Daljeet Singh, New Delhi vs Assessee

1 ITA No.771/Del/2015

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH 'B': NEW DELHI

BEFORE SHRI GEORGE GEORGE K., JUDICIAL MEMBER and SHRI B.C. MEENA, ACCOUNTANT MEMBER

ITA No.771/Del/2015 (ASSESSMENT YEAR : 2007-08)

Shri Daljeet Singh, vs. ACIT, Central Circle 17, 232 - B, 3rd Floor, New Delhi. Okhla Indl. Estate, Phase - III, New Delhi - 110 020.

(PAN : ABJPS1140B)

(APPELLANT) (RESPONDENT)

ASSESSEE BY : S/Shri Salil Aggarwal & Shaliesh Gupta, Advocates REVENUE BY : Smt. Parwinder Kaur, Senior DR

Date of Hearing : 19.03.2015 Date of Pronouncement : 18.05.2015

ORDER

PER SHRI GEORGE GEORGE K, JM:

This appeal, at the instance of the assessee, is directed against the order of

the CIT (A) XXVI, New Delhi dated 13.01.2015. The relevant assessment year

is 2007-08.

2. The assessee in his grounds of appeal has raised seven grounds. During

the course of hearing, the learned AR did not press ground No.6. Hence, 2 ITA No.771/Del/2015

ground No.6 is dismissed as 'not pressed'. Ground No.7 is regarding levy of

interest under sections 234A, 234B and 234C of the Act. Levy of interest under

the above provisions are consequential in nature and, hence, ground No.7 is

dismissed as no adjudication is required on the same. The surviving grounds,

namely, ground Nos.1 to 4 relate to theissue of validity of the re-opening of the

assessment by issuance of notice u/s 148 of the Act. Grounds 5 to 5.3 relate to

the issue of the addition sustained by the CIT (A) on merit amounting to

Rs.3,45,75,000/- on account of the alleged unexplained investment in a

property.

3. The assessee, an individual, had furnished his return of income on

15.11.2008, admitting a total income of Rs.8.92 crores. There was a search and

seizure operation u/s 132 of the Act dated 18.01.2007 in the premises of the

assessee. The AO had concluded the assessment u/s 143(3) of the Act on

31.12.2008 on a total income of Rs.9,00,29,900/-. Subsequently, the assessment

in this case was reopened by issuance of a Notice u/s 148 of the Act on

28.3.2013. After taking into account the assessee's contentions made during the

course of re-assessment proceedings and also the detailed reasons as recorded in

the impugned assessment order under dispute, the AO concluded the re-

assessment order u/s 143(3) r.w.s. 147 of the Act dated 26.3.2014, determining

the assessee's total income at Rs.12,38,56,450/-. The AO made an addition of

Rs.3.45,75,000/- on account of unexplained investment. 3 ITA No.771/Del/2015

4. Briefly stated, the facts with reference to the addition of Rs.3,45,75,000/-

are as follows :-

The assessee had 25% share in respect of a property at Satbari Village

and paid Rs.1 crores as sale consideration for the subject property. The property

was purchased from M/s. Space Age Technical Services Pvt. Ltd [SATSPL] on

28.3.2007 for a consideration of Rs.4 crores by the assessee (having 25% share),

Rachpal Singh ( 50% share) and Harinder Singh (25% share).There was a

search and seizure action u/s 132 of the Act in the premises of Tinna group on

11.11.2012. The seller of the impugned property namely M/S.SATSPL was

part of the group concern of Tinna group of companies. In the course of search

proceedings conducted in the premises of Tinna group of cases, the Revenue

seized a valuation report of the impugned property prepared by an Approved

Valuer, namely, Sri Ashok Raichand. The approved valuer, in his valuation

report, arrived at the market value of the said property at Rs.17.83 crores.

According to the AO, since the sale consideration recorded in the sale deed was

only Rs.4 crores for the impugned property, the balance amount of Rs.13.83

crores [i.e., Rs.17.83 - 4.00 crores] was the payment made outside the books of

account. The assessee's share being 1/4th of total value of Rs.13.83 crores, a

sum of Rs.3.45,75,000/- was added by the AO as unexplained investment u/s 69

of the Act in the hands of the assessee. While doing so, the AO brushed aside

the assessee's objection with regard to the validity of reopening of the

assessment and also on merits that the addition cannot be made merely on the 4 ITA No.771/Del/2015

basis of a report of an approved officer which was recovered from the premises

of the seller (SATSPL) without any other corroborative evidence.

