TMI Blog2008 (2) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in :- "I( ii ) not holding that the Assessing Officer erred and acted illegally and without jurisdiction in issuing the notice under section 148 of the Income-tax Act, 1961, when the conditions precedent for a valid exercise of jurisdiction had not been complied with. I( iii ) not holding that the Assessing Officer erred in assuming jurisdiction under section 148 of the Act merely on a change of opinion, to review and reconsider the same facts and the material already on record is illegal and invalid in law." 5. It is submitted by the ld. Counsel for the assessee that the dispute is regarding market value on 1-4-1981 of the flat at Sterling Apartments sold by the assessee. It is submitted that the computation of income filed by the assessee along with return of income is available on pages 3-6 of the paper book and computation of Long-Term Capital Gain (LTCG) is appearing on page 5 of the paper book. It is submitted by him that the report of approved valuer is also enclosed by the assessee along with return of income. It is submitted that this report of approved valuer regarding value of flat in question as on 1-4-1981 is appearing on pages 7-12 of the paper book. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dexation. 7.1 It is also noted by the Assessing Officer in the reasons that fair market value is in higher side. As per point No. 4 of the reasons recorded by the Assessing Officer for issuing notice under section 148, this reason is recoded. This point reads as under:- "4. F.M.V. is on higher side which is proved from the information collected from the society as well as the valuation cell of our department." 7.2 This point noted by the Assessing Officer shows that he had prima facie reason to believe that income has escaped assessment. It is also seen that the Assessing Officer had information in his possession about F.M.V. being on higher side. Nothing is on record about when and under which section, the original assessment order was framed. Since, the reopening is within 4 years, even if the original assessment was framed under section 143(3), there is not a precondition to be shown by the Assessing Officer that the escapement of income assessment is on account of failure of the assessee to disclose fully and truly all material facts necessary for his assessment. From the reason No. 4 noted by us above, it is seen that the reason noted by the Assessing Officer is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... society as well as the valuation cell of the department. We feel that the facts are different; and hence this judgment is also of no help to the assessee in the present case. 8.2 The third judgment is also of Hon ble Bombay High Court and it is rendered in the case of Siesta Steel Construction (P.) Ltd. ( supra ) and this judgment is also not applicable in the present case because the facts are different. In that case, it is noted that relevant particulars were furnished by the assessee and the re-opening was on change of opinion, which was not approved. In the present case, since re-opening is within 4 years and hence there is no pre-condition that there should be failure of assessee to disclose fully and truly all material facts necessary for his assessment. Because of this factual difference, this judgment is also not applicable in the present case. 9. Since, in the present case, reopening is within 4 years from the end of relevant assessment year, we are of the considered opinion that re-opening is valid because the Assessing Officer has recorded the reasons before reopening. We hold accordingly. This ground is rejected. 10. No argument was advanced by the ld. cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount not so utilized shall be charged under section 45 as the income of the previous year in which the period of three years from the date of the transfer of the original asset expires; and ( ii )the assessee shall be entitled to withdraw such amount in accordance with the scheme aforesaid." 18. From the above, it can be seen that if the amount deposited by the assessee in capital gain account scheme is not utilised for the purchase or construction of new asset within prescribed time of 3 years, the amount not so utilized shall be charged under section 45 as the income of previous year in which the period of three years from the date of transfer of original asset expires and the assessee will be entitled to withdraw such amount in accordance with the scheme. As per the assessee, the withdrawal of the unutilized amount from the capital gain account is pre-requisite for bringing to tax the said amount in the present year. We are not in agreement with the assessee on this point. We are of the considered opinion that as per provisions of this section, if the assessee has not utilized within 3 years, any part of the amount deposited by him in the capital gain account then such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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