Income Tax Appellate Tribunal - Mumbai
Muniwar Abad Chrtiable Trust, Mumbai vs Asst Cit (E) 2(1), Mumbai on 6 September, 2017
आयकर अपीलीय अिधकरण, अिधकरण मुंबई " जी"
जी खंडपीठ Income-tax Appellate Tribunal -"G"Bench Mumbai सव ी राजे ,ले लेखा सद य एवं, राम लाल नेगी, ी याियक सद य Before S/Shri Rajendra,Accountant Member and Ram Lal Negi,Judicial Member आयकर अपील सं./I.T.A./784-85/Mum/2015, िनधा रण वष /Assessment Year: 2004-05 & 2005-06 M/s. Muniwar Abad Charitable Trust Asst. CIT, Exemption -2 (1) 405A/407, Jolly Bhavan No.1 6th Floor, Piramal Chambers Vs. 10, new Marine Lines,Mumbai-400 020. Lalbaug, Parel PAN:AAATM 0140 K Mumbai-400 012.
(अपीलाथ /Appellant) ( यथ / Respondent)
Revenue by: Shri Sanjay Singh-CIT-DR
Assessee by: S/Shri Porus Kaka & Manish K. Kanth
सुनवाई क तारीख / Date of Hearing: 16.06.2017
घोषणा क तारीख / Date of Pronouncement: 06.09.2017
आयकर अिधिनयम,1961
अिधिनयम क धारा 254(1)केके अ
तग त आदे श
Order u/s.254(1)of the Income-tax Act,1961(Act)
लेखा सद
य राजे
के अनुसार /PER RAJENDRA, AM-
Challenging the orders,dated 18/12/2014,of the CIT(A)-1 Mumbai the Assessee has filed the present appeals for the above mentioned two assessment years (AYs.). Assessee-is a Charitable Trust.Details of filing of returns of income returned incomes, assessed incomes, etc., can be summarized as under :-
A.Y. ROI filed on Returned Income Assessment dt. Assessed Income 2004-05 30/11/2006 NIL 27/12/2011 Rs7.80 Crores 2005-06 28/12/2007 NIL 27/12/2011 Rs.11.62 crores ITA/784/Mum/2015-AY.2004-05:
2.First effective ground of appeal(G.s OA-4) is about reopening the assessment u/s. 147 of the Act after a lapse of 4 years from the end of assessment year.Assessee,a Charitable-Trust, filed its ROI on 31/10/2004,returning Nil income.The Assessing Officer (AO) completed the assessment u/s.143(3).
Later on,he issued a notice u/s. 148 of the Act on 28/3/2011,as he was of the opinion that taxable income had escaped assessment.In response to the said notice, the assessee vide its letter,dt.31/3/2011,requested AO to consider the original return as return filed in response to the notice.On the request of the assessee,he communicated the reasons of re-opening.The assessee filed objection in that regard and challenged the reopening.As per the AO objections raised by the assessee were rejected by him,vide order,dt.15/12/2011.During the reassessment proceedings,the AO observed that the assessee had sold a plot of land,that it had received sale consideration of Rs.7.80 crores,that it had failed to invest the sale consideration of the immovable property as per the provisions of section 11(5) of the Act.He held that it was not entitled to get benefit of accumulation as per the sub clause(b) of section 11 (2) of the Act.As 784-85/Mum/15- Muniwar Abad Charitable Trust a result,sale consideration of Rs.7.80 crores,received by the assessee,was added to the total income of the assessee for the year under appeal.
3.Aggrieved by the order of the AO,the assessee preferred an appeal before the First Appellate Authority(FAA).Before him,it was argued that the reopening of assessment u/s. 147 was bad in law and illegal,that there was no failure on part of the assessee to disclose fully and truly all material facts.It relied upon certain case laws and also challenged the quantum of addition.