5. Aggrieved, the assessee took up the issue, among others, before the CIT

(A).The CIT (A) decided the issue of validity of reopening of the assessment

against the assessee by observing that -

"5.1. On perusal of assessment records, it is evident that the earlier assessment passed u/s 143(3) on 31.12.2008 did not refer to the matter of acquisition of property by the appellant. The only Additions that were made therein were Rs 4.50 lakhs on account of the appellant possessing Rolex wrist watch: and Rs 2.98 lakhs on account of some unexplained expenditure. It was only during the search/survey on 11/11/2000 on Tinna Group that the Approved Valuer's report was found, which valued the transacted property at Rs 17.83 crores as on 1611212006, as against its reported sale consideration of Rs 4 crores on 28/3/2007, that led to the reasonable belief of the AO that the property transaction had been under-reported by the buyer and the seller, resulting in income escaping assessment. In this background, the claim of the appellant; that all material, facts had been disclosed truly and fully by him during the course of the earlier assessment proceedings, is obviously not correct. Since the matter of under-reporting in property transaction came to the notice of the department after the passing of the assessment order u/s 143(3), the AO was justified in invoking the provisions of section 147.

5.2. In response to the appellant's claim, that proceedings could not be initiated in his case since 4 years had lapsed, the AO categorically informed the appellant that the re-opening of assessment had been approved by the competent authority. Now, since the re-opening of the appellant's case was-after the, expiry of 4 years from the end of the relevant AY, in terms of the proviso to section 151 (1), the approval of the Commissioner on the reasons recorded by the AO was mandatory. As the perusal of the assessment record reveals, the reasons recorded by the AO were considered by the Commissioner and the communication of his satisfaction for issue of notice u/s 148 was communicated by letter no. 3961 5 ITA No.771/Del/2015

dated 25.03.2013, which was received by the AO on 26.03.2013. Therefore, the claim of the appellant, that the notice u/s 148 was not valid because it was issued after the expiry of 4 years from the end of the relevant A Y, was not maintainable.

5.3. Thus, by communicating the reasons for re-opening the assessment u/s 147, providing the copy of the material (the Approved Valuer's report) on the basis of which he had reasons to believe about the income escaping assessment, and by informing that the notice had been issued with the prior approval of the competent authority, the AO disposed the objection raised by the appellant in his letter filed on 2112/2013.

5.4. Sheer obduracy of the appellant in persisting with objection to the reassessment proceedings by subsequent letters filed on 13/,1/2014 and 26/2/2014, and then claiming in the appellate proceedings that the objections raised by him had not been addressed by the AO, merits outright rejection. The letters issued by the appellant, repeatedly challenging the issue of notice u/s 148, and asking for details of investigation, inquiry and findings of the AO, are evidences of his blatant obstructions to stymie the re-assessment proceedings. His submission in the Statement of Facts contained in Form 35, that he had 'placed on record various cases decided by courts' is factually incorrect because none of his letters (filed on 02.12.2013, 13.01.2014, 26.02.2014) referred to any decision of any judicial authority.

5.5. Since the AD had provided the copy of the Approved Valuer's report, on the basis of which he had formed his satisfaction to re-open the assessment, and which was found by the department during search/survey on 11111/2010 in the Tinna group, much after the assessment order u/s 143(3) had been passed on 31.l2.2008,and also because the Commissioner was satisfied on the reasons recorded by him that it was a fit case for issue of notice u/s 148, there is no merit in the objection of the appellant that the assumption of jurisdiction u/s 148 is contrary to the provisions of law or that the notice u/s 148 was improper or that the framing of the assessment order was without proper jurisdiction. Therefore, the assumption of jurisdiction u/s 148 is held to be valid. Accordingly, grounds 2 and 3 of the appeal are dismissed."

