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2018 (2) TMI 48 - AT - Income TaxValidity of the reassessment - capital gain computation u/s 45 arising from the transfer of capital asset - Held that:- CIT(A) while deciding the appeal of the assessee directed the AO to assess the long term capital gain of ₹ 61,53,470/- in the assessment year 2008-09 where part of it already stood assessed at ₹ 22,50,190/-. Against this finding of CIT(A), the Revenue has not preferred any appeal. Therefore, it can be safely inferred that the Revenue has accepted that income which escaped assessment was pertaining to the A.Y. 2008-09. As per the notice for reopening the assessment year for opening is taken as assessment year 2009-10. In our view, this is not permissible under the law, in view of the explanation to section 2(47) wherein it clarifies that “transfer” includes and shall be deem to have always included disposing of or parting with an asset or any interest therein or creating any interest in any asset in any manner whatsoever, directly or indirectly, absolutely or conditionally voluntarily or involuntarily, by way of an agreement or otherwise notwithstanding that such transfer of rights has been characterised as being effected or dependent upon or flowing from the transfer of a share or shares of a company. Hence, under the facts of the present case the transfer of capital asset took place in the financial year 2007-08, relevant to A.Y. 2008-09. AO is empowered as per section 147 if the assessing officer has reason to believe that any income chargeable to tax has escaped assessment or any assessment year, he may subject to the provisions of sections 148 to 153 assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings. Therefore, the assessing officer should form a belief in respect of the escapement of income pertaining to a particular assessment year in the given case, the income escaped relates to the earlier year and notice is issued u/s 148 for the subsequent year. - Decided in favour of assessee.
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