After considering the submission of the assessee and the re-assessment order of the AO,the FAA upheld the reopening of the assessment and held held that various essential and material facts regarding the nature and mode of capital assets held by the trust and sold out during the year were not fully disclosed,that the AO had also not verified and examined the mode and nature of acquisition of capital assets held by it, that it had not provided the full details, that it had not placed on record the necessary details and documents which could lead to the conclusion that there were material discrepancies in receipt of sale consideration and the alleged fixed deposits purchased by the assessee, that the record of cash and bank balances, reflecting common pool of funds was not sufficient to segregate the amounts and dates of Fixed Deposits as required for making claim of exemption u/s.11(1A)of the Act,that the claim of fixed deposits, classified and recorded in the balance sheet under the head cash and bank balances was incomplete disclosure, that it was misleading accounting, that there was no full and true disclosure by the assessee on the issue of sale and acquisition and subsequent compliance or condition in the context of capital assets. He referred to the cases of Girilal & Co.(300ITR); Chandrika Education Trust (224ITR);Vardhman Spng & general Mills Ltd.; South India Corporation Agencies Pvt.Ltd.(147CTR) and dismissed the ground raised by the assessee with regard to validity of reopening.He upheld the addition on merits also.
4.Before us,the Authorised Representative(AR)contended that in the original return of income the assessee had furnished details about the capital gains and of the fixed deposits, that in the note to the computation of income it had specifically mentioned that it had sold development rights of immovable properties at Mumbai for an amount of Rs.7.80 crores vide agreement for sale,dated 26/11/2002 read with development agreement dated 30/12/ 2003, that the AO was informed about the investment made by it in bank fixed deposits, that it had mentioned the fact that entire sale consideration was invested in another the capital asset i.e. the bank fixed deposit,that details of sale consideration and fixed deposits made for exemp- tion from capital gains were enclosed along with the computation of income for the year 2 784-85/Mum/15- Muniwar Abad Charitable Trust under consideration,that the AO had made further enquiries about the sale of develop-ment rights,that it had furnished the sanction letter of the Charity commissioner for sale of the property,that the AO had made enquiries about the names and addresses of the partners of the purchaser,that it had filed extract of bank statement for payment received from Valentine Developers Ltd.(VDL)along with the bank book giving details narration of all receipts and payments,that after considering the details filed by the assessee the AO had passed the order u/s.143 (3)of the Act, that there was no failure on part of the assessee to disclose the material facts,that assessee had agreed for assignment of the development rights in the part property at Mumbai to VDL subject to the sanction of the Charity Commissioner, that after getting the sanction on 17/03/2003 it entered into a development agreement on 24/12/2003, that out of Rs.7.80 crores the sum of Rs. 2 crores was received during the previous year relevant to AY. 2003-04,that Rs.5.80 crores were received in the previous year relevant to the AY. 2004-05, that it had furnished chart giving details of bank fixed deposits and mutual funds,that the AO was aware of the fact that it had received Rs. 7.80 crores on assignment of development rights,that the amounts remained invested for periods greater than six months in all cases, including renewals,that withdrawal was out of earlier fixed deposits unconnected with the sales,that after considering all these facts the AO had computed the income of the assessee at rupees nil and had allowed the benefits of section 11 (1A) of the Act.He further argued that the reasons for reopening showed total non-application of mind by the AO, that same reasons were given for a consolidated block of two years,the reasons were based on erroneous inferences drawn from the facts already disclose during the original assessment,that the objections to reopening were rejected by way of a non-speaking order,that the reassessment order did not deal with any of the submissions/ objections raised by the assessee,that notice of reopening and the reasons recorded were not based on any fresh tangible material which were not on record that it was a case of change of opinion, that while reopening the assessment the AO had not relied upon any fresh tangible material. He relied upon the cases of Jashan Textile Mills (284 ITR 542),German Remedies Ltd (287 ITR 494),Talati & Pantheky (362 ITR 362),Aroni Commercials (362 ITR 403),Dena Bank (76 taxmann.com 279), ICICI Home Finance Co.Ltd. (210 Taxman 67).He further argued that investment in fixed deposit was sufficient to claim exemption u/s.11(1A) of the Act,that no income liable to tax had escaped assessment.He referred to case of Hindustan Welfare Trusts (206 ITR 138) and East India Charitable Trusts(206 ITR 152).