6 ITA No.771/Del/2015 6. With reference to the issue on merits, the CIT (A) adopted the market

value fixed by the approved valuer in his report which was seized during the

course search and seizure proceedings in the premises of the seller's group

namely Tinna group of cases. The CIT (A) also did not accept the DVO's

report who had fixed the value of the impugned property at Rs.1.64,28,000/-

[the DVO's report was taken by the AO during the course of assessment

proceedings of the seller]. The relevant findings of the CIT (A) with reference

to issue on merit read as follows

"6.3.4. Since it is not for the appellant, who was one of the co-buyers of the property transacted in March 2007, to have actual knowledge about the 'purpose' for which the seller (Space Age Technical Services P Ltd) might have engaged the services of the Approved Valuer in December 2006, his claim - that the value of Rs 17.83 crores determined by the Approved Valuer as the fair market value did not reflect the real value but represented inflated value to enable Space Age Technical Services P Ltd to 'obtain high finance' or 'negotiate on the basis of Inflated value' and 'get good price' for the property - lies in the realm of imagination. In any case, as evident from the sale deed, the property was not mortgaged by the seller to obtain finance. As for the 'purpose of negotiation', it may be stated that once the market value of the property became known at Rs.17.83 crores, and in the absence of distress sale, it would have been a mindless proposition for the seller to close the deal at merely Rs 4 crores.

6.3.5. In view of the above discussion, It is obvious that- the stated value of consideration at Rs 4 crores for transaction of property B-3, Ansal Villa, Village Satbari, Tehsil Mehrauli, New Delhi was not correct; that the market value determined by the Approved Valuer at Rs 17.83 crores as per the valuation report found during search/survey on the Tinna group was the actual sale consideration; and that out of Rs.17.83 crores, the buyers paid only Rs 4 crores in cheque 7 ITA No.771/Del/2015

and the balance of Rs 13.83 crores was paid ill cash out of undisclosed income. Now, since the appellant's share in the property was25%, the total consideration paid by him was held to be Rs.4,45,75,000, of which Rs.1 crore was paid through banking channel and the remaining Rs.3,45,75,000 was held to have been paid in cash .out of undisclosed income. Thus the AO was justified in adding Rs.3,45,75,000 to the total income of the appellant as unexplained investment.

6.3.6. As evident from the perusal of the assessment records, the AO gave several opportunities to the appellant to participate in the assessment proceedings, but it was the appellant who adopted recalcitrant stance. Also the claim of the appellant, that he specifically requested the AO to grant him opportunity to cross examine the seller of the property, is factually incorrect. The appellant did not make such a request, which in any case, was not maintainable since the seller was never posited by the AO as his witness.

6.3.7. Therefore, grounds 1, 4, 5, 6, 7, 8 and 10 of the appeal are dismissed."

7. Being aggrieved, the assessee has come up before us with the present

appeal. During the course of hearing, the submissions made by the learned AR

are summarized as under:

(i) that the valuation report which has been sought to be relied on by the department for re-opening of the assessment under section 148 of the Act was not a fresh or valid material which can lead to re-open of an assessment and re-assessment proceedings should be quashed on this ground along and in order to support the aforesaid proposition, the following case laws are relied upon, namely:

>ACIT v. Dhariya Construction Co - 328 ITR 515 (SC); >MahashayChunnilal v. DCIT - 362 ITR 314 (Del)

(ii) that the AO had to specify in the reasons recorded, as to which material has not been disclosed by the assessee during the course of original assessment proceedings u/s 143(3) of the Act and that in the present case, the said disclosure by the 8 ITA No.771/Del/2015

AO was absent in the reasons recorded and, thus, the reassessment order requires to be quashed on this count alone - Refer: Global signatures Cable (India) Ltd. v. DCIT [368 ITR 609 (Del)]

(iii) that the reopening of the assessment was merely based on change of opinion of the AO as all the necessary details were filed before the AO during the course of original assessment proceedings and, as such, the reopening of the assessment was bad in law - Refer: CIT v. Usha International Ltd [348 ITR 485 (Del)];

(iv) that even on merits, the addition made by the AO was not sustainable in law as the AO had solely placed reliance on the report of the valuation officer and in doing so, the AO had failed to discharge his initial burden which rests upon him u/s 69 of the Act. Since, the AO had failed to conduct further enquiries and investigation to prove that the alleged payment had been made by the assessee, no addition could have been made in the hands of the assessee. Refer:

(a) CIT v. Naveen Gera - 328 ITR 516 (Del);

(b) CIT v. Puneet Sabharwal - 338 ITR 485 (Del);

(c) CIT v. Suraj Devi - 328 ITR 604 (SC);

(d) CIT v. Ved Prakash Chowdhary - 305 ITR 245 (Del); &

(e) CIT v. Naresh Khattar HUF - 261 ITR 664 (Del)

(v) that notice u/s 143(2) of the Act dt. 18.3.2014 was issued by the AO by ignoring the basic fact that no return of income was filed by the assessee in pursuance of a notice u/s 148 of the Act and, thus, issuance of a notice u/s 143(2) of the Act was bad in law and the re-assessment framed in pursuance thereto was void-ab-initio which requires to be quashed.

