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2022 (9) TMI 574
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....1961 (in short "Act") on 17.12.2009. Thereafter the case was reopened u/s. 147 by issue of notice u/s. 148 of the Act dated 30.03.2014. Further, notices u/s. 143(2) dated 15.07.2014 along with questionnaire was issued and served on the assessee. The case was reopened with the following reasons recorded: - "Consequent to the search, this case was centralized with the undersigned. The notice u/s. 153A of the IT Act, 1961 was issued on 22.12.2008. In response to notice u/s. 153A of the IT Act, 1961 the assessee filed the return of income on 27.02.2009 declaring total income of Rs. 60,69,788/-. The assessee is a Doctor by his profession. The assessment was completed u/s. 143(3) r.w.s 153A of the IT Act, 1961 and determining total income of Rs. 61,34,873/- The search was conducted by DIT (Inv.)-11, Mumbai on Hiranandani Group Builders and Developers on 11.03.2014, it was found that payments in form of "on money were made by various purchasers/buyers. It was also duly certified by the Directors and Promoters of the said company that they have received on money from the purchasers/buyers. However, on identification of the purchasers/buyers based on PAN on the basis of ad....
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....ents made to M/s/ Crescendo Associates for purchase of residential house property being Flat No. 2202A, 220B and 2202C in Glenridge, Hiranandani Gardens, Powai, Mumbai - 400076 have been highlighted. As discussed during the course of the hearing on 24-03-2015, this residential house property has been purchased for Rs. 2,20,00,000/- out of which housing loan from ICICI Bank Ltd. has been taken of Rs. 1,91,00,000/- and the balance Rs. 29,00,000/- has been paid from my saving Bank Account and the Savings Bank Account of my husband - Dr. shailendra I singh with Bank of India, Ghatkopar (West) Branch, Mumbai-400086. (2) There are no cash withdraws from my Savings Bank Account with Bank of India, Ghatkopar (West) Branch, Mumbai - 400086. (3) Allotment Letter dated 30-11-2006 in respect of purchase of residential house property being Flat No. 2202A, 2202B and 2202C in Glenridge, Hiranandani Gardens, Powai, Mumbai-400076. (4) Affidavit declaring that I have not paid any "On Money" to M/s. Crescendo Associates for purchase of the aforesaid residential house property being Flat No. 22024, 2202B and 2202C in Glenridge, Hiranandani Gardens, Powai, Mumbai-400076. ....
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....ssee is in appeal before us raising following revised grounds in its appeal: - "While the appellant objects to the order dated 30/03/2015 passed under section 147 r.w.s 143(3) of the Act, the Appellant humbly seeks withdrawal of the original Grounds of Appeal and accordingly seeks modification and renumbering of Grounds of Appeal as under: 1. The Appellant strongly objects to Notice dated 30/03/2014 issued under section 148 of the Act as it is illegal, bad in law, and ultra vires the provisions of the Act as is evident from the perusal of the copy of the Reasons recorded since: a. Neither any certificate from the Directors and Promoters of Hiranandani Group as claimed has been provided nor any evidence whatsoever alleging the appellant of having paid any "on money" is provided. b. An amount of Rs. 22,00,000/- has been mentioned as against an amount of Rs.75,00,000/- in some excel sheet as alleged as a document as incriminating in nature. c. It is evident that the excel sheet mentioning an amount of Rs. 75,00,000/- is nothing but an afterthought, especially since, the said excel sheet neither bears the seal of the authority nor the name o....
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.... purchasers of the flat. Therefore, the additions were made merely relying on the finding in the case and Assessing Officer completed the assessment without giving opportunity to the assessee for cross examination and not shared with the informations relied upon to make additions. Further, he submitted that Ld.CIT(A) applied general principle view and applied the case of the Sumati Dayal v. CIT [214 ITR 801] and no material was confronted with the assessee before making the addition, in this regard, he relied on the case of Anil Jaggi v. ACIT [2018] 89 taxmann.com 266 (Mumbai - Trib.). 11. On the other hand, Ld. DR submitted that there is sufficient evidence is enough reason to believe to reopen the assessment and at the time of reopening what is relevant is reason to believe. In this case Assessing Officer has proper reason to believe and accordingly, he reopened the assessment. Further, he submitted that statement recorded u/s. 132 of the Act has evidential value. Therefore, Assessing Officer has completed the assessment with proper approval from the higher authorities. 12. Considered the rival submissions and material placed on record, we observe from the submissions of th....
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....ideration to the issue before us and find that as per the mandate of first proviso of Sec. 147, a concluded assessment can be reopened after a period of four years from the end of the assessment year, subject to the condition that the income of the assessee chargeable to tax had escaped assessment for the reason of the failure on the part of the assessee to fully and truly disclose all material facts necessary for his assessment. We are of the considered view that failing satisfaction of the aforesaid condition, the reopening of a concluded assessment after a period of four years from the end of the assessment year cannot be justified. We find that the 'reasons to believe' on the basis of which the case of the assessee before us was reopened, does not refer to any such ground for reopening the case of the assessee. We are unable to gather from the 'reasons to believe' which form the very foundation for assumption of jurisdiction for reopening the case of the assessee, that the jurisdiction for reassessing the income of the assessee after lapse of a period of four years from the end of the assessment year was assumed by the A.O because of the failure on the part of the assessee to f....
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....sessment, cannot be sustained and on the said count too is liable to be vacated. 14. We shall now take up the case of the assessee on merits and deliberate on the validity of the addition of Rs. 2.23 crore made by the A.O on the ground that the assessee had made a payment of "on money" for purchase of flats from M/s Lakeview developers. We have perused the facts of the case and the material available on record on the basis of which the addition of Rs. 2.23 crore had been made in the hands of the assessee. We have further deliberated on the material placed on record and the contentions of the ld. A.R to drive home his contention that no payment of any "on money" was made by the assessee for purchase of flats from M/s Lakeview Developers. We find that the genesis of the conclusion of the A.O that the assessee had paid "on money" of Rs. 2.23 crore for purchase of property under consideration is based on the contents of the pen drive which was seized from the residence of an ex-employee of Hiranandani group. We have perused the print out of the pen drive (Page 42 of APB) and find ourselves to be in agreement with the view of the ld A.R that though against the heading "Amount o....
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....eracity of the claim of the assessee that his investment made towards purchase of the property under consideration was well in order. We are of the considered view that though the material acted upon by the department for drawing of adverse inferences as regards payment of "on money" by the assessee formed a strong basis for doubting the investment made by the assessee for purchase of the property under consideration, but the same falling short of clinching material which would have irrefutably evidenced the said fact, thus, does not inspire much of confidence as regards the way they have been construed by the lower authorities for drawing of adverse inferences in the hands of the assessee. We thus are of a strong conviction that as the material relied upon by the lower authorities does not corroborate the adverse inferences drawn as regards the investment made by the assessee, therefore, the same cannot conclusively form a basis for concluding that the assessee had made payment of "on money" for purchase of the property under consideration. We thus in the backdrop of our aforesaid observations are of the considered view that the adverse inferences drawn by the A.O as regards payme....