TMI Blog2014 (7) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and circumstances of the case and in law, the reopening of assessment by the AO u/s.148 is bad in law. 2. On the facts and circumstances of the case and in law, the ld. CIT(A) erred in conforming the additions made by AO of ₹ 8,35,000/- under the provisions of section 50C of the Act. 2. Ground No.1 is regarding validity of re-opening under section 147/148 of the Income tax Act. The original assessment was completed under section 143(3) on 30/12/2005 at a loss of ₹ 8,48,370/-. Subsequently, the AO issued notice under section 148 on 20th November, 2006 on the ground that the assessee sold a plot of land and shown sale consideration of ₹ 8.00 lacs as per Conveyance Deed dated 25/03/2003. However, the market value of the property determined by the Stamp Valuation Authority is ₹ 16,35,000/- as per receipt of the said authority dated 26/03/2000. The AO was of the view that as per provisions of section 50C the value adopted by the stamp valuation authority deemed to be the full value consideration received by the assessee. The assessee objected to the re-opening of the assessment by filing letter dated 30/12/2006. The AO rejected the objection of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt by issuing notice u/s. 148 on 30/11/2006 by recording the reasons as under :- During the relevant previous year, the Assessee sold a plot of land bearing Survey No.39, Hissa No.1B situated at Barwai Village, Panvel and showed the sale consideration at ₹ 8,00,000/- as per conveyance deed dated 25/03/2003. However, it is seen that the market value of the property determined by the stamp valuation authority is ₹ 16,35,000/- as per the receipt of the said authority dated 26/03/2003 As perthe provisions of section 50C of the I.T. Act, 1961 The value adopted by the stamp valuation authority (herein referred to as the said authority) is to be deemed to be the full value of consideration received as the consideration received by the Assessee is less than the value adopted by the said authority. 5.1 It is manifest from the reasons recorded by AO that the record consisting of sale consideration as well as Conveyance Deed and the valuation of Stamp Duty Authorities was available on record as it was filed by the assessee in the original assessment proceedings. Therefore, after completion of the assessment under section 143(3) neither any material nor any new information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. According to respondent No. 1, thus, the relevant material was available on record, but he failed to apply his mind to that material in making the assessment order. The question is, can respondent No. 1 take recourse to the provision of section 147 for his own failure to apply his mind to the material which, according to him, is relevant and which was available on record. We find that this situation has been considered by the Full Bench of the Delhi High Court in its judgment in the case of CIT v. Kelvinator of India Ltd. [2002] 256 ITR 1 and the Full Bench has observed thus (page 19) : The said submission is fallacious. An order of assessment can be passed either in terms of sub-section (1) of section 143 or sub-section (3) of section 143. When a regular order of assessment is passed in terms of the said sub-section (3) of section 143 a presumption can be raised that such an order has been passed on application of mind. It is well known that a presumption can also be raised to the effect that in terms of clause (e) of section 114 of the Indian Evidence Act judicial and official acts have been regularly performed. If it be held that an order which has been passed purporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment order sought to be re-opened and the date of formation of opinion. The Hon'ble High Court has concurred with the view of the Full Bench of the Hon'ble Delhi High Court in the case of CIT vs. Kelvinator India which has also been upheld by the Hon'ble Supreme Court (187 Taxmann 312). 5.3 In the case of CIT vs. Eicher (supra), the Hon'ble Delhi High Court following the decision in case of Kelvinatior of India Ltd. (supra), observed in para 16 to 18 as under :- .........Applying the principles laid down by the Full Bench of this court as well as the observations of the Punjab and Haryana High Court, we find that if the entire material had been placed by the assessee before the Assessing Officer at the time when the original assessment was made and the Assessing Officer applied his mind to that material and accepted the view canvassed by the assessee, then merely because he did not express this in the assessment order, that by itself would not give him a ground to conclude that income has escaped assessment and, therefore, the assessment needed to be reopened. On the other hand, if the Assessing Officer did not apply his mind and committed a lapse, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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