TMI Blog2016 (1) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee submitted all the requisite details. Now, after all these exercise of seeking information which was already there on record and without there being any tangent material coming on record, the assessee’s case was sought to be reopened on the ground that assessee has received ₹ 1 crore during the relevant financial year from sale of FSI and the entire amount claimed as deduction cannot be allowed. There is no reference in the ‘reasons recorded’ about any material or information coming on record to show that assessee’s claim for deduction is either not tenable or is incorrect and therefore, income chargeable to tax has escaped assessment. Here it is not a question of purely “change of opinion”, on the ground that earlier assessment was completed u/s 143(3) albeit the issue is, when the assessee has made full disclosure in the return of income which has been enquired upon by the Department twice and no further action has been taken, then, without there being any contrary or adverse material on record, reopening u/s 147 can be made without any tangent material indicating escapement of income. There cannot be “reason to believe” on the same set of facts and record, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued even after exchange of above letters. Again on 28.07.2010, the assessee was issued summons u/s 131 by ITO (Investigation Unit) to produce the books of accounts and copies of return of income. In response, the assessee vide letter dated 09.08.2010 responded to the said summon and furnished the copies of documents required including Income-tax returns and all the bank statements. Further vide letter dated 14.09.2010, the assessee again furnished the requisite details as required by the Department. After such an exchange of letters, no adverse inference was drawn or any action was taken. Thereafter, on 28.03.2011, the assessee s case was reopened by issuance of notice u/s 148 on the following reasons recorded , which was supplied to the assessee on 14.10.2010 :- The reasons recorded for selection of your case are furnished here under: The assessee is a co-operative society and has received the amount of ₹ 1 crore during FY 2006-07 on sale of FSI and the entire amount has been claimed as deduction which is not allowable deduction. The income earned by way of receipt of ₹ 1 crore on sale of FSI has escaped assessment. Under the circumstances, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of reopening after referring to the various decisions and decided the issue against the assessee. 5. Before us, the Ld. Counsel submitted that once the assessee has given detailed note in the return of income for claiming of exemption of long-term-capital-gain and later on it has been enquired by the Department also twice, then on the same information and some material on record, reopening u/s 147 cannot be done. In support of his contention, chronology of events and various citations of case laws were given before us. 6. On the other hand, Ld. DR strongly relying upon the order of the CIT(A) submitted that, once no order u/s 143(3) has been passed then, there cannot be a case of change of opinion . Here in this case, the return of income has been accepted u/s 143(1) and there was no scrutiny assessment u/s 143(3) therefore there was no application of mind during assessment. Thus, the case has rightly been reopened on the reasons recorded by the AO. 7. We have heard the rival contentions and also perused the relevant material on record. The assessee which is a co-operative industrial society has shown sale consideration from sale of FSI of ₹ 1 crore and after ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty. In reply, the assessee had submitted the entire details vide letter dated 18th July,2008 and 4th August, 2008 giving the entire details of permission sought from Dy. Registrar Co-op Society authorizing the sale of FSI, and also gave the copy of direction of the Dy Registrar to utilize the fund for specific purpose . After having received this information, the assessee s case was not selected for scrutiny and time limit for issuance of notice u/s 143(2) had expired on 30.09.2008. Again a summon was issued by the Investigation on 27.01.2010, mainly requiring the assessee to furnish copy of income-tax return furnished for the last five years and bank statement. Again in response to said summon, the assessee submitted all the requisite details. 8. Now, after all these exercise of seeking information which was already there on record and without there being any tangent material coming on record, the assessee s case was sought to be reopened on the ground that assessee has received ₹ 1 crore during the relevant financial year from sale of FSI and the entire amount claimed as deduction cannot be allowed. There is no reference in the reasons recorded about any material or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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