMI 734
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....or a sale consideration of Rs. 30,09,500/-. That the said sale deed in respect of the said transaction was registered with the Sub Registrar office on 11.07.2008. That the petitioner claimed short term capital gain of Rs. 26,12,040/-on sale of the land in question which was dully reflected in the books of account of the income tax return for AY 2008-09. 2.2. That thereafter, the assessee filed return of income for AY 2009-10 on 30.09.2009 declaring total income at Rs. 1,84,740/-and agricultural income at Rs. 3,74,062/-, which came to be initially processed under Section 143(1) of the Act. That thereafter, assesseee case was selected for scrutiny and assessment was framed under Section 143(3) of the Act vide order dated 8.11.2011 without any any alternation in the return of income. 2.3. That thereafter, after a period of four years from the end of relevant assessment year, AO has issued the impugned notice dated 23.03.2016 under Section 148 of the Act for reopening of the assessment for AY 2009-10 alleging inter alia that income chargeable to tax has escaped assessment for the year under consideration i.e. AY 2009-10. 2.4. That the petitioner-assessee requested the AO to treat th....
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....nt for the AY 2009-10 within the meaning of provisions of Section 147 of the Act. Therefore, the proposal under Section 147 of the Income Tax for reopening of assessment for AY 2009-10 may please be accorded, if deemed fit. " 2.5. On receipt of the reasons recorded for reopening the assessment for AY 2009-10, the assessee filed the detailed objection. It was submitted that as such there was no escapement of income at all. It was submitted that the assessee was not party to the "sauda chitthi", upon which, reliance was placed by the AO while holding that the sale consideration was Rs. 8,92,77,830/-. It was also submitted that even from the statement of Shri Rajesh Vaghani dated 30.06.2014 also it cannot be said that the assessee has received any amount towards on money in cash. It was also submitted that as such the transaction was with the assessee and one Shri Popat Kakadia and no addition by way of undisclosed investment has been made in the account of Shri Popat Kakadiapurchasers. It was also submitted that as such sale deed executed by the assessee was in AY 2008-09 and even short term capital gain on sale of land in question claimed by the assessee in AY 2008-09 and the no....
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.... owners of the land. It is submitted that even as per the statement of Shri Rajesh Vaghani, the said assessee was not acted upon. It is submitted that thereafter even the sale deed has been executed in favour of Shri Popatbhai Kakadia by the assessee (original owner). It is submitted that even from the statement of Shri Rajesh Vaghani, upon which, much reliance has been placed by the AO there is no material that any amount in cash was received by the assessee. It is submitted that therefore, as such there is no tangible material available with the AO to come to the conclusion that any on money in cash was received by the assessee, more particularly, Rs. 8,92,77,830/-received by the asssessee as a sale consideration. 3.4. It is vehemently submitted by Shri Hemani, learned counsel for the petitioners assessee that if the sale has taken place between the petitioners-sellers and Popatbhai Kakadia on 27.03.2008, how can Shri Alpesh Kotadia and Shri Vinod Ravani entered into a sauda chittihi on 12.03.2008 to Sharda Kakadia and Rajesh Vaghani of the land which Shri Alpesh Kakadia and Shri Vinod Ravani were not owning and in that case how can unaccounted capital gain arise in case of two ....
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....tted that in the present case Shri Vinod S Ravani and Shri Alpesh Kotadia were not in a capacity to transfer said land as they were not the legal owner of the said land and they just acted as a middle man to facilitate the transfer of said land to Shri Popat H Kakadia. It is submitted that Shri Shard P Kakadia who appeared as one of the purchaser of said land in the said sauda chittihi is son of actual purchaserShri Popat H Kakadia. It is submitted that thus it is clear that Shri Vinod Ravani and Shri Alpesh Kotadia acted on behalf of the assessee and Shri Sharad P Kakadia acted on behalf of Shri Popat H Kakadia and amount mentioned in said sauda chittihi was ultimately transferred to the assessee. It is submitted that therefore, the AO is justified in forming belief that income chargeable to tax has escaped assessment for the AY 2009-10. Making above submissions, it is requested to dismiss the present petitions. 5.0. Heard the learned counsel for the respective parties at length. We have perused and considered the reasons recorded to reopen the assessment for AY 2009-10. We have also perused and considered the statement of Shri Rajesh Vaghani, on the basis of which, the AO has f....
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....which, it can prima facie be considered that Rs. 8,92,77,830/-has been received by the assesseesellers as sale consideration. 6.0. Present matter is also required to be considered from another angle. It is required to be noted that in the present case, the sale deed has been executed by the petitioner on 27.03.2008. The sale consideration has been received by the petitioner on 27.03.2008. It is also required to be noted that when the petitioner filed return of income for the AY 2008-09, he claimed the short term capital gain of Rs. 26,12,040/-on sale of the aforesaid land in question, which was duly reflected in books of account and income tax return for AY 2008-09. Therefore, the transfer had taken place in AY 2008-09. Thus, the the transfer of land has been taken place on 27.03.2008 when the sale deed has been executed. Therefore, it can be said that income has arisen in the AY 2008-09 and therefore, if at all any income has escaped assessment, the same can be said to be in AY 2008-09. By impugned notice, assessment for AY 2009-10 is sought to be reopened on the ground that income chargeable to tax has escaped assessment in 2009-10. When, it was pointed out to AO that the transf....