TaxTMI 
TaxTMI 
2025 (6) TMI 1123
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....nd in law, the Ld. CIT (A) has erred in upholding the conduct of proceeding under section 148A of the Act and issuance of notice under section 148 of the Act by the Jurisdictional Assessing Officer (JAO) as against the Ld. AO in faceless manner as required by e- Assessment of Income Escaping Assessment Scheme, 2022 and Faceless Jurisdiction of Income-tax Authorities Scheme, 2022. The notices issued and the consequent order is tainted with procedural lapses, hence void and therefore, deserves to be quashed. 2. In the facts of the case and under the circumstances and in law, the Ld. CIT(A) has erred upholding the conduct of the proceedings under section 148A of the Act, issuing notice under section 148 of the Act by the JAO and passing order by the Ld. AO under section 147 of the Act. The information obtained and relied upon is misleading and incorrect and therefore, the very initiation of the proceeding stands vitiated and the reassessment order passed in case of the appellant is bad in law. 3. In the facts of the case and under the circumstances and in law, the Ld. CIT(A) has erred in upholding the Ld. AO's action in relying upon the information obtained by the JAO and the ....
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....date of hearing." Delay condonation : 1.1 There is a delay of 16 days in filing appeal before this Tribunal. We have perused the submission and found that there is sufficient and reasonable cause for the delay. Accordingly, the delay is condoned. Submission of ld.AR : 2. Ld.AR for the assessee submitted that CIT(A) has failed to appreciate the submission of the assessee. Ld.AR submitted Affidavit of the assessee. 2.1 Ld.AR pleaded that the Notice u/s. 148 dated 13/04/2022 and the order is bad in Law.Ld.AR relied on the order of Hon'ble Supreme Court in the case of Rajeev Bansal and Hon'ble High Court. 2.2 Ld.AR's written submission on merits of the addition is as under : "Even as per the income-tax Department's information, I did not have any taxable income besides the alleged sale of impugned immovable property-only Rs. 11k interest income [Page 11 of Paperbook, Para 1, Page 1 of Reassessment Order] In fact, the impugned immovable property is sold by my father Mr. Dilipkumar Hiralal Agarwal Saraf [PAN: AELPA1854K], who has offered the same to taxation fully and paid the relevant capital gains tax as Your Honors can clearly see from the ITR return filed by Mr. Dilip....
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....y taxed assessee. Findings & Analysis : 4. We have heard both the parties and perused the records. Assessee is an individual and has not filed Return of Income for A.Y.2015-16 u/s. 139(1) of the Act. Brief Facts of the case are as under : 4.1 It is a fact that Assessing Officer issued notice u/s 148 based on the information regarding sale of immovable property. It is noted from the Assessment Order that the Assessing Officer was having copy of the impugned 'Deed of Sale' dated 25 July 2014, which the Assessing Officer obtained after the Order u/s 148A(d) was passed and Notice u/s. 148 dated 13/04/2022 was issued. The sale consideration mentioned in the said 'Deed of Sale' is Rs. 1,20,00,000/- only. Following persons are referred as vendors in the impugned Deed of Sale : * Dilipkumar Saraf * Mrs. Chitra Dilipkumar Saraf-wife of Dilipkumar Saraf * Mrs. Vaishali Keshav Kulkarni- daughter of Dilipkumar Saraf. * Ms.DeepaliDilipkumar Saraf- daughter of Dilipkumar * Mr.RahulDilipkumar Saraf- son of Dilipkumar Saraf. PAN numbers are mentioned and copies of PAN cards are enclosed with impugned Deed of Sale. 4.2 We have studied the impugned Sale deed and noted that the copies....
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....16 (Notice No-ITBA/AST/F/148A(SCN)/2021-22/104220928 4(1)), requesting for certain details from the appellant, in connection to the information obtained by the JAO from the Insight Portal. The information mentioned that the appellant has sold an immovable property during the financial year (FY) 2015-16 amounting to Rs. 3,60,00,000/- No details of such transaction such as date of document, document number etc, were provided to the assessee. 2. The fact was that, during the FY 2014-15, the assessee's father Mr. Dilipkumar Agarwal having PAN. AELPA1854K has sold immovable property for Rs. 1,20,00,000/- vide document no. 4859/2014 registered at the Sub Registrar, Haveli 17 on 25/07/2014. The assessee's name was appearing in the document along with her mother, brother and sister as only family members for the purpose of giving consent for the said sale of the property. The said Mr. Dilipkumar Agarwal received the entire consideration of Rs. 1,20,00,000/- against the sale transaction in his bank account. Mr. Dilipkumar Agarwal had filed his income tax return disclosing the Capital Gain arising from the said sale transaction. Thus, the transaction of the sale of immovable property perta....
