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2023 (10) TMI 626 - HC - Income TaxReopening of assessment - notice was issued based on audit objections received by the assessing officer - petitioner had gifted a flat to Bezan Chenoy as per the Memorandum of Family arrangement and, therefore, has resorted to colorable device by way of gift of the said property to avoid tax liability. Therefore, this is a fit case for invoking provisions of Sec. 50C and value as per Stamp Duty-authority was required to be considered as sale consideration and taxed as short-term capital gain - HELD THAT:- As decided in Jet Speed Audio (P) Ltd. [2015 (2) TMI 766 - BOMBAY HIGH COURT] the court has held that the tangible material urged should emanate from the reasons recorded for issuing reopening notice u/s 148 - The tangible material as stated in the affidavit in reply and by counsel for revenue are the audit objections received by the assessing officer. But there is no mention of this in the reasons recorded for issuing reopening notice u/s148 - Therefore, the audit objection cannot be termed as tangible material. A Division Bench of this court in Aroni Commercials Ltd. [2014 (2) TMI 659 - BOMBAY HIGH COURT] has held that once a query is raised during the assessment proceedings and the assessee has replied to it, it follows that the query raised was a subject of consideration of the AO while completing the assessment. It is not necessary that an assessment order should contain reference and/or discussion to disclose its satisfaction in respect of the query raised. If an Assessing Officer has to record the consideration bestowed on all issues raised by him during the assessment proceeding even where he is satisfied then it would be impossible for the AO to complete all the assessments which are required to be scrutinized by him under Section 143(3) of the Act. Therefore, there can be no doubt in the facts of this case that the reopening of the assessment by the impugned notice is merely on the basis of change of opinion of the assessing officer from that held earlier during the course of assessment proceedings leading to the assessment order dated 30th September 2010. This change of opinion does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment. Petitioner has explained under Section 50C of the Act what is contemplated is a positive figure of consideration received or accruing as a result of a transfer being less than the value adopted by the stamp valuation authority. If consideration figure is zero or NIL, deeming fiction under Section 50C cannot come into play especially when gifts are categorically not considered as transfers under Section 47. After considering the submissions, the assessing officer has consciously dropped in the issue of Section 50C or not to levied any tax under Section 50C in respect of the said transaction. For the same reasons Phoolchand Bajrang Lal [1993 (7) TMI 1 - SUPREME COURT] will not be applicable to the facts of this case because the Apex Court has held that the assessing officer may start reassessment proceedings either because of some fresh facts come to light which where not previously disclosed or some information with regard to the facts previously disclosed comes into his possession which tends to expose the untruthfulness of those facts. In such situations, it is not a case of mere change of opinion or the drawing of a different inference from the same facts as were earlier available but acting on fresh information. No justification in reopening the assessment.
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