TMI Blog2016 (6) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... pital 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. - Decided against assessee. - SPECIAL CIVIL APPLICATION NO. 5376 of 2015 - - - Dated:- 21-6-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITIONER : MR SN DIVATIA, ADVOCATE FOR THE RESPONDENT : MR KM PARIKH, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner has challenged the notice of reopening dated 28.2.2014 issued by respondent Assessing Officer, copy of which is produced at AnexureA to the petition. This petition arises in the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the petition. 3. Under order dated 27.3.2015, while issuing notice, the Court passed the following interim directions : Notice returnable on 06.04.2015. The proceedings of the assessment officer may go on and the petitioner to participate in the same without prejudice to his rights and contentions in the present petition and by way of adinterim relief, it is directed that final order, if any passed, may not be implemented till the next date of hearing. Direct service is permitted today. 4. We are informed that the order of assessment is also passed. However, by subsequent directions dated 6.4.2015, which continued from time to time, the department is precluded from enforcing tax recovery pursuant to such order of reassessment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e validity of reassessment proceedings, we may recall the Assessing Officer in his reasons had stated that the assessee had sold immovable property vide sale deed dated 19.4.2006. The sale value declared was ₹ 87.71 lacs (rounded off). However, the sale deed was registered with the SubRegistrar, Nadiad on 19.4.2006 on which registration charge of ₹ 1.32 lacs(rounded off) and stamp duty of ₹ 11.92 lacs (rounded off) was paid. He therefore, noted that as per the stamp duty, sale value determined by the stamp authorities would come to ₹ 2.12 crores (rounded off). He therefore, invoked section 50C and desired to treat the difference of ₹ 1.25 crores(rounded off) by way of deemed long term capital gain. He therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 87,71,765/- out of which an amount of ₹ 17,87,454/- received as Banakat and the assessee would not claim anything more than the agreed consideration. However, it is to bring to your notice the terms as mentioned in the Banakat page 4 para2 that the possession of the land agreed to be sold would not be given to the purchasers till the final registration is complete xxx In the above background and the circumstances as mentioned in detail as above, it is clear that at the point of time when the sale deed was registered the land in question was NA land (which was duly converted by paying the necessary conversion charges by the purchasers) and accordingly as per the terms of the registered Banakat the possession of the NA land was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in the reasons for reopening the assessment proceedings. 8. Undisputedly, this issue was never examined by the Assessing Officer during the original assessment proceedings. Further, as noted, necessary and relevant information was not placed by the assessee during such proceedings. Reopening within four years was therefore, permissible. Regarding the question of invalidity or improper notice, such a contention has not been taken in the petition. Reassessment has already been framed. We leave it for the petitioner to raise the same in appellate proceedings, if so advised. Such contention is therefore, not examined in the present proceedings. 9. Petition is disposed of accordingly. Notice is discharged, Interim relief stands vac ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
