TaxTMI 
TaxTMI 
2022 (4) TMI 855
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....ase, in brief, are that the assessee is an individual and filed his return of income on 31st March, 2010, declaring income of Rs. 1,86,830/-. In this case, information was obtained by the AO that the assessee has sold immovable property amounting to Rs. 55,00,000/-. To verify the transaction, information was called u/s 133(6) vide letters dated 15.05.2016 and 05.02.2016. Since, no reply was received from the side of the assessee, the AO reopened the case u/s 147 of the Act after recording the reasons and accordingly notice u/s 148 was issued to the assessee in the address given in the transfer deed of the property, wherein, the assessee had given his address as Vijay Bathla S/o- Sh. P.D. Bathla resident of 1045, Sector-37, Noida, Dist. Gautam Budh Nagar, U.P. GPA of Gen. V.K. Singh S/o- S.N. Singh and Smt. Meena Singh R/o-21, Akbar Road New Delhi. Subsequently, the AO issued notice u/s 148 dated 15.11.2016 to E-46, College Line. P.O. Bengali Market, New Delhi 110001 fixing the case for 23.11.2016. On 23.11.2016, the ld. Counsel for the assessee filed a letter raising objection to the issuance of notice u/s 148 for the following reasons:- 1. This is the first notice that th....
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.... CIB wing also could not communicated the PAN number of the appellant to the ITO, Ward 2(5), Noida. CIB wing could only communicate the name and the address of the appellant, as provided by appellant himself in the document registered with the registering Authorities in respect of property deal. Besides, the name and address, other information such as the amount of transaction and the date of transaction was also communicatea by CIB wing to AO. As stated above that at the time of registering authority providing information to CIB wing and in turn CIB wing providing information to ITO, Ward 2(5), Noida, the PAN number of the appellant was not available with any of these authorities. 5.2. At this stage, before the specific facts involved in the case of appellant are presented and analysed, it is appropriate to discuss the methodology and functioning of CIB wing of department and the further action which the concerened AO can possibly take in humanly possible manner, within the constraint placed on him, on account of fact that the appellant himself does not provide the relevant information to statutory authorities, which otherwise the appellant is duty bound to provide. ....
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....to AO, he has no option but to send the query letter to such a person at the address available to him in his records. Once such an step is taken, only after that, depending upon the reply submitted by such a person before the AO, the AO can take the next step. 5.2.5. First situation is that the person responds to the queries of AO and accepts the jurisdiction of the AO, then AO may easily proceed further. Second situation is that the person responds to the queries of AO with necessary documentary support that AO who issued the query letter is not the jurisdictional AO as the person claim himself to be the resident of some other area, other than the area on which the present AO has jurisdiction, the present AO may then transfer the case of appellant to the jurisdictional AO. Third situation is that the query letter issued by the AO is not responded at all. In such a situation, AO has absolutely no other way other than making a prima facie belief that income of such a person has escaped assessment and also that he is the jurisdictional AO. 5.3. Having discussed the above methodology and working of the various wings of department, I now proceed to discuss, as to unde....
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....9-10 within the meaning of sedition 147 of the I.T. Act. 1961" 5.3.4. The notice u/s 148 was sent at the same address as was available at that time in the records of ITO, Ward 2(5), Noida ie. as provided by CIB wing to ITO, Ward 2(5), Noida. However this notice remained uncomplied with. 5.3.5. Subsequently, AO,ITO, Ward 2(5), Noida came into possession of another address of the appellant and a letter dated 15.11.2016 was sent at this new address at E-46, College Line. P.O. Bengali Market, New Delhi 110001. This turned out to be the correct address of the appellant and the appellant responded to this letter by raising following objections before ITO, Ward 2(5), Noida. 1. This is the first notice that the assessee has received and no notice prior to notice dated 15.11.2016 has been received by him. 2. That the notice is bad in low as notice is with jurisdiction. 3. That he Is filing his regular return of Income in Delhi and he has filed his return for the A Y. 2009-10 at Delhi. 4. That the notice u/s 148 is out of jurisdiction. 5. That he has not purchased any property for a consideration of Rs. 55,00,000/-. ....
