RAJESH SHANTILAL SHAH Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) The petitioner has challenged notice dated 02.05.2016 seeking to reopen the petitioner's assessment for the assessment year 2010-11. The petitioner had filed the return of income for the said assessment year on 14.02.2011 declaring total income of Rs. 4.65 lacs (rounded off). This return was accepted without scrutiny under section 143(1) of the Income Tax Act, 1961. To reopen such assessment, the Assessing Officer issued the impugned notice. He had recorded following reasons for doing so:

(2.) The petitioner raised objections for notice of reopening under communication dated 09.12.2017. Such objections were, however, rejected by the Assessing Officer by an order dated 11.12.2017.

(3.) Upon perusal of the documents on record and having heard learned advocates for the parties, we notice that under very similar circumstances in case of this very assessee, a notice of reopening was quashed by this Court under a judgement dated 16.08.2017. The only distinction between the two cases being that in the present case, the return was accepted without scrutiny whereas in the judgement noted above, the return for the assessment year 2009-10 was initially made after scrutiny which was sought to be reopened. However, this distinction is of no material since the reasons recorded by the Assessing Officer in both cases are exactly same. The cause on which the notice was quashed in the earlier case is available in the present petition also. To appreciate such ground, few facts may be noted. Before the reasons recorded, there was a sale transaction of land between Ashok Prajapati being a seller and Milan Mehta, the purchaser. The present petitioner Rajubhai Shah and one Andeshbhai Bharwad were the commission agents. During a search and seizure operation in case of Ashok Prajapati he, in his statement, had accepted having received Rs. 3.32 crores from Milan Mehta through the said two agents. In the statement recorded subsequent to the search during assessment, Ashok Prajapati confirmed that he received Rs. 3.35 crores from the petitioner paid on behalf of Milan Mehta. However, Milan Mehta in his statement admitted having paid only cash of Rs. 1.07 crores (rounded off). When the assessment of Milan Mehta and Ashok Prajapati were completed, addition of Rs. 70.80 lacs was made on protective basis in the hands of Milan Mehta. In the appeal, CIT (Appeals) deleted such addition. The Assessing Officer believes that in such order, the Commissioner had observed that it would be Rajubhai Shah i.e. the present petitioner, who would be liable to explain the source of the cash. It is for such purpose that the impugned notice has been issued.