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2015 (5) TMI 4 - GUJARAT HIGH COURT

2015 (5) TMI 4 - GUJARAT HIGH COURT - TMI - Reopening of assessment - indexed cost of property not claimed - Held that:- In the present case, it is required to be noted that during the original assessment proceedings, the assessee did claim the indexed cost of property at ₹ 93,98,488/- may be without filing any revised return of income and by submitting only revised computation of income. However, the same came to be considered by the Assessing Officer and while computing the long term cap .....

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eassessment proceedings and/or reopen the assessment in exercise of powers under section 147 of the Act beyond the period of four years unless and until the assessee did not truly and fully disclosed the material fact, which was necessary for the purpose of assessment. Under the circumstances, in the present case, the condition precedent for initiation of the proceedings beyond the period of four years under section 147 of the Act are not satisfied at all. Under the circumstances, the initiation .....

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dent : Mr Sudhir M Mehta, Adv. JUDGMENT (Per : Honourable Mr. Justice M. R. Shah) 1. Rule. Shri Sudhir Mehta, learned advocate waives service of notice of Rule for the respondent. In the facts and circumstances of the case and with the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing today. 2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, order of direction to q .....

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4,57,137/-. The case was selected for scrutiny under CASS. Accordingly, statutory notice under section 143(2) of the Act was issued on 28.8.2009 and duly served upon the assesssee. Subsequently, a questionnaire was issued on 6.1.2010 calling for certain details/information and clarifications u/s 142(1) of the Act from the assessee, which was duly served upon the assessee. That during the year under consideration, the assessee sold an immovable property for ₹ 35 lac resulting in capital lo .....

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ssessee was served with the show cause notice dated 12.11.2010 and was called upon to show cause as to why the sale price of the said property should not be taken at ₹ 1,01,77,400/- for computing the capital gain. It appears that initially, the assessee claimed indexed cost of property of ₹ 38,57,137/-. However, subsequently and during the course of assessment proceedings, he submitted the revised computation of income, in which the assessee claimed indexed cost of property of ₹ .....

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r years from the date of assessment, the Assessing Officer served a notice u/s 147 of the Act upon the assessee for AY 2008-2009 and reopening the assessment proceedings beyond the period of four years. At at the instance of the assessee, the Assessing Officer served the reasons for initiating the proceedings u/s 147 of the Act, which reads as under: 1 Name & address of the assessee Shri Chandrakant K. Singapuri Plot No.97, Tekra No.2, Umarwada Koyali Khandi, Opp - Deshbandhu Transport, Umar .....

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sessee has not filed revised return, the indexed cost of property was to be taken as per return filed by assessee. The assessee has not filed any revised return of income to claim the indexed cost of property at ₹ 93,98,488/-, but filed the claim simply by way of letter which cannot be entertained. In view of the above facts, I have reasons to believe that there is escapement of income of ₹ 55,41,351/- in the hands of assessee which is required to be taxed by reopening the assessment .....

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s the assessee disclosed all material facts fully and truly, the initiation of the proceedings u/s 147/148 after the period of expiry of four years was not permissible. That by order dated 10.10.2014, the Assessing Officer disposed of the objections against the reasons recorded for reopening of the assessment for AY 2008-2009 and has decided to proceed further with the reassessment proceedings. Hence, the petitioner has preferred the present petition under Article 226 of the Constitution of Indi .....

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ssing Officer and after verifying all the documents, the Assessing Officer accepted the same and thereafter, finalized the assessment. It is submitted that therefore, when the notice has been issued under section 148 of the Act beyond the period of four years and there was no suppression on the part of the assessee and there was full and true disclosure, the impugned notice under section 148 of the Act lacks jurisdiction as the conditions for reopening the assessment beyond the period of four ye .....

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as prayed for. 6. Shri Mehta, learned advocate appearing for the respondent has tried to oppose the present petition. It is submitted that as such, the assessee did not file the revised return of income and only submitted the revised computation of income claiming the indexed cost of property at ₹ 93,98,488/-. It is submitted that while filing the original return of income, the assessee claimed the indexed cost of property at ₹ 38,57,137/-. It is submitted that in absence of any revi .....

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hands of the assessee, it was required to be taxed by reopening the assessment under section 147 of the Act and consequently, when the Assessing Officer has issued the impugned notice under section 148 of the Act, the same cannot be said to be either illegal or wholly without jurisdiction. 7. Shri Mehta, learned advocate appearing for the revenue has heavily relied upon the decision of the Hon'ble Supreme Court in case of Goetze (India) Ltd. Vs. Commissioner of Income Tax reported in [2006] .....

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een served with the notice under section 148 of the Act for AY 2008-2009 beyond the period of four years. Under the circumstances and considering the section 147 of the Act, unless and until it is found that any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment for that assessment year, initiation of the reassessment proceedings under section 147 .....

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