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2024 (3) TMI 154 - GUJARAT HIGH COURTValidity of Reopening of assessment u/s 147 - condition precedent to exercise jurisdiction u/s 147 - entitlement to exemption u/s 54F - HELD THAT:- The assessee claimed the exemption u/s 54F of the Act for Assessment Year 2013-14 as well as purchased the residential plots furnishing the details for the same during the course of regular assessment for AY 2015-16 is in accordance with the above provisions. AO therefore cannot now again re-appreciate the same facts which was considered during the course of Assessment Year 2015-16 to disallow the exemption u/s 54F of the Act to assume the jurisdiction to reopen Assessment Year 2016- 17 on the ground that three years from the date of deposit in the capital gain deposit scheme would be over on 30.01.2016 which would fall in previous year relevant to the Assessment Year 2016-17. The Hon’ble Apex Court in case of Calcutta Discount Company Ltd.[1960 (11) TMI 8 - SUPREME COURT] has held that the alternative remedy available to the assessee would not affect right of the assessee to obtain relief under Article 226 of the Constitution of India as the condition precedent to exercise jurisdiction under Section 147 of the Act did not exist and therefore the AO has no jurisdiction to issue the impugned notice under Section 148 for the Assessment Year 2016-17. Thus there would be lack of jurisdiction to reopen the assessment on mere change of opinion. Therefore, the petition requires to be allowed by quashing and setting aside the impugned notice u/s 148 and the order rejecting the objection of the petitioner and all other sub-consequential action taken pursuant to the impugned notice by the respondents. Petition succeeds.
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