AI Drafter 
TaxTMI 
TaxTMI 
2022 (7) TMI 1042
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....Hash Builders Pvt Ltd, Chandigarh and M/s Tata Housing Development Company Ltd, Mumbai. As per the said information, by virtue of the tripartite agreement, it was agreed amongst the parties that the Defence Services Co-operative Housing Building Society, Mohali, the owner of land, shall transfer its land to M/s Tata Housing Development Co. Ltd, in lieu of monetary consideration as well as consideration in kind. Further, as per the said information, each member of the Housing Society was to receive cash as monetary consideration from M/s Hash Builders Pvt Ltd as well as receive consideration in kind such as furnished flat from Tata Housing Development Company Ltd. The information provided that one of the members of this society Shri Ranjit Singh had received payment as under:- 1. Name and address of Individual society Members (as provided by soc. at the time of execution of agreement). Smt. Rashpal Kaur Bhullar W/o Col. Sant Singh Bhullar H. No. B-143, Raj Guru Nagar, Ferozepur Road, Ludhiana 2 Area of Land purchased from the society Member 500 Sq. Yard 3 Purchase consideration i.e. amount payment to member in cash and in kind Rs. 80 lac (Eighty Lacs) by c....
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....e Joint Development Agreement existed, the company M/s Tata Housing Development Company limited was unable to get the necessary approval from the Town Planning Department of the Government for such project with the result that there was no development work which could be commenced in the year under consideration and the permanent approval could only be obtained in December 2008 which was further subject to the final necessary sanction being received from the Ministry of Defence and other authorities. It was further submitted that the issue had also become the subject matter of litigation before the Hon'ble Punjab & Haryana High Court and in this case essential condition for approval of capital gains were not finalized. It was submitted that the members of the Housing Society had received only two initial installments till 24.12.2010 and the balance amount was still doubtful to be recovered and, therefore, it could be said that there was any case of full consideration having been received. It was further submitted that the members of the society have only been promised a built up flat to be constructed by the company on its completion but nothing concrete had been done towards that ....
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.... erred in law in not determining explicitly as to who is the actual owner liable to pay Capital Gains Tax, if any, as the notice under section 148 of the Act has been issued both to the assessee as well as the Society namely The Defence Services Cooperative House Building Society Limited for the same reason which in itself shows that there is no reason to believe as envisaged in section 147 of the Act and as such the assessment framed is illegal which merits annulment. 6. Without prejudice to the above, the Ld. Commissioner of Income Tax (Appeals) has further erred in upholding the addition of Rs.80,00,000/- as the alleged consideration received in cash which in fact has not been received till date and as such the addition upheld is illegal, arbitrary & unjustified. 7. That the entire hypothetical addition is based on an agreement relied upon in parts by the Assessing Officer which in fact has not been implemented till date and as such the addition made and upheld by the Commissioner of Income Tax (Appeals) on suspicion, surmises and conjectures merits deletion. 8. That the Ld. Commissioner of Income Tax (Appeals) has further erred in upholding the additi....
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....rary, opposed to law and facts of the case and is, thus, untenable 3.0 At the outset, the Ld. AR submitted that the assessee was challenging the assumption of jurisdiction u/s 148 of the Act and was also challenging the re-assessment proceedings on the ground that there was no service of notice u/s 148 of the Act. The Ld. AR drew our attention to the assessee's application for admitting additional evidence vide application dated 21.09.2015 and also an affidavit dated 05.12.2017 filed by the assessee. The Ld. AR submitted that these additional evidences and the affidavit go to the very root of the matter and were filed in pursuance to the directions of the Bench. It was submitted that during the course of earlier proceedings, it had been argued by the Ld. AR that notice u/s 148 of the Act had not been served on the assessee as the assessee had never resided at the address mentioned in the notice as well as in the assessment order and that there was directions by the Bench to place on record the evidence in this regard and, therefore, such directions had been complied with. The Ld. AR prayed that these additional evidences may be taken on record in the interest of substantial just....
