2017 (5) TMI 292 - AT - Income Tax

Re-opening of the assessment u/s.147 - reason to believe - assessee has shown sales consideration of property lesser than the valuation considered for registration purposes - Held that - As per Explanation 2 of Section147 it is very clear that due to disclose lower sale consideration by the assessee the income chargeable to tax had escaped assessment. The assessee has not produced anything before the Commissioner of Income Tax (Appeals) to show as to how this fact was fully and truly disclosed before the assessing authority and that there was not failure on the part of assessee especially when provisions of the section 50C is applicable. Hence the Commissioner of Income Tax (Appeals) considered the action of the Assessing Officer is fully covered by the provisions of Explanation 1 to Section 147 It is possible that with due diligence the Assessing Officer would have ascertained this fat at the time of original assessment also but in view of the explanation (1) it does not mean that there was no default on the part of the assessee. Hence reopening u/s.147 is held to be valid. The assessee has tried to take shelter under the exception provided by the above stated proviso where an assessment under sub-section (3) of section 143 has been completed no action after the expiry of four years from the end of the assessment year can be taken. But as stated above when the assessee has not disclosed fully and truly the facts necessary for the assessment this proviso will not come to its rescue. - Decided against assessee Confirming the action of the AO in invoking the provisions of the section 50C - Held that - Assessee made a request the AO to refer the valuation issue to the valuation cell u/s.50C(2) of the Act which was not considered by the AO. When this was raised before the Ld.CIT(A) he also rejected it. In our opinion we find merit in the argument of the ld.A.R. Before considering valuation u/s.50C(1) of the Act if the assessee requests for reference to Departmental Valuation Officer (DVO) the AO shall refer the matter to the DVO and he cannot overlook it. Hence we direct the AO to refer the matter to the DVO and thereafter frame the assessment in accordance with law. This ground of assessee is allowed.

Summary

Issues Involved:
1. Reopening of the assessment under Section 147 of the Income Tax Act.
2. Invocation of the provisions of Section 50C of the Income Tax Act.
3. Levy of interest under Sections 234B and 234C of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Reopening of the assessment under Section 147 of the Income Tax Act:

The primary issue in the appeal is the reopening of the assessment under Section 147. The facts indicate that the assessee had initially disclosed all material facts related to capital gains during the original assessment under Section 143(3). The Assessing Officer (AO) later believed that the income had escaped assessment due to the difference in the sale consideration of the car parking area, which was lower than the guideline value under Section 50C. The assessee argued that there was no new information or particulars available, and the reopening was merely a change of opinion.

The CIT(A) upheld the AO's action, noting that the scope of reassessment post-1989 amendments was widened, and the AO had "reason to believe" based on reasonable grounds that income had escaped assessment. The Tribunal emphasized that the AO's belief must be based on objective material evidence and that the reasons recorded for reopening were valid. The Tribunal further clarified that the concept of "change of opinion" is an in-built test to prevent the abuse of power by the AO. The reopening was deemed valid as the AO had tangible material linking to the formation of his belief that income had escaped assessment.

2. Invocation of the provisions of Section 50C of the Income Tax Act:

The second issue concerns the invocation of Section 50C, where the AO noticed a discrepancy between the sale consideration of four flats and the guideline value. The AO adopted the guideline value for stamp valuation purposes, resulting in an additional taxable amount. The assessee contended that the lower sale value was due to adverse economic factors and requested a reference to the Valuation Officer, which the AO denied.

The CIT(A) supported the AO's decision, stating it was mandatory to adopt the guideline value when the sale deed value was lower. The Tribunal found merit in the assessee's argument that the AO should have referred the valuation issue to the Departmental Valuation Officer (DVO) upon request. Consequently, the Tribunal directed the AO to refer the matter to the DVO and reassess the valuation in accordance with the law.

3. Levy of interest under Sections 234B and 234C of the Income Tax Act:

The final issue pertains to the levy of interest under Sections 234B and 234C. Since the primary issues were remitted back to the AO for reassessment, the Tribunal dismissed this ground as infructuous at this stage.

Conclusion:

The appeal was partly allowed for statistical purposes, with the Tribunal directing the AO to refer the valuation issue to the DVO and reassess the case in accordance with the law. The reopening of the assessment under Section 147 was upheld as valid, and the levy of interest under Sections 234B and 234C was dismissed as infructuous pending reassessment.