Refer: 113 DTR 19 [ITAT, Bangalore]"

8. On the other hand, the learned DR supported the findings of the CIT (A)

on the issue. She had, further, contended that the AO was within his realm for

initiation of re-assessment proceedings in the present case. To support herstand,

the ld. DR had placed reliance on the judgment of the Hon'ble jurisdictional 9 ITA No.771/Del/2015

High Court in the case of Bawa Abhai Singh v. DCIT reported in (2002) 253

ITR 0083 (Del). The learned A Rin his rejoindersubmitted that the very case

relied on by the learned DR was taken note of by the Hon'ble jurisdictional

High Court in its subsequent judgment in the case of Mahashay Chunnilal v.

DCIT reported in (2014) 362 ITR 0314 (Del) and had, in fact, distinguished the

judgment relied on by the Revenue in the case of Bawa Abhai Singh (supra).

9. We have carefully considered the rival submissions and also perused the

relevant materials on record. On a pointed query from the Bench, the learned

DR submitted that the appeals of the co-owners of the subject property are still

pending for adjudication before the CIT (A). It was, further, clarified that the

CIT (A) had originally dismissed the appeals of the co-owners inlimine without

going into the merits of the cases since the admitted taxes, according to the CIT

(A), were not paid. The earlier Bench of this Tribunal restored the appeals

before the CIT (A) and it in this context the matter is still pending for disposal

before the CIT (A). Similarly, the issue in the hands of the seller is also

pending for adjudication before the CIT (A).

10. The twin issues that arise for our consideration are, namely :

(i) Whether the reopening of the assessment by issuance of a notice u/s 148 of the Act is valid? and

(ii) Whether the CIT (A) was justified in confirming the AO's action in making an addition of Rs.3.45 crores u/s 69 of the Act?

10 ITA No.771/Del/2015 11. We shall first consider the issue on merits, namely, whether the addition

of Rs.3.45 crores was justified on the facts and circumstances of the case.

Apparently, the AO had solely relied on the valuation report prepared by

an approved valuer which was seized during the course of a search operation

conducted in Tinna Group of cases on 11.11.2010 [sellers of the subject

property]. In the said report, the approved valuer had allegedly arrived at the

value of the impugned property at Rs.17.83 crores. Accordingly, the AO had

come to a conclusion that the assessee had under-stated the value of the subject

property by Rs.13.83 crores [Rs.17.83 - Rs.4 crores]. Apart from this, there

was, apparently, no documentary evidence or material in his possession to come

to a definite conclusion that the assessee had made extra consideration over and

above what was described in the sale deed with reference to the purchase of

impugned property. Though there were agreements for sale for other properties

seized in the form of a CD, there was nothing on record to show that those

agreements have resulted in sale of properties at the mentioned prices of the

agreements. Admittedly, the AO had no material evidence on hand to prove

conclusively that the assessee had understated the value of the impugned

property. In other-words, the AO had not discharged the primary burden of

proof to establish that the assessee, in fact, understated the value of the property

in the sale deed. In the absence ofany material or proof, the AO cannot proceed

to rely upon the valuation arrived at by an approved valuer and, thus, come to a

conclusion that the subject property has been understated in its value. The 11 ITA No.771/Del/2015

valuation report prepared by the approved valuer and seized from the premises

of the seller had not divulged the reason for which it was prepared. The seller

itself objected to the value to be adopted in its hands for the purpose of capital

gains. In the course of assessment proceedings in the case of the seller, the

impugned property was referred to the DVO for valuation. The DVO of the

Department had himself valued the subject property at Rs.1,64,28,000/- which

wasfarbelow the sale documented price of Rs.4 crores. Further, the documented

price of Rs.4 crores, admittedly, was above the guideline/circle rates which

prevailed at that relevant period.

