TaxTMI 
TaxTMI 
TaxTMI 
2024 (10) TMI 28
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....posed of by this common order for the sake of convenience. 3. The assessee raised the following grounds of appeal before us:- "1. That on facts and in law notice u/s 148 dated 30th March 2017 issued for reopening and reassessing total income determined in order u/s 153A dated 27th March 2015 is bad in law and void ab initio. 2. That on facts and in law the CIT(A) has erred in not appreciating that notice u/s 148 dated 30th March 2017 was issued without valid sanction u/s 151 of the Act. 3. That on facts and in law the CIT(A) has erred in upholding assumption of jurisdiction u/s 147 of the Income-tax Act, 1961 by the AO 3.1 That on facts and in law the CIT(A) has erred in not appreciating that the prerequisites of assumption of valid jurisdiction in term of first proviso and third proviso to section 147 are not met rendering issue of notice u/s 148 and reassessment orders passed pursuant thereto as bad in law. 3.2 That on the facts and in law assumption of jurisdiction u/s 147 by issuance of notice u/s 148 dated 30th March 2017 on a mere change of opinion is bad in law and void ab initio rendering the reassessment order as bad in law. 4. That on facts and in law the CIT....
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....essment year 2011-12 was filed by the assessee on 31.12.2011 declaring total income of Rs.70,87,301/-. In the said return of income, the claimed deduction u/s 54F of the Act to the tune of Rs.90 crores on the account of reinvestment made in another residential house property. The assessee during the year sold shares of FIITJEE Ltd for Rs.90 crores and reinvested in new residential house property within the stipulated time and claimed deduction u/s 54F of the Act. Accordingly, long-term capital gain was reported Rs. Nil by the assessee. 6. A search and seizure action was carried out u/s 132 of the Act on FIITJEE Group of cases on 17.12.2012. The assessee was also covered in the said search. Accordingly notice u/s 153A of the Act stood issued to the assessee on 13.08.2013. An order was passed by the ld AO u/s 153A of the Act on 27.03.2015, wherein the claim of deduction u/s 54F of the Act was restricted to Rs.30 crores and difference of Rs.60 crores was added by the ld AO. The assessee preferred an appeal before the ld CIT(A) on 22.04.2015 against the said order. The ld CIT(A) vide his order dated 28.08.2015 allowed the appeal of the assessee by directing the ld AO to delete the dis....
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....operty are separate residential properties. Consequently, it is evident that the assessee owned two residential properties on the date of transfer of original asset. Further, the assessee has utilized the amount towards purchase of residential house bearing no. E-27, Vasant Vihar, New Delhi and claimed exemption of capital gain u/s 54F. Thus, as per relevant provisions of the Income Tax Act, 1961, the assessee is not eligible to claim deduction u/s 54F on the Income Tax Act, 1961. Therefore, the undersigned has reason to believe that an amount of Rs. 90,00,00,000/- has escaped assessment within the meaning of section 147 of the Act, for the reason of failure on part of the assessee to fully and truly disclose her income for the AY 2011-12. (Rajeev Ranjan) Asstt. Commissioner of Income Tax Central Circle-06, New Delhi 8. The assessee filed elaborate objections to the said reasons recorded vide letter dated 10.10.2017, which are enclosed in pages 6 to 42 of the paper book. These objections were disposed of by the ld AO by a separate speaking order on 24.11.2017, which are enclosed in pages 43 to 48 of the paper book. Thereafter, the re-assessment was proceeded upon in the ....
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.... Goel (assessee's daughter in law) and assessee vide registered sale dated 28.01.2008. In this, the assessee was having 50% of share in the capacity of co-owner. c. D-6/5, Ground Floor, Vasant Vihar was purchased by Ms. Monila Goel (daughter in law) along with Mr. DK Goel (assessee's son) vide registered sale deed 02.07.2001. Both parties are having equal share in the said property. d D-6/5, First Floor, Vasant Vihar, New Delhi was purchased by Ms Monila Goel. Physical possession of the said property was taken over on 02.09.2014, but not registered as 100% payment is made to the seller only in financial year 2013-14. 10. We find that the lower authorities had treated the basement of the building to be a separate residential house to deny the claim of deduction u/s 54F of the Act to the assessee. First of all, the entire residential property comprising of basement, ground floor, first floor, and second floor is to be construed as a single residential property, each floor owned by several individuals. Hence, effectively there is no absolute ownership at all of any of the individuals in the subject mentioned whole residential property. All of them are only co-owners in the reside....
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.... the residents staying in ground floor, first floor and second floor. It is not the case of the revenue that basement area had been allowed by the assessee to be used by other family members on rental basis. Neither any rent was received/ assessed in the hands of the assessee either on deemed rent on fair market value under the head "income from house property". Hence, the basement area cannot be considered as a separate residential property. In view of this decision, it could be safely concluded that the assessee was owning only one house property on the date of transfer of shares of FIITJEE Ltd. Hence, there was no prohibition for the assessee to claim deduction u/s 54F of the Act for re-investment made in another residential house property. 11. There is absolutely no requirement in the law that the very same sale proceeds of shares of FIITJEE Limited should be utilised for reinvestment in another residential house property. The sale proceeds of shares could be utilized by the assessee for any purpose as per her requirement and thereafter, when the new property was to be purchased, she could either reinvest out of her other income or even by loan funds. What is required to be un....
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....lf, both before the ld AO as well as before the ld CIT(A). Hence, there cannot be any failure at all on the part of the assessee to furnish the requisite details. Accordingly, the proviso to section 147 of the Act is not satisfied at all in the facts and circumstances of the instant case. Hence, the ld AO could not have validly assumed jurisdiction u/s 147 of the Act in the facts and circumstances of the instant case. The only information in any case that is available or which is being relied upon by the ld AO for reopening the assessment is the information available on SDMC website. First of all, any information provided in any website cannot be construed as a relevant material for drawing adverse inference against the assessee. Further, the information available in the Government website about any person or any person's possession could have to be construed as an information available in public domain and cannot be construed as a fresh tangible material that had come into the possession of the ld AO warranting reopening of assessment. Hence, the reopening of assessment fails on this count also. 14. Further, we find that based on the very same information available on SDMC websit....
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....egard is placed on the decision of the Hon'ble Jurisdictional High Court in the case of CIT V. Gita Duggal reported in 357 ITR 153 (Del). Relevant portion of the said order is reproduced herein below:- "9. There could also be another angle. Section 54/54F uses the expression "a residential house". The expression used is not "a residential unit". This is a new concept introduced by the assessing officer into the section. Section 54/54F requires the assessee to acquire a "residential house" and so long as the assessee acquires a building, which may be constructed, for the sake of convenience, in such a manner as to consist of several units which can, if the need arises, be conveniently and independently used as an independent residence, the requirement of the Section should be taken to have been satisfied. There is nothing in these sections which require the residential house to be constructed in a particular manner. The only requirement is that it should be for the residential use and not for commercial use. If there is nothing in the section which requires that the residential house should be built in a particular manner, it seems to us that the income tax authorities cannot insi....