3784-85/Mum/15- Muniwar Abad Charitable Trust 4.1.The Departmental Representative (DR) argued that some of the FDs were invested for short periods and some were even withdrawn prior to maturity,that the net consideration was not utilised fully in acquiring another capital asset and that assessee was entitled to claim exemption, that the AO did not examine the aspect of eligibility of exemption of capital gains in the original assessment,that he had not formed any opinion, that the reconciliation chart showing amounts received prior to AY. 2004-05 and the use of funds for mutual fund was given only in the reassessment proceedings, that furnishing of details were mentioned in the return of income would not tantamount to full and complete disclosure facts, that for reopening a completed assessment what was to be seen was the escapement of income, that an action u/s.147 of the Act was possible despite complete disclosure of material facts,that the AO could form reason to believe that income had escaped assessment by examining the very documents,that reassessment can be initiated if taxable income has escaped taxation due to oversight or inadvertence or a mistake committed by the AO during the original assess - ment proceedings,that there was no need for getting information from external sources, that for issuing notice u/s.148 information could be obtained from the return of income.He referred to the cases of Praful Chunilal Patel(236 ITR 832),Stock Exchange (227ITR906), Rajesh Jauhari Stockbrokers Private Limited(291 ITR 500),Zuari Real Estate Development and Investment Company Ltd.(373 ITR 661).
5.We have heard the rival submissions and perused the material before us.As the assessee had challenged the validity of re-opening,so,we would like to deal with the said issue.First of all we would like to refer to the reasons recorded by the AO for reopening the assessment and same read as under:
"In this case the assessee has filed its return of income for AY 2004-05 on 31.10.2004 disclosing total income at Rs.NIL.The assessment was completed u/s.143(3) of the Act on 30.11.2006 assessing the total income at Rs. 'NIL'.
On perusal of the records it is noticed that the immovable property of the assessee trust at Yerwada (Pune) being Plot No.l & Plot No.4 forming part of final plot No.88 were sold to M/s.Delta Enterprises for Rs.1162.00 Lakh vide development agreement dated 31.01.2004 read with Memorandum of Completion of Transaction dated 11.05.2004. The assessee trust stated that an entire amount of Rs.1193.78 lakhs was invested with Fixed Deposit in Development Credit Bank Limited (DCBL).
Examination of the Fixed Deposit account reveals that the entire amount is not invested in the said Bank as detailed below:
A.Y. 2001-02 2002-03 2003-04 2004-05 2005-06
Fixed Deposit with 62,00,000/- 1,18,24,504/- 8,34,25,000/- 23,08,30,474/- 22,10,67,627/-
DCBL
Increase - 56,24,504/- 7,16,00,496/- 14,74,05,475/- (-)97,62,848/-
Further examination reveals that during financial year relevant to AY 2004-05, the assessee trust has invested an amount of Rs.780.00 lakh received on account of sale of development rights of Bandivali Property vide agreement for sale dtd. 26.11.2002 read with Development 4 784-85/Mum/15- Muniwar Abad Charitable Trust Agreement dtd. 30.12.2003. If both amounts of Rs.1973.78 lakhs (1193.78 +780 lakh) are considered for the purpose of investment in fixed deposit then the amount of FD will be increased to Rs.2808.03 lakh as compared to .FD amount of Rs.834.25 lakh shown in 2003-04. However, the FD amount shown in the A.Y.2005-06 was Rs.2210.68Iakh. Thus, there is a difference of Rs.5,97,35,3731- which is remained to be invested in FD therefore the assessee trust is not entitled for the exemption. Further, amount invested in FD were for the short period of 90-180 days under short term deposit. After maturity, many FOR has not been reinvested and some FOR's has also been withdrawn as premature closing. The deposit for the period of not less than 3 years kept with SBI or any subsidiary Bank or any Nationalized Bank as per provision of I. T.Act is not allowable for exemption. Thus, investment pattern as per section 11 (5) of the I. T.Act applied by the trust is not correct and exemption as claimed by the trust is not allowable.