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....ted 13.04.2022. The relevant paragraphs of the said order are reproduced here as under : Quote "01. Brief details of the Assessee. The assessee VAISHALI KESHAV KULKARNI ATJPK4584A) is an Individual. No return of income was filled by the assessee for AY 2015-16 The case of the assesses was picked up in Non-Filing of Return (NMS) under priority Pt from Insight portal in accordance with the risk management strategy formulated by the CBDT (Board due to the large transactions done by the assessee during A.Y 2015-16 02. Brief details of the information collected/received by the AO: In this case, the information is received through INSIGHT Portal under Non-Filing of Return(NMS) under priority P1 in accordance with the risk management strategy formulated by The CBDT (Board). The information is as per table given below : Code Info Amount(Rs.) AIR-007 Sold immovable property valued at Rs. 30,00,000 or more 36000000 TDS-194A TDS Statement - Interest other than interest on securities (Section 194A) 11125 Total Rs.36011125/- 03. Inquiry by the AO: On verification with the departmental websites of e-filing portal, ITBA and Insight, it is noted that the assessee ha....
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....i, Pune - the ITO would have understood the entire nature of transaction. However, the ITO failed to obtain the same during the proceedings u/s. 148A of the Act. The Competent Authority who approved it had also not bothered to verify the same. 7.2 This also demonstrates that the 'so called Insight Information' relied by the ITO is not reliable, it is factually incorrect. That may be the reason that Parliament in its wisdom has kept a safe guard in the form of Section 148(a) where in the ITO is required to conduct inquiry. 7.3 Under Section 148A(a) of the Act, the Assessing Officer is required to conduct an enquiry to arrive at the decision that there is income chargeable to tax which has escaped assessment, but in this case, Assessing Officer has not conducted an enquiry. 7.4 The Words used in the Section is "Income chargeable to Tax which has escaped the assessment", however, the Entire Sale Consideration received on account of Sale of immoveable property can never be Income Chargeable to Tax, because as per Section 48 of the Income Tax Act, cost of acquisition or Index Cost of Acquisition needs to be reduced from Sale Consideration. However, the ITO has not bothered to underst....
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....alpur Bench's order has attained finality at the hands of the Apex Court in SLP No(C). 38708 of 2024 on 17.09.2024 and therefore, the order of the learned Single Judge has secured imprimatur of the Apex Court. So contending, he seeks dismissal of the appeal. 4. Having heard the learned counsel for the parties and having perused the appeal papers, we are broadly in agreement with the views of the learned Single Judge, inter alia, to the effect that while assessing the quantum of escaped income in matters like this, the amount mentioned in the registered conveyance cannot be straightaway taken without deducting the cost of acquisition therefrom. This apart, as rightly submitted by the learned counsel for the assessee, the Jabalpur Bench of Madhya Pradesh High Court, in the case supra, followed the impugned order of the learned Single Judge of this Court and later the challenge by the Revenue before The Apex Court of the Country has been repelled. In the above circumstances, there is no merit in the appeal and accordingly it is dismissed, costs having beenmade easy." Unquote. 9.2 The Hon'ble High Court of Madhya Pradesh in the case of Nitin Nema Vs. PCIT [2023] 458 ITR 690 (M....
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....s in the field of finance and taxation, has committed such elementary mistake leading to harassment to the assessee who has been compelled to file the present avoidable piece of litigation. Moreso, this Court has been compelled to decide this frivolous matter wasting its precious time and energy which could have been utilized in more pressing matters ." Unquote. 9.3 The Hon'ble Bombay High Court has observed in the case of Smt. Sunita Purushottam Virgincar Vs. ITO 466 ITR 238 (Bom) vide order dated JULY 4, 2024 as under : Quote, " 9. 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 such a case if the respondents fail to take note of the document which was available for transmission to the respondents from the Sub-Registrar's office, in our view, the assumption of jurisdiction will have to be regarded as erroneous. In any case, we f....
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.... per the Assessing Officer the case has been selected for Scrutiny u/s 147 of the Income tax Act to verify the Capital gain on account of sale of immovable property. It means the Notice u/s 148 was issued just for verification. There have been changes in the 'reopening ' procedure in 2021. After the amendment Section 148A was introduced w.e.f01/04/2021. The section 148A is as under : "148A. The Assessing Officer shall, before issuing any notice under section 148,- (a) conduct any enquiry, if required, with the prior approval of specified authority, with respect to the information which suggests that the income chargeable to tax has escaped assessment;" 11.2 Thus, as per Section 148A(a) the Assessing Officer has to conduct inquiry with respect of information . In this case the AO has not conducted any inquiry before issuing the Notice u/s 148 dated 13/04/2022 as is evident from the above paragraph of the Assessment Order. 11.3 The Hon'ble Bombay high Court in the case of Chandni J. Ahuja Vs. UOI [2024] 160 taxmann.com 404(Bombay) vide order dated 01/03/2024 has held as under : Quote, " 9 In the case at hand, the Assessing Officer does not say that any income has escaped asse....