TMI Blog2016 (7) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... d made a false declaration or provided inaccurate particulars. - Decided in favour of assessee. - Special Civil Application No. 12151 of 2014 - - - Dated:- 4-7-2016 - Akil Kureshi And A. J. Shastri, JJ. For the Petitioner : Mr Manish J Shah, Advocate For the Respondent : Mrs Mauna M Bhatt, Advocate JUDGMENT ( Per Honourable Mr. Justice Akil Kureshi ) The petitioner has challenged a notice dated 18.6.2014 issued by respondent Assessing Officer re-opening the petitioner's assessment for the year 2009-2010. 2. The petitioner is an individual. For the assessment year 2009-2010, the petitioner had filed return of income on 27.3.210 disclosing total income of ₹ 43.86 lacs (rounded off). During the period rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed exemption of ₹ 2,75,84,239/- under section 54F of the Act against the capital gain araised on transfer of said assets. To claim exemption under section 54F of the Act, the assessee has made investment in two residential plots at plot no.51 and 52, situated within Basant Bahar complex forming part of nonagricultural residential use bearing Block no.565 and 614of moje Bopal aof Dascroi Taluka, R. 1,08,60,000/- and ₹ 1,47,90,000/- respectively. The assessee has made investment of capital gain so arised on transfer of long term capital assets in two residential plots. However, as per the provision of section 54F of the Act capital gain on transfer of capital assets not be charged to tax in case of investment made by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of transfer of original assets. As the assessee has claimed a huge exemption i.e. ₹ 2,75,84,239/- under section 54F of the Act, this issue should have been verified thoroughly and assessee should have filed sufficient evidences like completion of construction activities completed within the period as provided in section 54F of the Act. As the assessee has not fulfilled the conditions of section 54F of the Act, an exemption of ₹ 2,75,84,239/- should have to be withdrawn and requires to disallowed and added to the total income of the assessee. Tax effect comes to ₹ 56,27,183/- + interest. 4. The assessee thereupon filed his objections against the notice for re-opening under his communication dated 17.7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusions of the Assessing Officer are based on verification of the case record. In other words, there was no material outside of the assessment proceedings which enabled the Assessing Officer to conclude that income chargeable to tax had escaped assessment. This element would be crucial since we are judging validity of the notice for re-opening which has been issued beyond a period of four years from the end of assessment year. Since therefore, there was clearly even according to the Assessing Officer, no failure on part of the assessee to disclose truly and fully all material facts, such notice could not have been issued. 8. Additionally, we have also perused the assessment proceedings, in context of the petitioner's contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contain a narration that what was under sale was an open plot of land for non-agricultural use. After such detailed inquiry, the Assessing Officer passed order of assessment on 13.12.2011 in which in connection with the petitioner's claim for exemption under section 54F of the Act, he provided as under: During the year under consideration, the assessee has sold one property situated at SF/2, Agarwal Avenue, C.G.Road, Ahmedabad. In this regard, the assessee was called upon to furnish the copy of the purchase deed alongwith the details of cost of the property. On perusal of the puyrchase deed/Deed of Conveyance, it is seen that the purchase price/consideration of the property is ₹ 9,75,000/-. On further perusal of the said Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Working of LTCG Total Sale consideration ₹ 3,14,00,800/- Less: Indexed cost of acquisition in respect of SF/2, Agarwal Avenue, Ahmedabad 10,19,050x 582 /389 ₹ 15,24,646/- Indexed cost of acquisition in respect of Plot No. A/1, Rancharda-as per Statement of income Rs.15,50,698/- ₹ 30,75,344/- Rs.2,83,25,456/- Less: Exemption under section 54 and Bank chargesas per statement of income Rs.2,75,84,239/- Long term capital gains.. .. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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