TMI Blog2013 (7) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO has sought to reopen the assessment finds the proof submitted by the assessee at the time of assessment proceedings to be not sufficient for the purpose of admitting the claim - it cannot be said that there was any failure on the part of the assessee so as to invoke the provisions of section 147- the notice u/s 148 cannot be sustained – appeal decided in favour of assessee - SPECIAL CIVIL APPLICATION No.7822 of 2001 - - - Dated:- 1-4-2011 - MS.HARSHA DEVANI AND MS.BELA TRIVEDI, JJ. For the Petitioner: MR SN SOPARKAR For the Respondent: MRS MAUNA M BHATT JUDGMENT The judgment of the court was delivered by Ms. Harsha Devani J.-By this petition under article 226 of the Constitution of India, the petitioner has chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed assessment by reason of failure on the part of the petitioner : (i) 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 (ii) to disclose fully and truly all material facts necessary for his assessment for that assessment year. It was submitted that, admittedly, the first situation is not present in this case. It was further submitted that on a perusal of the reasons recorded, it is apparent that there is no allegation to the effect that the petitioner has not disclosed fully and truly all material facts necessary for his assessment, and as such, the second situation is also not satisfied. Hence, the very assumption of jurisdiction by the Assessing Officer under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner in the statement of income submitted by him clearly shows purchase of property for Rs. 4,15,000 in respect of which exemption had been claimed under section 54 of the Act. It was submitted that during the course of original assessment proceedings the petitioner had produced proof to the satisfaction of the then Assessing Officer who had accordingly allowed the exemption under section 54 of the Act. According to the learned counsel, to sustain an allegation of failure there has to be an obligation cast on the petitioner to submit purchase deed while filing the return or during the course of assessment proceedings. There being no such obligation, it cannot be said that there was any omission or failure on the part of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h escapement is by reason of failure on the part of the petitioner to (i) make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 ; or (ii) disclose fully and truly all material facts necessary for his assessment for that assessment year. In the present case, admittedly, the first situation does not exist. In the circumstances, for the purpose of assumption of valid jurisdiction on the part of the Assessing Officer, he should have reason to believe that income chargeable to tax has escaped assessment by reason of failure on the part of the petitioner to disclose fully and truly all material facts necessary for his assessment. In the light of the aforesaid legal position, what i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner had stated the description of the property as well as the purchase price. Under section 54 of the Act, if in the case of an assessee the capital gain arises from transfer of a long term capital gain as envisaged under the said provision and the assessee within a period of one year before or two years after the date on which the transfer took place, inter alia, has purchased a residential house, then to that extent the capital gain shall not be charged under section 45 of the Act. A perusal of the prescribed return form as existing at the relevant time and the notes thereto indicates that there was no requirement of producing any document like purchase deed, etc., at the time of assessment proceedings in support of a claim for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed, the Act and the rules impose an obligation on the assessee to produce the same. In respect of a claim under section 54 there is no such requirement. It appears that the respondent has mixed up the requirement of submitting material facts with the submission of proof. In the opinion of this court, submission of proof cannot be equated with furnishing of material facts and as such, the contention raised on behalf of the Revenue that the assessee has failed to disclose fully and truly all material facts necessary for assessment as he had not submitted the proof of investment made for the purchase of flat as well as purchasedeed, does not merit acceptance. Moreover, in the entire reasons recorded, except for stating that the receipts fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