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....tails of transaction with the appellant. It is already on record that the ITO Ward 2(5j, NOIDA was neither in possession of PAN number of appellant nor he was aware of the address of the appellant as per PAN database. The second address at which the letter dated 15.11.2016 was sent by ITO Ward 2(5j, NOIDA to appellant, which was responded, though only by way of raising various objections, was also not provided by the appellant to ITO Ward 2(5), NOIDA but was collected by him through his own efforts. As soon as ITO Ward 2(5j, NOIDA was informed by the appellant himself vide his letter dated 29.11.2016 that the jurisdictional AO of the appellant was not him but ITO, 44(1 j, New Delhi, the case records were transferred by ITO Ward 2(51. NOIDA to ITO Ward 44(1), New Delhi. 7. In view of these circumstances, the question arises : can the action of ITO Ward 2(5), NOIDA be held invalid, on the following specific facts of the case that firstly, the Issue of notice u/s 148 by ITO Ward 2(5), NOIDA, at the only address available in the records of ITO Ward 2(5), NOIDA, particularly when he was not even having the PAN number of the appellant so as to gather the address of the appellant....
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.... in PAN database. This is just a typographical error as all along it is on record that ITO Ward 2(5), NOIDA was not even having benefit of possessing PAN number of the appellant, so there was no occasion with him to gather the address of the appellant as per PAN database. This mistake has been rectified by the AO in the remand report submitted by him during the course of these appellate proceedings, where it has been mentioned that notice was sent at the address available in the transfer deed of property. 10. In view of above-stated facts and circumstances of the case, the Ground raised by the appellant is also not acceptable that the notice u/s 148 dated 29.03.2016 was never received by him. The notice was sent by the then jurisdictional AO, ie. ITO, Ward 2(5), Noida, who happened to hold jurisdiction based upon the address of the appellant available in his records, which had been provided by the appellant himself in the records of registering authorities. The appellant had not provided his PAN number in the records of registering authorities, for the reasons best known to him, possibly to avoid the proceedings of department and if caught., later on raise futile objection....
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.... on "agreement to sale" basis but later on did not execute any transfer deed in her favour. Subsequently, when the appellant's family wanted to sale his property, they again approached Sh. V.K. Singh to sign the transfer deed and declared the appellant as GPA holder, instead of the wife. The AO's observation are extremely pertinent, in observing that as per transfer deed between the appellant and Sh. Nalin Monga, one of the witness to the deal is appellant's wife herself. This situation rules out any possibility of appellant's wife being the owner of the property, since, had she been the owner, she would have certainly objected to such transfer and would not have appointed herself as witness to the deal. Accordingly, AO has correctly held that the appellant's wife was never the owner of the property. In addition to it, AO has also referred to the ITRs filed by the appellant and his wife for AY 2009-10. AO has categorically observed that neither the appellant nor his wife has declared any long term capital gains in their respective returns of income. Accordingly, AO's findings are absolutely correct in holding that appellant and his wife were involved in a so....
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.... in law as much as on the facts of the case by confirming the addition of Rs. 44,09,836/- made by the learned Assessing Officer with regards to the long term capital gain on sale of the House Property No. 1045, Sector-37, Noida, U.P. without appreciating the fact that the same did not belong to the appellant but belonged to his wife Mrs. Vinita Bhatla and therefore, the addition, if any, had to be made in the hands of Mrs. Vinita Bhatla and not the appellant. 2) That the Hon'ble Commissioner of Income Tax (Appeals) has further erred in law as much as on the facts of the case by confirming the aforesaid addition of Rs. 44,09,836/- as made by the learned Assessing Officer without appreciating the fact that the learned Assessing Officer did not assume the jurisdiction to complete the assessment proceedings as the initial notice dated 29th March, 2016 issued by the learned Income Tax Officer, Ward 2(5), Noida was not served upon the appellant till the completion of assessment proceedings and even till date and also without appreciating the facts that the appellant had filed an Affidavit regarding the same before the learned Assessing Officer. In the absence of service of t....