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TMI Blog2016 (6) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... i. For the assessment year 2007-2008, the assessee had filed return of income declaring total income of Rs. 29,53,970/- . The return was taken in scrutiny. The Assessing Officer framed the scrutiny assessment under section 143(3) of the Income Tax Act on 25.8.2009. To reopen such assessment, he issued impugned notice. He had recorded his reasons for issuing the notice which reads as under : "The assessee. has sold immovable property being NA land vide sale deed dated 19/04/2006. The sale value as per the agreement is Rs. 87,71, 765/- and registered, with Subregistrar Nadiad on 19/04/2006 vide registration no. NDD/1310/01/55. Registration charges paid on the above agreement is Rs. 1,32,205/- and stamp duty paid is Rs. 11,92,500/- . As per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontext, counsel for the petitioner submitted that the assessment previously framed after scrutiny was sought to be recovered within a period of four years from the end of relevant assessment year. There was no failure on part of the assessee to disclose truly and fully all materials. Notice for reopening was therefore, bad in law. He further contended that the notice for reopening was issued against deceased Chunibhai Ranchhodbhai Dalwadi and thus there was no valid issuance of service of notice. 6. On the other hand, learned counsel Shri Parikh for the department submitted that the assessee had made major misdeclarations concerning the nature of land under sale and its true sale consideration. He submitted that sale deed was not on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer lacked jurisdiction to reopen the assessment. It appears that the assessee had declared the sale consideration of the land in question as Rs. 87.71 lacs where as had accepted the stamp valuation which would come to Rs. 2.12 crores considering the stamp duty of Rs. 11.92 lacs affixed on the sale deed. It was in this background, the Assessing Officer invoked section 50C of the Act treating the difference as deemed long term capital gain. When these facts were not on record, when the sale deed was not on record during the original assessment, this certainly is a case where the assessee failed to disclose truly and fully material facts necessary for assessment. In order dated 25.3.2015, the Assessing Officer while disposing of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ightly applied the rates for NA land at the time of execution of the sale deed. In view of the above, the stamp rates charged by the Stamp Authority was for NA land and the sub registrar accordingly worked out the document value as Rs. 2.12,86,400/- . Thus. from the above it becomes amply clear that you have sold NA land whereas you have paid capital gains on agriculture land. The registration of Banakat appears only to circumvent the due process of law to pay capital gains on NA land. By registering the Banakat without releasing the possession of the land to the purchasers, you have in fact retained all the incumbent rights on the said land. It appears that by asking the purchasers to convert the said land into NA land you have tried to av ..... X X X X Extracts X X X X X X X X Extracts X X X X
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