TMI Blog2014 (11) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation 2 to section 153 of the Act – thus, the AO is directed to compute the capital gain in AY 2002-03 as per law after issuing a notice of hearing prescribed under the provisions of the Act - a co-joint reading with section 153(3) a reassessment may be compelted at any time where the reassessment is made in consequence or to give effect to any finding/direction of an order passed u/s 254(1). Application of section 50C – Held that:- While computing the capital gain for AY 2002-03, the AO is directed to take into account the sale consideration as noted in the sale-deed - The AO is not expected to take the shelter of the provisions of section 50C of IT Act for AY 2002-03 - the provisions of section 50C have come with effect from 1.4.2003 – the matter is remitted back to the AO with directions – Decided partly in favour of assessee. - I.T.A. No.1536/Ahd/2011 - - - Dated:- 8-2-2013 - SHRI MUKUL Kr.SHRAWAT, And SHRI ANIL CHATURVEDI, JJ. For The Appellant : Shri M.K.Patel, A.R. For The Respondent : Shri D.K.Singh, Sr.D.R. ORDER PER SHRI MUKUL Kr. SHRAWAT, JUDICIAL MEMBER : This is an appeal filed by the Assessee arising from the order of ld.CIT(A)-VI, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transfer deed with a noting that M/s.Siddhi Corporation had paid an amount of ₹ 1,43,500/- as a Registration fees on the valuation taken at ₹ 22,22,000/-. The AO has applied the provisions of section 50C of IT Act and completed the assessment u/s.144 by adopting the market value at ₹ 22,22,000/- and completed the assessment accordingly. Being aggrieved the matter was carried before the first appellate authority. 3. Before ld.CIT(A), the reopening was challenged, however it was held that the appellant had undisputedly sold the property and the capital gain on the sale of property was not even disclosed for A.Y. 2002-03. Ld.CIT(A) has held that since the property was registered with the Registrar on 30/07/2003 relevant for A.Y. 2004-05, therefore transfer of the property took place in A.Y. 2004-05 which was correctly taxed by the AO. Since the action of the AO was confirmed, therefore now the assessee is further in appeal. 4. Before us, ld.AR M.K.Patel has explained that the plot in question was in fact sold on 21.5.2001. In this regard, relevant dates and his explanation in writing was as under:- Date Event ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the date of pronouncement of the order of CIT(A). In his opinion, the provisions of section 150(2) are to be applied in respect of the order of CIT(A) which was the subject matter of appeal. On the other hand, Revenue s contention is that the assessment order in question is the subject matter of appeal which was dated 28.12.2007. Hence, the direction can be given after considering the said date of assessment order. 7. We have heard both the sides. As far as the issue of reopening of assessment u/s.148 is concerned, as raised in the grounds of appeal vide ground No.2, we are of the considered opinion that on receiving of an information the AO had proceeded u/s.148 of the Act by issuing a notice dated 6.12.2006 relevant for A.Y. 2004-05. The time limit prescribed for issuance of notice u/s.149 is four years from the end of the relevant assessment year and if four years have elapsed, then not more than six years from the end of the relevant assessment year unless the income chargeable to tax which has escaped assessment amounts to ₹ 1 lac or more. Since the notice was within the prescribed limit, hence very much valid, therefore the aforesaid ground deserves to be dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1882, the Hon ble Court has pronounced that an immovable property can be legally and lawfully transferred or conveyed only by a registered deed of conveyance. Since this decision of the Hon ble Court has been decided in different context and the income-tax provisions were not adjudicated upon, therefore we hereby hold that the reliance placed by the Revenue on the said precedent was misplaced. 9. Now we have to deal with the situation where admittedly the capital gain was to be computed for A.Y. 2002-03 but no action was taken by the Revenue Department. We have raised a question to both the sides and in response we have been informed that almost in identical situation, the Hon ble Gujarat High Court in the case of Kalyan Ala Barot (supra) (328 ITR 521), wherein it was held as under:- Sub-section (1) of section 150 and sub-section (3) of section 153 of the Income-tax Act, 1961, provide that in cases falling under clause (ii) of sub-section (3) of section 153 read with Explanation 2 thereunder, the provisions of sub-section (1) of section 150 would be applicable and the bar or limitation under section 149 would not be applicable. While section 150(1) and section 153(3) contem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any other law]. (2) The provisions of sub-section (1) shall not apply in any case where any such assessment, reassessment or recomputation as is referred to in that sub-section relates to an assessment year in respect of which an assessment, reassessment or recomputation could not have been made at the time the order which was the subject-matter of the appeal, reference or revision, as the case may be, was made by reason of any other provision limiting the time within which any action for assessment, reassessment or recomputation may be taken. 10.1. On careful reading of this section, to our humble understanding in the light of the case-law cited; that a notice u/s.148 may be issued at any time for the purpose of making a reassessment in consequence of or to give effect to any finding or direction contained in an order. Further, in sub-section (v) of section 150 a limitation is prescribed that the clause of re-opening in sub-section(1) of section 150 shall not apply where any such reassessment relates to an assessment year in respect of which an assessment could not have been made at the time of order, which was the subject matter of appeal, or as the case may be, was made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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