12. At this juncture, our reference was drawn to the fact that various Courts

have held that the primary burden of proof to prove under-statement or

concealment of income of the assessee was on the Revenue. For ready

reference, the judgments delivered by various Hon'ble Courts on a similar issue

are mentioned hereunder:

(i) In the case of CIT v. Naveen Gera reported in (2010) 328 ITR 0516

(Del), the Hon'ble Delhi High Court had held that -

"................that the concealed income was detected during the course of search or any evidence was found which would indicate such concealment. The seized material containing the sale deeds of the properties which have been relied upon to make reference to the DVO, had already been declared to the Revenue by the respondent- assessee under the VDIS. We are also in agreement with the submission made by Mr.Piyuush Kaushik that it is settled law that in the absence of any incriminating evidence that anything has been paid over and above than the stated amount, the primary burden of proof is on the 12 ITA No.771/Del/2015

Revenue to show that there has been an understatement or concealment of income. It is only when such burden has been discharged, would it be permissible to rely upon the valuation given by the DVO. Further, the opinion of the DVO, per se, is not an information and cannot be relied upon in the absence of other corroborative evidence...."

(ii) In CIT v. Puneet Sabharwal (supra), the Hon'ble Jurisdictional High

Court had held that -

"....the assessing officer solely relied upon the report of the District Valuation Officer. Apart from this, there was admittedly no evidence or material in his possession to come to the conclusion that the assessee had paid extra consideration over and above what was stated in the sale deed. This very issue has come up for consideration before this court repeatedly and after following the judgment of the Supreme Court in the case of K.P. Varghese (1981) 131 ITR 597 (SC), the aforesaid proposition of law is reiterated time and again. For our benefit, we may refer to the latest judgment of this court in the case of CIT v. Smt. Suraj Devi (2010) 328 ITR 604 (Delhi), wherein this court had held that the primary burden of proof to prove understatement or concealment of income is on the Revenue and it is only when such burden is discharged that it would be permissible to rely upon the valuation given by the District Valuation Officer. It was also held that then opinion of the Valuation Officer per se was not information and could not be relied upon without the books of account being rejected which had not been done in that case."

(ii) In CIT v. Smt. Suraj Devi reported in (2010) 328 ITR 0604

(Del), the Hon'ble Court has held that -

"It is settled that that the primary burden of proof to prove understatement or concealment of income is on the Revenue and it is only when such burden is discharged that it would be permissible to rely upon the valuation given by the DVO.[see K P Varghese v ITO (1981) 131 ITR 597 (SC), cit V. Shankuntala Devi (2009) 316 ITR 46 (Del) and 13 ITA No.771/Del/2015

CIT v. Vinodsinghal [I.T.A NO.482 OF 2010 decided by this court on May 5, 2010].

In any event, the opinion of the DVO, per se is not an information and cannot be relied upon without the books of account being rejected which has not been done in the present case....."

(iv) The Hon'ble Supreme Court in the case of Asst. ACIT v. Dhariya Construction Co. (2010) 328 ITR 515 (SC) had held (on Page 515) that "...the Department sought reopening of the assessment based on the opinion given by the District Valuation Officer (DVO). The opinion of the DVO per se is not information for the purposes of reopening assessment under section 147 of the Income-tax Act 1961. The assessing officer has to apply his mind to the information, if any, collected and must form a belief thereon......."

13. Incidentally in the case under dispute, the AO had neither applied his

mind nor formed a belief, but, merely came to the conclusion, based on the

report of the approved valuer found during the search operation at the premises

of Tinna Group of cases, that the value of the land under dispute was shown

highly understated and, accordingly, initiated proceedings u/s 147 of the Act.

Moreover, in the course of assessment proceeding of the seller, the impugned

property was referred to the DVO of the Department for valuation and he

arrived at the value of Rs.1.64crores which was much below than the price

mentioned in the sale deed of the impugned property. The valuation report

being only an opinion, the same cannot be a sole basis for making an addition

without any corroborative evidence to hold that there is an undisclosed payment 14 ITA No.771/Del/2015

in purchase of the impugned property, especially, when the sale prices

mentioned in the sale deeds are much above the guideline/circle rate.

14. Taking into account all the facts and circumstances of the issue as

deliberated upon in the fore-going paragraphs and also in consonance with the

judgements of various Hon'ble Courts (supra), we are of the view that the CIT

(A) was not justified in sustaining the addition of Rs.3,45,75,000/-made by the

AO u/s 69 of the Act as the AO had solely placed reliance on the report of the

approved valuer. It is ordered accordingly.

15. With regard to the assessee's objection to the re-opening of the

assessment by issuance of a notice u/s 148 of the Act, our findings are as

follows:

In the instant case, there was a search in the premises of the assessee on

18.01.2007. Admittedly, no incriminating document was found which point out

that there was under-statement of the value of the impugned property in the sale

deed. The AO, in the course of original assessment proceeding in pursuance of

the search, was aware of the purchase of the impugned property by the assessee.

