2009 (9) TMI 32

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....ts of the case are that the petitioners/assessees filed a return of income for the assessment year 2005-2006 on 18.11.2005 and which was duly processed under Section 143(1) of the Income Tax Act, 1961. The petitioners were thereafter on 19.2.2007 issued notices under Section 147/148 of the Act. On request of the petitioners the reasons for issuing of the notices under Sections 147/148 were supplied and which are as under:- "Reasons for Reopening the Assessment 1. Name of the assessee : Dr. Mrs. Shipra Srivastava 2. PAN No. : AGZPS3647Q 3. Asstt. Year : 2005-06 4. Address : A-13, EHIRC Residential EHIRC, Okhla Road, N. Delhi:-110025 Reasons for Reopening Returns for A.Y. 2005-06 was furnished on 18.11.05 d....

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....he ALV of the same should have been declared for assessment purposes as per section 23 of the I.T.Act, as the assessee, is occupying accommodation in the hospital premises provided by his employer. The interest claim of the assessee as such is wrong claim either fully or at least partly because the same has to be reduced from the Annual Letting Value (ALV) of the property. 3. In view of the above facts I have reasons to believe that the income chargeable to tax in the case of the assessee as discussed above, has escaped amendment within the meaning of S. 147 of the I.T. Act 1961 for A.Y. 2005-06. 4. Issue notice u/s 148 of the I.T. Act. (PREM RAJ) ASSTT. COMMISSIONER OF INCOME TAX Circle-41, ND" 2. There are therefore two ....

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.... was occupying rent free accommodation given by his employer at A-13, EHIRC, Residential Tower, Okhla Road, New Delhi inasmuch as in fact and reality both the assessees had shifted from this accommodation way back in August 2001 when the petitioners moved into their own accommodation at Shipra Sun City. In fact thereafter the assesses were no longer in Delhi from August 2003 as they were posted by their employers to Raipur, Madhya Pradesh and from where they came to Delhi only on 30.6.2007. The senior counsel contended that it is not understood as to how the officer has taken the EHIRC residential tower address as having been supplied to the assessee as rent free accommodation by his employer as the return did not disclose this as a perquis....

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....n both the petitioners at Rs. 27,000/- which was correctly shown and taxed as perquisite in the case of both the petitioners as the accommodation was jointly occupied by wife and the husband." The learned senior counsel therefore further contended that no reasonable man could reach a finding on the basis of TDS form and the return that the assessee was enjoying the perquisite of rent free accommodation from his employer at EHIRC Towers, more so as the same is not new material discovered which was available after the finalization of the return for the assessment year under Section 143(1). We may also note that in the writ petition the petitioners have referred to the correspondence and the questionnaire which was initiated by the officer ....

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.... his employment, business or profession carried on at any other place, he has to reside at that other place in a building not belonging to him. the annual value of such house or part of the house shall be taken to be nil." The learned senior counsel therefore contended that this was a clear cut case of harassment. 4. The learned counsel for the Revenue has on the other hand supported the reasons for reopening of the assessment for the reasons which have already been recorded and reproduced hereinabove. 5. We are of the firm opinion that the present writ petition is liable to succeed with costs. The reasons which have been recorded seeking reopening of the assessment, and as reproduced above show that there is no application of m....

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....se property cannot be occupied by the assessee by reason of the fact that owing to his employment he is stationed at any other place and there he resides in a building not belonging to him. Again, in the reasons recorded seeking reopening of the assessment, the officer has failed to disclose as to how he had come to the finding and on the basis of which materials. Clearly, it is not a finding which any reasonable man could have been arrived at in the facts and circumstances of the case. In fact, it is for this reason that the Assessing Officer has not stated that what are the new materials in this regard which has come into his possession for seeking of reopening of the assessment and how the assessee has concealed any facts or particulars ....