2022 (12) TMI 494

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....roceeding u/s. 144 r.w.s. 147 of the Act vide order dated 24/11/2016 passed for the assessment year 2011-12. The assessee has also filed Cross objection against the order passed by Ld. CIT(Appeals) challenging the validity of re-opening of assessment in the instant set of facts. 2. The Department has taken the following grounds of appeal:- "1) "Whether the Ld. C1T(A) is right in law and on facts in deleting the addition of Rs.3,07,12,200/- made on account of undisclosed receipts out of sale of plots of land. " 2) "Whether the Ld. CIT(A) is right in law and on facts in reversing the findings of the Assessing Officer and in treating the deficit arised out of sale of land properties as short term capital loss of Rs. 4,46,4....

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....ge or modify all or any of the ground before or at the time of hearing." 4. At the outset, the counsel for the assessee challenged the re-opening of assessment in instant set of facts and placed reliance on the decision of the jurisdictional Gujarat High Court in the case of Mohmed Juned Dadani 355 ITR 172 (Gujarat), wherein the High Court held that when the ground on which reopening of assessment was based, no addition was made by Assessing Officer, he could not make additions on some other grounds which did not form part of reasons recorded by him. The counsel for the assessee submitted that no additions were made in respect of those issues which formed the basis on which the assessment of the assessee was reopened. He drew our attenti....

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.... of the property and Jantri value, however, the addition has been made with respect to the very same property, which finds mention in the "reasons for reopening assessment" issued by the learned AO. Accordingly, there is no infirmity in the order u/s. 147 of the Act. 6. We have heard the rival contentions and perused the material on record. The primary issue for consideration before us is that though in the "Reasons" recorded for reopening the assessment, the AO has sought to tax the difference between the sale value of the property and the Jantri value u/s 50 C of the Act, however, in the assessment order additions have been made in respect of the above property (along with other properties owned by the assessee) on a different basis i.....

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...., ITAT held that where AO recorded reasons on basis of which reassessment was initiated, but did not make any addition in reassessment proceedings, in such case primary reason to believe that income had escaped assessment would fail and reassessment could not be treated as a valid order. Again in ACIT v. Everest Education Society [2021] 126 taxmann.com 78 (Pune - Trib.), ITAT held that where reasons recorded and notice issued under section 147/148 was with respect to underutilization of income of assessee trust for which there had been no addition made, but Assessing Officer made addition on account of 'anonymous donation' under section 115BBC, Assessing Officer having acted beyond his jurisdiction, and therefore Commissioner (Appea....