TaxTMI 
TaxTMI 
2021 (7) TMI 64
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....or the A.Y. 2011-12 and 2012-13. 3. Brief facts of the present case are as under: 3.1 A.Y. 2011-12: The writ applicant being an individual assessee filed his return of income for AY 2011-12 declaring total income of Rs. 29,97,410/- and same was processed under Section 143(1) of the Act without scrutiny assessment. 3.2 A.Y. 2012-13: The writ applicant Manoj Dwarkadas being an individual assessee filed his return of income on 31.05.2013 declaring his income at Rs. 41,44,090/- and same was proceeded under Section 143(1) of the Act without scrutiny assessment. 3.3 The AO reopened the assessment for the A.Y. 2011-12 and 2012-13 by issuing impugned notice dated 30.3.2018 under Section 148 of the Act. The writ applicant requested the revenue to supply copy of the reasons for reopening of the assessment and therefore, same was supplied on 9.8.2018. The writ applicant vide letter dated 4.10.2018 raised various objections and same came to be rejected by the revenue vide order dated 5.10.2018. 3.4 The reasons recorded for the year 2011-12, which reads as under: "....... This office has received information from the Income Tax officer Ward2(4) Kalyan, vide his letter No....
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....VI-A of Rs. 1,15,000/- and declared total income at Rs. 41,44,090/-. Return filed by the assessee is processed u/s. 143(1) of the Act. 4. This office has received information from the Income Tax officer Ward-2(4) Kalyan, vide his letter No. KYN/ITO/WD2(4)/ information/SNE/2017-18 dated 14.03.2018, that the assessee has sold land to M/s. Swaminarayan Enterprises during the period FY 2010-11 & 2011-12. Information contains Transactions ledges from the books of M/s. Swaminarayan Enterprises in name of Manoj Tikmani. Copy of Journal Register for FY 2011-12 & copy of notices to accounts. On perusal of documents/information, the assessee has received (Rs. 89,65,972/- + 15,00,000/-) Rs. 1,04,65,972/- in FY 2011-12. 5. On verification of income of the assessee, as narrated in above para-2, transactions for transfer land, made by the assessee is required to be verified, so as to verify genuineness of transaction & actual amount of capital gain earned by the assessee. It is also require to verify the value of land considered is at market/juntry value as on dated or not? 6. The assessee has made transactions for transfer of land to M/s. Swaminarayan Enterprise. The ....
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....arging under the head capital gain is transferred the capital asset and accordingly on the date of the transfer the transaction is taxable and thus, therefore, when the amount recorded in the books of account of the firm was NIL, there cannot be any consideration taxable in the hands of the assessee. (iv) That there is no independent application of mind on the part of the AO while recording the reasons for reopening and merely placing material provided by the Investigation Wing for recording reasons is impermissible. (v) That the reasons to believe is bad in law as AO recorded his satisfaction only on the basis of the information received from the concerned Department and hence, he assumed jurisdiction only on borrowed satisfaction, which is not permissible in law. (vi) That no income has escaped assessment as the transaction of introduction of land by the assessee as capital asset was between the assessee and the firm. There is no evidence to hold that the assessee has received income greater than what is offered by him for tax, in such circumstances there is no income has escaped assessment (vii) In support of aforesaid contentions, Shri S.N. S....
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....ies and having gone through the materials on record, the only question falls for our consideration is that whether the revenue is justified in reopening the assessment for the year under consideration? 10. A bare perusal of the reasons recorded of the respective year shows that the assessment sought to be reopened by the revenue mainly on the ground that the assessee had received the amount as referred in the reasons recorded, from the partnership firm namely M/s. Swaminarayan Enterprises against the transfer of his land as capital contribution is chargeable to tax under the head Capital Gain in the hands of partners. 11. It appears from the record that the assessee had transferred his land to M/s. Swaminarayan Enterprise as part of capital contribution in the partnership firm as per Partnership Deed duly executed on 15.08.2008. Undisputedly, the land in question was not transferred in the name of Firm. It is a settled law that where immovable property is transferred by a partner to the firm as a capital contribution and registration does not take place by paying stamp duty, the case would be covered under Section 45(3) of the Act. As per Section 45(3) of the Act, whenever a ....