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...., the Ld. AR submitted that in view of the documents, as mentioned above in the additional evidences paper book, it was apparent that the assessee had not been served the notice issued u/s 148 of the Act as the Assessing officer admittedly had got the notice affixed at the address in Ludhiana, whereas, the assessee was either residing in Mohali or in Chandigarh. 4.2 Coming to the merits of the case, the Ld. AR submitted that the assessee had come to know of the assessment having been completed and a demand having been raised only when the recovery notice was received. It was submitted that, apparently, somebody else had filed the assessee's return using her PAN or otherwise it seems that somebody had played a fraud on the assessee as well as the Department. It was submitted that a letter to this effect was also written to the ITO, WardVI(2), Ludhiana which was received in the Income Tax Office on 18.2.2013. It was further submitted that the assessee had again written to the Income Tax Officer Ward VI(2), Ludhiana in response to the notice u/s 271(1)(c ) of the Act, wherein, it had been submitted that the assessee had never filed any return of income nor had signed the appeal for....
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....was issued on 2.12.2006. The allotment letter of the Housing Society which is dated 11.12.2005 also shows that the assessee's address at Mohali. However, the copy of the Income Tax Return acknowledgement for assessment year 2003-04 shows that the assessee's address as house no. 1245/2, Sector 43-B, Chandigarh. Further, the identity card issued by Army showing the assessee as a War Widow shows the address as H. No. 1245/2, Sector 43B, Chandigarh. On the other hand, the notices u/s 148 of the Act, the assessment order as well as the order of the Ld. First Appellate Authority show the address at 10SF, HIG Flats, Rajguru Nagar, Ludhiana. It is the contention of the assessee that the assessee was not aware of the notice having been received u/s 148 of the Act and neither was she aware of the assessment proceedings having been completed against her. It is also her contention that she was not aware of any appeal having been filed against the assessment as she has also disputed the signatures which are affixed on form No. 35 filed before the Ld. CIT(A). It is her contention that she came to know of the assessment having completed against her only when she received a communication for the o....
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....r as well as the First Appellate order. Here again, the veracity of the assessee's contention that she had not authorised anybody to represent her, cannot be verified for want of adequate proof. The assessee's contention that the signature on Form 35 is not hers, is a matter within the realm of Forensic Experts. Further, as per record, even notice u/s 142(1) of the Act had been received by the assessee and had been duly responded to. Therefore, we reject the assessee's legal ground that the subject assessment is liable to be set aside for want of service of notice u/s 148 of the Act. We dismiss the grounds raised by the assessee in this regard. 6.2 Coming to the merits of the case, it will be worthwhile to reproduce the contents of the Affidavit dated 5.12.2017 filed by the assessee before this Tribunal, which are as under:- "Affidavit" I, Rashpal Kaur Bhullar wife of Late Lt. Col. Sant Singh Bhullar aged 70 years resident of # 1245/2, Sector 43B, Chandigarh do hereby solemnly affirm and declare as under: - 1. That assessment u/s 143/147 for AY 2008-09 has been framed by the assessing officer ITO, Ward-VI (2), Ludhiana vide order dated 24.12.2010. 2....
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....16. That I applied for the copy of the order passed by the Commissioner of Income Tax (Appeals) to safeguard my interest and for further filing of appeal before the Hon'ble Income tax Appellate Tribunal at Chandigarh. 17. That the appeal before this Hon'ble Court has been filed to safeguard my interest against the demand created against me on an alleged return of income and alleged appeal which were never filed by me. Had I not agitated the matter before this Hon'ble Court the revenue would have proceeded to recover the dues illegally created against me. 18. That I have not received the alleged payment of an amount of Rs.32 lacs as mentioned in the assessment order. 19. That I had lodged a complaint with SSP Mohali on 29/11/2010 wherein the facts in respect of the bogus return and bogus appeal having been filed have also been mentioned besides other points of dispute have also been narrated. Copy of the same is placed at Pages 19-21 of the additional evidence. Deponent Verification:- Verified that the above noted contents of my affidavit are true and correct to the best of my knowledge and belief and nothing has been conce....