Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2019 (9) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (9) TMI 151 - AT - Income TaxReopening of assessment u/s 147 - notice u/s.148 was not served on the assessee - undisclosed capital gains - HELD THAT:- As relevant assessment year before us is AY.2007-08 for which, notice u/s.148 could be issued on or before 31-03-2014. In the case before us, the AO has issued notice u/s.148 of the Act on 26-03-2014. Therefore, it is within the period of six years from the end of relevant assessment year. However, it is clear that assessee has not been served notice u/s.148 of the Act and even the notice by affixture was also served on 04-04-2014. But as rightly pointed out by the Ld.Counsel for the assessee, there is no report of the AO, which contains the names and addresses of the witnesses, who have identified the property. Further, it is also not recorded in the docket order of the assessment records. Therefore, it is not clear as to whether notice by affixture has really been served on assessee. Further, the Hon'ble Punjab & Haryana High Court in the case of CIT Vs. Avi-oil India Pvt. Ltd., . [2008 (7) TMI 520 - PUNJAB AND HARYANA HIGH COURT] has held that – notice should not only be issued but should also have been served on the assessee within the stipulated period and in the absence of a valid notice, the assessment is initiated. Capital gain on transfer of property - considered the sale consideration to be at ₹ 13,44,000/- and after allowing 40% of the sale value as assessee’s expenditure towards development, brought the balance of ₹ 8,06,400/- to tax - HELD THAT:- Assessee has developed the land and sold the same to the land owners. Therefore, the assessee’s contention that - there is no transaction of any transfer by the assessee to the land owners, is to be accepted. Further, both the AO and the CIT(A) have failed to consider the transaction as a whole and failed to allow the cost of acquisition of the land to the assessee while computing the income from the transaction of sale. As rightly pointed out by the Ld.Counsel for the assessee, if the transaction was to be considered as transfer, then the AO and the CIT(A) ought to have taken the transaction of sale dt.15-11-2006 also into consideration and the cost of acquisition should have been allowed and if it was so done, there would be loss and not income from the said transaction. Therefore, the premise of the AO that there is income which has escaped assessment, is incorrect. The reasons recorded for reopening also are clearly erroneous as the AO has recorded that assessee has not filed the return of income. In view of these facts, we are of the opinion that the reassessment is not sustainable. Therefore, on both the grounds, assessee’s appeal is liable to be allowed.
|