The assessee, in his reply dated 25.11.2008 to the AO's query, had mentioned

the fact that he made investment in agricultural land for an amount of Rs.1 crore

and the sale deed was also enclosed along with the reply filed in the course of

original assessment proceeding. The assessee's reply along with the enclosed

document to the AO's query in the original proceeding was placed at pages 14-

76 of the Paper Book furnished by the assessee. The AO, in the course of 15 ITA No.771/Del/2015

original proceeding, did not refer to the DVO to ascertain the market value of

the impugned property. Undisputedly, in this case, notice u/s 148 of the Act

was issued beyond four years from the date of the end of the assessment year

and the first proviso to section 147 is applicable, since the assessment was

already concluded u/s 143 (3) of the Act. For ready reference, the first proviso

of the section 147 of the Act is reproduced herein below:

"147...Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year."

16. From the above proviso, it is clear, the AO must have a reason to believe

that the escapement of income from assessment must be occasioned by the

failure on the part of the assessee to, inter alia, disclose material facts fully and

truly. If this condition is not satisfied, there would be a bar to taking any action

under section 147 of the Act. In the instant case, reasons recorded for re-

opening of the assessment are placed at page 89 of the Paper Book. On a

perusal of the reasons recorded, it is evident that while the assessing officer

mentioned that income had escaped assessment because of the failure on the

part of the assessee to fully and truly disclose the material facts for assessment,

he has not indicated as to which material fact had not been fully and truly 16 ITA No.771/Del/2015

disclosed. In such circumstances, the re-opening of the assessment has been

held to be invalid by the Hon'ble jurisdictional High Court in the case of Global

Signal Cables (India) (P) Ltd v. DCIT reported in (2015) 54 taxmann.com

114(Delhi). The relevant findings of the Hon'ble High Court read as under:

"17. It is evident that while the assessing officer mentioned that income had escaped assessment because of the failure on the part of the assessee to fully and truly disclose the material facts for assessment, he has not indicated as to which material fact had not been fully and truly disclosed by the petitioner/assessee."

17. In the instant case, as mentioned earlier, in the course of original

assessment proceeding, the AO was made aware of the purchase of the

impugned property and the sale deed was duly enclosed in the assessee's reply

to the AO's query. The only reason for the reopening of the assessment was the

alleged seizure of the valuation report of the approved valuer from the premises

of the sellers of the impugned property. The valuation report of the approved

valuer was nothing but an opinion expressed by him. Therefore, when all the

necessary details were filed and taken note of by the AO during the course of

the original assessment proceeding pursuant to the search and seizure action

conducted in the premises of the assessee, the reopening of the assessment was

merely based on change of opinion of the AO. For taking the above view, we

are fortified by the judgments of the Hon'ble Jurisdictional High Court in the

cases of (i) Global Signal Cables (India) (P) Ltd v. DCIT (supra) and (ii) CIT v.

Usha International Ltd reported in (2012) 348 ITR 0485 (Del). Furthermore, as 17 ITA No.771/Del/2015

mentioned earlier, the valuation report of the approved valuer being merely an

opinion, the same cannot be sought to be relied on by the Department for the

reopening of the assessment u/s 148 of the Act and this principle has been

reiterated by various judicial pronouncements, namely:

(i) ACIT v. Dhariya Construction Co. - 328 ITR 515 (SC);

(ii) MahashayChunnilal v. DCIT - 362 ITR 314 (Del); &

(iii) CIT v. Dharamveern Sardana in ITA 266/2012 dt.4.5.2012

18. Further, the judgment of the Hon'ble jurisdictional High Court in the case

of Bawa Abhai Singh v. DCIT (supra) relied on by the learned D.R has been

considered by the Hon'ble Court in the case of Mahashay Chunnilal v. DCIT

(supra) and duly distinguished. Since the judgment of the Hon'ble jurisdictional

High Court in the case of Mahashay Chunnilal v. DCIT being the latest and in

consonance with the same, we decide the reopening of the assessment is not in

accordance with the provisions of law in the facts and circumstances of the

instant case. It is ordered accordingly.

19. In the result, the assessee's appeal is partly allowed.

Order pronounced in open court on this 18th day of May, 2015.

Sd/- sd/- (B.C. MEENA) (GEORGE GEORGE K.) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated the 18th May day of May, 2015 TS 18 ITA No.771/Del/2015

Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(A)-XXVI, New Delhi. 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI.