2023 (6) TMI 27

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....he Act) concerning AY 2009-10. 2. As per the grounds of appeal, the assessee has challenged the order of ld. CIT(A) on twin grounds. (i) Lack of jurisdiction under Section 147 of the Act (ii) Legitimacy of addition /disallowance on merits. 3. Briefly stated, the assessee is a civil / criminal lawyer who filed the return of income for Assessment Year 2009-10 on 31.03.2009 declaring total income at Rs.2,39,651/- for which intimation was issued under Section 143(1) of the Act. During the year, the assessee sold agricultural land with constructed area for actual consideration of Rs.24,69,000/- which represents 1/4th of total consideration of Rs.98,76,000/- where 3/4th share belongs to one Shri Mashroof Ali. The Assessing....

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....on of jurisdiction under Section 147 is reproduced herein for ready reference: Reasons for issue notice w/ s 148 of the Income tax Act , 1961 Shri Kunwar Avvub Ali s/o Shri Mas roof Ali , Vill. Masoori , Ghaziabad PAN AEIPK 0492A Assessment Year 2009-10 26.03.2014 As per AIR information the assessee has sold residential /agricultural land situated at Village Dana Distt . Ghaziabad as per details below: 1. Khata No. 218 Khasra No. 1607 and 1712 measuring about 5435 Sq. Meter total covered area 228.84 Sq. Meter for Rs. 98,76,000/ - but the circle rate was Rs. 1,56,99,500/ - on which stamp duty was paid. The assessee has earned capital gain on the sale consideration of residential ....

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....ment, the assumption of jurisdiction on the basis of wholly incorrect facts cannot be conferred in law. In this case also, the reasons cited were that the assessee did not file return and the capital gain on sale consideration was not brought to tax which reasons were found to be factually incorrect. The assessee had return of income which was not noticed by the Assessing Officer. Consequently, the notice issued under Section 148 for reopening the assessment was quashed for assumption of jurisdiction on factually incorrect premise. In the similar fact situation, the Hon'ble Gujarat High Court also quashed the re-assessment proceedings in Sagar Enterprises vs. ACIT, (2001) 257 ITR 335 (Guj.) where reasons were recorded dehors the fact, i.e.,....