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2020 (2) TMI 733 - HC - Income TaxReopening of assessment u/s 147 - claim of the petitioner for Long-Term Capital Gains allowed under Section 54 - HELD THAT:- While passing orders under Section 147 an AO is required to keep in mind the settled principles of law on the subject. If there is a change of opinion which prompted the issue of the notice under Section 148 the officer while passing order u/s 147 can not proceed further. Proviso to Section 147 makes it clear that no action shall be taken under it, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under Section 139 or in response to a notice issued under sub-section (1) of Section 142 or Section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year. While conducting proceedings, an Assessing Officer is bound by the proviso to Section 147 of the Income Tax Act, 1961. While exercising the powers vested with an officer at the time of re-assessment under Section 147 of the Income Tax Act, 1961 pursuant to issue notice under Section 148 of the Income Tax Act, 1961, the officer concerned has to not only keep in mind the express language of the proviso to Section 147 of the Income Tax Act, 1961 but also well settled principles of law. The respondent cannot have a re-look into the issue arising out of the claim of the petitioner for Long-Term Capital Gains which was allowed in the assessment order passed on 29.10.2011 as there was true and full disclosure of all material required for assessment by the petitioner for claiming deduction; Therefore, the proposal to re-determine the taxable income and the tax payable by the petitioner for the reasons stated in the impugned communication is unsustainable.; At the same time, while passing final order under Section 147 of the Income Tax Act, 1961, the respondent can examine any other aspect for escaped assessment of tax in the light of Explanation 3 to Section 147 of the Income Tax Act, 1961. While passing such order, the respondent shall not disturb the deduction allowed under Section 54 of the Income Tax Act, 1961 in the assessment order dated 29.10.2011. Since the dispute pertains to the assessment year 2009-10, the respondent is hereby directed to pass appropriate order within a period of thirty days from date of receipt of a copy of this order without disturbing the claim of the petitioner for Long-Term Capital Gains allowed under Section 54 of the Income Tax Act, 1961.
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