2017 (8) TMI 935

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....ent year 2009-10, the petitioner had filed return of income on 30.09.2009 declaring total income of Rs. 4.07 lakhs. The return was taken in scrutiny. The Assessing Officer passed order under Section 143(3) of the Act on 31.08.2011 assessing total income at Rs. 4.65 lakhs. 2.2 To reopen such assessment, the Assessing Officer issued the4 impugned notice. In order to do so, he had recorded the following reasons: "The assessee has filed his return of income for A.Y. 2009-10 declaring total income of Rs. 4,07,400/- on 30/09/2009. The return of income was processed u/s. 143(1) of the I.T. Act, 1961. Thereafter, the assessment was completed u/s.143(3) of the I.T. Act and total income determined at Rs. 4,65,692/-. 2. As per the....

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....ng the F.Y. 2008- 09). Thereafter, an appeal was filed before the Ld.CIA(A). Ld. CIA(A) who vide order dated 04.05.2012 has remarked that is not Shri Milan H Mehta but Shri Rajubhai (Rajesh Shantilal Shah)should be liable to explain the sources of cash as appearing on page. No. 52 of Annexure A/2. In view of the above, it is therefore, the source of cash of Rs. 1,58,00,000/- paid by Rajesh Shantilal Shah to Shri Ashok Prajapati (the amount appearing in the seized paper during the F.Y. 2008- 09) remains unexplained. In view of the above, I have reasons to believe that the income chargeable to tax of Rs. 1,58,00,000/- has escaped assessment which is more that Rs. 1,00,000/- within the meaning of provisions of section 149(b) ....

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....issioner that the amount was paid by the petitioner. 5. On the other hand, learned advocate Shri Nitin Mehta for the department opposed the petition contending that the Assessing Officer had tangible material to enable him to form a belief that income chargeable to tax had escaped assessment. Such material was not disclosed by the assessee in the original return and the notice of reopening even beyond a period of four years would therefore be valid. He lastly contended that the sufficiency of reasons of the Assessing Officer would not be subjected to a judicial review that too at this stage. 6. More minute perusal of the reasons recorded by the Assessing Officer would show that as per the department one Ashok Prajapati had sold land t....

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....d be assessed for such differential amount. In fact the Appellate Commissioner had given detailed reasons for discarding the entries made in the documents regarding receipt of a sum of Rs. 3.32 crores from Milan Mehta through his agents. The Commissioner preferred to believe the statement of Milan Mehta that all in all a sum of Rs. 1.07 crores was paid for such land deal. In fact all along the case of the department has been that Ashok Prajapati was a seller of the land which was purchased by Milan Mehta and Rajesh Shah had acted as his broker. The amounts in cash were paid by Rajesh Shah at all stages for and on behalf of Milan Mehta. The Appellate Commissioner also observed that "none of the brokers namely Rajesh Shah and Andesh Bharwad h....