TMI Blog2009 (7) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... (JODH.) OF 2009 - - - Dated:- 8-7-2009 - Member(s) : B. R. JAIN., K. S. S. PRASADA RAO. ORDER-B.R. JAIN, A.M.: This appeal by the assessee against the order dt. 20th Nov., 2008 of learned, CIT(A), Jodhpur raises the following grounds: "1 That as the impugned assessment order has been passed without complying with the provisions of s. 147 of IT Act the same is bad in law and the appellant appeals for its cancellation. Under the facts and circumstances of the case, the AO erred in not dropping the proceedings under s. 147/148. The AO was not justified in passing the impugned assessment order and the learned CIT(A), Jodhpur did not justify in sustaining the same. 2. That without any prejudice to the first ground of appeal, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m capital gains on sale of land in village Kelva, District Rajsmand and capital gains on sale of shares. Net long-term capital gains on the aforesaid two assets were disclosed at Rs. 1,78,893 for which deduction under s. 54F of IT Act has been claimed and allowed while framing assessment under s. 143(3) of IT Act. Consequent (subsequent) to that, the AO recorded reasons on 14th June, 2007 and issued notice under s. 148 of IT Act after taking approval from learned Jt. CIT, Nagaur. Reasons recorded read as under: "In the return of income, the assessee has declared sales proceedings (proceeds) of the land Rs. 3,00,000 in which share of assessee is Rs. 2,00,000. However, the Registrar has valued the market rate of the property sold at Rs. 11, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleting assessment under s. 143(3) of IT Act. The full value of sale consideration was also disclosed while computing income under the head "Capital gains". There was thus no failure on the part of the assessee to disclose all material facts at the time of regular assessment made by the assessing authority. In that view of the matter, the notice issued under s. 148 of IT Act needs to be quashed. Reliance has been placed on the judgment rendered by Full Bench of Hon'ble Delhi High Court in CIT vs. Kelvinator of India Ltd. (2002) 174 CTR (Del)(FB) 617 : (2002) 256 ITR 1 (Del)(FB). 5. On the other hand, learned Departmental Representative, opposing the contentions raised by the assessee, states that the AO had recorded valid reasons and take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eb., 2006. When a regular order of assessment is passed in terms of provisions of s. 143(3) of IT Act, presumption can be raised that such an order has been passed on application of mind by the assessing authority. Subsequent to that there lies nothing in the mouth of assessing authority to say that such an order of regular assessment, was passed without application of minds and thus it will confer jurisdiction upon the AO to reopen the proceedings without anything placed on record. 7. Full Bench of Hon'ble Delhi High Court in CIT vs. Kelvinator of India Ltd. quashing the notice under similar circumstances, has expressed its opinion as under: "We also cannot accept submission of Mr. Jolly to the effect that only because in the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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