TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 356
X X X X Extracts X X X X
X X X X Extracts X X X X
....in confirming the action of Assessing Officer in passing the assessment order u/s 147 r.w.s. 143(3) as the same is bad in law and liable to be quashed and the same is in violation to sec. 142(3) as assessee was not given the copy of the material available with the department on the basis of which assessment was finalized inspite of repeated requests being made at the time of raising the objections for reopening as well as assessment proceedings. 3. On the facts and circumstances of the case and as well on the subject, the learned CIT(A) has erred in confirming the action of Assessing Officer in making addition of Rs. 65,40,750/- on account of unexplained investment u/s 69 of the Act. 4. It is therefore prayed that addition made by Assessing Officer and confirmed by CIT(A) may please be deleted. 5. Appellant craves leave to add, alter, or delete any ground(s) either before or in the course of hearing of the appeal." 3. Succinctly, the factual panorama of the case is that assessee before us is an Individual and filed her return of income for the assessment year (AY) 2012-13, on 30.09.2012, declaring total income at Rs. 6,46,870/- and agricultural income at Rs. 2,14,550/-. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the assessee were duly disposed off by passing speaking order on 16.05.2019 and the same was duly served upon the assessee. 5. On perusal of the ITS data of the assessee for the year under consideration, it was noticed by Assessing Officer that during the year under consideration, the assessee has purchased two immovable properties for the sale consideration of Rs. 1,05,00,000/- and Rs. 1,60,00,000/-. On verification of the duly notarized satakhat dated 16.08.2010, it was noticed that immovable property bearing Survey No.39, Revenue Survey No.35 situated at Moje Vadod, Surat was agreed to be sold at price of Rs. 6,28,26,000/- to Shri Shankar Chhaganlal Shah and Shri Govind K Bhadiyadara. As per the Satakhat, Shri Shankar Chhaganlal Shah has also paid Rs. 1,01,00,00/- as token amount to the seller. The Statement of Shri Shankar Chhaganlal Shah was also recorded on oath on 02.02.2018 by the ADIT(Inv.)1-Surat wherein he has admitted that said land was agreed to be purchased at price of Rs. 6,28,26,000/-. As the same piece of land was purchased by the assessee along with the other co-owner. When the same piece of land was already fetching price of Rs. 6,28,26,000/- on 16.08.2010 and....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 65,40,750/- made under section 69 of the Income Tax Act. 8. Aggrieved by the order of Ld. CIT(A), the assessee is in appeal before us. 9. Learned Counsel for the assessee, argued that reasons recorded in re- assessment is bad-in-law, as there is no tangible material coming from the record for assessment year (AY) 2012-13. Therefore, there is no application of mind in the reasons recorded by the assessing officer. Hence, re- assessment proceedings should be quashed. 10. On merit, Ld. Counsel submitted that assessee has submitted various documents before the Assessing Officer and explained the transactions. Hence, there should not be any addition in the hands of assessee. 11. On the other hand, Ld. Sr.DR for the Revenue argued that reasons were recorded as per the provision of law. Hence, there is no infirmity in the reasons recorded by Assessing Officer. 12. On merit, Ld. Counsel relied on the findings of the Assessing Officer. 13. We have heard both the parties and perused the materials available on record. We note that Assessing Officer has recorded the reasons observing as follows: " GOVERNMENT OF INDIA MINISTRY OF FINANCE INCOME TAX DEPARTMENT OFFICE OF THE INCOME TAX....
X X X X Extracts X X X X
X X X X Extracts X X X X
....14,440/- on 30.09.2012 in the ITR 3. On perusal of the ITR 3 filed by the assessee and considering the returned income for the A.Y 2012-13, the huge investment during the year could not be verified by this office/ the genuineness of the investment could not be ascertained. Hence, the investment to the tune of Rs. 65,40,750/- [as discussed above which was worked out after considering the satakhat executed between the assessee and the sellers during the year under consideration remained unexplained in the hands of the assessee. 4. In view of the same, I have reason to believe that the assessee has made unexplained investment to the tune of Rs. 65,40,750/- in the property during the year under consideration which is exceeding Rs. 1,00,000/- for the A.Y 2012-13, had escaped assessment and, therefore, this is a fit case for issuing notice u/s 148 of the Income-tax Act, 1961. 5. In this case, a return of income was filed for the year under consideration but no scrutiny assessment u/s 143(3) of the Act was made. Accordingly, in this case, the only requirement to initiate proceedings u/s 147 is reason to believe which has been recorded above in para-2. 5.1 It is pertinent to menti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....recorded to reopen the assessment for AY 2009-10, it appears that on the basis of one "sauda chittihi" dated 12.03.2008, seized during the search of the premises of one Shri Rajesh Vaghani, to which, one Shri Sharad Kakadia was the signatory, the assessee has sold the land having area of 14397.328 sq yard for total sale consideration of Rs. 8,92,77,830/- (Rs. 4601 per yard multiply by 14397.328 sq yard = Rs. 8,92,77,830/-). According to the AO, the sale consideration in the sale deed executed by assessee in favour of one Shri Popatbhai Kakadia was for sale consideration of Rs. 30,09,500/- and therefore, the difference of Rs. 8,62,68,330/- has escaped assessment by way of long term capital gain in the account of assessee. However, it is required to be noted that as such the "sauda chittihi" upon which the reliance has been placed, the assessee is not the signatory. Even the concerned persons who signed and/or executed the said "sauda chittihi" were not even the owners of the land in question. It has also come on record that even the said "sauda chittihi" was not acted upon. Even thereafter, the assessee has sold the property to one Shri Popatbhai Kakadia, who is also not signatory t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be any escapement of income in the year 2009-10, while disposing of the objection raised by the assessee against the reasons recorded, the AO has overruled the said objection by observing that as the document has been executed only on 11.07.2008 and therefore, the transaction pertains to AY 2009-10 and therefore, the date of execution of the document as 11.07.2008 relevant to AY 2009-10 and therefore, the AO has overruled the objection. Even otherwise, as per the decision of the Full Bench of this Court in the case of CIT v. Hormasji Mancharji Vaid[2001] 250 ITR 542/118 Taxman 276 the capital gain under Section 45 of the Act arises in the year of execution of deed and not when the same was registered with the office of the Sub-Registrar. In the said decision, the Full Bench of this Court has observed and held as under: "For the purpose of tax on capital gains under Section 45 of the Income Tax Act, 1961 transfer of immovable property of value exceeding Rs. 100 is effected on the date of execution of the document of transfer and not either on the date of presentation of the document for registration or on the date on which registration of the deed is completed. The capital gains ....