Without prejudice to the above, under the provision of section 11(lA) of the I. T.Act, where capital asset being property held under trust wholly for charitable/religious purposes is transferred and the whole or any part of the net consideration is utilized for acquiring another capital asset being property to be so held then capital gain arising from the transfer shall be deemed to have been applied to charitable/religious purposes. Since the net consideration have not been utilized by the assessee for another capital asset being property, therefore, exemption claimed by the assessee is not correct. In view of the above, assessee is not entitled for exemption on the sale consideration of Bandivili (Mumbai)/Yerawada (Pune )[for 05-06] property. However in the assessment order the assessee's said claim of the exemption has been allowed and thereby undue exemption was allowed to the assessee. Thus income of the assessee has escaped the assessment in view of the Clause (c)(iv) of Explanation 2 to proviso to Sec 147 of the Act which reads as under:-
Explanation 2. - For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely:-
(c) where an assessment has been made, but-
(iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed.] In view of the forgoing I have reason to believe that the income of the assessee has escaped the assessment for A. Y. 2004-05. The assessee has failed to provide the information in the return such as period of investment in FD and other details. Therefore the cause of escapement of income within the meaning of section 147 of Income Tax Act, 1961, is· failure on the part of the assessee to make full and true disclosure of material facts as far as the above issue is concerned.
The sanction u/s.151(1) of the Income Tax Act, 1961, is solicited for issuance of notice u/s.148 of the Act, from the DIT (Exemption) as the assessment for the year under consideration has been finalized u/s.143(3) of the Income Tax Act, and a period of four years have lapsed from the end, of the relevant assessment year. "
5.1.The power to reopen an assessment u/s.147 of the Act is in the nature of an exception to the general principle that an assessment order once made would be final.The effect of reopen- ing is to partly vacate or set aside the original order of assessent and to substitute it.No doubt, escapement of income includes both non-assessment/underassessment,but it is mandated by the provisions of the Act that reasons to believe must necessarily show,indicate and communi
-cate why and for what grounds/cause any income has escaped assessment. Reasons recorded must be germane,pertinent and disclose a prima facie belief that income has escaped assess - ment.The relevance of reason has to be established.So,if the reasons do not show any nexus or connection with the allegation of underassessment they fall in the realm of suspicion, surmise and conjecture.It is said that reasons to believe must have a rational connection and should be relevant for the formation of a belief regarding escapement of income and should 5 784-85/Mum/15- Muniwar Abad Charitable Trust not be extraneous or irrelevant,otherwise they will be considered as invalid since they do not meet the statutory prerequisites.The policy of law is that there should be finality in all legal proceedings.Thus, stale or irrelevant issues should not and cannot be a ground to reactivate closed and concluded proceedings.Formation of rational belief that income chargeable to tax had escaped assessment is a condition precedent for validly initiating reassessment proceed - ings.In short,the validity of the reassessment proceed -ings has to be tested on the basis of the underlying reasoning stated and recorded for opening of the reassessment.
5.2.In GKN Driveshafts (India)Ltd.(259 ITR 19),the Hon'ble Supreme Court has laid down that when a notice u/s.148 of the Act,is issued, the proper course of action for the noticee is to file a return and if he so desires,to seek reasons for issuing notices.The AO is bound to furnish reasons within a reasonable time.On receipt of the reasons,the noticee is entitled to file objections to issuance of notice and the AO is bound to dispose of the objections by passing a speaking order. Explanation 1 to section 147 lays down that mere production of the books of account or other evidence from which the AO could,with due diligence, have discovered certain facts would not amount to disclosure within the meaning of the provision. Explanation 2 to section 147 enumerates the cases where it would be presumed that income chargeable to tax has escaped assessment.As per the Hon'ble Courts assessees are duty bound to disclose primary facts necessary for assessment.If they disclose primary facts,it is for the AO to make the necessary enquiries and draw proper inferences as to whether the income returned is correct or not.The term "failure" on the part of the assessee is not restricted to the Income-tax return and the columns of the return or the tax audit report.The expression "failure to fully and truly disclose material facts" also relates to the stage of the assessment proceedings and there can be omission and failure on the part of the assessee during the course of the assessment proceedings.(376 ITR 131).
