The Respondents Do Not Dispute That, In Fact, The Assessment Wascompleted After A Notice Under Section 142 (2) Of The Act Was Issued To The v. Kelvinator [2010] 320 Itr 561 And Other Judgments Which Havefollowed That Ratio

$~6 *IN THE HIGH COURT OF DELHI AT NEW DELHI+W.P.(C) 6376/2015 & CM No. 11603/2015 SOS CHILDREN' S VILLAGES OF INDIA..... PetitionerThrough:Mr. Satyen Seth and Mr. Arta TranaPanda, Advocates.Versus DY. COMMISSIONER OF INCOME TAX (EXEMPTION) & ANR. ..... Respondents Through:Mr.P. Roychaudhuri and Ms.VibhootiMalhotra, Advocates. CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE NAJMI WAZIRIO R D E R%08.12.2016 1.The petitioner is aggrieved by reassessment notice under Section 148of the Income Tax Act, 1961 (hereinafter to be referred as ‘the Act’) issuedon 28.03.2014.It is contended that it does not conform to the requirementof law, under the provisions itself and, therefore, it requires to be quashed. 2.The reassessment notice pertains to Assessment Year (AY) 2007-08and is based upon a reappraisal of the valuation of the property purchased bythe petitioner, i.e. 3 acres including a bungalow at Banglow Club Road,Nagapattium.According to the Assessment Officer (AO), there was adifference in sale consideration between what was disclosed by thepetitioner and the sale realized valuation of the stamp authorities, whichaccording to him was hit by Section 69 of the Act. The relevant portion of the reassessment notice reads as follows:- “As per report, during the course of verification of AIR -Non-Pan Data it was noticed that Land measuring 3 acresincludingBanglowbuildingBanglowclubRoadNagapattium was purchased by M/s. SOS Childrens villageof India through his power agent Shri Sumanth Kumar Karfor a sale consideration of Rs.67,93,150/-. Though the SRONagapattium has assessed the property under the stampvaluation Act at Rs 4,38,50,000/- for the purpose of stampduty from Mrs Jeenath Nachiyar Bte Lok Mohamand on10.7.2006. Perusal of Sale deed revealed that GuidelineValue of Rs.4,38,50,000/- against the sale consideration ofRs.67,93,150/- gives a difference of Rs.3,70,56,850/- undersection 50C of the Income Tax Act, 1961 Income tax Act.This difference is hit by the provision of section 69 of theAct including of stamp duty. Further, as per report the assessee has not filed the proof offiling of his return for the assessment year 2007-08. In view of above, after proper perusal of the report andexamination of the facts of the case as well as the legalposition in this regard, I have reasons to believe that theincome of above assessee which is chargeable to tax hasescaped assessment, as per the provisions of section 147(a),(b) and (c) of the Income tax Act 1961.” 3.It is contended that the impugned notice neither refers to any tangibleor fresh material nor even is based on correct facts.In this regard, it ispointed out that the assessee had, in fact, filed the return for AY 2007-08and that the assessment was completed on 28.08.2009 under Section 143 (3)of the Act. 4.The respondents do not dispute that, in fact, the assessment wascompleted after a notice under Section 142 (2) of the Act was issued to the petitioner for the concerned assessment year. They, however, seek to justifythe impugned notice by stating that the valuation of the material justify theprima facie belief that there was escapement of income. 5.This Court is of the opinion that the impugned order cannot besustained. Ex facie it discloses total non application of mind – the assesseecontrary to the notice had, in fact, filed its returns and was assessed underSection 143(3) of the Act. Consequently and more importantly there is noreference to any tangible material or objective fact which triggered thereassessment notice – validating requests for reopening the assessment underSection 147/148 of the Act, in view of the judgment of the Supreme Court inCIT Vs. Kelvinator [2010] 320 ITR 561 and other judgments which havefollowed that ratio. 6.For the foregoing reasons, the impugned notice dated 28.03.2014 andall consequent proceedings are hereby quashed. 7.The writ petition is allowed in the above terms. S. RAVINDRA BHAT, J. DECEMBER 08, 2016 sb NAJMI WAZIRI, J.