TaxTMI 
TaxTMI 
2024 (8) TMI 1081
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.... short). The ground of challenge is that the impugned notice is without jurisdiction, without complying with the preconditions required for initiating proceedings under Section 148 of the IT Act and that the same have been initiated without any material on record. 4. The facts in brief are that the petitioner filed a Return of Income (ROI) on 31.03.2017 declaring a total income of Rs.17,57,864/-. The petitioner disclosed a sale consideration of Rs.2,95,07,000/- and arrived at a capital gain of Rs.16,54,200/- after reducing cost of acquisition with indexation at Rs.2,78,52,800/-. 5. On 14.08.2018, survey action under Section 133A of the IT Act was carried out in the case of M/s. Adwalpalkar Constructions & Resorts Pvt. Ltd. In the post-survey proceedings, it was found that by a Sale Deed cum exchange executed on 20.01.2015 between the petitioners and M/s. Adwalpalkar Constructions & Resorts Pvt. Ltd., the actual payment made by M/s. Adwalpalkar Constructions & Resorts Pvt. Ltd. to the petitioners was Rs.3,59,50,000/-. According to the Assessing Officer, the petitioner has not disclosed the amount of Rs.64,43,000/- (Rs.3,59,50,000/- - Rs.2,95,07,000/-) in her ROI dated 31.03.20....
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....itioner and her late husband were governed by the Portuguese Civil Code applicable to the residents of Goa. (b) Ignoring the registered sale deeds which are available in the public domain and information regarding which would have been clearly transmitted to the Income Tax Department, clearly show that the original petitioner was only a 50% owner of the properties. (c) Ignoring the fact that sale consideration corresponding to her share of 50% had been duly offered in the Return of Income and hence there was no escapement of income. (d) Comparison of Rs.3,59,50,000/- (total sale consideration as per Section 50C for property no. II) with Rs.2,95,07,000/- (original petitioner's share in sale consideration of all three properties) is an erroneous comparison. In support of his submissions, learned counsel relied upon the following decisions: (i) Nivi Trading Ltd. V/s. Union of India (2015) 375 ITR 308 (Bom.). (ii) Ankita A. Choksey V/s. ITO & Ors. (2019) 411 ITR 207 (Bom.) (iii) Smt. Nirupa Udhav Pawar & Anr. V/s. ACIT & Ors. WP No.1145 of 2017 decided on 06.10.202. 10. On the other hand, Ms Susan Linhares learned counsel ....
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....tion 143 (1) of the Act by intimation or assessed by scrutiny under Section 143 (3) of the Act. Further, the reasons to believe that income chargeable to tax has escaped Assessment must be on correct facts. If the facts, as recorded in the reasons are not correct and the assessee points out the same in its objections, then the order on objection must deal with it and prima facie, establish that the facts stated by it in its reasons as recorded are correct. In the absence of the order of objections dealing with the assertion of the assessee that the correct facts are not as recorded in the reason, it would be safe to draw an adverse inference against the Revenue." 13. In Smt Nirupa Udhav Pawar & Anr. V/s. The Assistant Commissioner of Income Tax & Ors. (supra), this Court in para 23 held as under: "23. This Court, in a catena of decisions beginning from Hindustan Lever Ltd. v. R.B. Wadkar, Asstt. CIT (No. 2) - 268 ITR 332 has held that the notice for reopening of assessment would stand or fall based on the reasons recorded at the time of issuing notice for reopening of assessment. This Court has held that the reasons are required to be read as recorded by the assessing o....
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....closed an amount of Rs.64,43,000/- in her return of income filed. ...". Accordingto learned Counsel for the petitioner, recorded reasons contain the following patent errors which make it clear that no income chargeable to tax has escaped assessment: i. Ignoring that the original petitioner only had 50% share in the Properties since the original petitioner and her late husband were governed by the Portuguese Civil Code applicable to residents of Goa. ii. Ignoring the sale deeds which are available on record clearly show that the original petitioner was only a 50% owner of the Properties. iii Ignoring the fact that sale consideration corresponding to her share of 50% had been duly offered in the Return of Income (Pg. 236 to 238) and hence, there was no escapement of income. iv. Comparison of Rs.3,59,50,000/-(Total sale consideration as per sec. 50C for Property No. II) with Rs.2,95,07,000/- (Orig. Petitioner's share in sale consideration of all 3 Properties) is an erroneous comparison. 16. Learned Counsel for the petitioner submitted that the order dated 16.07.2021 suffers from the aforesaid jurisdictional error. So far as the reason cited b....
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....t the original petitioner is governed by the Portuguese Civil Code has been duly brought before the respondents. In our opinion, mere non-mention of the same in the return of income would not give rise to a situation where the tax on the sale of property beyond the share of the original petitioner could be taxed in her hands. The respondents do not appear to have disputed that the original petitioner was indeed governed by the provisions of the Portuguese Civil Code and this was already on record of the Revenue (Exhibit E/97). Moreover, the petitioner's husband had passed away way back in the year 1986 and the share of her husband had devolved from the date of his demise equally on his children. This position was also known to the Revenue when their return of income was filed. 19. The next reason cited by the Revenue for rejecting the explanation is, "Copy of the Sale Deed was not available at the time of recording of reasons". We find that even such reasoning is fallacious and not tenable in law. The information from the office of the Sub-Registrar's for any registration is duly transmitted to the respondents. The execution of such Sale Deed was already on record. In su....