5.3.It is the duty of the AO to make an enquiry and if he did not make an enquiry,it is a case of oversight and it could not be said that the income chargeable to tax had escaped assess- ment by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts.Hon'ble Allahabad High Court,in the case of Chokani Brothers (367 ITR
230)has held as under:
"As per the provisions of the Act an AO is entitled to re-assess an income on the ground that owing to some mistake in the first assessment income has escaped assessment.But income cannot be held to have escaped assessment merely on the ipse dixit of the AO.It is for him to establish to his own satisfaction on the assessment and subsequently before any Appellate Tribunal that income has escaped assessment; it is not for the assessee to prove that the original assessment was right and that no income has escaped assessment."6
784-85/Mum/15- Muniwar Abad Charitable Trust Even in cases where the AO has made a mistake or has made an error in assessing the income of an assessee,recourse to section 147 of the Act is not available and the appropriate course would be for the Commissioner to pass an order u/s. 263 of the Act, if he finds that the assessment order is erroneous inasmuch as its is prejudicial to the interest of the Department. (383 ITR 197) 5.4.As per settled principles of taxation-law,when a notice for reassessment is challenged,the burden is on the Revenue to establish that the jurisdictional requirement stands satisfied.So far as reason to believe on the part of the AO is concerned,at the stage of issuing the notice only a prima facie and not a conclusive case of income escaping assessment should be established to turn down a challenge to the reopening notice.
5.5.Now,we would like to refer to some of the cases that deal with reopening.First,we are referring to the case of Nitish Surendrabhai(387 ITR 99) of Hon'ble Gujarat High Court.In that matter the Hon'ble Court has held as follow:
".....in the notice for reassessment the reasons started with narration 'on verification of the case record .(emphasis by us) . .' Thus,the conclusions of the Assessing Officer were based on verification of the case record.In other words, there was no material outside the assessment proceedings which enabled the Assessing Officer to conclude that income chargeable to tax had escaped assessment. This element would be crucial since notice for reopening had been issued beyond a period of four years from the end of the assessment year.Quite apart from the assessee's placing full material at the disposal of the Assessing Officer,the claim was also examined by the Assessing Officer during the assessment proceedings.Having accepted the claim in law,but having made partial disallowance considering the facts, it was thereafter not open to the Assessing Officer to issue notice for reopening, that too,without any additional material which would suggest that the assessee had made a false declaration or provided inaccurate particulars."
We would also like to refer to the case of United Shippers (371 ITR 441).In that matter the AO had passed an assessment order u/s.143(3).In the course of the assessment proceedings,he called upon the assessee to submit a brief note on the nature of its business.The assessee had categorically disclosed the nature of its business activity as being engaged in shipping operations.The assessee in various documents,as sought by the AO in the course of assessment proceedings,had disclosed the nature of its activity to be operation of ships. On the basis of this material it had made a claim for deduction u/s.33AC justifying its claim being engaged in shipping operations. Claim was supported by the material made available to the AO.He recorded an opinion that the assessee was engaged in shipping operations so as to make it eligible for deduction u/s. 33AC of the Act.Later on,he issued a notice to the assessee u/s.148 of the Act as he was of the opinion that taxable income had escaped assessment.A 7 784-85/Mum/15- Muniwar Abad Charitable Trust writ petition,challenging the reopening was filed by the assessee before the Hon'ble High Court. Quashing the re-opening Hon'ble Bombay High Court held as under:
"When an assessment is sought to be reopened after the expiry of four years from the end of the relevant assessment year, the proviso to section 147 of the Income-tax Act, 1961, stipulates a requirement that there must a failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of income for that year. This is the primary and the jurisdictional requirement being the mandate of the proviso to the provisions of section 147 . .............the reopening of the assessment was bad in law as there was no reason to believe that income chargeable to tax had escaped assessment. This was so as the entire exercise for reopening of the assessment emanated from a change of opinion. The notice was issued u/s. 148 by the AO after the expiry of a period of four years from the end of the relevant assessment year. The reasons as recorded by the AO, to reopen the assessment, even when they were read in its entirety did not indicate that the assessee had not disclosed fully and truly all the material facts. Therefore, ex facie on this ground alone the notice could be said to lacking in its foundation for any further enforcement......the reopening notice was issued by the AO on the basis of the letter of the Commissioner (Appeals), wherein he had extracted the very information as furnished by the assessee in regard to the nature of its business in shipping. This disclosure was in fact identical to the disclosure as made by the assessee in response to the notice of the AO u/s. 142(1) which raised various queries in the course of assessment proceedings for the assessment year 2000-01. Therefore, the AO's attempt to reopen the assessee's assessment on the assessee's own disclosure could in no manner be termed an appropriate exercise of his jurisdiction and authority u/s. 147 so to reopen the assessment beyond the period of four years as this could in no manner be said to be any failure on the part of the assessee to disclose fully and truly all the facts necessary for assessment. Hence, the notice was to be quashed and set aside."
5.6.When a notice for reassessment is challenged, the burden is on the Revenue to establish that the jurisdictional requirement stands satisfied.We have,in earlier paragraphs,noted down the principles governing re-opening of the assessments.Even if one of the numerous jurisdictional requirements necessary for the issue of reopening notice is not satisfied, the reopening of an assessment fails.The sustainability of the reopening notice would be tested only on the basis of the reasons recorded at the time of issuing the notice.
6.After considering the principles governing the reopening,now,we would like to consider the facts of the case under appeal.We find that the AO has not referred to any material, other than what was examined in the initial round of assessment proceedings,for forming his belief that the assessee's income had escaped assessment.The AO's belief was based solely on the basis of material already examined by him during the first round of assessment proceedings.The notice issued u/s.148 starts with following sentence:
"On perusal of the records it is noticed that......
It clearly shows that the notice was not issued on the basis of new tangible material,but on the reappraisal of the same material.
6.1.We find that the assessee had filed detailed objections against re-opening.But,the AO had not passed a speaking or reasoned order as to why the objections were not sustainable.Merely 8 784-85/Mum/15- Muniwar Abad Charitable Trust stating that objections are devoid of merit is not sufficient.Observations in that regard are to be supported with solid reasons.
6.2.We find that the AO has not established the failure of the assessee to disclose truly and fully the material facts necessary for making original assessment.The failure of the assessee is not only to be alleged but has to be demonstrated by positive evidences.The AO has used the terminology used in the section,but has not explained as to how the assessee had failed i.e. which material facts were not disclosed.All the facts about sale of development rights and investments were produced and deliberated upon during the original assessment proceedings.
6.3.Besides,we find that the issue of sale of development rights and investment of sale proceeds in form of FDR.s was dealt with by the AO in great details in the original assessment.A perusal of page no.s 14 and 84 of the PB. clearly reveal that the assessee had filed various details of the transaction including the details of FDR.s on 02.08.2006 and 20.09.2006 before the AO.As per page 3 of the paper book the note in the computation of income for the year under appeal contained the details about the transaction.The note read as under:
"We have sold development rights of immovable property being Bandivali Property, Mumbai for an amount of Rs.7,80,00,000/- vide Agreement for Sale dated 26th November,2002 read with Development Agreement dated 30th December,2003. The above property was purchased on 27thJanuary, 1976. We have spent further amounts from time to time and the proportionate cost of above property in our books on 30th December, 2003 was Rs. 25, 99, 435/-. We have invested the above sale consideration of Rs.7,80,00,000 in the bank fixed deposits with Development Credit Bank Ltd as per statement attached,........since the entire sale consideration is invested in other capital asset being the bank fixed deposit, the capital gain is exempt."
