TaxTMI 
TaxTMI 
2023 (3) TMI 1112
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....Noida & Advant IT Park Pvt Ltd. [hereafter referred to as the "builder/seller"] made a provisional allotment in favour of the petitioner. 3. The petitioner, it appears, was handed over the possession of the Flat on 23.09.2013, subject to payment of the balance amount, after the woodwork concerning interiors was carried out. 4. As agreed between the petitioner and the builder/seller, instalments towards the agreed consideration for the Flat were made over on the following dates: i. First instalment was paid on 15.04.2013, i.e., on the date when the provisional allotment was made, amounting to Rs 2 crores. ii. Second instalment amounting to Rs 1,98,00,000/- was paid on 23.09.2013. iii. Third instalment amounting to Rs 49,50,000/- (after adjusting TDS) was paid on 30.01.2014. 5. The record shows that the remaining instalments, albeit after adjusting withholding tax were paid in the Financial Year (FY) 2014-2015 on the following dates: i. Rs 1,70,00,000/- was paid on 09.05.2014. ii. Rs 31,51,705/- was paid on 14.06.2014. iii. Rs 15,00,000/- was paid on 01.08.2014. 6. Because the entire sale consideration amounting to Rs ....
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....6,22,21,160/-, Rs l,70,00,000/- was secured by way of a loan, as noticed above, from HDFC Bank while the remaining amount was obtained through own sources, which included investments and fixed deposits. 15. Despite the response submitted by the petitioner, respondent no. 1 triggered a notice under Section 148 of the Act on 30.03.2021, which as indicated above, is impugned in the instant writ petition. 16. Having received the aforementioned notice, the petitioner asked for being provided reasons and the approval granted for triggering the reassessment proceedings. 16.1 This request was made by the petitioner on 29.04.2021. Besides this, the petitioner, via communication dated 31.05.2021, informed the Assessing Officer (AO) that the return already filed vis-à-vis the AY 2016-2017 should be treated as a return in response to the notice dated 29.04.2021 issued under Section 148 of the Act. 16.2 We have on record both the reasons recorded as well as the approval granted. The record, presently made available to us, shows that the sanction for triggering reassessment proceedings was granted on 30.03.2021. In consonance with the judgment of the Supreme Court rendered in ....
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....ion dated 2.09.2021, had clearly indicated that the payments made towards the Flat spread out between 15.04.2013 and 01.08.2014, i.e., the payments had been made in FY 2013-14 and 2014-15 and that the applicable tax at source had been deducted for all instalments, except the first instalment. 20.2 Besides this, the petitioner had also asserted that he had consistently adverted to the Flat in the fixed assets schedule appended to his balance sheet filed with the income tax return for the relevant AY. 20.3 The AO, for some unknown reason, has dealt with these assertions, which were backed by facts and figures, cursorily, to say the least. The petitioner had claimed that he had consistently disclosed the Flat as an asset and, accordingly, claimed depreciation qua the same; an aspect for some inexplicable reasons, the AO failed to notice and deal with. 21. Pertinently, the AO failed to notice that the reassessment proceedings could not have been triggered for the AY in issue i.e., AY 2016-2017, having regard to the fact that the payments for the Flat were made in FY 2013-14 (AY 2014-15) and FY 2014-15 (AY 2015-16), and that no part of the transaction took place in the assessme....
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....him under Section 151(2) does not mention any reason for coming to the conclusion that it is a fit case for the issue of a notice under Section 148. We are also of the opinion that the Commissioner has mechanically accorded permission. He did not himself record that he was satisfied that this was a fit case for the issue of a notice under Section 148. To Question 8 in the report which reads "whether the Commissioner is satisfied that it is a fit case for the issue of notice under Section 148", he just noted the word "yes" and affixed his signatures thereunder. We are of the opinion that if only he had read the report carefully, he could never have come to the conclusion on the material before him that this is a fit case to issue notice under Section 148. The important safeguards provided in Sections 147 and 151 were lightly treated by the Income Tax Officer as well as by the Commissioner. Both of them appear to have taken the duty imposed on them under those provisions as of little importance. They have substituted the form for the substance." [Emphasis is ours] 38. Also see the observations made in the judgment of the Division Bench of this Court in The Central India E....