Pg. 5 of the PB contains the details of dates of receipt of consideration,amounts dates of deposits and amounts invested by the assessee during the year under consideration.Vide its letter,dated 02/08/2006, the assessee had filed detailed note on sale of the property (Pg.15-16 of the PB),order of the charity commissioner sanctioning the sale of property,dated 17/ 03/ 2003(Pg.17-38)and a copy of sale agreement with VDL(Pg.39-83 of the PB).Later on,vide its letter,dated 20/09/2006,the assessee had filed details about names and addresses of the partners of VDL,copies of fixed deposits with Development Credit Bank (Pg.87-121of the PB),a copy of bank book giving detailed narration of all the receipts and payments (Pg.128- 161 of the PB).It was also emphasised that all the deposits were for the term exceeding 6 months including renewals.It is also found that it had disclosed receipt of compensation of Rs.31.78 lakhs for assigning the development rights in respect of an adjacent plot on which there was a reservation.The assessee had renewed certain earlier fixed deposit and same had 9 784-85/Mum/15- Muniwar Abad Charitable Trust no connection with the compensation received on sale of plot of land.After considering the above submissions of the assessee and after deliberating upon the documents furnished by it,the AO had passed scrutiny assessment.He had formed an informed opinion that it was entitled to benefit of the provisions of section 11 of the Act and that it had made investment on sale of one kind of assets in other assets within the stipulated time and in prescribed manner.Later on,he issued a notice u/s.148 of the Act and has reappraised the same facts and has reached on a different conclusion.In our opinion,It is a clear case of change of opinion. Not only this,there is no failure on part of the assessee to disclose fully and truly the material facts for the year under appeal,as it had filed all the details of the impugned transaction.
Considering the peculiar facts and circumstances of the case,we are of the opinion that there was no failure on part of the assessee to disclose fully and truly the material facts,so,the reassessment proceedings,initiated by the AO in its case under appeal,are not valid.Reversing the order of the FAA,we decide the first effective ground of appeal in favour of the assessee.
7.As we have held that the reassessment proceedings were invalid,so,we are not deciding the other issues raised by the assessee.
ITA785/Mum/2015,AY.2005-06:
8.Facts for the case under appeal are indetical-the only difference is the location of property sold and the sale price received.During the year a plot of land was sold in Pune for Rs. 11.93 crores.All other factors are identical to the facts of earlier year.So,following that order,we decide the effective ground of appeal in favour of the assessee and hold that the order passed by the AO u/s.147 was invalid.
As a result,appeal filed by the assessee for both the AY.s stand allowed. फलतः िनधा रती ारा दोन िन.व.के िलए दािखल क ग अपील मंजूर क जाती ह .
Order pronounced in the open court on 6th September, 2017.
आदेश क घोषणा खुले &यायालय म (दनांक 06 िसतंबर , 2017 को क गई ।
Sd/- Sd/-
(राम लाल नेगी / Ram Lal Negi) (राजे / Rajendra)
याियक सद य / JUDICIAL MEMBER लेखा सद
य / ACCOUNTANT MEMBER
मुंबईMumbai; (दनांक/Dated : 06.09 .2017.
Jv.Sr.PS.
आदेश क ितिलिप अ ेिषत/Copy of the Order forwarded to :
1.Appellant /अपीलाथ* 2. Respondent /+,यथ*
10
784-85/Mum/15- Muniwar Abad Charitable Trust
3.The concerned CIT(A)/संब/ अपीलीय आयकर आयु0, 4.The concerned CIT /संब/ आयकर आयु0
5.DR " G " Bench, ITAT, Mumbai /िवभागीय +ितिनिध, खंडपीठ,आ.अ.&याया.मुंबई
6.Guard File/गाड फाईल स,यािपत +ित //True Copy// आदेशानुसार/ BY ORDER, उप/सहायक पंजीकार Dy./Asst. Registrar आयकर अपीलीय अिधकरण , मुंबई /ITAT, Mumbai.
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